*1 HEIDELBERG, Appellant Donald C. of Texas. STATE
No. 1418-03. Texas, Appeals of Criminal
Court
En Banc. 15, 2004.
Sept. Wice, Houston, Appellant.
Brian W. Delmore, III, Asst. District J. William Paul, Houston, Atty., Matthew State’s Austin, Atty., for State.
OPINION MEYERS, J., opinion delivered KELLER, J., Court, P. in which KEASLER, HERVEY, WOMACK, Cochran, JJ., join. sexually as-
Appellant was indicted grand- saulting eight-year-old his wife’s wife were Appellant and his daughter. when, according to the victim babysitting victim, room came into her Appellant her sleeping and fondled while she was penis in her anus. and stuck his the stand the accusations and took denied jury convicted defense. The his own years him to 25 him and sentenced that the appeals, arguing prison. He now holding that he erred in Appeals Court that the trial the claims failed to *2 1) permitting court erred in: prosecu- Overruled. [COURT]: Answer tor to cross examine him post- question. about his 2) silence, permitting arrest to elicit testimony post- rebuttal about his certainly You could [STATE]: have through arrest silence Detective James investigating talked with the officer on 3) Fitzgerald, overruling Appellant’s him, explained this case and in your objections to prosecutor’s comments on opinion, why complainant] [the made his during argu- silence final up, right? this guilt-innocence
ment stage of trial. Objection, [DEFENSE COUNSEL]:
The ground first for review claimed your My Honor. client—all of this line Appellant pertains to the State’s cross- questioning goes to the Fifth Amend- examination at when it began ques- My ment. does speak client not have to tioning Appellant about willingness anyone it. about speak investigator to the and whether he Be overruled. [COURT]: knew that the investigator trying ground second for review re- contact him about allegations. rebuttal, fers the State’s when it offered following exchange occurred: of Detective Fitzgerald. Heidelberg, you certainly [STATE]: Mr. The following exchange prose- between the knew that Fitzgerald try- Detective cutor and the occurred: detective ing to get you a hold of talk you, [to] you Were to make con- [STATE]: able you? didn’t tact with the defendant? Objection, [DEFENSE COUNSEL]: way. In a [FITZGERALD]: goes
Your Honor. This to the Fifth Objection, [DEFENSE COUNSEL]: right, my Amendment client’s Fifth Your my Honor. I would like to renew Amendment. He doesn’t to talk have my as to client’s Fifth Amend- anybody. right. ment Be [COURT]: overruled. Be Overruled. [COURT]: May I
[DEFENSE
have a
COUNEL]:
standing objection
I’m
throughout so
you
Did
[STATE]:
ever ask to talk to
have to—
the detective about this
you
case once
may.
You
[COURT]:
knew that
charges
there?
were
* * *
I didn’t know about
[APPELLANT]:
[STATE]: Once
defendant was
any charges
July
year.
until
of this
arrest,
placed under
had he wanted to
in July
year
And
of this
[STATE]:
did
you,
you
talk to
would
have sat down
you
ask
talk to the detective in the
and spoken with him?
case?
Oh, definitely; yes,
[FITZGERALD]:
Well,
already
I was
[APPELLANT]:
ma’am.
incarcerated. So—
review,
As to Appellant’s
ground
third
Well,
you
any-
[STATE]:
ever ask
following
State made the
comment
one—
during
argument
guilt/inno-
rebuttal
at the
stage:
cence
Objection,
[DEFENSE COUNSEL]:
goes
Honor. This
to the Fifth
you really
Do
he
[STATE]:
believe
Amendment.
wanted to wait five months from the
specific
arrest,
complaint, unless
all that informa-
he saved
date
the context.”
course
you?
and tell
Of
Tex.
tion to come
(Vernon
R.App.
33.1(a)(1)(A)
not,
garbage.
that’s
ANN.
PRO.
added).
