Sunday, April 23, 2017

Silence is . . . Problematic

To speak or not to speak? Now that
is the question . . .
State v. Ladue, 2017 VT 20

By Andrew Delaney

First, the story. Once upon a time, or more specifically, at around 11:00 p.m. in Burlington on January 27, 2014, a woman heard a crash outside of her house. She then saw a late-90s silver-colored Honda with a loud exhaust backing away from a Subaru. The police were summoned. 

Mr. Officer showed up and chatted with Ms. Witness. Mr. Officer went looking for the Honda, was not successful in his efforts, and so returned to the scene of the crime. Lo and behold, a silver Honda was parked nearby. So Mr. Officer talked to Ms. Witness and she said, “That’s the car, officer!”

So, Mr. Officer ran the plates, identified Mr. Ladue as the registered owner, and moseyed over to Mr. Ladue’s house. Mr. Ladue was not home, but his mom was. As Mr. Officer was getting into his patrol car, however, Mr. Ladue pulled into the driveway driving the silver Honda. So Mr. Officer stopped his egress and walked up the driveway and confronted Mr. Ladue. The first question Mr. Officer asked him was whether anyone else had driven the car that night. Mr. Ladue allegedly said, “No.” Mr. Officer didn’t see any visible damage to the vehicle.

You probably won’t believe this, but during the conversation, Mr. Officer “observed that defendant’s eyes were bloodshot and watery and that there was a strong odor of alcohol emanating from his breath.” Mr. Ladue admitted to having had three adult beverages earlier in the evening.

Mr. Ladue failed the field sobriety tests. Imagine that. He blew a .15 on the PBT and a .122 at the station. During the processing interview, Mr. Ladue said he drove from the hit-and-run scene to his mom’s house where he was busted by Mr. Officer. He signed a form acknowledging that he made those statements.

Mr. Ladue was charged with DUI. He filed a motion to suppress, arguing that there was no legal basis for the stop. The trial court denied the motion. The case went to jury trial. At trial, Mr. Ladue, his mom, and his cousin all testified that cousin was driving that night, not Mr. Ladue.

The jury came back with the one-word verdict that every criminal-defense lawyer dreads. Mr. Ladue moved for a new trial, arguing that two of the questions the jury asked the court during deliberations indicated that the jury had shifted the burden of proof from the state to him. The trial court denied the motion and sentenced Mr. Ladue.

Mr. Ladue appeals.

His first argument is that Mr. Officer testified about the horizontal gaze nystagmus (HGN) test in violation of the trial court’s pretrial ruling. Essentially, defense counsel raised the issue that Mr. Officer was not qualified as an expert and shouldn’t be able to testify about HGN. The State said, “That’s fine,” the judge said, “Okay,” and that was that.

Mr. Officer still talked about giving the HGN test and said something to the effect of, “Well, if I’m going to explain further, I’d have to get into the HGN and I thought we weren’t getting into that.”

Mr. Ladue argues that these statements constitute reversible error. The SCOV majority puts this in the no-harm-no-foul column. There was plenty of other evidence of Mr. Ladue’s intoxication, plus his defense was that he wasn’t driving. So that argument goes nowhere.

Mr. Ladue’s next argument is that the trial court messed up when it overruled his objection to the prosecution’s did-Mr.-Ladue-ever-contact-you-and-say-someone-else-was-driving question. Mr. Ladue argues that this impermissibly commented on Mr. Ladue’s silence and constitutes a Fifth Amendment violation. Under this SCOTUS case and this SCOV case, Mr. Ladue argues that these forays into his post-arrest silence require reversal.

Again, the majority goes with a no-harm-no-foul analysis. The majority points out that everyone knew that defendant was going to testify and that the testimony came in on redirect—essentially rehabilitating Mr. Officer after Mr. Ladue’s cross examination.

