                                                                                        [PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT

                                  ________________________

                                          No. 97-8042
                                  ________________________
                               D. C. Docket No. 1:96-CV-988-GET

FLOYD ERNEST HILL,
                                                                                Petitioner-Appellee,
                                                                                   Cross-Appellant,

                                               versus

TONY TURPIN, Warden, Georgia
Diagnostic & Classification Center,
                                                                             Respondent-Appellant,
                                                                                   Cross-Appellee.

                                  ________________________

                          Appeals from the United States District Court
                              for the Northern District of Georgia
                                _________________________
                                      (February 25, 1998)

Before ANDERSON, CARNES and BARKETT Circuit Judges.

BARKETT, Circuit Judge:

       Georgia Warden Tony Turpin (“the state”) appeals from the district court’s order granting

in part Floyd Ernest Hill’s petition for federal habeas corpus relief as to his death sentence. Hill

cross-appeals from the district court’s denial of all of his claims challenging the validity of his

conviction, as well as from the denial of the balance of his claims pertaining to his death sentence.

Because we find that the prosecution’s repeated and deliberate references throughout Hill’s trial to

his post-Miranda silence and request for counsel violated the Due Process Clause of the Fourteenth
Amendment, we REVERSE the district court’s denial of relief as to this claim, VACATE his

conviction, and REMAND with instructions to grant the writ of habeas corpus. All remaining issues

having thereby become moot, we do not address them.

BACKGROUND

        On the evening of February 8, 1982, Hill was at home, drinking and listening to music in his

car with a friend, Wayne Lockette, when a violent domestic dispute erupted between Hill’s

neighbors, Virginia Barber and Edward Saffo, who lived together in a trailer behind Hill’s residence.

In connection with the dispute, Saffo twice fired a .32 caliber pistol outside the trailer and then left

the area “to cool off.” Barber went back inside the trailer, called the police, and then “set out after

Saffo,” armed with a pair of scissors. Janice Miller, another neighbor and a friend of Barber’s who

had been present at the Saffo/Barber residence when the altercation began, approached Hill and

asked for his help in breaking up the fight. Hill declined, stating that he was too drunk to intercede.1

After Miller left, Hill asked his daughter, Anita, to retrieve his gun from the house for protection.

When Anita returned she handed Hill a flap-type holster, which, according to Hill, was empty.

Lockette, who had exited the car by that time, watched Anita give Hill the holster but could not see

whether the holster contained a gun. Lockette then went into the Hill residence with Hill’s children.

        Meanwhile, Barber caught up to Saffo along the road in front of their residence just as two

police officers, Greg Thames and Greg Mullinax, arrived on the scene, responding to Barber’s

emergency call. Miller, as well as several of Barber’s children, were also present when the officers

arrived. Officer Thames attempted to subdue Barber; however, as he was placing her in the rear of



        1
         A blood sample taken after his arrest showed that Hill’s blood alcohol level was .21,
indicating that Hill was under the influence of alcohol at that time.

                                                  -2-
the patrol car, Barber’s 15-year old son Stanley, armed with a butcher knife, began to fight with

Thames. When the officers responded to this new threat, Barber left the patrol car and rejoined the

fight. By this time, the confrontation had drawn a number of bystanders, including Daryl Toles,

Miller’s brother, and Hill, who had driven his car down his driveway to the scene, parked

immediately behind the police vehicle, and exited his car. Upon seeing Hill, the only person present

whom he recognized, Officer Thames twice requested Hill’s help, asking him to get the children out

of the way of the fighting.

        As Officer Thames was attempting to apprehend Miller, who had joined the confrontation,

he heard Mullinax yell “watch out,” then one loud shot, then a series of shots that “sounded like a

string of firecrackers.” Thames did not see who fired any of the shots. Barber, Miller, and two of

Barber’s children claimed to have seen Hill fire once into the air, but did not see who fired the

subsequent shots. Apart from Mullinax and Toles, both of whom had been wounded in the shooting,

and Thames, who radioed for help upon seeing Mullinax fall, everyone else at the scene scattered.

