*2
BAUER,
Before
EASTERBROOK, and
RIPPLE,
Judges.
Circuit
EASTERBROOK,
Judge.
Circuit
Kenneth Wallace gave a
ride
two
strangers
paid
the ultimate penalty for
this kindness.
Splunge
Charles
and Tara
Fox, shopping at
liquor
April 1986,
store in
asked Wallace for a ride to a party; he
agreed.
got
Fox
in the front seat and
Splunge in the back. When Wallace arrived
at the
him,
destination
gave
Fox
Fox de-
money
manded
and shot Wallace twice with
Splunge’s gun when he
Splunge
resisted.
ejected
(still
Wallace
alive but mortally
wounded),
plаce
took his
seat,
in the driver’s
away.
drove
Several witnesses saw
these
events.
pursued
Another driver
Splunge
sped
as he
away.
negoti-
Unable to
corner,
ate a
Splunge crashed into a house.
He and
foot;
Fox ran away on
both were
captured
day.
the next
pleaded
guilty
to murder. For his part, Splunge denies
knowing
planned
that Fox
to rob or shoot the
driver,
panic
attributes
rather than
(with
plan
felonious
his decision to flee
car)
Wallace’s
and leave Wallace to die.
Indiana has
Splunge
tried
repeatedly on a
charge
felony
In
murder.
each trial Fox
testified that
gave her the gun and
planned
robbery.
two
She also
[prosecutor]: Let me
BY MR.
gun
D’AMOUR
to use the
planned
she
has testified
clarify, attempt
clarify.
victim,
it went off
and that
only to scare
1986, only four
August
struggle.
during a
Q.
that he was
Did Mr.
indicate
killing, a
convicted
after the
months
rights
exercising his Fifth Amendment
to 60
was sentenced
like Fox he
Splunge, and
point?
at that
*3
af
judgment was
years’ imprisonment.
Yes;
me that
at that time he advised
A.
Indiana, 526
Supreme Court of
by the
firmed
a
give
want to
statement.
he did not
(Ind.1988),
years
four
later
but
977
N.E.2d
attorney.
to talk to an
He wanted
spoiled the
Batson error
held
a
we
Honor,
Your
that was
BY MR. SHAW:
v.
Splunge
required a retrial.
and
verdict
to,
objecting
and I
what was
Cir.1992).
Clark,
At the
F.2d 705
960
ask that the answer be stricken
jury was
trials
first of three
the record.
ended
a
The next
reach
verdict.
unable to
THE
Overruled.
BY
COURT:
a mistri
began: declared
before it
Q.
you subsequently again talk tо
Did
A
a
selection.
al because of
Splunge?
Mr.
conviction,
60-year
another
produced
third
a
Yes; my supervisor, Lieutenant Stin-
A.
sentence,
by the
another affirmance
and
evening.
in that
(Ind.
son
also came
had
641 N.E.2d
highest court.
628
state’s
downtown, I
de-
I was
Since
1994).
this
now asks us to hold that
Splunge
my
start on
go
back and
cided
upset,
must be
conviction likewise
latest
And, while I was in the
paperwork.
The district court
yet
trial held.
another
doing my paperwork, Lieu-
process of
cor
pеtition for a writ of habeas
his
denied
me that Mr.
tenant Stinson advised
(N.D.Ind.1996). Be
F.Supp. 1137
pus. 929
changed
That
Splunge
his mind.
had
April
before
petition was filed
cause the
speak
to me.
he now wished
version of
not use the amended
we do
2254(d).
Murphy,
§
Lindh v.
See
28 U.S.C.
that he now
Splunge
the officer
want-
told
320, 117
481
S.Ct.
warnings were read
to talk.
ed
Miranda
(1997).
rights
gave a
Splunge waived his
again;
trial.
that was introduced
“[tjhis
statement
counsel,
is a
According to defense
that he was in the
Splunge told
officer
deliberate,
reрeated
egregious, and
case
driver,
shot the
when
robbed and
car
example of
prosecutorial abuse.” The lead
away
left
he
the car
and that
drove
Splunge
attaches
the behavior which
Splunge also
in the street.
conceded
Wallace
po-
asked of a
question
is a
characterization
gun
had
weapon was
he
that the murder
testify
to a statement
lice officer who was
weeks, though he denied
possessed for a few
shortly after his
Splunge made
arrest.
possession
into Fox’s
knowing how it came
asked the witness
planned to rob
knowing that Fox
and denied
rights,
informed of
been
their benefactor.
this ensued:
appear to
what
Q.
did he
understand
prose-
And
support
argument
him?
you
reading
Constitution,
were
coun-
cutor violated the
this circuit for the
decisions of
sel cite
few
time; yes.