Briefly, Mr. Officer testified about a bunch of stuff on direct, but not Mr. Ladue’s silence. On cross, Mr. Officer admitted that he didn’t have the vehicle in his line of sight at all times and that something could have happened in the two or three seconds between when the vehicle pulled into the driveway and Mr. Officer approached Mr. Ladue. On redirect, the prosecutor got into the whole well-did-he-ever-say-anything-to-you-about-someone-else-driving thing.

The majority makes a distinction between impeachment with post-Miranda silence and cross-examination on an exculpatory told-in-court story where Miranda has been waived. I’m just taking a stab here—because I often just skim the opinion before working my way through it—but I’m guessing that this is about where the dissenters get cross-eyed.

The general idea, according to the majority, is that post-Miranda-warning silence ought not be commented on but without the warning, cross-examination as to post arrest silence doesn’t violate due process. It’s almost a reverse Miranda analysis—as if the warning induces silence but the lack of a warning opens a defendant’s silence to impeachment usage. Furthermore, waiving the right opens up “silence” as an acceptable area of inquiry.

I try to refrain from commenting in the middle of a summary but I do feel a need to jump in here. This analysis doesn’t make sense. Miranda is not some kind of magic invocation that changes the dynamic between law-enforcement officer and detainee. One of the very first things most criminal defendants say to me during our initial meeting is, “And they didn’t even read me my rights!” Point is, most folks are at least aware of their right to remain silent. They also rarely exercise it but they at least know about it. And more importantly, the majority seems to be glossing over the whole the-defendant-ain’t-even-taken-the-stand-yet thing.

Now here, Mr. Ladue supposedly admitted driving to the officer during their first meeting—after being given his Miranda warnings—and then changed his story at trial. Of course, Mr. Ladue’s story was that he told the officer he wasn’t driving in the first place. The majority notes that this is inconsistent with Mr. Officer’s testimony as well as the DUI form that Mr. Ladue signed.

The majority reasons that once a defendant chooses to testify, he has the same obligation as any other witness to testify truthfully and accurately. And that means that the prosecution can possibly offer the you-didn’t-offer-this-explanation-to-the-police-before-did-you? testimony. The majority reasons that here, Mr. Ladue waived his right to remain silent and gave statements that he later contradicted. Thus, it follows—according to the majority—that the prosecution probably can comment on a defendant’s failure to offer an exculpatory statement before the eleventh hour.

The majority spends a paragraph or four attacking the dissent’s reasoning. The majority opines that a defendant’s silence is not always taboo and the dissent doesn’t get the nuance here. The majority asserts that several of the dissent’s cited cases don’t have inconsistent statements or a Miranda waiver (or both), so they’re distinguishable.

All this leads up to the majority’s ultimate conclusion that the error, if any, was harmless beyond a reasonable doubt. In the majority’s view, Mr. Ladue’s defense wasn’t plausible, and this is illustrated by the twelve-minute guilty verdict.

There was a two- or three-second period during which Mr. Ladue’s cousin would’ve had to hop out of the car and hide, Mr. Ladue would’ve had to hop into the driver’s seat, and then get out of the driver’s door. Plus, initially, he admitted to driving. So, even if it was an error to admit the officer’s testimony about the lack of an earlier explanation to the police, it was a harmless error.

The majority next turns to opening and closing statements. No objections were made at trial so we’re in why-even-bother territory. I don’t mean to be too cynical about it, but clear error is one of those standards that you don’t want to meet alone in a dark alley.

Among other things, during the prosecutor’s opening statement, he told the jurors that they were going to hear the cousin-was-driving story, and that Mr. Ladue never told the police that story in the meantime. During closing, the prosecutor pointed out that Mr. Ladue claimed that the officer lied but never made a complaint to the police department. The prosecutor also commented about possible motivations for the “I wasn’t driving” story—that Mr. Ladue didn’t want to lose his membership in the Vermont National Guard and that Mr. Ladue’s mom probably didn’t want to potentially lose support.

The majority finds no plain error. While the majority acknowledges that some of the commentary was improper, given all the circumstances, the majority reasons that none of the commentary was so bad that it requires reversal. But we already kinda knew that wasn’t going anywhere.

