State v. Higgins
| Decision Date | 29 April 1988 |
| Docket Number | No. 60980,60980 |
| Citation | 755 P.2d 12,243 Kan. 48 |
| Parties | STATE of Kansas, Appellee, v. Dwight HIGGINS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The use for impeachment purposes of a defendant's silence at the time of his arrest and after receiving Miranda warnings violates the due process clause of the Fourteenth Amendment to the United States Constitution. Following State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976).
2. As a general rule, a litigant may not invite error and then complain of the error on appeal.
3. The invited error rule cannot be used as a pretext for the violation of a defendant's constitutional rights where there is no justification for so doing.
4. The invited error rule may not be used to excuse the actions by counsel during cross-examination or closing argument when such actions are ordinarily improper and erroneous, and are not a necessary or justified response to the actions of the other party in order to achieve a fair trial.
5. Improper comments during closing argument are not harmless and require reversal when there is a reasonable doubt as to whether the comments contributed to the verdict.
6. The crimes of aggravated battery and aggravated robbery are not multiplicious, and a defendant may be convicted for both crimes for the same underlying transaction. K.S.A.1987 Supp. 21-3107(2)(d).
Charles D. Dedmon, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Deputy Appellate Defender, was with him on the brief for appellant.
Michael Grosko, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.
The defendant, Dwight Higgins, was convicted by jury trial of one count of aggravated robbery (K.S.A. 21-3427), one count of aggravated battery (K.S.A. 21-3414), and one count of aggravated burglary (K.S.A. 21-3716). Defendant was sentenced to a controlling term of imprisonment of fifteen years to life. He appeals from his conviction.
Defendant first contends that the State's attorney impermissibly commented upon his failure to protest his innocence after he was arrested. The subject of defendant's silence initially arose during the defense cross-examination of Detective Jerry Fiskus, a witness for the State.
After the defense had completed its cross-examination of Fiskus, counsel for the State sought to explore the matter further. The following exchange took place at the bench between counsel and the court:
The defendant's objection being overruled, the State then proceeded to question Fiskus in detail about the defendant's refusal to talk with Fiskus after the arrest.
The subject arose again during the State's closing argument.
Although, as the State notes, the defendant did not make a contemporaneous objection to the prosecution's comment during closing argument, the failure to object in the present case does not preclude review of the propriety of the prosecution's remarks. The defendant had objected to the State's original exploration of the subject during the redirect examination of Detective Fiskus. The defendant's objection had been overruled by the trial court and there is nothing in the record to indicate that a second objection at the time of the closing argument would have been more successful.
The defendant, however, is incorrect in characterizing a portion of the prosecution's closing argument as an impermissible comment upon defendant's failure to testify at trial rather than his post-arrest silence. The defendant interprets the State's comment, "And if he's so innocent as he sits there now, why didn't he avail himself of that opportunity?" as a comment upon defendant's refusal to take the stand during the course of the trial. However, reading the remark in context, it appears clear that the comment is directed towards defendant's post-arrest silence rather than his refusal to testify during the trial. Read in context, the rhetorical question, "[W]hy didn't he avail himself of that opportunity?" refers to the time of defendant's arrest. Thus, the rule announced in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, reh. denied 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965), and codified by K.S.A. 60-439, that a prosecutor in a criminal case may not comment upon the failure of the defendant to testify, was not violated in the present case.
The question, however, remains whether the State impermissibly commented upon the defendant's right to remain silent after his arrest. We find that question must be answered in the affirmative. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that a defendant's silence after arrest and receiving Miranda warnings could not be used to impeach the defendant at trial, holding that such use constituted a violation of the due process clause of the Fourteenth Amendment. This court adopted the same rule in State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976).
The State defends its comments upon the defendant's post-arrest silence by asserting that the comments were invited error. It is a general rule that a litigant may not invite error and then complain of that error on appeal. State v. Gray, 235 Kan. 632, 681 P.2d 669 (1984).
The invited error rule cannot be used as a pretext for the violation of a defendant's constitutional rights where there is no justification for so doing. In the present case, it is apparent that both the State and the trial court were aware that, ordinarily, no comment could be made regarding a defendant's post-arrest silence. Nor was there any necessity for the full exploration of the nature of the defendant's silence after his arrest and the State's comments during its closing argument. The sole motivation for the State's comments was the exploitation of the opportunity to utilize defendant's exercise of his Fifth Amendment Miranda rights against him. The present case does not involve a defendant who has invited or misled the court into error or who acquiesced in errors of the trial court. Nor did the defendant indulge in any improper or erroneous activities which required the State, in order to achieve a fair trial, to respond in kind. The cross-examination by counsel for the defendant was not an invitation to the State to violate defendant's right to due process. Rather, the State seized upon the opportunity to present evidence and arguments during closing which clearly violated the defendant's constitutional rights and were improper....
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State v. Murray, No. 94,619.
...for a mistrial." 256 Kan. at 686, 887 P.2d 88. In Gadelkarim, we distinguished our ruling from the previous case of State v. Higgins, 243 Kan. 48, 49-52, 755 P.2d 12 (1988), disapproved on other grounds State v. Warren, 252 Kan. 169, 178, 843 P.2d 224 (1992) (rejecting the Higgins court's m......
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...and after receiving Miranda warnings violated the Due Process Clause of the Fourteenth Amendment). Gadelkarim relies on State v. Higgins, 243 Kan. 48, 755 P.2d 12 (1988). In Higgins, at issue was whether the State's attorney impermissibly commented upon the defendant's failure to protest hi......
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...later expanded to prevent the State from commenting on a defendant's post-Miranda silence in closing argument. See State v. Higgins, 243 Kan. 48, 50-51, 755 P.2d 12 (1988), abrogated on other grounds State v. Rinck, 256 Kan. 848, 888 P.2d 845 Kansas also has a statute which prevents the Sta......
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State v. Schoonover
...they arose from the same act of violence. The State acknowledged the Warren decision, but asked the court to follow State v. Higgins, 243 Kan. 48, 55-56, 755 P.2d 12 (1988), in which the court had applied an elements test and found that aggravated robbery and aggravated battery were not mul......
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