Appeal from the United States District Court for the Central District of Illinois. No. 83-3254--J. Waldo Ackerman, Judge.
Before CUMMINGS, Chief Judge, and BAUER, WOOD, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.
FLAUM, Circuit Judge, with whom BAUER, CUDAHY, POSNER, and RIPPLE, Circuit Judges, join.
Petitioner Charles Miller appeals the district court's denial of his petition for writ of habeas corpus, contending that his constitutional rights were violated when the prosecutor improperly commented on his post-arrest silence during his trial in state court for murder, kidnapping, and robbery. This court reversed the district court in a panel opinion issued August 27, 1985. Rehearing en banc was granted on November 14, 1985 and the original decision vacated. We reverse the district court's denial of the writ.
This case involves the brutal kidnapping, murder, and robbery of Neil Gorsuch during the early morning hours of February 9, 1980, in Morgan County, Illinois. Miller was indicted for the crimes on February 11, 1980, along with Clarence Armstrong and Randy Williams. Williams entered into a plea agreement with the state whereby the murder, aggravated kidnapping, and robbery charges against him were dropped in exchange for his guilty plea to one count of kidnapping and his testimony in the separate trials of Miller and Armstrong.
Randy Williams testified at trial as follows: he, his brother Rick, and Armstrong met Gorsuch in a tavern on the evening of February 8. The four men left together at about 1:30 a.m. the following morning, Armstrong having offered to give Gorsuch a ride back to his motel. After taking Rick home, Williams started driving to Gorsuch's motel. En route, Armstrong began beating Gorsuch in the back seat. Armstrong then told Williams to drive to Williams's house, where Armstrong again beat Gorsuch and got Williams's twelve-gauge shotgun out of the bedroom. The three men then got back into the car and drove to the trailer home where Miller was staying. While Williams and Gorsuch waited in the car, Armstrong went in and talked briefly to Miller. Armstrong and Miller then left the trailer and got into the car. Williams drove to a bridge in an isolated rural area, where Armstrong removed Gorsuch from the car and stood him up against the bridge railing. Williams, Armstrong, and Miller then each shot Gorsuch once in the head with the shotgun, and Armstrong pushed the body over the railing into the creek below.
Charles Miller testified that Armstrong came to his trailer in the early morning hours of February 9 and said that he needed to talk to Miller because he and Williams had killed somebody. Miller went with Armstrong to Williams's house and talked to the two men for awhile. He and Williams then took Armstrong home and had breakfast at Dottie's Cafe, which was run by Williams's mother. After breakfast, Miller returned to the trailer. He and Williams were arrested that night at a gas station on their way home from a party.
Other witnesses testified that Gorsuch left the tavern on the morning of February 9 in the company of the two Williams brothers and Armstrong. The people in the trailer where Miller was staying that night testified that Armstrong arrived at the trailer during the early morning hours of February 9 (estimates varied from 4:15 a.m. to 6:30 a.m.) and left with Miller after a short conversation. Williams's mother testified that Williams and Miller arrived at her cafe for breakfast at approximately 6:15 a.m. Shotgun shells, other evidence found near the bridge, and the autopsy reports indicated that the murder had taken place essentially as Williams described.
After Miller testified, the prosecutor began his cross-examination by asking:
PROSECUTOR: Mr. Miller, how old are you?
PROSECUTOR: Why didn't you tell this story to anybody when you got arrested?
Defense counsel immediately objected and, out of the presence of the jury, asked for a mistrial. The judge denied the motion and instructed the jury to "ignore that last question for the time being." The judge did not further instruct the jury on the prosecutor's reference to Miller's post-arrest silence.
The jury found Miller guilty of robbery, kidnapping, aggravated kidnapping, and murder. He was found not guilty of armed robbery. Miller was sentenced to concurrent terms of eighty years for murder, thirty years for aggravated kidnapping, and seven years for robbery.*fn1
On direct appeal, a unanimous panel of the Illinois Appellate Court reversed Miller's conviction and remanded for a new trial. People v. Miller, 104 Ill. App. 3d 57, 432 N.E.2d 650, 59 Ill. Dec. 864 (1982). The appellate court held that the prosecutor's reference to Miller's post-arrest silence directly violated Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), and that the trial court's attempt to cure the error was insufficient. 104 Ill. App. 3d at 61, 432 N.E.2d at 653-54. The appellate court found that the evidence against Miller was not overwhelming:
[T]here is corroboration for the testimony of the accomplice, Randy Williams. However, nothing except Williams' testimony directly links Miller with the crimes.
The trial was essentially a credibility contest between defendant Miller and Randy Williams. The reference to post-arrest silence case aspersions on Miller's credibility and may have irreparably prejudiced him in the eyes of the jury. Thus, reversal is required.
Id. at 61, 432 N.E.2d at 654.
The Illinois Supreme Court granted leave to appeal and reversed the appellate court's decision. People v. Miller, 96 Ill. 2d 385, 450 N.E.2d 322, 70 Ill. Dec. 849 (1983). The majority held that although the prosecutor's comment violated Doyle, the error was harmless because the comment was a single, isolated reference during the course of a lengthy trial, because Randy Williams's testimony was corroborated in many respects, and because the jury was instructed to disregard the comment. Id. at 396, 450 N.E.2d at 327. In dissent, Justice Simon pointed out that accomplice testimony is inherently unreliable and that the judge's allegedly curative instruction was insufficient. id. at 397-99, 450 N.E.2d at 328-29.
Charles Miller filed a petition for a writ of habeas corpus in the United States District Court on August 22, 1983, pursuant to 28 U.S.C. § 2254 (1982). On August 27, 1984, the district court entered an order granting the state's motion for summary judgment and denying the petition for the writ. United States ex rel. Miller v. Greer, No. 83-3254 (C.D. Ill. Aug. 27, 1984). The district court essentially adopted the Illinois Supreme Court's analysis, holding that the state's violation of Doyle was harmless beyond a reasonable doubt.
The Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), that "the use for impeachment purposes of [a] petitioner['s] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment." Id. at 619. The state's first argument in response to Miller's appeal is that, despite the fact that the Illinois Appellate Court, the Illinois Supreme Court, the United States District Court, and this court's original panel all held otherwise, there was no Doyle violation in this case.
Charles Miller was not given Miranda warnings when he and Williams were arrested at a gas station in the early morning hours of February 10, 1980, for unlawful use of weapons (a handgun was found under the seat of the car that they were driving). Later that day, Williams gave a formal statement to the police implicating himself, Armstrong, and Miller in Gorsuch's murder. Immediately following Williams's statement, at 2:57 p.m., Miller was given Miranda warnings and arrested for the murder, kidnapping, and robbery of Neil Gorsuch.
The state concedes that Miller was given Miranda warnings at the time of his arrest for the instant offenses and that any comment referring to his silence after that arrest would be improper. It nevertheless argues that the prosecutor's reference to Miller's post-arrest silence could be construed as referring to the period between Miller's arrest on the weapons charge, when no Miranda warnings were given, and his arrest on the murder charge and receipt of Miranda warnings later that afternoon, and that the prosecutor's comment therefore did not violate Miller's due process rights. See Fletcher v. Weir, 455 U.S. 603, 607, 71 L. Ed. 2d 490, 102 S. Ct. 1309 (1982) (not improper to comment on post-arrest silence in the absence of Miranda warnings, which affirmatively assure a defendant that he has the right to remain silent); Feela v. Israel, 727 F.2d 151, 157 (7th Cir. 1984) (same). The state asserts that it would have been ...