A. The first
arrest
not be
proposition
silence at
Q.
right.
sign
he
that?
All
Did
trial.
claim of innocence at
impeach
used
time; no.
A. Not at thаt
footing Doyle
a firm
proposition has
That
Please,
hap-
explain
Q. Okay.
to me what
Ohio,
49
U.S.
pened?
(1976),
just poses
but
the critical
L.Ed.2d 91
time,
...
Mr.
A. At that
using post-ar-
question: way? Perhaps
the forbidden
Your
rest silence in
[defense counsel]:
BY MR. SHAW
jury that
trying to
Honor,
he was
show
object to this.
we would
and that
result-
rights had
honored
rights,
his Fifth Amendment
exercised
voluntary.
See Crane
so,
ing statement was
and that
to do
he had
Kentucky,
S.Ct.
be used.
cannot
perhaps
just
Doyle
Or
he was
What
stands
is that arrest-time
trying
placе
in context
the statement
may not
impeach
silence
be used to
trial-time
Splunge ultimately
made.
does not
testimony by asking something like: “If the
reveal whether such references violate the
version of
you
just
events to which
have
Constitution —but later cases do.
true, why
you
testified
didn’t
tell this to
you
as soon as
were arrested?”
Charles,
Anderson
Miller,
After Charles and Greer v.
(1980),
S.Ct.
L.Ed.2d
holds that
prosecutor may
inform the
about
jury’s knowledge
suspect
initially
sequence
entire
preceding a
рroblem,
remained silent is not a
when that
statement,
post-arrest
even
the sus-
though
knowledge is not used to subvert the defense
pect declined to answer some of
queries.
*4
in Doyle’s fashion. Miller
testified
his own
Charles,
defense,
who testified in his own
defense,
prosecutor
and the
(in
asked on cross-
jury
response
told the
to
the
why
story
examination
he hadn’t told his
at
questions)
initially
that he was
silent and
arrest,
the
maneuvering
up
time
to
set
an
my
to talk
attorney they
“[w]hen tried
inference,
judge
аdverse
but the
cut off
wouldn’t let me see him
the
after
punch
just
keep
and the
quiet.”
406,100
said to
line was never
447
at
U.S.
delivered. Our
prosecu
S.Ct. 2180.
appeals
The court of
held
the
held that
tor
the
just by
this information
violated
Constitution
separated
asking
could be
from
question,
statements,
jury
Charles’s affirmative
because the
learned that
its
introduction
the defendant remained
was constitutional error. The
silent when arrested.
Supreme
Greer,
(7th Cir.1986)
Court disagreed,
Miller v.
789
a reason
F.2d 438
for
(en banc).
applicable
Splunge’s
Supreme
case too.
disagreed,
Court
holding that
judge
because the
blocked the
Although Doyle
precursor
and its
United
prosecutor
arguing
from
an adverse infer
Hale,
171,
2133,
States v.
422 U.S.
95 S.Ct.
45
ence, there was no
problem.
constitutional
(1975),
L.Ed.2d 99
suggest
that the
trial;
Splunge’s
Just so at
prosecutor
with
reference to silence is its “insoluble
ask the
from Splunge’s
infer
ambiguity”,
Supreme
jettisoned
Court
initial silence that what he said later is unre
justification
Weir,
in Fletcher v.
455 U.S.
liаble and did not use “defendant’s refusal to
603,
1309,
102
(1982),
S.Ct.
