Commonwealth v. Johnson

¶1Dissenting.

¶2¶ 1 I must dissent from the appealing analysis of my colleagues. While the casos cited are compelling at first blush, the situation here was different and in my judgment warrants a different result.

¶3¶ 2 The prosecution did not bring out information about appellant’s refusal to supply an address. This came to light on cross-examination of the officer by appellant’s counsel,3 as testimony of appellant telling an officer he would not provide, an address during booking. It did not come in as a reference to appellant’s silence. It was brought up by the defense before the witness Malloy took the stand. Once in evidence, it is no longer “post-arrest silence” that everyone must pretend did not occur.

¶4¶ 8 That is, the defense evidence established that appellant affirmatively refused to provide an address. After establishing that refusal, the defense put on a witness who said he really did have an address, very close by. Can the prosecution challenge that witness’ credibility with the pri- or evidence brought out by the defense, that appellant said he had no address, much less this address? I think so, and find no error, much less one of constitutional magnitude, in the limited reference made here.4

¶5¶4 I find the scenario here different than the cases cited, because the defense brought in the affirmative refusal to provide routine information, which is not silence. Because its very limited exposure to the jury was in the legitimate attempt to challenge the credibility of the alibi witness, I see no error in the questioning.

¶6¶ 5 Accordingly, I respectfully dissent.