United States Court of Appeals
For the First Circuit
No. 06-1491
CHRISTOPHER ELLEN,
Petitioner, Appellant,
v.
BERNARD BRADY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
David J. Barend for appellant.
Randall E. Ravitz, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief for appellee.
January 26, 2007
LIPEZ, Circuit Judge. In this habeas case, petitioner
Christopher Ellen claims that his trial for assault in the
Massachusetts Superior Court violated the Due Process Clause of the
Fourteenth Amendment because it was tainted by testimony that he
remained silent after receiving Miranda warnings. The testimony by
the arresting officer was followed by an immediate objection,
lengthy discussion between counsel and the court, and, ultimately,
a directive from the court that the officer's testimony about
Ellen's silence be stricken from the record. The court also gave
emphatic instructions to the jury about the importance of the
defendant's right against self-incrimination and the state's burden
of proof. Ellen claims that, nonetheless, the officer's comment
and the court's response violated his due process rights. The
Massachusetts Appeals Court rejected Ellen's claim. We conclude
that its decision was neither contrary to, nor an unreasonable
application of, clearly established federal law. See 28 U.S.C. §
2254(d). Therefore, we affirm the decision of the district court
denying habeas relief.
I.
A. Factual Background
Adair Rowland lived alone in a house adjacent to Ellen's
in Amesbury, Massachusetts. On the evening of Sunday, July 25,
1999, Rowland returned home after attending a dinner party to
discover signs of a recent intruder in her bedroom. She phoned a
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friend, turned on a light, and opened her back door. While waiting
for her friend in the kitchen, Rowland heard a loud noise and saw
a man approaching her. This man, later identified as Ellen, was
wearing only a pair of shorts, and he had tube socks over his
hands. Ellen hit Rowland in the face, threw her against the
counter and then onto the floor. He also shut and locked the back
door she had just opened. Ellen then attempted to strangle her,
using a sash from her high school prom dress that he had taken from
a storage box in the attic.
Suddenly, Ellen ceased strangling Rowland and released
her. She asked who he was. He said that he was insane, and that
they were both victims. A neighbor heard the commotion in
Rowland's kitchen and called the police, who arrived shortly after
Ellen stopped his attack. The two officers who arrived at the
house first reported that Ellen was sweaty and bloody, and was
still wearing only shorts. Rowland was experiencing difficulty
breathing, had multiple bruises and abrasions, and appeared to be
in shock.
Ellen admitted to the officers that he had hit Rowland
but stated that he did not know why he had done so. The officers
subsequently searched Rowland's house, and found additional pieces
of clothing, taken from her bedroom closet and the storage box in
the attic, which were knotted, ripped, tied to furniture, or strewn
about. The phone in Rowland's bedroom had been unplugged; the
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bulkhead door providing access to Rowland's basement had been
wedged open.
Ellen was taken to the Amesbury police station, where he
was booked by Officer Ouellet and given Miranda warnings. He
declined to make any statements at that time. Ellen was tried in
October 2000 on four charges: burglary with assault on an occupant,
assault and battery with a dangerous weapon, assault with intent to
murder, and assault with intent to rape. At trial, Ouellet
testified at length about the chronology of events on the night of
the crime. At the end of a series of questions about the Miranda
warnings given during the booking process, Ouellet was asked what
he said to Ellen or did with him. Ouellet replied, arguably non-
responsively, that Ellen declined to make a statement to the police
at that time.1
1
The relevant portion of the exchange between the prosecutor and
Ouellet was as follows:
Q. Okay. As part of the booking process was he given
what is known as the Miranda warning?
A. Yes, he was.
Q. And where does that fit into the procedure of
booking?
A. Sometimes during booking it can be given at the
beginning, the middle, the end, or during.
Q. On this particular occasion do you recall when you
did that?
A. I can't recall exactly when.
Q. What procedure did you follow in giving him his
Miranda warning?
A. He was asked to read his Miranda warning on the board
in front of him, the wall beside him, and have him read
it along with me as I am reading it from a card to him.