2002)
Texas Rules
Honor,
(emphasis
*3
COUNSEL]:
[DEFENSE
103(a)(1)
guide
similar
contains
Evidence
object
may
And
I have a stand-
again.
objection or
lines,
timely
that “a
providing
objection
any
reference to
ing
on the rec
appear]
motion to strike [must
Fifth Amendment?
objec
ord,
ground of
stating
specific
That
overruled.
will be
[COURT]:
tion,
appar
was not
ground
specific
if
contends
appeal, Appellant
On
R. Evid. ANN.
the context.”
ent from
Tex.
allowing
that the trial court erred
added).
(Vernon 2002)
103(a)(1)
(emphasis
Appellant’s post-arrest
refer to
State to
legal
that the
Additionally, it is well settled
I, section 10
silence in violation of Article
appeal
can
complaint
of a
raised
basis
State,
of the Texas Constitution.
that raised at trial. Euziere
vary
however, urges
Appellant
pre
that
did not
(Tex.
State,
700, 703-704
v.
648 S.W.2d
objections at trial
error because his
serve
Crim.App.1983).
solely on the Fifth Amend
were based
The Fifth Amendment of the feder
ment.
Appeals
holding,
In its
the Court
protects
silence
al constitution
in allow
that the trial court erred
agreed
warnings have
only
made
Miranda
after
pertaining
and comments
ing questions
Weir, 455
given.
been
Fletcher v.
U.S.
Heidel
silence.
Appellant’s post-arrest
(1982);
603,
1309,
102
Texas Rule of 33.1(a)(1)(A) pun at the admitting certain provides, part, in relevant Fifth, violating his phase on ishment complaint presented that for a to be Sixth, rights and Fourteenth Amendment timely objection, or mo appeal, request, Constitution, as States to the trial under the United must have been made tion 1, Article sections rights under court, for the well as his which “states the 19 of the Texas Constitution. sought 10 and complaining party that the ruling deciding the defendant at 732. specific trial court with sufficient from the for review state failed to aware of the ity to make the court claims, the court of appeals hearsay on the basis of and a violation of stated that “defense counsel never raised Amendment his Sixth to confronta- the issue of state constitutional require appeal, tion. Id. at 789. On the defendant ments at trial.” Id. The court additionally claimed his federal Sixth Amendment commented that the defendant had relied rights and his State to confrontation under solely on a federal case regarding the Article section 10 of the Texas Constitu- Fifth and Sixth Amendments to the feder tion, were violated. Id. at 794. The court al constitution making objection, when of appeals commented that the defendant and noted that a pre defendant’s errors had not preserved the state constitutional sented on review must be same claim for review because his *4 objections raised at trial. Id. at 733. timely not “did include a The defendant in Cantu had also based on his asserted under the Tex- statutory claimed that his state rights as Id. at Constitution.” 794. were violated under section 54.09 of the it While is true the court’s discus- Code, Family Texas which sets out certain dicta,1 sions Cantu and Bamum are rights juveniles. trial, At when the give support cases to the pre- notion that allegedly improper being senting solely a claim based on federal solicited, objected, the defendant had say- grounds put will not suffice to the court on ing: brings “And that also up the interest- grounds, notice to claims based on State ing issue as to whether the waiver is valid unless ground the State at the time because he’s not been certified the context. as an adult at that time. And he requires special Mirandizing magistration be- A number of cases with deal the suffi fore questioning begins.” Id. at 733. ciency imprecise objections, but because appeals objec- court of held that this one must look to the context each case tion was to preserve insufficient the state ground objec in order if to see statutory claim for review because the apparent, tion was we must look at each statement was general” “too to have alert- Still, individually situation arises. ed the trial court that the defendant was those cases can be looked to for instructive averring to that Family section of the In guidance. Lankston v. Code. Id. at 733. Additionally, the court of (Tex.Crim.App.1992), S.W.2d 907 the de appeals stated that: no indi- “[There was] fendant of aggravated was convicted sexu cation from the record that the trial indecency al assault and a child. At understood that the state statute trial, following exchange occurred: authority for defense counsel’s What did tell [STATE]: [the victim] Moreover, the evidence. the statement you? was made in argument the context of an told that— [WITNESS]: She me specifically identified federal law excluding [the doctor’s] testi- Honor, [DEFENSE COUNSEL]: mony.” Id. at 733. may objection? I make an There are Bamum, parameters exceptions that are to the the defendant was convict- hearsay I person rule that believe this ed of murder. 