1—State v. Hoard—Right to remain silent (maybe)
In every criminal defense lawyer’s day, he or she asks (sometimes out loud), "How could the Court do that?” Understanding appellate court and trial court’s basis for rulings sometimes requires careful consideration, and other times causes one to pull hair from root. Reviewing recently written opinions, comparing them to previously written opinions, and pondering on what the law should be has likely left many a defense lawyer with unexplained bald spots.
In State v. Hoard, 248 W. Va. 428 (2023), the Supreme Court of Appeals of West Virginia found that despite a Defendant’s constitutional right being violated by the prosecutor making multiple references to the Defendant’s pre-trial silence, the Circuit Court had committed “harmless error” by allowing the violations. The decision was 5-0, with one justice sitting by temporary assignment and Justice Wooten writing a concurrence.
Charge and Conviction: On November 3, 2019, Mr. Hoard shot and killed Mr. Felton in Terra Alta, West Virginia, and was indicted for first-degree murder. By a jury of his peers, Mr. Hoard was convicted of second-degree murder.
Appellate Issue: During the State’s opening statement, the prosecutor discussed the number of interviews completed by law enforcement and then stated:
The one interview we didn’t get was [Mr.] Hoard or his girlfriend.
The defense moved for a mistrial on the grounds that it invaded the Defendant’s Fifth Amendment right to remain silent. This motion was denied.
The Defendant chose to testify and during cross-examination, the Defendant was asked about his version of events, and then the prosecutor doubled-down on whether a Defendant’s silence can be used against him.
But you never told police that, did you?
(emphasis added). The defense against moved for a mistrial on grounds that the question invaded the Defendant’s Fifth Amendment privilege against self-incrimination, which again the Court denied.
The bear having now been fed by the Court, the prosecutor went back to the tent, and again inquired of the Defendant:
If you wanted everybody to know your side [of the story] why didn’t you tell it to the police officer?
This time the Court sustained the defense’s objection.
Appellate Court Analysis/Conclusions: The Court went through the history of the right to remain silent cases, first citing Doyle v. Ohio, 426 U.S. 610 (1976), then noting that West Virginia embraced Doyle in State v. Boyd, 160 W. Va. 234 (1977), finding that the West Virginia Constitution also provides for the right against self-incrimination. The Hoard Court continued by noting that the United States Supreme Court in Jenkins v. Anderson, 447 U.S. 231, 240 (1980), modified Doyle in finding that “impeachment by use of prearrest silence does not violate the [Defendant’s right to remain silent].” Noting that in State v. Ramsey, 209 W. Va. 248, 256 (2000) and State v. Walker, 207 W. Va. 415, 419 n.2 (2000), West Virginia also held “that there is no constitutional violation when ‘the defendant’s silence occurred prior to his arrest and the giving of Miranda warnings.’”
After walking through a bit of legal history, the Court noted:
[I]t is unclear whether the references made to Hoard’s silence were to those of pre-arrest silence or post-Miranda silence. In light of that ambiguity, we are unable to conclusively find that such references are to Hoard’s right against self-incrimination. Accordingly, the circuit court’s determination that such references did not violate Hoard’s right against self-incrimination were erroneous.
So the Court found that the references to the defendant’s pre-trial silence was erroneous, so why does this case bother me? Why should people care? Because that is not the end of the analysis. The Court relied upon State v. Blair, 158 W. Va. 647 (1975) which held:
In a constitutional context, the doctrine [of harmless error] is also applied because appellate courts are not bound to reverse for a technical violation of a fundamental right. . . . Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.
The Court went on to note that there were only two (yes, that is the number used by the Court even though there were three) instances in which the State made reference to the Defendant’s silence during a 3,000 page record. To justify this finding of beyond reasonable doubt, the Court explained that the instances were isolated, but the evidence of the Defendant’s guilt “was quite extensive” and that “beyond a reasonable doubt [] without the two [sic] isolated references to Hoard’s silence, the jury would have nonetheless returned a guilty verdict.”