Q. Did he read it out loud?
A. No.
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Immediately after this answer, defense counsel objected
and the lawyers and trial judge engaged in a sidebar discussion.
Ellen's lawyer requested a mistrial, but the judge asked for
argument and some research on the constitutional implications of
the prosecutor's question and the officer's answer. While the jury
took a recess, the lawyers presented arguments to the judge. After
reviewing relevant cases, the judge decided that an immediate
curative instruction could resolve the problem and that a mistrial
was unnecessary. Defense counsel again objected and argued that an
instruction to the jury would exacerbate the error. Nonetheless,
the judge recalled the jury, sustained the objection, struck
Officer Ouellet's final answer from the record, and gave a lengthy
instruction on the burden of proof and the right against self-
Q. Did you read it out loud to him?
A. Yes.
Q. After each warning did you ask him if he had any
questions?
A. Yes.
Q. Did he respond to that?
A. Yes.
Q. Did he have any questions?
A. He had no questions.
Q. After completing the Miranda warning, did you read
off a small green card?
A. Yes.
Q. And that is the procedure you use at the Amesbury
Police Station?
A. Correct.
Q. At the conclusion of giving him his Miranda warning,
what, if anything, did you say or do with him?
A. On the bottom of the card is, you know, Do you wish
to speak to me now, is on the bottom of it. And on that,
when I asked him to sign it, he printed the word no, and
signed the card.
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incrimination. The judge also explicitly told the jurors that they
could not draw any adverse inferences from the challenged
testimony.2 Defense counsel unsuccessfully renewed his motion for
a mistrial.
Ellen's defense was that he experienced a dissociative
episode on the night in question, and thus was not guilty by reason
of insanity. He testified that he had no memory of his entry into
2
Since the particular language of the instruction is relevant to
our subsequent legal analysis, we include an excerpt of the
instruction here.
Just before we broke, there was a question that was
asked by the prosecutor with regard to Mr. Ellen being
given his so-called Miranda rights. . . . And one of
those [constitutional] principles is that we are
presumed, should we be charged with a crime, we are
presumed to be innocent, and that we cannot be forced to
testify against ourselves.
In other words, we have protection against
incrimination, self-incrimination. And those are very
important principles of law that I touched on briefly,
will define and discuss in more detail at the end of the
case. . . .
And so the defendant doesn't have to do anything.
No defendant in a criminal case has to do anything when
they're charged. They don't have to present witnesses,
they don't have to present exhibits, they don't have to,
they don't have to say anything. . . .
And what goes with that is that when someone chooses
to avail themselves of that important constitutional
right . . . that should never be used against you. A
jury should never say, well, you know, he said he didn't
want to talk, that must mean something. That would be
wrong. And so that was an improper question that was put
to the witness to the extent the witness responded and
said, and gave the answer that he did.
So what I'm going to do is strike that answer that
you heard from the police officer and tell you and
instruct you that you are to disregard that. And I
wanted you to understand why. . . .
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Rowland's house, or of his attack on her. Ellen also offered the
testimony of a psychiatrist who described various traumas in
Ellen's past. The psychiatrist opined that Ellen experienced two
prior incidents that were consistent with a diagnosis of
dissociative episodes, and that Ellen's behavior and symptoms on
July 25, 1999 were indicative of a third dissociative episode.
After Officer Ouellet's testimony and the judge's curative
instruction, no other reference was made to Ellen's post-Miranda
silence, either by a witness, or in the prosecutor's closing
argument.
B. Procedural Background
Ellen's conviction on three of the assault charges was
affirmed by the Massachusetts Appeals Court.3 The state court held
that Ouellet's disclosure that Ellen declined to speak to the
police after being given his Miranda warnings was not error because
the testimony was stricken from the record and the judge gave a
curative instruction. Commonwealth v. Ellen, 797 N.E.2d 946, 946
(Mass. App. Ct. 2003) (unpublished). Because the court found no
error, it did not discuss the issue of prejudice to the defendant.4
3
The trial court entered judgment as a matter of law for the
defendant on the charge of assault with intent to rape.
