*1 SMITH,* Before ELY and Cir Judges. cuit SMITH, J. JOSEPH Judge: Gary Leroy Douglas appeals judg- from a ment of the United States District Court for the (Otto District of Oregon Skopil, R. Jr., Judge), Chief dismissing petition a writ of habeas corpus pursuant U.S.C. 2254. § Following jury trial held in the circuit County, court for Coos Ore- gon, Douglas was convicted of degree. the first He was awarded an inde- sentence, terminate the maximum term not to exceed fifteen years. Oregon Appeals Court of affirmed
this conviction without opinion, Or.App. 541 P.2d petitioner did not seek review of the case in the Oregon Supreme Court.1 pe- Subsequently, sought, titioner denied, and was federal ha- * Smith, Joseph The Honorable acknowledges J. Senior 1. The state that all state reme- Judge Circuit, States Circuit exhausted, for the Second dies been have and we have been sitting designation. directed to in the record which would bypass indicate that the deliberate doctrine is relevant in this case.
267 felt appeals He The Court that silence was corpus presently neces- relief. beas ambiguous,” court. sarily “insolubly the district and judgment of there- that any possible from constitutional fore— us sin- presents with a Douglas Petitioner infirmities —was of dubious trial, At the state appeal. on this gle issue case, prosecutor In the the instant state Douglas’ arresting officer prosecutor called just testimony elicited that kind of forbid- ques- After substantial a state witness. Supreme den the 154-159, Court Miranda v. following the Trial Tr. at tioning, Arizona and v. While prosecutor Ohio. there place between the colloquy took was no to reference Miranda arresting warnings, the and purposefully there was fact of Douglas? Mr. Q. Who arrested silence in face of arrest. The introduc- A. I did. testimony tion of such as an imper- acted Q. you? he to Did make statements on the penalty peti- exercise of A. No. right tioner’s to remain silent. questions I That’s all the Prosecutor: inadvertent, While perhaps placement have. suspect question at the end of the Tr. at 158-159.] [Trial arresting testimony gave officer’s it a his constitution- Douglas argues here that prominence it had, which would not have prosecutor violated when the rights al were simply had it part been recounted as aof concerning peti- introduced evidence description of events culminating in the exercise of fifth amendment tioner’s petitioner’s arrest. Thus plausible it is to to remain silent. right suppose juror might that a have inferred offending that the testimony peti- 436, 384 U.S. 86 In Miranda guilty charged, tioner was of the crime and 1602, L.Ed.2d 694 the Unit- S.Ct. that his alibi awas later fabrication and Supreme Court indicated that ed States equivocal without foundation. Given the may not . use “[t]he presented nature of much of the evidence at that the fact stood at trial [a defendant] trial, unusual, perhaps rather even in the privilege or claimed his face mute bizarre, events recounted both the 37, at 468 n. 384 U.S. accusation.” cution and the petitioner, we cannot say, as recently, Court has held More that at 1625. law, a the prosecutor's matter that ques- purposes of a impeachment use for that harmless, beyond tion was at time of arrest and silence defendant’s California, Chapman doubt. 386 U.S. is receipt (1967). Court, Writing Jus- for impermissible. that: Powell noted tice Accordingly, we reverse the warn- it true that the Miranda is court, the district and [W]hile remand the case express that no assurance ings contain issue writ. carry penalty, no such assur- will to who re- implicit any person is ance Judge, JAMES M. dis- warnings. In such circum- ceives the senting: stances, fundamentally it be unfair would not I am convincéd that Court deprivation of process due to allow precedent in this compels ruling to person’s silence to be used the arrested Furthermore, majority if the is correct explanation subsequently of- impeach an occurred, error that constitutional error [Doyle fered trial. a reasonable doubt. 2240 at 610 at 96 S.Ct. (1976)]. L.Ed.2d 91 explain join to my reluctance the ma- jority, slightly must elaborate on the also United States v. arresting facts. The offi- concerning Douglas’ silence after his not alone cer be said to unfairly prejudice a during Only arrest was introduced defendant. when the prosecution af- However, it appears firmatively case-in-chief. tion’s uses this evidence to suggest ques- than an inadvertent impeach more or to a defendant’s defense attempt complete to elicit a does the tion asked in an unfairness occur. A close reading *3 Hale, Douglas’s of description supra, of the event of arrest. shows that argued prosecution were not question and answer overtly used the defendants’ si- against guilt, indicative of or relied lence jury to the them. This is different from by other manner our upon in
tion. Nevertheless, I recognize that the mere case, Douglas put the prosecution’s
After elicitation of the disputed testimony could presented an on a defense in which he alibi be characterized as a suggestion of guilt. n of jury. Douglas’s Although The evidence disagree approach, with this in the face his arrest was never if existence of constitutional error by impeachment purposes mentioned for is conceded for the argument, sake of short, prosecution. asking In error was single disputed question unargumen- in an doubt. The testimony context, prosecution tative never af- cution this case consisted of firmatively incorporated the answer into more than the naked remark that Douglas either its case-in-chief or its rebuttal. made no statement to his arresting officer. The evidence was not elicited in the context law date the case of testimony about giving Court holds that cannot in warnings or of interrogation by the arrest- troduce of an evidence accused’s silence in ing juror if Even assumed that warnings the face of Miranda either as Miranda warnings given, had been evidence guilt or proof purposes affirmative of silence in the face warnings of such impeachment. Miranda v. minimal 37, 86 1602, 16 U.S. 468 n. L.Ed.2d (1966); Doyle addition, In of the victims (1976) (Opinion of provided extensive affirma- Stevens, the Court and J. dissenting). tive evidence of Douglas’s guilt, including States U.S. admission of when confronted But these cases Any possible victims. impact adverse do not per establish a se rule that under no of the prosecutor’s question must have been circumstances can evidence of silence after minimal. I would affirm violating an arrest be admitted without the district court.
Constitution. error of Before an constitu occurs,
tional dimension the evidence of an imper
accused’s silence must be used for an purpose. problem
In its analysis of this the Su-
preme Court has reiterated that “silence at may inherently
the time of arrest ambig-
uous even
from the effect of Miranda
Doyle Ohio,
. .”
supra,
n.
States v. The introduction of evidence trial absent comment can-