Mullinax and Toles both died from their gunshot wounds – Mullinax at the scene, and Toles in the

hospital. It was later determined that Mullinax had fired the two bullets that struck and killed Toles,

and that the bullets that killed Mullinax had been fired from a .38 caliber pistol.

        When investigators arrived, they followed a trail of blood leading from the street, to Hill’s

home, into and out of the Hill residence, back to the Saffo/Barber trailer, and into the woods behind

the trailer where they found Hill lying on the ground suffering from several gunshot wounds. The

police seized a .32 caliber pistol from Hill, advised him of his rights, and arrested him. Investigators

also seized a holster that fit a .38 caliber gun from Hill’s car, which had been left at the scene. Later

that evening, investigators spoke to many of those who had been present at the shooting, none of


                                                  -3-
whom identified Hill as Officer Mullinax’s assailant. These witnesses also gave conflicting

accounts of the events leading up to the shooting. Several days later the .38 caliber pistol from

which the shots that killed Mullinax had been fired was found next to a tree between the Hill and

Saffo residences.

       Hill was subsequently indicted for the malice murder of Officer Mullinax and the felony

murder of Toles. Hill was convicted on both counts and was sentenced to death for the murder of

Officer Mullinax and to life imprisonment for Toles’s murder. On direct appeal, the Georgia

Supreme Court affirmed Hill’s conviction and death sentence for the murder of Officer Mullinax,

but reversed Hill’s conviction and life sentence for Toles’s murder, finding that Hill had not

“caused” Toles’s death within the meaning of the Georgia felony murder statute. The U.S. Supreme

Court denied Hill’s petition for certiorari. Approximately two years later, in 1985, Hill filed an

application for a writ of habeas corpus in state court, and in 1992, the state habeas court granted Hill

relief from his conviction and death sentence, finding that he had been denied the effective

assistance of counsel because of his trial counsel’s simultaneous representation of a witness for the

prosecution. The Georgia Supreme Court subsequently reversed the grant of habeas relief as to

Hill’s conflict of interest claim and affirmed the denial of relief on all other grounds.

       Hill then filed this petition for federal habeas corpus relief, again challenging the validity of

both his conviction and his death sentence on various grounds. After considering Hill’s claims, the

district court vacated Hill’s death sentence, finding that the jury’s consideration of Hill’s

subsequently reversed felony murder conviction impermissibly tainted the sentencing deliberations.

However, the district court denied relief as to Hill’s remaining claims pertaining to his death

sentence and as to all claims pertaining to his conviction. We reverse. We conclude that, under the


                                                  -4-
facts of this case, the district court erred in denying Hill habeas relief on his claim that the

prosecutor’s comment on his post-Miranda exercise of his rights to remain silent and to seek the

assistance of counsel violated his due process rights under the Fourteenth Amendment.

DISCUSSION

       In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the Supreme Court held that “the use for

impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda

warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” As the Court has

recognized in numerous post-Doyle opinions, the Doyle rule “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.’” Wainwright v. Greenfield, 474

U.S. 284, 291 (1986) (quoting South Dakota v. Neville, 459 U.S. 553, 565 (1983)). See also Brecht

v. Abrahamson, 507 U.S. 619, 628 (1993); Greer v. Miller, 483 U.S. 756, 763 (1987). The source

of this “implicit assurance” is the giving of Miranda warnings, through which a person taken into

custody is expressly advised “that he has the right to remain silent, . . . and that he has a right to

retained or appointed counsel before submitting to interrogation.” Doyle, 426 U.S. at 617. Thus,

although the improper references at issue in Doyle concerned only the defendants’ post-Miranda

silence, the prohibition extends equally to impeachment use of a defendant’s post-Miranda

invocation of the right to counsel. See Wainwright, 474 U.S. at 295 & n.13; United States v.




