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Docket Number

A01A0990.

Attorney(S)

Tapley Warnock, Charles M. Warnock, Jr., for appellant. Steven Askew, District Attorney, for appellee.

Judges

MIKELL, Judge.

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Smart Summary

Summary of Opinion: Gordon v. The State (Court of Appeals of Georgia, June 13, 2001)

Factual and Procedural Background

On October 8, 1998, Roderick Raysheik Gordon entered a vehicle in Swainsboro occupied by four men. The men testified that Gordon flagged them down and asked for a ride; Gordon testified instead that they asked him to assist in purchasing cocaine. The occupants' accounts diverged on whether they reached the club, how Gordon entered and exited the vehicle, and on the sequence of events at a location called "the projects." Several occupants testified that Gordon displayed a handgun (a "Gatt"), that money was left on the seat, and that shots were fired; one occupant, Holloway, was shot in the arm and later testified that Gordon shot him in the face. Gordon admitted shooting Holloway but testified he acted in self-defense, describing an exchange in which a gun was seized after an instruction to "give it up," followed by a struggle and a shot.

A jury acquitted Gordon of four counts of armed robbery and convicted him of one count of aggravated assault. Gordon moved for a new trial, arguing that the trial court erred by refusing to declare a mistrial after the prosecutor cross-examined him about his silence before and after arrest. The trial court had overruled the defense objection, permitted inquiry and argument about Gordon's failure to tell the police his version, but also instructed the jury that Gordon had a right to remain silent. The Court of Appeals reversed Gordon's conviction and remanded for a new trial.

Legal Issues Presented

Whether the trial court erred in permitting the prosecutor to cross-examine the defendant about his pre-arrest and post-arrest silence (including his failure to give the police his version of events) after the defendant invoked his right to remain silent.
Whether the trial court erred in denying the defendant's motion for a mistrial based on the prosecutor's questions and argument concerning the defendant's silence.

Arguments of the Parties

Appellant's (Gordon's) Arguments

Gordon contended that the prosecutor impermissibly questioned him about his silence before and after arrest and that the trial court should have granted a mistrial when such questioning occurred and the court overruled his objection.
Defense counsel objected at trial to the prosecutor's inquiry into Gordon's silence and moved for a mistrial after the prosecutor continued to argue that Gordon had failed to tell police his version of the story.

