Taylor v. Com.

• Decision Date: 03 February 1998
• Docket Number: No. 2083-96-3,2083-96-3
• Parties: William Thomas TAYLOR v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 522

495 S.E.2d 522

26 Va.App. 485

William Thomas TAYLOR v. COMMONWEALTH of Virginia.

Record No. 2083-96-3.

Court of Appeals of Virginia,

Salem.

Feb. 3, 1998.

B. Leigh Drewry, Jr., Lynchburg, for appellant.

Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON, COLEMAN and MOON, ^* JJ.

COLEMAN, Judge.

The issue in this criminal appeal is whether a defendant's tacit admission by silence following a police officer's question in a non-custodial setting was erroneously admitted into evidence in violation of the constitutional protections afforded by the Fifth Amendment to the United States Constitution and Article I, Section 8 of the Virginia Constitution.

William Thomas Taylor was convicted of possessing a firearm after having been convicted of a felony in violation of Code § 18.2-308.2 and of carrying a concealed weapon in violation of Code § 18.2-308. At trial, the Commonwealth introduced evidence during its case-in-chief that when the investigating officer asked Taylor, who was being treated at a hospital for injuries received in a motor vehicle accident, whether the firearm discovered in Taylor's van belonged to him, Taylor remained silent. The Commonwealth introduced such evidence as a tacit admission from which the fact finder would be permitted to infer that Taylor admitted by his silence that he owned the firearm. ¹ We hold that the trial court erred by admitting the evidence because proof that the appellant remained silent impermissibly burdened the exercise of his privilege against compelled self-incrimination under the Fifth Amendment of the United States Constitution and Article I, Section 8 of the Virginia Constitution.

I. BACKGROUND

When Amherst County Deputy Sheriff Lindy Inge responded to the scene of a single-vehicle accident, he observed the appellant resting against a heavily damaged van. Deputy Inge determined that the appellant was injured and called for an ambulance. While surveying the damage to the van, Inge observed the interior of the van through an open door. He saw a handgun in the driver's door compartment and seized it.

Later, Inge went to the appellant's hospital room to investigate the accident. During the interview, Inge asked the appellant whether he owned the gun found in the van. The appellant did not respond.

At trial, Inge testified in the Commonwealth's case-in-chief, over objection by the appellant on constitutional grounds, that the appellant remained silent in response to the question regarding ownership of the gun. ² The trial court overruled the objection, and this appeal followed.

II. ANALYSIS

This appeal raises fundamental questions about the breadth and scope of the constitutional privileges against compelled self-incrimination. Article I, Section 8 of the Virginia Constitution provides, in pertinent part, that a person may not "be compelled in any criminal proceeding to give evidence against himself." The privilege under the Virginia Constitution is "in effect, identical" to the privilege against self-incrimination afforded under the Fifth Amendment of the United States Constitution. Flanary v. Commonwealth, 113 Va. 775, 779, 75 S.E. 289, 291 (1912). See also Farmer v. Commonwealth, 12 Va.App. 337, 340, 404 S.E.2d 371, 372 (1991) (en banc). Accordingly, we apply Fifth Amendment principles in addressing the challenge under Article I, Section 8. See Walton v. City of Roanoke, 204 Va. 678, 682, 133 S.E.2d 315, 318 (1963); Farmer, 12 Va.App. at 340, 404 S.E.2d at 372.

The Fifth Amendment to the Federal Constitution provides that "no person shall ... be compelled in any criminal case to be a witness against himself." U.S. Const. amend V. An individual may assert this privilege whenever the government seeks to compel self-incriminating testimonial or communicative evidence. See Ronald J. Bacigal, Virginia Criminal Procedure § 7-1, at 129, § 7-11, at 154 (3d ed. 1994). The privilege arises before the institution of formal adversarial proceedings, and may be asserted in investigatory as well as adjudicatory settings. See Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987) (comparing attachment of Sixth Amendment right to counsel only after a defendant becomes an "accused " with Fifth Amendment mandate that no "person" shall be compelled to provide incriminating evidence against himself).

