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Agnellino v. New Jersey

decided: February 13, 1974.


Author: Hunter

JAMES HUNTER, III, Circuit Judge:

In May of 1970 in the Monmouth County Court of New Jersey, appellant was tried before a jury and convicted on two counts of receiving stolen property in violation of N.J. Stat. 2A:139-1. Appellant unsuccessfully appealed his conviction through the New Jersey courts and the Supreme Court of the United States denied certiorari. Appellant then petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2241 et seq., alleging improper comments by the state prosecutor in his summation and lack of probable cause to support a search warrant. The district court denied the petition and this appeal followed. We affirm.

On November 30, 1967, a magistrate in the City of Long Branch, New Jersey, issued a warrant to a New Jersey State Police officer to search the Paddock Lounge and Restaurant, a business establishment alleged to be owned and operated by appellant. As a result of the search of the Paddock Lounge premises, two rolls of stolen carpeting and three stolen air conditioners, among other things, were seized from a shed behind the Lounge. During the course of the search, appellant was arrested*fn1 and given his Miranda warnings. The police shortly thereafter questioned appellant about the carpet and air conditioners. A police officer testified that appellant stated that he "had a good buy" on the carpeting and that "he had paid about $150," for each of the air conditioners. There was also testimony that in reply to whether the air conditioners were "hot or stolen," appellant stated, "[for] that price I wouldn't be surprised." Appellant, however, flatly denied having said this. It does not appear that police followed this up by asking appellant from where or from whom he had purchased the air conditioners and he did not volunteer this information.

In discussing the credibility of the defendant, the prosecutor in his summation said:

"Now, you take Mr. Agnellino's story. And you consider the logic of the story. Start right off the bat the night of the raid, the police come, Lieutenant King and I forget the number, you may recall it, a number of police officers are on the scene. They go into this shed.

"[Say] this stuff was coming into your shed and you had three air conditioners and six rolls of rugs.And there's an indication they are looking for stolen property. Logically what would a normal human being do in that situation? I know what you would do and you know what I would do. I'd say wait a minute, let's find Bill Gordon, that's where I got those air conditioners from, let's find the interior decorator in Camden" (from whom appellant alleged he bought the carpeting).

Appellant's attorney objected on the ground that no defendant should be penalized for taking shelter in his constitutional right to remain silent, especially where the police have given the defendant Miranda warnings. The trial court ruled the remarks to be "fair comment" and permitted the prosecutor to continue:

"So I was saying in assessing Mr. Agnellino, I think you have a right to say that to yourself. Well, what would a normal human being do when the police are there? There's a raid going on and the property apparently has been stolen and it just doesn't ring true, this man if he didn't have some guilty knowledge wouldn't have done that. And that's what you're looking for in this case."*fn2


Appellant argues that the state trial court infringed his fifth amendment rights by permitting the prosecutor to comment during summation on appellant's failure at the time of arrest to voluntarily inform the police from whom and from where he had obtained the goods.

The Supreme Court has held that it is impermissible for a prosecutor to introduce as evidence of guilt the fact that an accused failed to testify in his own behalf or that he remained silent at the time of arrest. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966); Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).*fn3 Recently, however, the Supreme Court emphasized that "[it] does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes." Harris v. New York, 401 U.S. 222, 224, 91 S. Ct. 643, 645, 28 L. Ed. 2d 1 (1970). The Court in Harris then concluded that once a defendant freely testifies in his own behalf, the fifth amendment does not bar a prosecutor from introducing for impeachment purposes evidence of prior statements inconsistent with defendant's testimony at trial. Harris refused to allow the "shield provided by Miranda " to be perverted into a "license to use perjury by way of a defense", free from the truth-testing device of cross-examination. Harris, supra, at 226, 91 S. Ct. at 646.

Both concurring judges would rely on Harris by viewing this case as involving prosecutorial comment on the defendant's prior inconsistent statements. Chief Judge Seitz characterizes appellant's trial testimony as conveying the picture of appellant having purchased these goods in a "course of business' transaction and concludes that this "differs markedly from the impression" conveyed by appellant's statements to police "both in choice of words and in the details offered." Judge Weis refers to the "variations between the tenor" of appellant's statements at time of arrest and his testimony at trial. I do not agree with this analysis.

A police officer testified that at the time of arrest and after being given Miranda warnings appellant stated that he had received "a good buy" on the carpeting and had paid about $150 for each air conditioner. The prosecutor in summation suggested a "normal human being" in that situation would have said, "wait a minute, let's find Bill Gordon, that's where I got those air conditioners from, let's find the interior decorator in Camden" (essentially appellant's trial testimony).

There is nothing in the record to suggest that appellant's statements were incomplete responses to the questions asked by the police*fn4 and appellee has never disputed appellant's position on this appeal that the police never inquired from whom or from where he had obtained the goods (information which the prosecutor suggested appellant should have volunteered). Moreover, in view of the importance the Supreme Court has attached to the giving of Miranda warnings, it is significant that the police informed appellant that he could "stop and cease answering any time."