4
Ellen also argued to the state appeals court that the prosecutor
made numerous inappropriate comments in his closing argument and
that there was insufficient evidence to support the nighttime
element of the burglary charge. 797 N.E.2d at 946. The court
rejected both of these claims as well.
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Ellen's application to the Supreme Judicial Court for further
appellate review was denied.
Ellen filed a petition for a writ of habeas corpus in the
district court, claiming only that Officer Ouellet's disclosure of
his post-Miranda silence and the trial court's response to it was
a violation of his due process rights. The district court denied
the petition in a brief ruling from the bench. The court also
granted a certificate of appealability "as to the Issue of Post-
Miranda Silence" and Ellen filed this appeal.
II.
We review the district court's denial of habeas relief de
novo. See, e.g., Caputo v. Nelson, 455 F.3d 45, 49 (1st Cir.
2006). The question we must address is whether the Massachusetts
Appeals Court's finding that no constitutional error occurred was
either contrary to, or an unreasonable application of, clearly
established federal case law. 28 U.S.C. § 2254(d)(1).5 We must
first identify what constitutes the relevant "clearly established
Federal law, as determined by the Supreme Court." Id. We will
then consider whether the Appeals Court's decision was "contrary
5
The Antiterrorism and Effective Death Penalty Act ("AEDPA") also
provides for habeas relief if a federal court finds that the state
court adjudication "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
Ellen has not claimed that the state court made any unreasonable
factual determinations. Therefore, § 2254(d)(2) is not applicable
here.
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to" that law, as that term has been narrowly defined by the Supreme
Court. Finally, we will examine whether the state court decision
was an unreasonable application of the clearly established law. In
making this evaluation of the state court's decision, we do not
focus on the quality of the court's reasoning but rather on the
reasonableness of the outcome. Hurtado v. Tucker, 245 F.3d 7, 20
(1st Cir. 2001) ("The ultimate question on habeas, however, is not
how well reasoned the state court decision is, but whether the
outcome is reasonable.").
A. The "Clearly Established" Law
We begin with a brief survey of the relevant "clearly
established" federal law at the time of the state court's decision.
Williams v. Taylor, 529 U.S. 362, 379 (2000) (citing 28 U.S.C. §
2254(d)(1)). Our inquiry into whether a particular legal rule is
clearly established is de novo. The federal courts "must make an
independent evaluation of the precedent existing at the time the
state conviction became final." Wright v. West, 505 U.S. 277, 305
(1992) (O'Connor, J., concurring in the judgment).
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court held that an individual's exercise of his right against self-
incrimination cannot be used against him. Id. at 468 n.37 ("In
accord with our decision today, it is impermissible to penalize an
individual for exercising his Fifth Amendment privilege when he is
under police custodial interrogation. The prosecution may not,
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therefore, use at trial the fact that he stood mute or claimed his
privilege in the face of accusation."). It has long been clear,
therefore, that a defendant's silence in response to the
prophylactic Miranda warnings cannot be used as substantive
evidence of his guilt. Id.
In Doyle v. Ohio, 426 U.S. 610 (1976), the two defendants
claimed in their separate trials that they had been framed by a
government informant. Given this defense, the prosecutor asked
during extensive cross-examination of each defendant why he said
nothing about being framed at the time of his arrest. Id. at 613-
14. The prosecutor repeatedly asked the defendants whether they
had "told [the arresting officer] all about what happened to
[them]" and why they didn't "protest [their] innocence." Id. The
state claimed that these questions by the prosecutor were a
justified form of impeachment because the defendants were offering
at trial a new exculpatory account of the events. Id. at 616-17.
The Supreme Court rejected the state's attempt to
distinguish impeachment from substantive evidence of guilt, holding
that "the use for impeachment purposes of petitioners' silence, at
the time of arrest and after receiving Miranda warnings, violated
the Due Process Clause of the Fourteenth Amendment." Id. at 619.
