SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-11-0083-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 09-0903
PETE J. VANWINKLE, )
) Maricopa County
Appellant. ) Superior Court
) No. CR2008-113869-001 DT
)
)
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge
AFFIRMED
________________________________________________________________
Memorandum Decision of the Court of Appeals, Division One
Filed Mar. 24, 2011
VACATED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona
MICHAEL J. DEW Phoenix
Attorney for Pete J. VanWinkle
________________________________________________________________
H U R W I T Z, Vice Chief Justice
¶1 The question in this case is whether a defendant’s
post-custody, pre-Miranda silence may be used as evidence of
guilt.
I.
¶2 Petitioner Pete J. VanWinkle and four others — Mike,
Joel, Cory, and Gerry — were in Joel’s apartment.1 VanWinkle
shot Mike in the head. Gerry saw the shooting from the kitchen,
confronted VanWinkle, and disarmed him after a struggle. Cory,
who was in the bathroom at the time of the shooting, detained
VanWinkle while Joel called 911. When police arrived, Cory was
restraining VanWinkle on the second-floor balcony of the
apartment building.
¶3 The police ordered Cory to descend the stairs. He
complied, but exclaimed that VanWinkle was the shooter.
VanWinkle said nothing in response. The police then ordered
VanWinkle down the stairs and handcuffed him.
¶4 At VanWinkle’s trial for attempted murder and other
offenses, the prosecution introduced evidence of his silence in
the face of Cory’s allegation and argued to the jury that this
was a tacit admission of guilt. The trial court overruled
defense objections that admission of this evidence, and
prosecutorial comment on it, violated VanWinkle’s Fifth
1
“We view the facts in the light most favorable to upholding
the verdicts.” State v. Chappell, 225 Ariz. 229, 233 n.1 ¶ 2,
236 P.3d 1176, 1180 n.1 (2010).
2
Amendment privilege against self-incrimination. The jury found
VanWinkle guilty on all charged offenses.
¶5 The court of appeals affirmed. State v. VanWinkle,
No. 1 CA-CR 09-0903, 2011 WL 1086602 (Ariz. App. March 24, 2011)
(mem. decision). The court assumed that VanWinkle was in
custody when Cory made his accusation, but held that Miranda v.
Arizona, 384 U.S. 436, 444 (1966), did not apply because there
was no police interrogation. Id. at *2 ¶¶ 8-9.
¶6 We granted review to resolve an issue of statewide
importance. We have jurisdiction under Article 6, Section 5(3)
of the Arizona Constitution and A.R.S. § 12-120.24 (2003).
II.
A.
¶7 When a statement adverse to a defendant’s interests is
made in his presence and he fails to respond, evidence of the
statement and the defendant’s subsequent silence may be
admissible as a “‘tacit admission of the facts stated.’” State
v. Saiz, 103 Ariz. 567, 569, 447 P.2d 541, 543 (1968) (quoting
Ruth v. Rhodes, 66 Ariz. 129, 135, 185 P.2d 304, 308 (1947)).
The defendant must have been able to clearly hear the statement
and the circumstances must have been “‘such as naturally call
for a reply if [the defendant] did not intend to admit such
facts.’” Id. VanWinkle does not contend that his silence was
improperly treated as a tacit admission under the rules of
3
evidence,2 but rather only that it should have been excluded
under the Fifth Amendment.
B.
¶8 In Doyle v. Ohio, the Supreme Court of the United
States held that a defendant’s silence after arrest and after
being given Miranda warnings could not be used against him, even
for impeachment purposes. 426 U.S. 610, 617-20 (1976). The
Court found silence under such circumstances “insolubly
ambiguous” and possibly “nothing more than the arrestee’s
exercise of these Miranda rights.” Id. at 617. Six years
later, the Court held that post-arrest, pre-Miranda silence
could be used for impeachment if the defendant testified.
Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam); see
also Wainwright v. Greenfield, 474 U.S. 284 (1986) (holding that
a defendant’s post-arrest, post-Miranda silence cannot be used
in the prosecution’s case-in-chief); Jenkins v. Anderson, 447
2
Some courts have held in circumstances similar to those
here that silence is not admissible as an evidentiary matter.
See, e.g., Weitzel v. State, 863 A.2d 999, 1004-05 (Md. 2004)
(holding that in light of the depiction of Miranda warnings in
popular culture and the widespread knowledge that statements
made in the presence of police will be “used against you in a
court of law,” silence in the presence of police is too
ambiguous to be probative); People v. DeGeorge, 541 N.E.2d 11,
13 (N.Y. 1989) (holding that silence in police presence is
inadmissible because it is a natural reaction); Ex parte Marek,
556 So. 2d 375, 381 (Ala. 1989) (“[T]he accused might well
remain silent because he is angry, or frightened, or because he
thinks he has the right to remain silent that the mass media
have so well publicized.”).
4
U.S. 231 (1980) (concluding that the State may use a defendant’s
pre-arrest, pre-Miranda silence for impeachment). No Supreme
Court case addresses, however, whether the State’s use of post-
custody, pre-Miranda silence in its case-in-chief violates the
Fifth Amendment.
