State of Tennessee v. Michael Flamini, Jr.

05/27/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 28, 2025 Session

STATE OF TENNESSEE v. MICHAEL FLAMINI, JR.

Appeal from the Criminal Court for Knox County

No. 120471 Steven W. Sword, Judge

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No. E2023-01292-CCA-R3-CD

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KYLE A. HIXSON, J., concurring in part and concurring in the result.

The lead opinion considers the Defendant to have preserved for appeal his

constitutional issue concerning the admission of the civil forfeiture order, although it

ultimately subjects the issue to a relevancy analysis. I respectfully disagree that the

constitutional claim on appeal was preserved in the trial court. The Defendant’s

non-contemporaneous reference to his right to remain silent arguably preserved a Fifth

Amendment self-incrimination claim. The problem for the Defendant, however, is that he

raises a Fourteenth Amendment due process claim on appeal that was never presented to

or ruled upon by the trial court. As such, the issue concerning the admission of the civil

forfeiture order is waived, and the Defendant is not otherwise entitled to relief. For this

reason, I concur only in the result of the lead opinion as to this issue. I fully join the lead

opinion as to the other issues raised by the Defendant.

“[A]n appellate court’s jurisdiction is ‘appellate only.’” State v. Bristol, 654 S.W.3d

917, 925 (Tenn. 2022) (quoting Tenn. Const. art. VI, § 2). “It extends to those issues that

‘ha[ve] been formulated and passed upon in some inferior tribunal.’” Id. (quoting Fine v.

Lawless, 205 S.W. 124, 124 (Tenn. 1918). Issue preservation principles ordinarily require

that the party should first assert a timely objection during the trial court proceedings

identifying a “specific ground of objection if the specific ground was not apparent from the

context.” See Tenn. R. Evid. 103(a)(1); Tenn. R. Crim. P. 51(b). “[A] party is bound by

the grounds asserted when making an objection. The party cannot assert a new or different

theory to support the objection in the motion for a new trial or in the appellate court.” State

v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994). Constitutional arguments

are not exempt from the preservation rules, and if not properly preserved, the issues are

deemed waived on appeal. See, e.g., State v. Howard, 504 S.W.3d 260, 277 (Tenn. 2016).

The main thrust of the Defendant’s argument below was that the State had engaged

in burden-shifting by presenting proof of the civil forfeiture order. It was not until the next

day of court that he mentioned, almost in passing, his right to remain silent. He also

mentioned, quite briefly, his right to remain silent at the hearing on the motion for new

trial. On appeal, the Defendant nominally argues the admission of the order violated his

right to remain silent, but the substance of his argument reveals a different claim altogether.

The Defendant now relies on the cases of Doyle v. Ohio, 426 U.S. 610 (1976), and

Wainwright v. Greenfield, 474 U.S. 284 (1986), to support his constitutional claim. Doyle

and Wainwright do not involve self-incrimination claims brought under the Fifth

Amendment but rather due process claims pursuant to the Fourteenth Amendment. This

distinction is important.1

On appeal, the Defendant argues that “[h]e had the right to remain silent on the day

of his arrest; [and] he also had the right to remain silent on all subsequent days, up to and

including the day of his trial.” This, of course, is true insofar as it goes. But the general

presence of this Fifth Amendment privilege does not necessarily mean that that a

defendant’s silence is always a forbidden topic at trial. See, e.g., Fletcher v. Weir, 455 U.S.

603, 607 (1982) (allowing cross-examination regarding a defendant’s silence post-arrest,

but pre-Miranda warnings, when the defendant testified at trial); Jenkins v. Anderson, 447

U.S. 231, 238-39 (1980) (allowing the same in the pre-arrest and pre-Miranda warnings

context); Raffel v. United States, 271 U.S. 494, 498 (1926) (providing that in the

defendant’s retrial, no Fifth Amendment violation occurred when the government

impeached the testifying defendant with his silence in the first trial). Additionally, this

case does not feature the usual trappings of a Fifth Amendment claim. The Defendant was

not “compelled . . . to be a witness against himself” or “to give evidence against himself[,]”

as the texts of the relevant constitutional provisions expressly prohibit. See U.S. Const.

amend. V; Tenn. Const. art. I, § 9. The prosecutor did not comment on his choice not to

testify at trial. See Griffin v. California, 380 U.S. 609, 614 (1965); State v. Jackson, 444

S.W.3d 554, 588-89 (Tenn. 2014). Nor does this case involve custodial police questioning

in “the inherent pressures of the interrogation atmosphere.” Miranda v. Arizona, 384 U.S.

436, 468 (1966).

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See, e.g., State v. McKinney, 669 S.W.3d 753, 765 (Tenn. 2023) (holding, in a confession case,

that the Fifth Amendment and Fourteenth Amendment issues involved “two separate inquiries[,]” and “[t]he

fact that the inquiries are distinct is especially evident when considering their histories”); see also Snethen

v. Nix, 736 F.2d 1241, 1244-45 (8th Cir. 1984) (holding that claims under the Fifth, Sixth, and Fourteenth

Amendments have “distinct legal bas[e]s” and that “none of these specific constitutional grounds were

presented” in state court so as to satisfy the exhaustion requirement in a habeas corpus case); Brown v.

