Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri unanimously held that during trial, the State’s repeated references to a defendant’s post-Miranda silence violated his constitutional rights.[2] The prosecutor’s opening statement and closing argument, audio evidence offered by the State, and the prosecutor’s examination of certain witnesses all contained statements that, after being Mirandized, the defendant had refused to offer an explanation of what had happened at the crime scene.[3] Although the trial court attempted to cure some of these violations by instructing the jury to disregard the State’s comments, it failed to properly instruct the jury to disregard other violative comments, and the curative effect of the court’s instruction to the jury was doubtful.[4] Finally, exculpatory evidence presented by the defense was not frivolous, and, although the evidence of the defendant’s guilt was substantial, it was not overwhelming.[5] The Supreme Court of Missouri reversed the judgment and remanded the case.[6]
I. Facts and Holding
Brooks was charged with murdering his fiancé after she was shot in the couple’s home.[7] Both Brooks and the victim were employed as police officers, although in cities other than where they resided.[8] On August 28, 2006, Brooks arrived home shortly after midnight following an evening of drinking with a female friend.[9] According to Brooks’s trial testimony, the victim became upset that he had been out drinking, and eventually a struggle over Brooks’s gun ensued, culminating in the victim’s death.[10] Brooks called 911 and told the operator that he had mistakenly thought the victim was an intruder.[11] However, when police arrived, they overheard Brooks telling his mother that the victim had been shot after continuing the argument.[12] Brooks agreed to go to the police station for an interview but refused to sign the department’s Miranda form.[13] Although he made statements indicating that he had nothing to hide, he did not give an account of the events precipitating the shooting, and he was arrested following the conclusion of the interview.[14]
At the subsequent trial, the State made several references to the fact that after being Mirandized, Brooks had offered no explanation of what had occurred. The first instance occurred during the prosecutor’s opening statement.[15] Defense counsel’s objection was sustained and the trial court instructed the jury to disregard the reference to Brooks’s silence.[16] The second offense occurred during the testimony of the officer who interviewed Brooks at the station. Defense counsel objected when the officer testified that he gave Brooks his Miranda warnings but that Brooks never attempted to explain the shooting.[17] The trial court sustained the objection, informing counsel that the prosecutor must rephrase the question and that it would instruct the jury to disregard the comment about Brooks’s silence.[18] However, the court did not instruct the jury to disregard it as it indicated it would.[19]
There were additional references to Brooks’s post-Miranda silence that were not objected to at trial. First, after the initial objection during the State’s opening argument, the prosecutor made another such reference immediately after the jury was instructed by the court to disregard such references.[20] A recording of the police interview in which a detective repeatedly asks Brooks to explain what happened was also played for the jury.[21] During the cross-examination of Brooks, the prosecutor was able to elicit a response regarding Brooks’s failure to explain the shooting.[22] Lastly, the prosecutor again commented about Brooks’s post-Miranda silence during closing arguments.[23]
Brooks was subsequently convicted of second degree murder and armed criminal action, and he was sentenced to concurrent sentences of life imprisonment and seventy-five years.[24] On his subsequent appeal to the Supreme Court of Missouri, he argued that the trial court erred in allowing evidence and comments by the prosecutor concerning Brooks’s post-Miranda silence.[25]
The standard of review for preserved errors required the State to prove that the errors were harmless beyond a reasonable doubt.[26] In order to determine what effect the prosecutor’s actions had on the jury’s verdict, the court examined four factors: whether the violations were repeated, whether the trial court made any effort to cure the effect of the violations, whether Brooks’s exculpatory evidence was frivolous, and whether the other evidence of Brooks’s guilt was overwhelming.[27]
