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COURT OF APPEALS OF VIRGINIA






Present:  Judge Bray, Senior Judges Cole and Overton

Argued at Richmond, Virginia





MONTE PULLEY

                       OPINION BY

v.      Record No. 1689-98-2    JUDGE RICHARD S. BRAY

                                                                  FEBRUARY 22, 2000

COMMONWEALTH OF VIRGINIA





FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY

James A. Luke, Judge



               David B. Hargett (Joseph D. Morrissey;

Morrissey & Hershner, PLC, on brief), for

appellant.



               Virginia B. Theisen, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.







       Monte Pulley (defendant) was convicted by a jury of

manslaughter.  On appeal, he complains that the trial court

erroneously (1) denied a mistrial after a Commonwealth witness

referenced defendant's post-Miranda invocation of his right to

counsel, and (2) refused to permit impeachment of a Commonwealth

witness.  We disagree and affirm the conviction.

I.

       During trial of defendant before a jury on indictments

alleging first-degree murder and use of a firearm in the

commission of such offense, the Commonwealth, on direct

examination, inquired of Police Investigator Mike Thompson:

[COMMONWEALTH]:  And did you have occasion

to see [defendant] that night?

[THOMPSON]:  Yes, ma'am.  The first time I

saw him was in Sheriff Woodley's patrol

vehicle going by me.  When I saw him in

person face-to-face and spoke to him was at

Brunswick County jail.

[COMMONWEALTH]:  All right.  And when you

saw [defendant] did he complain of any marks

or any injury?

[THOMPSON]:  After I advised him of his

Miranda rights and he invoked his right to

counsel, he requested that Deputy Washburn

take pictures of his injuries.

       Defense counsel immediately moved the court for a mistrial,

arguing that mentioning "defendant [had] invoked his right to an

attorney" was "automatic grounds for a mistrial."  In denying

the motion, the trial judge commented, "What [Thompson] said was

a prelude to the question about any injury.  The Court finds the

statement to be harmless and not prejudicial to the rights."  

Defendant subsequently declined the court's offer to "admonish

the jury," and no further comment was made on defendant's

silence or assertion of his right to counsel.

II.

       In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court of

the United States concluded that:

[t]he warnings mandated by [Miranda v.

Arizona, 384 U.S. 436, 467-73 (1966)], as a

prophylactic means of safeguarding Fifth

Amendment rights, require that a person

taken into custody be advised immediately

that he has the right to remain silent, that

anything he says may be used against him,

and that he has a right to retained or

appointed counsel before submitting to

interrogation . . . . [W]hile it is true

that the Miranda warnings contain no express

assurance that silence will carry no

penalty, such assurance is implicit to any

person who receives the warnings.

Id. at 618 (citation omitted).  Thus, the Court reasoned that

"it would be fundamentally unfair and a deprivation of due

process to allow [an] arrested person's silence to be used to

impeach an explanation subsequently offered at trial."  Id.

(emphasis added).

       Subsequently, in Wainwright v. Greenfield, 474 U.S. 284

(1986), the Court revisited Doyle and, again, condemned a

"breach[] [of] the implied assurance of the Miranda warnings

[as] an affront to Due Process[.]"  Id. at 292.  There, after

Greenfield entered a plea of "not guilty by reason of insanity,"

the prosecution was permitted to introduce evidence that he had

"exercised his right to remain silent and . . . expressed a

desire to consult counsel before answering any questions."  Id.

at 286-87.  Later, in closing argument and over the objection of

defense counsel, the prosecutor reminded the jury of

Greenfield's silence and "suggested that [his] repeated refusals

to answer questions without first consulting an attorney

demonstrated a degree of comprehension . . . inconsistent with

. . . insanity."  Id. at 287.

       In reversing the conviction, the Greenfield Court

emphasized, "[t]he point of . . . Doyle . . . is that it is

. . . unfair to promise an arrested person that his silence will

not be used against him and thereafter . . . using the silence

to impeach [him]" or otherwise "make use of the . . . exercise

of those rights in obtaining his conviction."  Id. at 292

(emphasis added).  Thus, "[w]hat is impermissible is the

evidentiary use of an individual's exercise of his

constitutional rights after the . . . assurance" of Miranda.  

Id. at 295.  The Court also noted that, "[w]ith respect to

post-Miranda warnings 'silence,' . . . silence does not mean

only muteness:  it includes the statement . . . of a desire to

remain silent until an attorney has been consulted."   Id. at 295

n.13.

       Within a year of deciding Greenfield, the Court was, once

more, confronted with a Doyle issue in Greer v. Miller, 483 U.S.

756 (1987), an appeal resulting from a prosecutorial inquiry of

a witness which "touched upon Miller's postarrest silence."  Id.

at 764.  Unlike in Doyle and Greenfield, however, the trial

court sustained Miller's prompt objection,  instructed the jury

to "'ignore the question,'" and the record reflected no "further

questioning or argument with respect to Miller's silence[.]"  

Id. at 759, 765.  In undertaking the necessary Doyle analysis,

the Court deemed it "significant that in each of the cases in

which [the] Court has applied Doyle, the trial court . . .

permitted specific inquiry or argument respecting the

defendant's post-Miranda silence."  Id. at 764.  Thus, because

"Miller's postarrest silence was not submitted to the jury as

evidence from which it was allowed to draw any permissible

inference," the Court determined that "no Doyle violation

occurred."  Id. at 764-65, 765.

