State of Utah v. Maas
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IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah,
Plaintiff and Appellee,
v.
Karen Maas,
Defendant and Appellant.
OPINION
(For Official Publication)
Case No. 981654-CA
F I L E D
November 12, 1999
1999 UT App 325
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Seventh District, Moab Department
The Honorable Lyle R. Anderson
Attorneys:
Happy Morgan, Moab, for
Appellant
Jan Graham and Jeffrey S.
Gray, Salt Lake City, for Appellee
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Before Judges Billings, Davis, and Jackson.
BILLINGS, Judge:
¶1
Appellant Karen Maas appeals
her convictions of unlawful use of a credit card and related charges. We
affirm.
FACTS
¶2
We recite the facts in the
"light most favorable to the jury verdict." State v. Kiriluk, 975 P.2d 469, 470 (Utah Ct. App. 1999). In the fall of 1997, Karen Maas worked
as a cashier at the Alco Department Store (Alco) in Moab, Utah. On December
14, Robert Prickett bought some minor items at Alco, using his credit card
to pay for them. He made the purchase, totaling $11.48, at Maas's register.
After the transaction, Prickett got his credit card back and left the store.
¶3
About one-half hour later,
another purchase was made on Prickett's credit card account, again at Maas's
register. This transaction was for a camping set with a price of $211.49.
Prickett did not buy the set. When he saw the charge on his credit card
bill, he contacted Alco to dispute the charge. The signature on the credit
slip for that purchase was not his signature. He had not authorized anyone
else to use his card. About one month after the unauthorized transaction,
Maas pawned the camping set at a local Moab pawn shop.
¶4
In the course of investigating
the unlawful credit card charge, Grand County Sheriff's Department Officer
Neal gathered evidence including pawn slips, time cards showing Maas was
working at the time of the charges, and credit card slips. After collecting
the evidence, Officer Neal went to Maas's home to interview her. He explained
the evidence he had collected, advised Maas of her Miranda rights,
and asked if she wanted to talk to him. Maas responded, "Why, you have
everything anyway? No, I don't want to talk to you." Officer Neal then
left Maas's home, making no further attempt to interview her.
¶5
The State charged Maas with
Falsely Signing Evidence of a Credit Card Transaction, in violation of
Utah Code Ann. § 76-6-506.1(4) (1999); Unlawful Use of a Financial
Card, in violation of Utah Code Ann. § 76-6-506.2(1) (1999); and Property
Obtained by Unlawful Financial Transaction Card Conduct, in violation of
Utah Code Ann. § 76-6-506.4 (1999).
¶6
At trial, Officer Neal testified
about his investigation and his attempted interview with Maas. He testified
about their verbal exchange, which included Maas's invocation of her
Miranda
right to silence.(1) Defense counsel objected
to the testimony, and attempted to exclude the entire exchange. The trial
judge had permitted the question, intending only to allow the comment before
Maas's invocation of rights. In a conference after the testimony, the judge
acknowledged that, although the first comment, "Why, you have everything
anyway," should have come in, the second part, "No, I don't want to talk
to you," was disclosed in error. The judge offered to instruct the jury
to disregard that part of the testimony. Defense counsel declined, preferring
not to call the statement to the jury's attention.
In her defense at trial,
Maas testified that a man came to the store and purchased the camping set
at her register. She stated that a few days later, the same man came back
and tried to return the camping set for cash, again at Maas's register.
Maas explained that she could not refund cash for a credit card purchase.
However, Maas told the man she was interested in the set, and arranged
to buy it for cash. She told him her home address so he could drop off
the set later and get the cash.
¶7
Maas testified that the
next evening, the man came to Maas's home with the set. She bought the
set as a gift for her boyfriend, who was there with Maas. Her boyfriend
also testified that some man came to Maas's home that night, though he
did not see the man clearly or witness the transaction. Some time later,
Maas needed cash, so she pawned the camping set at a Moab shop.
¶8
Maas also testified about
her conversation with Officer Neal. On direct examination, defense counsel
asked her what happened when the officer came to her house. Maas testified:
"Well, he came to my home and he showed me different pieces of information,
the slips, the pawn ticket and things like that. He asked me, was there
anything that I wanted to say, and I told him there was nothing I could
say."
¶9
Defense counsel then asked
Maas to explain that comment. Maas responded: "I didn't feel there was
anything I could say at the moment. Seeing that these pieces of information,
the way it added up, I just didn't think that I should say anything at
the moment, that I should seek counsel or do something."
¶10
During closing arguments,
the prosecution attacked the credibility of Maas's story. He noted that
to believe Maas's explanation, the jury would have to disregard the evidence.
The prosecutor listed the substantial circumstantial evidence in detail,
including Maas's response, "No, you have everything anyway," to Officer
Neal when asked if she wanted to talk. The prosecutor misquoted the statement,
as Officer Neal had testified that Maas had said, "Why, you have everything
anyway." The prosecutor asked the jury to find Maas guilty, and not let
her "lie [her] way out of this." The defense did not object to the prosecutor's
argument.