The Court based its decision on the assurances of fairness implicit
in the Miranda warnings:
[W]hile it is true that the Miranda warnings
contain no express assurance that silence will
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carry no penalty, such assurance is implicit
to any person who receives the warnings. In
such circumstances, it would be fundamentally
unfair and a deprivation of due process to
allow the arrested person's silence to be used
to impeach an explanation subsequently offered
at trial.
Id. at 618.
The Supreme Court held the Doyle rationale equally
applicable where the prosecutor seeks to use evidence of a
defendant's post-Miranda silence as evidence of the defendant's
mental state. In Wainwright v. Greenfield, 474 U.S. 284 (1986),
the prosecutor asked each of the two arresting officers about the
multiple occasions on which the defendant invoked his right to
remain silent following the Miranda warnings. Id. at 286-87.
There, the defendant pled not guilty by reason of insanity, and the
prosecutor sought to show that his decision to remain silent after
arrest demonstrated his mental competence. Id. at 287. The
Supreme Court reaffirmed its reasoning in Doyle, citing the
unfairness of promising "an arrested person that his silence will
not be used against him and thereafter [] breach[ing] that promise
by using the silence to impeach his trial testimony." Id. at 292.
The Court concluded that the same unfairness would result from
using post-Miranda silence as evidence of sanity: "[t]he implicit
promise, the breach, and the consequent penalty are identical in
both situations." Id.
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However, mere reference to a defendant's post-Miranda
silence does not necessarily amount to a due process violation. In
Greer v. Miller, 483 U.S. 756 (1987), the prosecutor's second
question to the defendant was "Why didn't you tell this story to
anybody when you got arrested?". Id. at 759. Defense counsel
objected to the question before the defendant could answer. The
judge sustained the objection and instructed the jury to ignore the
question, but gave no explanation for the ruling. The trial
continued without further reference to the defendant's silence
after receiving the Miranda warnings. The Supreme Court held that
there was no due process violation in these circumstances because
"[t]he fact of [the defendant's] postarrest silence was not
submitted to the jury as evidence from which it was allowed to draw
any permissible inference." Id. at 764-65.
We draw from Greer this proposition: in cases where a
prosecutor refers to the defendant's post-Miranda silence in a
question to a witness or a statement to the jury, or elicits
testimony about such silence from a witness, and the offending
question, statement or testimony is promptly addressed by the
court, in an instruction to disregard and/or strike from the
record, there may not necessarily be a Doyle violation because the
government has not been permitted to "use" the defendant's silence
against him. This is a case-by-case determination, as Greer made
clear. Id. at 764 n.5. The majority in Greer explicitly stated
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that its decision was not based on the absence of prejudice to the
defendant. Instead, its ruling addressed the existence of a
constitutional error in the first place. Id. at 761 n.3 (noting
that the decision was not based on the "harmless-error" standard,
but on the "fundamental question" whether "an error of
constitutional dimension occurred").
These Supreme Court decisions comprise the core of
"clearly established" federal law governing the state's use at
trial of a defendant's post-Miranda silence. We turn now to an
examination of whether the Massachusetts Appeals Court's decision
was either contrary to or an unreasonable application of this law.
B. Was the Appeals Court's Decision "Contrary to" Federal Law?
A federal court may provide habeas relief to a state
court prisoner where the state court proceedings "resulted in a
decision that was contrary to . . . clearly established Federal
law." 28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S.
362, the Supreme Court explained the two ways in which a state
court decision might be "contrary to" federal law. First, a state
court decision that applies an incorrect legal standard, or
misstates the rule articulated in a Supreme Court case, will be
"contrary to" clearly established Supreme Court precedent. Id. at
405. The Court was careful to define "incorrect," saying that it
requires a legal standard that is "substantially different," and
thereby "contradictory" or "opposite" to the appropriate standard.
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Id. Second, if the state court "confronts a set of facts that are
materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from [Supreme Court]
precedent," that decision would also be contrary to federal law.
Id. at 406.
