Robert Mitchell Pitts v. James v. Anderson, Superintendent, Mississippi State Penitentiary

DeMOSS, Circuit Judge, Specially

Concurring:

I agree with the majority that we should affirm the judgment of the district court which denied habeas relief. However, I agree for reasons which are different from those expressed by the majority.

In my view, this case is controlled by the Supreme Court’s decision in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993), both as to whether a Doyle 1 error occurred in Pitts’ trial, and as to whether the occurrence of such error justified reversal of the state conviction on collateral review by the federal courts under habeas corpus.

The circumstances involved in the instant case and in Brecht are strikingly similar. Both cases involve state prosecutions for murder in which the defendant took the stand at trial and testified as to circumstances which he claimed show that the shooting was accidental. In both cases, the defendant more or less admitted firing the fatal shots.' In both cases, there was significant testimony as to the defendants’ actions (after the shooting, but before arrest), which tended to contradict their respective claims of accident. In both eases, on cross-examination, the prosecutor asked the defendant whether he had told the arresting officer, or anyone else, anything about the accidental circumstances which he now claimed at trial. Additionally, in Pitts’ case, the prosecutor asked the arresting officer on direct examination whether Pitts had spoken about accidental circumstances.

In holding that Doyle error did occur in Brecht , the Supreme Court drew a distinction between proof of the defendant’s conduct and statements before the time he received his Miranda 2 warnings, and proof of the defendant’s conduct and statements after he received the Miranda warnings. The Supreme Court stated:

On the other hand, the State’s references to petitioner’s silence after that point in time [when the Miranda warnings were given] or more generally to petitioner’s failure to come forward with his version of events at any time before trial ... crossed the Doyle line. For it is conceivable that, once petitioner has been given his Miranda warning, he decided to stand on his right to remain silent because he believed his silence would not be used against him at trial.

Brecht, 507 U.S. at 628-29 , 113 S.Ct. at 1717 (internal reference omitted), In my view, Brecht is on point. As in Brecht , the prosecutor in our ease was clearly attempting to show (during both his direct questioning of the arresting officer and his cross-examination of Pitts) that, following Pitts’ arrest and his receipt of the Miranda warning, Pitts did not speak about the very accidental circumstances of which he chose to speak at trial. In my book, remaining silent and not speaking are one and the same thing.

To circumvent Doyle and Brecht , the majority would fashion a new rule premised upon an extension of the Supreme Court’s holding in Anderson v. Charles, 447 U.S. 404 , 100 S.Ct. 2180 , 65 L.Ed.2d 222 (1980) (holding that Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements). The majority’s new rule would extend the Charles holding to circumstances when the Court can conclude that a defendant’s trial statements are “arguably inconsistent” with his prior statements. For *284 the following reasons, I cannot concur in this new rule:

a. Neither in Charles, nor in any later decision, has the Supreme Court recognized the concept of “arguable inconsistency.”

b. Prior to this opinion, no ease in the Fifth Circuit has recognized the concept of “arguable inconsistency” as a basis for applying the Charles exception to Doyle.

c. The decision of the Fifth Circuit in United States v. Laury, 985 F.2d 1293 (5th Cir.1993), clearly holds that actual inconsistency between a post-arrest statement and a trial statement is essential before the prosecutor can cross-examine the defendant in regard thereto. Laury , 985 F.2d' at 1303 (“Therefore, nothing Laury told the FBI agents was inconsistent with his trial testimony that he was at a party on the date of the bank robbery. The prosecutor did not comment on what Laury told FBI agents, but on what he did not tell them.”)

d. All of the cases from other Circuits upon which the majority relies for its concept of “arguable inconsistency” were decided before the decision of the Fifth Circuit in Laury . Tellingly, Laury does not cite any of the cases upon which the majority now seeks to rely for its new rule.

e. The Supreme Court’s Brecht decision (April 1993) came after the Fifth Circuit’s Laury decision (March 1993), and after all of the Circuit Court decisions cited by the majority in support of its “arguable inconsistency” rule.

f. The defendant in Brecht testified at trial as to circumstances which he claimed showed that the shooting was an accident. Yet, in deciding the case, the Supreme Court did not cite, or refer to, any of the Circuit Court decisions which articulate the “arguably inconsistent” theory, upon which the majority now relies. Brecht’s testimony at trial was just as “arguably inconsistent” with his prior silence as was Pitts’ testimony at trial with his prior silence.

g.The concept of “arguable inconsistency” is fraught with ambiguity and borders upon being an oxymoron 3 . For Statement A to be inconsistent with Statement B, all or some portion of Statement A must contradict all or some portion of Statement B. If Statement B speaks to a fact or condition not mentioned in Statement A, these two statements are not inconsistent as to that fact. The holding in Charles talks of “prior inconsistent statements” not of “prior inconsistent silence.” The majority’s new rule would, in effect, convert Pitts’ silence into a statement.

Given Laury’s controlling precedent in this Circuit, and the total absence of any recognition of the concept of “arguable inconsistency” by the Supreme Court, I cannot concur with the majority opinion. I do not think it is the role of this panel to create a new rule that results in a determination that there was no Doyle error, particularly in a case which is before us on habeas corpus collateral review.

Obviously, if I am right and there was Doyle error in this ease, we must then address the holding for which Brecht is best known and determine whether or not Pitts sustained his burden of showing that the Doyle error committed by the prosecutor in his state trial “had substantial and injurious affect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637 , 113 S.Ct. at 1722 . Upon reviewing the record as a whole, I conclude that there is adequate admissible evidence upon which a reasonable jury could find that the shooting was not an accident, as is contended by Pitts.

First, and foremost, Pitts’ testimony that his rifle fired accidentally during a struggle with Pauline Smithinger (who grabbed his rifle and attempted to take it away from him) is directly contradicted by Smithinger’s testimony. Smithinger testified that, while she did grab the rifle, Pitts slung her away from it and the shots came after she had turned loose of the rifle. The jury was presented, therefore, with a credibility choice between the two versions.

*285 Furthermore, Pitts’ actions after the shooting and before his arrest (proof of which are clearly admissible under Brecht) could reasonably lead the jury to conclude that the shooting was not an accident. Pitts did not seek help, he did not summon the police (although he had a CB radio in his truck), and he did not wait at the scene. Instead, he went back to his camp and hid the rifle which had fired the shot, which caused the wound that caused the victim to bleed to death.

Consequently, I conclude that the Doyle error which did occur at Pitts’ trial “did not substantially influence the jury’s verdict” so as to entitle Pitts to relief. This is the same conclusion which the trial court reached in denying Pitts any habeas corpus relief, and I would affirm on this same basis.

. Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976).

. Miranda v. State of Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

. A figure of speech in which antithetical incongruous terms are combined. Webster's II New Riverside University Dictionary (1984).