Coates v. United States
705 A.2d 1100
D.C.
1998
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*2 body, except Mr. Jia moved his for his TERRY, REID, Before RUIZ and legs, passenger to the front seat. Coates Judges. Associate angry, put into ear became his head Mr. Jia’s process directing and was in the the knife REID, Judge: Associate leg pushed when Mr. Jia his cushion, Appellant away. Keith L. Coates was convicted of hand The knife fell into the armed, assault with intent to rob while in and Mr. Jia handed the food to Coates. charges, jury verify through telephone his first trial on the the order number given, the woman who an- could not reach a verdict. After his second trial that the caller had conviction, placing phone an order. La- resulted in he was sentenced to a swered the denied ter, prison years inquiring about term of five to fifteen for assault a male called restaurant rob, explained consecutively, year delivery. with intent to When the restaurant to one happened, carrying dangerous weapon. caller asked that for again. time the verification call be made This Arizona, delivery telephone male answered the and the Subsequently, it was discovered L.Ed.2d sent out. telephone that the number used the caller delivery appellant’s great grandmother placed who 3. A male caller had order p.m. sought to resided across the street from him. around 10 When the restaurant following day initially object his counsel took the food with one hand while After He conference continued. placed hand was on the knife. when the bench other pulled discussion, money, part on whether focusing and as Coates demanded cushion, dropped it at the custody knife out of the or under arrest Coates was into he saw another car come gave floor. When the trial court time of *3 said, view, dropped the food and Coates also ruling part: in which reads “never mind.” may have ... I find the defendant while police patrol a car. Mr. Jia turned and saw pre-arrest, custody, in he was been scene, Thaddeus As he arrived on the Officer government [pre-Miranda] silence that the veteran, year a Carrington, a fifteen saw seeking to use to establish consciousness Coates, struggle between Mr. Jia and but did circumstances, I’m these guilt[.][U]nder struggle. He not know the nature to ask the going to allow the Government call out heard someone on the sidewalk question.... “Keith, Keith, Keith,” saw Coates and then Carrington The trial court added Officer away from Mr. Jia’s car. begin to walk investigation to determine conducting was name, out the officer’s When Coates called interrogat- happened, and was not him Carrington recognized as some- Officer trial court had com- ing Coates. When the years.4 one he had known for said: “I pleted ruling, counsel for Coates govern- a Carrington testified as Officer for a mistrial just going to note a motion was trial. stated ment witness at Coates’s He anticipatory upon the sort of motion based name, he asked that after Coates called the_” interrupt- judge The trial based on going on. He didn’t have Coates “what was going “I’m to rule on that say: him to ed response question.” Defense a to the first yet.... But it hasn’t come out because testimony. objection to this counsel raised no I it will be based on the reasons indicated spoke The officer then with Mr. Jia and denied.” place.5 that a crime had taken realized conference ended and When the bench theory was that the knife Coates resumed, repeat government did not actually belonged to using was accused Rather, concerning question the knife. Carrington’s testimo- Mr. Jia. Officer exchange place between following took you at the time that ny, he was asked: “Now Carrington: and government counsel Officer defendant, the defendant stopped the did say anything you or make indica- ever the de- Q. Carrington, what was Officer gentle- tion that the knife came from to Mr. doing you when went over fendant Carrington could re- man?” Before Officer speak to him? Jia stopped judge, sponte, spond, the trial ..., doing? The defendant A. Defendant proceedings asked both counsel to time, custody of was in the Officer at that approach the bench. you’re talking If about after the O’Boyle.6 due conference concerned the The bench police stop. Is that correct? implications of Coates’s silence when process stopped him. Q. Immediately you to him at Carrington posed questions him, stopped he Immediately after we A. crime before he was arrest- the scene of the my point At that standing along side. object was when ed. Counsel for Coates did times what I asked the defendant several posed. Nor did questions were first standing. He asked Officer nephew were of the former fiancee 4. Coates is the going placed Coates in hand- the officer’s brother. on. He what was cuffs, car, patrol put the back of his him in the knife that 5. Officer recovered Carrington. speak with Officer then returned the driver’s It was located on Coates had used. briefly, to his returned interviewed Mr. Jia He case officer found the side of the car. Another Coates, over to patrol get and took him car to police cruiser. Mr. knife in front of the for the as his assailant. Jia. Mr. Jia identified Coates the one used Coates. Jia identified the knife as placed point, Coates was searched At that Coates as his assailant. He also identified under arrest. pass Joseph O’Boylehappened to 6. Officer James spot Carrington and Coates where Officer

