U.S. ex rel. Smith v. Rowe

• Decision Date: 21 March 1980
• Docket Number: No. 79-2107,79-2107
• Parties: UNITED STATES of America ex rel. Melvin Lee SMITH, Petitioner-Appellee, v. Charles J. ROWE and William Klusak, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1204

618 F.2d 1204

UNITED STATES of America ex rel. Melvin Lee SMITH, Petitioner-Appellee, v. Charles J. ROWE and William Klusak, Respondents-Appellants.

No. 79-2107.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 13, 1980.

Decided March 21, 1980.

Carolyn B. Notkoff, Asst. Atty. Gen., Chicago, Ill., for respondents-appellants.

Ralph Ruebner, Deputy Appellate Defender of Office State Appellate Defender, Andrew Berman and Michael Mulder (of counsel), Chicago, Ill., for petitioner-appellee.

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

PER CURIAM.

The primary issue is whether a prosecutor's comments about a defendant's failure to inform law enforcement authorities of his alibi defense violated his constitutional privilege against self-incrimination and his right to due process. Additional issues are: (1) whether the trial court was correct in finding that the prosecutor's summation to the jury referred to the defendant's pretrial failure to bring forth his alibi defense and (2) whether the harmless error doctrine neutralizes the constitutional impairment if it existed.

Petitioner-appellee Melvin Lee Smith requested the district court, under 28 U.S.C. § 2254, to issue a writ of habeas corpus, alleging that his state court conviction for robbery was void on constitutional grounds. The district court vacated the judgment of conviction, but it withheld the issuance of the writ for a period of 120 days so as to afford the State of Illinois an opportunity to initiate a new trial proceeding. This appeal by the respondents, Charles J. Rowe, Director, Illinois Department of Corrections Petitioner was indicted in June 1974 by a Kane County grand jury for the armed robbery on March 26, 1974 of Claudia Watson, the night auditor of the Hilton Hotel in Aurora, Illinois. He was found guilty by a jury and was sentenced to a term of four years imprisonment. At the trial, defense witness Betty Walls, who was living with petitioner at the time of the robbery, testified that she and the petitioner were home that evening playing cards. During cross-examination the witness testified that a police officer came to her residence the evening before petitioner's trial on September 30, 1974, but she refused to talk to the officer. The petitioner was also present, according to her testimony. Petitioner, testifying in his own behalf, stated that he and Walls were home on the night of the robbery. He also testified that when the police officer came to interview Walls on the eve of the trial, he told the officer that he could talk to Walls only in the presence of petitioner's lawyer.

and William Klusak, Sheriff, Kane County, Illinois, followed. ^*

During the State's closing and rebuttal arguments, the prosecutor made comments which are the basis of the instant habeas petition (see n. 1 of the district court's memorandum opinion which is appended).

Judge Will wrote a thorough opinion explicating his determinations. After considering the respective contentions of the parties, we are satisfied with the judge's reasoning and the result he reached. We therefore adopt his opinion as our own (see Appendix) with these additional comments.

Although Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), concerned a situation different from that presented here, it has an important bearing on the primary question before us. In Doyle the prosecution sought to impeach the defendant's testimony by questioning the defendant about his failure to reveal exculpatory conduct on his part to narcotics agents at the time of his arrest and after receiving Miranda warnings. Here there were no Miranda warnings given to petitioner when the police attempted to interview Walls on the eve of the trial. At that time, both she and the petitioner remained silent except for the latter's statement that Walls would afford an interview if petitioner's lawyer was present.

It seems clear that the Supreme Court in Doyle left open the very question presented in the instant case. Doyle, supra, 426 U.S. at 616 n. 6, 96 S.Ct. at 2244 n. 6. The State argues that given this posture, Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), should control and that the prosecutor's remarks do not constitute error. We are convinced, however, that Raffel is factually and legally distinguishable from the present case. In Raffel there were two trials; here there was only one trial. Defendant Raffel made his decision to remain silent in a trial setting. In his second trial, he denied making the exact statement offered at the first trial. Here Melvin Lee Smith exercised his constitutional right to remain silent prior to his one and only trial. Moreover, we believe absent an alibi statute that passes constitutional muster, Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), there was no obligation on Smith or Walls to inform the police or the prosecution of the alibi. In such circumstances, it was impermissible for the prosecutor to argue that their pretrial silence discredited their story told on the witness stand. Due process proscribes such prosecutorial conduct.

What we have just stated serves as a predicate for the constitutional error asserted In respect to the other issues, we are convinced that Judge Will was correct in his determinations.

by petitioner: the comments of the prosecutor on the failure of the petitioner to furnish his alibi defense to the police at any time before his trial. We see no legal distinction between the comments by the prosecutor to the jury and any attempt he might have undertaken to impeach petitioner or Walls on cross-examination. Cf. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Doyle v. Ohio, supra, 426 U.S. at 633-36, 96 S.Ct. 2240, 2251-53, 49 L.Ed.2d 91 (1975) (Stevens, J., dissenting ).

The order granting the writ is affirmed.

MEMORANDUM OPINION

WILL, District Judge.

Petitioner Melvin Lee Smith brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that the state court prosecutor committed constitutional error in his closing argument to the jury and that such error was not harmless beyond a reasonable doubt. Specifically, petitioner contends that the prosecutor commented upon petitioner's failure to come forward prior to trial with the alibi to which petitioner testified at trial, and that such comment constituted impermissible impeachment by use of post-arrest silence in contravention of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

This case comes before the Court on respondent's motion to dismiss and petitioner's motion for summary judgment. While this is a close case insofar as the existence of constitutional error is concerned, for the reasons hereinafter stated we grant petitioner's motion for summary judgment and grant the writ.

BACKGROUND

Petitioner was tried in the Circuit Court of Kane County on September 30 and October 1, 1974 on the charge of having committed an armed robbery at the Hilton Inn in North Aurora, Illinois on March 26, 1974. At trial, petitioner advanced an alibi defense and both he and his girl friend, Ms. Betty Walls, testified that they had been home together on the night of the robbery. After the close of the evidence, the prosecutor made the following statements in his initial closing argument:

The defense is alibi. Now, this is a 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.

In fact, yesterday when we attempted to talk to her (Ms. Walls) 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 Trial Transcript (T.Tr.), at 248-250. Following defense counsel's closing argument, the prosecutor made the following comments in his rebuttal argument with respect to the alibi defense:

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.

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?

T.Tr., at 264. The jury found petitioner guilty of armed robbery.

Subsequent to petitioner's conviction, petitioner retained different counsel for the purpose of filing post-trial motions. Post-trial motions were heard by the trial judge on January 30, 1975. During the hearing, petitioner's new counsel raised for the first time his objection to the prosecutor's closing arguments insofar as the comments upon petitioner's prior silence were concerned. Hearing Transcript (H.Tr.), at 18-26, 66-68, 71-72. The trial judge concluded, however, that the prosecutor's closing argument had not violated the petitioner's right to remain silent. H.Tr., at 86-87. Petitioner was sentenced to four years and one day imprisonment.

Petitioner appealed his conviction to the Appellate Court of Illinois, Second Judicial District. People v. Smith, 52 Ill.App.3d 583, 10 Ill.Dec. 303, 367 N.E.2d 756 (2d Dist. 1977). One of the issues raised on appeal was whether petitioner's constitutional privilege against self-incrimination had...