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UNITED STATES EX REL. FLYNN v. BUTLER

July 10, 1975

UNITED STATES of America ex rel. J. Patrick FLYNN, Relator,
v.
Harold N. BUTLER, Superintendent Wallkill Correctional Facility, Respondent



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 This is a petition for a writ of habeas corpus by a state prisoner challenging the validity of his custody pursuant to a December 1973 conviction and sentence of first degree manslaughter in the death of his wife.

 Petitioner, who testified in his own defense at trial, contends that the prosecutor's summation to the jury improperly commented on the petitioner's constitutional right to remain silent at the time surrounding his arrest.

 The state contends that *fn1" (1) by testifying in his defense, petitioner waived his Fifth Amendment privilege as to all relevant matters, including impeachment on the basis of his post-arrest silence and statements, (2) a substantial portion of the allegedly prejudicial summation refers to petitioner's silence or statements at a time when the Fifth Amendment privilege had not yet attached, (3) the summation was a fair response to matters first raised by defense counsel, both on the direct examination of the petitioner and in summation, (4) even if there were error in the prosecutor's comments, it was cured by the trial judge's instructions to the jury, and (5) petitioner's counsel failed to object either during or at the close of the summations in order to preserve the point for appeal and habeas review.

 For the reasons indicated below, the petition must be dismissed.

 Following the death of his wife, petitioner apparently called the police, stating "Send police car to 66 Broadway . . . I just -- I'm going to do myself in." The first officer on the scene approached the house, but was beckoned by the petitioner who had gone outside. The officer asked: "What is it? I have a call here," and petitioner responded, "I shot my wife. I shot my wife. I shot my wife. She's upstairs in bed." At a pre-trial suppression hearing, the trial court held that these statements were volunteered and thus admissible.

 Two officers entered the house to investigate while a third remained outside with petitioner, and shortly thereafter, petitioner was asked in his living room, "What happened?". He replied, "I had an argument with my wife." The trial court suppressed this statement on the ground that it had been made without petitioner having been advised of his rights under Miranda. Once petitioner was formally advised of those rights and requested counsel, there was no further questioning.

 At trial, petitioner testified in his own defense that he had accidentally killed his wife while he was attempting to unload a rifle after she had prevented him from committing suicide and that he had not mentioned this to the arresting officers because nobody asked him.

 By way of anticipation, petitioner's counsel at trial suggested to the jury in his summation that the prosecutor might argue that if the death had really been an accident as the petitioner testified, he would have told the police that it was an accident when they arrived. Petitioner's counsel proceeded to argue that in the confusion of the moment there simply had not been any opportunity for petitioner to explain to the police, either before or after having been advised of his constitutional rights, that the death had been an accident. *fn2"

 In his summation, the prosecutor contended, as defense counsel had anticipated, that if this really had been the horrendous accident that petitioner claimed, he surely would have said something to that effect when the police arrived. The prosecutor suggested that petitioner's testimony at trial that he had not done so because nobody asked him offended common sense.

 The prosecutor reviewed the events of that evening, and as he proceeded from stage to stage, he pointed out that the petitioner had had the opportunity to tell the police that the death had been an accident. When the prosecutor was apparently about to comment on the petitioner's failure to say anything at a time after he had been advised of his rights under Miranda, the trial judge interrupted sua sponte, directed the prosecutor to move on to another subject, and instructed the jurors that they were not to draw any inferences because of the petitioner's silence, which instruction was reiterated in the charge.

 Defense counsel did not object to the prosecutor's comments at any point during or after the summation. Following the Court's charge, he said at a side bar conference that he would have objected at the close of the summation if the trial judge had not himself interrupted the prosecutor.

 The underlying question in this case is essentially one of characterization -- is this a case of comment on "silence" within the special meaning of the Fifth Amendment or is it a case of comment on the variations between the tenor and content of statements made at different times?

 Petitioner's contention that the prosecutor's comments were constitutionally improper is best considered by reviewing each of the opportunities for explanation alluded to by the prosecutor. The prosecutor initially argued that the petitioner had the opportunity to offer his explanation when the first policeman arrived on the scene. The trial court ruled, and petitioner apparently does not contest, that these statements were volunteered and thus admissible. Moreover, since petitioner actually made a statement at that time, albeit one which he claims was incomplete, the prosecutor's discussion of the variations in the content of the pre-trial and trial statements did not constitute comment on the petitioner's right to remain "silent" within the meaning of the Fifth Amendment. See Agnellino v. State of New Jersey, 493 ...


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