Petition — Franzen v. Smith

JUN 19 1980

f—RICHAET-RODIS JR, CLERA

IN THE |

Supreme Court of the United States

OCTOBER TERM, 1979

No 7O=ZOQSE

GAYLE M. FRANZEN and GEORGE B. KRAMER,

Petitioners,

MELVIN LEE SMITH,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

WILLIAM J. SCOTT

Attorney General

State of Illinois

MELBOURNE A. NOEL, JR.,

CAROLYN B. Notkorr,

Assistant Attorneys General

188 West Randolph Street

Chicago, Illinois 60601

(312) 793-2570

Counsel for Petitioners.

Printed by the Authority of the State of Illinois—6-80-50

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Reasons for granting the WYit...............ccccsesssscsecesessereeeeees

THE ISSUE RAISED BY THIS CASE WAS

LEFT UNANSWERED BY DOYLE V. OHIO

AND JENKINS V. ANDERSON; IT SHOULD

BE. RESOLVED TO PERMIT PROSE-

CUTORIAL CROSS-EXAMINATION AND

COMMENT ON A TESTIFYING DEFEN-

DANT’S FAILURE TO MENTION HIS ALIBI

Ne TPG sects citshibibeasiencctvcnnbhnhsinstinaiasisananieniieeeis

THE SEVENTH CIRCUIT COURT OF AP-

PEALS ERRED IN ADOPTING THE DIS-

TRICT COURT'S HOLDING THAT CER-

TAIN PROSECUTORIAL COMMENTS DUR-

ING CLOSING ARGUMENTS REFERRED

TO RESPONDENT'S PRE-TRIAL SILENCE...

THE SEVENTH CIRCUIT COURT OF AP-

PEALS ERRED IN ADOPTING THE DIS-

TRICT COURT'S HOLDING THAT CER-

TAIN PROSECUTORIAL COMMENTS DUR-

ING CLOSING ARGUMENT DID NOT

CONSTITUTE HARMLESS ERROR..................

IV.

THE DISTRICT COURT SHOULD HAVE AD-

DRESSED THE QUESTION OF RETRO-

ACTIVE APPLICATION OF DOYLE V. OHIO

AND SHOULD HAVE FOUND IT TO BE

APPLICABLE PROSPECTIVELY ONLY...........

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11

CITATIONS

Page

Bailey v. Holley, 530 F.2d 169 (7th Cir. 1976) ........ 13

Chapman v. California, 386 U.S. 18 (1967)............ 11

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)..... 10

Doyle v. Ohio, 426 U.S. 610 (1976)... eecccteeeeeee aa :

-|

Escobedo v. Illinois, 378 U.S. 478 (1964) ............... 13

Griffen v. California, 380 U.S. 609 (1965) .............. 14

Halliday v. United States, 394 U.S. 831 (1968)....... 14

Jenkins v. Anderson, Se Ee

MEY © BOD D vaiscescvenscvecsceessacccsensescecses 6,7

Johnson v. New Jersey, 384 U.S. 719 (1966) ........... 13

Linkletter v. Walker, 381 U.S. 718 (1965) .............. 13

Mapp v. Ohio, 367 U.S. 643 (1961)... eee eeeeeeeees 13,14

Miranda v. Arizona, 384 U.S. 436 (1966) ............... 7,13

People v. Smith, 52 Ill. App. 3d 358, 367 N.E.2d

6 ss a 8 TEE a 3,5,6,8

Raffel v. United States, 271 U.S. 494 (1926).......... 6,7

Smith v. Illinois, 436 U.S. 961 (1978) vce 3

Tehan v. United States, 382 U.S. 506 (1966).......... 14

United States v. Lyon, 397 F.2d 505 (7th Cir.),

cert. denied, 393 U.S. 846 (1968) .........ccccceeeeceeeees Y

United States v. Reicin, 497 F.2d 563 (7th Cir.),

cert. denied, 419 U.S. 996 (1974) wo... eeeeeeeeeeeeee 10,11

United States v. Wagner, 497 F.2d 249 (10th Cir.

Se ios a scknssseccnsacesetssencevsesoenece 10

Wardius v. Oregon, 412 U.S. 470 (1973 )............0000 7

Williams v. United States, 401 U.S. 646 (1971)...... 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

GAYLE M. FRANZEN and GEORGE B. KRAMER,

Petitioners,

MELVIN LEE SMITH,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners Gayle M. Franzen and George B. Kramer

respectfully pray that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals for

the Seventh Circuit, which affirmed the decision of the United

States District Court for the Northern District of Illinois,

Eastern Division, ordering the issuance of a writ of habeas

corpus in the proceeding.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto. The memorandum opinion of

the District Court is incorporated into the opinion of the Court

of Appeals.

JURISDICTION

The judgment of the Court of Appeals was entered on

March 21, 1980. A petition for rehearing was not filed. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether a prosecutor’s comments during closing argu-

ments, allegedly referring to respondent’s pre-trial silence about

his alibi defense, are constitutionally erroneous?

STATEMENT OF THE CASE

This case revolves around comments made by the prose-

cutor in his closing argument at respondent’s jury trial for

armed robbery. In his petition for a writ of habeas corpus,

respondent alleged that these comments impermissibly referred

to his pre-trial silence and thus violated his fifth and fourteenth

amendment rights.

In 1974, respondent was tried for armed robbery and

found guilty. On Jarmsagy 30, 1975 he was sentenced to four

years to four years and a day in prison. The Illinois Appellate

Court affirmed the conviction, People v. Smith, 52 Ill. App. 3d.

358, 367 N.E. 2d 756 (1977), and the Illinois Supreme Court

denied a petition for leave to appeal on January 26, 1978. The

United States Supreme Court denied certiorari on May 1, 1978,

Smith vy. Illinois, 436 U.S. 961 (1978). Respondent then

sought a writ of habeas corpus from the United States District

Court. The writ was granted on August 21, 1979 and the

Seventh Circuit Court of Appeals affirmed on March 21, 1980.

It is from the affirmance of the granting of the writ that

petitioners now seek certiorari.

At trial, the victim of the armed robbery, Claudia Jean

Watson, testified that she observed respondent removing mon-

ey from the cash register. (T. Tr. 179)1' She further testified

that when respondent pointed the gun at her, he was approxi-

mately two feet from her, and that she had the opportunity to

observe his face for two or three minutes. (T. Tr. 180-1)

Shortly thereafter, Ms. Watson had another opportunity to view

respondent for an additional forty-five to sixty seconds. (T. Tr.

183) She staied she was positive that respondent was the man2

who pointed the gun at her. (T. Tr. 181) Her determination of

respondent’s height, however, was inaccurate. (T. Tr. 176,

233).

eT. Fe. ) refers to the page of the trial transcript.

2 Two other men also participated in the armed robbery. (T. Tr.

173-5)

Pie

4

Respondent presented an alibi defense and he and his

girlfriend, Betty Walls, testified they were home together on the

night of the robbery. (T. Tr. 214, 233) On cross-examination,

Ms. Walls testified that she was uncertain as to which night

respondent was home with her and that she was uncertain as to

whether or not he was home the week following the robbery.

(T. Tr. 216-8) She also stated that a police officer had come to

her residence the evening of the trial but that she had not talked

to him. (T. Tr. 225) Respondent testified that he told the

officer he could talk to Ms. Walls in the presence of respon-

dent’s lawyer. (T. Tr. 236).

Part of the closing argument? for the prosecution was as

follows:

The defense is alibi. Now, this is a very interesting

alibi. I want you all to think what you would do in a

situation like this, what you would do, and if you feel that

this alibi was handled the way you would handle it I will

be surprised.

* * *

In fact, yesterday when we attempted to talk to her

[Ms. Walls] about an alibi she wouldn’t talk to us, she

wouldn’t talk to the police officer. Melvin Smith, the same

guy that wasn’t at the hearing, that hid in the back, maybe,

told her not to. If you had what this is supposed to be, an

ironclad alibi, you were home with your spouse, or your

friend, or your buddy, or girl friend or boy friend and you

knew it, one week from the day that the thing happened,

had happened on a late Monday, early Tuesday, and you

knew on Monday or Sunday next that he was supposed to,

wouldn’t you run to the police and say: ‘Hey, look, he was

with me, he didn’t do it.’

