U.S. v. Cummiskey

• Decision Date: 29 November 1983
• Docket Number: Nos. 83-1280,83-1284,s. 83-1280
• Citation: 728 F.2d 200
• Parties: 15 Fed. R. Evid. Serv. 41 UNITED STATES of America v. Patrick CUMMISKEY, Appellant. UNITED STATES of America v. Michael CLARK, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 200

728 F.2d 200

15 Fed. R. Evid. Serv. 41

UNITED STATES of America v.Patrick CUMMISKEY, Appellant.

UNITED STATES of America v.Michael CLARK, Appellant.

Nos. 83-1280, 83-1284.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Nov. 29, 1983.

Decided Feb. 22, 1984.

Rehearing and Rehearing In Banc Denied March 20, 1984.

Arnold P. Minicozzi, Stephen Robert LaCheen & Alva, Philadelphia, Pa., for appellant Clark.

Robert J. O'Shea, Jr., Defender Ass'n of Philadelphia, Philadelphia, Pa., for appellant Cummiskey.

Edward S.G. Dennis, Jr., U.S. Atty., E.D. Pa., Philadelphia, Pa., William C. Bryson, Dept. of Justice, Washington, D.C., Ronald G. Cole, Sp. Atty., Dept. of Justice, Philadelphia, Pa., for appellee.

Before GIBBONS and SLOVITER, Circuit Judges and CALDWELL, District Judge^*.

OPINION OF THE COURT

GIBBONS, Circuit Judge:

Patrick Cummiskey and Michael Clark appeal from sentencing orders following their convictions for violations of the Victim and Witness Protection Act of 1982, 18 U.S.C. Sec. 1513(1982), and for conspiracy to violate the Act, 18 U.S.C. Sec. 371(1982).These appeals raise two principal issues for our consideration: whether the district court improperly admitted comments on the defendants' silence, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91(1976); and whether the indictment properly charged offenses under sections 1513and371.

I.

Cummiskey and Clark assert that remarks made by the prosecutor during trial and in summation to the jury constituted impermissible comments on the defendants' silence.At trial the government advanced the theory that Clark and Cummiskey threatened the life of Michael Cosmo in retaliation for Cosmo's testimony given at a criminal trial.Cosmo testified that after learning that Clark and Cummiskey "were going to get [him],"Clark App.at 37, he sped off in a truck.Both defendants followed in a car.At one time Clark and Cummiskey forced Cosmo's truck to a halt.Cummiskey threatened Cosmo's life; Clark brandished a weapon at him.Cosmo again sped off, exchanging gunfire with Cummiskey's pursuing car.Shortly thereafter, Cosmo testified, he spotted a Philadelphia patrol car and informed two police officers that "those two guys are after me."Id. at 41.The officers sped after Cummiskey and Clark and arrested them.

At no time during trial did the government or either defendant establish the time at which the defendants had been given the warning prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), that a person in custody has the right to remain silent.Clark did not testify at trial.Cummiskey testified that he and Clark were pursuing Cosmo because they were concerned for his welfare.According to Cummiskey, Cosmo was shooting at their pursuing car for no apparent reason.Both men were mystified, Cummiskey stated, that Cosmo should have been shooting at them.Clark App.at 202-04.On cross-examination, Cummiskey was asked whether he had told this same story to the arresting officers.The following colloquy ensued:

CUMMISKEY: I didn't say anything to the officers when we got arrested on the scene there; I didn't say a word.

Q: You weren't surprised at all ... that they arrested you [although Cosmo was shooting at you]?

A: Sure I was.

Q: But you didn't say a thing, did you.

COUNSEL FOR CUMMISKEY: Your Honor, I object.

THE COURT: Sustained.

No specific reference was made in this objection to the prosecutor's failure to establish the absence of Miranda warnings.The government rested its case without doing so.In context, however, the objection promptly sustained, could only have been on the basis that the use of silence at the time of arrest for impeachment purposes, following a Miranda warning, was impermissible.Thus the prosecutor was on notice that he could not impeach by reference to silence at the time of arrest until the time of the Miranda warnings was established.

During his summation to the jury, the prosecutor emphasized the implausibility of Cummiskey's account, stressing that Cummiskey did not tell a similar account to police after his arrest:

[Cummiskey] would have you believe that he and Michael Clark were being good samaritans on that night; ....And then Patrick Cummiskey does a very strange thing.He hears gunshots.He says that Michael Cosmo is firing at him, and they are following Michael Cosmo's truck to find out why Michael Cosmo got so upset when he saw Michael Clark and Patrick Cummiskey.And, the gunfire, according to Mr. Cummiskey, was being shot at them.Does Mr. Cummiskey seek refuge by turning away and stopping, or going in the opposite direction?Does he do what any normal person would do under these circumstances, perhaps go to the police?No....He would have you believe that he followed Michael Cosmo because he was concerned that Michael Cosmo misunderstood his reason for being there, ....