Guided by the lesson of Greer that "it is the use of an

accused's silence against him at trial by way of specific

inquiry or impeachment that forms the basis for a violation of

[Doyle]," numerous federal circuits have decided that "Doyle

does not impose a prima facie bar against any mention whatsoever

of a defendant's right to request counsel [or remain silent],

but, instead, guards against the exploitation of that

constitutional right by the prosecutor."  Lindgren v. Lane, 925

F.2d 198, 201, 202 (7th Cir. 1991); see also Noland v. French,

134 F.3d 208, 216 (4th Cir. 1998); Jones v. Stotts, 59 F.3d 143,

146 (10th Cir. 1995); United States v. Stubbs, 944 F.2d 828,

834-35 (11th Cir. 1991).

The Lindgren Court was confronted with a record that

mirrored the instant appeal.  A police officer made mention of

Lindgren's request for counsel during direct examination by the

prosecutor, and the trial court denied defendant's resulting

motion for a mistrial.  In affirming, the Court reiterated that

a Doyle inquiry "center[s] . . . around the particular use to

which the post-arrest silence is being put[]" and, therefore,

requires consideration of the particular circumstances of each

case.  925 F.2d at 202.  Because "the inadvertent mention of

[Lindgren's] request for counsel was not argued to the jury nor

was it ever used to impeach [defendant]," his "request for

counsel was not used against [him]" and "due process rights were

not violated under . . . [Greenfield] and Doyle."  Id. at

202-03.

We are persuaded by the rationale of Lindgren, and,

similarly, conclude that defendant's right to due process was

not compromised by Investigator Thompson's mere mention that

defendant had once invoked his right to counsel.  The gratuitous

comment was not responsive to the question posed to Thompson by

the prosecution, and defendant's prompt mistrial motion avoided

any inquiry into the subject.  Defendant, thereafter, opted to

forego an instruction that the jury ignore the remark, and the

prosecutor made no related argument to the jury or otherwise

exploit the issue.  Thus, the words, though improperly spoken by

the witness, were not "used" against defendant in any respect

and were without evidentiary value.  Moreover, the trial court

promptly acted to scrupulously safeguard defendant's due process

rights.  Under such circumstances, the trial court correctly

found no Doyle violation.

Defendant's reliance upon Schrum v. Commonwealth, 219 Va.

204, 246 S.E.2d 893 (1978), for a contrary result is misplaced.  

There, during trial of Schrum before a jury for rape, the

prosecutor propounded a series of questions to the investigating

detective with respect to "an occasion to talk to the defendant

in regard to the matter."  Id. at 209, 246 S.E.2d at 897.  In

response, the detective testified that Schrum, then charged with

the offense, voluntarily reported to police headquarters,

accompanied by counsel.  Further inquiry by the Commonwealth

into the attendant "interview" prompted the detective to answer,

"As I said, he was with his attorney and his attorney advised

him not to make any statement at this time."  Defense counsel's

immediate objection and motion for a mistrial were overruled by

the court, and the prosecutor was permitted to pursue the

incident, concluding with the detective's acknowledgment that

Schrum was advised of "his rights," "execute[d] a rights waiver"

but provided "no statements."  Thereafter, the trial judge

continued the inquiry, remarking to the witness, "the man has a

right to follow his attorney's advice, or not answer, or the

attorney to tell you that he didn't want his client to make a

statement," adding, "That's not unusual, is it?," prompting the

response, "No sir, that's not unusual."  Id.

In reversing the conviction, the Court reaffirmed the view

that "the Fifth Amendment precludes the prosecution from using

an assertion of the privilege against self-incrimination to

discredit or convict the person who asserted it."  Id. at 211,

246 S.E.2d at 898 (emphasis added).  Citing Doyle as

dispositive, the Court concluded that the Commonwealth's use

against Schrum of his post-Miranda exercise of the rights to

silence and counsel offended due process.  See id. at 213, 246

S.E.2d at 899.

Thus, in sharp contrast to the instant record, the

prosecutor in Schrum was permitted, despite proper objection, to

develop evidence detailing Schrum's exercise of his right to

counsel and silence.  Moreover, the trial court involved itself

in the issue, further developing the related circumstances for

the jury, accentuating the constitutional implications and

providing insight into the "[]usual" result when an accused is

represented by counsel.  Manifestly, therefore, Schrum's

exercise of constitutional safeguards of Miranda was

intentionally used against him by the prosecutor and the

resulting prejudice was exacerbated by the trial court.

III.

Defendant next contends that the trial court erroneously

declined to allow a defense witness, Sharon Gross, to testify

that Commonwealth eyewitness Derrick Bradley was "high" on the

date of the offense.  Again, defendant's argument is without

merit.

Gross had seen Bradley on the day of the offense, sometime

after she "heard about it."  She initially testified that

Bradley was then "glassy-eyed and high," adding later that he

was "high" and "had gone to get a drink."  At Gross' first

reference to Bradley's condition, the Commonwealth objected,

prompting defendant's counsel to respond, before the court

ruled, "Judge, I'll move along."  However, the court sustained

the Commonwealth's objection to Gross' subsequent description of

Bradley, noting that, "however [he] was at the time [Gross] saw

him is not necessarily how he was at the time of the event."  

Again, counsel assured the court, "Very well, . . . I'll move

along," and abandoned the issue.

"The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."  

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988).  Here, circumstances which may have affected Bradley's

ability to observe and recall the offense were relevant, but the

defense failed to establish that Gross' evidence, relating to

Bradley's condition at an unspecified time after the crime, was

probative of that issue.  Moreover, her initial testimony,

describing Bradley as "glassy-eyed and high," was before the

jury for such consideration as it deemed appropriate.

Accordingly, the trial court correctly denied defendant's

motion for a mistrial and properly limited defendant's direct

examination of Ms. Gross, and we affirm the conviction.

                                                                               Affirmed.

 Defendant acknowledges on brief that "the request for an

attorney is . . . a request to remain silent."



 Miller's companion motion for a mistrial was denied by the

court.
















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