U.S. v. Williams

• Decision Date: 28 April 1977
• Docket Number: Nos. 76-1100,76-1337,s. 76-1100
• Parties: UNITED STATES of America v. Everett A. WILLIAMS, Appellant (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 65

556 F.2d 65

181 U.S.App.D.C. 188

UNITED STATES of America v. Everett A. WILLIAMS, Appellant (two cases).

Nos. 76-1100, 76-1337.

United States Court of Appeals, District of Columbia Circuit.

April 28, 1977.

Certiorari Denied June 13, 1977.

See 97 S.Ct. 2936.

Edward L. Schwartz, Boston, Mass., with whom Lewis A. Sassoon, Boston, Mass., was on brief, for United States of America for the Use and Benefit of Capitol Elec. Supply Co., Inc.

Joseph H. Killion, Boston, Mass., with whom MacPhee, Downey & Killion, Boston, Mass., was on brief, for C. J. Electrical Contractors, Inc., et al.

Jack R. Pirozzolo, Boston, Mass., with whom Willcox, Pirozzolo & McCarthy, Boston, Mass., was on brief, for Usen Associates, Inc. and Keene Corp., Inc.

John M. Reed, Boston, Mass., with whom Philip M. Cronin, Robert P. Baker, and Withington, Cross, Park & Groden, Boston, Mass., were on brief, for Travelers Indem. Co.

Before TAMM and LEVENTHAL, Circuit Judges, and FRANK A. KAUFMAN, ^* United States District Judge for the District of Maryland.

ORDER

PER CURIAM.

On consideration of appellant's petition for rehearing, it is

ORDERED by the Court that appellant's aforesaid petition is denied.

Dissenting opinion by FRANK A. KAUFMAN, District Judge.

DENIAL OF PETITION FOR REHEARING

PER CURIAM:

In this case the main issue is presented by the evidence of defendant's statement at the police station. The defendant testified that he did not know a bank robbery had occurred and that he tried to evade the plainclothesmen in the subsequent car chase not knowing they were policemen. In rebuttal, a detective testified that at the stationhouse defendant had put the situation quite differently, in an attempt to exculpate himself. Then, defendant had said that he had not tried to outrun the police and that no one had chased him anywhere.

On appeal the defense argues that his constitutional rights were impaired because the detective, after relating this impeaching testimony, volunteered: "He then stated that he wanted to talk to a lawyer before he answered any more questions, at which time I concluded my interview with him." (Tr. 165).

Counsel for appellant argues denial of constitutional rights under the doctrine of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which precludes comment on the failure of a defendant to testify or give a statement at the stationhouse. It is also clear that the fifth amendment precludes a prosecutor from eliciting the defendant's action in hiring an attorney, in view of the tendency of such testimony to serve as the base for an inference of guilt based on such an act. United States v. Liddy, 166 U.S.App.D.C. 95, 110-12, 509 F.2d 428, 443-5 (en banc, 1974).

In this case the testimony as to defendant's silence and desire of counsel was not elicited by the prosecutor. It was not pointed up in summation. It was blurted out by the witness. After a bench conference the judge instructed the jury to "disregard that statement by the detective to the effect that the defendant asked for a lawyer." (Tr. 167). Defense counsel sought no further instruction. His position was that he was entitled to a mistrial.

Our review leads us to the clear conclusion that the testimony that led to the conviction of this defendant, following the hung jury at the first trial, was the impeachment testimony at the second trial that solidly cut across his alibi. What was damaging was not any testimony of defendant's silence, but the testimony of what defendant said before he decided to say no more.

A prosecutor has no right to introduce evidence that defendant was silent. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Wycoff, 545 F.2d 679 (9th Cir. 1977). If the defendant makes an admissible statement, the recounting witness may conclude the account in a natural fashion by indicating that there is nothing more to say, because the defendant chose to stop. Otherwise, the jury, may erroneously infer that it was the police who cut the interview short, before the defendant had full opportunity to give his account. Of course, the prosecution may not draw attention to the exercise of the right to become silent after speaking some.

