People v. Evans

¶1I concur with my colleagues’ affirmance of the judgment entered against the defendant. However, I disagree with their rationale. In my view, the fact that the defendant first introduced evidence concerning his choice not to speak to the police after being informed of his Miranda *373(Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) rights makes a Doyle (Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240]) analysis unnecessary. Moreover, even if Doyle were relevant to our inquiry, I do not believe that the facts of this case constitute a Doyle violation.

¶2In Doyle, two defendants (Doyle and Wood) were convicted in separate state trials of selling marijuana to an informant. At their trials, Doyle and Wood had told “not entirely implausible” exculpatory stories, and little “direct evidence” was introduced to contradict them. (Doyle v. Ohio, supra, 426 U.S. at p. 613 [49 L.Ed.2d at p. 95].) The prosecutor was permitted, over repeated defense objections, to ask whether or not Doyle and Wood told their stories to the arresting agent (Beamer) when they were arrested. (Id., at pp. 613-615 [49 L.Ed.2d at pp. 95-96].)

¶3The Supreme Court determined that the prosecutor’s use “for impeachment purposes” of the defendants’ silence—after receiving Mirandawarnings—constituted a violation of the due process clause of the Fourteenth Amendment. (Doyle v. Ohio, supra, 426 U.S. at p. 619 [49 L.Ed.2d at p. 95].) However, the rationale for the court’s decision (italicized in the majority opinion) is the key to understanding its potential application to the case at hand: “ '. . .it does not comport with due process to permit the prosecution during the trial to call attention to [the defendant’s silence] . . . .’” (Ibid., italics added.)

¶4The policy underlying Doyle—protecting a defendant from improper prosecutorial use of his choice to remain silent after being given Mirandawarnings—does not apply when a defendant voluntarily chooses to introduce his decision to remain silent as part of his defense.1Once the defendant made that choice, his postarrest silence became a legitimate subject for cross-examination. Put another way, the defendant’s choice eliminated due process concerns.

¶5Furthermore, the single, unanswered question posed by the prosecution does not constitute a Doyle violation. In my view, my colleagues misread Greer v. Miller (1987) 483 U.S. 756 [97 L.Ed.2d 618, 107 S.Ct. 3102]. Although they correctly report the facts and the ultimate decision in Greer, they overlook how the court reached its conclusion: “The fact of [defendant’s] postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred . . . .” (Id., at pp. 764-765 [97 L.Ed.2d at pp. 629-630], italics added.)

¶6*374Putting aside the fact that the defendant introduced the fact of his silence, thus inviting whatever inferences the jury might draw from it, it is clear that the prosecutor’s single, unanswered question did not serve as evidence of that silence.2 The jurors were clearly instructed that questions do not constitute evidence. In addition, they were instructed that they were not to assume to be true “any insinuation suggested by a question.”3

¶7In sum, any inferences that might have been drawn by the jury from the defendant’s silence were inferences he chose to permit them to draw. Once he introduced evidence of his silence, the prosecution had every right to cross-examine thereon.

¶8Respondent’s petition for review by the Supreme Court was denied August 17, 1994.