Phelps v. Duckworth, 84-1052

• Citation: 772 F.2d 1410
• Decision Date: 13 September 1985
• Docket Number: No. 84-1052,84-1052
• Parties: Gerald Wayne PHELPS, Petitioner-Appellee, v. Jack R. DUCKWORTH, Warden Indiana State Prison, and Linley E. Pearson, Attorney General of Indiana, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1410

772 F.2d 1410

54 USLW 2231

Gerald Wayne PHELPS, Petitioner-Appellee, v. Jack R. DUCKWORTH, Warden Indiana State Prison, and Linley

E. Pearson, Attorney General of Indiana,

Respondents-Appellants.

No. 84-1052.

United States Court of Appeals, Seventh Circuit.

Argued June 17, 1985.

Decided Sept. 13, 1985.

John D. Clouse, Evansville, Ind., for petitioner-appellee.

David A. Arthur, Office of Atty. Gen., Indianapolis, Ind., for respondents-appellants.

Before CUMMINGS, Chief Judge, and BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, COFFEY, FLAUM, EASTERBROOK and RIPPLE, Circuit Judges.

CUMMINGS, Chief Judge, with whom BAUER, WOOD, ESCHBACH, COFFEY and RIPPLE, Circuit Judges, join.

Petitioner Gerald Wayne Phelps was convicted in the Superior Court of Vandenburgh County, Indiana, of rape and kidnapping in 1974. He received concurrent sentences of two to twenty-one years and life imprisonment, and his conviction was affirmed unanimously by the Indiana Supreme Court. 266 Ind. 66, 360 N.E.2d 191 (1977), certiorari denied, 434 U.S. 844, 98 S.Ct. 146, 54 L.Ed.2d 110.

In 1978 petitioner sought a writ of habeas corpus in the United States District Court for the Southern District of Indiana. His petition was granted chiefly because of "the denial of defendant's right to silence by the questions asked by the prosecutor in his cross-examination of the petitioner * * *." 582 F.Supp. 401, 410 (1983). On appeal, the judgment of the district court was affirmed in an opinion by Senior District Judge Gordon, Circuit Judge Cudahy concurring and the author of this opinion dissenting. 757 F.2d 811, 824, 825 (1985). The respondent Attorney General and respondent Warden filed a petition for rehearing en banc on the grounds that petitioner was not denied any constitutional rights under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, because he had not maintained post-arrest silence, and furthermore any Doyle error was harmless in view of the strong evidence against Phelps. Rehearing en banc was granted on May 20, 1985, and we now reverse the judgment of the district court.

The facts of the case were summarized as follows by the Supreme Court of Indiana (360 N.E.2d at 192-193):

The prosecutrix [Mrs. Theresa Clem] was a dancer at a bar in Evansville. Shortly after midnight on March 27, 1974, she left her place of employment on foot. The defendant, who had met her earlier at the bar, drove up alongside her and offered her a ride home. The defendant did not take her to her destination. He forced her to commit fellatio and forcibly raped her in the back seat of his car. The prosecutrix escaped by jumping from the car. She called the police from a nearby home and soon thereafter identified the defendant at the bar where he was apprehended. The defendant admitted sexual intercourse but claimed it was consensual, not forcible.

The jury credited Mrs. Clem's testimony which was initially corroborated by a police officer, a physician, and the owner of the house where she fled after the attack, a Mrs. Nellie Casteel. Mrs. Casteel had never met Theresa Clem prior to the March 28, 1974, incident, and testified that the victim was in a "terrified and scared" condition upon arriving at her house (R. 195). Mrs. Clem was able to lead the police to the site of the rape, a secluded open field, only a few blocks from Mrs. Casteel's house, where tire tracks in the soil and grass were discovered (R. 218). The bartenders of the lounge where Mrs. Clem worked (the Copy Bar) and where Phelps had been that evening and another policeman also corroborated her testimony, identifying the site of the rape as being 5-6 minutes away from the lounge. The bartenders added that they had never seen Mrs. Clem in Phelps' presence prior to March 27, the night of the rape, thus contradicting Phelps. Her injuries were attributable to being choked by Phelps and to jumping from the fast-moving car he was driving.

In his testimony, Phelps admitted that he had previously been convicted of second-degree burglary. He said that Mrs. Clem and he talked at the lounge and she agreed to meet him in a car he had borrowed ¹ (which was, of course, unfamiliar to Mrs. Clem). He said that when they were having intercourse in the parking lot behind the lounge, a stranger pulled up in another car and jerked Mrs. Clem out of the car and drove off with her while she was screaming and crying. The stranger allegedly caused the victim to fall and thereby sustain injuries. Phelps testified that after his arrest and Miranda warnings, he told the police at the station house that he was not guilty of the kidnapping and rape but was nevertheless afraid that he might be killed by Mrs. Clem's husband and therefore asked for protective custody. While he also said that he asked the police for a polygraph test, this was denied by the police officers in question.

