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COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
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
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.
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.
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.
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
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
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.
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
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.
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
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