Testimony about the desire or request for a lawyer is impermissible. Such statements can be excised without making the narrative stilted, with the effect of avoiding prejudice to or unfair inference against either party. In this case the testimony about wanting to talk to a lawyer was blurted out without any elicitation by the prosecutor. While the prosecutor might be faulted for not anticipating this information and alerting the witness to the bar on its use, we do not find the exposure of the jury to that information to require reversal of the conviction. The dominant feature of the detective's rebuttal testimony, and its overriding impact, was its contradiction of defendant's alibi. These considerations, together with the strong evidence of guilt, the judge's cautionary instruction and the absence of prosecution emphasis on the exercise of constitutional rights, lead us to conclude that the error in the testimony as given, did not play a significant role in producing the verdict. The law must take account of improbabilities as well as probabilities, and the conviction can stand by reference to the doctrine of harmless error. The petition for rehearing is denied.

So ordered.

FRANK A. KAUFMAN, District Judge, dissenting:

After briefs in this appeal had been filed and oral arguments had been heard, an Order of this Court affirming the Judgment of the District Court was entered by the unanimous determination of this Court. Thereafter, a Petition for Rehearing with a Suggestion for Rehearing En Banc was filed by defendant. Originally, I concluded that that petition should be denied. Further consideration, however, convinces me that the petition for rehearing should be granted. As a Judge assigned specially to sit in this Court for a limited period of time, I of course express no view as to whether the rehearing should be en banc.

The defendant in this case was convicted under the federal bank robbery statute in a second jury trial after the jury in his first trial before a different District Judge was unable to agree upon a verdict and was discharged. The defendant was the driver of the car which transported three other men to and from the bank. While the three men were engaged in entering and holding up the bank, they were observed by plainclothes officers who happened to be in the area for reasons unconnected with this case. Those plainclothesmen radioed for assistance and, together with others who arrived on the scene, chased the three men and the driver of the get-away car through the streets of Washington, D. C. The defendant, during both trials, took the witness stand in his own defense and testified that he did not know that a robbery was planned or engaged in, and that while he knew the car he was driving was being pursued after he drove away from the bank, he did not know the men in the pursuing car were police officers because they were in plain clothes. In that connection, the defendant stressed that one of the men in the pursuing car was pointing a weapon at the car that the defendant was driving and that the defendant tried to drive away from the pursuing car because he was afraid that someone was out to harm him and the other occupants of his car. The defendant further insisted that, along with the three bank robbers, he ran from the car he was driving, after he was finally forced to stop and to abandon it, because of his fear of his pursuers. The defendant was caught within twenty-five or thirty yards of the car, placed under arrest, and taken to a police station. While the District Judge, during the first trial, expressed to counsel out of the jury's hearing his opinion that the case was almost an open-and-shut one (Tr. at 97-101), the first jury hung.

During the second trial, but not during the first trial, a police officer who had not witnessed the robbery and who had not engaged in the pursuit, but who did talk with the defendant after he was arrested at police headquarters following his apprehension, took the witness stand in rebuttal. (Apparently, the prosecutor did not learn of the police officer's conversation with the defendant at the police station until after the first trial (Tr. of second trial at 166-68).) ¹ That officer testified (Tr. of second trial at 164) that before he began speaking to the defendant, "I verbally advised the defendant of his rights to remain silent, that anything he said could and would be used against him in a court of law, and I advised him that he did have a right to a lawyer and if he could not afford a lawyer, one would be appointed for him."

At no time did that officer testify that he informed the defendant that he had a right to stop speaking at any time. That last-quoted language appears in the attached xerox of the card which FBI agents carry with them and use. The language of the card is also very similar to that used by other federal law enforcement agencies. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not itself specifically require that advice concerning the right to stop talking along with the other rights advice be given. However, Miranda does hold that such a right exists. 384 U.S. supra at 473-74, 86 S.Ct. 1602. It is to be noted, however, that in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), Mr. Justice Powell, 426 U.S. at 617, 96 S.Ct. at 2242, 49 L.Ed.2d at 97, and, in his dissent therein, Mr. Justice Stevens, 426 U.S. at 621 n.2, 96 S.Ct. at 2246, 49 L.Ed.2d at 99, in the course of reciting the required Miranda rights advice, refer only to what the police officer in the within case did state and do not advert to any additional advice about being...