More than this, however, I do not believe that appellant's statements were inconsistent. To tell the police that you paid $150 for each air conditioner and then to tell the jury that you bought them from a named individual who operated an air conditioning business at a specified location involves no inconsistent utterances. This is equally true of appellant's statement to the police that he had a good buy on the carpet and his subsequent statement to the jury that he bought the carpet from an interior decorator in Camden. These statements might be considered inconsistent only in the sense that appellant's statements at time of arrest were not as complete as those he made at trial. To characterize this inconsistency as "differences in statements" is of course not erroneous, but in my view does not go far enough; the "differences" derive not from what appellant said at time of arrest,*fn5 but from what he did not say. This failure to inform the police of the source of the goods was precisely what the prosecutor focused upon in his summation; thus, the prosecutor attempted to impeach appellant's credibility by prior silence, not by prior inconsistent statements.*fn6

Although I believe that such silence may be the subject of comment by a prosecutor once the appellant has freely chosen to testify, to permit such comment under the banner of "inconsistent statements" does not seem consonant with the pronouncement in Miranda that the fifth amendment privilege is not "waived" if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated."*fn7

To be consistent with Miranda and Harris, I believe we must recognize that appellant was validly exercising his fifth amendment privilege when he refrained from volunteering to the police the information suggested by the prosecutor in his summation. Viewed in this manner, the question confronting us is whether the "prior inconsistent statement" rationale of Harris should be extended to permit impeachment by comment on appellant's silence at time of arrest. Perceiving no difference between the two, this Court held in United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3d Cir. 1973), that Harris extends to impeachment by prior inconsistent silence. While I believe that Burt controls the issue raised by appellant, in view of a contrary opinion by at least one concurring judge, a brief analysis of Burt seems necessary.

In that case, defendant Burt testified at trial that he had accidentally shot the decedent. It was uncontradicted, however, that Burt neither told anyone about the shooting nor sought aid for the person he had shot. Later that same evening of the shooting, Burt was arrested for unlawfully breaking and entering a store. It was not until after this arrest and later that same evening that the police connected Burt with the shooting. He was placed in jail and apparently at no time prior to trial did he tell police or anyone else of the allegedly accidental nature of the shooting. Burt was never interrogated about the shooting and its is not discernible whether he had been given any Miranda warnings. When cross-examined at trial, Burt gave no explanation as to why he never told anyone of the alleged accident or why he never sought aid for the decedent. The prosecutor then referred to this in his summation.

In a per curiam decision in which two judges concurred by separate opinion, this Court held that the rationale of Harris extended to the cross-examination of Burt concerning his prior silence. While the two opinions in Burt emphasize different considerations in arriving at this result, both opinions cited with approval the view expressed by the Fifth Circuit that Harris applies to impeachment by prior silence inconsistent with trial testimony. United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. den. 404 U.S. 869, 92 S. Ct. 91, 30 L. Ed. 2d 113 (1971).*fn8

Notwithstanding this reference to Ramirez, there is language in Judge McLaughlin's per curiam opinion which might suggest that the holding of Burt is limited only to impeachment by prior inconsistent silence which does not occur in the face of police accusation. This limitation apparently was thought to be required by the language in Miranda that "the prosecution may not use at trial the fact that someone stood mute or claimed his privilege in the face of accusation. "*fn9

However, the concurring opinion, which is the majority opinion and hence controlling,*fn10 noted that even after Burt became suspected of the murder he never told the police or anyone else of the alleged accidental nature of the shooting. Thus, it framed the issue as "whether a defendant's silence in the face of police suspicion can be used at trial to impeach him after he has voluntarily taken the stand and offered testimony which is contradictory with his earlier silence."*fn11 The clear import of the majority opinion is that in light of Harris, silence, even in the face of police suspicion, may be used for impeachment purposes once an accused has freely taken the stand in his own behalf. As aptly stated in the concurring opinion:

"Burt's silence after he became a suspect may also be interpreted as an exercise of his right not to incriminate himself. The silence, however, was inconsistent with his testimony at trial that the shooting was accidental. Such inconsistency should be available to the prosecutor in his use of the traditional cross-examination process of the adversarial system. If inconsistencies cannot be demonstrated to a jury, the truth-seeking process is straightjacketed. The defendant, of course, is free to explain away seeming inconsistencies. The adversarial system requires that the jury, as triers of fact, make the final determination of which testimony and conduct to believe."*fn12

Chief Judge Seitz, however, suggests in his concurrence that this Court in Burt was not concerned with "defendant's failure to offer an exculpatory statement to rebut accusation but with his failure to act, to summon help." I cannot agree with this distinction in view of the repeated references in the majority opinion in Burt to appellant's failure to tell the police (silence) or to seek aid (conduct) both before and after he was in police custody and suspected of the murder. Indeed, comment upon an appellant's silence at a time when he knew the victim was dead*fn13 logically had no relevance to appellant's failure to seek aid but was relevant only to appellant's failure to exonerate himself in the face of police accusation.*fn14

I thus believe that on its facts Burt involved impeachment by silence in the face of police accusation as well as impeachment by conduct; hence Burt controls the present situation. However, because this panel remains divided on the applicability of Burt, I shall set forth fully my views on this constitutional issue.

In Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926), the Supreme Court held that a defendant's testimony at a retrial could be impeached by cross-examination which disclosed that the defendant, in the face of similar prosecution testimony, had chosen not to testify at his first trial. "His waiver is not ...

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