John Allen MINOR, Petitioner-Appellant, v. Harold E. BLACK, Superintendent, Respondent-Appellee, 527 F.2d 1

JOHN W. PECK, Circuit Judge. Petitioner-appellant, testifying at his state court trial on armed robbery and murder charges, asserted the alibi that he was home asleep. On cross-examination, the prosecutor elicited without objection from petitioner his failure, when arrested, to tell the police of his alibi, petitioner explaining his post-arrest silence as being “[o]n the advice of [his] attorney.” In his closing argument to the jury, the prosecutor, also without defense objection, emphasized: “[H]ere’s something that I do not understand and I’ve been at this game a long time.

If you are wanted for a crime you didn’t commit and you knew police were looking for you, any decent, good citizen would go to the police and say, T was at home in bed.’ What happened here? Nearly a year later he comes up with this phony alibi —T was at home in bed.’ Now, I submit, think about that. If you are charged with an offense or if I am, or the judge is, why, the first thing we would do would be to go to the police —‘Mr. Policeman, you’re all wrong.

I was at home in bed and my two sisters will tell you that’. . . . [But] not until a year later — ‘I’ll tell you nothing’ — not quoting the evidence literally —‘I’ll tell you nothing. Prove it on me.’ And he told them nothing on the advice of his counsel, and I’m not criticizing counsel, that was proper advice, and a year later — T was home in bed.’ . Some one is mistaken or not telling the truth.” Trial transcript 87-88. The state court jury convicted petitioner of armed robbery and murder, and petitioner was sentenced to two concurrent terms of life imprisonment.

The state court of appeals affirmed the convictions, although “condemning” the prosecutor’s closing argument that petitioner should have “go[ne] to the police” to explain his whereabouts. That court, however, found insufficient prejudice to petitioner’s substantial rights to warrant reversal stemming from the prosecutorial argument that petitioner should have told the police of his alibi when he reported to the police three days after the commission of the crime, at least in the absence of timely objection to the argument: Minor v.

Commonwealth, 478 S.W.2d 716, 718 (Ky.1971), cert. denied, 409 U.S. 1064, 93 S.Ct. 563, 34 L.Ed.2d 517 (1972). Thereafter, petitioner filed the instant petition for writ of habeas corpus challenging, inter alia, the closing argument as infringing upon his constitutional right to remain silent in the wake of police interrogation.

The district court, examining the trial transcript and finding an evidentiary hearing unnecessary, dismissed the petition because the closing argument “was fair comment on petitioner’s credibility” and “not violative of his Fifth or Fourteenth Amendment rights.” On the instant appeal of that dismissal, petitioner claims, inter alia, that the cross-examination and closing argument infringed upon his constitutional right of due process and his constitutional privilege from compelled self-incrimination. Respondent counters that the cross-examination and closing argument were permissible because Harris v.

New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), has established that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), “cannot be perverted into a license to use perjury by way of a defense.” 401 U.S. at 226, 91 S.Ct. at 646. Of course, had petitioner been convicted in a federal, rather than a state, court, the admission of evidence of his pre-trial silence presumably would have been reversible error. United States v.

Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1075), “in the exercise of. [the Court’s] supervisory authority over the lower federal courts,” invalidated cross-examination concerning pre-trial silence “under the circumstances of [that] case.” But see United States v. Grubb, 519 F.2d 1405 (7th Cir.1975), petition for cert. filed, 44 U.S.L.W. 3069 (July 25, 1975) (No. 75-137).

Hale did not, as we must, decide the constitutional issue, but many of the policy factors favoring the exercise of the federal courts’ supervisory power, to wit, the prejudice and ambiguity of pre-trial silence, also favor holding that the admission of such testimony violates constitutional standards. Unless Harris permits the cross-examination and argument as impeaching petitioner’s credibility, such cross-examination and argument was error.

