U.S. v. Henderson

• Decision Date: 06 January 1978
• Docket Number: No. 76-4325,76-4325
• Citation: 565 F.2d 900
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Arthur HENDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 900

565 F.2d 900

UNITED STATES of America, Plaintiff-Appellee, v. John Arthur HENDERSON, Defendant-Appellant.

No. 76-4325.

United States Court of Appeals, Fifth Circuit.

Jan. 6, 1978.

Marvin Jones, Dallas, Tex. (court-appointed), for defendant-appellant.

Kenneth J. Mighell, U. S. Atty., Judith A. Shepherd, H. Jay Ethington, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, Circuit Judge, SKELTON, Senior Judge, ^* and HILL, Circuit Judge.

SKELTON, Senior Judge.

Appellant, John Arthur Henderson, was convicted on an indictment charging him with possession of a small amount of marijuana in violation of 21 U.S.C. § 844(a), and was sentenced to a term of one year's imprisonment to run consecutively to the sentence he was then serving. He contends on appeal that the trial court erred in failing to declare a mistrial when the district attorney in his closing argument to the jury commented on appellant's silence at the time he was searched and the marijuana was found in his pants pocket. The appellant argues that such comments by the district attorney violated appellant's right and privilege under the Fifth Amendment to the Constitution to remain silent, that such was plain error, and that by reason thereof he is entitled to a new trial. For the reasons hereinafter stated, we reverse and remand the case for a new trial.

The appellant was serving a three-year sentence at the Federal Correctional Institution at Seagoville, Texas, for interstate transportation of a stolen motor vehicle, when the incidents involved in this case occurred. He was an orderly and performed cleaning and janitorial services in an assigned area at that institution. On the occasion in question he cleaned the radiator and picked up trash in the second floor TV room in the performance of his cleaning duties, and, while thus engaged, found an envelope containing a green substance which he recognized as marijuana. He put the envelope in his right front pants pocket and finished cleaning the TV room. Ten or fifteen minutes later he was in the process of returning a dust pan and radiator brush to the first floor where they were customarily kept when prison guard Pinckley stopped him in the hallway and searched him in the presence of officer Garrett. The guard found an envelope containing a small amount of marijuana (.63 grams or approximately 1/50 of an ounce) in appellant's pants pocket, initialed it, and gave it to officer Garrett who delivered it to a prison supervisor. The search was witnessed by other inmates.

When the search occurred and the marijuana was found, neither officer Pinckley nor officer Garrett asked appellant any questions and appellant did not say anything but remained silent. The appellant was taken immediately to an interrogation room where he was locked up. A guard was stationed at the door. Later the same morning, F.B.I. agent Byron Gigler arrived to question the appellant.

After agent Gigler gave appellant the Miranda warning and explained his rights to him, appellant signed the waiver of rights form Gigler presented to him and agreed to make a statement. Gigler told appellant that there was a possible drug violation that involved him, but did not tell appellant that his involvement was considered illegal. Appellant talked freely and openly with Gigler and told him where he found the marijuana and the surrounding circumstances as outlined above. He gave Gigler the following information and explanation as to what happened when he was searched: The guard did not ask him any questions; he was not given time to explain where or how he got the marijuana; at the time of the search he had not decided what to do with it; he was afraid that if he turned the marijuana in to the prison officials they would not believe he found it while engaged in his cleaning work; that he was afraid that if he gave the marijuana to the prison guard at the time of the search other inmates would have seen him do it and they would have said he was a "snitch", which meant he had told on someone "that had been busted on contraband"; and that if the inmates thought he was a "snitch" his life would have been in danger while he was in the penitentiary.

The same information and explanations were given by the appellant when he testified and answered questions of his counsel at the trial; and the testimony of agent Gigler corroborated the evidence given by appellant.

During the closing argument of the district attorney he commented on appellant's silence at the time he was searched, without objection by appellant's attorney, as follows:

"Number four, he didn't offer any explanation at the time that he was searched. Remember me asking him those questions, 'Did you say anything, did you have any conversation of any kind?' ¹

Now, he doesn't have to if he doesn't want to, but he didn't say anything like, 'I was just ready to turn that over to you' or 'Let's go around the corner so my buddies won't see me with this marijuana.' None of that. Think of those things.

Use your common sense. You don't have to leave your common sense here."

Article V of the Constitution provides, in pertinent part:

"No person - - - shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law - - -."

The plain meaning of this provision of the Constitution, as applied to our case, is that the appellant had the constitutional right to remain silent at the time he was searched, and when he remained silent at that time he exercised such right by his silence. Since the Constitution conferred this right upon him, he was not required to give any reason for his silence at the time of the search. Furthermore, at that time no one asked him any questions nor gave him the Miranda warning, and, although he was in custody at that time, he had not been formally arrested for the possession of the marijuana.

This case is unique in that appellant's silence when searched is not a post-arrest silence, nor a silence occurring after receiving the Miranda warning, nor a silence that took place after questions were asked. However, the principles and rationale set forth in post-arrest cases involving district attorney questions and closing arguments relative to the silence of an accused at the time of, or immediately following his arrest, and before a Miranda warning is given, are applicable to the problem here.

It is elementary that the privilege against self-incrimination is a right guaranteed by the Constitution. In Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694, 715 (1966) the Supreme Court stated:

"The privilege (against self-incrimination) has come rightfully to be recognized in part as an individual's substantive right - - -." (Emphasis supplied).

Chief Judge Brown of our Court pointed out in his dissent in Sharp v. United States, 410 F.2d 969, 972 (5 Cir. 1969):

"The principles of the Fifth Amendment as enunciated in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, make it abundantly clear that an accused has an absolute right to remain silent. It is not an if-but-or sometimes partial privilege, it is a complete and absolute right. Here appellant Sharp exercised that right when he was questioned by the arresting officers. He declined to make any statement. The unequivocal exercise of that absolute right cannot now operate to his detriment. The Supreme Court made this clear in Miranda :

'In accord with this decision, it is not permissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.' 384 U.S. at 468 n. 37, 86 S.Ct. at 1625 n. 37, 16 L.Ed.2d at 720 n. 37.

They restated it in Schmerber v. California, 1966, 384 U.S. 757 n. 9, 86 S.Ct. 1826, 1833 n. 9, 16 L.Ed.2d 908, 916 n. 9.

'I think the prior decisions of this Court and the Supreme Court make clear that no detriment may flow from the exercise of a Constitutional right.' " (at p. 973).

To the same effect is the statement of Mr. Justice Black, joined by the Chief Justice and Mr. Justice Douglas and Mr. Justice Brennan, in a separate opinion in Grunewald v. United States, 353 U.S. 391, 425, 77 S.Ct. 963, 984, 1 L.Ed.2d 931, 955 (1957) as follows:

"I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them."

In Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), the Supreme Court held that when a defendant testifies at his trial he can be cross-examined and impeached within the appropriate rules like any other witness. The case involved the problem of whether the defendant at a second trial could be asked why he did not controvert the testimony of a prosecution witness at the first trial. The court held that the question was proper if relevant.

In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) the Supreme Court held that it was not proper to cross-examine the defendant as to why he had asserted the Fifth Amendment plea before the grand jury with reference to a question he later answered at the trial. The Court ruled that such cross-examination should have been excluded because its probative value on the defendant's credibility was so negligible as to be far out-weighed by its possible impermissible impact on the jury, and because his Fifth Amendment plea was consistent with his innocence and also with his later testimony at the trial.

In United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the court followed Grunewald, holding that the...