Because the judgment in this case was based upon circumstantial evidence and because error of the type alleged could tip the scales; we shall consider the issue to determine whether there was error affecting substantial rights of the defendant. The defendant relies primarily upon State v. Butler, 512 S.W.2d 466 (Mo.App. 1974). In that case defendant fled the jurisdiction.
To similar effect see State v. Davison, 457 S.W.2d 674, 676[2] (Mo. 1970). In State v. Butler, 512 S.W.2d 466 (Mo.App. 1974), the prosecutor, in his closing argument, said: "Believe me, I am not arguing that he had to tell anybody. I am simply saying that he didn't.
State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); U.S. v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); State v. Dodson, 595 S.W.2d 59, 61 (Mo.App. 1980). Stuart, supra, undoubtedly states the general rule, and it and the other cases cited by Outley ( Doyle v. Ohio, supra; U.S. v. Hale, supra; State v. Roth, 549 S.W.2d 652 (Mo.App. 1977); State v. Foley, 144 Mo. 600, 46 S.W. 733 (1898); State v. Elmore, 467 S.W.2d 915 (Mo. 1971); State v. Butler, 512 S.W.2d 466 (Mo.App. 1974)) are cases where, prior to trial, the defendant remained silent. The rationale for excluding reference to such silences is that, because of the exercise of Miranda rights, "every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested."
On rebuttal, the officer testified that he had asked defendant why he was carrying a gun, but he did not give an answer. The objection and request for mistrial were overruled, which the Supreme Court held to be reversible error, quoting at page 427[4], State v. Bowdry, 346 Mo. 1090, 145 S.W.2d 127, l.c. 129, 130 (1940), "`* * * in Missouri the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make any statement.'" Although there was an objection sustained to a question about the accused's silence, the court in State v. Butler, 512 S.W.2d 466 (Mo.App. 1974), found reversible error because of reference thereto in the state's closing argument. State v. Roth, 549 S.W.2d 652 (Mo.App. 1977), held that a defendant does not waive his pre-trial silence by his appearance on the witness stand, and the case was reversed and remanded because of a reference to his silence made in the state's closing argument.
456 S.W.2d 22 [3, 4]. In view of Stuart, State v. Elmore, 467 S.W.2d 915 (Mo. 1971); State v. Butler, 512 S.W.2d 466 (Mo.App. 1974); State v. Pogue, 563 S.W.2d 544 (Mo.App. 1978) and State v. Roth, 549 S.W.2d 652 (Mo.App. 1977) the State concedes the question was error which elicited the response from Trooper Cossins that Givan did not make a statement when arrested. The State correctly asserts under Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and State v. Peters, 545 S.W.2d 414 (Mo.App. 1976) the only question is whether or not the error is harmless beyond a reasonable doubt.
Such silence may not be shown if it occurred while an arrest is being made or after arrest, or when defendant is in custody. State v. Butler, 512 S.W.2d 466 (Mo.App. 1974) [1, 3]. Defendant had not been placed under arrest when the police officer first made an inquiry. The police officer was newly-arrived on the scene and his question was of a generally investigatory nature.
It is clear in Missouri that the silence of an accused when not under arrest and in circumstances such that only a guilty party would remain silent, is admissible as being in the nature of an admission against interest. State v. Butler, 512 S.W.2d 466 (Mo.App. 1974) [1, 3]. It is equally clear that such silence may not be shown while an arrest is being made or after arrest, or when the defendant is "in custody." State v. Butler, supra; State v. Taylor, 472 S.W.2d 395 (Mo. 1971) [1]; State v. Starkey, 536 S.W.2d 858 (Mo.App. 1976) [1, 2]; State v. Burnett, 429 S.W.2d 239 (Mo. 1968) [2]. Defendant relies heavily upon the fact that he was under arrest and in custody at the time the silence occurred.
We hold that the use for impeachment purposes of petitioner's silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. It is evident, therefore, that prosecution impeachment of the post-arrest silence of an accused not only violates the self-incrimination clauses of the Fifth Amendment to the Federal Constitution and Article 1, § 19 of the Missouri Constitution [ Stuart, Elmore, Foley, supra, and State v. Butler, 512 S.W.2d 466 (Mo.App. 1974)], but since Miranda also results in denial of constitutional due process. We are compelled to conclude that the closing argument of the prosecutor which referred to the post-arrest silence of the defendant prejudiced the jury verdict of guilt, unless — as the prosecutor contends — the defendant provoked his retaliation.
The thrust of the defendant's single point of error is that the cross examination of the defendant violated his right to remain silent. Cited by defendant are Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); State v. Butler, 512 S.W.2d 466 (Mo.App. 1974); State v. Elmore, 467 S.W.2d 915, 916 (Mo. 1971). All of these cases involve a situation where the defendant has chosen to remain silent upon interrogation and then, upon a trial where the defendant testifies, the prosecution offers the silence as impeachment of trial testimony.
State v. Thomas, 440 S.W.2d 467 (Mo. 1969). See also: State v. Butler, 512 S.W.2d 466 (Mo.App. 1974); State v. Hornbeck, 492 S.W.2d 802 (Mo. 1973). To his bare silence must here be added the further facts that the two were performing a joint pantomime, that defendant affirmatively answered "Yeah, man" to one of Handley's statements, and that defendant himself made a direct, express admission that he had shot a man.