Miranda explicitly recognized that “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that [the individual] stood mute or claimed his privilege in the face of accusation.” 384 U.S. at 468 n. 37, 86 S.Ct. at 1625 n. 37. Moreover, this court, prior to Harris, had held that cross-examination of a defendant into his failure to inform law en-' forcement officials earlier of his exculpatory trial testimony was plain error “of constitutional magnitude.” United States v.

Brinson, 411 F.2d 1057 (6th Cir.1969). Harris permits statements elicited in violation of Miranda, and, arguably, silence in compliance with Miranda, to be admitted to impeach petitioner’s credibility if, but only if, those statements or silence is sufficiently “trustworth[y],” “sharply contrastpng],” or “inconsistent” with the testimony to be impeached. Harris, supra, 401 U.S. at 224r-26, 91 S.Ct. 643.

We hold that the instant cross-examination and closing argument was error of constitutional magnitude because, petitioner’s silence not being sufficiently inconsistent with his trial testimony to permit the use of that silence to impeach his testimony, the admission of evidence of and comment on such silence violated petitioner’s right to remain silent.

As Judge Breitenstein framed the issue in a comparable case, “The use of pre-trial silence for impeachment depends on whether, in the circumstances presented, there is such inconsistency between silence and testimony as to reasonably permit the use of silence for credibility impeachment.” Breitenstein, J., dissenting in Johnson v. Patterson, 475 F.2d 1066, 1070 (10th Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973) (emphasis supplied). Other courts have similarly found such silence insufficiently inconsistent, e. g., Deats v.

Rodriquez, 477 F.2d 1023, 1025 (10th Cir. 1973), Patterson, supra, 475 F. 2d at 1068 (“[S]ilence at the time of arrest is not aninconsistentor contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right . . . ”), People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), Sutton v. State, 25 Md.App. 309, 334 A.2d 126, 130-133 (1975), Commonwealth v. Bennett, 317 N.E.2d 834 (Mass.App.1974), but see United States v. Harp, 513 F.2d 786, 790 (5th Cir. 1975), United States v. Quintana-Gomez, 488 F.2d 1246 (5th Cir. 1974), United States ex rel. Burt v.

State of New Jersey, 475 F.2d 234, 237 (3rd Cir.), cert. denied, 414 U.S. 938, 94 S.Ct. 243, 38 L.Ed.2d 165 (1973), United States v. Ramirez, 441 F.2d 950, 953-54 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971), Lebowitz v. State, 313 So.2d 473 (Fla.App.1975), State v. Mink, 23 N.C.App. 203, 208 S.E.2d 522, cert. denied, 286 N.C. 340, 211 S.E.2d 215 (1974), Commonwealth v.

Jennings, Pa.Super., 338 A.2d 598 (1975), especially with the suspect remaining silent knowing of his right to remain silent, Hale, supra, 95 S.Ct. at 2137 (“[Respondent] had just been given the Miranda warnings and was particularly aware of his right to remain silent and the fact that anything he said could be used against him. Under these circumstances, his failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication.

There is simply nothing to indicate which

interpretation is more probably correct”), United States v. Fairchild, 505 F.2d 1378, 1382 (5th Cir. 1975) (“After [defendant] had been informed that he had the right not to speak until his lawyer was present he did what a reasonable man could be expected to do — he remained silent”), Rothschild v. State of New York, 388 F.Supp. 1346, 1350 (S.D.N.Y.), aff’d on other grounds, 525 F.2d 686 (2d Cir. 1975), 2042, 2d Cir., filed September 25, 1975), see United States v. Tyler, 505 F.2d 1329, 1333 (5th Cir. 1975), United States v. Matos, 444 F.2d 1071 (7th Cir. 1971), but see Agnellino v.