¶9 The State argues that this Court approved this
practice in State v. Ramirez, 178 Ariz. 116, 125, 871 P.2d 237,
246 (1994). But Ramirez did not involve prosecutorial comment
on a defendant’s silence. Rather, that case considered
prosecutorial comment on the defendant’s actual statements and
demeanor, and the opinion made plain that “[t]he prosecutor did
not comment on defendant’s post-arrest ‘failure to proclaim his
innocence’ or on defendant’s post-arrest silence.” Id.
Although Ramirez stated that “[a] prosecutor may . . . comment
on a defendant’s pre-Miranda warnings silence, either before or
after arrest,” id., that language was dictum. Thus, the
question before us is one of first impression in Arizona.
C.
¶10 We assume arguendo, as did the court of appeals, that
VanWinkle was in custody when Cory identified him as the
shooter. We agree with the court of appeals that because
VanWinkle’s silence was not in response to police interrogation,
its admission did not violate the Miranda rule. Miranda created
“a prophylactic means of safeguarding Fifth Amendment rights”
5
during custodial interrogation. Doyle, 426 U.S. at 617; see
also Dickerson v. United States, 530 U.S. 428, 432 (2000)
(noting constitutional underpinnings of Miranda). But the
Miranda rule is not violated when, as here, the defendant’s
silence was in response to an accusation made by a civilian
unaffiliated with the police before a warning could be given,
and there is no indication of any wrongdoing by the police.
¶11 But that does not end the analysis. The Fifth
Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const.
Amend. V. This privilege against self-incrimination is
incorporated into the Fourteenth Amendment’s due process clause.
Malloy v. Hogan, 378 U.S. 1, 6 (1964). “[T]he right to remain
silent derives from the Constitution and not from the Miranda
warnings themselves.” United States v. Velarde-Gomez, 269 F.3d
1023, 1029 (9th Cir. 2001) (en banc); see also State v. Easter,
922 P.2d 1285, 1290 (Wash. 1996) (“An accused’s right to silence
derives, not from Miranda, but from the Fifth Amendment
itself.”).
¶12 A defendant has the right to remain silent when it is
“evident from the implications of the question, in the setting
in which it is asked, that a responsive answer to the question
or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.” Hoffman
6
v. United States, 341 U.S. 479, 486-87 (1951). The prosecution
may not comment on a defendant’s exercise of his right to remain
silent. Griffin v. California, 380 U.S. 609, 615 (1965).
¶13 A majority of the federal appellate courts have held
that post-custody, pre-Miranda silence cannot be used as
evidence of a defendant’s guilt.3 Most of these cases involve
police questioning, and thus implicate Miranda’s prophylactic
rule. Two federal courts of appeals, however, have squarely
held that post-custody, pre-Miranda silence is not admissible in
the prosecution’s case-in-chief under the Fifth Amendment, even
absent police interrogation. See United States v. Whitehead,
200 F.3d 634, 637-39 (9th Cir. 2000); United States v. Moore,
104 F.3d 377, 384-90 (D.C. Cir. 1997). In Moore, the court
stated that “neither Miranda nor any other case suggests that a
defendant’s protected right to remain silent attaches only upon
3
The Seventh, Ninth, and District of Columbia Circuits have
found post-custody, pre-Miranda silence inadmissible. See
United States v. Hernandez, 948 F.2d 316, 321-24 (7th Cir.
1991); United States v. Whitehead, 200 F.3d 634, 637-39 (9th
Cir. 2000); United States v. Moore, 104 F.3d 377, 384-90 (D.C.
Cir. 1997). Other circuits have extended that ban to pre-arrest
silence. See Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st
Cir. 1989); Combs v. Coyle, 205 F.3d 269, 280-83 (6th Cir.
2000); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.
1991); but see United States v. Oplinger, 150 F.3d 1061 (9th
Cir. 1998), overruled on other grounds by United States v.
Contreras, 593 F.3d 1135 (9th Cir. 2010) (en banc) (per curiam).
The Fourth, Eighth, and Eleventh Circuits have found post-
custody, pre-Miranda silence admissible. United States v. Love,
767 F.2d 1052, 1063 (4th Cir. 1985); United States v. Frazier,
408 F.3d 1102, 1109-11 (8th Cir. 2005); United States v. Rivera,
944 F.2d 1563, 1567-68 (11th Cir. 1991).
7
the commencement of questioning as opposed to custody.” 104
F.3d at 385. The Ninth Circuit is in accord. See Whitehead,
200 F.3d at 639 (“[W]hen the district court admitted evidence of
Whitehead’s post-arrest, pre-Miranda silence . . . it plainly
infringed upon Whitehead’s privilege against self
incrimination.”).
