Doyle violation in Indiana

2016“An alleged Doyle violation is of constitutional magnitude and may be reviewed under the fundamental error doctrine.” Sobolewski, 889 N.E.2d at 857 . [18] First, our review of some of the closing argument reveals that, for the most part, the prosecutor was referring not to Anderson’s post-Miranda silence but to his pre-arrest failure to mention his version of events regarding the three attackers to the multiple witnesses, firemen, and law enforcement personnel whom he encountered shortly after he and Brooks were allegedly attacked, but before he was arrested.

2016“An alleged Doyle violation is of constitutional magnitude and may be reviewed under the fundamental error doctrine.” Sobolewski, 889 N.E.2d at 857 . [18] First, our review of some of the closing argument reveals that, for the most part, the prosecutor was referring not to Anderson’s post-Miranda silence but to his pre-arrest failure to mention his version of events regarding the three attackers to the multiple witnesses, firemen, and law enforcement personnel whom he encountered shortly after he and Brooks were allegedly attacked, but before he was arrested.

2018In Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), our Supreme Court set out a five-part test to determine whether a Doyle violation is harmless: (1) the use to which the prosecution puts the post-arrest silence; (2) who elected to pursue the line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the intensity and frequency of the reference; and (5) the availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

2018In Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), our Supreme Court set out a five-part test to determine whether a Doyle violation is harmless: (1) the use to which the prosecution puts the post-arrest silence; (2) who elected to pursue the line of questioning; (3) the quantum of other evidence indicative of guilt; (4) the intensity and frequency of the reference; and (5) the availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

2017See Greer v. Miller, 483 U.S. 756 , 764–65, (1987) (finding no Doyle violation where the prosecutor asked the defendant why he did not tell his story when he was arrested, defense counsel objected and moved for mistrial, the trial court denied the motion but sustained the objection and instructed the jury to ignore the question, and the prosecutor made no subsequent mention of defendant’s silence).

2012See Greer v. Miller, 483 U.S. 756, 764-65 , 107 S.Ct. 3102 , 97 L.Ed.2d 618 (1987) (no Doyle violation where prosecutor asked defendant why he did not tell his story when he was arrested, defense counsel objected and moved for mistrial, trial court denied motion but sustained objec *566 tion and instructed jury to ignore question, and prosecutor made no other mention of defendant’s silence).

2018Further, the State avers that, “[w]here a defendant does not exercise his Miranda rights but instead makes a statement to the police, the defendant cannot thereafter claim a Doyle violation.” Id. at 16. [9] In support of its contention on this issue, the State cites to our Supreme Court’s opinions in Trice v. State, 766 N.E.2d 1180 (Ind. 2002), and Sylvester v. State, 698 N.E.2d 1126 (Ind. 1998), but neither of those cases is on all fours with the instant case.

2018Further, the State avers that, “[w]here a defendant does not exercise his Miranda rights but instead makes a statement to the police, the defendant cannot thereafter claim a Doyle violation.” Id. at 16. [9] In support of its contention on this issue, the State cites to our Supreme Court’s opinions in Trice v. State, 766 N.E.2d 1180 (Ind. 2002), and Sylvester v. State, 698 N.E.2d 1126 (Ind. 1998), but neither of those cases is on all fours with the instant case.

2026“We note that a Doyle violation is actually a violation of the Due Process Clause’s prohibition against fundamental unfairness, not a violation of the Fifth Amendment privilege against self-incrimination.” Bevis v. State, 614 N.E.2d 599, 602 (Ind. Ct. App. 1993) (citing Wainwright v. Greenfield, 474 U.S. 284, 291 , 291 n.7, 106 S. Ct. 634, 638-639 , 639 n.7 (1986)). [35] With respect to the prosecutor’s question during the cross-examination of Hollingsworth, defense counsel objected and asserted during the sidebar, “I’m just going to ask that they not be permitted to go under this line of ques

2026“We note that a Doyle violation is actually a violation of the Due Process Clause’s prohibition against fundamental unfairness, not a violation of the Fifth Amendment privilege against self-incrimination.” Bevis v. State, 614 N.E.2d 599, 602 (Ind. Ct. App. 1993) (citing Wainwright v. Greenfield, 474 U.S. 284, 291 , 291 n.7, 106 S. Ct. 634, 638-639 , 639 n.7 (1986)). [35] With respect to the prosecutor’s question during the cross-examination of Hollingsworth, defense counsel objected and asserted during the sidebar, “I’m just going to ask that they not be permitted to go under this line of ques

