Taylor v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Moon *
Argued at Salem, Virginia

WILLIAM THOMAS TAYLOR
OPINION BY
v. Record No. 2083-96-3 JUDGE SAM W. COLEMAN III
FEBRUARY 3, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
B. Leigh Drewry, Jr., for appellant.

Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

The issue in this criminal appeal is whether a defendant's

tacit admission by silence following a police officer's question

in a non-custodial setting was erroneously admitted into evidence

in violation of the constitutional protections afforded by the

Fifth Amendment to the United States Constitution and Article I,

Section 8 of the Virginia Constitution.

William Thomas Taylor was convicted of possessing a firearm

after having been convicted of a felony in violation of Code

§ 18.2-308.2 and of carrying a concealed weapon in violation of

Code § 18.2-308. At trial, the Commonwealth introduced evidence

during its case-in-chief that when the investigating officer

asked Taylor, who was being treated at a hospital for injuries
*
When the case was argued Judge Moon presided. Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.
Judge Moon participated in the hearing and decision of this case
prior to his retirement on November 25, 1997.
received in a motor vehicle accident, whether the firearm

discovered in Taylor's van belonged to him, Taylor remained

silent. The Commonwealth introduced such evidence as a tacit

admission from which the fact finder would be permitted to infer

that Taylor admitted by his silence that he owned the firearm. 1

We hold that the trial court erred by admitting the evidence

because proof that the appellant remained silent impermissibly

burdened the exercise of his privilege against compelled

self-incrimination under the Fifth Amendment of the United States

Constitution and Article I, Section 8 of the Virginia

Constitution.
I. BACKGROUND

When Amherst County Deputy Sheriff Lindy Inge responded to

the scene of a single-vehicle accident, he observed the appellant

resting against a heavily damaged van. Deputy Inge determined

that the appellant was injured and called for an ambulance.

While surveying the damage to the van, Inge observed the interior

of the van through an open door. He saw a handgun in the

driver's door compartment and seized it.

Later, Inge went to the appellant's hospital room to

investigate the accident. During the interview, Inge asked the

1
The appellant does not challenge on appeal the evidentiary
issue of whether the police officer's question was the type of
accusation that would permit the fact finder to infer a tacit
admission. See Clemmer v. Commonwealth, 208 Va. 661, 664-66, 159
S.E.2d 664, 665-66 (1968); Weinbender v. Commonwealth, 12 Va.
App. 323, 325-28, 398 S.E.2d 106, 107-08 (1990).

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appellant whether he owned the gun found in the van. The

appellant did not respond.

At trial, Inge testified in the Commonwealth's

case-in-chief, over objection by the appellant on constitutional

grounds, that the appellant remained silent in response to the

question regarding ownership of the gun. 2 The trial court

overruled the objection, and this appeal followed.

II. ANALYSIS
This appeal raises fundamental questions about the breadth
2
The colloquy at trial occurred as follows:

COMMONWEALTH'S ATTORNEY: Can you tell the
Judge whether or not you asked Mr. Taylor
about the pistol?

DEPUTY INGE: I asked Mr. Taylor about the
pistol at the hospital, and he just never
responded with any answer.

* * * * * * *

DEFENSE COUNSEL: Judge, I object. He didn't
respond, and anything that comes out can't be
used against the defendant or him exercising
his right can't be -- the Fifth Amendment
can't be used against him.

Although the appellant objected to the admissibility of the
evidence on the ground that proof of silence violated the Fifth
Amendment of the United States Constitution, he argues on appeal
that admission of the evidence violates Article I, Section 8 of
the Virginia Constitution and he does not expressly rely upon the
Fifth Amendment of the United States Constitution. Because the
Virginia and federal constitutional privileges are construed
identically, Flanary v. Commonwealth, 113 Va. 775, 779, 75 S.E.
289, 291 (1912), the appellant's objection at trial on Fifth
Amendment grounds was sufficient to preserve for appeal his
challenge based on Article I, Section 8 of the Virginia
Constitution. See Rule 5A:18.

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and scope of the constitutional privileges against compelled

self-incrimination. Article I, Section 8 of the Virginia

Constitution provides, in pertinent part, that a person may not

"be compelled in any criminal proceeding to give evidence against

himself." The privilege under the Virginia Constitution is "in

effect, identical" to the privilege against self-incrimination

afforded under the Fifth Amendment of the United States

Constitution. Flanary v. Commonwealth, 113 Va. 775, 779, 75 S.E.