¶14 We find persuasive the reasoning of the Ninth and
District of Columbia Circuits. The Fifth Amendment gives a
person the right to remain silent once in custody, even if
Miranda warnings have not yet been given. See Velarde-Gomez,
269 F.3d at 1029 (noting that Miranda warnings are not the
“genesis” of the right to remain silent); Ex parte Marek, 556
So. 2d 375, 382 (Ala. 1989) (“An individual with the right to
remain silent has the right to remain silent without regard to
whether an officer has told him of that right.”).
¶15 The State argues that VanWinkle had the right to
remain silent only if under police questioning. But “custody
and not interrogation is the triggering mechanism for the right
of pretrial silence.” Moore, 104 F.3d at 385. And, “the Fifth
Amendment’s protection does not vanish simply because a question
is posed or statement made by a third party in the presence of
police rather than by the police themselves.” United States v.
Yates, 524 F.2d 1282, 1285 n.8 (D.C. Cir. 1975). When a person
is in custody, even if police have not given Miranda warnings or
8
begun interrogation, the prosecution’s subsequent “comment on
the defendant’s exercise of his right to silence violates the
Fifth Amendment.” Velarde-Gomez, 269 F.3d at 1029.4 The right
to remain silent would mean little if the consequence of its
exercise is evidence of guilt. See Mitchell v. United States,
526 U.S. 314, 330 (1999) (“[T]here can be little doubt that the
rule prohibiting an inference of guilt from a defendant’s
rightful silence has become an essential feature of our legal
tradition.”). The trial court thus erred in admitting evidence
of VanWinkle’s silence as evidence of his guilt and allowing the
prosecution to comment on that silence.
III.
¶16 The admission of evidence of a defendant’s silence and
a prosecutor’s comment on that silence are subject to harmless
error review. State v. Guerra, 161 Ariz. 289, 297, 778 P.2d
1185, 1193 (1989). Error is harmless “if the state, in light of
4
The Fifth Amendment prohibits only compelled self-
incrimination. U.S. Const. Amend. V (providing that no one
“shall be compelled in any criminal case to be a witness against
himself”). It is not intuitively obvious that comment on a
defendant’s silence amounts to compulsion. Indeed, in dissent
in Griffin, Justice Stewart argued that the Court had
“stretche[d] the concept of compulsion beyond all reasonable
bounds.” 380 U.S. at 620 (Stewart, J., dissenting). Other
justices have expressed similar views. See Mitchell v. United
States, 526 U.S. 314, 331-40 (1999) (Scalia, J., dissenting);
Jenkins, 447 U.S. at 241-45 (Stevens, J., concurring in the
judgment); Doyle, 426 U.S. at 620-36 (Stevens, J., dissenting).
The Griffin majority, however, rejected Justice Stewart’s
position, 380 U.S. at 613-15, which has never commanded a
majority of the Court.
9
all of the evidence, can establish beyond a reasonable doubt
that the error did not contribute to or affect the verdict.”
State v. Valverde, 220 Ariz. 582, 585 ¶ 11, 208 P.3d 233, 236
(2009) (citation and internal quotation marks omitted).
¶17 The State has met that burden here. The four other
men at the scene, including the victim, gave consistent accounts
of what happened, each implicating VanWinkle. All four
testified that Cory was in the bathroom, Gerry was in the
kitchen, and the other three men were in the living room.5 All
gave consistent testimony regarding where VanWinkle, Mike, and
Joel were sitting in the living room and what was happening just
before the shooting. Gerry testified that he saw VanWinkle
shoot the victim. Joel testified that he saw VanWinkle holding
the gun immediately after he heard the gunshot. And police
officers testified without objection that both Joel and Cory had
identified VanWinkle as the shooter to police at the scene.
When police arrived, VanWinkle’s holster, which he was wearing,
was empty and his gun was on the living room floor. Ballistics
tests positively identified VanWinkle’s gun as having fired the
shot that wounded the victim.
¶18 While in jail, VanWinkle told an inmate that he had
shot Mike because he “wanted to kill somebody to see how it
5
Although Mike testified that he did not remember being
shot, he recalled clearly the events leading up to the shooting.
10
fe[lt].” VanWinkle also called Cory from jail apologizing for
the shooting and asked Cory not to testify against him. And,
VanWinkle did not object at trial to the introduction of Cory’s
accusation at the scene that VanWinkle was the shooter, but only
to the evidence of VanWinkle’s subsequent silence. Cory
testified at trial, and VanWinkle chose not to cross-examine him
about his statement.
¶19 Under the facts of this case, we find beyond a
reasonable doubt that the evidence of VanWinkle’s silence in the
face of Cory’s accusation and the prosecutor’s comment on that
silence did not contribute to or affect the verdicts.6
IV.
¶20 For the reasons above, we hold that the admission of
post-custody, pre-Miranda silence and prosecutorial comment on
such silence violate a defendant’s constitutional right to
remain silent. Accordingly, we vacate the decision of the court
of appeals, but affirm VanWinkle’s convictions and sentences
because we find the error in this case harmless.
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
6
We therefore need not address the State’s contention that
VanWinkle was not in custody when Cory made his accusation.
11
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
12