                                                 -5-
McDonald, 620 F.2d 559, 562-63 (5th Cir. 1980);2 United States v. Daoud, 741 F.2d 478, 480 (1st Cir.

1984) (citing McDonald, 620 F.2d at 562-63).

       Prior to Hill’s trial, in an effort to ensure the prosecution’s adherence to the Doyle rule,

defense counsel filed a motion in limine, seeking to prohibit the prosecution from introducing “any

testimony or evidence as to . . . [a]ny alleged statement by Defendant requesting assistance of

Counsel prior to giving any statements to investigating officers.” After a hearing, the trial court

granted Hill’s motion and entered an order specifying that “the prosecution is precluded from

attempting to introduce evidence or testimony as to . . . any alleged statement by the accused to the

effect that ‘I won’t say anything until I talk to my lawyer.’” Notwithstanding the trial judge’s direct

order, on four separate occasions during Hill’s trial, the prosecution brought to the jury’s attention

Hill’s post-Miranda silence and request for counsel.

       The first two such references occurred during the direct examination of the state’s chief

investigator, John Seay. When the subject of Seay’s testimony turned from the investigation of the

crime scene to the circumstances surrounding Hill’s arrest, including the content of the

Miranda warnings Hill received, defense counsel asked to approach the bench, recognizing that the

prosecution’s questioning was approaching the subject matter of the court’s pre-trial order. Seeking

to ensure the prosecution’s compliance with the pre-trial order, Hill’s counsel reminded both the

prosecutor and the court of the order, to which the court responded, “[h]e is not going to say

anything about that [Hill] declined to say anything or anything like that, because I’ve got an order.



       2
        In Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981), this court adopted as
binding precedent the decisions of the United States Court of Appeals for the Fifth Circuit, as
that court existed on September 30, 1981, handed down by that court prior to the close of
business on that date.

                                                 -6-
I issued an order.” Despite counsel’s reminder and the court’s admonition, however, the prosecution

continued to question Seay about his post-Miranda exchange with Hill:

       Q:      Now, basically, what type of conversation did you have with him [after advising Hill
               of his rights]?

       A:      Well, naturally I asked him what had happened.

       Q:      What was his response?

       A:      His response was nil. He did not give a response.

(emphasis added). Defense counsel again asked to approach the bench, but, without recognizing

counsel’s request, the court instead gave the jury a cautionary instruction, advising them that

       [u]nder no circumstances, as I have told you, is a defendant required to say anything
       at any time. Under no circumstances does the defendant have any burden of proof
       whatsoever in a criminal case. [You] understand that, don’t you? . . . It is perfectly
       within any defendant’s legal rights and privileges to decline to say anything, and
       certainly in this instance where he was injured, so I don’t want any unfavorable
       inference to be drawn in any way, form or fashion by virtue of the statement of this
       witness, that he declined to say anything further. Do [you] understand that fully?

Notwithstanding the court’s instruction, the prosecution again elicited testimony within the scope

of the court’s pre-trial order with its very next question, asking whether Seay and Hill had shared

any further conversation while waiting for the ambulance to arrive. Seay responded:

       Yes, sir. I asked him if he was in great pain, and he said yes, his arm hurt, and I told
       him that the ambulance would be there in a little bit and would take him and get him
       treated, and he asked me for a cigarette, which I found him a cigarette and gave it to
       him, and at that time he stated that he wanted his lawyer.

(emphasis added). Hill’s counsel again objected, and the court agreed that counsel would be given

an opportunity to perfect the record.