289, 291 (1912). See also Farmer v. Commonwealth, 12 Va. App.

337, 340, 404 S.E.2d 371, 372 (1991) (en banc). Accordingly, we

apply Fifth Amendment principles in addressing the challenge

under Article I, Section 8. See Walton v. City of Roanoke, 204

Va. 678, 682, 133 S.E.2d 315, 318 (1963); Farmer, 12 Va. App. at

340, 404 S.E.2d at 372.

The Fifth Amendment to the Federal Constitution provides

that "no person shall . . . be compelled in any criminal case to

be a witness against himself." U.S. Const. amend V. An

individual may assert this privilege whenever the government

seeks to compel self-incriminating testimonial or communicative

evidence. See Ronald J. Bacigal, Virginia Criminal Procedure

§ 7-1, at 129, § 7-11, at 154 (3d ed. 1994). The privilege

arises before the institution of formal adversarial proceedings,

and may be asserted in investigatory as well as adjudicatory

settings. See Kastigar v. United States, 406 U.S. 441, 444

(1972); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017

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(7th Cir. 1987) (comparing attachment of Sixth Amendment right to

counsel only after a defendant becomes an "accused" with Fifth

Amendment mandate that no "person" shall be compelled to provide

incriminating evidence against himself).

"The major thrust of the policies undergirding the privilege

is to prevent [government] compulsion." Doe v. United States,

487 U.S. 201, 212 (1988). Fundamental to that concept is the

principle that the government may not compel a defendant to

testify at trial. See Miranda v. Arizona, 384 U.S. 436, 461

(1966); Gosling v. Commonwealth, 14 Va. App. 158, 165-66, 415

S.E.2d 870, 874 (1992). The privilege also extends to situations

where an accused or suspect who is in custody may feel compelled

to verbally disclose incriminating evidence to a government

agent. Miranda, 384 U.S. at 479. In furtherance of this policy,

the Supreme Court has held that because government compulsion

inheres in the coercive environment of a custodial interrogation

following an arrest, an accused must be expressly informed of the

Fifth Amendment "right to remain silent" and warned that

"anything he says may be used against him." Id. at 461.

This appeal raises a more difficult question than whether

the government may require an accused to testify in a criminal

proceeding or compel the person to answer questions while in

custody. The issue here is whether the Fifth Amendment affords

any protection to an individual who is not compelled to testify

or speak from having the person's exercise of his fundamental

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right to remain silent from being used in a judicial proceeding

as an admission of guilt. In other words, do the constitutional

privileges against self-incrimination protect a defendant's

pre-custodial silence in response to police questioning from

being introduced as substantive evidence of guilt in the

government's case-in-chief. 3 Although the Supreme Court has not

expressly addressed this issue, 4 its decisions regarding the

government's use of an accused's silence at trial and the scope

of the Fifth Amendment privilege are instructive.
In Doyle v. Ohio, 426 U.S. 610 (1976), the Court held that

the government's impeachment use of a defendant's silence during

a custodial police interrogation violates the defendant's due

process rights because the Miranda warnings given after arrest

contain "implicit assurances" that the government will not

penalize such silence. 426 U.S. at 617. In so holding, the

Court noted that "every post-arrest silence is insolubly

ambiguous because of what the State is required to advise" the

defendant. Id. (emphasis added). In this case, however, the
3
Our opinion does not affect whether the Commonwealth may in
an appropriate situation introduce evidence of silence as a tacit
admission to an accusation made by a nongovernmental actor. See
Baughan v. Commonwealth, 206 Va. 28, 141 S.E.2d 750 (1965).
4
The Supreme Court has implied that the privilege against
self-incrimination precludes the substantive use of a defendant's
silence. See United States v. Robinson, 485 U.S. 25, 32 (1988)
(holding that prosecutorial comment on defendant's silence in
response to defense counsel's claim that the government unfairly
denied him opportunity to explain his actions did not violate
privilege because "the prosecutorial comment did not treat the
defendant's silence as substantive evidence of guilt").