Ellen's only developed "contrary to" argument relies on
the "incorrect legal standard" definition.6 Here, the
Massachusetts Appeals Court did not specifically refer to any
Supreme Court precedent in its discussion of the arresting
officer's testimony about Ellen's exercise of his right to remain
silent after receiving Miranda warnings. 797 N.E.2d at 946.
However, the Appeals Court cited to Commonwealth v. Mahdi, 448
N.E.2d 704 (Mass. 1983). Mahdi discusses the Supreme Court's
decision in Doyle at some length and accurately recites and applies
the rule announced therein. Id. at 713-14. Further, although
Mahdi was decided before Wainwright, the Massachusetts Supreme
Judicial Court predicted the rule later announced in Wainwright,
saying: "[W]e fail to see how use of evidence to infer sanity
substantively differs from use to infer guilt . . . . Fundamental
unfairness results from the use of evidence of such silence
regardless whether the person exercising his or her constitutional
6
Ellen misconstrues the second definition of "contrary to" under
Williams. He cites to the differences between his case and Greer;
we interpret his argument as one under the "unreasonable
application" test.
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right to remain silent claims insanity as a defense." Id. The
state court thus accurately stated the governing federal law
through its reliance on Mahdi.
C. Was the Appeals Court's Decision An "Unreasonable Application
of" Federal Law?
Federal courts may grant habeas relief to state prisoners
who can show that the state court decision in their case involved
an "unreasonable application" of clearly established federal law.
28 U.S.C. § 2254(d)(1). As with the "contrary to" provision, we
start with the Supreme Court's explanation of this statutory
language. In Williams, the Supreme Court held that "a federal
habeas court making the 'unreasonable application' inquiry should
ask whether the state court's application of clearly established
federal law was objectively unreasonable." 529 U.S. at 409. The
Court continued by noting that "the most important point is that an
unreasonable application of federal law is different from an
incorrect application of federal law." Id. at 410. See also
McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002).
The Massachusetts Appeals Court found that no Doyle
violation occurred. In Greer, the Supreme Court explained that the
hallmark of a Doyle violation is "the use" of the defendant's post-
Miranda silence against him, especially where the prosecution is
allowed to "'call attention to [the defendant's] silence.'" 483
U.S. at 763 (quoting Doyle, 426 U.S. at 619). The Court went on to
say that it was "significant that in each of the cases in which
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this Court has applied Doyle, the trial court has permitted
specific inquiry or argument respecting the defendant's post-
Miranda silence." Id. at 764. This language suggests that in
order to establish the existence of a Doyle violation, the
defendant must show that the prosecution used the defendant's post-
Miranda silence against him by asking questions, eliciting
testimony, or making a statement or argument that invites or
encourages the jury to infer guilt (or sanity, as the case may be)
from the defendant's silence. The Court's decision in Greer,
finding that no Doyle violation occurred, hinged on two key facts:
the prosecutor was not permitted to call attention to the
defendant's silence (because the defendant's objection to the
prosecution's question was promptly sustained and no further
mention was made) and no evidence of that silence was submitted to
the jury. Id. at 764-65.
This case easily falls within the scope of the reasoning
in Greer. As in that case, the court here sustained the first and
only objection raising the Doyle issue after Ouellet's testimony
that Ellen chose to remain silent; no further references were made
to Ellen's silence; and no evidence of that silence was permitted
to go to the jury. Although Ellen accurately observes that the
prosecutor in his case asked Officer Ouellet a long series of
questions regarding the Miranda warnings, there was no reference in
that colloquy to Ellen's choice to remain silent until the end of
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the inquiry when Ouellet testified, arguably non-responsively, to
a vague and open-ended question by the prosecutor.7 At no point
did the prosecutor directly ask the officer about Ellen's post-
warning silence; in fact, the prosecutor's question asked what the
officer himself did or said after the Miranda process, not what
Ellen did or said. Therefore, the prosecutor in this case did not
make specific inquiry about Ellen's silence, or argue to the jury
that his silence should be interpreted as evidence of guilt.
