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FEBRUARY 22, 2000

Record No. 1689-98-2





James A. Luke, Judge

David B. Hargett (Joseph D. Morrissey;
Morrissey & Hershner, PLC, on brief), for appellant.

Virginia B. Theisen, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Present: Judge Bray, Senior Judges Cole and

Argued at Richmond, Virginia


Monte Pulley (defendant) was convicted by a
jury of manslaughter. On appeal, he complains that the trial
court erroneously (1) denied a mistrial after a Commonwealth
witness referenced defendant’s post-Miranda invocation of
his right to counsel, and (2) refused to permit impeachment of a
Commonwealth witness. We disagree and affirm the


During trial of defendant before a jury on
indictments alleging first-degree murder and use of a firearm in
the commission of such offense, the Commonwealth, on direct
examination, inquired of Police Investigator Mike Thompson:

[COMMONWEALTH]: And did you have occasion to
see [defendant] that night?

[THOMPSON]: Yes, ma’am. The first time I saw
him was in Sheriff Woodley’s patrol vehicle going by me. When I
saw him in person face-to-face and spoke to him was at Brunswick
County jail.

[COMMONWEALTH]: All right. And when you saw
[defendant] did he complain of any marks or any injury?

[THOMPSON]: After I advised him of his Miranda
rights and he invoked his right to counsel, he requested that
Deputy Washburn take pictures of his injuries.

Defense counsel immediately moved the court for
a mistrial, arguing that mentioning "defendant [had] invoked
his right to an attorney" was "automatic grounds for a
mistrial." In denying the motion, the trial judge commented,
"What [Thompson] said was a prelude to the question about
any injury. The Court finds the statement to be harmless and not
prejudicial to the rights." Defendant subsequently declined
the court’s offer to "admonish the jury," and no
further comment was made on defendant’s silence or assertion of
his right to counsel.


In Doyle v. Ohio, 426 U.S. 610 (1976),
the Supreme Court of the United States concluded that:

[t]he warnings mandated by [Miranda v.
, 384 U.S. 436, 467-73 (1966)], as a prophylactic
means of safeguarding Fifth Amendment rights, require that a
person taken into custody be advised immediately that he has the
right to remain silent, that anything he says may be used against
him, and that he has a right to retained or appointed counsel
before submitting to interrogation . . . . [W]hile it
is true that the Miranda warnings contain no express
assurance that silence will carry no penalty, such assurance is
implicit to any person who receives the warnings.

Id. at 618 (citation omitted). Thus, the
Court reasoned that "it would be fundamentally unfair and a
deprivation of due process to allow [an] arrested person’s
silence to be used to impeach an explanation subsequently
offered at trial." Id. (emphasis added).

Subsequently, in Wainwright v. Greenfield,
474 U.S. 284 (1986), the Court revisited Doyle and, again,
condemned a "breach[] [of] the implied assurance of the Miranda
warnings [as] an affront to Due Process[.]" Id. at
292. There, after Greenfield entered a plea of "not guilty
by reason of insanity," the prosecution was permitted to
introduce evidence that he had

"exercised his right to remain silent and
. . . expressed a desire to consult counsel before
answering any questions." Id. at 286-87. Later, in
closing argument and over the objection of defense counsel, the
prosecutor reminded the jury of Greenfield’s silence and
"suggested that [his] repeated refusals to answer questions
without first consulting an attorney demonstrated a degree of
comprehension . . . inconsistent with . . .
insanity." Id. at 287.

In reversing the conviction, the Greenfield
Court emphasized, "[t]he point of . . . Doyle
. . . is that it is . . . unfair to promise
an arrested person that his silence will not be used
against him and thereafter . . . using the
silence to impeach [him]" or otherwise "make use
of the . . . exercise of those rights in obtaining his
conviction." Id. at 292 (emphasis added). Thus,
"[w]hat is impermissible is the evidentiary use of an
individual’s exercise of his constitutional rights after the
. . . assurance" of Miranda. Id. at
295. The Court also noted that, "[w]ith respect to post-Miranda
warnings ‘silence,’ . . . silence does not mean only
muteness: it includes the statement . . . of a desire
to remain silent until an attorney has been consulted."
[1] Id. at 295 n.13.

Within a year of deciding Greenfield,
the Court was, once more, confronted with a Doyle issue in
Greer v. Miller, 483 U.S. 756 (1987), an appeal resulting
from a prosecutorial inquiry of a witness which "touched
upon Miller’s postarrest silence." Id. at 764. Unlike
in Doyle and Greenfield, however, the trial court
sustained Miller’s prompt objection,
instructed the jury to "’ignore the question,’" and the
record reflected no "further questioning or argument with
respect to Miller’s silence[.]" Id. at 759, 765. In
undertaking the necessary Doyle analysis, the Court deemed
it "significant that in each of the cases in which [the] Court has applied Doyle, the trial court . . .
permitted specific inquiry or argument respecting the defendant’s
post-Miranda silence." Id. at 764. Thus,
because "Miller’s postarrest silence was not submitted to
the jury as evidence from which it was allowed to draw any
permissible inference," the Court determined that "no Doyle
violation occurred." Id. at 764-65, 765.

Guided by the lesson of Greer that
"it is the use of an accused’s silence against him at
trial by way of specific inquiry or impeachment that forms the
basis for a violation of [Doyle]," numerous federal
circuits have decided that "Doyle does not impose a
prima facie bar against any mention whatsoever of a defendant’s
right to request counsel [or remain silent], but, instead, guards
against the exploitation of that constitutional right by the
prosecutor." Lindgren v. Lane, 925 F.2d 198, 201, 202
(7th Cir. 1991); see also Noland v. French,
134 F.3d 208, 216 (4th Cir. 1998); Jones v. Stotts, 59
F.3d 143, 146 (10th Cir. 1995); United States v. Stubbs,
944 F.2d 828, 834-35 (11th Cir. 1991).

