silence "in the face of an accusation expressed directly to him . . . charging him with the crime . . . may be considered against him as indicating an admission that the accusation thus made was true."
2. Fifth Amendment Analysis
Petitioner claims that the prosecutor's reference to his post-Miranda silence as indicative of guilt, and the trial court's instruction that the jury could so construe his silence, violated his fifth amendment right against self-incrimination. The Court agrees.
It is a fundamental principle of due process that the government cannot use, at trial, a defendant's post-Miranda silence as substantive evidence of guilt. "It does not comport with due process to permit the prosecution during trial to call attention to [the defendant's] silence . . . ." United States v. Kallin, 50 F.3d 689, 95 C.D.O.S. 1985 (9th Cir. Mar. 20, 1995) (quoting Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976)). Silence in the wake of Miranda warnings "may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested." Doyle, 426 U.S. at 617.
Doyle and the majority of cases interpreting it concern a defendant's postarrest failure to explain his conduct to the police. In this case, the prosecutor referred to petitioner's silence only in regard to petitioner's refusal to counter an accusation from his daughter.
California state courts have held that Doyle does not apply to a defendant's silence invoked by a private party absent a showing that such conduct was an assertion of his rights to silence and counsel. See, e.g., People v. Eshelman, 225 Cal. App. 3d 1513, 1520, 275 Cal. Rptr. 810 (1990). On the other hand, when the evidence demonstrates that the defendant's silence in front of a private party results primarily from the conscious exercise of his constitutional rights, then Doyle applies. Id.; see also People v. Preston, 9 Cal. 3d 308, 313-14, 107 Cal. Rptr. 300, 508 P.2d 300 (1973) ("If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.") (emphasis added).
The court of appeal held that there could be Doyle error even if petitioner's conversation was with a private party, his daughter Franklin-Lipsker, and not the government: "The admissibility of evidence of a defendant's silence does not depend strictly upon who were parties to the conversation." Opinion at 30-31. The State concedes this proposition: the prosecution may not use a defendant's invocation of his right to remain silent subsequent to his receipt of Miranda warnings as substantive evidence of guilt, even when the questioner is a private party, if it appears that the defendant is relying on his fifth amendment right to remain silent. Answer at 38.
Respondent argued on appeal that evidence of petitioner's jailhouse conversation with Franklin-Lipsker was admissible as an adoptive admission with no implication of his right to remain silent. The court of appeal found otherwise. In its opinion, the state court made the following determination:
In pointing to the sign ["Conversations May Be Monitored"], petitioner was relying on his privilege against self-incrimination. A critical factor here is that when Eileen implored petitioner to admit the murder of Susan, petitioner did not merely remain mute but pointed to the sign indicating that jailhouse conversations might be monitored.
Opinion at 32 (emphasis added). Therefore, the court of appeal found that the trial court had committed Doyle error by permitting the introduction of evidence of petitioner's silence.
Petitioner argues that the state court's conclusion that petitioner was relying on his privilege against self-incrimination is a factual determination entitled to a presumption of correctness by virtue of 28 U.S.C. § 2254(d). "A finding as to a person's motivation in taking a particular action at a particular time plainly concerns an issue of historical fact which, because it was resolved by the state Court of Appeal, must be adopted by this Court." Pet.'s Traverse, at 4; cf. Cabana v. Bullock, 474 U.S. 376, 388 n.5, 389, 88 L. Ed. 2d 704, 106 S. Ct. 689 (1986) (stating that factual findings of intent going to culpability could be decided by a state appellate court where no state or federal law specified who must make the findings, and that presumption of correctness would apply if the factfinding was "adequate"). As California courts have framed the issue, the question whether a defendant intended to invoke his fifth amendment right to remain silent appears to be a factual question entitled to a presumption of correctness. As such, the Court accepts the state court's finding that, by pointing to the sign, Franklin intended to invoke his right to remain silent.
Even if it is a question of law or mixed question of fact and law subject to de novo review, cf. Miller v. Fenton, 474 U.S. at 116 (holding that the voluntariness of a confession is not a factual issue entitled to a presumption of correctness under 28 U.S.C. § 2254(d), but is a legal question meriting independent consideration in a federal habeas corpus proceeding), this Court finds that petitioner invoked his fifth amendment right to remain silent. Petitioner chose to remain silent, knowing that he was in custody and that the government was listening to his calls. In declining to answer his daughter's question, Franklin explicitly pointed to the sign saying that the government monitored conversations. His pointing to the sign indicates that the desire not to talk to the government was his motivating factor in remaining silent. If this is not an invocation of the right to remain silent, it is difficult for the Court to imagine what would be. Surely petitioner need not state, "I am not answering your question, Eileen, because I am invoking my fifth amendment right against self-incrimination" in order not to have his silence used against him. The compelling inference to be drawn from Franklin's conduct is that he was relying on the right to silence guaranteed by the fifth amendment. People v. Preston, 9 Cal. 3d 308, 313-14, 107 Cal. Rptr. 300, 508 P.2d 300 (1973).
Even if petitioner had not pointed at the sign, the Court believes that the circumstances are such that it would have been improper for the government to use petitioner's silence against him at trial. Doyle explains that the state may not use a defendant's post-Miranda silence against him at trial because silence in the wake of Miranda warnings is "insolubly ambiguous" and "may be nothing more than the arrestee's exercise of these Miranda rights." Doyle, 426 U.S. at 617. Doyle does not place a burden on the defendant to prove that he was exercising his Miranda rights in remaining silent. Because post-Miranda silence is "insolubly ambiguous," such silence may not be used against the defendant at trial. When a defendant is in the presence of the government, he has the right to remain silent in the face of questioning, whether the questioning is from a private individual or the police. Although the government was not visibly present when Franklin-Lipsker questioned Franklin, the government was aubidly present. Franklin knew that the government could be monitoring his conversation. Therefore, his silence may not be used against him at trial.
