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Grant v. Cain

United States District Court, W.D. Louisiana, Shreveport Division

March 22, 2019

DERRICK DEWAYNE GRANT #131548
v.
N. BURL CAIN, ET AL.

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM ORDER

          ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of the Magistrate Judge. [Record Document 19]. Having thoroughly reviewed the record and the written objections filed, the Court CONCURS with the Report and Recommendation with the exception of the findings regarding the prosecution's comments on Petitioner's post-arrest silence. With respect to the post-arrest silence, the Court CONCURS in the result, but finds that the Magistrate Judge only addressed the references that the prosecution made during cross-examination about Petitioner's pre-arrest silence and did not address the references that the prosecution made during closing argument about Petitioner's post-arrest silence.

         As set forth in the Report and Recommendation, Petitioner was tried and convicted of attempted second-degree murder for the shooting of Michael Parker. Record Document 19, p. 4. He allegedly carried out this shooting with two other men, William Hall (“Hall”) and Ira Ross (“Ross”). Id. at 2-3. At trial, Petitioner chose to testify and claimed for the first time that an individual named Jackie Sanders (“Sanders”) was the third person involved in the shooting with Hall and Ross. Id. at 11-12. Petitioner stated that he was at home watching television when he heard Hall yelling outside his back door. Id. at 11. Hall was asking Ross, “Where is Little Jackie?” in reference to Sanders. Id. Hall and Ross told Petitioner that the police were searching for them and asked Petitioner not to let the officers in the house. Id. at 12. When the police officers approached the house, Petitioner gave them permission to come in and search. Id. Petitioner, Hall, and Ross were placed on the front porch during the search and were advised of their Miranda rights after the officers found incriminating evidence inside the house. Id. at 12-13.

         On direct examination, defense counsel asked Petitioner why he consented to the search. Id. at 12. Petitioner replied, “Because I just, I mean --, I mean, how can you not tell the police?” Id. On cross-examination, the prosecutor asked Petitioner why he did not tell police about Sanders's involvement when they initially requested permission to search his house. Id. The prosecutor revisited this issue in his closing rebuttal, stating:

Who in the world would be the most interested in getting to the bottom of it? An innocent man. An innocent man would stand before the police and go, “Look, I didn't have anything to do with it. These guys just came in. They just did a murder. I don't want to be involved in this. I don't want to do anything. You know, y'all have arrested me. Y'all have taken me to jail, accused me of killing somebody; but I'm going to be quiet about it. I'll tell you what. We'll come up with this whole defense and, you know, use the oldest defense in the world and blame it on the dead guy. And I'm going to spring it on the jury the day of trial.” That's just stupid. That's all that is. And that's exactly what they've given you.

Id. at 13; Record Document 18-6, p. 225 (emphasis added). Petitioner asserts that these references to his post-arrest silence violated the Supreme Court's holding in Doyle v. Ohio, 426 U.S. 610 (1976) and therefore constitute a due process violation. Record Document 1-1, p. 36.

         I.

         Presence of a Doyle Error

         In Doyle v. Ohio, the Supreme Court held that “the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” 426 U.S. at 619. The Court reasoned that an arrestee's silence after being given Miranda warnings might represent nothing more than his exercise of the right to remain silent. Id. at 617. Therefore, it would be a deprivation of due process to allow that silence to be used to impeach an exculpatory story that was offered for the first time at trial. Id. at 618.

         At Petitioner's trial, the prosecution referenced his failure to tell the police about Sanders's involvement both before and after he was arrested. In Jenkins v. Anderson, the Supreme Court held that the use of a criminal defendant's pre-arrest, and therefore pre-Miranda, silence for impeachment purposes does not violate the Fourteenth Amendment. 447 U.S. 231, 240 (1980). When a defendant elects to testify on his own behalf, a reference to his pre-arrest silence does not impose the fundamental unfairness represented by a reference to his post-arrest silence. Id. In the instant case, the state court and the Report and Recommendation both found that the prosecutor's cross-examination of Petitioner did not represent a Doyle violation because the questions concerned Petitioner's silence after the police officers requested to search his house, but before he was arrested and received Miranda warnings. State v. Grant, No. 47, 365-KA (La.App. 2 Cir. 9/20/12); 105 So.3d 81, 89; Record Document 19, p. 15. The Court agrees with the conclusion that the prosecutor's questions during cross-examination did not violate Doyle because they dealt with Petitioner's pre-arrest silence. However, the Court finds that the state court and the Report and Recommendation did not address the prosecutor's comments in closing arguments about Petitioner's post-arrest silence.[1]

         During his rebuttal close, the prosecutor hypothesized about what Petitioner's thought process might have been when he failed to tell the police that it was Sanders, and not him, who was the third man involved in the shooting. Record Document 18-6, p. 225. The prosecutor said, “You know, y'all have arrested me. Y'all have taken me to jail, accused me of killing somebody; but I'm going to be quiet about it.” Id. The prosecutor went on to state, “I'll tell you what. We'll come up with this whole defense and, you know, use the oldest defense in the world and blame it on the dead guy.” Id. The Court finds that these remarks constituted a Doyle error because the prosecutor used Petitioner's post-arrest silence to impeach his exculpatory story that Sanders was the third man involved in the shooting. See Doyle, 426 U.S. at 619.

         II. Standard of Review

         In Brecht v. Abrahamson, the Supreme Court held that Doyle errors are subject to the Kotteakos harmless error standard, which requires a conviction to be overturned when the error “had substantial and injurious effect or influence in determining the jury's verdict.” 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946). The petitioner in Brecht was convicted of first-degree murder. Id. at 624-25. At trial, he took the stand and claimed for the first time that the shooting had been an accident. Id. at 624. During cross-examination, the state asked the petitioner if he had told anyone that the shooting was an accident at any point before trial. Id. at 625. The state's closing argument also made several references to the petitioner's ...


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