People v. Welsh

• Court: Colorado Court of Appeals
• Citation: People v. Welsh, 58 P.3d 1065 (Colo. App. 2002)
• Decision Date: 11 April 2002
• Docket Number: 98CA2167
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Claire C. WELSH, Defendant-Appellant.

58 P.3d 1065

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Claire C. WELSH, Defendant-Appellant.

No. 98CA2167.

Colorado Court of Appeals, Div. V.

April 11, 2002.

Certiorari Granted November 18, 2002.

Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Claire C. Welsh, appeals the judgment of conviction entered upon a jury verdict rejecting her insanity defense and finding her guilty of first degree murder after deliberation. We reverse and remand for a new trial.

When defendant's boyfriend attempted to end his romantic relationship with her, defendant went shopping for a handgun, but she was unable to purchase one because she lacked appropriate identification. She obtained the identification, returned to the gun store the next day, and purchased a revolver.

The following day, defendant arose early and drove her car to her cousin's residence, left the car in front of the cousin's house, and dropped the car keys into the cousin's mail slot. She took the revolver from the car, walked back to the apartment she shared with the victim, undressed, got back into bed, and shot him in the back of the head while he was asleep.

Later that day, defendant called and asked her cousin to come to the apartment and then call 911 upon her arrival. When she reached the apartment, the cousin found defendant lying on the floor, naked, bloody, and in a fetal position.

Officers responding to the scene observed that defendant had a gunshot wound and found the victim lying in his bedroom with a revolver on his chest. Lividity patterns later disclosed that the victim had been dead and lying on his left side for some time before his body was moved.

Police initially assumed defendant was the victim of an assault. Defendant answered questions about her name and that of the victim, but remained silent in the face of questions about what had happened. She was transported to the hospital and treated, where she continued to remain silent when detectives and medical personnel asked her what had happened.

The day following the shooting, a detective found and impounded defendant's car without obtaining a warrant. The detective got the keys from defendant's cousin, and when the tow truck operator opened the vehicle to straighten the wheels, the detective shined his flashlight inside and observed a gun box on the passenger side of the vehicle. The box and incriminating documents were later seized from the vehicle and introduced at trial.

Defendant pleaded not guilty by reason of insanity. When being evaluated by psychiatrists, defendant told them she did not remember the shooting.

Two prosecution psychiatrists testified that, although defendant was suffering from depression and a borderline personality disorder, she was not psychotic and had the ability to know right from wrong at the time of the shooting. A defense psychologist opined that defendant was deeply depressed, perhaps psychotically so, and showed signs of contemplating suicide. A defense psychiatrist opined that defendant was psychotically depressed, that she dissociated at the time of the shooting, that she suffered from a severe personality disorder, and that she was legally insane at the time of the shooting. He stated that defendant did not have the capacity to distinguish between right and wrong and did not have the ability to form the necessary culpable mental state.

I.

Defendant contends that the trial court violated her Fifth Amendment right to be free from compelled self-incrimination by permitting the prosecution to introduce evidence of her pre-arrest silence as substantive evidence of her sanity and guilt and to comment upon it during opening statement and closing argument. We agree.

Both the Fifth Amendment and article II, § 18 of the Colorado Constitution provide that no person shall be compelled to testify against himself or herself in any criminal proceeding. The Fifth Amendment, however, not only protects the individual from being involuntarily called as a witness against himself or herself, but also grants a privilege not to answer official questions put to him or her in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him or her in future criminal proceedings. See Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).

A.

The Supreme Court has not decided whether the use of a defendant's pre-arrest silence as substantive evidence of guilt or sanity violates the Fifth Amendment. Relying upon Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the People argue that we need not determine that issue here because defendant's failure to answer questions about the shooting was admitted not as substantive evidence of her guilt, but to show that her silence was inconsistent with her later statements that she did not remember the shooting. We disagree.

In Jenkins, the Court held that the Fifth Amendment is not violated by the use of pre-arrest silence to impeach a defendant's credibility when the defendant takes the stand at trial. The Court reasoned that, although it "can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him," once a defendant chooses to take the stand and testify, that defendant has an obligation to testify truthfully. Jenkins v. Anderson, supra, 447 U.S. at 236, 100 S.Ct. at 2128, 65 L.Ed.2d at 93. Hence, the Court held that the Fifth Amendment right to silence was waived and further determined that the use of pre-arrest silence thereafter for impeachment advances the truth-seeking function of the trial.

Here, however, unlike the defendant in Jenkins, defendant did not testify. Further, based upon our review of the record, we conclude that the prosecution did not propose to use defendant's silence at trial only for impeachment. At the evidentiary hearing, the prosecution argued that defendant's willingness to answer biographical questions and failure to respond to questions about the shooting was probative of her mental state, indicated that at the time of the shooting she was aware of and appreciated the gravity of what she had done, and was good evidence that she knew right from wrong. The use of defendant's silence merely to impeach her statements to the mental health experts was not raised at the hearing or at trial.

Nor did the prosecution actually limit its use of the evidence to impeachment. The prosecution mentioned defendant's silence in the opening statement, examined six witnesses concerning it during its case-in-chief, and suggested during closing argument that such silence indicated defendant was sane at the time of the shooting and "she knew what happened."

For these reasons, we reject the argument that the prosecution used defendant's silence as impeachment evidence only.

B.

The use of a defendant's pre-arrest silence as substantive evidence of guilt is significantly different from its use to impeach the defendant's credibility on the stand. See Combs v. Coyle, 205 F.3d 269, 281 (6th Cir. 2000). The federal circuits are divided on the admissibility of such evidence. Four circuits have concluded that it is inadmissible as substantive evidence of guilt in the prosecution's case-in-chief. See Combs v. Coyle, supra; United States v. Burson, 952 F.2d 1196 (10th Cir.1991); Coppola v. Powell, 878 F.2d 1562 (1st Cir.1989); United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.1987). Three other circuits, however, have reached the opposite conclusion. See United States v. Oplinger, 150 F.3d 1061 (9th Cir.1998); United States v. Zanabria, 74 F.3d 590 (5th Cir. 1996); United States v. Rivera, 944 F.2d 1563 (11th Cir.1991).

Those circuits that have found the use of pre-arrest silence inadmissible to prove guilt when the defendant does not testify have recognized that the right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings and is not limited to persons in custody or those charged with a crime. See United States ex rel. Savory v. Lane, supra 832 F.2d at 1017. In addition, the right to silence, which historically has been given a broad scope, may be asserted by a suspect who is questioned during the investigation of a crime or by any person in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. See Combs v. Coyle, supra; United States v. Burson, supra; cf. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)(the viability of the privilege depends on whether a responsive answer to the question might result in a harmful disclosure).

In contrast, the three circuits that have reached the opposite conclusion base their decisions on the lack of governmental coercion or compulsion to speak in a pre-arrest setting. See United States v. Oplinger, supra; United States v. Zanabria, supra, United States v. Rivera, supra. They reason that, as Justice Stevens stated in his concurring opinion in Jenkins v. Anderson, supra, the privilege against compulsory self-incrimination is irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak. Justice Stevens opined that "in determining whether the privilege is applicable, the question is whether [the defendant] was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent." Jenkins v. Anderson, supra, 447 U.S. at 243-44, 100 S.Ct. at 2132, 65 L.Ed.2d at 98.

However, as Justice Marshall explained in his dissent in Jenkins:

[U]nder that view, a person's right not to incriminate himself exists only if the government has already attempted to compel him to do so. If no

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