Which one of you would not? They didn’t. They had

no obligation to. By the way, they have no obligation to

3 The full closing arguments as to the alibi defense are set forth in

the District Court’s opinion in the Appendix.

5

tell us anything, but wouldn’t you, if you were innocent

and if you had a loved one in trouble, run in and tell the

police? You’re right, you would.

(T. Tr. 248-50) After defense counsel’s closing arguments, the

prosecutor made, inter alia, the following comments in his

rebuttal argument:

And even when the police were out there to ask her

about it she wouldn’t talk—or he wouldn’t let her talk

about it. That’s a curious thing. Why, why wouldn’t

anybody talk about the alibi until we get to Court?

(T. Tr. 264) The jury found respondent guilty of armed

robbery. (T. Tr. 281)

At the hearing on respondent’s post-trial motion on

January 30, 1975, his new counsel raised for the first time his

objections to the prosecutor’s closing arguments insofar as they

were claimed to be impermissible comments upon silence. (H.

Tr. 18-26, 66-8, 71-2)4 The trial judge held that the comments

had not violated petitioner’s right to remain silent. (H. Tr. 86-

7)

The Illinois Appellate Court affirmed the conviction, reject-

ing respondent’s argument that Doyle v. Ohio, 426 U.S. 610

(1976) was applicable under the facts of the case. People v.

Smith, 52 Ill. App. 3d 583, 592, 367 N.E. 2d 756, 762 (1977).

The court found that “an unbiased reading of the entire record

clearly reveals that the prosecutor was referring to the [re-

spondent’s] undisputed ordering of the witness to refuse to talk

to the prosecutor’s representative and not of any failure or

refusal of the [respondent] himself to speak.” Jd. at 591, 367

N.E. 2d at 762.

On collateral review, however, the District Court and the

Court of Appeals disagreed with the state court’s determination

and held the prosecutor’s comments embraced respondent’s

own pre-trial silence, thus giving rise to constitutional error.

4(H. Tr.

trial hearing.

) refers to the page of the transcript of the post-

6

Petitioners now bring this petition for a writ of certiorari

seeking reversal of the Seventh Circuit’s affirmance of the

issuance of the writ of habeas corpus.5

REASONS FOR GRANTING THE WRIT

I.

THE ISSUE RAISED BY THIS CASE WAS LEFT

UNANSWERED BY DOYLE V. OHIO AND JENKINS V.

ANDERSON; IT SHOULD BE RESOLVED TO PERMIT

PROSECUTORIAL CROSS-EXAMINATION AND COM-

MENT ON A TESTIFYING DEFENDANT’S FAILURE TO

MENTION HIS ALIBI BEFORE TRIAL.

Certiorari was granted in Doyle v. Ohio, 426 U.S. 610, 616

(1976) to decide “‘whether impeachment use of a defendant’s

post-arrest silence violates any provision of the Constitution. . .”

The question in Jenkins v. Anderson, USS. , 40 CCH

S.Ct. Bull. B2837, B2839 (1980) was “whether the use of

prearrest silence to impeach a defendant’s credibility violates

either the Fifth or Fourteenth Amendments to the Con-

stitution.” The issue in the instant case centers on whether a

prosecutor’s remarks in closing arguments, allegedly referring

to respondent’s pretrial silence about his alibi defense,® give rise

to reversible constitutional error. This issue has yet to be

decided by the Court. See Doyle, 426 U.S. at 616 n. 6. The

Seventh Circuit recognized this fact in their opinion, citing the

same footnote in Doyle. App. at A3.

Petitioners submit that the Seventh Circuit’s affirmative

answer to this question conflicts with the applicable rationale of

Raffel v. United States, 271 U.S. 494 (1926), a decision whose

viability was challenged by the Seventh Circuit but reaffirmed

5 Respondent is free on bail pending the disposition of these

proceedings.

6 Petitioners still maintain that the prosecutor’s remarks neither

embrated, nor were directed towards, respondent’s own pretrial

silence. See People v. Smith, 52 Ill. App. 3d 583, 592, 367 N.E.2d

756, 762 (1977).

by this Court in Jenkins. Raffel held that a defendant’s silence

at first trial was admissible when he testified in his own defense

at his second trial for impeachment purposes without violating

the fifth amendment. In Jenkins, USS. at n.4, 40

CCH S.Ct. Bull. B2837 at B2844 n.4, the majority opinion

noted that “no Court opinion decided since Raffel has chal-

lenged its holding that the Fifth Amendment is not violated

when a defendant is impeached on the basis of his prior

silence.” Petitioner submits that the holding in Raffel governs

the instant case and that the courts below erred in discounting

it.

The fact situations in Raffel and this case are highly

analogous. The defendant in Raffel relied on his fifth amend-

ment right in not taking the witness stand at his first trial.

Respondent and his alibi witness were silent prior to trial in this

case because respondent’s trial counsel believed the Illinois

Alibi Defense Statute, Ill. Rev. Stat. 1973, ch. 38, § 114-14, was

unconstitutional in light of Wardius v. Oregon, 412 U.S. 470

(1973). Thus, Raffel’s silence and respondent’s silence were

based on interpretations of their constitutional rights but not on

specific invocations of those rights. At his second trial when he

testified, Raffel’s prior silence was properly used to impeach

him even though it was based on a constitutional right.

Respondent testified in his own behalf at his trial and, assuming

arguendo the prosecutor’s remarks did encompass respondent’s

prior silence, such remarks properly discredited his alibi defense

and did not amount to constitutional error. The Seventh Circuit

and the District Court have, in misinterpreting Raffel, improp-

erly extended Doyle. Correction and clarification should be

made by this Court.

Petitioners further suggest that Doyle ought to be limited to

those custodial or interrogation situations where a suspect has

remained silent immediately upon receiving warnings pursuant

to Miranda v. Arizona, 384 U.S. 436 (1966). The rationale of

Dolye should not be extended to apply to a defendant’s non-

interrogation strategy of alibi silence until trial.

8

II.

THE SEVENTH CIRCUIT COURT OF APPEALS

ERRED IN ADOPTING THE DISTRICT COURT’S HOLD-

ING THAT CERTAIN PROSECUTORIAL COMMENTS

DURING CLOSING ARGUMENTS REFERRED TO RE-

SPONDENT’S PRE-TRIAL SILENCE.

The District Court concluded “that the prosecutor’s com-

ments were directed towards the [respondent’s] failure to come

forward at any time prior to trial with his alibi defense.” App.

at Al3. Petitioners submit this is an erroneous conclusion and

that a careful analysis of the facts reveals otherwise.

In his closing argument, the prosecutor sought to empha-

size that respondent’s alibi witness, by failing to go to the police

with the alibi, behaved differently than most people would if

the alibi were true. The prosecutor argued that “she didn’t turn

to the police and say‘... he couldn’t have done it, he was with

me,’”’ and “wouldn’t you run to the police and say ‘Hey look,

he was with me, he didn’t do it.’” (T.Tr. 248-250) Immedi-

ately thereafter, the prosecutor used the word “they”:

Which one of you would not? They didn’t. They have no

obligation to tell us anything, but wouldn’t you, if you were

innocent and if you had a loved one in trouble, run in and

tell the police? You’re right, you would.

(T.TR. 264)

The Illinois Appellate Court concluded with respect to

these comments that “the prosecutor was referring to the

[respondent’s] undisputed ordering of the witness to refuse to

talk to the prosecutor’s representative.” People v. Smith, 52 Ill.

App.3d 583, 591, 367 N.E. 2d 756, 762 (1977). Although

District Court notes that the appellate court’s interpretation has

9

some support in the record,’ it finds that the appellate court’s

analysis is not persuasive. App. at All.

