State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding:
¶16 Building on footnote 11 in Doyle, courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s post- Miranda silence for the purpose of impeaching the defendant’s testimony about his or her interactions with the police after the arrest. One situation is where the defendant’s testimony conveys that he or she cooperated with the police; it is not then fundamentally unfair for the prosecutor on cross-examination to elicit, or in closing argument to comment upon, the fact that the defendant was non-responsive or remained silent in answer to certain questions. …
¶17 Other situations in which courts have found no violation of due process under Doyle include those where the defendant volunteered on direct his reason for not telling the police his version of the crime, United States ex rel. Saulsbury v. Greer, 702 F.2d 651 (7th Cir. 1983), and where the defendant testified that he attempted to tell the officers what happened but they would not let him speak. United States v. Mavrick, 601 F.2d 921 (7th Cir. 1979).
¶18 However, even if the defendant “opens the door” to cross-examination or closing argument on his post- Miranda silence, to be permissible under the due process clause, the State’s response must be directed at impeaching the defendant’s credibility regarding his testimony. …
Issue/Holding:
¶24 Cockrell argues that the cross-examination was improper because he did not testify that he cooperated with police, but instead accurately stated that he had declined to answer questions about the incident. Therefore, he asserts, unlike Wulff and Nielsen, there was no reason to impeach his credibility on that point and the cross-examination had the impermissible purpose of suggesting he fabricated his trial testimony. ……
¶26 … However, Cockrell did more than volunteer that he declined to answer questions about the shooting: he explained why he declined—that he wanted an attorney present so his story would not be misinterpreted.
…
¶30 … However, we do not agree this is fundamentally unfair. Had Cockrell said nothing about declining to talk to the police about the shooting incident itself, the State under Doyle could not have used Cockrell’s post- Miranda silence to suggest that his trial testimony about the man in the back seat was fabricated. However, Cockrell chose to volunteer what he did and did not say to the police and why. In these circumstances it is not fundamentally unfair to permit the State to “explor[e] the soundness of that explanation [for not telling the police that he acted in self-defense] by measuring it against the defendant’s subsequent failure to assert it … [after he obtained counsel].” Saulsbury, 702 F.2d at 656.