Appellee's (State's) Arguments

The prosecutor asserted he had the right to question Gordon about his opportunity to tell his version of events to the police and to argue to the jury that Gordon "failed to tell the police his version of the story."
The State relied on various authorities in support of its position; the opinion recounts the State's contentions concerning precedents such as Chapman and James but ultimately rejects the argument that those cases carved out an exception to the rule prohibiting comment on a defendant's silence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Doyle v. Ohio, 426 U.S. 610, 619 (1976)	It is fundamentally unfair to use a defendant's silence following arrest (after Miranda warnings) against him for substantive or impeachment purposes.	The court cited Doyle as foundational authority supporting the principle that silence after arrest may not be used against a defendant; it used Doyle to support reversal of the trial court's overruling of the defense objection.
Gibbs v. State, 217 Ga. App. 614, 615 (1995)	Prohibits commenting on or using a defendant's silence in ways that make a trial fundamentally unfair; example of reversal where officer testified defendant refused to give a statement after arrest.	The court relied on Gibbs to show that testimony about a defendant's post-arrest silence can undermine fairness and to support reversal here.
Mallory v. State, 261 Ga. 625, 629-630 (5) (409 S.E.2d 839) (1991)	Extended Doyle: prohibits comment upon a defendant's silence even where defendant had not received Miranda warnings and where he takes the stand; prohibits any testimony touching upon the silence of an accused.	The court treated Mallory as a "hard and fast rule" barring questions and comments about pre-arrest and post-arrest silence and held the trial court erred under Mallory.
Wallace v. State, 272 Ga. 501, 503 (2) (530 S.E.2d 721) (2000)	Describes Mallory's prohibition that "the prejudicial impact of such testimony is far greater than its minimal probative value."	Quoted to reinforce the principle that testimony touching upon a defendant's silence is prohibited because of its prejudicial effect.
Fletcher v. Weir, 455 U.S. 603 (1982)	Example of federal precedent indicating that federal constitutional precedents did not require as strict an approach as Mallory.	Cited to note that federal precedent did not compel Mallory's strict rule, although Georgia's Mallory does impose a stricter prohibition.
Jenkins v. Anderson, 447 U.S. 231 (1980)	Another federal precedent illustrating differences between federal constitutional holdings and Georgia's stricter Mallory rule.	Cited for the proposition that federal decisions did not require Mallory's strict approach; the court rejected the State's argument that James created an exception to Mallory.
Chapman v. State, 263 Ga. 393 (435 S.E.2d 202) (1993)	Discussed by the State as potentially relevant to admissibility of silence evidence.	The court held Chapman did not establish an exception to Mallory because the Chapman trial occurred before Mallory's promulgation; thus Chapman did not authorize the prosecutor's questioning here.
James v. State, 230 Ga. App. 615 (497 S.E.2d 389) (1998)	Holds that a mistrial or reversal is not always required when a jury hears improper evidence, especially when no objection was made.	The Court of Appeals rejected the State's contention that James created an exception to Mallory; the opinion notes that James does not alter Mallory's rule and that James' precedential effect is questionable due to special concurrences.
Mullinax v. State, 242 Ga. App. 561, 562 (1) (530 S.E.2d 255) (2000)	Held evidence of pre-arrest "silence" in the form of failure to produce documentary proof of ownership was admissible as part of the res gestae in trials for theft/receiving stolen property.	Deemed inapposite by the court for the facts here; Mullinax did not support admissibility of the type of testimony used against Gordon.
Shaheed v. State, 245 Ga. App. 754 (538 S.E.2d 823) (2000)	Similar to Mullinax regarding admissibility of evidence of pre-arrest silence as res gestae.	Also found inapposite to this case; did not justify the prosecutor's questioning about silence.
Boykin v. State, 240 Ga. App. 402, 404 (1) (523 S.E.2d 605) (1999)	Example where defendant's failure to explain presence was admissible as part of the res gestae in a burglary trial.	Referenced in a footnote as another res gestae example; the court distinguished such cases from the impermissible questioning in this trial.
Cromwell v. State, 218 Ga. App. 481, 482 (1) (462 S.E.2d 388) (1995)	Precedent supporting that overruling objection to testimony about defendant's silence is error.	The court cited Cromwell to reinforce that overruling the defense objection to questioning about silence was erroneous.
Burton v. State, 225 Ga. App. 217, 218 (2) (483 S.E.2d 658) (1997)	States that whether a mistrial is necessary to protect a defendant's right to a fair trial is largely within the trial court's discretion.	The court applied Burton to frame the standard of review when considering whether a mistrial was required in this case.
Barnes v. State, 269 Ga. 345, 352 (12) (496 S.E.2d 674) (1998)	Discussed in the context of harmless-error analysis.	The court referenced Barnes to explain that because the evidence here was not overwhelming, it could not conclude the error was harmless.

Court's Reasoning and Analysis

The court first summarized the trial testimony and the cross-examination in which the prosecutor questioned Gordon about his silence before and after arrest. The prosecutor's repeated questioning and argument asserted that Gordon had an opportunity to tell police his version and had not done so; the trial court acknowledged Gordon's right to remain silent but nonetheless allowed the prosecutor to question and argue about Gordon's failure to tell police his story, and told the jury the prosecutor had a right to ask about the defendant's opportunity to tell the statement.