The prosecutor also referred to “if you were innocent”

(T.Tr. 250) and ““Why, why wouldn’t anybody talk about the

alibi until we get to court?” (T. Tr. 264)

The District Court notes that neither the Supreme Court

nor the Seventh Circuit has yet specifically set forth a test to

determine when ambiguous prosecutorial comments will con-

stitute an invasion of the defendant’s right to remain silent after

arrest. App. at Al2. The court then applies the standard

followed by the Seventh Circuit in cases where the issue is

whether indirect prosecutorial statements constitute impermis-

sible comment upon a defendant’s failure to testify. App. at

Al2. The two-part test is (1) whether the comment is

“manifestly intended” to refer to a defendant’s silence, or (2)

whether the comment is of such a character the jury would

“naturally and necessarily” take it to be a comment on a

defendant’s silence. United States v. Lyon, 397 F.2d 505, 509

(7th Cir.), cert. denied, 393 U.S. 846 (1968). The District

Court stated that the prosecutor did not “manifestly intend” to

include respondent in his remarks. However, the court found

that the jury would “naturally and necessarily” take the

remarks to be a comment on respondent’s silence. App. at Al2.

In the context of the prosecutor’s entire argument, his use

of the words “they”, “if you were innocent”, and “anybody”

was a mere, inadvertent slip of language, which did not change

the focus of his statements to include respondent. Note, for

example, the prosecutor’s statement, “If you had what this is

supposed to be, an ironclad alibi... wouldn’t you run to the

7 The district court states: “Presumably, this conclusion was

drawn from the prosecutor’s cross-examination of Ms. Walls, T. TR.,

at 224-227, and petitioner’s trial testimony that when the police officer

had come to interview Ms. Walls on the day before the trial began,

petitioner had instructed the officer that Ms. Walls would only talk to

the officer in the presence of petitioner’s attorney. T. Tr., at 236.”

App. at All.

10

police and say, ‘Hey, look, he was with me, he didn’t do it.’ ”

(T.Tr. 250) Nobody who hears such a sentence is going to

think that the speaker is referring to respondent.® Obviously,

the prosecutor was speaking about the witness, not respondent,

and simply twisted his words—a common occurrence when a

person is composing as he argues instead of reading a prepared

statement. Likewise, when the prosecutor used “they”, he was

not referring to respondent’s silence. This is apparent from the

context of the entire closing argument. See United States v.

Wagner, 497 F.2d 249 (10th Cir. 1974). (Prosecutor’s refer-

ence to “his testimony” in closing argument held to be a faulty

grammatical reference made during a summation of the evi-

dence. )

This Court has stated:

....all closing arguments of counsel, are seldom carefully

constructed in toto before the event; improvision frequently

results in syntax left imperfect. While these general

observations in no way justify prosecutorial misconduct,

they do suggest that a court should not lightly infer that a

prosecutor intends an ambiguous remark to have its most

damaging meaning or that a jury, sitting through lengthy

exhortation, will draw that meaning from the plethora of

less damagino interpretations.

Donnelly v. DeChristoforo, 416 U.S. 637, 646-647 (1974).

In United States v. Reicin, 497 F.2d 563, 572 (7th Cir. ),

cert. denied, 419 U.S. 996 (1974), the defendant claimed that

he was denied a fair trial because the prosecutor commented, in

closing argument, on his failure to take the witness stand. The

prosecutor had stated: “Reicin says, through other witnesses,

...” and “for some reason that only Reicin knows ...”. The

8 The district court states that that comment was “focused only

upon Ms. Walls’ silence, ....” App. at Al3.

first statement was used on several occasions. In failing to find

that the jury would “naturally and necessarily” take the

language to be comment on the defendant’s failure to testify,

the court stated:

... perhaps [the comments are] an inartful locution for a

prosecutor who should not only refrain from commenting

on the failure of a defendant to take the witness stand but

should guard against the appearance of doing so, never-

theless, in the context of the extensive argument in this case

we do not read in these introductory remarks the illative

meaning that the defendant finds.

Id. at 572.

As in Reicin, the prosecutor’s comments in the present case

may be an “inartful locution,” but in the context of the entire

argument, the comments do not refer to the respondent’s

silence; the jury would not “naturally and necessarily” interpret

them as such.

Therefore, this Court should grant certiorari to review the

conclusions of the District Court and the Seventh Circuit.

THE SEVENTH CIRCUIT COURT OF APPEALS

ERRED IN ADOPTING THE DISTRICT COURT’S HOLD-

ING THAT CERTAIN PROSECUTORIAL COMMENTS

DURING CLOSING ARGUMENT DID NOT CONSTITUTE

HARMLESS ERROR.

This Court has held that “before a federal consututional

error can be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt.”

Chapman v. California, 386 U.S. 18, 24 (1967). In the present

case, there is not a reasonable possibility that the prosecutor's

comments might have contributed to the conviction.

Respondent was positively identified as one of the robbers

by Claudia Jean Watson, the night auditor held at gunpoint

during the robbery. She had ample opportunity to observe the

12

robber, having been in a well-lit area, less than four feet away

from him, and having looked directly at his face for three to

four minutes. (T.Tr. 170-171, 180-183, 193) Ms. Watson

concentrated on the robber’s features so as to remember them

and to be able to later identify him. (T.Tr. 184) Less than a

week later, Ms. Watson positively identified respondent from

photographs shown to her by police. (T.Tr. 185, 190) These

photographs included pictures of two of respondent’s brothers.

(T.Tr. 29, 30) She subsequently identified respondent in a

lineup and at trial. (T.Tr. 181, 189) The fact that there was

some discrepancy in height between Ms. Watson’s description

and respondent is not significant where Ms. Watson was so

certain of his face. Her testimony stood up under vigorous

cross-examination. (T.Tr. 190-197)

Respondent’s alibi witness was his girlfriend, Betty Walls.

On cross-examination, Ms. Walls was uncertain as to which

night respondent was home with her, although she claimed to

know that it was the night of the robbery. She was also unable

to recall where respondent had been on any other day that

week. (T.Tr. 216-224) Her testimony was substantially im-

peached at trial. App. at All.

Because the prosecution witness’s identification of respon-

dent was unwavering, petitioners submit that a writ of certiorari

should issue to correct the erroneous decision of the District

Court and the Seventh Circuit.

IV.

THE DISTRICT COURT SHOULD HAVE AD-

DRESSED THE QUESTION OF RETROACTIVE APPLI-

CATION OF DOYLE V. OHIO AND SHOULD HAVE

FOUND IT TO BE APPLICABLE PROSPECTIVELY

ONLY.

Assuming arguendo the fact situation of this case falls

within the scope of Doyle v. Ohio, 426 U.S. 610 (1976), the

13

District Court should not have concluded that Doyle would

have been applicable retroactively.9 App. at Al9.

Doyle was decided afier respondent’s conviction. Clearly

Doyle is a landmark case which has set forth a new rule of

procedure—that an arrested person’s post-arrest, post-Miranda

silence may not be used to impeach a: explanation subse-

quently offered at trial. Many times when a decision of the

United States Supreme Court has set forth new rules of criminal

procedure, the Court has held that such a rule shall not be given

retroactive application.

Several recent trend-setting cases are good examples.

Linkletter v. Walker, 381 U.S. 718 (1965), refused to retro-

actively apply Mapp v. Ohio, 367 U.S. 643 (1961). Similarly, in

Johnson v. New Jersey, 384 U.S. 719 (1966), the Court held

that Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v.

Arizona, 384 U.S. 436 (1966), were only applicable to trials

begun after the dates of those decisions.

In order to determine whether the new rule of procedure is

to be given retroactive application, as a threshold matter, the

court must determine whether the new rule remedies a signifi-

cant or a substantial defect in the truth-finding process of trial, a

defect which raises serious questions about the accuracy of

guilty verdicts in past trials. Williams v. United States, 401 U.S.

646, 653 (1971); Bailey v. Holley, 530 F.2d 169, 172 (7th Cir.

1976).

Doyle, a case which involves a defendant’s fifth amend-

ment privilege, does not remedy a defect in the truth-seeking

function of trial. In Doyle this Court upheld a defendant’s right

not to be impeached at trial by his silence after being given

Miranda warnings. This Court made no suggestion, however,

that the forbidden practice was frustrating the truth-seeking

function of trial. In fact, this Court recognized the importance

of prosecutors being allowed wide leeway in the scope of

9 The question of retroactive application of Doyle was not raised

in the Seventh Circuit.

