Opinion
Criminal No. 02-107 (JRT/FLN)
April 1, 2003
Richard Newberry, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff.
Andrew S. Birrell and Eric L. Newmark, BIRRELL NEWMARK, Minneapolis, MN, for defendant.
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL
Defendant Catherine Mary Wright was charged in a three-count indictment with (1) engaging in a sexual act with a ward, (2) engaging in sexual contact with a ward, and (3) providing contraband to an inmate. At the close of the trial, the Court dismissed the charge of providing contraband to an inmate, and the jury found the defendant not guilty of engaging in a sexual act with a ward, and guilty of the charge of engaging in sexual contact with a ward.
The defendant has now filed a motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. The Court denies the motion.
ANALYSIS
Defendant argues that a planned argument of the prosecutor and the testimony of two witnesses during trial improperly suggested to the jury that the defendant's silence was evidence of her guilt. Defendant suggests that the cumulative effect of these incidents during trial violated her constitutional due process rights under the rule of Doyle v. Ohio, 426 U.S. 610 (1976).
The first instance involved a "time line" that the prosecutor planned to use as a demonstrative exhibit. Outside of the presence of the jury, the defendant objected, arguing that the jury could draw an adverse inference from any reference to defendant's choice to remain silent. The Court agreed with defendant's view and the objectionable items were removed from the "time line" and never seen by the jury. As a result, the first instance could not have been part of any cumulative effect on the jury.
The second instance involved the testimony of witness Michael Tate, who testified that when he was interviewed by the investigator, he was led to believe that the defendant had made a statement to investigators and had confessed to a relationship with Tate. As a result of being "misled," Tate testified, he made admissions to the investigator allegedly confirming the relationship with the defendant. The Court denied defendant's motion for a mistrial based on this testimony and at the defendant's request, specifically instructed the jury that defendant had not made any statement to the investigator in connection with the investigation.
The third instance involved the testimony of Warden Constance Reece. The prosecutor questioned Warden Reece as to what she had done to corroborate information provided to prison officials by inmate LeRoy Jones concerning the alleged relationship between the defendant and inmate Tate. Included in the Warden's response was the following statement:
Umm, I was unable to, umm, was not able to, umm, obtain any information from Ms. Wright.
Defendant's objection to the improper answer was sustained, and the jury was later instructed that it must disregard any question or answer for which an objection was sustained.
Although the defendant concedes that the prosecutor did not comment on defendant's silence and did not in any way use her silence for impeachment purposes, her primary argument is that the jury heard conflicting stories about her silence — Tate's statement that he was told that she confessed, and Reece's statement that she was unable to obtain any information from defendant. The cumulative effect of the alleged "conflicting" testimony resulted, according to defendant, in her silence being used against her in violation of Doyle v. Ohio.
Doyle holds that when a person is arrested and is informed that he has the right to remain silent and does in fact remain silent, a prosecutor cannot call attention during the trial to the silence in order to impeach the defendant's trial testimony. Id. at 618; United States v. Allee, 299 F.3d 996, 1001 (8th Cir. 2002). Under Doyle, the fact of post-arrest silence cannot be submitted to the jury as evidence from which the jury would be allowed to draw any permissible inference.
No Doyle violation occurred in this case. As a threshold matter, it is not clear to the Court from the record whether defendant was ever arrested or ever told that she had the right to remain silent. The Doyle decision places great weight on the fundamental unfairness of assuring a suspect that his silence will not be used against him and then using his silence to impeach his testimony at trial. In a later decision, the Supreme Court referred to the Miranda warning as a "prerequisite" for a Doyle violation. Greer v. Miller, 483 U.S. 756, 763 (1987). Second, the prosecutor in this case did not solicit any testimony concerning the defendant's decision to remain silent. It is not clear that Doyle applies in a case in which the prosecutor did not ever raise the defendant's silence in front of the jury. In addition, the Court specifically instructed the jury that defendant had an absolute right under the Constitution not to testify, and that no inference of any kind may be drawn from the fact that a defendant decided to exercise her privilege under the Constitution and did not testify.
This case presents a situation much more analogous to the circumstances in Greer in which the Supreme Court declined to find a Doyle violation. In Greer, no impeachment inquiry was permitted, and the trial court had sustained an objection to the only question that touched upon the defendant's silence. Id. at 766. Similarly, in this case, the Court did not permit any impeachment inquiry, sustained the defendant's objection to the unsolicited answer that touched upon defendant's post-arrest silence and told the jury to disregard the answer, and permitted no further questioning or argument concerning defendant's silence. See, e.g., United States v. Onofre-Espinoza, No. 98-2012, 1998 WL 658261, at **1 (8th Cir. Sept. 18, 1998) (Table decision) (no Doyle violation where the district court sustained the objection to a question implicitly referring to the defendant's post-arrest silence, the line of questioning ceased, and no specific reference to post-arrest silence occurred during closing argument).
The Court did instruct the jury that the defendant had not made any statements to the investigator, but such an instruction was requested by the defendant and was appropriate in order to ensure that Tate's testimony would not result in the jury believing the defendant had confessed to the relationship.
The Court finds no violation of defendant's constitutional due process rights and as a result, defendant's motion for a new trial is denied.
ORDER
Based upon the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that defendant's motion for a new trial [Docket No. 32] is DENIED.