2180. The Supreme thought Court Splunge’s argument Behind unnec- ais belief essary to bifurcate the events that a knowledge suspect’s into Charles’s of silence (excluded) (admit- silence and his thing statements the same constitutionally as the for ted); complete sequence helped put the bidden “comment on” silence. That is not statements in context. Just so with how Doyle. Court understands silence, shortly initial followed a The most summary Court’s recent of the statement. scope foundаtion and Doyle’s rule is this:
373 come, fade or witnesses die. as memories purposes [a impeachment use for “[T]he up walked though silence, But of arrest time defendant’s] brink, fall he did not over. warnings, vio- receiving Miranda of the Clause Due Process late^] principal argument Splunge’s second rule “rests This Amendment.” Fourteenth clause of the sixth the confrontation rests on implicitly- unfairness on the ‘fundamental amendment, via applied to the states will not suspect that his silence аssuring a is entitled A defendant cross- fourteenth. using then him and against be used potential about sources of witnesses examine explanation subse- impeach an silence Arsdall, 475 U.S. Delaware v. Van bias. ” Wainwright at trial.’ quently offered (1986); 674 Davis 89 L.Ed.2d 106 S.Ct. 284, 291, 106 S.Ct. Greenfield, 474 U.S. Alaska, 39 S.Ct. (1986) (quoting South 88 such source is the L.Ed.2d One 553, 565, Neville, U.S. Dakota will receive a bene prospect witness (1983)). S.Ct. sentence, fit, exchange a lower such as 619, 628, 113 Abrahamson, 507 U.S. Brecht v. agree an testimony. Fox had (brackets L.Ed.2d effect, S.Ct. proseсutor to with the ment Doyle, quotation internal in original; bring Giglio it out. entitled 2240). passage States, *5 v. United above transcript quoted of the trial demon serving Fox was was not used Splunge’s silence that strates for her role the years’ imprisonment subsequently of explanation impeach an “to prosecutor asked Fox on direct crimes. With Miller and Charles at trial.” fered any agree there was examination all books, not forbid “Hale and do the testimony which under her ment warnings and (or at triаl of Miranda early mention to a lower sentence lead would They response to them. es the defendant’s denied parole). She consideration re following the instead that silence tablish wanted to had use there was. be used warnings not ceipt Miranda nega on that to cast doubt cross-examination Higgins, F.3d against a defendant.” answer, to he have been entitled tive following of the events description A But this was do so. latitude to considerable intro just prologue to the arrest was the the in the state courts theory; neither his not Splunge’s actual statement —that duction of argued that he sus here has nor sure, him, to be against was used statement Fox for any agreement to reward her pects problem the four under (or but without promise on the any unilateral amendment. teenth question to part). The which objected follows: the jury’s attention who the invite Prosecutors Now, years? Q. you got path a narrow silence walk defendant’s Any hint that easy to fаll. it is Yes, from which A. I do. with later state- inconsistent silence is you have to serve 30 Q. That means by forbidden produces the inference ments you’re released? years before imperils the verdict. Unless
Doyle and
get
I
out.
51 when
A. Yeah. I’ll be
jury that
persuade
tries
way you
get
can
out
only
Q. And the
why
involuntary,
made was
statement
up is if
years is
prison before that 30
argue
not
Splunge did
take
risk?
your sentence?
Judge
modifies
by improp-
had been obtained
the statement
it,
Yes,
parole.
A.
if he modifies
tactics;
not
he did
police
er
defense —that
by
permitted
not
law
Q.
Judge
And
expect
gun, did not
got
know how
sentence, if the
modify your
Prose-
crime,
did not steal
her
commit
being modified?
objects to it
cutor
the statement.
ear —was based on
Wallace’s
A.
know.
don’t
out
conviction thrown
under
had one
Having
objected, and
point
At
have been dou-
§
should
jury’s presence
colloquy
outside
trial
Each new
bly
the next time.
careful
from
to desist
counsel
judge told defense
out-
of аn accurate
the likelihood
reduces
'
judge
lawyers,
this line of
did
experi-
current
whose
—but
disregard
instruct the
what it
ence and
question,
not
dedication no one will
do
argue
judge
that the
heard.
misunderstood state
law. The
Court of Indiana did not
bar,
At
judge
side
defense counsel told the
see a
either:
going:
where he was
he wanted to inform
specifically
Fox testified
that she had re-
that Fox could have her sentence
promises
ceived no
the State
ex-
reduced if and
if thе
so rec-
change
testimony.
for her
It is obvious
judge. Although
pros-
ommended
position
the State was
no
at this
promised
ecutor had not
make such rec-
promise
late date to extend a
of a lesser
'
ommendation,
counsel wanted the
to see
possibility
sentence.
remote
that Fox
hope
that whatever
for a lower sentence Fox
clemency
would receive a modification or
n gave'
entertained would be dashed if she
tes-
highly speculative
this time is
no
timony
displeased
prosecutor.