7 at 786. At rules, testify the State can to under [the admitted written statement victim, objected which the defendant stating State] has so filed letter [its] grounds, 1. The necessary. case turned on federal so the issue was not commentary on the state constitutional law immediately after- exchange are. I occurred parameters what those would Id. just questions ... wards.” at 910. be request posed nonobjec- so that in a manner case at hand from the Lankston differs material she to could tionable testifies because, prosecutor’s specific due to the be from that which separate would be judge’s comments questions, as well as rules. hearsay under the in Lankston ruling, record clear- when knew the nature ly parties showed that all just attorneys all the want [COURT]: contrast, many of the to stay parameters within the in the case at questions asked to you’re I believe that’s what re- 38.07[2]. i.e. one time-specific, hand were could just say attorneys I’ll all ferring to. will questions not tell from the State’s whether stay be within those expected [sic] asking pre-arrest about si- the State was parameters questions and couch their lence, silence, or pre-Miranda that state. silence. Fur- post-arrest post-Miranda thermore, objections by at- Amendment,
torney only the cited Thus, not the Texas Constitution. the sit- 1987, Around June what [STATE]: Lankston, uation was not like where the you did happened victim] tell [the objection “could not defendant’s reason- her? ... ably have understood mean [been] Id. at proceeded 910. The witness to testi- anything else.” Id. at 911. fy to an incident not within the State’s In 644 another Coleman summary written proposed of her testimo- 1982), (Tex.App.-Austin the de ny. objected, saying: Defense counsel aggravated fendant rob was convicted Honor, again “Your once I’m going to have bery. the stand at the taking While object hearsay.” that this is Id. “Well, Prosecutor asked the defendant: exchange then following occurred: jury story you telling this are this here I Judge, you can show what [STATE]: today, Jury did the Grand this you tell we filed as our intent 38.07[2]. use story, you up come and [sic] I mean It’s on file here. Let me [COURT]: say, hey, wrongfully arrested I’ve been read All I’ll right. it here. overrule the by police], you [sic] and harassed Did [the objection. you come Jury? up tell the Grand Did here decision, forming Jury Id. at In the that?” Id. at 117- 911. its the and tell Grand objected, agreed Court that the defendant should 118. The counsel stat defense honor, question. part ing, object have “Your to that specified as to which objecting years I’ve law for seven practicing evidence he was because some of been to a hearsay grand the that I’ve to talk already got [sic] evidence was had and never him jury, imply and that this man been ruled admissible and some evidence totally is hearsay obligation was that was Id. at had to do so ridicu inadmissible. Still, judge trial found that lous.” Id. at 118. The over the Court the defen- appeals dant “it ruled the The court preserved had error because [was] court, reasoning both judge clear from context that and reversed the specific, objec- though objection was not prosecutor understood even [Defendant’s] “clearly prosecutor tion to and trial complaint put be a about not fine falling statutory excep- judge prosecutor’s on notice that the hearsay within the witnesses, the constitutional ‘outcry’ questions tion for the ... invaded rights of by the defendant to remain syllable protest- silent dant did utter one fact, not appearing grand jury.” before the ing his innocence.... his silence at 119. at the there scene one of the most damaging you bits of evidence have be- distinguishable Coleman is because the you.” fore question by prosecutor clearly was re- Id. at 494. The defense attorney again ferring to a time period post-arrest —the objected prosecutor’s to the “comment on prosecutor specifically asking about to remain silent and speaking defendant to the Grand Jury. his comment on his failure to make a case, however, state- questions ment at the scene.” Id. appeal, On by clearly did not refer to objec- State claimed that the defendant’s any specific time-period. Questions such preserved tion at trial only federal consti- “you Fitzgerald knew that Detective (under tutional which there would trying get you, a hold