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appellant chose to remain silent prior to being placed into

custody. The officer was not required to provide Miranda

warnings. Because the appellant did not rely on any "assurances"

in remaining silent before arrest, Doyle's due process approach

that prohibits the government's use of silence, although

informative, does not directly apply here. Cf. Fletcher v. Weir,

455 U.S. 603, 605-06 (1982) (per curiam) (holding that government

did not violate defendant's due process rights under Doyle by

using his silence as impeachment evidence because he did not rely

on implicit assurances from government where government had

placed defendant into custody but had not provided him Miranda
warnings).

In Griffin v. California, 380 U.S. 609 (1965), the

prosecution sought to infer the defendant's guilt by commenting

on the defendant's failure to testify at trial. 380 U.S. at 615.

In holding that the Fifth Amendment forbids the substantive use

or comment upon Griffin's refusal to testify, the Court broadly

stated that the government could not impose a penalty on a

defendant's exercise of the Fifth Amendment privilege. Id. at

614. The Court determined that this use of Griffin's silence

"cuts down on the privilege by making its assertion costly." Id.

In doing so, Griffin noted that prosecutorial comment on the

refusal to testify is a "remnant of the 'inquisitorial system of

criminal justice' which the Fifth Amendment outlaws." Id.

(quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964)).

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 In Jenkins v. Anderson, 447 U.S. 231 (1980), the defendant

testified at his murder trial that he killed the victim in

self-defense. 447 U.S. at 233. The prosecution sought to

impeach Jenkins' credibility by presenting evidence that, prior

to his arrest, he failed to tell anyone that he killed in

self-defense. Id. at 233-34. Jenkins claimed that proof of his

pre-arrest failure to give this explanation violated his Fifth

Amendment privilege against self-incrimination. Id. at 234.
In Jenkins, the Court examined whether the impeachment use

of Jenkins' pre-arrest silence impermissibly burdened the

exercise of his Fifth Amendment privilege. Id. at 237-38. The

Court considered "whether [the government's action] impairs to an

appreciable extent any of the policies behind the [privilege],"

id. at 237, as well as "the legitimacy of the challenged

governmental practice." Id. at 238.

The Jenkins Court recognized that impeachment use of silence

may be valuable to the trial process while imposing very little

burden upon the individual's right to remain silent. Id. The

Court noted that impeachment enhances the reliability of trial

evidence and allows the government to test the credibility of an

accused who voluntarily elects to testify. Id. The Court found

the burden on the privilege to be minimal when silence is used

for impeachment because "impeachment follows the defendant's own

decision to cast aside his cloak of silence" by testifying. Id.

"Once a defendant decides to testify, '[t]he interests of the

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other party and regard for the function of the courts of justice

to ascertain the truth become relevant and prevail in the balance

of considerations determining the scope and limits of the

privilege against self-incrimination.'" Id. (quoting Brown v.

United States, 356 U.S. 148, 156 (1958)). Accordingly, the

impeachment use of Jenkins' silence did not "impermissibly

burden" his exercise of the privilege and was, thus, allowable

under the Fifth Amendment. 5 Jenkins, 447 U.S. at 238.
As Griffin and Jenkins make clear, in defining the

protection that the Fifth Amendment provides against the

government's using a person's silence as evidence, we must

examine the burden on the exercise of the privilege imposed by

the government's practice. See Dean v. Commonwealth, 209 Va.

666, 670, 166 S.E.2d 228, 231 (1969) (relying on Griffin and

determining that Fifth Amendment precludes prosecution's use of a

defendant's refusal to testify in another trial because "[t]he

value of constitutional privileges is largely destroyed if

persons can be penalized from relying on them" (quoting Grunewald
v. United States, 353 U.S. 391, 425 (1957) (Black, J.

concurring))). Furthermore, we must consider the utility of the

government's use of silence in the trial process. Jenkins, 447

U.S. at 238. Applying the Supreme Court's approach, we balance

5
In Jenkins, Justice Powell noted, but reserved comment on,
the issue before us as to whether the privilege foreclosed the
government's substantive use of a defendant's pre-arrest silence.
See 447 U.S. at 236 n.2.

