State v. Galvan
| Decision Date | 28 February 2014 |
| Docket Number | Nos. 40223,40224.,s. 40223 |
| Citation | 326 P.3d 1029,156 Idaho 379 |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Rafael GALVAN, Defendant–Appellant. |
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
Rafael Galvan appeals from his judgment of conviction and sentence for stalking in the first degree, Idaho Code § 18–7905, and aggravated assault with a deadly weapon, I.C. §§ 18–905(a), 19–2520.
Galvan and the victim were married for twenty-three years but they separated due to marital problems. As a result of Galvan's escalating behavior of anger and aggressiveness, the victim sought and received a protection order. Despite the protection order, on multiple occasions Galvan waited for the victim to get off work and would then follow her in his car. The victim reported one incident to law enforcement. On another occasion, the police responded while Galvan continued to follow her. This led to Galvan's arrest for violating the protection order. The final incident occurred when Galvan confronted the victim in the parking lot where she worked. Galvan brandished a handgun and threatened to kill the victim and himself. The victim talked Galvan out of his plan, and she was able to safely make it to the office building. A coworker witnessed the encounter and reported it to a supervisor who called the police. Galvan was later arrested and after he was given Miranda1 warnings, he admitted that he contacted the victim at her work. When asked about the handgun, Galvan did not respond.
The State presented testimony at trial that Galvan fell silent when the officer questioned him about the handgun. The State referenced this silence in closing argument, explaining that a reasonable person would have adamantly denied an accusation of using a gun to threaten someone. Galvan did not object. Galvan claimed he did not remain silent, but instead denied having a gun. Galvan was found guilty of first degree stalking and aggravated assault with a deadly weapon. The district court sentenced Galvan to ten years with one and one-half years determinate on the assault charge, and a concurrent sentence of four years with one and one-half years determinate on the stalking in the first degree charge.
Galvan argues that the State committed fundamental error when the prosecutor commented on his post-Miranda silence during closing argument. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007) ; State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had previously utilized to describe what may constitute fundamental error. The Perry Court held that an appellate court should reverse an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978. We address each prong in turn.
Galvan argues the prosecutor's comment during closing argument violated his right to remain silent under the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment.2 The Fifth Amendment of the United States Constitution guarantees that "No person ... shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. The Idaho Supreme Court has held that the Fifth Amendment prohibits the State from inferring guilt from a defendant's post-custody silence during its case-in-chief. State v. Ellington, 151 Idaho 53, 60, 253 P.3d 727, 734 (2011) (citing State v. Moore, 131 Idaho 814, 820–21, 965 P.2d 174, 180–81 (1998) ). The State may use pre-Miranda silence for impeachment purposes, pre-arrest or post-arrest. Ellington, 151 Idaho at 60, 253 P.3d at 734. In order to obtain the Fifth Amendment's protection, a defendant must claim it.
In Salinas v. Texas, ––– U.S. ––––, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013), the United States Supreme Court examined the prosecutor's use of a defendant's silence at trial. Before receiving Miranda warnings, the defendant voluntarily answered the officer's questions during a non-custodial interrogation regarding a murder investigation. When the officer asked if a ballistics test would establish that the shell casings from the crime scene would match the defendant's shotgun, the defendant fell silent. The prosecuting attorney argued at trial that the defendant's reaction to the question showed that he was guilty. The defendant alleged this violated his Fifth Amendment right to remain silent. The plurality opinion held that the defendant's "Fifth Amendment claim fail[ed] because he did not expressly invoke the privilege against self-incrimination in response to the officer's question."3 Id. at ––––, 133 S.Ct. at 2178, 186 L.Ed.2d at 382–383. A defendant does not invoke this right "by simply standing mute." Id.
Here, the State elicited the following testimony regarding Galvan's post-Miranda silence in its case-in-chief:
Galvan did not object and does not challenge this examination on appeal. The prosecutor again inquired into the silence during the cross-examination of Galvan:
Galvan again did not object and does not challenge this examination on appeal. Finally, the prosecutor began the closing argument by recounting the testimony offered regarding Galvan pulling out the handgun. The prosecutor then explained the following to the jury:
Galvan did not object, but argues on appeal that the prosecutor's comment improperly inferred guilt from his silence. However, because Galvan did not affirmatively assert his right to remain silent when asked about the handgun, the Fifth Amendment is not implicated.4 The officer testified that Galvan would not respond when asked about the handgun. Galvan's silence in response to the officer's question did not invoke his right to remain silent and Galvan's Fifth Amendment right was therefore, not violated by the prosecutor's statement in closing argument.5
On the other hand, Galvan also argues that his due process rights were violated when the prosecutor made reference to his post-Miranda silence during closing argument. In reaching its decision in Salinas, the plurality noted that a defendant's silence may be implicated under the due process protection that stems from Miranda warnings:
Petitioner is correct that due process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, Doyle v. Ohio, 426 U.S. 610, 617–618, 96 S.Ct. 2240 [2244–45], 49 L.Ed.2d 91 [96–97] (1976), but that rule does not apply where a suspect has not received the warnings' implicit promise that any silence will not be used against him, Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124 [2130], 65 L.Ed.2d 86 [95–96] (1980).
Salinas, ––– U.S. at –––– n. ––––, 133 S.Ct. at 2182 n. 3, 186 L.Ed.2d at 386–87 n. 3. Thus, Galvan may be able to show a constitutional violation under the Due Process Clause because he fell silent after the officer had informed him of his Miranda rights and the prosecution commented thereon.
In Doyle, the United States Supreme Court held that after a defendant has received Miranda warnings, the use of a defendant's silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 97–99. The Court explained:
The warnings mandated by [Miranda ], as a prophylactic means of safeguarding Fifth Amendment rights, require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used...
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State v. Neyhart
...questions or provide information can constitute an impermissible comment on a defendant's silence. See State v. Galvan , 156 Idaho 379, 385, 326 P.3d 1029, 1035 (Ct. App. 2014). A defendant's decision to exercise his or her constitutional right to remain silent pre-custody cannot be used in......
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...67 P.3d 1283, 1286–87 (Ct. App. 2003) (applying Idaho Rule of Evidence 403 ), abrogated on other grounds by State v. Galvan , 156 Idaho 379, 326 P.3d 1029, 1033 n.5 (Ct. App. 2014) ; People v. Primo , 96 N.Y.2d 351, 728 N.Y.S.2d 735, 753 N.E.2d 164, 167–68 (2001) (rejecting "clear link" tes......
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