Reichhoff v. State, 75-896-CR

• Decision Date: 15 March 1977
• Docket Number: No. 75-896-CR,75-896-CR
• Citation: 76 Wis.2d 375,251 N.W.2d 470
• Parties: Kenny Ray REICHHOFF, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 470

251 N.W.2d 470

76 Wis.2d 375

Kenny Ray REICHHOFF, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 75-896-CR.

Supreme Court of Wisconsin.

Argued Feb. 2, 1977.

Decided March 15, 1977.

Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Marguerite M. Moeller, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

ABRAHAMSON, Justice.

This matter is before the court by writs of error to review a judgment of conviction entered on July 31, 1975, of two counts of first degree murder and an order denying defendant's post-conviction motions entered on May 26, 1976.

At trial the special prosecutor, over defense counsel's objection, asked officer White two questions ¹ and asked Sheriff Holland three questions, ² each question relating to defendant's silence, his failure to profess his innocence or his failure to deny his guilt at the time of arrest. Both witnesses responded to all the questions, indicating that the defendant was silent. The court allowed this testimony overruling defense objection.

The prosecuting attorney, in closing argument, twice attacked the defendant's credibility, commenting on defendant's failure to profess his innocence. ³ The court viewed the testimony and the comments as proper and did not give any curative instruction.

On appeal the state concedes that the admission of this evidence and the comments of the prosecuting attorney are constitutional error. The questions were manifestly designed to demonstrate a tacit admission of guilt on the part of the defendant. The purpose of the evidence was to allow the jury to draw an inference of defendant's guilt from the defendant's silence. Such an inference of guilt is a direct violation of the defendant's right to remain silent guaranteed by the state constitution ⁴ and the fourteenth amendment of the federal constitution.

As early as 1891, this court has condemned efforts by a prosecutor to make use of a defendant's invocation of his constitutional privilege to remain silent at trial. ⁵ Prior to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the law in this state was that "evidence concerning the (accused's) failure to respond to a nonaccusatory charge (at the time of apprehension) is not admissible." Galloway v. State, 32 Wis.2d 414, 425a, 145 N.W.2d 761 147 N.W.2d 542, 543 (1966). Subsequent to Miranda this court has recognized as constitutional error the introduction of testimony relating to defendant's silence when in custody. Scales v. State, 64 Wis.2d 485, 219 N.W.2d 286 (1974); State v. Johnson, 60 Wis.2d 334, 342-344, 210 N.W.2d 735 (1973); Buckner v. State, 56 Wis.2d 539, 548, 549, 202 N.W.2d 406 (1972). Cf. State v. Dean, 67 Wis.2d 513, 536, 537, 227 N.W.2d 712 (1975). ⁶ The use of custodial silence to impeach a defendant's exculpatory story was held improper in federal criminal prosecutions in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) and in state criminal prosecutions in Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). ⁷

The difference between prosecutorial use of the defendant's silence at trial and prosecutorial use of the defendant's silence at time of arrest is miniscule. We believe that in both circumstances reference to the defendant's silence does "no more than turn on the red light of potential prejudice involving the defendant's fifth amendment rights." United States v. Arnold, 425 F.2d 204, 206 (10th Cir. 1970).

Although constitutional error in this case is subject to the harmless-error rule, ⁸ we find the error in this case prejudicial. This is not a case where the prosecution casually asked one witness, on one occasion, whether the defendant professed innocence at the time of arrest. Here the prosecution asked two witnesses five different questions raising the issue whether the defendant professed his innocence at the time of arrest. (The questions and answers appear at notes 1 and 2.) In addition, the prosecuting attorney at two different points in his closing statement commented at some length on the defendant's failure to profess his innocence at the time of arrest. (The comments appear at note 3.)