Commentary from the Peanut Gallery: There are two rules upon which every soul should abide: don’t feed the bear, and don’t poke the bear. While this commentary may be a violation of the second rule, Hoard does nothing more than approve the violation of the first by providing a seal of approval for prosecutors to invade the providence of the Fifth Amendment in protracted trials. Why not? It clearly does not matter when it occurs thrice in a 3,000 page trial, what about a 2,000 page trial?
Anyone that has watched cop television shows since Miranda was decided knows that in this country, “You have the right to remain silent.” What the television shows do not tell you is that until that statement is read to you, your prearrest silence may be used against you pursuant to Jenkins v. Anderson and State v. Ramsey. So if a Defendant testifies, under Jenkins and Ramsey, his prearrest silence is fair game for a prosecutor. So a prosecutor asks a Defendant on cross-examination, “Before you were arrested, why didn’t you go to law enforcement and tell them your side of the events?” What should a defendant answer, “Because I didn’t want you to be looking at me!” Or maybe, “Because I did not possibly think anyone in their right mind could think that I had anything to do with this mess, and clearly I was right, because you are crazy.” Can you imagine the bedlam in the courtroom to such a response:
Prosecutor: Motion to strike as non-responsive.
Defense attorney: Judge, we were all taught in law school that on cross-examination you have to be out of your mind to ask an open-ended question. The prosecutor asked my client an open-ended question, and my client responded with what you and I were taught in law school, that the prosecutor must be crazy. It seems to me that such a response is absolutely responsive to the question asked.
Judge: Overruled. Ask a stupid question, get a stupid answer. Move along.
All joking aside, it is unfortunate that the Jenkins Court found that pre-arrest silence is not constitutionally protected. However, re-focusing on Hoard, how can the Court say that the weight of the evidence outweighs the imposition of the right against self-incrimination? At least three times during every criminal trial, the Court instructs the jury that the Defendant does not have to testify, but has the right against self-incrimination and is presumed innocent. It’s done during jury selection, immediately before opening statements, and then again in jury instructions before closing arguments. (Notably, the Defendant is advised of this right during every plea hearing as it is a fundamental right.) At the conclusion of the State’s case in chief, outside the presence of the jury, every trial judge advises the Defendant of his right to remain silent and not to testify, and inquires of whether the Defendant has made a decision. If the Defendant chooses not to testify, the jury is instructed that it cannot infer anything from the Defendant’s silence. With that backdrop, how can any jury take these instructions seriously if the Court is going to say that constitutional violations simply do not matter if there is enough evidence to prove guilt? We cannot and we should not!
Justice Wooten noted in his concurrence:
It is so well established that “it is reversible error for the prosecutor to cross-examine a defendant in regard to his pre-trial silence or to comment on the same to the jury,” . . . that I am amazed at the prosecutor’s stubborn insistence that she had the right to do exactly that. Further, I cannot understand the circuit court’s refusal to take any action when the defense counsel objected.
Yet, even he found that despite these violations of this clear and well established rule, the error was harmless. How can that be? Well, the evidence was just too great against him. Horse manure! Every sentence the Defendant testified to was undermined by the idea the prosecutor planted in the jury’s mind without ever saying it:
Mr. Hoard did not tell the cops his side of the story, because he needed his lawyer to concoct a story in which he was actually the hero and not the villain.
One could argue that the Court should have found that the right against self-incrimination is so sacrosanct in our society that it raises the level of its protection. As discussed above, the right against self-incrimination is mentioned several times to the jury. The Miranda card carried by every officer can be recited by memory by children because it is such a part of our culture at this point. Is it not ingrained in our memories as much as the Pledge of Allegiance or the Star Spangled Banner? In other words, by allowing the prosecutor to violate this right, the Court essentially said to the jury, “You know all those comments I made about the Defendant’s right against self-incrimination, presumption of innocence, and not having to put on a defense of any kind, I didn’t mean it.” Consequently, by undermining that fundamental right against self-incrimination, any analysis by the jury must be viewed as so tainted that the verdict must be thrown out.