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the government's interest in using the appellant's pre-arrest

silence as substantive evidence of guilt against the burden such

use imposes on the policies underlying the privilege against

self-incrimination. 6 Cf. Miranda, 384 U.S. at 460-61 ("The

privilege . . . has always been [considered] 'as broad as the

mischief against which it seeks to guard.'" (quoting Counselman

v. Hitchcock, 142 U.S. 547, 562 (1892))).
6
Although the Commonwealth contends that the Fifth Amendment
affords no protection for use of a defendant's silence unless
government coercion exists from a custodial or arrest
interrogation, a number of courts have applied Griffin's broad
mandate that the Fifth Amendment forbids "comment on the
accused's silence" to preclude the substantive use of any silence
exercised by the defendant. See, e.g., United States v. Burson,
952 F.2d 1196, 1200-01 (10th Cir. 1991); Coppola v. Powell, 878
F.2d 1562, 1567-68 (1st Cir. 1989); United States ex rel. Savory
v. Lane, 832 F.2d 1011, 1018 (7th Cir. 1987); State v. Easter,
922 P.2d 1285, 1290-91 (Wash. 1996). The Supreme Court has yet
to decide whether pre-arrest silence is "privileged" in the same
manner as a defendant's refusal to testify.
Several courts have held, as the Commonwealth urges that we
hold, that evidence of an accused's pre-arrest silence does not
violate the Fifth Amendment in the absence of government
compulsion to speak or remain silent prior to arrest. See, e.g.,
United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996);
United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991);
State v. Dreher, 695 A.2d 672, 704-06 (N.J. Super. Ct. App. Div.
1997); State v. Houle, 642 A.2d 1178, 1181 (Vt. 1994). In so
holding, those courts adopted the rationale espoused by Justice
Stevens in his concurrence to Jenkins. According to Justice
Stevens, "[w]hen a citizen is under no official compulsion to
speak or to remain silent . . . his voluntary decision to do so
raises [no] issue under the Fifth Amendment." Jenkins, 447 U.S.
at 241 (Stevens, J. concurring). Justice Stevens further opined
that pre-arrest silence may be used "not only for impeachment but
also in rebuttal even had [the defendant] not taken the stand."
Id. at 244 n.7 (Stevens, J. concurring). The majority in Jenkins
did not embrace Justice Stevens' approach. It considered whether
the Fifth Amendment privilege had been "burdened impermissibly."
Id. at 238. We follow the approach employed by the Jenkins
majority.

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 The Commonwealth's sole objective in introducing evidence of

the appellant's silence was as substantive evidence to prove his

guilt. Cf. Baxter v. Palmigiano, 425 U.S. 308, 319 (1976)

(distinguishing government practice in Griffin from substantive

use of silence in prison disciplinary proceeding because such

proceedings involve correctional process, not criminal process,

and entail important state interests other than conviction for

crime). Here, the appellant did not testify. Thus, unlike as in
Jenkins, the Commonwealth's use of the appellant's silence did

not "enhance the reliability of the criminal process" through

impeachment because the appellant's credibility was not at issue.

Jenkins, 447 U.S. at 238. Rather, the Commonwealth sought to

use the appellant's silence in response to Deputy Inge's

incriminating question as to ownership of the gun as a tacit

admission that appellant possessed the gun. The probative value

of the evidence as an admission is doubtful at best because

Deputy Inge's question was not so clearly accusatory that it
7
satisfied the requirements for a tacit admission of guilt.
7
Generally, where an accusatory statement is made that a
person who considered himself inculpable would deny, the person's
silence in the face of the accusation may be admitted as a tacit
admission. See generally, Weinbender v. Commonwealth, 12 Va.
App. 323, 398 S.E.2d 106 (1990); E. Cleary, McCormick on Evidence
§ 160 (1988) at 650-51. In certain circumstances, a question may
not constitute an accusation for purposes of the tacit admission
rule. Compare United States v. Hove, 52 F.3d 233, 237 (9th Cir.
1995) (investigator's questioning as to why defendant executed
various cashier's checks on same day was not accusation of
"structuring" larceny transactions), with Commonwealth v.
Olszewski, 625 N.E.2d 529, 533 (Mass. 1993) (friend's question
which asks "[w]hy did you do it?" posed to defendant
approximately two weeks after murder was accusation of murder),

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Moreover, appellant may have chosen to not answer the question

and to remain silent for any number of reasons. 8 Accordingly,

the Commonwealth's substantive use of the appellant's silence did

not significantly "advance[] the truth-finding function of the

criminal trial." Jenkins, 447 U.S. at 238.