2014See Lynch v. State, 632 N.E.2d 341, 341 (Ind. 1994) (Doyle violation where trial court instructed jury that tape of defendant’s initial police interrogation was to be used for the limited purpose of 16 establishing defendant’s state of mind soon after the crime and where tape showed discussions regarding defendant’s Miranda rights and defendant’s invocation of his right not to be questioned without an attorney); Wilson v. State, 514 N.E.2d 282, 283 (Ind. 1987) (finding a Doyle violation where detective testified that defendant indicated he wanted to talk to a lawyer before continuing interview

2014See Lynch v. State, 632 N.E.2d 341, 341 (Ind. 1994) (Doyle violation where trial court instructed jury that tape of defendant’s initial police interrogation was to be used for the limited purpose of 16 establishing defendant’s state of mind soon after the crime and where tape showed discussions regarding defendant’s Miranda rights and defendant’s invocation of his right not to be questioned without an attorney); Wilson v. State, 514 N.E.2d 282, 283 (Ind. 1987) (finding a Doyle violation where detective testified that defendant indicated he wanted to talk to a lawyer before continuing interview

2017The Doyle principle “rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial,” Barton v. State, 936 N.E.2d 842, 850 (Ind. Ct. App. 2010), trans. denied, or “as affirmative proof in the State’s case in chief.” Kubsch v. State, 784 N.E.2d 905, 914 (Ind. 2003). [12] However, as an initial matter, we observe that Lee admittedly failed to object at trial to Det.

2014See Peters, 959 N.E.2d at 353-355 (holding that the challenged testimony of the defendant’s silence was harmless in part because the evidence of the defendant’s guilt was strong, the references were brief, and the prosecution did not emphasize the defendant’s silence in closing arguments); Barton, 936 N.E.2d at 851-852 (holding there was no Doyle violation in part because the State’s comments were not necessarily directed solely at the prohibited post-Miranda time frame, that the State’s closing argument illustrated the defendant’s trial testimony was inconsistent with his comments to the poli

2016Following the jury trial, Johnson was found guilty as charged. [5] Johnson now appeals arguing the prosecutor committed misconduct in the form of a Doyle violation, and the trial court erroneously refused Johnson’s tendered instruction on the mistake of fact defense. 1. [6] Although not specifically framed as such, Johnson’s first claim, as set forth in his Appellant’s brief, is that the prosecutor violated the rule set out in Doyle v. Ohio, 426 U.S. 610 , 96 S. Ct. 2240 , 49 L.

2016Following the jury trial, Johnson was found guilty as charged. [5] Johnson now appeals arguing the prosecutor committed misconduct in the form of a Doyle violation, and the trial court erroneously refused Johnson’s tendered instruction on the mistake of fact defense. 1. [6] Although not specifically framed as such, Johnson’s first claim, as set forth in his Appellant’s brief, is that the prosecutor violated the rule set out in Doyle v. Ohio, 426 U.S. 610 , 96 S. Ct. 2240 , 49 L.

2016“The key to Doyle is that it protects the defendant from being found guilty simply on the basis of a legitimate choice to remain silent.” Trice v. State, 766 N.E.2d 1180, 1183-84 (Ind. 2002). [7] “Where a defendant asserts a Doyle violation, he ‘ordinarily bears the burden of showing that Miranda warnings were given prior to the post-arrest silence used by the state for impeachment purposes.’” Lainhart v. State, 916 N.E.2d 924, 936 (Ind. Ct. App. 2009) (quoting 3 Wayne R.

2016Where, as here, a 1 We note that “[w]here a defendant asserts a Doyle violation, he ‘ordinarily bears the burden of showing that Miranda warnings were given prior to the post-arrest silence used by the state for impeachment purposes.’” Lainhart v. State, 916 N.E.2d 924, 936 (Ind. Ct. App. 2009) (quoting 3 WAYNE R.

2014See Lynch v. State, 632 N.E.2d 341, 341 (Ind. 1994) (Doyle violation where trial court instructed jury that tape of defendant’s initial police interrogation was to be used for the limited purpose of 16 establishing defendant’s state of mind soon after the crime and where tape showed discussions regarding defendant’s Miranda rights and defendant’s invocation of his right not to be questioned without an attorney); Wilson v. State, 514 N.E.2d 282, 283 (Ind. 1987) (finding a Doyle violation where detective testified that defendant indicated he wanted to talk to a lawyer before continuing interview

2014See Lynch v. State, 632 N.E.2d 341, 341 (Ind. 1994) (Doyle violation where trial court instructed jury that tape of defendant’s initial police interrogation was to be used for the limited purpose of 16 establishing defendant’s state of mind soon after the crime and where tape showed discussions regarding defendant’s Miranda rights and defendant’s invocation of his right not to be questioned without an attorney); Wilson v. State, 514 N.E.2d 282, 283 (Ind. 1987) (finding a Doyle violation where detective testified that defendant indicated he wanted to talk to a lawyer before continuing interview

2018The Doyle rule is not limited solely to use for Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2237 | April 19, 2018 Page 6 of 14 impeachment purposes; “it also applies to the use of a defendant’s silence as affirmative proof in the State’s case in chief.” Id. [13] When Parker appeared at the police station to have his DNA collected pursuant to a search warrant, he engaged in the following video-recorded discussion, in pertinent part, with Detective Priem: Parker: What would it take to prove that I haven’t done nothing wrong?

