State v. Percy

Decision Date22 January 1988
Docket NumberNo. 83-179,83-179
Citation149 Vt. 623,548 A.2d 408
PartiesSTATE of Vermont v. Robert L. PERCY.
CourtVermont Supreme Court

Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Jane Gomez, Law Clerk (On the Brief), Montpelier, for plaintiff-appellee.

David W. Curtis, Defender General, and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., DOOLEY, J., BARNEY, C.J. (Ret.), KEYSER, J. (Ret.) and COSTELLO, District Judge (Ret.), Specially Assigned.

DOOLEY, Justice.

The defendant in this case was found guilty of sexual assault, kidnapping, carrying The convictions arose out of a two-day incident in which defendant, a garage station attendant, forced a female customer at gunpoint to drive him to Connecticut. Along the way, he forced her to have sexual intercourse with him on two occasions--once in Vermont--and robbed her of $130 in cash. Under the State's theory of the case, defendant was fleeing from another criminal prosecution for sexual assault.

a dangerous weapon while committing a felony and assault and robbery with a dangerous weapon. The convictions followed a lengthy trial by court.

The victim escaped from the vehicle in Connecticut and ran to a police car that was parked nearby. A manhunt ensued and defendant was apprehended shortly thereafter attempting to evade arrest.

The defense did not challenge the victim's statement of the events. Instead, the defendant relied on the insanity defense and argued that the State failed to prove sanity beyond a reasonable doubt once it was put in issue by the defendant and his experts. The defendant claimed to be suffering from post-traumatic stress disorder because of the continued effect of experiences in the Vietnam war. Defense experts maintained that defendant was experiencing an "unconscious flashback" at the time of the incident and because of it he could not control his mental and emotional processes and his behavior. They also believed that defendant had amnesia about the events starting with his abduction of the victim and ending with his arrest.

The sanity issue was hotly contested--it was really the only issue in the case. The defense put on four experts in support of its claim of insanity. The prosecution put on two experts in support of its position that defendant was sane at the time of the offense. All agreed that the defendant was suffering from post-traumatic stress disorder. However, they disagreed fundamentally about the relationship between the disorder and the conduct for which defendant was charged. They also disagreed on whether defendant actually suffered from amnesia.

After the close of the evidence the trial court issued a fifty-five page decision including findings of fact and conclusions of law and an entry order. The findings were subsequently amended in one area relevant to this appeal. The defendant appealed from the judgment raising five issues for this Court:

1. The trial court improperly used defendant's post-arrest silence to determine his sanity.

2. Defendant's due process rights and his right to confront witnesses and present a defense were denied by the failure to grant certain discovery requests.

3. The judgment rests on findings that cannot support the decision.

4. The warrantless search of defendant's wallet after his arrest, and the use of the fruits of that search as evidence, denied defendant's rights under the Vermont Constitution.

5. The trial court admitted and used improper character evidence of the defendant.

We treat these in the order they are presented.


The prosecution offered, through the testimony of the arresting officers in Connecticut, evidence of defendant's post-arrest conduct to show it was inconsistent with his claim of insanity or amnesia. Over objection, the officers testified that the defendant asked no questions about the charges or, in fact, about anything. In the closing argument, the prosecutors argued that the court should infer from defendant's silence that he was lying about his amnesia. The nucleus of their argument was:

He is told he is under arrest for kidnapping and he doesn't ask what it is he supposedly kidnapped. He doesn't even ask where he is, how he got there, or what day it is, reasonable questions a person would normally ask upon resurfacing from a memory loss covering parts of two days. The reason he did not The prosecution requested findings on this point. The trial court made findings to the effect that the defendant said nothing and asked no questions when he was arrested, when he was in the police car after receiving Miranda warnings and at the police station. The defense objected to these findings and requested that they be struck.

ask any questions was because he already knew the answers.