of didn’t no you?” protection post-arrest, pre-Mi- be necessarily do not post- refer silence), And, randa not state arrest silence. there is no indication understood, grounds. Id. at 494. This judge record Court cited to defense counsel’s Zillender v. based on the Fifth trailing Amendment and a ques- (Tex.Crim.App.1977), quoting the Court’s tion swept which time-period, reasoning broad that “where the correct ground the defense was claiming pro- indeed of exclusion was obvious to the tection of counsel, the Texas Constitution. opposing no waiver results from a general imprecise objection,” and that Appellant cites to Samuel v. *6 though objection even the was somewhat 492 (Tex.Crim.App.1985), to sup- “catchall,” enough put of a clear was to port his contention that the basis of his the court on notice as to the nature of the objection was from the context. objection. 688 S.W.2d at Samuel, In the defendant was guilty found forgery. direct Samuel from this how- by On examination the is different prosecutor the holding asked the that store clerk ever. Central the Court’s whether the professed objection defendant ever the preserve was sufficient to during twenty-minute innocence pe- question appeared time State law review in riod which the store him holding attorney was speci- be the fact that the defense police until the arrived.2 The defense at- objections fied in his the defendant torney objected arrest,” “to statements made after objec- was “under and that the arrest,” he was under and the court over- “immediately tions came on the heels of Later, ruled the Id. at 494. in prosecutor’s question attempted thfe which jury argument, the made the to elicit as to [the defendant’s] following comments: protest failure to his innocence.” Id. at objections is the defendant’s Appellant’s
“What statement 495-96. at trial did caught [by when he’s the store in not rise to the level of those Samuel. clerk]? Indeed, only ‘It’s a check.’ His words.... Appellant’s And counsel made no men- you arrest, store told that for Appellant being [the clerk] the tion of under twenty majority objections minutes he held this defendant the of his not fol- police until the arrived that this questions specifically defen- low which referred to shotgun 2. The defendant had been held at der arrest. The State did not contest that clerk, point by finding, the store which the court of and this Court did rule the appeals equivalent being deemed held un- issue. Id. at n. 2. objec- Veteto, Furthermore, trial sustained periods. time counsel, indicating made defense in that the tions no indication the record there is understanding of the judge had an try- that the was judge understood made. on which from basis protection to invoke a different ing here, overruled the trial court he But protection which the Fifth Amendment further objections without citing. ob- comment, questions, the reviewing “the cases, more Cab Appellant cites two and the responses, ligations, (Tex.App.- v. 932 S.W.2d rales court did as the court’s interaction” 1996), and Veteto [14th Dist.] Houston any other indication that gives no Veteto 2000), (Tex.App.-Waco than that for the other basis objec that an support of his contention (based on the was stated which is on the Fifth Amendment tion based Amendment) to the clearly apparent the Tex error under sufficient judge. Veteto, police chief as Constitution. Cabrales, the defendant was convict special prosecutor and the took the stand to distribute. possession ed of with intent deny any asked him: “Did [the defendant] exchange occurred: following At aggravated assault these three charges?” Id. at 809. Defense counsel Once the cocaine [PROSECUTOR]: objected deny failure to bags deputy] “because the and [the found those absolutely under you offense is inadmissible.” are [sic] tells the Defendant objection. A few arrest, The court sustained the then take the does the Defendant later, them, whoa, questions special prosecutor wait a to tell opportunity second, if again police asked the chief the defen [sic] dant made statement to him. Defense me, Excuse COUNSEL]: [DEFENSE “Now, objected, stating, counsel is his object strenuously Honor. will there,” Fifth Amendment in a custodial attempt get judge sustained the Id. When asylum Counsel [sic]. statement mistrial, asked for a defense counsel absolutely improper. She knows that’s *7 responded by saying, the court “Post ar just was under arrest. said she in rest silence is—is not evidence. added). The (emphasis at 659 can’t it.” Id. at After You consider 810. Then, objection. trial court overruled the examination, again redirect the State statement, the