2018The Doyle rule is not limited solely to use for Court of Appeals of Indiana | Memorandum Decision 20A03-1709-CR-2237 | April 19, 2018 Page 6 of 14 impeachment purposes; “it also applies to the use of a defendant’s silence as affirmative proof in the State’s case in chief.” Id. [13] When Parker appeared at the police station to have his DNA collected pursuant to a search warrant, he engaged in the following video-recorded discussion, in pertinent part, with Detective Priem: Parker: What would it take to prove that I haven’t done nothing wrong?

2017Robinette v. State, 741 N.E.2d 1162, 1165 (Ind. 2001); see, e.g., Barton v. State, 936 N.E.2d 842 (Ind. Ct. App. 2010) (applying Robinette factors in assessing whether fundamental error occurred), trans. denied. [44] In Kubsch, the Indiana Supreme Court addressed whether the trial court erred in admitting into evidence Wayne Kubsch’s entire videotaped interrogation.

2017Robinette v. State, 741 N.E.2d 1162, 1165 (Ind. 2001); see, e.g., Barton v. State, 936 N.E.2d 842 (Ind. Ct. App. 2010) (applying Robinette factors in assessing whether fundamental error occurred), trans. denied. [44] In Kubsch, the Indiana Supreme Court addressed whether the trial court erred in admitting into evidence Wayne Kubsch’s entire videotaped interrogation.

2000To determine whether a Doyle violation denied a defendant a fair trial, White v. State, 647 N.E.2d 684, 687 (Ind.Ct.App.1995), provides a five factor test.

2000To determine whether a Doyle violation denied a defendant a fair trial, White v. State, 647 N.E.2d 684, 687 (Ind.Ct.App.1995), provides a five factor test.

2008Taylor v. State, 717 N.E.2d 90, 93 (Ind.1999) (citation omitted).

2008Taylor v. State, 717 N.E.2d 90, 93 (Ind.1999) (citation omitted).

1999Greer, 483 U.S. at 764-65 , 107 S.Ct. 3102 ; see also Cook v. State, 544 N.E.2d 1359, 1363 (Ind.1989) (finding no Doyle error or grounds for mistrial based on “an isolated statement” by a law enforcement officer).

1992This Court has held, however, that no Doyle violation occurred where it was mentioned that the defendant had been advised of his rights, Collins v. State (1984), Ind., 464 N.E.2d 1286 ; where it was stated that the defendant understood his rights, McKenzie v. State (1980), 274 Ind. 276 , 410 N.E.2d 1308 ; or even where it was mentioned the defendant had requested counsel after being advised of his rights, Cook v. State (1989), Ind., 544 N.E.2d 1359 .

2020See Yurina v. State, 474 N.E.2d 93, 96-97 (Ind. 1985).

2020See Yurina v. State, 474 N.E.2d 93, 96-97 (Ind. 1985).

2018See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009).

2018See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App. 2009).

2017Rees’ testimony at trial, Lee has waived our review of that issue. [13] Waiver notwithstanding, we find no Doyle violation.2 The rule articulated in Doyle is not “‘a prima facie bar against any mention whatsoever of a defendant’s right to request counsel, but instead guards against the exploitation of that constitutional right by the prosecutor.’” Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998) (quoting Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991)).

1998Doyle does not impose a prima facie bar against any mention whatsoever of a defendant’s right to request counsel, but instead guards against the exploitation of that constitutional right by the prosecutor.” Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir.1991) (no Doyle error where the “inadvertent mention of petitioner’s request for counsel was not argued to the jury nor was it ever used to impeach petitioner”); see also United States v. Higgins, 75 F.3d 332, 333 (7th Cir.1996) (“A statement such as T told the suspect that he could remain silent, and he did’ does not ask the jury to infer guilt

2014“Because a Doyle violation is so egregious and so inherently prejudicial, reversal is the norm rather than the exception.” Teague v. State, 891 N.E.2d 1121,1126 (Ind.Ct.App.2008). .

2014“Because a Doyle violation is so egregious and so inherently prejudicial, reversal is the norm rather than the exception.” Teague v. State, 891 N.E.2d 1121,1126 (Ind.Ct.App.2008). .

