United States v. Anderson, 72-1848 and 72-2066.

• Decision Date: 21 May 1974
• Docket Number: No. 72-1848 and 72-2066.,72-1848 and 72-2066.
• Parties: UNITED STATES of America v. Flemming ANDERSON, Appellant. UNITED STATES of America v. William G. HALE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

162 US App. DC 305, 498 F.2d 1038 (1974)

UNITED STATES of America v. Flemming ANDERSON, Appellant.

UNITED STATES of America v. William G. HALE, Appellant.

Nos. 72-1848 and 72-2066.

United States Court of Appeals, District of Columbia Circuit.

Argued April 17, 1973.

Decided May 21, 1974.

Rehearing Denied August 1, 1974.

Louis J. Briskman, Pittsburgh, Pa.,^* with whom Sherman L. Cohn, Washington, D. C., Larry J. Ritchie, Washington, D. C., and Alan S. Gover, Houston, Tex.,^* (all appointed by this court) were on the brief, for appellants.

David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, WISDOM^**, United States Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.

Rehearing En Banc Denied August 1, 1974.

BAZELON, Chief Judge:

In a joint trial appellants were convicted by a jury of robbery. Anderson received a two to eight year sentence; imposition of Hale's sentence was suspended, and he was placed on probation for three years. Hale seeks reversal on the ground that the prosecutor impermissibly sought to elicit his reason for not asserting his alibi to the police when arrested. Anderson seeks reversal on the ground that he was prejudiced by several comments in Hale's closing argument. We reverse Hale's conviction, and affirm Anderson's.¹

I

The government's case rested largely on the testimony of Lonnie Arrington, the complaining witness. Arrington testified that on June 1, 1971, he was on his way to purchase a pair of shoes when he stopped to chat with Hale, whom he had seen in the neighborhood, but did not know by name. Hale then followed him into the shoe store. Upon leaving, Arrington was accosted and robbed by a group of men. He immediately reported the robbery to the police. At first he claimed that $65 had been stolen, but later, after checking with his wife, he changed the figure to $96. While waiting for the police to escort him through the neighborhood in search of his attackers, Arrington noticed two men, and shouted, "there go sic a guy that was in the robbery." When the police ran toward the two men, they fled. Upon their capture, Arrington identified Hale as one of the robbers. Several months later, Arrington picked out Anderson from a group of photos shown to him by the police, and then identified him at a lineup.

The arresting officer testified that Hale had $123 in his pocket and $35 in his wallet when arrested. He also claimed that Arrington had stated, before Hale had been arrested, "that he believed one of the robbers was a man by the name of Billy Hale." This testimony directly contradicted Arrington's earlier testimony to the effect that he did not "tell the police Hale's name, because I didn't know if it was him or not."²

Hale took the stand in his own defense and testified that he had encountered Arrington on the day in question. He asserted, however, that after separating from Arrington he was approached by three men who asked if Arrington had any money, and that he replied he "didn't know." Hale claimed that he then went to the Narcotics Treatment Center where he remained during the time of the alleged robbery.³ He left the Center with a friend who subsequently purchased narcotics. Shortly after the purchase, the two men were approached by the police, and Hale fled because he feared another drug conviction.⁴

Hale also testified that his estranged wife had received her welfare check on the day in question, and that she had given him about $150 so that he could purchase some money orders for her, as he had done in the past.⁵ His wife corroborated this testimony.

Anderson presented no evidence.

II—HALE'S CLAIM

Appellant Hale argues that the trial court committed reversible error in failing to grant his motion for a mistrial after the prosecutor, on cross-examination, elicited from Hale an admission that he had not explained to the police the presence of $158 found on his person at the time of arrest. We find that: (A) the prosecutor's question was constitutionally impermissible; and (B) the court's failure to declare a mistrial was prejudicial error.