Conversely, the substantive use of the appellant's

pre-arrest silence substantially burdened the policies underlying

the privilege against requiring a person to give statements that

may be incriminating. 9 First, such use offends the privilege's
(..continued)
and State v. Pisauro, 540 P.2d 447, 448, 450 (Wash. App. 1975)
(question responding to defendant's statement that guns "came
from California" which asks whether the guns are stolen held an
accusation).
8
Several courts have held that a person may remain silent in
the face of police accusations or questions for reasons other
than acquiescence to an accusation of guilt. See, e.g., State v.
Daniels, 556 A.2d 1040, 1046 (Conn. App. 1989) (distrust or
hostility toward law enforcement personnel); Silvernail v. State,
777 P.2d 1169 (Alaska App. 1989) (perception that denial will be
met with disbelief and efforts to exonerate are futile); Farley
v. State, 717 P.2d 111, 112 (Okla. Crim. App. 1986) (belief that
because innocent denial not required); People v. Conyers, 420
N.E.2d 933, 935 (N.Y. 1981) (vague awareness of a legal right to
remain silent); cf. United States v. Hale, 422 U.S. 171, 176
(1975) ("In most circumstances silence is so ambiguous that it is
of little probative value."). In this vein, many courts have
excluded such evidence because its prejudicial effect outweighs
its slight probative value. Id.
9
The Supreme Court articulated the policies underlying the
Fifth Amendment privilege against self-incrimination in Murphy v.
Waterfront Comm'n, 378 U.S. 52 (1964). The Court stated that the
privilege was founded on:

[an] unwillingness to subject those suspected
of crime to the cruel trilemma of
self-accusation, perjury or contempt; [a]
preference for an accusatorial rather than an
inquisitorial system of criminal
justice . . . our sense of fair play which

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unwillingness to subject persons to the "cruel trilemma" of

perjury, contempt or self-accusation. Murphy, 378 U.S. at 55.

Were we to hold that silence in response to a police officer's

question may be used as substantive proof to infer a defendant's

guilt, then those suspected of crime who chose to remain silent

but are brought to trial will face a "new trilemma" of perjury,

self-accusation by statement or self-accusation by silence. Anne

B. Poulin, Evidentiary Use of Silence and the Constitutional
Privilege Against Self-Incrimination, 52 Geo. Wash. L. Rev. 191,

211 (1984). Paradoxically, if this view prevailed, a person who

chooses to remain silent or not cooperate with an investigation

for whatever reason would be subject to having his silence

affirmatively used against him to prove guilt, whereas the

suspect who is questioned in a custodial setting must be told

that he may remain silent and that the exercise of that right may

not affirmatively be used against him. If the Commonwealth were

permitted to use both a person's pre-arrest responses and his

silence in its case-in-chief, no avenues are available to a

person in a non-custodial situation that would avert
(..continued)
dictates "a fair state-individual balance by
requiring the government . . . in its contest
with the individual to shoulder the entire
load" . . . and [a] realization that the
privilege, while sometimes "a shelter to the
guilty," is often "a protection of the
innocent."

Id. at 55 (cited in Miranda, 384 U.S. at 460) (citations
omitted).

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self-incrimination. See State v. Easter, 922 P.2d 1285, 1291

(Wash. 1996).

Second, the substantive use of silence conflicts with the

privilege's function to "requir[e] the government in its contest

with the individual to shoulder the entire load" of producing

incriminating evidence. Murphy, 378 U.S. at 55. Here, when the

Commonwealth did not obtain an incriminating statement from the

appellant, it, in effect, constructed one from the appellant's

silence and presented it as an admission of guilt. To condone

such a practice would undermine the notion that the government

should accumulate evidence "by its own independent labors."
Miranda, 384 U.S. at 461.

Third, substantive use of silence impairs the privilege's

"preference for an accusatorial rather than an inquisitorial

system of criminal justice." Murphy, 378 U.S. at 55. In this

respect, the privilege "prohibits 'the prosecutor's use of any

language or other device which compels a defendant to testify.'"
Waldrop v. Commonwealth, 23 Va. App. 614, 622, 478 S.E.2d 723,

726 (1996), rev'd on other grounds, No. 970160 (Va. Jan. 9, 1998)

(quoting State v. Pierce, 439 N.W.2d 435, 444 (Neb. 1989)); cf.