14

impeachment on cross-examination so as not to discourage that

very function of trial—the ascertainment of truth. Doyle, as a

threshold matter, therefore, should not be applied retroactively.

Looking next to the balancing criteria regarding retroactive

application as set out in Halliday v. United States, 394 US. 831,

832 (1968), it becomes apparent that the Doyle decision should

apply prospectively only. The Halliday criteria considers: |)

the purpose of the new rule; 2) the extent of reliance upon the

old rule; and 3) the effect retroactive application would have

upon the administration of justice.

To this end, the case of Tehan v. United States, 382 U.S.

506 (1966), is instructive. Tehan ruled that Griffen v. Califor-

nia, 380 U.S. 609 (1965) should not be applied retroactively.

Gri,*1 held that a defendant who elects not to testify may not

have his silence used against him. Since Doyle is an outgrowth

of Griffin, the Tehan court rationale for denying retroactive

application to Griffin is of special interest. Tehan reasoned that:

The basic purpose of a trial is the determination of truth.

... By contrast the Fifth Amendment’s privilege against

self-incrimination is not an adjunct to the ascertainment of

truth. That privilege, like the guarantees of the Fourth

Amendment, stands as a protection of quite different

values—reflecting the concern of our society for the right

to be let alone.

Tehan, 382 U.S. at 416. The purpose of Doyle, to prevent a

defendant from being confronted at trial with his past Miranda

silence, does not compel retroactive application for similar

reasons.

As to the effect retroactive application would have, in

referring to the number of cases in which a prosecutor may

have a a defendant’s refusal to testify prior to the

Griffin decisiom, this Court in Tehan noted that retroactive

application of Griffin would “create stresses upon the adminis-

tration of justice more concentrated but fully as great as would

have been created by a retroactive application of Mapp.”

Tehan, 382 U.S. at 418. Doubtless there have been innumer-

15

able criminal trials during which the prosecutor made some

reference to a defendant’s post-arrest silence. To subject these

convictions to collateral attack would place a serious burden on

our criminal justice system.

Finally, it is suggested that a prosecutor could not have

reasonably been expected to have foreseen the change in

criminal law that Doyle brought. His reliance on the law in

effect at the time of trial would be reasonable and there is no

compelling reason to hold the state to a stricter rule which took

effect at a later date.

For these reasons, Doyle should be applied prospectively

only.

16

CONCLUSION

For all these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Seventh Circuit.

WILLIAM J. SCOTT

Attorney General

State of Illinois

MELBOURNE A. NOEL, JR.,

CAROLYN B. Nortkorr,

Assistant Attorneys General

188 West Randolph Street

Chicago, Illinois 60601

(312) 793-2570

Counsel for Petitioners.

APPENDIX

Al

Inthe

United States Court of Appeals

For the Seventh Cirrnit

No. 79-2107

UNITED STATES OF AMERICA ex rel. MELVIN LEE SMITH,

Petitioner-Appellee,

Vv.

CHARLES J. ROWE and WILLIAM KLUSAK,

Respondents-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78-C-2853—Hubert L. Will, Judge.

ARGUED FEBRUARY 13, 1980—DECIDED MARCH 21, 1980

Before FAIRCHILD,.Chief Judge, SWYGERT and CUM-

MINGS, Circuit Judges.

PER CURIAM. The primary issue is whether a prose-

cutor’s comments about a defendant’s failure to inform

law enforcement authorities of his alibi defense violated

his constitutional privilege inst self-incrimination

and his right to due process. Additional issues are: (1)

whether the trial court was correct in finding that the

prosecutor’s summation to the-jury referred to the

defendant’s pretrial failure to bring forth his alibi

defense and (2) whether the harmless error doctrine

neutralizes the constitutional impairment if it existed.

Petitioner-appellee Melvin Lee Smith requested the

district court, under 28 U.S.C. § 2254, to issue a writ of

A2

habeas corpus, alleging that his state court conviction

for robbery was void on constitutional grounds. The

district court vacated the judgment of conviction, but it

withheld the issuance of the writ for a period of 120

days so as to afford the State of Illinois an opportunity

to initiate a new trial proceeding. This appeal by the

respondents, Charles J. Rowe, Director, Illinois Depart-

ment of Corrections, and William Klusak, Sheriff, Kane

County, Illinois, followed.*

Petitioner was indicted in June 1974’ by a Kane

County grand Jury for the armed robbery on March 26,

1974 of Claudia Watson, the night auditor of the Hilton

Hotel in Aurora, Illinois. He was found guilty by a jury

and was sentenced to a term of four years imprison-

ment. At the trial, defense witness Betty Walls, who was

living with petitioner at the time of the robbery,

testified that she and the petitioner were home that

evening playing cards. During cross-examination the

witness testified that a police officer came to her

residence the evening before petitioner’s trial on Sep-

tember 30, 1974, but she refused to talk to the officer.

The petitioner was also present, et to her testi-

mony. Petitioner, testifying in his own behalf, stated

that he and Walls were home on the night of the

robbery. He also testified that when the police officer

came to interview Walls on the eve of the trial, he told

the officer that he could talk to Walls only in the

presence of petitioner’s lawyer.

During the State’s closing and rebuttal arguments, the

rosecutor made comments which are the basis of the

instant habeas petition (see n. 1 of the district court’s

memorandum opinion which is appended).

* The date of the judgment of conviction was January 30,

1975. The Illinois Appellate Court, Second Division, affirmed

the conviction on rere 16, 1977, People v. Smith, 52 Il.

App.3d 358, 367 N.E.2d 756 (1977), and the Illinois Supreme

Court, on January 26, 1978, denied a petition for leave to

appeal to that court. The Supreme Court denied certiorari on

ay 1, 1978, Smith v. Illinois, 436 U.S. 961 (1978). Thereafter

this habeas proceeding was initiated. The petitioner was freed

on bail during the pendency of the state court appeals and is

presently free on bail pending the disposition of this

proceeding.

A3

Judge Will wrote a thorough opinion explicating his

determinations. After considering the respective conten-

tions of the rs we are satisfied with the judge’s

reasoning and the result he reached. We therefore adopt

his opinion as our own (see Appendix) with these

additional comments.

Although Doyle v. Ohio, 426 U.S. 610 (1976), con-

cerned a situation different from that presented here, it

has an important bearing on the primary question

before us. In Doyle the prosecution sought to impeach

the defendant’s testimony by questioning the defendant

about his failure to reveal exculpatory conduct on his

part to narcotics agents at the time of his arrest and

after receiving Miranda warnings. Here there were no

Miranda warnings given to petitioner when the police

attempted to interview Walls on the eve of the trial. At

that time, both she and the petitioner remained silent

except for the latter’s statement that Walls would afford

an interview if petitioner’s lawyer was present.

It seems clear that the Supreme Court in Doyle left

open the very question presented in the instant case.

oyle, supra, 426 U.S. at 616 n. 6. The State argues that

given this posture, Raffel v. United States, 271 U.S. 494

(1926), should control and that the prosecutor’s remarks

do not constitute error. We are convinced, however, that

Raffel is —o., and legally distinguishable from the

present case: In Raffel there were two trials; here there

was only one trial. Defendant Raffel made his decision

to remain silent in a trial setting. In his second trial, he

denied making the exact statement offered at the first

trial. Here Melvin Lee Smith exercised his constitu-

tional right to remain silent prior to his one and only

trial. Moreover, we believe absent an alibi statute that

asses constitutional muster, Wardius v. Oregon, 412

SS. 470 (1978), there was no obligation on Smith or

Walls to inform the police or the prosecution of the alibi.

In such circumstances, it was impermissible for the

prosecutor to argue that their pretrial silence dis-

credited their story told on the witness stand. Due

process proscribes such prosecutorial conduct.

A4

What we have just stated serves as a predicate for the

constitutional] error asserted by petitioner: the comments

of the ge eget on the failure of the petitioner to

furnish his alibi defense to the police at any time before

his trial. We see no legal distinction between the

comments by the prosecutor to the jury and any attempt

he might have undertaken to impeach petitioner or

Walls on cross-examination. Cf. Griffin v. California,

380 U.S. 609 (1965); Doyle v. Ohio, 426 U.S. 610, 633-36

(1975) (Stevens, J., dissenting).