State of New Jersey, 493 F.2d 714 (3rd Cir. 1974). Though neither the state court nor habeas corpus record reflects whether petitioner was told of his Miranda rights, there was uncontradicted evidence at his state court trial that petitioner’s attorney had advised him to remain silent. See Harp, supra, 513 F.2d at 790 n. 7; Commonwealth v. Jones, 229 Pa.Super. 236, 327 A.2d 638, 643 (1974). Similarly, this court has recognized that silence often is, at best, ambiguous. See Glinsey v.

Parker, 491 F.2d 337, 342 (6th Cir.), cert. denied, 417 U.S. 921, 94 S.Ct. 2630, 41 L.Ed.2d 227 (1974) (holding that state defendants’ silence in face of co-defendants’ inculpating statements insufficient to constitute defendants’ adoption of such statements because “[o]ne in custody has the right to remain silent and it would violate rights guaranteed by the Fifth Amendment to hold that such a person, by his silence, has acquiesced in a statement made by another in his presence which implicates him in a crime”); Luallen v.

Neil, 453 F.2d 428 (6th Cir. 1971), cert. denied, 409 U.S. 857, 93 S.Ct. 141, 34 L.Ed.2d 103 (1972). We, of course, have no supervisory rule over Kentucky criminal courts, and can disturb a state conviction only on the ground of constitutional error. Other courts, however, have found constitutional error in the admission of, and comment on, pre-trial silence for impeachment. E. g., Deats, supra; Patterson, supra; Bobo, supra; Bennett, supra; see Brinson, supra.

The failure of petitioner, or his counsel, to timely object at trial to the admission of, and comment on, pre-trial silence for impeachment, though precluding state appellate review, 478 S.W.2d at 718, cannot preclude federal habeas corpus relief in the absence of even a suggestion that such failure, rather than being an inadvertent oversight, was an attempted “deliberate bypass” of state court procedure. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Deats, supra, 477 F.2d at 1024. See also Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

Indeed, habeas corpus relief has been granted because of such admission and comment in the absence of objection. Deats, supra; Patterson, supra; see Brinson, supra; United States v. Holland, 360 F.Supp. 908, 910 (E.D.Pa.), aff’d without published opinion, 487 F.2d 1395 (3rd Cir. 1973). See also Lebowitz, supra, 313 So.2d at 476 — 477. But see Egger v. United States, 509 F.2d 745, 747 (9th Cir. 1975); Fairchild, supra, 505 F.2d at 1384; United States v. Rose, 500 F.2d 12 (2d Cir. 1974); Ramirez, supra.

Those courts’ willingness to review those convictions accords with the federal courts’ general willingness to review the constitutionality of the admission of evidence, even in the light of failure to comply with a state requirement of contemporaneous objection. Marshall v. Rose, 499 F.2d 1163, 1164 n. 1 (6th Cir. 1974). See Miranda v. Arizona, 384 U.S. 436, 495 n. 69, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See generally White, Federal Habeas Corpus: The Import of the Failure to Assert a Constitutional Claim at Trial, 58 Va.L.Rev. 67 (1972).

Though some courts of appeals have remanded to district courts for evidentiary hearings “upon the question of whether [petitioner] by-passed or waived his [constitutional] claim,” e. g., Pineda v. Craven, 424 F.2d 369, 371 (9th Cir. 1970); Smiley v. California, 442 F.2d 1026 (9th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 718, 30 L.Ed.2d 732 (1972), we see no reason for such remand where, as here, there is no suggestion, either in the record or in respondent’s brief, of a “deliberate bypass.” Accord, United States ex rel. Macon v.