The court analyzed the admissibility of testimony about a defendant's silence under controlling precedent. It held that allowing questions and argument about Gordon's pre-arrest and post-arrest silence was error. The court relied principally on Doyle v. Ohio and on Georgia authorities extending Doyle, especially Mallory, which the court described as a "hard and fast rule" prohibiting comment upon a defendant's silence even where Miranda warnings were not given and even where the defendant testified. The court emphasized Mallory's categorical prohibition and Wallace's statement that such testimony's prejudicial impact far outweighs any minimal probative value.

The opinion considered and rejected the State's attempts to distinguish or limit Mallory. It held Chapman did not create an exception to Mallory because Chapman involved a trial that occurred before Mallory's promulgation. It also rejected the notion that James created an exception to Mallory, noting that James does not alter Mallory's rule and that James' binding effect is questionable. Mullinax and Shaheed, which allowed certain pre-arrest "silence" evidence as res gestae in theft/receiving-stolen-property contexts, were declared inapposite to the facts of this case. The court cited Cromwell for the proposition that overruling an objection to testimony about silence was erroneous.

Turning to whether a mistrial was required, the court applied the standard that the trial court has discretion but that the issue is whether the testimony produced a trial so fundamentally unfair as to deny due process (citing Burton and Gibbs). The court found the prosecutor repeatedly stressed Gordon's failure to explain events to police and that the trial court's ruling that the prosecutor could question and argue about Gordon's failure to make a statement affected Gordon's credibility and therefore the viability of his affirmative self-defense. Because the evidence was not overwhelming and the witnesses' testimony contained contradictions (factors that undercut a harmless-error finding), the court concluded the error was not harmless and that Gordon was entitled to a new trial.

Holding and Implications

Judgment reversed.

Consequence for the parties: The Court of Appeals reversed Gordon's conviction for aggravated assault and ordered that he be afforded a new trial. The court concluded the trial court erred in permitting cross-examination and argument concerning Gordon's pre-arrest and post-arrest silence and in denying his motion for a mistrial; the error was not harmless because it affected credibility and the affirmative defense and the evidence was not overwhelming.

The opinion applies existing Georgia precedent (notably Mallory and related decisions) to find error here; it does not purport to announce a new rule beyond the application of those precedents. The direct effect is reversal and a new trial for Gordon.

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GORDON v. THE STATE

MIKELL, Judge.

A jury acquitted Roderick Raysheik Gordon of four counts of armed robbery and convicted him of one count of aggravated assault. He appeals from the denial of his motion for new trial, contending that the trial court erred in refusing to declare a mistrial after the prosecutor cross-examined him concerning his silence before and after his arrest. We agree and reverse his conviction.

Evidence adduced at trial shows that on October 8, 1998, Gordon entered a vehicle in Swainsboro occupied by four men: Jamie Heggs, Kenward Tywan Jackson, Twayne Holloway, and Trawaski Fields. The men testified that Gordon had flagged them down and asked for a ride home. Gordon testified that he was standing outside the Bama Club, a known drug hangout, when the men pulled up and requested his assistance in purchasing cocaine. Holloway and Fields testified that they rode by the club twice and picked up Gordon the second time. Heggs and Jackson, however, testified that they never made it to the club. The four witnesses claimed that drugs were never mentioned.

Heggs, Holloway, and Fields testified that they gave Gordon a ride to a neighborhood known as "the projects." Holloway testified that when they reached the projects, an unidentified person approached the car, and Gordon spoke with him briefly. Heggs, Jackson, and Fields, on the other hand, claimed that Gordon exited the car and returned several minutes later. All the witnesses, including Gordon, testified that they resumed driving toward a different neighborhood. Fields, who was driving, testified that Heggs turned to Gordon and said: "[Y]ou got something, man, cause I seen you and that dude talking, he gave you something. . . . Then [Gordon] said, no, I ain't got no cigarette, ain't got nothing but this Gatt for ya'll. Ya'll gone give me what ya'll got." Fields testified that after he saw the gun, he "slammed the car in park," took his money out of his pants, left it on the seat, and ran. Then he heard gunfire. Holloway, who had been sitting in the front seat next to Fields, testified that when he and Fields looked back, Heggs and Gordon were fighting over the gun. Shots were fired, and Holloway was hit in the arm. Holloway then laid down in the front seat until the gunfire ended. However, Holloway testified, when he rose to exit the car, Gordon shot him in the face. Holloway testified that Gordon was shooting from inside the car. Heggs, on the other hand, testified that Gordon was not in the car when he fired the gun. Heggs and Jackson, who was also in the back seat, testified that Gordon held the gun to Heggs' head. Jackson ran and called 911.