In respect to the other issues, we are convinced that

Judge Will was correct in his determinations.

The order granting the writ is affirmed.

AS

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex rel. MELVIN LEE SMITH,

Petitioner,

Uv.

CHARLES J. ROWE, Director, Illinois Department of

Corrections, and WILLIAM KLUSAK, Sheriff, Kane

County, Illinois, .

Respondents.

No. 78 C 2853

MEMORANDUM OPINION

Petitioner Melvin Lee Smith —— this petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 on

the ground that the state court prosecutor committed

constitutional error in his closing argument to the jury

and that such error was not harmless beyond a reason-

able doubt. Specifically, petitioner contends that the

rosecutor commented upon petitioner’s failure to come

orward prior to trial with the alibi to which petitioner

testified at trial, and that such comment constituted

impermissible impeachment by use of post-arrest silence

in contravention of Doyle v. Ohio, 426 U.S. 610 (1976).

This case comes before the Court on respondent's

motion to dismiss and petitioner’s motion for summary

judgment. While this is a close case insofar as the

existence of constitutional error is concerned, for the

Ao

reasons hereinafter stated we grant petitioner’s motion

for summary judgment and grant the writ.

BACKGROUND

Petitioner was tried in the Circuit Court of Kane

County on September 30 and October 1, 1974 on the

charge of having committed an armed robbery at the

Hilton Inn in North Aurora, Illinois on March 26, 1974.

At trial, petitioner advanced an alibi defense and both

he and his girl friend, Ms. Betty Walls, testified that

they had been home bs ng on the night of the

robbery. After the close of the evidence, the prosecutor

made the following statements in his initial closing

argument:

The defense is alibi. Now, this is a very inter-

esting alibi. ] want you all to think what you would

do in a situation like this, what you would do, and if

you feel that this alibi was handled the way you

would handle it I will be surprised.

*~ * ©

In fact, yesterday when we attempted to talk to

her [Ms. Walls] about an alibi she wouldn’t talk to

us, she wouldn't talk to the police officer. Melvin

Smith, the same guy that wasn’t at the hearing,

that hid in the back, maybe, told her not to. If you

had what this is supposed to be, an ironclad alibi,

you were home with your spouse, or your friend, or

your buddy, or girl friend or boy friend and you

new it, one week from the day that the thing

happened, had ee on a late Monday, early

Tuesday, and you knew on Monday or Sunday next

that he was supposed to, wouldn't you run to the

police and say: ‘Hey, look, he was with me, he didn’t

o it.’

Which one of you would not? They didn’t. They

had no obligation to. By the way, they have no

obligation to tell us anything, but wouldn’t you, if

you were innocent and if you had a loved one in

jh run in and tell the police? You’re right, you

would.

Al

Trial Transcript (T.Tr.), at 248-250. Following defense

counsel’s closing argument, the prosecutor made the

following comments in his rebuttal argument with

respect to the alibi defense:

And even when the police were out there to ask

her about it she wouldn’t talk—or he wouldn’t let

her talk about it. That’s a curious thing. Why, why

— anybody talk about the alibi until we get to

ourt:

T.Tr., at 264. The jury found petitioner guilty of armed

robbery.

Subsequent to petitioner's conviction, petitioner re-

tained different counsel for the purpose of filing post-

trial motions. Post-trial motions were heard by the trial

judge on January 380, 1975. During the — peti-

tioner’s new counsel raised for the first tine his ob-

jection to the prosecutor’s closing arguments insofar as

the comments upon petitioner’s prior silence were con-

cerned. Hearing Transcript (H.Tr.), at 18-26, 66-68, 71-

72. The trial judge concluded, however, that the

prosecutor’s closing argument had not violated the peti-

tioner’s right to remain silent. H.Tr., at 86-87. Petitioner

was sentenced to four years and one day imprisonment.

’ Petitioner appealed his conviction to the Appellate

Court of Illinois, Second Judicial District. People v.

Smith, 52 Ill.App.8d 358, 367 N.E.2d 756 (2d Dist. 1977).

One of the issues raised on appeal was whether peti-

tioner’s constitutional privilege against self-incr.mina-

tion had been violated by the prosecutor’s closing

arguments to the jury. Rejecting petitioner’s reliance

ey Doyle v. Ohio, supra, the appellate court concluded

that

[aJn unbiased reading of the entire record clearly

reveais that the prosecutor was referring to the

defendant’s undisputed ordering of the witness to

refuse to talk te the prosecutor’s representative and

not of any faiure or refusal of the defencant

himself to speak.

A&

52 Ill.App.3d at 591, 367 N.E.2d at 762. The Illinois

Supreme Court denied leave to appeal, and the United

States Supreme Court denied certiorari. Smith v. JIlli-

rs - .S. 961 (1978). This habeas corpus petition

ollowed.

VIOLATION OF PETITIONER'S DUE PROCESS

RIGHTS

Petitioner contends that the prosecutor’s comments in

closing argument impermissibly referred to petitioner’s

pretrial silence and thereby violated both his fifth

amendment right to remain silent and his due process

rights. In the context of this case, petitioner’s argument

raises two important questions: (1) were the prosecutor's

comments directed towards petitioner’s failure to come

forward with the alibi defense, and (2), if so, does the

prosecutorial comment on the petitioner’s failure to

come forward constitute constitutional error?

Insofar as the first of these questions is concerned, a

fair reading of the trial transcript and the closing

arguments a both the prosecutor and petitioner’s trial

counsel indicates that the primary focus of the prosecu-

tor’s comments insofar as petitioner’s alibi defense was

concerned was toward Ms. Walls’ failure to give a

similar story to the police at any point prior to trial. In

' Since these comments can only be interpreted within the

context of the full ss arguments as to the alibi defense

issue, these portions of the arguments are set forth.

Initial closing argument for the prosecution:

The defense is alibi. Now, this is a 7 interesting alibi.

I want you all to think what you would do in a situation

like this, what you would do, and if you feel that this alibi

was handled the way you would handle it I will be

surprised.

Okay. They say that here is Melvin Smith vias with

Betty, that they have been living together for awhile, that

he stays home on a regular basis, that he’s not working

and she’s not working, so they must be getting along

pretty good if you’re going to stay in because it’s pretty

tough to stay in the house day in and out. They have

(Footnote continued on following page)

A9

1 continued

enough feeling for.one another. They live together, play

cards © nanaoal stay together even though they’re not

married.

Okay. That when she finds out that he is arrested for

this offense, the day she found out she claims it was

Sunday, he says it was Monday, she’s a little mixed up on

her days, but when she found out she didn’t turn to the

police and say: ‘For Godsake, he couldn't have done it, he

= = me.’ No, this alibi couldn’t come out right then

and there.

In fact, yesterday when we attempted to talk to her

about an alibi she wouldn't talk to us, she wouldn't talk to

the pense officer. Melvin Smith, the same guy that wasn’t

at the hearing, that hid in the back, maybe, told her not

to. If you had what this is supposed to be, an ironclad

alibi, you were home with your spouse, or your friend, or

your buddy, or girl friend or boy friend and you knew it

one week from the day that the thing happened, ha

ans > oe on a late Monday, early Tuesday, and you knew

on Monday or Sunday next that he was ag my to,

wouldn’t you run to the police and say: ‘Hey, look, he was

with me, he didn’t do it.’

Which one of you would not? They didn’t. They had no

ee to. By the way, they have no obligation to tell us

anything, but wouldn't you, if you were innocent and if

ou had a loved one in trouble, run in and tell the police?

ou’re right, you would.

T.Tr., at 248-250.

Closing argument for the defense:

So, coupled with that we have got what Mr. Puklin

refers to as the alibi defense, and legally that’s what it’s

called is an alibi defense. Now, alibi has a bad connota-

tion, oF at least to me it sounds bad, alibi, but that’s what

it’s called.