In the panel opinion in this case, the majority stated that "this appeal turns on the first instance of alleged [Doyle ] misconduct," 757 F.2d at 815, and the concurring opinion also rested on an assessment that "the Doyle violation was clear * * *." 757 F.2d at 824. Our affirmance is based on the absence of a Doyle violation and on harmless error in any event.

I

Doyle v. Ohio involved two petitioners who were arrested and given the warnings dictated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. At their trials, they told exculpatory stories. On cross-examination the prosecutor used each defendant's post-arrest silence for impeachment purposes. The trial court overruled timely objections. On appeal to the Ohio Court of Appeals, the petitioners unsuccessfully asserted that the trial court erred in allowing the prosecutor to cross-examine them about their post-arrest silence. The Supreme Court reversed the convictions, stating "We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." 426 U.S. at 619, 96 S.Ct. at 2245.

In Doyle, after his arrest and Miranda warnings petitioner Wood remained completely silent about the alleged marijuana sale. Petitioner Doyle's comments to the narcotics agents after his arrest and receipt of Miranda warnings also did not discuss the offense at that time but merely commented in part, "What's this all about?" and "I don't know what you're talking about." His comments and an additional noncommital one mentioned in the Doyle dissent were treated by all members of the Supreme Court as "post-arrest silence" in that they did not refer to the crime charged. In contrast to Doyle, Phelps did not remain silent after his arrest and Miranda warnings but instead testified at the trial that he had at least twice told the police at the station that he did not commit these crimes (360 N.E.2d at 194), that he had even asked for a polygraph test to show his innocence (360 N.E.2d at 193), and that he had requested protection from Mr. Clem (757 F.2d at 814; R. 277). Moreover, as Judge Brooks' opinion observed, while still at the Copy Bar Phelps "said he denied that he raped the prosecuting witness [Mrs. Clem] when he was approached by a bar employee and informed that the prosecuting witness had made such an accusation in a telephone call" (582 F.Supp. at 403). He never claimed before trial that Mrs. Clem consented to intercourse. Accordingly, it seems clear to us that there was no post-arrest silence in this case. Instead, as we read the record, Phelps told two different stories. Before trial, as we see it, he denied that he had been sexually involved with Mrs. Clem, whereas at the trial he told the completely different story that he was in a car with Mrs. Clem and had sexual intercourse with her, but that it was with her consent. To explain her bruises, he added at trial that some stranger had abducted her from Phelps' car and injured her in so doing. Moreover, unlike the Doyle case, when the prosecutor sought to question Phelps about his failure to tell his present elaborate exculpatory story to the police after his arrest, defense counsel made an objection which was twice sustained and the trial court twice admonished the jury that Phelps had no obligation to tell the police or prosecutor anything.

If there were any doubt about Doyle's applicability here, it was dispelled by Anderson v. Charles, 447 U.S. 404, 100 S.Ct 2180, 65 L.Ed.2d 222. There the respondent had been convicted of first-degree murder and lost his appeal to the Michigan Court of Appeals. After the district court refused to grant a writ of habeas corpus, the Sixth Circuit reversed (610 F.2d 417), citing Doyle v. Ohio. The Supreme Court reversed the judgment of the court of appeals because Doyle only "bars the use against a criminal defendant of silence maintained after receipt of governmental [Miranda ] assurances." 447 U.S. at 408, 100 S.Ct. at 2182. Since Charles had not remained silent when questioned by the police following Miranda warnings, the Supreme Court held Doyle to be inapplicable. ² Similarly here, as seen, there was no post-arrest silence by Phelps, so that Charles requires reversal of the district court's grant of the writ of habeas corpus to Phelps. Accord from this Circuit: United States v. Samples, 713 F.2d 298, 304 (7th Cir.1983); Jacks v. Duckworth, 651 F.2d 480, 483 (7th Cir.1981), certiorari denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300. See also United States v. Crowder, 719 F.2d 166, 170-172 (6th Cir.1983), certiorari denied, --- U.S. ----, 104 S.Ct. 2352, 80 L.Ed.2d 825; Hockenbury v. Sowders, 718 F.2d 155, 158-159 (6th Cir.1983); United States v. Dixon, 593 F.2d 626, 630 (5th Cir.1979), certiorari denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82.

Petitioner's cases are not in point. Thus in United States ex rel. Smith v. Rowe, 618 F.2d 1204 (7th Cir.1980), the defendant remained silent when police came to interview his live-in girl friend in his...