"Gatt" is a colloquial expression for a hand gun.

Gordon admitted shooting Holloway but claimed he did so in self defense. Gordon testified that the four men stopped him outside the Bama Club and asked where they could purchase cocaine. Gordon proceeded with them to the home of a drug supplier. The men remained in the car; the supplier came out but failed to negotiate a deal with them. Gordon then asked to be taken home. At that point, Gordon testified, one of the men pulled out a gun and told Gordon to "give it up." Gordon claimed he grabbed the gun, it fired, and then the other man released it. Gordon testified that all the others except Holloway fled. He claimed that Holloway "got out of the car and began to come towards me. And me, being scared for my life . . . I fired. And that's it."

1. In his first two enumerations of error, Gordon contends that the trial court erred in permitting the state to cross-examine him regarding his failure to explain his innocence to the police and in denying his motion for mistrial on this basis.

During cross-examination, the prosecutor questioned Gordon concerning the events leading up to his arrest. Gordon testified that on the morning after the incident, the police came to his house with the drug supplier, but the supplier failed to identify Gordon. The following colloquy ensued:

Q. Did you tell them who you were?

A. They didn't ask me any questions.

Q. So you're standing there with the police, you know they're investigating this, and you don't tell the police the truth?

A. I don't say nothing at the time.

Q. The police did, in fact, ultimately arrest you, didn't they?

A. Yes, sir.

Q. And they took you in and asked you to give your side of the story, didn't they?

A. Yes, sir, when I told them I had nothing to say without a lawyer present.

Q. And you didn't say anything?

A. Didn't say anything at all.

Q. You're telling us that you are innocent and you didn't tell a soul?

Defense counsel objected to the prosecutor's inquiry into the defendant's silence. In the presence of the jury, the court acknowledged Gordon's right to remain silent. However, rather than excusing the jury, the court also permitted the prosecutor to argue that Gordon "already had an opportunity to talk with the police and tell this story that he's now telling for the first time but didn't tell it. And so he's been given yet a second opportunity . . . to tell the police." Defense counsel then moved for a mistrial. The prosecutor continued to assert his right to question Gordon and to argue to the jury that Gordon "failed to tell the police his version of the story." The trial court then informed the jury that Gordon was not required to make a statement to the police, either with or without an attorney present. However, the court also told the jury that the prosecutor "has the right to ask [Gordon] questions about his opportunity to tell the statement and what he said. That is admissible evidence." This ruling, in effect, overruled the defense's objection.

The trial court erred in overruling defense counsel's objection to the prosecutor's cross-examination concerning Gordon's pre-arrest and post-arrest silence. It has been held to be fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him for either substantive or impeachment purposes. Doyle v. Ohio, 426 U.S. 610, 619 ( 96 S.Ct. 2240, 49 L.Ed.2d 91) [(1976)]. Gibbs v. State, 217 Ga. App. 614, 615 ( 458 S.E.2d 407) (1995). In Mallory v. State, 261 Ga. 625, 629-630 (5) ( 409 S.E.2d 839) (1991), our Supreme Court extended the holding in Doyle to prohibit comment upon a defendant's silence "even where the defendant has not received Miranda warnings and where he takes the stand in his own defense. " Mallory prohibits "any testimony touching upon the silence of an accused, because the prejudicial impact of such testimony is far greater than its minimal probative value." Wallace v. State, 272 Ga. 501, 503 (2) ( 530 S.E.2d 721) (2000).