And _ sure, when I was picking you people on the jury,

when Mr. Puklin was pie ing you I asked you questions

now about what if we don’t put on any evidence, what if

Melvin doesn’t testify, and that’s because that's a very

difficult choice for me to make. I put this girl on the

stand, she’s never been in Court before, she’s not an

experienced witness by any means. I don’t know what Mr.

Puklin is going to be able to do to her, what a skillful

cross examiner is going to get her to say.

(Footnote continued on following page)

Al0

so arguing, the prosecutor clearly sought to impeach Ms.

Walls’ veracity as a witness in support of petitioner’s

1 continued

I submit to you that had Mr. Puklin enough time or the

desire to do so he could have had her confused about her

name. But we do have her here saying: ‘I was living with

Melvin, we were staying together, he was home that

night.’ We have Melvin saying he was home that night.

Mr. Puklin says: ‘Okay, why didn’t you tell the police? You

would have all told the police.’ I have no doubt in my

mind that every one of you would have fore to the police

and said: ‘Hey, you get him out, he didn’t do it, he was

with me.’

Well, just for a minute pretend that you’re in your early

twenty's, and your're black, and you're living in Aurora

and you have a boy friend charged with armed robbery

and you know he was with you. Are you going to the

police and say: ‘Hey, that’s my boy friend, he was with me,

you guys are taki = 8 Of course you're not. It’s unfortun-

ate, but if you’re black and you're that age and you're in

Aurora the police are on the other side, they’re not on your

side, so you don’t run to the police and tell them your

story, probably would rather stay out of the whole thing.

T.Tr., at 256-57.

Rebuttal closing argument for the prosecution:

Okay. Doubt has to be a reasonable one. | think what

ou saw here was a man who has been identified, who has

n captured and a loved one doing whatever she can to

get him out of this. I believe they have both lied under

oath. 1 don’t believe the doubt they have tried to create is

a reasonable doubt in light of what you would do if you

had an ironclad alibi for a loved one.

And, you know, I don’t go this bit about she being

twenty years old, and black, and on Aid in Aurora and the

police hate people that are black. I don’t care what color

you are, if you got an ironclad alibi it doesn’t hurt to walk

downtown and tell the police, they’re not going to do

anything to you.

And even when the police were out there to ask her

about it she wouldn’t talk—or he wouldn’t let her talk

about it. That’s a curious thing. Why, why wouldn't

anybody talk about the alibi until we get to Court?

T.Tr., at 263-64.

All

alibi defense.2 Notwithstanding the prosecutor’s primary

focus upon impeaching Ms. Walls’ testimony, it is clear

that on several separate occasions during his closing

arguments, one of which was of aoe 4 duration, the

prosecutor’s language literally embraced both petitioner

and Ms. Walls.

The Illinois Appellate Court concluded with respect to

these comments that “the prosecutor was referring to

the defendant’s undisputed ordering of the witness to

refuse to talk to the peesgeg representative.” People

v. Smith, supra, 52 Ill.App.3d at 591, 367 N.E.2d at 762.

Presumably, this conclusion was drawn from the prose-

cutor’s cross-examination of Ms. Walls, T.Tr., at 224-227,

and petitioner’s trial testimony that when the police

officer had come to interview Ms. Walls on the day

before the trial “a ig petitioner had instructed the

officer that Ms. Walls would only talk to the officer in

the presence of petitioner’s attorney. T.Tr., at 236.

While the appellate court’s interpretation of the prose-

cutor’s comments has some support in the record, we do

not find the appellate court’s analysis persuasive. 28

U.S.C. § 2254(dX8). In his comments preceding his

repeated references to “they”, T.Tr., at 250, the prose-

cutor had discussed broadly Ms. Walls’ failure to come

forward at any time prior to the trial, as well as

discussing Ms. Walls’ failure to come forward on the day

prior to her actual testimony. In addition, he also

referred to “if you were innocent”, T.Tr., at 250, and

“Why, why wouldn’t anybody talk about the alibi unti!

we get to Court?” T.Tr., at 264 (underscoring supplied).

Viewing the prosecutor’s comments as a whole, they are

clearly susceptible of being interpreted as referring to

both petitioner and Ms. Walls’ failures to come forward

at any time: before trial.

2 Petitioner does not here challenge the constitutionality of

the impeachment of a defense witness by that witness’ prior

silence, nor do we perceive any constitutional defect_in such

rosecutorial comment in this case. See United States v.

ouras, 497 F.2d 1115, 1120, (7th Cir. 1974); Shadd v. United

States, 423 F.Supp. 511, 514 (W.D. Pa. 1976).

Al2

Notwithstanding our conclusion that the prosecutor’s

literal language also embraced the defendant’s pretrial

silence, the question remains whether these comments

are, for purposes of constitutional analysis, to be deemed

a reference to the defendant’s prior silence. Neither the

Supreme Court nor the Seventh Circuit has yet specifi-

cally set forth a test to determine when ambiguous

prosecutorial comments will constitute an invasion of the

defendant’s right to remain silent after his arrest.

However, at least one circuit has ruled with respect to

Doyle-type situations that a comment is deemed to be

such a reference if either (1) it was the prosecutor's

manifest intention to refer to the defendant’s silence, or

(2) the remark was of such a character that the jury

would “naturally and necessarily” take it to be a

comment on the defendant’s silence. United States v.

Edwards, 576 F.2d 1152, 1154 (5th Cir. 1978). This

standard is identical to that followed by the Seventh

Circuit in cases where the issue is whether indirect

prosecutorial statements constitute impermissible com-

ment upon the defendant’s failure to testify at trial,

United States v. Muscarella, 585 F.2d 242, 249 (7th Cir.

1978); United States v. Buege, 578 F.2d 187, 188 (7th

Cir. 1978); United States v. Lyon, 397 F.2d 505, 509 (7th

Cir. 1968), and we see no reason why the same standard

should not be equally applicable here.

Evaluating the challenged comments by reference to

this standard, we cannot conclude that they were

“manifestly intended” to refer to petitioner’s silence.

There are indications that the prosecutor’s choice of

words was not accidental and might well have been

intentional, particularly in his repeated use of the word

_ “they.” T.Tr., at 250. However, in light of the dominant

- focus of the closing arguments on the impeachment of

Ms. Walls and of the fact that the prosecutor did not

cross-examine petitioner with respect to his failure to

come forward at any time prior to trial, we cannot

conclude that he “manifestly intended” to include peti-

tioner in his remarks. Notwithstanding this conclusion,

we find the prosecutor’s remarks to be of such a

character that the jury would “naturally and neces-

sarily” take them to be a comment on the defendant’s

Al3

silence. he gest ne of the word “they”, in contrast to the

immediately ae comments which were focused only

upon Ms. Walls’ silence, is juxtaposed so as to call the

jury’s attention to the petitioner’s as well as Ms. Walls’

silence. Moreover, while the reference to “anybody” in

the rebuttal argument is of lesser importance and of

itself would be inadequate to justify a finding of

improper comment, see United States v. Aldridge, 484

F.2d 655, 660 (7th Cir. 1978) (single ambiguous com-

ment held not to warrant reversal), the implicit refer-

ence of this word to both Ms. Walls and petitioner and

the arguable reference of this clause to their joint

silence up until trial reinforced the comment upon

petitioner's silence contained in the preceding com-

ments.

This is a close case. Moreover, we recognize that

defense counsel’s failure to object at the time of the

prosecutor’s closing argument is a factor to be weighed

in deciding whether or not the prosecutor’s remarks are

to be considered as improper comments. See United

States v. Hansen, 583 F.2d 325, 331 (7th Cir. 1978);

United States v. Reicin, 497 F.2d 5638, 573 (7th Cir.

1974); United States v. Lyon, supra, 397 F.2d at 509.3

Nonetheless, we find that these closing arguments would

naturally and necessarily be taken by the jury as a

comment on the defendant’s failure to come forward

prior to trial with notice of his alibi defense.

