U.S. v. Harp, 74-1810
| Citation | 536 F.2d 601 |
| Decision Date | 04 August 1976 |
| Docket Number | No. 74-1810,74-1810 |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. George Evans HARP, Edwin R. Breaux, Jean Orsini, Willard Joseph Martin, Don Garriga Chapman and Elvin Edsel Haddock, Defendants-Appellants. |
Eric Welch, Atlanta, Ga. (Court appointed), for Harp.
Dennis M. Hall, Decatur, Ga. (Court appointed), for Breaux.
Fred Filsoof, Atlanta, Ga. (Court appointed), for Orsini.
Marvin Soskin, Atlanta, Ga. (Court appointed), for Martin.
Roman A. DeVille, Atlanta, Ga. (Court appointed), for Haddock.
Bruce L. Whitmer, Atlanta, Ga. (Court appointed), for Chapman.
John W. Stokes, U. S. Atty., Stanley M. Baum, J. Robert Cooper, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Georgia.
Before BROWN, Chief Judge, GODBOLD and CLARK, Circuit Judges.
The Supreme Court has remanded this criminal appeal with directions to reconsider our affirmances of the convictions of defendants Breaux and Harp for the crime of escape in light of the Court's intervening decision in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). 1 Notwithstanding what portent Hale may have held, the recent decision in Doyle v. Ohio, --- U.S. ----, 96 S.Ct. 2240, 48 L.Ed.2d ----, 44 U.S.L.W. 4902 (1976), mandates that we find that the prosecutor's comments on the post-arrest silence of Breaux and Harp constitute reversible error and we remand for a new trial.
The facts of this bizarre case are detailed in our prior opinion. 513 F.2d 786 (5th Cir. 1975). In brief, appellants are inmates at a federal penitentiary who, along with eight others, were discovered in an obvious escape attempt. A sharp-eyed prison official stopped a railroad car ostensibly loaded with mattresses as it was in the process of exiting the sally port in the prison wall. When he noted unusual scratches and markings on the bottom of the car, he ordered it back inside the wall and discovered the men concealed in an igloo-type hiding place within the railroad car's cargo of mattresses. In addition to the ten prisoners, a subsequent search of the boxcar turned up various tools, clothing, a flashlight and two authentic looking handguns made of wood. After the officials had obtained a name and number from each man, the suspected escapees were searched and placed in segregation. They were later advised of their Miranda rights and each man declined to make a statement on the matter.
At the consolidated trial for attempted escape (18 U.S.C. § 751(a)), two of those accused took the stand and presented a transparently frivolous duress defense, claiming that only their co-defendant Chapman had intended to escape. Their story was that although the escape cavern had been built big enough for ten men, Chapman constructed it alone and his plan had been unexpectedly interrupted when he came upon the others secretly drinking illegally brewed beer under the boxcar in the loading dock pit. Rather than jeopardize his scheme, Chapman kidnapped the other nine and forced his "victims" into the hideaway by threatening them with fake guns. Chapman also took the stand and corroborated the kidnapping explanation; this defense was that he was insane at the time. Neither Breaux nor Harp elected to testify; instead, their counsels in summation adopted their co-defendants' story as their defense.
To rebut this collective defense, the prosecutor highlighted in closing argument the fact that from the moment of their "deliverance" to the time of trial, no defendant had ever told prison officials or investigating officers that he was a "victim" rather than a perpetrator of the offense. 2 No objection to these remarks was registered by any of the defendants. However, under a plain error review these comments necessitate reversal.
The Court's position on the use of post-arrest silence has been made clear by its most recent pronouncement in Doyle v. Ohio, --- U.S. ----, 96 S.Ct. 2240, 48 L.Ed.2d ----, 44 U.S.L.W. 4904 (1976). Essentially adopting Justice White's concurring opinion in Hale, the Doyle Court held that it is...
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...v. Davis, [546 F.2d 583, 594 (5th Cir.), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977) ]; see United States v. Harp, 536 F.2d 601, 603 (5th Cir.1976).' State v. Zeko, 177 Conn. 545, 555, 418 A.2d (1979)...." State v. Silano, supra, 204 Conn. at 781-82, 529 A.2d 1283. A nu......
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...made, it has been held repeatedly that prosecutorial utilization of the defendant's silence is plain error. E. g., United States v. Harp, 536 F.2d 601, 602 (5th Cir. 1976); United States v. Arnold, 425 F.2d 204, 206 (10th Cir. 1970); United States v. Nolan, 416 F.2d 588, 594 (10th Cir.), Ce......
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