¶11
Maas now appeals, arguing
the prosecution's disclosure of her invocation of her Miranda rights
was prejudicial error and denied her a fair trial.
ISSUE AND STANDARD OF REVIEW
¶12
The sole issue before this
court is whether the prosecution improperly used Maas's invocation of her
right to silence against her at trial, thereby violating her due process
rights. Though underlying factual matters are within the discretion of
the trial court, whether a given set of facts gives rise to a constitutional
violation is a matter of law. See, e.g., Kiriluk, 975 P.2d
at 471 (reviewing alleged violation of Miranda rights under correction
of error standard).
¶13
Even if a constitutional
violation exists, this court will not reverse if the violation is harmless.
See State v. Harmon, 956 P.2d 262, 268 (Utah 1998). However,
"[i]f the error is substantial and prejudicial to the extent that there
is a reasonable probability that it affected the reliability of the trial
outcome, then a new trial is required." Id. Also, when a violation
has occurred, "the State bears the burden of demonstrating that the improperly
elicited testimony was harmless beyond a reasonable doubt." State v.
Morrison, 937 P.2d 1293, 1296 (Utah Ct. App. 1997).
ANALYSIS
¶14
Maas argues her right to
silence was violated when the prosecution elicited testimony that Maas
invoked her right to remain silent after she was given a Miranda
warning.(2) She asserts this was a violation
of due process under the United States Supreme Court's decision in Doyle
v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976). However, the testimony
in Maas's case is easily distinguishable from the circumstances of Doyle
and its progeny.
¶15
In Doyle, the Court
held that the use for impeachment purposes of a defendant's exercise of
his right to silence violates due process. See id. at 611, 96 S. Ct. at 2241. On cross examination of the defendants in Doyle, the
prosecution challenged defendants' exculpatory explanation by questioning
why defendants did not tell the arresting officer their story of innocence.
See id. at 613-15 & n.5, 96 S. Ct. at 2242-43 & n.5. The
inference raised by this line of questioning was that silence equaled guilt
because an innocent person would have immediately told the exculpatory
story. See id. at 617-19, 96 S. Ct. at 2244-45.
¶16
The Court rejected the State's
argument that use of a defendant's silence for impeachment was necessary.
First, the Court noted that because Miranda warnings are required,
thus notifying a suspect of his right to silence, no inference could be
properly drawn from a suspect's silence. See id. at 617, 96 S. Ct.
at 2244. Second, the Court noted the inherent unfairness of notifying a
person of their rights, then penalizing them for exercising such rights.
See id. at 618, 96 S. Ct. at 2245. Thus, "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., 96 S. Ct. at 2245.
¶17
The Court further explained
the Doyle rule in Greer v. Miller, 483 U.S. 756, 107 S. Ct. 3102 (1987). In Greer, the prosecutor attempted to impeach defendant's
explanation of his involvement in a murder by asking why defendant did
not tell his story to the arresting officer. See id. at 758-59,
107 S. Ct. at 3105. Defense immediately objected to the question. The trial
judge sustained the objection and instructed the jury to disregard the
question. See id. at 759, 107 S. Ct. at 3105. Defendant appealed
his conviction for murder, arguing the question constituted a Doyle
violation. See id. at 759-60, 107 S. Ct. at 3105-06.
¶18
The Court upheld the conviction,
finding no Doyle violation. The Court stated that "'Doyle
rests on "the fundamental unfairness of implicitly assuring a suspect that
his silence will not be used against him and then using his silence to
impeach an explanation subsequently offered at trial."'" Id. at
763, 107 S. Ct. at 3107 (citations omitted). However, the Court emphasized
that Doyle forbids "'the use for impeachment purposes' of
a defendant's postarrest silence." Id., 107 S. Ct. at 3108 (quoting
Doyle, 426 U.S. at 619, 96 S. Ct. at 2245). The Court noted that
cases in which Doyle violations occurred involved "specific inquiry
or argument" about a defendant's post-Miranda silence. Id.
at 764, 107 S. Ct. at 3108. In contrast, when the trial court sustained
the objection to the question and gave an instruction to disregard, and
the prosecutor did not attempt the question again nor argue it to the jury,
the Court determined there was no use of post-Miranda silence.
See id., 107 S. Ct. at 3108.
¶19
Thus, a Doyle violation
involves more than simply referring to a defendant's post-Miranda
silence. A prosecutor must specifically inquire about or argue using a
defendant's exercise of his rights in a context that would impeach a defendant's
exculpatory explanation of his conduct. The key is the framing of a question
or a prosecutor's comment that demands an explanation from the defendant
and raises the inference that silence equals guilt. The "mere mention"
of a defendant's exercise of his rights does not automatically establish
a violation. Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995).
"[R]ather, it is the prosecutor's exploitation of a defendant's exercise
of his right to silence which is prohibited." Id.