very in the next chief, him you give the “Did police asked it reasonable. Is said: ‘You decide what’s you?” to talk to Id. To opportunity person innocent who’s reasonable for an objected, “Your which the defense counsel of cocaine just told there is bunch been Honor, object I to that. He going am to say point ,” in to not at that bags the — ” Id. The court allowed was arrested.... objected, point the defense counsel which question. the “improper under the saying that it was on That’s a comment the rules and the law. court determined that The Veteto they go can’t knows safe- an issue that Counsel objection was sufficient to invoke the because, into. And it’s also a misstatement Texas guards of the Constitution Again, case.” Id. the objections, evidence in this reviewing questions, in “the the prose- the trial court’s interac- court overruled responses, the and the the defen- again began to address tion, objections that were cutor clear the [was] scene, defense at the at 810. dant’s silence to the trial court.” Id. obvious “I also ob- objected, saying: will In counsel Appellant. But is not the case for such ject before, again, Honor, rights. have holding federal constitutional In talking things the Prosecutor only preserved about that that the federal claim was evidence, talking review, are not in about custodial the Court reasoned that “nei [sic], interrogation asylum suppress custodial objec ther motion nor trial all of objectionable.” State; which are rather, 932 tion invoked the laws of this added). S.W.2d at 659-60 (emphasis sought only protection [defendant] holding objections by provided by defense federal constitutional law.” counsel were sufficient to Appellant’s error Id. case can compared be Constitution, under the Texas the court solely Nelson. relied on federal that, reasoned based on the context grounds, citing only of the' the Fifth Amendment record, objections entire repeated every objection. in almost enough to alert the trial court that on We also commented Nelson in Eisen objecting defense was improper (Tex.Crim. hauer S.W.2d 159 questions about post-ar- the defendant’s Eisenhauer, App.1988). the defendant rest silence. Id. pre-trial had filed a suppress, motion to
Cóbrales differs from Appellant’s situa- stating that the defendant “was arrested tion for many of the reasons Veteto differs. without a warrant and probable without Veteto, As in prosecutor’s questions in IV, V, cause violation of the and XIV clearly pertained Cóbrales period a time Amendments the Constitution of the post-arrest. Additionally, defense counsel United States and violation of the laws stated that the already defendant was un- and Constitution of the State of Texas.” der arrest language and used such as “cus- trial, however, Id. -at 161. At the defense todial interrogation asylum,” and custodial attorney objected solely on federal making it more parties obvious what grounds. Though the Court concluded the basis of the were. Further- objection pre sufficient to more, the record in gives case serve state constitutional claims for re no indication that the trial view, under- distinguish careful to Court was stood the basis of the to mean Nelson, stating that is not “[t]his like the that the defense actually invoking situation Nelson ... in which this Court Constitution, protection of the Texas rath- held the grounds urged by law State Amendment, er than the Fifth which was defendant appeal for the first time on had upon the sole basis which the defense re- properly preserved been for review Thus, agree lied. we cannot Appel- since both the and the motion to lant that Veteto and stand Cóbrales for the suppress solely were based federal *8 proposition objection solely that an under grounds.” Clearly, the Court was dis Amendment, more, the Fifth pre- without tinguishing scenario where a defendant serves error to complain under the Texas right a state sup invokes a motion to Constitution. press orally but fails to address from where a defendant does situation analogy An can using be made not allude to the state constitutional Fourth Amendment and article 38.23 of all, Appellant failed to do here. the Texas Code Criminal Procedure. 1) dealing specifically one case with the Due to: of time-specific ques- lack 2) 38.23, Fourth Amendment and article prosecutor, Nel tions counsel’s failure State, (Tex.Crim. son v. 607 554 S.W.2d to cite to the state constitution or even App.1980), the specify objecting defendant filed a motion to that he was to post-arrest 3) silence, suppress exclusively commentary by which he relied on and the lack of
543
judge
making
rulings
(Tex.Crim.App.1985).