That
way
any arrangement
reflects
made
legitimate
cross-examination,
is a
line of
one
procure
testimony.
State to
Fox’s
defense had a constitutional
given
1986 she had
a detailed
explore, see Lindh v.
Murphy,
F.3d 899
implicating appellant
statement
in the
(7th Cir.1997), if it rests on
correct state-
giving
crime.
It was after
this statement
ment
Indiana law. But
the trial
that she received the maximum sixty
thought that it does not.
year
participation
sentеnce for her
in the
killing
certainly
of the victim. She
Defense
sought
counsel
to show “that
any special
receive
consideration because
has a
[Fox]
motive to assist the State be-
of her
highly improbable
statement.
It is
only hope
cause her
getting
out ... before
that she
any special
would receive
consid-
modified,
2016 is if her sentence is
and her
*6
eration for taking the witness stand and
modified,
sentence can’t be
unless the Prose-
reiterating what
she
had said in
agrees
cutor
to allow it to happen.” To this
judge replied:
the
“Okay.
you
But
know and
ing out the
curtailment of cross-exami
Mistaken
know,
her
diminish
for would
entitled to
trial error.
category
in the
nation is
had the
But the defense
testimony’s
Gilmore,
force.
901;
Lindh,
Yancey v.
at
F.3d
(or
expected
Fox
whether
opportunity
Cir.1997).
ask
104, 108
Let us then
receive)
reward,
Fox
she could
thought
error had a “substantial
ask whether
know
didn’t
she
testified that
that Fox
injurious” effect. Recall
said
help
obtain a lower
could
her
judge
could reduce her
thought
she
the sub-
sentence;
belief about
she had no
cir
she “didn’t know” the
sentence and that
judge
point
principle
ject. At this
a reduc
could lead to such
cumstances that
speculative
unproductive
curtail
judge
did not tell
tion.
“[Tjrial
play.
came into
cross-examination
testimony. Splunge does not
disregard this
impose
...
wide latitude
judges retain
questioning
with additional
argue that
such cross-examination
limits on
reasonable
some more
could have obtained
about, among other
on concerns
based
statement;
proof
make an offer of
he did not
harassment,
prejudice, confusion
things,
from Fox
produce
trial or
an affidavit
issues,
safety,
interroga-
the witness’
post-conviction proceedings.
does
only marginally rele-
repetitive or
that is
tion
Fox’s cross-examination
suggest
Arsdall,
475 U.S. at
vant.” Van
revealing
previous
up
turned
de
trials
apt
is an
“[Mjarginally relevant”
S.Ct. 1431.
kept
that were
latest
tails or beliefs
description
of the
court to
jury.
he аsk the district
Nor did
closed down.
explore
evidentiary hearing to
what
hold an
prosecutor’s unneces
again, the
Once
might
had the cross-examina
have said
case to
brink
sary
brought this
tactics
60-year
Fox’s
That
sentence
tion continued.
Allowing defense coun
error.
constitutional
maximum,
has not
statutory
is the
hurt,
leeway could not have
more
sel
little
testimony at
her favorable
to reward
reduced
Court
Indiana
reason
trials,
unlikely
Fox has
makes
earlier
telling
same
Fox hаs been
articulated.
have ex
could
any belief that
the defense
testimony at
story
along.
all
Her
Indeed,
have no reason to think
ploited.
we
*7
by a
not have been
fourth trial could
colored
proceed differ
yet another trial would
that
a lower sen
it would earn her
belief that
Any error
one.
ently from
most recent
tence,
it was
when
identical
was harmless.
at the first and second trials.
gave
she
60-year
sen
Splunge both received
and
displea
Finally, Splunge exрresses
tences,
felony
statutory maximum for
argument.
prosecutor’s closing
sure with
sentence,
murder;
most
a discounted
about; the
displeased
to be
There was much
agreement with the
of an
basic evidence
the State of Indiana
not do
did
a
missing. Fox did not receive
prosecutor, is
477
Wainwright,
U.S.
proud. But Darden v.
tes
giving
after
reduction
sentence
(1986),
2464,
168,
144
91 L.Ed.2d
106 S.Ct.
2, making
unlikely
1
timony in trials
637,
DeChristoforo, 416 U.S.
