Post-Arrest, Pre-Admonishment Silence as Evidence of Guilt

Robert C. Phillips
DDA (Ret.)
September, 2014

Richard Tom and his long-time friend, retired San Francisco police officer Peter Gamino, were enjoying a steak dinner at Tom’s Richmond home, washed down by a number of Vodka tonics, when Tom asked Gamino if he would help him pick up a car at his son’s nearby home.  Per Gamino, Tom did not appear to be intoxicated although he admitted that they had some difficulty finding his son’s house.  On the return trip home, with Tom driving his Mercedes E320 and Gamino following him in his son’s Toyota Camry, Gamino had some difficulty keeping up. 

At the same time, shortly before 8:20 p.m., Loraine Wong was stopped at a stop sign at the intersection of Santa Clara Avenue and Woodside in Redwood City with her two daughters, Sydney, age 8, and Kendall, age10, in her Nissan Maxima.  Inching forward with her lights and blinkers on, and not seeing any cross traffic, Wong proceeded into the intersection intending to make a left turn onto Woodside.  Tom’s Mercedes, however, was speedily approaching at the same time. With no indication that he attempted to brake at all, Tom broadsided the left-rear corner panel and rear passenger door of Wong’s Nissan, hitting it hard enough to put her into a 360 degree spin.  Woodside is posted as a 35 mile-per-hour speed zone at that location.  It was later estimated that Tom was traveling between 49 to 67 miles per hour, depending upon whose expert you believe. 

Young Sydney died shortly thereafter at a nearby hospital.  Kendall sustained serious injuries.  Tom complained of a sore ankle but refused medical treatment, asking only that he be allowed to walk to his nearby home.  With that request being denied, he grudgingly agreed to accompany officers to the police station, and then to a hospital, for the purpose of voluntarily providing a blood sample, collection of such a sample being the policy of the Redwood City Police Department in any serious injury accident. 

While at the hospital, however, officers noticed for the first time that Tom had an odor of alcohol on his breath and that his eyes were bloodshot and glassy.  A short field sobriety test (i.e.; the horizontal gaze nystagmus test, the Romberg test, and the finger-to-nose test) was administered after which it was determined that he was under the influence of alcohol.  At no point did Tom ever ask about the welfare of the occupants of the car he’d hit.  His only comment had been that he never saw the victims’ car. 

Tom provided a blood sample at 11:13 p.m., nearly three hours after the crash, revealing a blood-alcohol level of 0.04%.  Using a burn-off rate of 0.02% of alcohol per hour (the rate widely accepted as accurate in the scientific community), a criminalist opined that Tom had consumed six drinks and that his blood-alcohol level at the time of the crash would have been 0.098%.  (The defense expert testified that it could have been as low as 0.01 to 0.02%.)  In the criminalist’s opinion, Tom would have been too impaired to drive safely.  He was charged in state court with vehicular manslaughter with gross negligence[1] and various other alcohol, DUI-related charges. 

At trial, the prosecutor elicited testimony from two of the officers that Tom never inquired as to the welfare of the occupants of the vehicle he’d hit, arguing to the jury that this indicated a consciousness of guilt.  A jury acquitted Tom of the alcohol-related charges but convicted him of vehicular manslaughter with gross negligence, and found true an allegation that he personally inflicted great bodily injury on Kendall.[2] The court sentenced Tom to seven years in prison.  However, the Court of Appeal reversed his conviction, ruling that he was in effect under arrest when he was transported from the scene of the accident (i.e., a “de facto” arrest), and that using his post-arrest silence concerning the welfare of the victims was a Fifth Amendment, self-incrimination violation.  The People petitioned to the California Supreme Court.

The California Supreme Court, in a split (4-to-3) decision, reversed the Court of Appeal in a decision reported at People v. Tom (Aug. 14, 2014) 59 Cal.4th 1210, and remanded for further proceedings.  The issue on appeal was the propriety of the prosecutor’s use as substantive evidence of guilt Tom’s failure to ask—in effect, his “silence”—about the welfare of the occupants of the vehicle he hit.  The question is:  Does a criminal suspect effectively invoke his right to silence under the Fifth Amendment, thus precluding the use of such silence in evidence against him, merely by failing to ask about or otherwise discuss a potentially incriminating topic?  