The record indicates that after arrest appellant was taken to the police station and informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including his "right to remain silent."⁶ He was then searched and found in possession of $158. A police interrogator thereupon asked "where did you get the money?" Hale made no response.⁷

At trial, in an effort to impeach Hale's testimony that he was carrying a large sum of money because his wife had received her welfare check and had asked him to purchase some money orders for her, the prosecutor led Hale to admit that he had not offered that explanation to the police at the time of his arrest:

Prosecutor: Did you in any way indicate to the police where the money came from?

Hale: No, I didn\'t.

Prosecutor: Why not?

Hale: I didn\'t feel it was necessary at the time.⁸

In Miranda, after holding that a defendant had a right to be advised that he could remain silent in the face of police interrogation, the Supreme Court went on to note:

In accord with our decision today, it is impermissible 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 at his privilege in the face of accusation. 384 U.S. at 468 n. 37 (emphasis supplied).⁹

Relying on this dictum, several Circuits,¹⁰ including our own,¹¹ have held that cross-examination of the sort in question in this case was improper.¹²

Recently, however, one Circuit has held,¹³ and another has implied,¹⁴ that Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971), undercuts the portion of Miranda quoted above, and permits cross-examination regarding a defendant's refusal to offer an alibi or explanation to his police interrogators.

In Harris the Court held that a defendant could be impeached by "prior inconsistent utterances" made at the time of his arrest even when they were made before the defendant was adequately apprised of his rights. The Fifth Circuit extended the Harris rationale to approve "the right of the prosecution to show a defendant's prior inconsistent act of remaining silent . . ."¹⁵ The Tenth Circuit, on the other hand, has disagreed with the Fifth Circuit observing that:

silence at the time of arrest is not an inconsistent or contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right that all persons must enjoy without qualification.¹⁶

We agree with the Tenth Circuit.

The premise underlying Harris is that if a defendant voluntarily gives statements to the police that contradict his trial testimony those statements are admissible because they are obviously relevant for assessing credibility. When, however, a defendant is informed that he has a right to remain silent, and then exercises that right, there is nothing inconsistent if he subsequently offers exculpatory testimony at trial. Virtually the same issue was considered in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). There, petitioner refused to answer several questions put to him before the grand jury "on the ground that the answers would tend to incriminate him and that the Fifth Amendment therefore entitled him not to answer."¹⁷ At trial these same questions were answered "in a way consistent with innocence," and "the Government was then allowed for impeachment purposes . . . to bring out in cross-examination that petitioner had pleaded his privilege before the grand jury as to these very questions."¹⁸ The Court found that the exercise of the privilege was "wholly consistent with innocence," and therefore concluded, without dissent, that there was "no inconsistency" to support the cross-examination.¹⁹ The Court relied on three factors: (a) petitioner repeatedly maintained his innocence before the grand jury; (b) a grand jury inquiry, unlike a trial, is in the nature of a secret proceeding, and "innocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings . . .";²⁰ (c) "most important," at the time petitioner appeared before the grand jury he was "already considered a potential defendant" and therefore "it was quite natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself."²¹

These reasons have even greater validity in the present case: (a) while the record does not disclose whether Hale insisted upon his innocence at the time of arrest, it clearly reveals that he steadfastly maintained his innocence throughout the proceedings; (b) police interrogation may be viewed as more "secret" than a grand jury proceeding which is conducted on the record and in the presence of the prosecutor and grand jurors. Miranda's rules were aimed precisely at dangers presented by the secret nature of police interrogation;²² (c) Hale was more clearly a "potential defendant" then Grunewald since he had been identified by the victim as one of the robbers, and had been arrested by the police on suspicion of the instant offense.

In sum, application of the principles enunciated in Grunewald compels a finding that, as a matter of law,²³ there was nothing inconsistent between Hale's silence in interrogation and his alibi at trial. Thus, the basic premise required for triggering the Harris rationale is absent.²⁴

Even if it could be said that appellant's silence at the police station was inconsistent with his testimony at trial Harris would nevertheless be inapplicable in the present circumstances. In Harris the accused did not exercice his constitutional right to...