H03 tails, happened, doing.... including discovery what hewas At no of the sheath get response time from for the knife on the street rather than Mr. did him. car, prosecutor part: Q. doing you What was when were you If don’t believe even with all this cor- talking to him? Jia, roboration, you if don’t believe Mr. ask A. He more or response less—his questions. Ask yourselves a few more chuckle, wave, know,” was a “I don’t yourselves why if the knife somehow came response. gestures kind of All indirect run why from Mr. the defendant didn’t responses. away? Mr. Jia was inside a car. The object Counsel for Coates did not to this line plenty oppor- defendant would have had questioning.7 tunity to run from Mr. Jia with theory, The defense articulated yourselves why knife.... when [A]sk Of- *4 opening Coates, statement behalf of was scene, Carrington ficer arrived on the kept that Mr. Jia the knife in his car to say, glad didn’t run to him and I’m so protect himself from robbers because he had here, you’re just guy pulled prior been robbed on two occasions. me, I just coming get knife on was to cross-examining Carrington, Officer counsel Carring- Chinese food. He knew Officer for Coates testimony elicited that Mr. socially. ton There no him reason for proficient who english, was not indicated to be afraid of him. He could have told that he pocket” “went to his back [own] while immediately. him But what did he do ... trying Carrington to tell Officer Carrington when Officer arrived on the happened.8 When counsel for Coates cross- just scene?.... [H]e stood there and trial, questions examined Mr. Jia at several shrugged his shoulders. knife, focused on the and counsel to tried objection Defense counsel no raised to the show that Mr. Jia initially did not mention a argument. request any rebuttal Nor did he knife Carrington. to Officer Closing argu- curative instruction. knife, ment for Coates focused on the and conviction, After his Coates moved for a counsel asked jury the to conclude that testimony new trial based both on the possibility “there is a that Mr. Jia had the Carrington regarding Officer Coates’s silence upon knife based testimony the in this prior of Miranda giving warnings, to the case....” government’s and on the comments concern- government’s the closing argu- ing his silence. The trial court that found ment, objection, and without prosecutor the “clearly Coates ... was not under arrest at commented on Coates’s queried silence when asking the time the questions officer was by Carrington: Furthermore, Officer “Officer investigating....” and ... asked the defendant happening pointed what’s court out that Officer just shrugged responded government’s ques- defendant never his shoul- der, any- say anything_ pertaining didn’t tion to whether Car- thing himto to indicate that the knife came rington ... had asked the defendant if he Hence, court,- from Mr. Jia. said the trial was the one that ordered this food. And the prejudice. no there was just shrug defendant continued his shoul- rebuttal, say nothing.” ders and In its ANALYSIS prosecutor theory addressed defense the knife to Mr. Jia and had not his Fifth Coates contends that Amendment discussing privilege against been used Coates. After self-incrimina- de- constitutional Instead, posed objection 7. Counsel no until after direct after the trial court’s bench conference. examination, questions cross-examination and redirect ex- after the bench conference called asking amination had concluded. After for a judge sponte what the trial focused on conference, Honor, bench stated: "Your counsel doing Carrington "went Coates was when Officer just officially want to make the motion for a speak over to Mr. Jia to to him." post-arrest mistrial based on the silence or si- lence Air. Coates in the face of the accusations by explained gestured 8. Mr. Jia that he to show the However, question concerning Mr. Jia.” pulled [Coates] officer "where out the knife.” posed again Jia and Air. the knife had not been 1104 However, 240-241, nei at 2130. the trial court al- S.Ct.

tion was violated because has pre-arrest pre-Miranda si- nor tMs court lowed Ms ther the Court pre-arrest lence to be used as substantive evidence resolved the issue as whether government argues pre- guilt. may Ms be used as substantive evidence pre-custody arrest and silence which on guilt.10 of a defendant’s Coates relies may guilt, compelled support argument: be used evidence three of our cases to Ms States, respect (Lewis) no error with there was Lyons v. United 622 A.2d government’s comments on Coates’s si- (D.C.1993); Hill United argu- closing (D.C.1979) denied, lence and rebuttal cert. (1980);

ments. and Henderson (D.C.1993). States, 632 A.2d 419 United raise a Defense counsel did not (Lewis) Lyons has been vacated and thus has objection government’s timely either to the use of no force of law.11 Hill mvolved the questions, elosmg and rebuttal com or to impeach, guilt. silence to not as evidence regarding ments appellant’s Henderson concerned the use silence.9 Because of Coates’s fail he had guilt, to demonstrate objections, raise we review this ure to attorney and failed to tell consulted er matter for error. Under Mght on the of a friends where he was ror error must be ‘obvi “[t]he murder. readily apparent,’ and ‘clear under ous or *5 on whether law'; Other courts have commented clearly prejudicial to current ‘so may pre-Miranda silence be pre-arrest and rights jeopardize very as to substantial ” guilt. A used as substantive evidence Hasty trial.’ integrity fairness and of the (D.C. States, 127, panel majority of the District Columbia v. 134 United stated, 1995) v. passing, in in United States Circuit (quoting Foreman v. United 633 Moore, 334, 342, (D.C.1993)). U.S.App.D.C. 104 F.3d 792, 322 795 See also United A.2d (1997), 377, prosecution’s Olano, 725, 732, that use of 385 “the v. 507 States U.S. (1993). pre-trial silence m its summa- 1770, 1776-77, defendant’s] [a 123 L.Ed.2d 508 We guilt] violated evidence of plainly [as tion substantive trial court did not conclude However, rights.” Fifth Amendment ques Ms allowing err in to be post-arrest an issue of that case mvolved pre-arrest regarding tioned Coates’s appellant’s conviction was silence and the permitting gov which have affirmed. Federal circmt courts ernment to comment on tMs silence on this is- the matter are divided decided closing arguments. and rebuttal sue.12 Anderson, 231, In 447 U.S. 100 Jenkins (1980), Circmt has Accordingly, as the Second 65 L.Ed.2d 86 the Su