After the trial in this case was complete, the U.S. Supreme Court decided the case of Salinas v. Texas.[3]  In Salinas, the issue was whether an out-of-custody suspect who had been freely answering a police officer’s questions during a non-custodial interrogation (thus, no Miranda[4] admonishment or waiver) effectively invokes his right to remain silent merely because he suddenly becomes quite when asked about some potentially incriminating circumstances.  The Supreme Court in Salinas ruled that such silence was not a legally effective invocation. 

The High Court noted in Salinas that “(t)he privilege against self-incrimination is an exception to the general principle that the Government has the right to everyone’s testimony.”[5]  Salinas stands for the general proposition that the prosecution may use a defendant’s pre-arrest silence in response to an officer’s questions as substantive evidence of his guilt (and not just as impeachment evidence), at least where the defendant had not yet expressly invoked the self-incrimination privilege. “(T)he privilege ‘is not self-executing’ and ‘may not be relied upon unless it is invoked in a timely fashion.’ . . . (A) witness must assert the privilege to subsequently benefit from it.”[6]

The California Supreme Court, in this case, extended the Salinas rule to the post-arrest, pre-admonishment stage where there has not yet been an express, unequivocal invocation of the suspect’s right to silence.  Tom, after his arrest but before he had received his Miranda warnings, needed to make a timely and unambiguous assertion of the privilege in order to benefit from it.  Here, he merely failed to express any concern for, or make any inquires about, the victims; a fact the prosecutor introduced into evidence through the testimony of several witnesses and brought up in closing arguments as something relevant to the defendant’s “consciousness of guilt.”  In effect, his silence on this issue was used against him as substantive proof that he knew he did wrong.[7] 

While the Court of Appeal found that this was a Fifth Amendment, self-incrimination violation, by using his silence against him, the California Supreme Court ruled that under the theory of Salinas, it was not.  But because the Appellate Court had not yet determined whether defendant had in fact expressly invoked his rights at some other point in his contact with the police, the case was remanded for a determination of this issue. 

Interestingly enough, the High Court likened Tom’s lack of concern as to the condition of his victims to an “equivocal attempt to invoke”[8] which, as we know, is legally insufficient to halt an interrogation.  Recent cases, however, have found that equivocal attempts to invoke are legally insufficient only after a prior waiver and when an in-custody defendant is then attempting to halt the questioning mid-interrogation. [9]  In contrast, an equivocal invocation has generally been held to be legally effective when made at the initiation of an interrogation where there has been no prior waiver.[10] 

But in this case, we’re not even talking about an actual, overt attempt to invoke, whether equivocal or not.  So it is questionable why the Court even brought up the rule on equivocal invocations. 

Also note that the Ninth Circuit Court of Appeal disagrees with this Court’s analysis, having held several times that one’s silence might very well be the equivalent of an invocation.[11]  The Court here recognized the split of opinion on this issue, but opines that the Ninth Circuit and other contrary authority is simply wrong.[12]  So we may see more on this subject in the very near future.

Lastly, the Court hinted that on remand the Appellate Court might consider whether the probative value of Tom’s failure to ask about the welfare of his victims, when compared with its potential prejudicial effect, might make such evidence inadmissible pursuant to E.C. § 352 (prejudicial effect being outweighed by its probative value).[13]  This is a very valid point.  Throughout the reading of this case, one has to ask himself; “How does Richard Tom’s (admittedly deplorable) lack of concern for anyone other than himself relate to a ‘consciousness of guilt?”  The Supreme Court never directly addresses this question.

[1]             P.C. § 192(c)(1)

[2]             Former P.C. § 12022.7(a)

[3]             (June 17, 2013) 570 U.S. ___ [133 S. Ct. 2174]

[4]             Miranda v. Arizona (1966) 384 U.S. 436

[5]             Salinas v. Texas, supra, 133 S.Ct. at p. 2183

[6]             People v. Tom, supra, at p. 1225; citing Roberts v. United States (1980) 445 U.S. 552, 559

[7]             Id., at pp. 1222-1237

[8]             Id., at pp. 1225, 1228

[9]             E.g., see People v. Suff (2014) 58 Cal.4th 1013

[10]            Sessoms v. Runnels (9th Cir. 2012) 691 F.3rd1054

[11]            See United States v. Velarde-Gomez (9th Cir. 2001) 269 F.3rd 1023; & United States v. Whitehead (9th Cir. 2000) 200 F.3rd 634

[12]            People v. Tom, supra, at pp. 1232-1233

[13]            Id., at pp. 1235-1237