       Later that day, outside the presence of the jury, defense counsel moved for a mistrial and

contempt hearing. The court agreed that the prosecution’s violations of the pre-trial order might


                                                 -7-
warrant a contempt hearing, but declined Hill’s request for a mistrial, indicating that it would instead

attempt to remedy the second violation by giving another curative instruction.3 Although Hill’s

counsel requested that the court delay giving this instruction until the end of the case so as to avoid

drawing the jury’s attention to Hill’s request for counsel, the court elected to address the improper

remark upon resuming trial proceedings following the recess. The court made reference to the

earlier curative instruction, then advised the jury:

       Now, it has been called to my attention that there was a further statement made, that
       when he asked the defendant about what happened, he said he didn’t want to make
       any statement at that time until he talked to his lawyer. He had a right to make that
       statement. You don’t have to make any statement at all until you talk to your lawyer.
       It is a pretty good idea, to tell you the truth. That’s what I would do, so there is no
       unfavorable inference to be drawn from that, and I don’t think anybody was trying
       to create an unfavorable inference. . . . I charge you specifically and as clearly as I
       know how that you shall not in your mind create any unfavorable inference against
       this defendant at all by virtue of the fact that he said something to the effect that he
       didn’t want to talk about it to the officer until he talked with his lawyer.

       Undeterred by the court’s pointed evidentiary rulings, the prosecution continued to use Hill’s

silence to impeach him. A third reference to Hill’s post-arrest silence occurred during Hill’s own

testimony when, on cross-examination, the prosecutor asked him, “[d]id you ever try to explain all

of this to anybody before today?” The trial court sustained defense counsel’s timely objection

before Hill had an opportunity to respond and instructed the jury to disregard the prosecutor’s

question. Finally, during closing argument, the prosecution again highlighted Hill’s failure to tell

his exculpatory story to the police at the time of his arrest by contrasting Hill’s silence with the



       3
         After the conclusion of Hill’s trial, the court held a hearing to determine whether one of
the prosecutors should be held in contempt for eliciting testimony from Seay in violation of the
court’s pre-trial order. The court subsequently issued an order holding the prosecutor in
contempt on grounds that he had not adequately instructed Seay not to testify about Hill’s failure
to make a statement and request to talk to his lawyer.

                                                  -8-
statements made by other scene witnesses. In an effort to discredit Hill’s account of events on the

night of the shooting, as well as to bolster the credibility of the state’s scene witnesses by

minimizing the significance of any discrepancies between the trial testimony of those witnesses and

their prior statements to the police, the prosecutor argued:

       but when it came down to the defense giving a story, what happened? Who testified
       as an eyewitness? Floyd Hill. Do we ever see any other witness who can tell us
       anything different, anything totally against what the eyewitnesses said, and that is
       what is important when you are talking to eyewitnesses, not that they have a
       conviction for burglary. That may have some effect. Not that they may have told
       prior inconsistent statements, but these people separately and on their own gave a
       statement that was unreputed [sic], except for the defendant.

(emphasis added).4




       4
         We recognize that, standing alone, the prosecutor’s remarks during closing argument are
somewhat ambiguous, and that the jury might not, therefore, “naturally and necessarily”
understand those remarks to be a comment on Hill’s post-Miranda silence and request for
counsel. See United States v. Dodd, 111 F.3d 867, 869 (11th Cir. 1997). Viewed in the context
of the repeated and clear Doyle violations that occurred earlier in the trial, however, we construe
the excerpted portion of the prosecutor’s closing argument as a reminder to the jury of Hill’s
failure to give a statement to the police at any time prior to trial.

                                                -9-
       The district court found – and, with one exception,5 the state does not dispute – that the

prosecution’s “repeated references to Hill’s post-Miranda request for counsel and assertion of right

to silence . . . violated the Doyle standard.” However, the district court denied Hill habeas relief on

his Doyle claim, concluding that the prosecution’s improper references were harmless as they did

not “substantially influence” the jury’s verdict. While we agree with the district court that the

prosecutor repeatedly violated the Doyle rule, we cannot agree with the court’s conclusion that these

violations amounted to harmless error under the standard articulated by the Supreme Court in Brecht

v. Abrahamson, 507 U.S. 619 (1993).