Yeager, 476 F.2d 613, 614 — 15 n. 2 (3rd Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104 (1973); see Blaylock v. Fitzharris, 455 F.2d 462, 464 (9th Cir.), cert. denied, 409 U.S. 948, 93 S.Ct. 286, 34 L.Ed.2d 218 (1972) (evidentiary hearing if “genuine” issue of deliberate bypass). We recognize that constitutional error in using pre-trial silence to impeach trial testimony may on occasion be harmless error. Rothschild, supra, Holland, supra, 360 F.Supp. at 913; see Glinsey, supra, 491 F.2d at 343-44. See generally Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

However, to find harmlessness beyond a reasonable doubt we would have to conclude that, absent the cross-examination and closing argument, “no juror could have entertained a reasonable doubt” as to petitioner’s guilt. Matos, supra, 444 F.2d at 1073. We feel that we cannot in good conscience make such a finding. First, evidence of petitioner’s guilt was far from being overwhelming, Glinsey, supra, 491 F.2d at 344, United States v. Blakemore, 489 F.2d 193, 196 (6th Cir. 1973), United States v. Davis, 459 F.2d 167, 172 (6th Cir. 1972).

While we do not agree with petitioner’s claim on appeal that the evidence against him “was so lacking in probative or evidentiary value as to deprive him of his due process rights,” it must be recognized that the robbery victim’s line-up identification of petitioner was far from conclusive, and that the only other inculpatory evidence was the testimony of an acquaintance that he saw petitioner near the scene of the robbery and murder within fifteen or twenty minutes thereof.

Second, evidence of petitioner’s pre-trial silence could easily have been prejudicial. “The danger is that the jury, is likely to assign much more weight to the defendant’s previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.” Hale, supra, 95 S.Ct. at 2138.

The judgment of the District Court is reversed and the case is remanded with instructions to grant the writ of habeas corpus unless the state proceeds to retry petitioner within a reasonable time, but to await the outcome of any proceedings taken by the state to the Supreme Court. . “Q. Now, tell this jury, please, if you have ever told between June 28th, 1968 and this good day June 11th, 1969 if you’d ever told the story before to anyone, including the police, that you were home this night asleep. “A. Yes, well, I discussed it with my attorney. “Q. I understand that.

I’m asking if you told the police that night when you went to headquarters or if you ever told anyone besides your attorney until this good day that you were at home that night? “Mr. Shobe: I will stipulate, Your Honor, that I advised my client not to discuss this with the police. “Mr. Ousley: Oh, no, Mr. Shobe, I’m not saying anything about you. I’m just asking the question if he told anyone besides his attorney. “The Court: Overruled. I’m going to let the witness answer. “A. I hadn’t discussed anything with anyone other than my lawyer. “Mr. Ousley: I understand, that’s what you are telling the jury.

You did not tell the police a year ago this story that you’re telling the jury today, did you? “A. No, I— “Q. On the advice of your attorney. I understand that; correct? “A. Correct. “Q. You never told anyone else; correct? “A. Correct.” Trial Transcript 60-61. . Even more recently, the Supreme Court denied certiorari in People v. Moore, 55 Mich. App. 678, 223 N.W.2d 302 (1974), cert.denied sub nom. Michigan v. McFarland, 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 112 (1975).

The state’s petition for certiorari presented the question whether the Fifth Amendment bars cross-examination of defendant concerning his invocation of the privilege against self-incrimination and resulting failure to offer arresting officers exculpatory information testified to at trial. The state court of appeals had held that such cross-examination was reversible error, the state court citing People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973), which founded the error on the “constitutional right to remain silent.” .

The failure of petitioner’s attorney to object to the cross-examination and closing argument underlies, in part, petitioner’s claim, on the instant petition for a writ of habeas corpus, of ineffective assistance of counsel.

The district court, however, found no “ineptness or negligence on the part of counsel which deprived the petitioner of any substantial defense,” specifically noting that “[ajlthough defense counsel made no formal objection to the testimony pertaining to the lately-voiced alibi, counsel forcefully pointed out that his silence was on counsel’s advice.” The instant appeal fails to challenge that finding of the district court. . The surviving robbery victim initially identified a man other than petitioner out of a five-man line-up.

It was only after the police informed the victim that the man he had chosen could not possibly have committed the crime, that he said “the No. 3 man [petitioner] looks like the one who pulled the trigger.” Trial Transcript 32. The victim’s explanation was that originally he was looking for petitioner’s co-defendant.