"The major thrust of the policies undergirding the privilege is to prevent [government] compulsion." Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 2348-49, 101 L.Ed.2d 184 (1988). Fundamental to that concept is the principle that the government may not compel a defendant to testify at trial. See Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 1620-21, 16 L.Ed.2d 694 (1966); Gosling v. Commonwealth, 14 Va.App. 158, 165-66, 415 S.E.2d 870, 874 (1992). The privilege also extends to situations where an accused or suspect who is in custody may feel compelled to verbally disclose incriminating evidence to a government agent. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630. In furtherance of this policy, the Supreme Court has held that because government compulsion inheres in the coercive environment of a custodial interrogation following an arrest, an accused must be expressly informed of the Fifth Amendment "right to remain silent" and warned that "anything he says may be used against him." Id. at 461, 86 S.Ct. at 1621.

This appeal raises a more difficult question than whether the government may require an accused to testify in a criminal proceeding or compel the person to answer questions while in custody. The issue here is whether the Fifth Amendment affords any protection to an individual who is not compelled to testify or speak from having the person's exercise of his fundamental right to remain silent from being used in a judicial proceeding as an admission of guilt. In other words, do the constitutional privileges against self-incrimination protect a defendant's pre-custodial silence in response to police questioning from being introduced as substantive evidence of guilt in the government's case-in-chief. ³ Although the Supreme Court has not expressly addressed this issue, ⁴ its decisions regarding the government's use of an accused's silence at trial and the scope of the Fifth Amendment privilege are instructive.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court held that the government's impeachment use of a defendant's silence during a custodial police interrogation violates the defendant's due process rights because the Miranda warnings given after arrest contain "implicit assurances" that the government will not penalize such silence. 426 U.S. at 617, 96 S.Ct. at 2244. In so holding, the Court noted that "every post-arrest silence is insolubly ambiguous because of what the State is required to advise" the defendant. Id. (emphasis added). In this case, however, the appellant chose to remain silent prior to being placed into custody. The officer was not required to provide Miranda warnings. Because the appellant did not rely on any "assurances" in remaining silent before arrest, Doyle's due process approach that prohibits the government's use of silence, although informative, does not directly apply here. Cf. Fletcher v. Weir, 455 U.S. 603, 605-06, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982) (per curiam) (holding that government did not violate defendant's due process rights under Doyle by using his silence as impeachment evidence because he did not rely on implicit assurances from government where government had placed defendant into custody but had not provided him Miranda warnings).

In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the prosecution sought to infer the defendant's guilt by commenting on the defendant's failure to testify at trial. 380 U.S. at 615, 85 S.Ct. at 1233. In holding that the Fifth Amendment forbids the substantive use or comment upon Griffin's refusal to testify, the Court broadly stated that the government could not impose a penalty on a defendant's exercise of the Fifth Amendment privilege. Id. at 614, 85 S.Ct. at 1232-33. The Court determined that this use of Griffin's silence "cuts down on the privilege by making its assertion costly." Id. In doing so, Griffin noted that prosecutorial comment on the refusal to testify is a "remnant of the 'inquisitorial system of criminal justice' which the Fifth Amendment outlaws." Id. (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678 (1964)).

In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the defendant testified at his murder trial that he killed the victim in self-defense. 447 U.S. at 233, 100 S.Ct. at 2126. The prosecution sought to impeach Jenkins' credibility by presenting evidence that, prior to his arrest, he failed to tell anyone that he killed in self-defense. Id. at 233-34, 100 S.Ct. at 2126-27. Jenkins claimed that proof of his pre-arrest failure to give this explanation violated his Fifth Amendment privilege against self-incrimination. Id. at 234, 100 S.Ct. at 2127.

In Jenkins, the Court examined whether the impeachment use of Jenkins' pre-arrest silence impermissibly burdened the exercise of his Fifth Amendment privilege. Id. at 237-38, 100 S.Ct. at 2128-29. The Court considered "whether [the government's action] impairs to an appreciable extent any of the policies behind the [privilege]," id. at 236, 100 S.Ct. at 2128, as well as "the legitimacy of the challenged governmental practice." Id. at 238, 100 S.Ct. at 2129.

The Jenkins Court recognized that impeachment use of silence may be valuable to the trial process while imposing very little burden upon the individual's right to remain silent. Id. The Court noted that impeachment enhances the reliability of...