On petition for writ of certiorari to the Supreme Court of
Connecticut.
The petition for a writ of certiorari is denied.
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins,
dissenting.
The Due Process Clause forbids the use for impeachment purposes
of evidence that a defendant remained silent after receiving the
Miranda warnings at the time of his arrest. Doyle v. Ohio,
426 U.S. 610 (1976). At
petitioner's criminal trial, the prosecutor repeatedly brought
before the jury the fact that petitioner had not furnished police
officers with his alibi at the time of his arrest. Respondent
concedes, and the Supreme Court of Connecticut agreed, that such
use of petitioner's post-arrest silence violated petitioner's
constitutional rights. Nevertheless, the court sustained the
conviction, over Justice Bogdanski's dissent, on the ground that
the error was harmless beyond a reasonable doubt. I share Justice
Bogdanski's " unreasonable" belief that the violation of
petitioner's rights was not constitutionally harmless. A finding of
harmless error on this record, in my view, can be nothing other
than a means of avoiding the requirements of the Constitution in
order to sustain the conviction of a defendant the court believed
was factually guilty.
Page 447 U.S.
912 , 913
Petitioner's defense was that he was in the company of his wife
and was nowhere near the scene of the alleged crimes at the time
they were committed. Petitioner's wife testified to that effect,
and petitioner's testimony corroborated hers. On cross-examination,
the prosecutor repeatedly forced petitioner to admit that he had
not given his story to the police after receiving Miranda warnings.
The cross-examination which the Connecticut Supreme Court held to
be harmless beyond a reasonable doubt was as follows:
"Q. Did you ever recall telling the police officer that you had
gone to court in Stamford on June 8th [the date of the alleged
offense]?
"A. Yes.
* * * * *
"Q. Did you ever tell the police officer on June 15th [the date
petitioner was arrested] that you were home from 6:45 to 8:55 in
the morning?
"[Defense counsel's objection was
overruled.]
"A. No, I never told them nothing. Not anything.
"Q. Did you tell them that you were wearing red pants, red T-
shirt and blue jacket, white, red and blue sneakers, at 6:15 on
June-
"A. I did not tell the police officer nothing.
"Q. Did you ever tell them that you went to court with your wife
and Kareen?
"A. Pardon me?
"Q. Did you ever tell them that you went to court with your wife
and Kareen-the boy?
"A. Well, I started-I almost started a conversation but I cut
it.
"Q. Did you ever tell the police officer what time you arrived
at the court in Stamford?
"A. I did not tell the police officer nothing." 179 Conn. 328,
334, n. 1, 426 A.2d 298, 302, n. 1 (1979).
Page 447 U.S.
912 , 914
As if this colloquy did not sufficiently prejudice petitioner
before the jury, the prosecutor called a police officer in
rebuttal, who testified as follows:
"Q. And after you advised him of his rights, did he give any
information with respect to his whereabouts on June 8th of
1977?
"A. The only information he would tell us was that he was in
court on June 8th.
"Q. Did he tell you what time he was in court?
"A. No, he didn't.
"Q. Did he tell you what judge-
"[Defense counsel's objection was
overruled.]
"Q. (by the Court). What time did he said [sic] he arrived in
court?
"A. He didn't tell me.
"Q. (by the prosecutor). Did you ask him?
"A. Yes.
* * * * *
"Q. Is there anything in your report with respect to the
conversation you had with her or with Mr. Briggs?
"A. Yes, there is.
"Q. And may I see that, please?
"A. This is the accused, and what he said. Refused to give a
statement." Id., at 334-335, n. 2, 426 A.2d at 302, n. 2.
The repeated, cumulative impermissible references to
petitioner's constitutionally protected silence were obviously
designed to imply that his defense was fabricated. The prosecutor
knew very well that the defendant had remained silent after
receiving Miranda warnings, and his questions were designed to
hammer that fact home to the jury.
In holding that these repeated constitutional violations were
harmless error, the Connecticut Supreme Court purported to apply a
standard that has been adopted by several federal courts, namely, "
'[w] hen there is but a single reference at
Page 447 U.S.
912 , 915
trial to the fact of defendant's silence, the reference is
neither repeated nor linked with defendant's exculpatory story, and
the exculpatory story is transparently frivolous and evidence of
guilt is otherwise overwhelming, the reference to defendant's
silence constitutes harmless error.' " Id., at 336, 426 A.2d, at
303, quoting State v. Zeko, 177 Conn. 545, 555, 418 A.2d 917, 922
(1979). Accord, Chapman v. United States,
547
F.2d 1240, 1250 (CA5), cert. denied, 431 U.S. 908 (1977); Leake
v. Cox,
432 F.2d
982, 984 (CA4 1970). Even on the assumption that this was the
appropriate standard, it is plain that the violations in this case
were not harmless error. There were multiple references to
petitioner's silence; the references were linked- in detail-with
petitioner's exculpatory story; and petitioner's alibi defense was
not transparently frivolous.* Nevertheless, the court concluded
that "the defendant's silence was not so 'highlighted' by the
prosecutor as to constitute prejudicial error" and that the
comments had not " 'struck at the jugular' of the defendant's
defense." 179 Conn., at 337, 426 A.2d, at 303.
This case exemplifies a disturbing and increasingly widespread
trend among some courts to sanction egregious violations of the
constitutional rights of criminal defendants by blandly reciting
the formula "harmless error" whenever it appears that the accused
was factually guilty. Our limited ability to exercise our
certiorari jurisdiction prevents us from effectively policing the
nullification of constitutional requirements through the abuse of
the harmless-error doctrine; nor is it our role to correct such
factual errors. Our judicial system relies on conscientious trial
and appellate courts to assure that all persons accused of criminal
offenses receive the full protections guaranteed them by the
Constitution. Because this case exemplifies a serious failure to
accept that weighty responsibility, I would grant the petition.
Footnotes
[
Footnote *] Petitioner's wife and
another witness testified to his whereabouts; the fact that the
State presented three witnesses who controverted petitioner's alibi
defense does not necessarily mean the defense was frivolous.
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