State v. Devorce, 1 CA-CR 15-0751

Background

Devorce was arrested after a police officer observed a Honda behaving erratically, found the vehicle with its driver-side door open, and located Devorce outside the restaurant with car keys in his pocket.
At arrest, Sergeant P observed slurred speech and an unsteady gait; Devorce invoked his right to counsel and remained silent post-arrest. Blood drawn ~2 hours later showed BAC ~.191.
At trial Devorce testified he was not driving and that a friend, “Jay,” had been the driver. On cross-examination he said he was unsure whether he had told police that at the time of arrest.
The State recalled Sergeant P in rebuttal to testify that Devorce never told him anyone else (i.e., Jay) was driving. The State also commented on Devorce’s post-arrest silence in closing.
Devorce argued on appeal that using his post-arrest silence to impeach him violated the Fifth Amendment. The trial court did not contemporaneously object, so appellate review was for fundamental error.
The court concluded the State improperly used post-arrest silence to impeach, but affirmed because any constitutional error was not fundamental or prejudicial given overwhelming evidence of guilt.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether using Devorce’s post-arrest silence to rebut his trial testimony violated the Fifth Amendment	State: Rebuttal evidence was permissible because Devorce’s trial testimony left open that he had told police about Jay	Devorce: Post-arrest invocation of counsel and silence cannot be used to impeach him under Doyle and related precedent	Court: Admission and comments on silence violated the Fifth Amendment as impeachment; but not reversible error because harmless given the record
Standard of review and burden when no contemporaneous objection	State: No specific new argument; default is review for fundamental error	Devorce: Must show fundamental error and prejudice under Henderson	Court: Reviewed for fundamental error; defendant bears burden to prove both error and prejudice
Whether testimony that Devorce was unsure he told police about Jay amounted to a prior exculpatory statement allowing impeachment	State: Devorce’s uncertainty implied he told police; rebuttal testimony was permissible	Devorce: Uncertainty is not an assertion that he told police; Doyle exception does not apply	Court: Devorce’s trial testimony did not meet Doyle’s narrow exception—insufficient to permit impeachment with silence
Whether the constitutional violation required reversal despite error	State: Any comment was harmless in light of identification, keys, BAC, absence of other witnesses	Devorce: Violation affected credibility and requires reversal	Court: Error harmless; overwhelming evidence (ID, keys, impairment, BAC, no witness for Jay) defeats prejudice requirement

Key Cases Cited

Doyle v. Ohio, 426 U.S. 610 (1976) (post-arrest silence may not be used to impeach a criminal defendant)
State v. VanWinkle, 229 Ariz. 233 (2012) (custodial silence protected even without Miranda warnings)
State v. Routhier, 137 Ariz. 90 (1983) (silence at arrest cannot be used as inconsistent statement)
State v. Anderson, 110 Ariz. 238 (1974) (post-arrest silence is exercise of constitutional right)
State v. Stuck, 154 Ariz. 16 (1987) (voluntary post-Miranda statements may be used to impeach)
State v. Calhoun, 115 Ariz. 115 (1977) (inconsistent prior statements can be used to attack credibility)
State v. Henderson, 210 Ariz. 561 (2005) (framework for reviewing unpreserved error; defendant bears burden to show fundamental error)
State v. Thomas, 130 Ariz. 432 (1981) (definition of fundamental error and harmless-error considerations)