S.Ct. error can be “we do not see how an preme prearrest “the use of stated: Court held that Supreme and tMs credibility plain error when the Court impeach a silence to defendant’s subject, and the spoken on the Id. at court have does not violate the Constitution.” addition, accept the to enable the trial court to made no manded defense counsel place. argument argument Fifth plea, that Coates was denied his never took and the oral right proper to warn- Amendment constitutional Arizona, supra. ings under Miranda v. Thompson, 82 F.3d 849 12.See United States First, (1996). and Tenth Circuits "The Seventh not reach this issue in 10. The Court did pre-arrest within silence comes have held today consider "Our decision does not Jenkins: proscription purview of comment on [the] prearrest whether or under what circumstances against privilege self-incrimina- a defendant’s may protected the Fifth Amend- silence be Eleventh Circuit has ruled tion. ... The S.Ct. at 2128 ment.” 447 U.S. at 236 n. Jenkins, pre-arrest silence is comment on under n. 2. permissible.... [has] held [Tlhe Fifth Circuit (Lewis)Lyons vacating is set forth order that, The is ‘neither where the defendant’s silence rehearing Although en at 635 A.2d 902 response action nor a to induced granted, was not heard be- banc was the case governmental agent,’ Fifth Amendment is cause, argu- day oral on the before the scheduled (citations omitted). inapplicable.” Id. at 855 ment, plea agreed guilty appellant to enter a re- offense. The case was to a lesser included knife Examination of belonged to Mr. Jia. split.” is United authority other circuits (2d it directed reveals that Alli-Balogun, 72 F.3d this comment States v. Cir.1995). Moreover, here, credibility, not Coates’s silence Mr. Jia’s Coates’s toward comment prosecutor prefaced was aware of guilt. came before Officer Indeed, happened. we see Mr. exactly by saying part: you “if don’t believe evidence, us, gov questions.” no in the record before a few more yourselves ask compulsion ernmental at the time Coates was testimony of Mr. Jia and Officer Given the shrugged questioned and remained silent or discovery of the sheath Carrington, and the concurring opinion in In his shoulders. ground and not in for the knife on the Jenkins, supra, said: “I Justice Stevens car, prejudice to no clear we see reject [petitioner’s] would Fifth Amendment rights.13 substantial against compulso privilege claim because the judgment of the Accordingly, affirm the we ry simply irrelevant to a self-incrimination trial court. when he is citizen’s decision to remain silent So ordered. compulsion speak.” under no official (Stevens, at 2131 J. S.Ct. RUIZ, Judge, concurring: Associate (footnote omitted). concurring) Further more, although appeal on record agree that there is no error war clear, crystal appears Carring- it that Officer in this does ranting reversal case. Coates ton’s reference to Coates’s silence concerned allege Carrington’s that either Officer period a short of time before the officer prosecutor’s arguments at testimony or the actually that a crime had taken concluded closing silence after he referred Coates’ place, and a time when Coates was under police have was arrested or after the should absolutely government compulsion no rights him his Miranda. advised under speak. prong Consequently, under the first pre-Miranda, Whether error is no there “obvi protection of the Fifth comes within *6 readily apparent” or ous error “under cur question is a this court has Amendment law,” Hasty, rent let alone error. su case. and need not address addressed pra, 669 A.2d at 134. expressly left the The Court has respect prong With second open issue for decision. See Jenkins error, plain error we see no and Anderson, 2, 231, n. 447 U.S. nothing clearly prejudicial

thus “so to sub- (1980). 2, 2128 n. 65 L.Ed.2d rights jeopardize very stantial as to fair- Appeals for the District of U.S. Court of integrity Although ness and of the trial.” Id. recently the issue of Columbia has addressed government attorney asked Officer Car- post- specifically in a pretrial but rington anything Moore, whether Coates situation. See United States arrest make him believe that the knife introduced 104 F.3d U.S.App.D.C. prosecution into notes, evidence majority the other As the question never answered the issue courts’ decisions on federal circuit court, sponte, called for because the 1104 and n. page ante at are conflict. See And, though conference. even bench Therefore, have been any error cannot prosecution that it trial court informed the “clear under plain as it was not “obvious”and repeated. it was never question, could ask the Hasty law.” v. United current addition, jury, (D.C.1995). the court informed the 127, 134 A.2d commenced, arguments of before trial Moreover, counsel are evidence.

government’s comment on the knife rebuttal only the de- silence came

and Coates’s closing argument

fense tried to show custody actually was in comment on whether 13. We do not decide whether pre-Miranda Carrington questioned him. defendant’s time when Officer the Constitution the Fifth Amendment to analysis. violates to a error Our decision is limited do we determine the United States. Nor