on
believe that:
1)
objections,
we hold that
did not
questions
the state understood that its
2)
preserve
silence;
error on
grounds
he
dealt with
ap
and
presents for
affirm
objections
review.
therefore
pellant’s
We
were sufficient to
Appeals.
the Court of
preserve
error
specific
grounds
JOHNSON, J.,
dissenting
filed a
Tex.R.App.
from the context.
PRoc. art.
PRICE,
opinion,
HOLCOMB,
in which
and
38.1(a)(1)(A).
inAs Coleman v.
JJ., join.
1982),
(Tex.App.-Austin
S.W.2d 116
coun
objections clearly put
sel’s
the trial court
JOHNSON, J.,
dissenting
filed a
and the
on notice that the pros
opinion,
PRICE,
HOLCOMB,
in which
ecutor’s
of questioning
line
invaded the
JJ., join.
rights,
federal
I respectfully dissent.
prosecution
state,
to remain silent.
made repeated references to appellant’s
protest
failure to
his innocence. While
In Lankston v.
enough for the to understand him at a time when the trial court in a Once the placed [State]: proper position something defendant to do about it. arrest, under had he wanted to talk to Lankston, Here, at 909. defense counsel you, you would have sat spo- down and objected each prosecutor attempt- time the ken him? commentary ed to elicit appellant’s fail- [Fitzgerald]: Oh, definitely; yes, ma’am. protest time, ure to his innocence. Each objections.
the court overruled her Even- tually, objection, he allowed her a standing you really [State]: Do believe that he suggesting that he indeed understood the wanted to wait five months objections, for the simply but arrest, date he saved all informa- chose not to sustain them. tion to not, come and tell? Of course (Tex. In Hicks v. garbage. that’s Crim.App.1973), the Court addressed *9 Such comments appellant’s violated imprecise objection to on post- comment silence, right to which protected by is both silence, explained and arrest that: the Fifth Amendment to the United States by I, § Constitution objection Article 10 of proper the the ... would be that Ohio, Texas Constitution. Doyle asked, v. 426 question the time the 610, 2240, U.S. 96 S.Ct. 49 appellant 91 the L.Ed.2d was under arrest and that (1976), State, 492, Samuel v. question 688 S.W.2d such a is in violation
544 specific grounds determining whether against self-incrimina-
appellant’s rights apparent from the objection were for the tion and of the confession statute. case, the grounds In this for context. omitted). (internal Hicks, at 837 citations objection apparent from were appellant’s prosecutor re- In this each time the the context. failure, before appellant’s ferred to both Cantu, arrest, appeals information first not- and after to volunteer the court authorities, objected on waived his state appellant defense counsel that the had ed Amendment. statutory She claims because the basis of the constitutional and solely on a objection these several at trial was based elaborated on his State, client didn’t have 994 S.W.2d by stating times that her case. Cantu v. federal 1999). 721, The anybody. (Tex.App.Austin, to talk 733 appel- on the basis of court then reversed from indistinguishable case is Sam This The lan- claims. Id. lant’s federal (Tex.Crim. State, 492 uel v. 688 S.W.2d in of state claims Can- guage about waiver said: App.1985), which this Court dicta, here. clearly inapplicable and is tu is objection did not rise appellant’s while Samuel, out in precision Finally, the model of set footnote which Hicks, that, during coming objection as it did an made think that “such we states in a court immediately prosecu- on the heels of law State trial under State to elicit law rather question attempted which invokes presumptively tor’s State Federal, failure to that it is the latter appellant’s as to than so innocence, in this his it was sufficient is instructive protest specified” must be protec of his cannot offer less import of the law inform case. State law, “the federal