The court quickly found that the first factor was satisfied, stating that the fact that the state had made multiple violations was obvious, so much so that it appeared to the court that the prosecutor had used silence as a theme.[28] Next the court determined that only minimal curative efforts had been made by the trial court and that the effect of those efforts would have had little impact on the jury, especially as the trial progressed and the violations continued.[29] When looking at Brooks’s defense, the court found that his exculpatory evidence was not transparently frivolous and that his defense was plausible.[30] Finally, in examining the other evidence presented against Brooks, the court acknowledged that while substantial, evidence of Brooks’s guilt was not overwhelming, especially considering the State’s heavy reliance on his post-Miranda silence.[31] Since Brooks’s defense relied heavily on his credibility, the impermissible use of his post-Miranda silence seriously undermined his defense, and the violations could not be said to be insubstantial.[32] A unanimous court reversed the judgment and remanded the cause.[33]
II. Legal Background
Persons who are taken into police custody must be given warnings before they are interrogated that they have the right to remain silent and that anything they say may be used against them.[34] The fact that a defendant remains silent after being given these warnings cannot be used to impeach the defendant at trial.[35] A person who remains silent after being advised of the right to do so may be simply exercising that right, and therefore no significance can be attached to the silence.[36]
Additionally, there is an implied assurance in Miranda warnings that remaining silent will result in no penalty.[37] To use a defendant’s silence against him after warning him of his right to stay silent is fundamentally unfair and violative of the Due Process Clause.[38] This fundamental fairness has led Missouri courts to hold that post-Miranda silence can not be used as evidence against a defendant.[39]
When the State wrongly attempts to use such silence to incriminate the defendant and the error is preserved, a reviewing court will apply a harmless-beyond a-reasonable-doubt standard, under which the State bears the burden of showing that the violation was harmless.[40] There must be no reasonable doubt that the evidence failed to contribute to the verdict against the defendant.[41] In order to determine the effect on the jury, four factors are considered.[42] The first is whether the State made repeated violations.[43] Next, the reviewing court looks at whether the trial court made any curative efforts following the violations.[44] Also considered is whether the defendant’s exculpatory evidence is “transparently frivolous.”[45] Finally, the reviewing court looks to see if the other evidence against the defendant is overwhelming.[46]
III. Comment
The instant case serves as an admonition to prosecutors who attempt to inject inappropriate comments or evidence into proceedings. The unanimous Supreme Court of Missouri seemed doubtful of the ability of the trial court to remedy the situation once the statements had been made in front of the jury. Thus, the importance of keeping references to post-Miranda silence from the jury’s ears is clear. One reference may be a simple mistake, but continued violations will be difficult to explain to a reviewing court and it appears that there will be little tolerance for a trial strategy that incorporates references to a defendant’s post-Miranda silence. However, the practice is likely to continue in cases where the persuasiveness of the State’s evidence against the defendant is questionable and prosecutors feel the risk of an acquittal is high.
-Neil D. Fossum
[1] No. SC 90347 (Mo. February 23, 2010). The West reporter citation is State v. Brooks, 304 S.W.3d 130 (Mo. banc 2010).
[2] Id. at *7.
[3] Id. at *3-6.
[4] Id. at *6-7.
[5] Id. at *7.
[6] Id.
[7] Id. at *1-2.
[8] Id. at *1.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at *2.
[14] Id.
[15] Id. at *3.
[16] Id.
[17] Id. at *3-4.
[18] Id. at *4.
[19] Id. at *5.
[20] Id.
[21] Id.
[22] Id. at *5-6.
[23] Id. at *6.
[24] Id. at *2.
[25] Id. at *1.
[26] Id. at *6 (citing State v. Dexter, 954 S.W.2d 332, 340 n 1 (Mo. banc 1997)).
[27] Id. (citing State v. Dexter, 954 S.W.2d 332, 340 n 1 (Mo. banc 1997)).
[28] Id.
[29] Id. at *7.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Miranda v. Arizona, 384 U.S. 436, 467-68 (1966).
[35] Doyle v. Ohio, 426 U.S. 610, 611 (1976).
[36] Id. at 617.
[37] Wainwright v. Greenfield, 474 U.S. 284, 290 (1986) (citing Doyle v. Ohio, 426 U.S. 610, 618-19 (1976)).
[38] Id. at 291.
[39] See, e.g., State v. Dexter, 954 S.W.2d 332, 338 (Mo. banc 1997).
[40] Id. at 340 n 1.
[41] State v. March, 216 S.W.3d 663, 667 (Mo. 2007).
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
