Unpublished Disposition, 908 F.2d 976 (9th Cir. 1987)

No. 90-35400.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN, Chief Judge, FERGUSON, Circuit Judge, and STEPHENS^** , District Judge.

MEMORANDUM^*** 

This case is before the court for the third time. In our previous memorandum disposition of November 4, 1987, we directed the district court to hold a hearing and make appropriate findings concerning the circumstances surrounding a statement made by the petitioner to the police after he had been arrested and advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).¹  On review of these findings, we again reverse and remand.

As explained in our previous decision, petitioner DeJong has contended, in addition to other issues, that his right to due process under the Fourteenth Amendment, which incorporates the Fifth Amendment right to remain silent, was violated at his state court trial when the prosecutor introduced into evidence testimony by arresting Officer Ramirez concerning a statement by petitioner asserting his desire to remain silent.

The evidentiary hearing and the findings of the district court after remand have clarified the circumstances surrounding the petitioner's statement. After being told of the charges against him, the petitioner stated, "Before I say anything, what am I going to get out of this?" Officer Ramirez responded that he could not promise anything. The district court further found that the petitioner's statement was not an uninterrupted, rambling monologue, but rather was interspersed with responses from Ramirez.

The court then concluded that the initial statement, "Before I say anything, what am I going to get out of this?", is not equivalent to a request for counsel. Although the district court reached no express conclusion on whether petitioner asserted his right to remain silent, the district court concluded that petitioner's statement should be characterized as an "attempt to bargain" rather than the assertion of any constitutional right.

We review de novo the district court's decision to deny a petition for writ of habeas corpus. Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir. 1987). The district court's factual findings are presumed correct; however, "we may give different legal weight to such facts", Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988), and the presumption of correctness does not apply to legal conclusions and mixed questions of law and fact. Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986).

Following the district court's factual findings concerning the statement made by petitioner, the context in which it was made, and Officer Ramirez' response, we reach the conclusion that the statement in question introduced at trial must be characterized as petitioner's assertion of his desire to remain silent, contrary to any written waiver of Miranda rights. See, e.g., United States v. Fouche, 776 F.2d 1398, 1404-05 (9th Cir. 1985), aff'd, 833 F.2d 1284 (9th Cir. 1987), cert. denied, 486 U.S. 1017 (1988); Martin v. Wainwright, 770 F.2d 918, 924 (11th Cir. 1985). Since such an assertion invokes the full array of constitutional protections, Fouche, 776 F.2d at 1405, the government violated due process when it used this assertion against the defendant at trial. See Wainwright v. Greenfield, 474 U.S. 284 (1986); Doyle v. Ohio, 426 U.S. 610 (1976); United States v. Valencia, 773 F.2d 1037, 1040 (9th Cir. 1985).

At the state trial, the defendant's testimony contradicted that of government witnesses; a key issue at trial was credibility. The defendant claimed he never committed a robbery. The prosecution introduced Officer Ramirez' testimony that the defendant stated, after being arrested, "I knew what was happening but it was not my idea ... Before I say anything, what am I going to get out of this? I'm not going to give up something for nothing."

It is clear from the record that the only reason the prosecution introduced this statement was to exploit petitioner's desire to remain silent to create an inference of guilt in the jurors' minds. It is well known that this tactic is "impermissible." Miranda, 384 U.S. at 468 n. 37 ("The prosecution may not ... use at trial the fact that [an individual] ... claimed his privilege in the face of accusation"). "In a criminal prosecution, it is an error of constitutional proportions to admit evidence that a defendant chose to exercise the right to remain silent after arrest." Valencia, 773 F.2d at 1040 (quoting Quigg v. Crist, 616 F.2d 1107, 1110 (9th Cir.), cert. denied, 449 U.S. 922 (1980)).

The following statement of the Supreme Court regarding a comment by the prosecution on a defendant's failure to testify is equally applicable to the prosecution's introducing evidence that the defendant asserted his pretrial right of silence:

[C]omment on the refusal to testify is a remnant of the "inquisitorial system of criminal justice," Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege ... What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.... [T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.

Griffin v. California, 380 U.S. 609, 614-615 (1965) (citations omitted).

Although the prosecution's constitutional error does not require automatic reversal, the burden is on the state to show that the error was "harmless beyond a reasonable doubt." Valencia, 773 F.2d at 1043 (9th Cir. 1985) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). The state's mere assertion that the evidence against petitioner was "overwhelming" is inadequate to carry its burden. See Scarborough v. State of Arizona, 531 F.2d 959 (9th Cir. 1976). Where the jury's decision turned on the credibility of the witnesses, and the prosecution introduced constitutionally impermissible evidence to destroy the defendant's credibility, we cannot so simply find the error to be harmless. " [T]he beneficiary of the constitutional error ... [must] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24.

The judgment of the district court is reversed and the case is remanded with instructions to grant the writ of habeas corpus unless the state within a reasonable amount of time has instituted a retrial of the petitioner.

REVERSED AND REMANDED. The mandate shall issue forthwith.

GOODWIN, Chief Judge, dissenting:

Because I agree with the district court judge that DeJong was trying to bargain and knowingly waived his constitutional rights, I respectfully dissent.