Berghuis, 638 F. Supp. 2d 795, 814 (E.D. Mich. 2009) (stating, in a habeas corpus case involving the

admission at a criminal trial of a petitioner’s prior statement at a civil forfeiture proceeding, “[a] claim that

the admission of this statement violated his privilege against self-incrimination is separate and distinct from

a claim that the evidence was inadmissible under state evidence law or that its introduction denied him his

general due process right to a fair trial” (citation omitted)).

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Importantly, the Defendant’s reliance on Doyle and Wainwright demonstrates that

he is not raising a right-to-silence claim but rather a due process claim. The Supreme Court

in Doyle held “that the use for impeachment purposes of [a defendant’s] silence, at the time

of arrest and after receiving Miranda warnings, violated the Due Process Clause of the

Fourteenth Amendment.” 426 U.S. at 619 (footnote omitted). Similarly, and more

on-point to the instant case, the Wainwright Court, employing a due process analysis, held

that it was fundamentally unfair for the prosecutor to use the defendant’s post-Miranda

silence as proof of his sanity, where the “Miranda warnings contain an implied promise,

rooted in the Constitution, that ‘silence will carry no penalty.’” 474 U.S. at 295 (quoting

Doyle, 426 U.S. at 618). Thus, Doyle and Wainwright do not identify violations of the

right to remain silent. Rather, Doyle and Wainwright focus on the fundamental unfairness

of breaking the “implied promise” given to a defendant in the Miranda warnings by later

using the government-induced silence against the defendant at trial, or, as the Supreme

Court later put it, “the fundamental unfairness of implicitly assuring a suspect that his

silence will not be used against him and then using his silence to impeach an explanation

subsequently offered at trial.” South Dakota v. Neville, 459 U.S. 553, 565 (1983)

(describing the holding in Doyle).

The Wainwright Court was careful to draw the distinction between the related, but

separate and distinct constitutional claims: “Notably, the Court in Doyle did not rely on the

contention that Ohio had violated the defendants’ Fifth Amendment privilege against self-

incrimination by asking the jury to draw an inference of guilt from the exercise of their

constitutional right to remain silent.” Wainwright, 474 U.S. at 291 n.7. Also, in rejecting

Florida’s attempt to rely on the holding in Neville to justify its usage of the defendant’s

silence against him, the Wainwright Court noted, “To the extent that the Attorney General

seeks to rely on Neville’s Fifth Amendment holding, his argument is inapposite because

the Doyle analysis rests on the Due Process Clause, not the Fifth Amendment.” Id. at 293

n.10.

In short, the Defendant objected below on the basis of “burden-shifting” and, later

in the proceedings, his right to remain silent. On appeal, he raises a due process claim that

was never presented to or ruled upon by the trial court. The Defendant’s constitutional

claim challenging admission of this evidence is waived.

Whether we engage in plenary or plain error review, however, I cannot see how the

alleged error here would entitle the Defendant to relief. Under plenary review, I would

conclude that the alleged error was harmless beyond a reasonable doubt. See Chapman v.

California, 386 U.S. 18, 24 (1967). For the same reasons, I would conclude in a plain error

analysis that consideration of the error is not “necessary to do substantial justice.”

Adkisson, 899 S.W.2d at 642.

In the context of the entire trial, I agree with the trial court’s assessment of the

forfeiture proceedings evidence as not being a “significant issue.” The forfeiture order

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itself does not explicitly reference the Defendant’s silence, only that “[no petition] has been

filed by any person asserting a claim to, or proof of a security interest in” the seized money.

This portion of the order was not read to the jury, and the record does not indicate that the

order otherwise was published to the jury during the presentation of proof. The prosecutor

briefly referenced the order in closing argument but only to demonstrate the arresting

officer “followed up on the money[,]” which was the trial court’s stated reason for

admitting the order. As aptly noted by the trial court, this evidence could cut both ways.

While it supported the State’s contention that the officer conducted a thorough

investigation, it also supported the defense’s theory that the officer only brought felony

charges so he could seek forfeiture of the $884 in currency.

Ultimately, the forfeiture evidence was a small sideshow to the more pertinent

evidence in this case. The Defendant possessed 2.14 grams of fentanyl and 3.1 grams of

methamphetamine, amounts that were inconsistent with personal use. The drugs were

packaged in individual baggies, which is consistent with their being possessed for the

purpose of sale or delivery. While two pipes were found in the Defendant’s vehicle, police

also found two digital scales there and $884 in small bills in the Defendant’s pants pocket.

This evidence strongly points to the Defendant’s intent to sell or deliver the drugs in

question. Any error in admitting the forfeiture order was harmless beyond a reasonable

doubt. Alternatively, and for the same reasons, consideration of any error on this point is

not necessary to do substantial justice.

Accordingly, I concur in the result reached by the lead opinion as to the civil

forfeiture evidence.

s/ Kyle A. Hixson .

KYLE A. HIXSON, JUDGE

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