The Lindgren Court was confronted with a
record that mirrored the instant appeal. A police officer made
mention of Lindgren’s request for counsel during direct
examination by the prosecutor, and the trial court denied
defendant’s resulting motion for a mistrial. In affirming, the
Court reiterated that a Doyle inquiry "center[s] . . . around the particular use to which the
post-arrest silence is being put" and, therefore, requires
consideration of the particular circumstances of each case. 925
F.2d at 202. Because "the inadvertent mention of
[Lindgren’s] request for counsel was not argued to the jury nor
was it ever used to impeach [defendant]," his "request
for counsel was not used against [him]" and "due
process rights were not violated under . . . [Greenfield] and Doyle." Id. at 202-03.

We are persuaded by the rationale of Lindgren,
and, similarly, conclude that defendant’s right to due process
was not compromised by Investigator Thompson’s mere mention that
defendant had once invoked his right to counsel. The gratuitous
comment was not responsive to the question posed to Thompson by
the prosecution, and defendant’s prompt mistrial motion avoided
any inquiry into the subject. Defendant, thereafter, opted to
forego an instruction that the jury ignore the remark, and the
prosecutor made no related argument to the jury or otherwise
exploit the issue. Thus, the words, though improperly spoken by
the witness, were not "used" against defendant in any
respect and were without evidentiary value. Moreover, the trial
court promptly acted to scrupulously safeguard defendant’s due
process rights. Under such circumstances, the trial court
correctly found no Doyle violation.

Defendant’s reliance upon Schrum v.
, 219 Va. 204, 246 S.E.2d 893 (1978), for a
contrary result is misplaced. There, during trial of Schrum
before a jury for rape, the prosecutor propounded a series of
questions to the investigating detective with respect to "an
occasion to talk to the defendant in regard to the matter." Id.
at 209, 246 S.E.2d at 897. In response, the detective testified
that Schrum, then charged with the offense, voluntarily reported
to police headquarters, accompanied by counsel. Further inquiry
by the Commonwealth into the attendant "interview"
prompted the detective to answer, "As I said, he was with
his attorney and his attorney advised him not to make any
statement at this time." Defense counsel’s immediate
objection and motion for a mistrial were overruled by the court,
and the prosecutor was permitted to pursue the incident,
concluding with the detective’s acknowledgment that Schrum was
advised of "his rights," "execute[d] a rights
waiver" but provided "no statements." Thereafter,
the trial judge continued the inquiry, remarking to the witness,
"the man has a right to follow his attorney’s advice, or not
answer, or the attorney to tell you that he didn’t want his
client to make a statement," adding, "That’s not
unusual, is it?," prompting the response, "No sir,
that’s not unusual." Id.

In reversing the conviction, the Court
reaffirmed the view that "the Fifth Amendment precludes the
prosecution from using an assertion of the privilege
against self-incrimination to discredit or convict the person who
asserted it." Id. at 211, 246 S.E.2d at 898 (emphasis
added). Citing Doyle as dispositive, the Court concluded
that the Commonwealth’s use against Schrum of his post-Miranda
exercise of the rights to silence and counsel offended due
process. See id. at 213, 246 S.E.2d at 899.

Thus, in sharp contrast to the instant record,
the prosecutor in Schrum was permitted, despite proper
objection, to develop evidence detailing Schrum’s exercise of his
right to counsel and silence. Moreover, the trial court involved
itself in the issue, further developing the related circumstances
for the jury, accentuating the constitutional implications and
providing insight into the "[]usual" result when an
accused is represented by counsel. Manifestly, therefore,
Schrum’s exercise of constitutional safeguards of Miranda
was intentionally used against him by the prosecutor and
the resulting prejudice was exacerbated by the trial court.


Defendant next contends that the trial court
erroneously declined to allow a defense witness, Sharon Gross, to
testify that Commonwealth eyewitness Derrick Bradley was
"high" on the date of the offense. Again, defendant’s
argument is without merit.

Gross had seen Bradley on the day of the
offense, sometime after she "heard about it." She
initially testified that Bradley was then "glassy-eyed and
high," adding later that he was "high" and
"had gone to get a drink." At Gross’ first reference to
Bradley’s condition, the Commonwealth objected, prompting
defendant’s counsel to respond, before the court ruled,
"Judge, I’ll move along." However, the court sustained
the Commonwealth’s objection to Gross’ subsequent description of
Bradley, noting that, "however [he] was at the time [Gross] saw him is not necessarily how he was at the time of the
event." Again, counsel assured the court, "Very well,
. . . I’ll move along," and abandoned the issue.

"The admissibility of evidence is within
the broad discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of
discretion." Blain v. Commonwealth, 7 Va. App. 10,
16, 371 S.E.2d 838, 842 (1988). Here, circumstances which may
have affected Bradley’s ability to observe and recall the offense
were relevant, but the defense failed to establish that Gross’
evidence, relating to Bradley’s condition at an unspecified time
after the crime, was probative of that issue. Moreover, her
initial testimony, describing Bradley as "glassy-eyed and
high," was before the jury for such consideration as it
deemed appropriate.

Accordingly, the trial court correctly denied
defendant’s motion for a mistrial and properly limited
defendant’s direct examination of Ms. Gross, and we affirm the




[1] Defendant acknowledges on brief
that "the request for an attorney is . . . a
request to remain silent."

[2] Miller’s companion motion for a
mistrial was denied by the court.