Mallory established a hard and fast rule, although federal constitutional precedents did not require such a strict approach. See. e.g., Fletcher v. Weir, 455 U.S. 603 ( 102 S.Ct. 1309, 71 L.Ed.2d 490) (1982); Jenkins v. Anderson, 447 U.S. 231 ( 100 S.Ct. 2124, 65 L.E.2d 86) (1980). Contrary to the state's contention, our Supreme Court's decision in Chapman v. State, 263 Ga. 393 ( 435 S.E.2d 202) (1993), did not establish an exception to Mallory. The defendant in Chapman was tried eight months prior to the promulgation of the Mallory rule on December 26, 1991. Accordingly, the rule enunciated therein, prohibiting questions and comments concerning a defendant's silence and obliging a trial court to sustain objections to them, was held inapplicable in Chapman. 263 Ga. at 394, n. 2.

Similarly, contrary to the state's contention, this Court's decision in James v. State, 230 Ga. App. 615 ( 497 S.E.2d 389) (1998) created no exception to the Mallory rule. James holds that a mistrial, or a reversal of a conviction, are not always required when a jury has heard improper evidence, especially when no objection was made. Finally, Mullinax v. State, 242 Ga. App. 561, 562 (1) ( 530 S.E.2d 255) (2000), and Shaheed v. State, 245 Ga. App. 754 ( 538 S.E.2d 823) (2000), are inapposite. Those decisions held that evidence of pre-arrest "silence" in the form of failure to produce documentary proof of ownership was admissible as part of the res gestae in a trial for theft of receiving stolen property. Here, therefore, the trial court erred in overruling defense counsel's objection to the prosecutor's questions on the issue of Gordon's silence. Cromwell v. State, 218 Ga. App. 481, 482 (1) ( 462 S.E.2d 388) (1995).

Two judges specially concurred in James, ostensibly rendering the opinion physical precedent only. See Court of Appeals Rule 33 (a).

See also Boykin v. State, 240 Ga. App. 402, 404 (1) ( 523 S.E.2d 605) (1999), where we held that in a trial for burglary, the defendant's failure to explain her presence in the store was admissible as part of the res gestae.

Next, we must consider whether the trial court erred in refusing to grant a mistrial. "Whether a mistrial is necessary to protect the defendant's right to a fair trial is a decision largely within the discretion of the trial court." Burton v. State, 225 Ga. App. 217, 218 (2) ( 483 S.E.2d 658) (1997). "The true focus of this court's inquiry must be whether the testimony produced a trial which was so fundamentally unfair as to deny defendant due process." (Citation omitted.) Gibbs, supra at 615.

In the case sub judice, as we held in Gibbs, supra, "it would be naive to suggest that the evidence concerning defendant's silence did not weaken defendant's position in the minds of the jurors." The prosecutor repeatedly stressed Gordon's failure to explain the events leading up to his arrest. The court told the jury that the prosecutor had a right to ask Gordon questions about his failure to make a statement. The questions and the ruling impacted Gordon's credibility, and, consequently affected the success or failure of his affirmative defense. Moreover, the evidence was not overwhelming, so we cannot say that the errors were harmless. Cf. Barnes v. State, 269 Ga. 345, 352 (12) ( 496 S.E.2d 674) (1998). The testimony of the witnesses was contradictory in certain aspects, contributing to the jury's decision to acquit Gordon of the four armed robbery counts in the indictment. Under these circumstances, Gordon must be afforded a new trial.

In Gibbs, we reversed a conviction for attempted armed robbery based on a police officer's impermissible testimony that the defendant refused to give a statement after he was arrested.

James, supra, does not require a contrary result. Its binding effect is questionable, as it is weakened by two special concurrences and relies on precedents which predate Mallory.

Judgment reversed. Blackburn, C. J., and Pope, P.J., concur.