¶20
Similarly, the Utah Supreme
Court has stated that "the mere mention that a defendant invoked his constitutional
rights does not prima facie establish a due process violation." Harmon,
956 P.2d at 268.(3) In evaluating whether
the disclosure of a defendant's exercise of Miranda rights is a
Doyle
violation, a court must look at the particular use to which the disclosure
is put, and the context of the disclosure. See id. "[T]he State
must, in some way, use the defendant's silence to undermine the exercise
of those rights guaranteed . . . before it can be said that such rights
have been violated." Id.
¶21
In Harmon, defendant's
invocation of rights was disclosed incidentally in testimony as defendant
read a portion of an officer's report intended to refresh defendant's recollection
of events.
See id. at 266. Defense counsel objected, but refused
a curative instruction offered by the court, deciding not to draw further
attention to the statement. See id. at 267. On appeal, the court
found no
Doyle violation in the disclosure. The court noted that
the disclosure was elicited "inadvertently." Id. at 269. Furthermore,
the prosecutor did not pursue defendant's silence in the remainder of cross
examination, nor did he try to use defendant's silence "to cast an inference
of his guilt."
Id.
¶22
Similarly, in State v.
Urias, 609 P.2d 1326 (Utah 1980), defendant's invocation of Miranda
rights was incidentally disclosed when the arresting officer testified
about the arrest. See id. at 1328. The court noted, "when a person
invokes his constitutional rights, the prosecution should not comment thereon,
nor so use it in any way that will tend to impair or destroy that privilege."
Id. However, the court concluded that no such impermissible use
occurred; instead, the officer simply testified about "the circumstances
of the arrest and . . . the information elicited was but a part of the
natural sequence of events."
Id. The court also noted there was
no attempt by the prosecutor to use defendant's silence to cast an inference
of guilt. See id.
¶23
Maas's situation is similar
to that of Harmon and Urias. The disclosure of Maas's invocation
of rights was likewise incidental to the description of Officer Neal's
conversation with Maas. Although Maas asserts that the sole purpose of
this testimony was to raise the issue of her credibility, the prosecution
actually wanted to present Maas's statement, "Why, you have everything
anyway." The further statement made by the prosecutor in closing argument,
"No, you have everything anyway," was inadvertent and is not significant
enough on its own to violate Doyle.
¶24
Furthermore, as in Harmon
and Urias, the prosecution did not attempt to cast the forbidden
inference that Maas's silence equaled guilt. He did not raise the issue
again during the trial, not even during cross examination of Maas. When
an officer simply testifies about the circumstances surrounding an interview,
a part of which is defendant's silence, without using defendant's silence
to impeach her credibility, there is no violation of the Doyle principle.
See State v. Bakalov, 979 P.2d 799, 820 (Utah 1999). In sum,
the prosecution did not use Maas's silence to impeach her in violation
of Doyle.(4)
CONCLUSION
¶25
Because the prosecution
did not use Maas's invocation of her right to silence to impeach her, nor
to cast an inference of guilt at trial, there was no violation of her due
process rights. Accordingly, we affirm.
______________________________
Judith M. Billings, Judge
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WE CONCUR:
______________________________
James Z. Davis, Judge
______________________________
Norman H. Jackson, Judge
1. His testimony was: Q. What was the nature of your conversation with Ms. Maas?
A. I met with Karen [Maas], I identified myself. I explained the reason I was there was I was investigating misuse of a credit card. At that time I explained to Ms. Maas all the evidence I had acquired up to that time. At the time I advised Karen of her rights, read her a waiver, asked her if she wanted to talk to me. She responded "Why, you have everything anyway? No, I don't want to talk to you." 2. The State argues that Maas has waived this issue on appeal because she refused the offered curative instruction. We disagree. Though the State would be correct in arguing Maas waived any appeal of jury instruction issues, the substantive issue on appeal was properly preserved through a contemporaneous objection. Cf. State v. Shickles, 760 P.2d 291, 300 (Utah 1988) (stating claim of error preserved by timely objection even absent request for curative instruction).
3. The Harmon decision was unusual in that two justices joined fully in the main opinion, one justice concurred in the result, and two justices concurred in the result with a concurring opinion. Justice Durham wrote a concurrence in which Justice Zimmerman joined. However, the issues addressed by Justice Durham in her concurrence do not detract from the analysis of the Doyle violation issue, but reflect other concerns. It appears that Justices Durham and Zimmerman do not take issue with the court's Doyle analysis. See Harmon, 956 P.2d at 277 (Durham, J. concurring).
4. Maas asserts that the prosecution did improperly argue her post-Miranda silence during closing arguments. She points to a passage where the prosecutor refers to Maas as a liar and contends that this improperly used her silence and emphasized to the jury that Maas took her time in making up a story. To constitute an impermissible comment on a defendant's silence, a prosecutor's remark must be "'"manifestly intended or . . . of such character that a jury would naturally and necessarily construe it to amount to a comment on defendant's silence."'" State v. Tucker, 709 P.2d 313, 315 (Utah 1985) (citations omitted). Here, the remarks were not of such character that a jury would take them as a comment on Maas's silence. The disputed passage makes no mention of time or silence, and in greater context, is clearly an attack on the incredible nature of Maas's explanation.
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