The final beef about the reasonable doubt instruction (“great certainty” as opposed to “utmost certainty”) gets a throwaway citation to this case and that’s that. The majority affirms.

Justice Skoglund, joined by Justice Robinson, dissents. I won’t reinvent the wheel: “The majority improperly conflates a prosecutor’s ability to impeach a defendant using the defendant’s post-Miranda statements with prosecutorial comments intended to elicit meaning from a defendant’s post-Miranda silence.” The dissent says, and I’m paraphrasing, “Look, the prosecutor used Mr. Ladue’s silence in opening, case in chief, and closing. That ain’t right.”

The dissent points out that a “defendant’s post-Miranda silence generally cannot be used.” And it can’t be used to impeach a defendant. Now, post-Miranda statements can be used for impeachment in limited circumstances. A prosecutor can’t draw meaning from a defendant’s post-Miranda silence, however.

The dissent goes through a lot of case law, summarizing as follows: “Thus . . . the prohibition against using a defendant’s post-Miranda silence grew from the core privilege against self-incrimination guaranteed by the Fifth Amendment . . . but now rests on the implicit assurances guaranteed by Miranda warnings and protected by the Due Process Clause.”

The dissent is particularly concerned that the State raised Mr. Ladue’s silence in its case in chief. The majority’s reasoning that because the State knew about Mr. Ladue’s trial strategy and therefore could get into Mr. Ladue’s silence is wholly unsupported. The majority cites no cases for this proposition.

A defendant’s testimony at a suppression hearing can’t afterwards be used against him at trial unless he doesn’t object. And even assuming that redirect is legally distinct from direct, the prosecutor’s question was specifically designed to create an inference of guilt from Mr. Ladue’s post-arrest silence. Inconsistent statements can be used in a limited manner for impeachment, but a defendant’s post-arrest silence cannot. This was error and cannot stand.

The dissent further opines that the majority’s harmless-error analysis is flawed. The proper analysis isn’t whether the conviction could’ve happened without the offending evidence—that’s just one of five factors to be considered in this situation. Those other factors are: (1) the use of the post-arrest silence; (2) who elected to pursue the line of questioning; (3) the frequency and intensity of the reference; and (4) the trial judge’s options for mistrial or curative instructions. It’s the State’s burden to show there was no injury as a result of the error, not the defendant’s. The dissent points out that when the other factors are brought into play, the error isn’t harmless—the State elected to pursue the line of questioning and the court didn’t give a curative instruction. The State also frequently referred to Mr. Ladue’s silence. The dissent points out that the majority’s defendant’s-story-was-implausible analysis improperly assumes that Mr. Officer was telling the truth and the other three witnesses were lying.

The State bolstered Mr. Officer’s testimony with Mr. Ladue’s silence and this was improper. The State brought up Mr. Ladue’s silence during opening, to bolster Mr. Officer’s two-or-three-seconds story, during Mr., Ladue’s cross exam, and in closing. “Together these statements demonstrate that defendant’s post-Miranda silence was a central theme of the State’s case and aimed at influencing the jury’s credibility determination.”

The dissent further points out that the majority’s seeming approval of the preemptive use of Mr. Ladue’s silence—because it knew Mr. Ladue was going to testify later—is not how this is supposed to work. We don’t allow “relation back” approval of impermissible evidence.

Again, I find myself on team dissent here. Maybe it’s my bias as a criminal-defense attorney. But I don’t think it’s okay to shift the burden in a criminal case to require a defendant to provide a plausible exculpatory statement or get his silence used against him. This decision shifts the playing field in favor of the State. I’m also well aware that the beyond-a-reasonable-doubt burden of proof sounds nice but the defendant that doesn’t put on a strong defense does so at his peril. This practical consideration—the fact that jurors don’t put a whole lot of exculpatory stock in a defendant’s silence—in my view, means that the constitutional protections we have in place should not be set aside lightly.

What do you think? Let us know below.

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