Wallen v. Com.
| Decision Date | 21 September 1983 |
| Parties | Otis Lee WALLEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack Emory Farley, Public Advocate, Linda K. West, Asst. Public Advocate, Frankfort, for appellant.
Steven L. Beshear, Atty. Gen., Suzanne Guss, Asst. Atty. Gen., Frankfort, for appellee.
On February 20, 1981, near Prestonsburg in Floyd County, Kentucky, Otis Lee Wallen shot and killed Paul Mullins with a shotgun. The shooting occurred shortly after Wallen had been informed by his family that Mullins had raped Wallen's daughter.
According to Wallen, he went looking for Mullins to ask him his version of "what had happened." Wallen stopped his vehicle at the bottom of the driveway leading to a trailer where Mullins was located. Mullins left the trailer and started down the driveway. He was shot while still some twelve to sixteen feet away.
Appellant claimed self-defense. He testified that the victim was approaching with a knife in his hand. But the Commonwealth's evidence showed that the only thing in the victim's hand was a beer can. No knife was found at the scene.
The jury convicted the appellant of murder and he has been sentenced to thirty (30) years imprisonment.
On appeal there are three assignments of error:
1) The prosecutor was permitted to introduce testimony about appellant's post-arrest silence.
2) The murder instruction included alternative mental states, intentional murder and wanton conduct.
3) In closing argument, the prosecutor's comments suggested conviction as a deterrence to crime and a message to the community.
None of the assignments of error are born out by the record in this case. We affirm.
The comment regarding the appellant's post-arrest silence was made by a police officer during the course of an extended narrative describing his investigation. It was not in response to a direct question by the prosecutor regarding the subject, nor did the prosecutor or any witness ever mention the subject again. The extent of the comment was as follows:
"I inquired of Mr. Wallen if he had been advised of his Constitutional Rights and he stated he had, and he did understand them, and at that time he did not want to make a statement."
Appellant's objection is grounded in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Doyle holds that "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial...." 426 U.S. at 618, 96 S.Ct. at 2245.
But Doyle and subsequent cases make it clear that not every isolated instance referring to post-arrest silence will be reversible error. It is only reversible error where post-arrest silence is deliberately used to impeach an explanation subsequently offered at trial or where there is a similar reason to believe the defendant has been prejudiced by reference to the exercise of his constitutional right. The usual situation where reversal occurs is where the prosecutor has repeated and emphasized post-arrest silence as a prosecutorial tool. These circumstances do not exist in this case. Here the prosecutor did not focus upon appellant's silence and the comments were not linked to appellant's story. The alleged Doyle infraction is harmless. United States v. Davis, 546 F.2d 583 (5th Cir.1977).
The murder instruction covered alternative mental states, intentional murder and wanton conduct. The instruction was not error in the circumstances of this case. Appellant claims on appeal that the evidence supports only intentional murder. By contrast, at the trial the appellant objected to the giving of an instruction on intentional murder, but did not object to the giving of an instruction on wanton murder. In Eversole v. Commonwealth, Ky., 550 S.W.2d 513 (1977) we held that this Court will not review alleged error in instructions on alternative mental states to murder...
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...reversal occurs is where the prosecutor has repeated and emphasized post-arrest silence as a prosecutorial tool. Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky.1983). In context, the closing argument statement comments Hunt objects to are as and in spite of all this overwhelming evidence, ......
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...Constitution and his right to due process of law as guaranteed by the United States Constitution. We disagree."); Wallen v. Commonwealth , 657 S.W.2d 232, 234 (Ky. 1983) ("The murder instruction covered alternative mental states, intentional murder and wanton conduct. The instruction was no......
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Hunt v. Commonwealth, No. 2006-SC-000634-MR (Ky. 11/25/2009)
...reversal occurs is where the prosecutor has repeated and emphasized post-arrest silence as a prosecutorial tool. Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky. 1983). In context, the closing argument statement comments Hunt objects to are as and in spite of all this overwhelming evidence,......