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Gillum v. Commonwealth8/26/2004
ndicating that it had collided with the Moeller vehicle. The license plate number of the offending motor vehicle was recorded by Moeller's son, and it was confirmed to be Appellant's license plate number. There was also other evidence that virtually compelled the conclusion that Appellant was the offending motorist. Thus, we conclude that any error in the admission of the disputed evidence relating to Appellant's statements and condition of intoxication was harmless. A defendant is guaranteed a fair trial but that does not mean a perfect trial free of any and all error. A review of the entire proceedings indicates that Appellant received a fundamentally fair trial.
Appellant next makes a constitutional argument that the trial court improperly admitted several pre-arrest, pre-Miranda statements by Appellant to Captain Smith. Appellant posits that his statement that Captain Smith "needed a search warrant" to enter the trailer, and his conduct in refusing to produce his driver's license and exit his trailer all amounted to improper substantive use of the pre-arrest exercise of his Fifth Amendment right against self-incrimination.
Appellant filed a Motion in Limine to "prohibit any introduction of any statement by the Defendant that he wished to remain silent or to invoke his right to counsel." Before the opening statements were given at trial, Appellant renewed his objection to the use of any of his pre-arrest statements, including comments about his refusal to cooperate with the police and that the police needed to obtain a warrant to enter his trailer. The trial court overruled that objection. Appellant again objected and was overruled when the testimony was elicited during trial.
At trial, Appellant tendered an objection before the Commonwealth's opening statement on the grounds that his statement that the police "needed a warrant" amounted to improper use of his assertion of his Fourth Amendment Constitutional right against him. Appellant also objected to testimony that he had refused to take a Breathalyzer or field sobriety test on Fifth Amendment grounds. The trial judge responded that this evidence was admissible as "fair evidence" upon the Commonwealth's argument that such evidence was relevant to Appellant's motive to leave the scene of the accident.
Appellant argues that his statements that Captain Smith needed to obtain a warrant and his refusal to produce a driver's license, while not direct comments on silence, "are clearly understood as communicating a desire to stand on his constitutional right against self-incrimination." Appellant asks that this Court draw an inference that by not cooperating with police, he was exercising his Fifth Amendment rights. Appellant notes that Captain Smith said that he could be detained until he found out "what was going on."
The substantive use of a defendant's post-arrest silence during the prosecution's case-in-chief is prohibited in Kentucky courts. The United States Supreme Court has stated:
t is impermissible to penalize an individual exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.
The United States Supreme Court, however, has not yet addressed whether pre-arrest silence may be used as substantive evidence of guilt. " ilence does not mean only muteness; it includes the statement of a desire to remain silent as well as of a desire to remain silent until an attorney has been consulted." In Coyle v. Combs, the Sixth Circuit found the statement "talk to my lawyer" to be "properly analyzed as a comment on prearrest
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