Having concluded that the prosecutor’s comments

were directed towards the petitioner's failure to come

forward at any time prior to trial with his alibi defense,

the question remains whether these comments constitute

constitutional error. Petitioner relies primarily on Doyle

v. Ohio, supra, and Hale v. United States, 422 U.S. 171

$ In addition to failing to object to these comments on the

petitioner’s pretrial silence, petitioner's trial counsel failed to

object to two other prosecutorial comments during closing

eh eg which comments were found by the Illinois Ap-

ate Court to have been error. See People v. Smith, supra,

2 Ill.App.3d at 589-90, 367 N.E.2d at 760-61. Under such

circumstances, we are reluctant to give counsel's failure to

object significant weight.

Al4

(1975) in support of his contention that these comments

were constitutional error. However, a careful reading of

these decisions shows that, while important to analyzing

whether or not the prosecutor’s comments in this case

constituted constitutional error, neither controls this

case,

In Hale, the Supreme Court, exercising its supervisory

powers over the lower federal courts, held on non-

constitutional grounds that a defendant’s silence at the

time of arrest and during police interrogation lacked

significant probative value and that “any reference to

silence under such circumstances carried with it an

intolerably prejudicial impact.” 422 U.S. at 180. In

Doyle, the Supreme Court extended the Hale rationale,

and held that use of a defendant’s silence at the time of

arrest and after having received Miranda warnings to

impeach the defendant’s exculpatory story given for the

first time at trial violated due process. In so holding, the

Court adduced two reasons in support of its constitu-

tional rule. First, as set forth in Hale, the ambiguity of

post-arrest, post-Miranda warning silence was so great

as to deprive the silence of significant probative value.

426 U.S. at 617. Second, since the Miranda warnings

themselves implicitly assured the defendant that his

silence would not be used against him, it would be

fundamentally unfair to later allow use of the silence to

impeach an exculpatory explanation. 426 U.S. at 618.

While Doyle established a constitutional rule based on

the due process clause against impeachment use of_a

defendant's silence while under arrest and after having

received Miranda aarnings, the Court was careful to

specify that it did not consider other constitutional

claims raised by the petitioners. 426 U.S. at 616 n.6. The

Court specifically noted that it did not reach petitioners’

claim, essentially identical to that raised here by peti-

tioner Smith, that constitutional error had been com-

mitted by the prosecutor’s cross-examination and com-

ment in closing argument directed towards the peti-

tioners’ failure to have told their exculpatory story at

any time prior to trial. Jd. Moreover, the Court noted

that ee considerations” would be involved in such

a case. Jd.

Al5

To this Court’s knowledge, no federal court has ©

endeavored since Doyle to analyze the “different con-

siderations” which are at play when the prosecutorial

comment is directed towards the defendant’s general

failure to come forward and give notice of his alibi prior -

to trial.4 Some guidance as to the constitutional consid-

erations at play in this situation may be gleaned,

however, from the dissenting opinion in Doyle.

Justices Stevens, Blackmun, and Rehnquist, dissenting

in Doyle, would have reached the constitutional issue

reserved by the majority and at stake in this case and

would have resolved this issue adversely to the peti-

tioners. Relying primarily on the continued existence of

Raffel v. United | dere 271 U.S. 494 (1926), in which the

Court had held that a defendant’s failure to take the

stand at his first trial could be used to impeach the

defendant on cross-examination when the defendant took

the stand in his second trial, these justices would have

concluded that, until Raffel is expressly overruled, a

state court is free to “regard the defendant’s decision to

take the stand as a waiver of his objection to the use of

his... failure to offer his version of the events prior to

trial.” 426 U.S. at 633 (Stevens, J., dissenting). Notwith-

standing this conclusion, the dissenting justices ex-

pressed serious doubts as to the probative value of a

defendant’s decision not to divulge his defenses prior to

trial. Jd., at 631-632.

‘ Several federal courts have explicitly noted that the

Supreme Court reserved decision in Doyle upon whether the

defendant’s general silence in a come forward prior to

trial with a vf told at trial can be used for impeachment

urposes. United States v. Mireles, 570 F.2d 1287, 1292 n.8

5th Cir. 1978); Hayton v. Egeler, 555 F.2d 599, 602 (6th Cir.

1977). Cf. Pineda v. State of Florida, 564 F.2d 1163, 1165 (5th

Cir. 1977) (need not decide whether Doyle should be extended

to silence at a preliminary hearing).

At least one state court, relying on the reserved issues in

Doyle, has concluded on the authority of Raffel v. United

States, 271 U.S. 494 (1926), that a defendant's silence at a

preliminary hearing can be used to impeach his testimony at

trial. Franklin v. State, No, 57,348 (Tex.Crim.App. May 24,

1978) (en banc). This decision was reached over a vigorous

dissent, and has been criticized. 10 St. Mary’s L.J. 632 (1979).

Al6

While the dissenting opinion in Doyle points toward a

finding of no constitutional error in this case, we con-

clude that the “different considerations” present in this

case do not prevent the error from attaining constitu-

tional proportions. In fact, considerations precisely par-

allel to the two rationales articulated by the Doyle

majority are present in this case. First, as a general

matter, a defendant’s failure to come forward prior to

trial with an alibi defense is certainly no less “insolubly

ambiguous” than is the defendant’s silence at the time of

arrest. Where the defendant has been given Miranda

warnings and been thereby apprised of the fact that his

statements could be used against him, where the defen-

dant retains his fifth amendment privilege against self-

incrimination, and where the defendant has counsel who

might well have encouraged him to say nothing to the

prosecution with respect to his possible defenses, the

defendant’s failure in the usual case to come forward

with an alibi defense is certainly not significantly

inconsistent with his testimony as to the alibi defense at

trial. Moreover, while the record in this case is sparse

since the prosecutor never cross-examined petitioner

with respect to his failure to give the alibi defense

before the trial, the record clearly demonstrates that

petitioner’s trial counsel had deliberately withheld giving

the prosecutor notice of the petitioner’s alibi defense.5

Under such circumstances, petitioner’s pretrial failure to

come forward with his alibi defense is of extremely ques-

tionable Fa ng value, while its potential for prejudice

can hardly be doubted.

Sécond, even assuming the continuing viability of the

Raffel decision,’ the prosecutorial comments directed

5 See T.Tr., at 3-22.

6 The Raffel decision has clearly been substantially circum-

scribed insofar as it is applicable in federal courts. See United

States v. Hale, supra; Stewart v. United States, 366 U.S. 1

(1961); Grunewald v. United States, 353 U.S. 391 (1957). The

upreme Court in Hale specifically noted that since its

decision was reached on nonconstitutional grounds, there was

no need to decide whether Raffel was viable constitutional

law. 422 U.S. at 175 n.4, Under such circumstances, the

continued viability of Raffel is clearly questionable. United

States v. Vega, 589 F.2d 1147, 1152 n.3 404. Cir. 1978).

Al?

towards the petitioner’s failure to come forward prior to

trial with his alibi violated fundamental fairness. While

this case is distinguishable from Doyle in that the

silence addressed by the comment was not solely that

during the post-Miranda warning, post-arrest period,

the fact that Miranda warnings are given and that a

criminal defendant retains his fifth amendment right

against self-incrimination is of continuing relevance to

the fact of a defendant’s silence throughout the pretrial

period. Moreover, in this specific case, the record clearly

demonstrates that petitioner’s trial counsel deliberately

withheld giving notice of the alibi defense and the

identity of the alibi witness until the day of trial. In |

' making this. deliberate choice, the petitioner’s counsel

relied on his conclusion that under Wardius v. Oregon,

412 U.S. 470 (1978), the Illinois Alibi Defense statute,

Ill. Rev. Stat. ch. 38, § 114-14, was unconstitutional in its

failure to provide reciprocal discovery by the defendant

once the defendant had provided notice of his alibi.’

Under such circtmstances, we believe it was funda-

mentally unfair and a denial of due process for peti-

tioner’s silence to be used to attack his alibi offered at

trial. See Moore v. Black, 527 F.2d 1, 3-4 (6th Cir. 1975);

United States v. Brinson, 411 F.2d 1057, 1060 (6th Cir.