Now, put yourselves in that position.Lo and behold, not only did Michael Cosmo get the whole thing confused, but the Philadelphia police got confused too.They thought it was Patrick Cummiskey and Michael Clark who was doing the shooting.So ... they stopped them and they arrested them, and they told them, "You are being arrested because we have a complaint that you were shooting at a federal witness."...

Well now, ... put yourself in Patrick Cummiskey's shoes, ... [don't] you think he would have explained that to the police?[Don't] you think he would have said, "Wait a second, you've got the wrong guy here.My friend, Michael Clark, and I were good samaritans tonight.It was Michael Cosmo who was shooting at me"?

No, members of the jury ....Those two men were not surprised.They knew why they had been arrested....They didn't protest.They didn't say, "You've got the wrong person."

COUNSEL FOR CUMMISKEY: Objection.

THE COURT: Overruled.

Clark App.at 221-24.

At the conclusion of summation, Cummiskey moved for a mistrial on the basis of the prosecutor's references to the defendants' post-arrest silence.The court denied that motion.When the matter was raised in post-trial motions, the court ruled that the defendants bore the burden of showing that Miranda warnings had been given at the time of arrest, and that they did not carry that burden:

[C]learly this evidence should properly be admissible and I further rule that it is not barred absolutely as a matter of law because there was nothing in the record to show that Miranda warnings had been given and it would be the giving of Miranda warnings that would trigger the requirement not to comment on silence.

Cummiskey's argument is that it is the Government's burden to establish that Miranda warnings were not given.

I am saying that if the argument is being made by the Defendant it was the Defendant's obligation to bring out and to make the record clear that in fact Miranda warnings were given.That would have been simple enough by a simple question or two to the police who appeared here as witnesses.

Clark App.at 306.

Defendants press two arguments before us.First, both defendants urge that we should presume that Miranda warnings were given at the time Cummiskey and Clark were placed under arrest.In that event, the prosecutor's remarks during trial and summation would constitute comments on defendants' silence after Miranda warnings were given.SeeDoyle v. Ohio, 426 U.S. 610, 616-20, 96 S.Ct. 2240, 2243-45, 49 L.Ed.2d 91(1976).In the alternative, the defendants urge that the district court erred as a matter of law by placing the burden of showing that Miranda warnings had been given on the defendants.Accordingly, they ask that we remand for a factual finding on the time Miranda warnings were given.Neither of the defendants' arguments need be reached, however, if we conclude that any error was harmless as to both defendants beyond a reasonable doubt.SeeChapman v. California, 386 U.S. 18, 21-24, 87 S.Ct. 824, 826-828, 17 L.Ed.2d 705(1967).We turn first, therefore, to consider the impact of the prosecutor's remarks on Cummiskey's and Clark's defenses.

A.

Cummiskey testified at trial, offering as his sole defense the contention that he pursued Cosmo in order to discover why Cosmo was fleeing from him, and not to retaliate against him.In his principal line of rebuttal to this contention, the prosecutor argued that Cummiskey's story was incredible because he had not told this story to the police at the time of his arrest.Thus, the issue of whether Cummiskey had in fact related a similar story to police when he was arrested was crucial to the theory of the defense.The prosecutor emphasized Cummiskey's silence in this respect both during the trial and extensively during closing argument.In short, the government's references to Cummiskey's silence "attacked the heart of his case."United States v. Massey, 687 F.2d 1348, 1353-54(10th Cir.1982).On this record, we do not believe that any error as to Cummiskey would be harmless beyond a reasonable doubt.¹

Unlike Cummiskey, Clark did not testify at trial.Consequently, Clark did not advance the theory that he pursued Cosmo because he was concerned for Cosmo's welfare.Undoubtedly for this reason, the prosecutor, during closing argument, addressed his remarks to Cummiskey, not to Clark.For example, the prosecutor stated, "[P]ut yourself in Patrick Cummiskey's shoes, ... [don't] you think he would have explained that to the police? ..."The prosecutor's references embraced Clark only by virtue of passing references to "[t]hose two men" and "[t]hey didn't protest."Although any such affirmative use ² of Clark's silence was clearly improper, seeMalloy v. Hogan, 378 U.S. 1, 11-14, 84 S.Ct. 1489, 1495-1497, 12 L.Ed.2d 653(1964), we believe that the attenuated relationship of these remarks to Clark rendered them harmless beyond a reasonable doubt.

Because we have concluded that any improper comment on...