U.S. ex rel. Smith v. Franzen, 79-2107

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and FAIRCHILD; SWYGERT; FAIRCHILD
• Citation: 660 F.2d 237
• Parties: UNITED STATES of America ex rel. Melvin Lee SMITH, Petitioner-Appellee, v. Gayle M. FRANZEN, et al., Respondents-Appellants.
• Docket Number: No. 79-2107,79-2107
• Decision Date: 26 August 1981

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660 F.2d 237 UNITED STATES of America ex rel. Melvin Lee SMITH, Petitioner-Appellee,
v.
Gayle M. FRANZEN, et al., Respondents-Appellants. No. 79-2107. United States Court of Appeals,
Seventh Circuit. Aug. 26, 1981.

Carolyn B. Notkoff, Asst. Atty. Gen., Chicago, Ill., for petitioner-appellee.

Andrew Berman, Chicago, Ill., for respondents-appellants.

Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

SWYGERT, Senior Circuit Judge.

Petitioner Melvin Lee Smith was convicted of armed robbery in a jury trial in the Circuit Court of Kane County, Illinois. The Illinois Appellate Court affirmed, People v. Smith, 52 Ill.App.3d 583, 10 Ill.Dec. 303, 367 N.E.2d 756 (1977), the Illinois Supreme Court denied leave to appeal, and the United States Supreme Court denied certiorari, Smith v. Illinois, 436 U.S. 961, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978).

Petitioner then filed this petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. That court granted the writ, and this court affirmed, United States ex rel. Smith v. Rowe, 618 F.2d 1204 (7th Cir. 1980). The Supreme Court granted certiorari, Franzen v. Smith, --- U.S. ----, 101 S.Ct. 57, 66 L.Ed.2d 13 (1980), and remanded the case to this court for reconsideration in light of Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

Pursuant to our Circuit Rule 19, the parties have submitted additional briefs to the court on the issue that is before us on remand: whether the prosecutor's comments in closing argument about the failure of petitioner and his witness to come forward with his alibi prior to trial constituted constitutional error. We conclude that the prosecutor's attempt to impeach petitioner by his post-arrest silence amounted to a

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violation of the right to fundamental fairness guaranteed by the Due Process Clause. We therefore affirm the order of the district court granting the writ of habeas corpus. I

Petitioner was arrested for armed robbery on April 1, 1974; he was indicted in June, 1974, tried on September 30 and October 1, 1974, and convicted. At trial, both petitioner and his girlfriend, Betty Walls, testified that they were home together on the night of the robbery. On cross-examination, Walls testified that a police officer came to her home the evening before petitioner's trial, but she refused to talk to him; she also stated that petitioner was present. Petitioner testified that he told the police officer that he could interview Walls only in the presence of petitioner's attorney.

In his closing argument, the prosecutor stated:

The defense is alibi. Now, this is very interesting alibi. I want you all to think what you would do in a situation like this, what you would do, and if you feel that this alibi was handled the way you would handle it I will be surprised.

Okay. That when she finds out that he is arrested for this offense, the day she found out she claims it was Sunday, he says it was Monday, she's a little mixed up on her days, but when she found out she didn't turn to the police and say: 'For Godsake, he couldn't have done it, he was with me.' No, this alibi couldn't come out right then and there.

In fact, yesterday when we attempted to talk to her about an alibi she wouldn't talk to us, she wouldn't talk to the police officer. Melvin Smith, the same guy that wasn't at the hearing, that hid in the back, maybe, told her not to. If you had what this is supposed to be, an ironclad alibi, you were home with your spouse, or your friend, or your buddy, or girl friend or boy friend and you knew it, one week from the day that the thing happened, had happened on a late Monday, early Tuesday, and you knew on Monday or Sunday next that he was supposed to, wouldn't you run to the police and say: 'Hey, look, he was with me, he didn't do it.'

Which one of you would not? They didn't. They had no obligation to. By the way, they have no obligation to tell us anything, but wouldn't you, if you were innocent and if you had a loved one in trouble, run in and tell the police? You're right, you would. ¹

In his rebuttal to the defense attorney's closing argument, the prosecutor commented:

And even when the police were out there to ask her about it she wouldn't talk or he wouldn't let her talk about it. That's a curious thing. Why, why wouldn't anybody talk about the alibi until we get to Court?

Petitioner contends that the prosecutor's attempts to impeach defendant's alibi testimony by his post-arrest silence violated his Fifth Amendment right to remain silent and his due process rights.

II

As a preliminary matter, we must consider whether the prosecutor's comments referred to petitioner's silence or only to the silence of his alibi witness. ² The district court held, and this court agreed, that although the primary focus of the prosecutor's closing argument was on impeaching Walls's testimony, at times his language clearly referred to both petitioner's and Walls's failure to come forward with the alibi before trial. United States ex rel. Smith v. Rowe, 618 F.2d 1204, 1210 (7th Cir.

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1980) (district court's opinion reprinted in appendix to this court's opinion). Further, the district court found that the prosecutor's remarks would "naturally and necessarily" be taken by the jury as references to petitioner's silence. Id. at 1210-11.

Petitioner contends that Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), controls this case. In Doyle, petitioners at trial testified to an exculpatory version of the facts that they had not previously told to the police or prosecutor. The prosecutor then...