Additionally, the lengthy curative instruction in this
case explained to the jurors that no adverse inferences could be
drawn from Ellen's silence and that Officer Ouellet's testimony on
that point was improper and ought not be given any weight. The
court further told the jury that it was striking Officer Ouellet's
answer. See supra note 2. In Greer, the judge did not give a
curative instruction beyond telling the jurors that the offensive
question should be disregarded, perhaps because the prosecutor's
accusatory question to the defendant about his silence was objected
to and stricken before any answer could be given. Seizing on this
distinction, Ellen claims that the instruction at his trial served
to compound the error of Ouellet's disclosure of his post-warning
7
See supra note 1. The prosecutor's question was: "At the
conclusion of giving him his Miranda warning, what, if anything,
did you say or do with him?" In response, Officer Ouellet
responded as follows: "On the bottom of the card is, you know, Do
you wish to speak to me now, is on the bottom of it. And on that,
when I asked him to sign it, he printed the word no, and signed the
card."
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silence by calling the jurors' attention to it. However, the
Supreme Court noted in Greer that courts should "normally presume
that a jury will follow an instruction to disregard inadmissible
evidence inadvertently presented to it." 483 U.S. at 766 n.8. On
the facts here — a singular reference to the defendant's silence in
an arguably non-responsive answer, the presumption of jury
adherence to an instruction from the court supports the conclusion
that the state court's application of clearly established federal
law was not unreasonable.
We emphasize, however, that a curative instruction will
not always offset an improper reference to a defendant's post-
Miranda silence contained in a question from the prosecution or a
statement to the jury, or elicited in testimony by a prosecutor's
question.8 See, e.g., United States v. Moreno, 185 F.3d 465, 474
(5th Cir. 1999) ("[A] sustained objection followed by a curative
instruction is not a panacea. It may militate against finding a
8
Also, what happened in this case emphasizes the risks for the
prosecution if it chooses to ask questions about the Miranda
procedure for whatever purpose. Cf. Wainwright, 474 U.S. at 295
(noting that questions regarding the defendant's demeanor or
behavior during booking or the administration of Miranda warnings
may be permissible, if "carefully framed" to "avoid[] any mention
of the defendant's exercise of his constitutional rights").
Indeed, in light of the clear precedent, the prosecutor should have
been particularly careful to ensure that Ellen's post-Miranda
silence was not mentioned, even in a more responsive answer. The
Supreme Court's decision in Wainwright was published in 1986,
fourteen years before this trial. That decision clearly proscribed
any attempt to use Ellen's post-Miranda silence as evidence of his
state of mind.
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constitutional violation, or become central to the harmless error
analysis. But they do not automatically mean no violation has
occurred." (citations omitted)). A prosecutor's persistence in
referring to the defendant's post-Miranda silence or a trial
judge's failure to provide adequate curative instructions may
result in a Doyle violation even when no evidence of the
defendant's silence is submitted to the jury. This violation issue
will, of course, depend on the particular facts of a given case,
and will require a case-by-case analysis. See, e.g., Hill v.
Turpin, 135 F.3d 1411, 1413-16 (11th Cir. 1998) (finding a Doyle
violation where prosecutor repeatedly inquired about and reminded
the jury that the defendant remained silent after receiving Miranda
warnings, despite the trial judge's repeated instructions to the
jury to disregard that fact); United States v. Kallin, 50 F.3d 689,
693-95 (9th Cir. 1995) (finding a Doyle violation, notwithstanding
the judge's instruction that the jury disregard any evidence of the
defendant's silence, because the instruction was too delayed and
unduly emphasized the erroneous testimony).
Here, however, we have none of the concerns reflected in
these cases. Ellen's post-Miranda silence was not mentioned, by
either the prosecutor or a witness, after the judge sustained the
objection to Officer Ouellet's testimony. The prosecutor's
questions to the officer did not, on their face, call for testimony
in violation of Doyle. The judge's instructions were given
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promptly and were proportional to the testimony given by Officer
Ouellet. This case falls squarely within the parameters of Greer.
The decision of the Massachusetts Appeals Court that no Doyle
violation occurred was not an unreasonable application of clearly
established federal law.
Affirmed.
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