1969). Cf. United States v. Franklin, 586 F.2d 560, 570

(5th Cir. 1978) (questions directed towards revealing

a defendant’s general pre-trial silence are improper);

United States v. Meneses-Davila, 580 F.2d 888, 891 (5th

Cir. 1978) (without consideration of “different considera-

tions,” held prosecutorial inquiry as to defendant’s

general per silence as to exculpatory story given at

trial to a “blatant” violation of Doyle).

Accordingly, we hold the prosecutor’s comments in

closing argument which called the jury’s attention to

petitioner’s pretrial silence with respect to his alibi to be

constitutional error.

1 See T.Tr., at 3-22. The argument as to the unconstitution-

ality was upheld in People v. Fields, 59 I1].2d 516, 322 N.E.2d

33 (1975). See also United States ex rel. Hairston v. Warden,

597 F.2d 604, 608 (7th Cir. 1979); Allison v. Gray. No. 77-1543

(7th Cir. July 30, 1979).

Als

HARMLESS ERROR

Notwithstanding our conclusion that the prosecutor's

comments were constitutional error, respondent con-

tends that such-error was harmless peyene a reasonable

doubt as required by Chapman v, California, 386 U.S.

18, 24 (1967). In light of the evidence presented at trial,

we cannot agree.

The evidence presented at petitioner’s state court trial,

while clearly sufficient to sustain the jury verdict of

guilty. see People v. Smith, supra, 52 Ill.App.8d at 588,

367 N.E.2d at 760, was not exceedingly strong. The

prosecution’s only substantive witness was the robbery

victim who testified that she had viewed the defendant

during the course of the robbery for two or three

minutes. While the lighting was good, the victim

testified that the robber had been wearing e wide

brimmed hat which cast shadows over a portion of his

face. Moreover, the victim originally described the

robber as 5’8” tall, while in fact petitioner is 6’2”. Five

days after the robbery, the victim picked the petitioner’s

picture out from a set of 8 or 9 photographs. She again

identified petitioner at a line-up of 9 or 10 men some

four months later, but at this line-up all of the men were

seated thereby eee ag ey a test of the victim’s recol-

lection of the robber’s height. The only other prosecution

witness testified to having witnessed the line-up at

which the victim identified the petitioner. In opposition

to this testimony, both Ms. Walls and petitioner testi-

fied that they had been home together on the night of

the robbery.

In determining whether the error was harmless

beyond a reasonable doubt, the question is whether there

is a reasonable possibility that the error might have con-

tributed to the conviction. Fahy v. Connecticut, 375 U.S.

85, 86-87 (1963). In a trial like petitioner's, the credibili-

ty of the witnesses and of the defendant are of crucial

significance. While Ms. Walls’ testimony in support of

petitioner’s alibi was substantially impeached at trial,

we cannot conclude that the petitioner’s alibi defense

was transparently frivolous. Under all of the cir-

cumstances, where the jury would “naturally and

Al9

necessarily” have taken the prosecutor's closing

arguments as an effort to impeach petitioner's credibili-

ty and alibi defense by virtue of his pretrial silence, we

cannot conclude that the error was harmless beyond a

reasonable doubt.® See United States ex rel. Allen v.

Rowe, 591 F.2d 391, 393 (7th Cir. 1979); Chapman v.

United States, 547 F.2d 1240, 1249 (5th Cir. 1977).

Petitioner is entitled to a new trial.®

* Respondents have also argued that the comments were

harmless beyond a reasonable doubt by virtue of certain jury

instructions given by the trial judge to the oth Specifically,

respondents rely upon the instructions that the jury must find

petitioner guilty beyond a reasonable doubt from the evidence

presented at trial, and that the arguments of counsel were not

evidence. T.Tr., at 268, 275-76.

Under some circumstances, jury instructions may have a

curative effect upon prior error in referring to a defendant's

silence. See United States v. Hansen, supra, 583 F.2d at 332.

However, this rule is by no means absolute, United States v.

Buege, supra, 578 F.2d at 189; United States v. Edwards,

supra, 576 F.2d at 1154. The instructions relied upon here by

respondent were general in nature and were not directed

toward the specific issue of whether petitioner could properly

be impeached by his pretrial silence. In fact, a reading of the

entire jury instructions shows that at no time was this con-

stitutional problem addressed. We therefore find no basis for

cones ens that the jury instructions rendered the con-

stitutional error harmless beyond a reasonable doubt.

® Since the Supreme Court's holding in Doyle expressly

reserved judgment in a case such as this one, we need not ad-

dress respondents’ argument that Doyle should not be applied

retroactively.

Assuming arguendo that the issue of Doyle's rofroaciivity

was necessary to a decision of this case, we would find Doyle

retroactive. While no federal decision has to this Court's

knowledge yet decided the question of whether Doyle should

e given full retroactive effect, several decisions have in-

timated that Doyle is to be considered applicalbe to those

cases which were on appeal at the time of the poe decision.

See i v. United States, 547 F.2d 1240, 1246-47 (5th

Cir. 197 i United States v. Lenardo, 420 F Supe. 1148, 1157

D. N.J. 1976), remanded without pub. op., 542 F.2d 1168 (3d

ir. get The Seventh Circuit has recently affirmed habeas

corpus relief on Doyle grounds for an Illinois prisoner whose

(Footnote continued on following page)

A20

® continued

conviction had been affirmed by the Illinois Appellate Court

shortly before Doyle was decided, United States er rel. Allen v.

Rowe, supra, though this question was reached without discus-

sion of the retroactivity question.

While this limited authority supports the conclusion that

Doyle should be given retroactive effect at least to cases on

direct appeal at the time of the A ge decision, see United

States v. Fitzgerald, 545 F.2d 578, 582 (7th Cir. 1976), explicit

consideration of the criteria set forth by the Supreme Court in

Stovall v. Denno, 388 U.S. 293 (1967), — the conclusion

that Doyle be given retroactive effect. Insofar as the Doyle

decision rests upon the extension of the rationale of Hale of

ensuring that only probative evidence will be used at trial, the

ae ef of the Doyle rule is directed towards the reliability

of the truth-finding process at trial. Such a purpose has

sometimes been held a sufficient condition to infer retroactivi-

ty. See Chapman v. United States, 547 F.2d 1240, 1247 n.12

(Sth Cir. 1977).

Respondents contend, however, that the question of Doyle's

retroactivity should be analyzed by reference to Tehan v.

Shott, 382 U.S. 406 (1966), which denied full retroactive effect

to ey v. California, 380 U.S. 609 (1965), While it is clear

that the Griffin decision was in part premised upon the ac-

curacy of the wires process, see Johnson v. New Jersey,

884 U.S. 719, 729 (1966), the decision in Tehan to deny

retroactivity was based upon the weight of the remaining fac-

tors in the Stovall analysis, i.e., the extent of reliance upon the

old rule and the effect on the administration of justice of a

retroactive application of the new rule, 388 U.S. at 297. Un-

like the Supreme Court's findings in Tehan with respect to

retroactive application of Griffin, we do not believe that either

of these remaining factors presents a serious argument

against retroactive application. Insofar as the respondents’

reliance upon prior precedent is concerned, the Doyle decision

appears to be the logical successor to the Court’s opinion in

tranda v. Arizona, 384 U.S. 436, 468 n.37 (1966). Insofar as

“the effect on the administration of justice” by virtue of

retroactive application of Doyle is concerned, we have no

reason to believe that there have been “countless trials” where

there has been prosecutorial reference to a defendant's post-

arrest silence. Illinois law pee to Doyle had apparently

already held it to be reversible error to bring out the fact of a

defendant's silence at the time of arrest. People v. Rothe, 358

Ill. 52, 57, 192 N.E. 777 (1934).

Accordingly, were the question of retroactivity properly

before us, we would hold Doyle retroactive to apply to this

case.

A2l

Accordingly, petitioner’s motion for summary judg-

ment is granted, and the judgment of conviction is

vacated. However, the writ of habeas corpus shal] not

issue for a period of 120 days in order to afford the State

of Illinois the opportunity to initiate new trial

proceedings. If petitioner is not brought to trial within

120 days from the date of this order, the writ shall issue.

An appropriate order will enter.

_ _ /s/ HUBERT L. WILL

United States District Judge

DATED: AUG. 21, 1979

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit