Conford, Matthews, and Fritz. The opinion of the court was delivered by Fritz, J.A.D.
Defendants, convicted by a jury of murder in the second degree, are brothers. The death involved resulted from a fight which had its genesis earlier in the day and culminated in a shooting spree in front of a tavern in the evening. Defendant Bobby Lee Griffin does not deny having shot the decedent. He asserts that his action was in his defense and in defense of defendant Nathaniel Griffin. Nor is the State's theory of Nathaniel's guilt predicated upon Nathaniel having fired the fatal shot. Rather he is charged with acting in concert with his brother, with having aided and abetted him. The trial judge instructed the jury as to the possibility of verdicts of murder in the first or second degree or not guilty as to both. Additionally he defined manslaughter and instructed the jury of the availability of this verdict for Bobby Lee but not for Nathaniel.
Bobby Lee took the stand in his own behalf and testified that he had acted in self-defense and in defense of his brother. Over his timely objection, the State was permitted to ask him, "Now, did you ever tell the police that your shooting of [the victim] was either in self-defense or in defense of your brother?" The response was in the negative. At least twice in summation the prosecutor commented upon the adverse inferences which, he suggested, should be drawn
with respect to the unlikelihood of the veracity of such a defense under these circumstances.*fn1
The only evidence in the case with respect to events contemporaneous with and immediately subsequent to Bobby Lee's arrest was adduced from his testimony -- uncontroverted in this respect -- and the police statement prepared at the time. From this evidence it appears clearly that meaningful communication between Bobby Lee and the police, beyond his being informed he was under arrest when he was apprehended, commenced when the police sought a statement from Bobby Lee. This effort began with the police telling him he had been arrested for murder, and without pause thereafter advising him of his right to remain silent, presumably in conformity with the mandate of Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
It is here urged by both defendants that reference at trial to an accused's silence subsequent to Miranda warnings while in police custody effectively demolishes the protection assured by the Fifth Amendment to the United States Constitution. We agree. To sanction such procedure would be to convert the Miranda warnings from an instrument of individual protection to a device enabling the State to compel the accused to stand mute for all time. It seems anomalous that we should offer the individual his constitutional right, knowing that if he heeds the warnings, he is forever burdened with his silence. Cf. Johnson v. United States , 318 U.S. 189, 63 S. Ct. 549, 87 L. Ed. 704 (1943), reh. den. 318 U.S. 801, 63 S. Ct. 826, 87 L. Ed. 1164 (1943).
We hold that the silence of an accused subsequent to advice that he has a constitutional right to remain silent
may not be the subject of inquiry if he later chooses to testify and offer an exculpatory defense.
This was the precise holding of United States v. Nolan , 416 F.2d 588 (10 Cir. 1969), cert. den. Nolan v. United States District Court , 396 U.S. 912, 90 S. Ct. 227, 24 L. Ed. 2d 187 (1969), and we have found no contrary holding on the facts here presented. While the federal circuits are not in agreement among themselves as to the permissibility of evidence of prior silence to attack the credibility of exculpatory trial testimony, it is to be observed that in none which permitted the trial inquiry did it appear that the defendant's silence was preceded by Miranda warnings. Agreement with the principles we here recognize and implement may be found in United States v. Brinson , 411 F.2d 1057 (6 Cir. 1969); Fowle v. United States , 410 F.2d 48 (9 Cir. 1969); United States v. Semensohn , 421 F.2d 1206 (2 Cir. 1970); Fagundes v. United States , 340 F.2d 673 (1 Cir. 1965). Contra: United States v. White , 377 F.2d 908 (4 Cir. 1967), cert. den. 389 U.S. 884, 88 S. Ct. 143, 19 L. Ed. 2d 180 (1967) (based in part on "invited error"); United States v. Ramirez , 441 F.2d 950 (5 Cir. 1971), cert. den. 404 U.S. 869, 92 S. Ct. 91, 30 L. Ed. 2d 113 (1971), reh. den. 404 U.S. 987, 92 S. Ct. 445, 30 L. Ed. 2d 371 (1971) (relying on Harris v. New York , 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); see infra); Sharp v. United States , 410 F.2d 969 (5 Cir. 1969) (relying on Raffel v. United States , 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926); see infra. A vigorous dissent accords with our reasoning here.).
We believe that substantial and important factual differences serve to distinguish Raffel, supra , and Grunewald v. United States , 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957) from the instant matter. In neither of those cases were the defendants invited to remain silent by Miranda -type warnings, although it may not be without significance that Raffel (whose conviction was affirmed) asserted that his ...