The court amended the findings noting, however, that they did not go to guilt but were "considered only in light of defendant's claimed amnesia regarding the events which triggered his pursuit and arrest." The amended findings stated that "at no time during these events did Defendant ask any questions as to why he was being pursued and arrested." The events referred to included the chase, the arrest, a search, the reading of Miranda warnings and the transport to police headquarters.

After reviewing all the evidence, the trial court rendered conclusions on the psychiatric issues. No mention was made of defendant's silence. Instead, the court related testimony that defendant acted normal with "no evidence of confusion or unusual behavior."

In Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that it was impermissible for the prosecution to use post-arrest silence to impeach the credibility of a defendant who testified where the silence occurred after Miranda warnings were given. Because silence could be the exercise of rights under Miranda, the post-arrest silence is "insolubly ambiguous" and thus cannot be used to show that the defendant had no exculpatory story to tell the police. Id. Further, the Court held that the Miranda warnings imply that there will be no penalty for exercise of the rights covered in the warning including the right to remain silent. Id. at 618, 96 S.Ct. at 2245. If the prosecution is allowed to use silence to undermine a defense, the defendant will be penalized for the silence.

In Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), decided after the trial in this case, the Court applied Doyle to an instance where the prosecutor argued that post-arrest silence was inconsistent with a claim of insanity because it showed a comprehension of the warnings and the wisdom of exercising the right to remain silent. The Court found that the argument violated the defendant's right to remain silent as enunciated in Doyle even though the use didn't go to proof of the commission of the underlying offense. As in Doyle, the Court found that use of silence in this way penalized the defendant for the exercise of a constitutional right. The Court did note, however, that "carefully framed questions" that showed the rationality of defendant's conduct without comment on silence could be used. Id. at 295, 106 S.Ct. at 640.

The use of defendant's silence in this case is similar to the use in Greenfield. Here, the court indicated that the silence was considered "in light of defendant's claimed amnesia" which was related to his post-traumatic stress disorder. Nevertheless, the State argues a number of ways to distinguish Greenfield in order to avoid reversal.

First, the State argues that the testimony described defendant's conduct, not silence. It is hard to see how this is a meaningful distinction. The defendant's failure to ask questions or make an exculpatory statement is silence. Whether the silence should be classified as behavior or "testimonial" is irrelevant to the holding of Greenfield. Nor are the questions here the "carefully framed questions" described in Greenfield. Such questions would have been phrased to elicit responses that showed defendant acted in a rational manner without specifying silence as the indicator of rationality. See State v. Mauro, 149 Ariz. 24, 32, 716 P.2d 393, 401 (1986), rev'd on other grounds, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987).

Second, the State argues that the evidence was admitted without objection. A careful review of the record, however, indicates that while testimony about defendant's post-arrest silence was introduced at one point without objection, this Third, the State argues that part of the evidence related to silence that preceded Miranda warnings so that the post-warnings silence was cumulative. The United States Supreme Court has held that silence that precedes an arrest or follows an arrest but precedes Miranda warnings is not covered by Doyle and can be subject to comment. See Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982); Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980). A number of state courts have refused to follow this holding, relying either on their state constitutions or their rules of evidence. See, e.g., Nelson v. State, 691 P.2d 1056 (Alaska Ct.App.1984); Lee v. State, 422 So.2d 928 (Fla.Dist.Ct.App.1982); State v. Lyle, 73 N.J. 403, 375 A.2d 629 (1977); Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982); Sanchez v. State, 707 S.W.2d 575 (Tex.Crim.App.1986); State v. Davis, 38 Wash.App. 600, 686 P.2d 1143 (1984). In this case, the court admitted evidence on silence that occurred both before and after the giving of Miranda warnings with no distinction based on the timing. We have no basis to conclude that the trial court viewed the post-warning silence as "cumulative" that added no weight to the evidence. Indeed, the failure of the court to strike the reference to post-arrest silence in response to the motion of the...

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