In addition to the impact of this repetition of the error, the nature of the state's evidence and the nature of the defense are also relevant. The evidence against the defendant was sufficient to sustain the convictions, but it was circumstantial. Circumstantial evidence can support a criminal conviction and may be as strong as or stronger than direct evidence. ⁹ However, in this case the defendant took the stand and specifically and unequivocallydenied the offenses entirely. The question for the jury was one of credibility. The jury might well have chosen to believe the defendant's testimony instead of the other witnesses. The erroneously admitted evidence of the silence of the defendant repeatedly put before the jury was intended to, and probably did, cast doubt on the defendant's credibility. It appears that the prosecution was telling the jury a number of times that the defendant must have had something to hide and was really guilty because he did not protest his innocence at arrest. Yet the United States Supreme Court has labeled in-custody silence as "insolubly ambiguous" (Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. at 2244) and "so ambiguous that it is of little probative force" (United States v. Hale, 422 U.S. at 176, 95 S.Ct. at 2136). There are a number of possible reasons for a defendant's custodial silence. The defendant's silence "can as easily be taken to indicate reliance on the right to remain silent as to support an inference that (the defendant's trial) testimony was a later fabrication" (Hale, 422 U.S. at 177, 95 S.Ct. at 2137). Evidence of custodial silence in this case not only had low probative value but also had a high potential for great prejudice to a defendant. We therefore conclude that prejudicial error was committed, and a new trial is required. "It may well be that the defendant is guilty of the offense charged against him, but he is entitled to a fair trial according to the established rules of procedure and principles of law." Boldt v. State, 72 Wis. 7, 17, 38 N.W. 177, 180 (1888).

Judgment and order reversed and cause remanded for a new trial.

BEILFUSS, C.J., not participating.

HANLEY, Justice (dissenting).

I respectfully dissent from that part of the majority opinion stating that prejudicial error was committed and a new trial is required.

The majority's opinion is based on the hypothesis that reference to the defendant's silence in failing to profess his innocence turned the scale. In so holding the majority have neglected to use the balancing scale of justice. The overwhelming circumstantial evidence was neither weighed nor referred to in the opinion.

The following evidence was sufficient, without regard to the improper testimony and prosecutorial remarks, to establish the defendant's guilt beyond a reasonable doubt.

1. The defendant owned the .22 caliber semi-automatic pistol used to commit the two murders, and the police found it concealed under the trap door of the defendant's trailer. The testimony established that it was not possible to reach under the skirt of the defendant's trailer from the outside.

2. The defendant informed the officer that he had a single-shot .22 caliber rifle in his trailer, which the officer saw to be in a dismantled condition. At that time the defendant made no reference to his .22 caliber semi-automatic pistol. It must have been obvious to the jury that the voluntary display of a dismantled rifle was to clear himself of any suspicion.

3. Two police officers testified that the defendant admitted that the only fresh tracks which were discovered near the chain saw shop were his tracks. At trial the defendant denied that he had made the admission.

4. The testimony established that while the defendant was at the Wood Tick Bar on the evening before the murders, defendant requested and obtained the keys to Mike Anderson's car, where he knew his pistol was kept, saying that he wished to obtain his clothes and mail from the car. Although the defendant left the bar after obtaining the keys, he denied that he ever entered the vehicle that night, claiming that he forgot about his belongings.

5. Although the defendant testified that he was in his trailer next to the chain saw shop when the murders occurred, he denied hearing any of the nine shots which were fired. The distance from the trailer to the shop was estimated to be about 37 feet.

6. On the afternoon following the murders, Mike Anderson saw the defendant as Anderson was getting off the school bus. The defendant approached Anderson and said that Anderson was supposed to say that the gun was his.

7. There was testimony that on the Friday before December 11, 1974, the deceased, Marvin Collins, Jr., slapped the defendant and stated "he was going to make a man out of him if it was the last thing he ever did."

In this writer's opinion the improper testimony and prosecutorial remarks relative to defendant's silence in failing to profess his innocence are so immaterial and irrelevant that no jury would consider it worthy of deliberation. The impropriety referred to at most would imply a presumption of guilt. However, this would be sufficiently negated by the standard instruction given in every criminal case.

"The law presumes every person charged with the commission of an offense to be innocent. This presumption attends the defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the jury of his guilt beyond a reasonable doubt. The defendant is not required to prove his innocence." Wis.J.I. Criminal 140.

This court has held that errors occurring in the course of a trial will not serve to overturn a conviction unless it clearly appears that had they not occurred, the...