Miranda, 384 U.S. at 461. To allow the Commonwealth to prove

that the appellant admitted his guilt by remaining silent in

response to police questions effectively burdened the appellant's

trial right not to testify because of the adverse inference that

would be drawn from his failure to respond to the prosecution's

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evidence of his silence. Cf. Waldrop, 23 Va. App. at 623, 478

S.E.2d at 727 (upholding prosecutor's pre-evidentiary comment

which "neither raised the expectation in the jury's mind that

appellant would testify nor challenged the jury to notice and

possibly draw an inference from whether or not appellant

testified").

Moreover, to permit the Commonwealth to prove that the

appellant tacitly admitted his guilt by remaining silent is

tantamount to allowing the Commonwealth to derive an involuntary

admission of guilt from the appellant. To accord a suspect less

protection where he exercises the basic and fundamental right to

not speak in response to non-custodial questions, when the

constitutions protect the right to remain silent in a custodial

situation, would be illogical. By allowing the jury to decide

that the appellant's silence was an admission of guilt, the

Commonwealth, in effect, "compelled" him to provide incriminating

testimony at trial. When the appellant remained silent and did

not speak to Deputy Inge or testify at trial, the Commonwealth

was allowed to prove that he nonetheless admitted ownership of

the handgun. See Miranda, 384 U.S. at 460 (quoting Malloy v.

Hogan, 378 U.S. 1, 8 (1964)) (holding that privilege provides

fundamental guarantee of "the right to 'remain silent unless he

chooses to speak by his own will'"). We can think of few other

techniques that would bring to bear this degree of direct

compulsion on a criminal defendant to "speak his guilt" before

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the jury. See Doe, 487 U.S. at 213 (holding that Fifth Amendment

serves "to spare the accused from having to reveal, directly or

indirectly, his knowledge of facts relating him to the offense"

(emphasis added)).

In summary, we find that the government's interest in using

the appellant's pre-arrest silence in response to a police

officer's question as substantive evidence of guilt is

substantially outweighed by the burden which such practice

imposes on the privilege against self-incrimination.

Accordingly, we hold that the Commonwealth's substantive use of

the appellant's silence impermissibly burdened the appellant's

exercise of his privilege against compelled self-incrimination

under Article I, Section 8 of the Virginia Constitution and that

the trial court erred by admitting the evidence.
Because the trial court's admission of the evidence was

constitutional error, we consider whether such error is harmless

beyond a reasonable doubt. See Scaggs v. Commonwealth, 5 Va.

App. 1, 6, 359 S.E.2d 830, 832 (1987). When an appellant's

constitutional rights have been violated, we will reverse his

conviction unless the Commonwealth proves that any constitutional

error was "harmless beyond a reasonable doubt." Schrum v.

Commonwealth, 219 Va. 204, 213, 246 S.E.2d 893, 899 (1978)

(citing Chapman v. California, 386 U.S. 18 (1967)); see Mason v.

Commonwealth, 7 Va. App. 339, 348, 373 S.E.2d 603, 608 (1988).

The Commonwealth has offered no proof or argument that proof of

- 16 -
the appellant's silence as an admission that he possessed the

handgun was harmless in this case, and we perceive of no basis

for such a holding. Admission of the evidence goes to the

ultimate issue of guilt. If the jury considered the appellant's

silence to be an admission that he owned the gun, which they were

permitted to do, then the evidence was prejudicial. Therefore,

the trial court's admission of the appellant's silence was

reversible error.
For the foregoing reasons, we reverse the appellant's

- 17 -
conviction and remand the case for a new trial consistent with

this opinion.

Reversed and remanded.

- 18 -
Benton, J., concurring.

I agree with the majority opinion that the Supreme Court of

Virginia has ruled that the Fifth Amendment to the Constitution

of the United States and Article I, Section 8 of the Constitution

of Virginia may be "consider[ed] . . . to be identical in their

application" in certain cases. Walton v. City of Roanoke, 204

Va. 678, 682, 133 S.E.2d 315, 318 (1963). See also Flanary v.