For these reasons, the Court concludes that the trial court violated petitioner's privilege against self-incrimination by allowing the state to present evidence of petitioner's failure to respond to Franklin-Lipsker's accusation and then to argue that his silence was indicative of guilt.
3. Harmless Error
The court of appeal agreed that Doyle error had occurred. Opinion at 32. The court of appeal continued:
We are fully aware that much more than mere passing reference was made to appellant's silence. The prosecution presented the evidence of appellant's failure to respond to Eileen's accusation, then emphasized it in closing argument. An instruction was also given to the jury to consider an adoptive admission, if found, as indicative of the truth of the accusation, thus compounding the impact of the improper use of appellant's silence.
In spite of this, the court of appeal deemed the error harmless. Opinion at 33. Engaging in a de novo analysis of prejudice following a full review of the record, Dickson v. Sullivan, 849 F.2d 403 (9th Cir. 1988), this Court emphatically disagrees that the Doyle violation constituted harmless error. Doyle error is "trial error" subject to harmless error review under Brecht, 123 L. Ed. 2d 353, 113 S. Ct. 1710, 1717 (1993). Brecht requires that a conviction be overturned when the trial error "'had substantial and injurious effect or influence in determining the jury's verdict.'" Id. (quoting Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)). This is just such an error. It is difficult to imagine a more egregious Doyle error or one that so infected the entire conduct of a trial. In the context of a substantial challenge to the credibility of Franklin-Lipsker as already described, the prosecution told the jury repeatedly that petitioner had remained silent in the face of an accusation of guilt. In closing argument, the prosecutor argued that Franklin's invocation of his right to remain silent "compellingly" proved his guilt and was "worth its weight in gold when you put it into the equation of proof beyond a reasonable doubt." The trial court, after erroneously admitting the evidence, rather than giving a curative instruction as it should have, told the jury they could consider petitioner's silence as evidence of his guilt.
In United States v. Kallin, 50 F.3d 689, 95 C.D.O.S. 1985 (9th Cir. Mar. 20, 1995), the Ninth Circuit recently addressed a similar situation involving the prosecution's improper comment on a defendant's right to remain silent. Kallin was convicted of attempted tax evasion and subscribing to a false tax return. "During cross-examination of Kallin and during its closing argument, the government repeatedly commented on his failure to come forward" with an explanation in the face of evidence against him and on the fact that he hired a lawyer. Id. at 1986. The trial court instructed the jury to disregard the testimony. On appeal, the government admitted that it had violated Kallin's rights at trial. The government argued, however, that the error was harmless. The court of appeals rejected this argument. The court held that the comment, even in the context of a curative instruction being given, was in itself prejudicial enough to require reversal.
First, the court noted that the prosecutor's impermissible references to Kallin's silence were not inadvertent but were "calculated so that an inappropriate 'inference of guilt from silence was stressed to the jury. . . .'" Id. at 1987 (quoting United States v. Foster, 985 F.2d 466, 468 (9th Cir. 1993)). Moreover, the impermissible implication was emphasized during the prosecutor's closing argument. Id. The instant case is similar, but even more prejudicial. The prosecutor's impermissible references to petitioner's silence were not inadvertent but were calculated to make the jury believe that the silence "compellingly" proved petitioner's guilt. Kallin, 50 F.3d at , 95 C.D.O.S. at 1987; see also Baker v. United States, 999 F.2d 412, 416 (9th Cir. 1993) (directing the reviewing court to consider "whether an inference of guilt from silence was stressed to the jury"). Moreover, the impermissible references to petitioner's silence were emphasized during closing argument. Kallin, 50 F.3d at , 95 C.D.O.S. at 1987; see also United States v. Kojayan, 8 F.3d 1315, 1318 (9th Cir. 1993) (in assessing prejudice, courts must remember that "closing argument matters; statements from the prosecutor matter a great deal"). Four such comments were made during closing argument, including the comment that Franklin's silence was "worth its weight in gold when you put it into the equation of proof beyond a reasonable doubt." Cf. Baker, 999 F.2d at 415-16 (finding two references to defendant's silence in closing rebuttal argument "extensive and prejudicial"); United States v. Newman, 943 F.2d 1155 (9th Cir. 1991) (finding three references to defendant's silence "extensive and prejudicial").
In Kallin, the government suggested that the trial court's instruction directing the jury to disregard the impermissible questioning and testimony cured the due process error. The court disagreed, noting that the charge to the jury was not contemporaneous with the error and itself "reiterated the impermissible content of the testimony." Kallin, 50 F.3d at , 95 C.D.O.S. at 1987. At petitioner's trial, the trial court's instruction was all the more damaging. Instead of providing a curative instruction, the trial court explicitly instructed the jury that they could consider petitioner's silence as evidence of his guilt. The Court is aware of no case where the trial court explicitly instructed the jury that they could consider petitioner's silence as evidence of his guilt in which the constitutional violation was found to be harmless error.
Finally, the government argues that regardless of the Doyle violation, petitioner would have been convicted--the case against him was simply overwhelming. The Ninth Circuit rejected this argument in Kallin and Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993), cert. denied, 127 L. Ed. 2d 647, 114 S. Ct. 1294 (1994). In Jeffries, the Court reversed on habeas corpus a state conviction marred by prosecutorial comment on the defendant's fifth amendment right to remain silent:
The inquiry cannot be merely whether there was enough to support the result apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.