2026“We note that a Doyle violation is actually a violation of the Due Process Clause’s prohibition against fundamental unfairness, not a violation of the Fifth Amendment privilege against self-incrimination.” Bevis v. State, 614 N.E.2d 599, 602 (Ind. Ct. App. 1993) (citing Wainwright v. Greenfield, 474 U.S. 284, 291 , 291 n.7, 106 S. Ct. 634, 638-639 , 639 n.7 (1986)). [35] With respect to the prosecutor’s question during the cross-examination of Hollingsworth, defense counsel objected and asserted during the sidebar, “I’m just going to ask that they not be permitted to go under this line of ques

2026“We note that a Doyle violation is actually a violation of the Due Process Clause’s prohibition against fundamental unfairness, not a violation of the Fifth Amendment privilege against self-incrimination.” Bevis v. State, 614 N.E.2d 599, 602 (Ind. Ct. App. 1993) (citing Wainwright v. Greenfield, 474 U.S. 284, 291 , 291 n.7, 106 S. Ct. 634, 638-639 , 639 n.7 (1986)). [35] With respect to the prosecutor’s question during the cross-examination of Hollingsworth, defense counsel objected and asserted during the sidebar, “I’m just going to ask that they not be permitted to go under this line of ques

2015Our Supreme Court acknowledged the Doyle rule the same year in Jones v. State, 265 Ind. 447 , 355 N.E.2d 402 (1976).

2015Our Supreme Court acknowledged the Doyle rule the same year in Jones v. State, 265 Ind. 447 , 355 N.E.2d 402 (1976).

2018Further, the State avers that, “[w]here a defendant does not exercise his Miranda rights but instead makes a statement to the police, the defendant cannot thereafter claim a Doyle violation.” Id. at 16. [9] In support of its contention on this issue, the State cites to our Supreme Court’s opinions in Trice v. State, 766 N.E.2d 1180 (Ind. 2002), and Sylvester v. State, 698 N.E.2d 1126 (Ind. 1998), but neither of those cases is on all fours with the instant case.

2018Further, the State avers that, “[w]here a defendant does not exercise his Miranda rights but instead makes a statement to the police, the defendant cannot thereafter claim a Doyle violation.” Id. at 16. [9] In support of its contention on this issue, the State cites to our Supreme Court’s opinions in Trice v. State, 766 N.E.2d 1180 (Ind. 2002), and Sylvester v. State, 698 N.E.2d 1126 (Ind. 1998), but neither of those cases is on all fours with the instant case.

2009La-Fave, Criminal Procedure § 9.6(a) n. 47 (3d ed.2007); see also Fletcher, 455 U.S. at 605 , 102 S.Ct. 1309 (finding no Doyle violation, where the record did not indicate that the defendant received any Miranda warnings during the period in which he remained silent immediately after his arrest).

2009La-Fave, Criminal Procedure § 9.6(a) n. 47 (3d ed.2007); see also Fletcher, 455 U.S. at 605 , 102 S.Ct. 1309 (finding no Doyle violation, where the record did not indicate that the defendant received any Miranda warnings during the period in which he remained silent immediately after his arrest).

1985In United States v. Massey, (10th Cir.1982) 687 F.2d 1348 , the Circuit Court discussed the circumstances where a line of questioning and comment upon a defendant's post arrest silence after Miranda warnings may be held harmless error even though it violates the Doyle rule.

1985In United States v. Massey, (10th Cir.1982) 687 F.2d 1348 , the Circuit Court discussed the circumstances where a line of questioning and comment upon a defendant's post arrest silence after Miranda warnings may be held harmless error even though it violates the Doyle rule.

2001It found a dispositive Doyle violation and ordered a new trial Id. at 738-34 .

2001It found a dispositive Doyle violation and ordered a new trial Id. at 738-34 .

2001This Court disagreed, declaring "the potential for abuse of [defendant's] exercise of his right to remain silent clearly was too attenuated to amount to a Doyle violation." Id.

2001This Court disagreed, declaring "the potential for abuse of [defendant's] exercise of his right to remain silent clearly was too attenuated to amount to a Doyle violation." Id.

2000See Jenkins v. Anderson, 447 U.S. 231 , 100 S.Ct. 2124 , 65 L.Ed.2d 86 (1980) (refusing to extend Doyle rule to pre-arrest silence).

2000See Jenkins v. Anderson, 447 U.S. 231 , 100 S.Ct. 2124 , 65 L.Ed.2d 86 (1980) (refusing to extend Doyle rule to pre-arrest silence).

2019Court of Appeals of Indiana | Memorandum Decision 18A-PC-1728 | March 12, 2019 Page 13 of 19 Doyle violation without Miranda warnings because they are “prerequisites for finding a constitutional violation.” Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015).