U.S. v. Massey
| Decision Date | 27 August 1982 |
| Docket Number | No. 80-2321,80-2321 |
| Citation | 687 F.2d 1348 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Joe MASSEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James T. Branam of Dennis & Branam, Antlers, Okl., for defendant-appellant.
G. Steven Stidham, Asst. U. S. Atty., Muskogee, Okl. (James E. Edmondson, U. S. Atty., and Mark F. Green, Asst. U. S. Atty Before DOYLE, PECK, * and SEYMOUR, Circuit Judges.
Muskogee, Okl., with him on the brief), for plaintiff-appellee.
David Joe Massey was convicted after a jury trial of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. On appeal Massey cites as grounds for reversal: (1) impermissible comment by the Government on Massey's post-arrest silence; (2) insufficiency of the evidence; (3) the lower court's decision upholding the validity of two search warrants; and (4) several evidentiary rulings. For the reasons set forth below, we remand for further proceedings.
Massey, two other men, and three women made a roundtrip from Oklahoma to Missouri in mid-July, 1980. The purpose of the trip was to pick marijuana from an area in Missouri where some members of the group knew it was growing wild. One of the women, Mary Ann Harris, acted as an informant for state law enforcement agencies. She alerted them that the trip was to take place and maintained contact with the agents who followed the group to Missouri and kept it under surveillance.
The group traveled in two cars, one of which was driven by Massey. After two nights of picking, the group had accumulated six large burlap sacks of marijuana. The sacks were loaded into the car that Massey was not driving, and the group headed back toward Oklahoma, still under surveillance. The automobiles were stopped at a road block in Muskogee County, Oklahoma, and five of the group were arrested. Warrants to search the two automobiles were obtained, and the marijuana was discovered and seized.
Massey took the stand and testified that he had previously been a deputy sheriff for the county and that he was acting in an undercover capacity for the county undersheriff when he made the trip to Missouri. He stated that discussions concerning his undercover operation took place before the trip in the presence of third persons, and he presented testimony from two of those persons supporting his exculpatory story. Massey argues that reversible error occurred when the Government subsequently elicited evidence of Massey's post-arrest silence and commented upon it in an effort to impeach his defense.
The Government prosecutor cross-examined Massey at length about his post-arrest failure to tell the authorities that he had been working in an undercover capacity. The relevant portions of the cross-examination are as follows:
"Q. (Prosecutor) Okay. Have you talked to Jerry Harris (Oklahoma Narcotics Bureau agent) between the time you were arrested and the time we started trial? Have you seen Mr. Harris?
A. (Massey) I have seen Mr. Harris.
....
Q. Well, okay. Have you talked to him?
A. I have seen Mr. Harris, I can't recall whether I have talked to him or not.
Q. Have you seen me?
A. Yes, sir.
Q. Between the time you were arrested and today or yesterday?
A. Yes, sir.
Q. How many times?
A. Two or three, sir.
Q. Okay. You saw me at your initial appearance, didn't you?
A. Yes, sir.
Q. You saw the marshals, members of the marshal's office, too, didn't you?
A. Yes, sir.
Q. Did you see a United States Magistrate?
A. Yes, sir.
Q. Okay. Then we had a bond hearing, didn't we?
A. Yes.
Q. You saw me again. Saw the Magistrate that day, didn't you?
A. Yes, sir.
Q. Did you see Jerry Harris that day?
A. I believe so.
Q. That wasn't very long after the arrest, was it, about a week afterwards?
A. Approximately, I believe.
Q. Okay. Now, then, that was back in the latter part of July, wasn't it?
A. I guess it would have been.
....
Q. Did you see me or any members of my office at that time?
A. Yes, sir, you were at the arraignment, I believe.
Q. Did you see a judge?
A. I can't recall who all was at the arraignment.
Q. Well, there was somebody sitting up there at the front desk, wasn't there?
A. There sure was.
Q. Conducting the arraignment?
A. Yes, sir.
Q. Did you have an attorney with you at that time?
A. Yes, sir.
Q. Okay, that would have been back in September, wouldn't it?
A. I believe it was.
Q. And we started trial here in October, right-I mean November, November 3rd?
A. Yes, sir.
Q. So, you have had from July, the latter part of July to November 3rd to come forth with the story that you were actually acting in our behalf, is that correct?
....
Q. Did you bring it up that you were a member of the sheriff's office in Antlers and that you were working in an undercover capacity when you were arrested, before you talked to an attorney ...?
A. I had talked to one more attorney which I did not like and I turned the attorney down. I told him-
Q. No, no, no, I'm asking if between the time you knew the trip was happening and the time you were arrested and immediately after you were arrested, before you ever talked to an attorney, did you tell anybody you were acting in an undercover capacity?
....
Q. Calling your attention to the time between the time the trip was started and the time that you were arrested and immediately thereafter, before you talked to an attorney, did you ever tell anyone, any law enforcement officer that you were acting in an undercover capacity?
A. From the time I was arrested-repeat the question, Mr. Green, please.
Q. Okay. Did you tell any law enforcement officers when you were arrested that you were acting in an undercover capacity?
A. I'm trying to remember if I mentioned it to Mr. Larsh or not. I cannot remember, sir.
Q. You just don't know whether you did or not, is that correct?
A. That's correct."
Rec., Vol. III, at 259-70 (emphasis added).
Furthermore, in his closing argument the prosecutor encouraged the jury to conclude that Massey's exculpatory story was untrue because he had not volunteered it after his arrest. The relevant portion of the Government's closing argument is as follows:
The use of a defendant's post-arrest silence to impeach an exculpatory story told for the first time at trial violates the Fourteenth Amendment's mandate of due process if the silence follows the giving of Miranda warnings. 1 See Fletcher v. Weir, --- U.S. ----, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982); Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). Impeachment on the basis of a defendant's silence following warnings is Anderson v. Charles, 447 U.S. 404, 407-08, 100 S.Ct. 2180, 2181-82, 65 L.Ed.2d 222 (1980). Unfortunately, the record does not reveal at what point in time, if ever, Massey was given such warnings. While the appeal in this case was pending, the Supreme Court made clear that due process is not violated by cross-examination on post-arrest silence where a Miranda warning was not given. See Fletcher, --- U.S. at ---- - ----, 102 S.Ct. at 1311-12.
In sum, the receipt of Miranda warnings is determinative of the constitutional issue. Accordingly, we remand this case to the trial court for an evidentiary hearing to establish whether Massey was informed of his constitutional right to remain silent.
If Massey was properly given his Miranda warnings at the time of his arrest or prior to custodial interrogation, cross-examination and comment by the Government on his silence after the warnings clearly violates the principle set forth in Doyle. Because it is of constitutional dimension, such an error requires a new trial unless we are convinced that the error is harmless beyond a reasonable doubt after assessing the record as a whole. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); see also Williams v. Zadradnick, 632 F.2d 353 (4th Cir. 1980); Deats v. Rodriguez, 477 F.2d 1023 (10th Cir. 1973); United States v. Arnold, 425 F.2d 204 (10th Cir. 1970). Some factors relevant to determining whether the comment is harmless include:
Williams, 632 F.2d at 361-62 (footnotes omitted).
Although ample evidence showed that Massey had participated in the Missouri trip, this evidence was not inconsistent as a whole with Massey's exculpatory story, had the jury chosen to believe him. By using Massey's post-arrest silence to refute his defense, the Government attacked the heart
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