tion than federal complaint. applicable safeguards 496, Samuel, citing 492 at 688 S.W.2d for the minimum standard represent states 515, v. 557 517 Zillender S.W.2d courts, are not and the state courts state Samuel, inas (Tex.Crim.App.1977). Just con their limited to those standards objec- appellant’s for specific grounds v. rights.” Heitman of state’s struction tion, immediately on the heels which came 681, (Tex.Crim.App. appel- prosecutor’s questions about 1991). in However, which innocence, protest lant’s failure to by both state right protected vokes Tex.R.App. from the context. law, provides law if the state federal even 33.1(a)(1)(A). art. PROC. federal, should than protection more reliance on Bar appeals’ The court of the trial court apprise be sufficient general proposi num and Cantu for the basis object on specifically that failure to tion context clear Because was in a waiver of will result grounds state objections referred counsel’s that defense applica misplaced. those commen- attempts to elicit to the state’s simply language in Bamum states ble silence, I post-arrest tary appellant’s in the objection to the exhibit “Appellant’s appeal. preserved the claim believe timely objec include a trial court did not Moreover, court erred I think the trial right under the on his asserted tion based objections. failing to sustain those Barnum Texas Constitution.” 1999). Ohio, 426 rely Doyle v. 782, should not (Tex.App.-Amarillo, We 2240, 49 L.Ed.2d 96 S.Ct. opinion information in the U.S. There is no (1976) that the federal holding support Bamum trial about what the silence Therefore, protects way is no constitution there include. *10 only warnings after Miranda right may have been them. The to remain silent be given. Doyle important the most in rights decided the basis those process, due not the Fifth criminal context. Amendment. Moreover, Doyle presumed in it Doyle, At the time of Miranda was 14 warnings given, making
Miranda had been years Doyle old and was described as “a unnecessary pre- to address the limits of prophylactic safeguarding means of warning protections: rights.” Doyle Amendment at S.Ct. question in these consolidated cases years 2244. Miranda is now old and
is prosecutor may whether state seek ingrained has in our legal become and impeach exculpatory defendant’s popular cultures. now live in a We world story, trial, told for by the first time at by portray saturated television shows that cross-examining the defendant about his law enforcement. Miranda warnings are failure to have told story after re- suspects read to television dozens of times ceiving Miranda warnings at the time of each week. School children can recite his arrest. We conclude that use of the that, say them. Yet we now if one al- is silence this ready right aware one’s to remain silent manner process, violates due and there- and chooses to act on that knowledge, one fore reverse the peti- convictions of both it; penalized will be pr e-Miranda tioners. refusal or failure to talk to police is fair game Ohio, at trial. This turns Doyle 611, Miranda on its U.S. 96 S.Ct. opens head and the door to gamesmanship.
Police do not
to give warnings
have
unless
* * *
subject
questioned.
they
If
do
initiate
questioning
subject,
then the
[Appellants]
stopped
min-
within
subject’s
police
failure to talk to
or failure
by
police
utes
...
acting on radioed
to ask to talk to police can be used as
instructions from
agents.
the narcotics
if,
here,
guilt
evidence of
even
Beamer,
agents,
One of those
Kenneth
subject may
being
be unaware of
un-
arrived on the
promptly,
scene
arrested
suspicion
der
or having pending charges.
petitioners,
gave
them Miranda
Surely, our
un-
guaranties,
warnings.
provi-
der either or both federal and state
Id. at
police. warnings Miranda makes subjects rights
sure all know their given opportunity are to exercise