Weir v. Fletcher, No. 80-3093

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before ENGEL and KEITH, Circuit Judges, and LAMBROS; KEITH; LAMBROS; ENGEL
• Citation: 658 F.2d 1126
• Parties: Eric WEIR, Petitioner-Appellee, v. Lloyd FLETCHER, Superintendent, Bell County Forestry Camp, Respondent-Appellant.
• Docket Number: No. 80-3093
• Decision Date: 09 September 1981

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658 F.2d 1126 Eric WEIR, Petitioner-Appellee,
v.
Lloyd FLETCHER, Superintendent, Bell County Forestry Camp,
Respondent-Appellant. No. 80-3093. United States Court of Appeals,
Sixth Circuit. Argued Aug. 14, 1980.
Decided Sept. 9, 1981.

Stephen L. Beshear, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellant.

Donna Boyce Proctor, Asst. Public Advocate, Frankfort, Ky., for petitioner-appellee.

Before ENGEL and KEITH, Circuit Judges, and LAMBROS, District Judge. ^*

KEITH, Circuit Judge.

The Commonwealth of Kentucky appeals from the district court's granting of a

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writ of habeas corpus. Petitioner Eric Weir took the stand in his own defense at his murder trial in state court. The prosecutor cross-examined him and made comments to the jury concerning Weir's silence after he was arrested but before he was given Miranda warnings. The district court concluded that the state had violated Weir's Fifth Amendment Rights, as outlined in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Accordingly, the district court granted Weir's petition for a writ of habeas corpus. We agree, and affirm Judge Johnstone's decision. ¹ FACTS

Petitioner Eric Weir was convicted in Kentucky state court of first degree manslaughter in the stabbing death of Ronnie Buchanan. The stabbing occurred during a fight in the parking lot of a night club in McCracken County, Kentucky.

While the evidence is not clear as to the cause of the fight, all witnesses agreed that during the course of the fight Buchanan pinned Weir to the ground. ² Suddenly Buchanan jumped to his feet shouting that he had been stabbed. Weir immediately left the scene with his wife, returned momentarily to pick up a friend, and thereafter drove to the home of some friends. He never reported the incident to the police. Subsequently, Weir was apprehended, indicted and brought to trial.

Weir was charged with intentional murder in violation of Kentucky Revised Statute KRS 507.020(1)(a). At trial, he took the stand in his own defense. His testimony on direct examination detailed events inside the bar which led up to the fight and described the circumstances surrounding the stabbing. ³ Weir freely admitted stabbing Buchanan, but claimed that he acted in self-defense and that the stabbing was accidental.

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This was the first time he had offered an exculpatory story for his actions.

The prosecutor vigorously cross-examined Weir. He inquired into Weir's assertion that he had been seriously injured. Weir admitted that his injuries had not required medical attention. The prosecutor then turned to the issue of the knife, asking Weir how he happened to stab Buchanan and how the knife happened to disappear after the stabbing. ⁴ The prosecutor also questioned Weir about his failure to report

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the incident to the police and disclose his exculpatory story. ⁵ Weir was found guilty of first degree manslaughter and his conviction was affirmed on direct appeal.

Weir then petitioned for a writ of habeas corpus claiming that the prosecutor's effort to impeach his testimony, by inquiring into and commenting upon his failure to offer the exculpatory story to the police officers at the time of his arrest, violated his constitutional rights. Citing Doyle, supra, and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the district court granted the writ conditioned upon the right of the Commonwealth of Kentucky to retry Weir within 120 days. The Commonwealth has appealed.

I. Preliminary Discussion

We can divide the questions asked by the prosecutor into two basic areas: those concerning pre-arrest silence and flight by the petitioner and those concerning post-arrest silence. Most of the prosecutor's questions dealt with pre-arrest silence. The prosecutor emphasized that the defendant did not go to the police and was not apprehended for 17 hours after the stabbing. The prosecutor also grilled Weir as to what happened to the murder weapon the knife with which Weir stabbed the victim. ⁶

Thus far, there was no constitutional impropriety. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Supreme Court ruled that pre-arrest silence could be used to impeach a defendant who takes the stand. Under Jenkins, much of the prosecutor's examination of the defendant was proper.

The problem is that the prosecutor did not stop his questioning at petitioner's pre-arrest silence. The prosecutor went on to ask Weir why he had not disclosed the knife's location to the state police when they came to his house to arrest him. The prosecutor also asked Weir why he didn't try to give an exculpatory explanation to the state police when he was arrested. ⁷

It does not appear from the record that at the time the state police went to Weir's house and arrested him, that they immediately read Miranda warnings to him. Thus, this case presents the threshold question whether post-arrest silence can be used to impeach a defendant, even though Miranda warnings were not given to him. For reasons discussed below, we conclude that a defendant cannot be so impeached. ⁸

II. Impeachment on the Basis of Post-Arrest Silence

The underlying rationale for limiting impeachment because of silence is simply that "(i)n most circumstances silence is so ambiguous that it is of little probative force." United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975). In addition,

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evidence at the time of arrest ... also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest." Id. at 180, 95 S.Ct. 2138 (citation omitted).

Hale, of course, was decided under the Supreme Court's supervisory authority over federal proceedings. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) the Court extended the rationale of United States v. Hale to state cases. However, in Doyle, the Court was dealing with a constitutional question and its holding was limited:

We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

Doyle, supra, 426 U.S. at 619, 96 S.Ct. at 2245.

A key premise underlying Doyle was the unfairness of giving Miranda warnings to a defendant which include a statement that the defendant has the right to remain silent and then impeaching the defendant at trial with that silence. As the Court noted, "(s)ilence in the wake of (Miranda ) warnings may be nothing more than the arrestee's exercise of these Miranda rights." Id. at 617, 96 S.Ct. at 2244.

In a similar vein, in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court held that pre-arrest silence was a proper subject for cross-examination of a suspect at trial. The Court concluded that inquiry into pre-arrest silence was not unfair because "no governmental action induced petitioner to remain silent before arrest." Jenkins, supra, 100 S.Ct. at 2130.

There is thus a superficial logic to the position that only when a government officer actually reads Miranda warnings to a defendant is it unfair to impeach the defendant with his post-arrest silence. Nonetheless, we conclude that impeachment of a defendant with post-arrest silence is forbidden by the Constitution, regardless of whether Miranda warnings are given. Doyle and Jenkins were decided on a rationale of basic fairness. We think that it is inherently unfair to allow cross-examination concerning post-arrest silence.

First, we believe that post-arrest silence is not probative. In Jenkins, the Supreme Court thought that in many circumstances pre-arrest silence was probative:

Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A Wigmore, Evidence § 1042, at 1056 (Chadbourne rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. Id. at 2129.

In the Jenkins case itself, the defendant did not come forward with his claim of self-defense until trial. The state courts could conclude that his failure to come forward earlier was a proper ground for cross-examination.

We think that Jenkins should be limited to instances of pre-arrest silence. Whatever probative value silence has in a pre-arrest context, it has none in a post-arrest situation. An arrest initiates a formal series of proceedings against a defendant. The defendant stands accused of a crime. Under these circumstances, fear and anxiety will lead a defendant whether innocent or guilty to silence. As Justice Marshall stated in United States v. Hale, supra :

At the time of arrest and during custodial interrogation, innocent and guilty alike perhaps particularly the innocent may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing

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circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. See Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 676 (1966). He may have maintained a silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention.

These considerations have little force in a pre-arrest situation, before one stands accused. Arrest changes things. The fact that one has...