Donnelly v.
expect
receive a reward
she would
(1974), hold
1868,
431
94 S.Ct.
of this
testimony in trial
All
giving
argument violates
closing
thаt misconduct in
if de
brought out
readily could have been
closing argument
only if the
the Constitution
to finish his
had
allowed
fense
counsel
as to
trial with unfairness
“so infected the
this also
But
line
cross-examination.
a
of due
resulting conviction denial
make the
occurred,
it was
why, if
error
shows
643,
prosecutor’s performance calls for might problem additional futed” create a if Griffin comment. position supply in a were the refutation. inBut this case the principal During closing argument defense counsel testimony came from Fox and the witnesses pointed jury surely out what the observed: who saw the commotion Wallace’s car. All that his cliеnt had not testified. Counsel pros- this evidence was consistent with the testify “He didn’t have to added: this case ecution’s theory Splunge that Fox and because he had told the what planned they to rob per- driver could happened.” Viewing this a had as spring ride; give suade to a board, them during asserted rebut was entitled to observe that there was no “Think tal: about the The victim victim. contrary evidence. silent, right case has the to remain this too. eternity,
And he will for all
thanks to Mr.
AFFIRMED
Splunge.
rights,
He hаd
too.” Splunge con
tends
the holding
statement violates
RIPPLE,
Judge, dissenting.
Circuit
California,
609,
380 U.S.
85
Griffin
It
jurisprudence
well
established
,
1229,
14
S.Ct.
L.Ed.2d 106
that the'
of this court that an indirect reference to
prosecutor may
jury
guilt
ask
to infer
the defendant’s silence violates the Fifth
defendant’s use of the privilege
“1)
prosecutor’s
Amendment when
it was the
against self-incrimination. This contention
manifest
intention to
refer
the defen
has
argument
the same
as the
based
2)
silence,
dant’s
remark was of such
Doyle:
knowledge that the defen
a character
‘naturally
dant used a
right
constitutional
is not the
necessarily’
take it to be a comment on
thing as a request
penalty
same
that a
be
Rodriguez
defendant’s silence.”
v. Pe
attached to that use. See United
States
ters,
Cir.1995)
63 F.3d
561
(quoting
Robinson,
25, 31-33,
485 U.S.
108 S.Ct.
Donovan,
United States v.
24 F.3d
916
(1988);
case
UNITED STATES
murderer, Tara
Plaintiff-Appellee,
of the admitted
Fox,
simply cannot be said that this com
mentary by
did not have
Shirley HOLLAND,
J.
Defendant-
injurious
effect or influence
“substantial
Appellant.
determining
jury’s
verdict.” Brecht v.
No. 97-3148.
619, 631,
Abrahamson,
113 S.Ct.
507 U.S.
(quoting
Kot
Appeals,
United States Court
States,
750, 776,
teakos
United
Seventh Circuit.
(1946)).
66 S.Ct.
version of the case. probe
allow the with sufficient possibility that Tara
comprehensiveness the testimony in giving
Fox was acquiescence
hope securing prosecutorial
in the reduction of her sentence. The trial apparently be- cut off the examination misapprehension of law.
cause of its Indiana event, point the crucial was not permitted
whether Indiana reduction of the coop-
sentence but whether Fox believed with could have assist-
eration obtaining her in an earlier release. For a
ed year-old facing a release date woman incentive, if
when she was it was exist, heavily weighed have
found jury’s credibility. That estimation of her was, put mildly, linchpin
credibility
of the state’s case.
Because I believe that state trial court
committed two serious errors of constitution- magnitude,
al that had a “substantial and
injurious determining effect or influence verdict,” Brecht, Kotteakos, (quoting 1239), respectfully dissent.