Commonwealth, 113 Va. 775, 779, 75 S.E. 289, 291 (1912) (stating

that the Fifth Amendment "is, in effect, identical" to Article I,

Section 8 of the Constitution of Virginia). However, because the

issue before this Court is solely the protection afforded by

Article I, Section 8 of the Constitution of Virginia, I would

decide this case independent of federal cases.
"It is fundamental that state courts [are] . . . free and

unfettered [by federal law] . . . in interpreting their state

constitutions." Minnesota v. National Tea Co., 309 U.S. 551, 557

(1940). However, a state court must provide a plain statement

that it is relying on independent and adequate state law and that

federal cases are being used for purposes of guidance only and do

not themselves compel the result reached. The appropriate role

of relevant federal case law must be clearly noted in the

opinion. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)

(presuming that a state court opinion not explicitly announcing

reliance on state law rests on reviewable federal law). See also
Collier v. City of Tacoma, 854 P.2d 1046, 1050 (Wash. 1993)

- 19 -
(stating that the federal cases cited in the decision "are used

for the purpose of guidance and do not themselves compel the

result the court reaches under our state constitution"). Accord

Cooper v. State, 889 P.2d 293, 308 (Okla. 1995); Immuno Ag. v.

Moor-Jankowski, 567 N.E.2d 1270, 1278 (N.Y. 1991); State v.

Carter, 370 S.E.2d 553, 555 (N.C. 1988); Kenyon v. Hammer, 688

P.2d 961, 963 (Ariz. 1984). 10 Because the federal cases do not
10
Other state courts have elaborated on the reasons for
independently interpreting their own state constitutions without
relying on the federal interpretation of similar federal
provisions. In State v. Breit, 930 P.2d 792, 801-02 (N.M. 1996),
the New Mexico Supreme Court stated:

[A]s a general principle, we need not, in
interpreting the provisions of our State
Constitution, adopt the standard that is
applicable to the comparable federal
provision. . . . We are bound by the
decisions of the United States Supreme Court
with regard to interpretation of the federal
constitution. Moreover, the decisions of
that Court greatly influence our own
interpretation of those provisions in our
State Constitution that correspond to federal
provisions. But, . . . when this Court
derives an interpretation of New Mexico law
from a federal opinion, our decision remains
the law of New Mexico even if federal
doctrine should later change. When citing to
federal case law, we do so because we find
persuasive the views expressed therein, and
because we recognize the value of uniformity
in advancement of application of the rights
guaranteed by both our state and federal
constitutions. But we are not bound to
interpret our State's Constitution or laws in
accordance with federal doctrine.

(Citations omitted). Likewise, in Commonwealth v. Rosenfelt, 662
A.2d 1131, 1140 (Pa. Super. 1995), the Pennsylvania Superior
Court stated:

"Although the wording of the Pennsylvania

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compel under state law the result that the majority opinion

reaches, I would clearly state that those cases are used only for

the purpose of guidance.

The principle is ancient in Virginia that Article I,

Section 8 of the Constitution of Virginia guarantees a person the

right to silence and to invoke the right against

self-incrimination whenever that person is the subject of

suspicion or investigation. See Cullen v. Commonwealth, 65 Va.

624 (1873). The right is self-executing, see art. I, § 8, and
does not depend upon whether circumstances of custodial

interrogation exist. A person's silence in response to police

questioning is emphatic indication of the person's invocation of

the right to remain silent. Moreover, prohibition of the

substantive use of pre-arrest silence will tend to discourage the

possibility that police will manipulate the timing of an arrest

to secure evidence that a person stood mute in the face of a

(..continued)
Constitution is similar in language to the
Fourth Amendment of the United States
Constitution, we are not bound to interpret
the two provisions as if they were mirror
images, even where the text is similar or
identical." Furthermore, "[a]s an
independent sovereign interpreting its own
constitution, which preceded the Federal Bill
of Rights, no presumptive validity should be
given to United States Supreme Court
interpretations of the Federal Constitution."
At best, such interpretations of Federal
Constitutional law have only persuasive
value.

(Citations omitted).

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police officer's accusation.

In short, using adequate and independent state grounds, I

would rule, as does the majority, as follows:
[W]e find that the government's interest
in using the appellant's pre-arrest silence
in response to a police officer's question as
substantive evidence of a tacit admission is
substantially outweighed by the burden which
such practice imposes on the privilege
against self-incrimination. Accordingly, we
hold that the Commonwealth's substantive use
of the appellant's silence impermissibly
burdened the appellant's exercise of his
privilege against compelled
self-incrimination under Article I, Section 8
of the Virginia Constitution and that the
trial court erred by admitting the evidence.

Thus, although I concur in the majority's holding and most

of its analysis of the weighing of the government's interest

against the burden that is imposed on the policies underlying the

privilege guaranteed by Article I, Section 8 of the Constitution

of Virginia, I would not rely on federal law to control the

analysis.

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