       In Brecht, the Supreme Court adopted the harmless error standard previously articulated by

the Court in Kotteakos v. United States, 328 U.S. 750 (1946), as the standard for determining

whether a conviction must be set aside on collateral review because of Doyle violations or other

“constitutional error of the trial type.” That standard requires that we assess whether the error “‘had

substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht, 507 U.S. at




       5
         The state contends that the prosecutor’s question to Hill on cross-examination as to
whether Hill had previously attempted to explain his account of events on the night of the
shooting does not constitute a Doyle violation under Greer v. Miller. In Greer, the Supreme
Court held that where the prosecution’s sole reference to the defendant’s post-Miranda silence
was his question on cross-examination, “[w]hy didn’t you tell this story to anybody when you
got arrested?,” and where the trial court sustained defense counsel’s objection before the
defendant could offer a response and then specifically instructed the jury to disregard the
question, no Doyle violation had occurred. Greer, 483 U.S. at 759, 764-65. Had the
prosecutor’s question been the only reference to Hill’s exercise of his Miranda rights during the
course of Hill’s trial, we would agree with the state that, although improper, the question alone
would not have violated Doyle under the Supreme Court’s holding in Greer. Unlike in Greer,
however, the improper question was not the lone but the third of four such references by a
prosecutor who had been warned repeatedly by the court, both prior to trial and following each
of the two earlier Doyle violations, that this type of comment would be prohibited. Accordingly,
we find that Greer is plainly inapplicable in the circumstances of Hill’s case.

                                                 -10-
623 (quoting Kotteakos, 328 U.S. at 776). As Justice Stevens amplified in his concurring opinion,6

the reviewing court must evaluate the error in the context of the entire trial record, mindful of “all

the ways that error can infect the course of a trial,” to apply the Kotteakos harmless error standard

properly:

       [t]he habeas court cannot ask only whether it thinks the petitioner would have been
       convicted even if the constitutional error had not taken place. Kotteakos is full of
       warnings to avoid that result. It requires a reviewing court to decide that “the error
       did not influence the jury,” . . . and that “the judgment was not substantially swayed
       by the error.”

Id. at 642 (Stevens, J., concurring) (quoting Kotteakos, 328 U.S. at 764-65) (footnote omitted). See

also O’Neal v. McAninch, 513 U.S. 432, 438 (1995) (“‘The inquiry cannot be merely whether there

was enough to support the result, apart from the phase affected by the error.’”) (quoting Kotteakos,

328 U.S. at 765). Moreover, the Supreme Court’s post-Brecht opinions make clear that when the

reviewing court “is in grave doubt about whether a trial error of federal law had ‘substantial and

injurious effect or influence in determining the jury’s verdict,’ that error is not harmless. And, the

petitioner must win.” Id. at 436.

       Having conducted a de novo examination of the trial record, we are persuaded that, in view

of the importance of Hill’s credibility to his defense, the repeated and deliberate nature of the

prosecution’s Doyle violations, and the significant weaknesses in the state’s case against Hill, the

prosecution’s references to Hill’s post-Miranda silence and request for counsel had a substantial

influence in determining the jury’s verdict.

       Although this court has not previously applied the Brecht harmless error standard in the

context of a Doyle violation, other circuits have had occasion to evaluate Doyle error under that


       6
        Justice Stevens provided the necessary fifth vote in Brecht.

                                                -11-
standard. The Sixth Circuit’s recent opinion in Gravley v. Mills, 87 F.3d 779 (6th Cir. 1996), is

particularly instructive in this regard. As in this case, the Doyle violations at issue in Gravley were

repeated. Prior to any testimony from the defendant, the prosecution introduced evidence that the

defendant had elected to remain silent during his second round of police interrogation. Id. at 787.

On cross-examination, the prosecution again referred to the defendant’s post-Miranda silence,

questioning him about his failure to offer his version of events in response to police questioning, at

the preliminary hearing, or at a subsequent probation revocation hearing. Id. at 787-88. The

prosecution then returned to the subject of the defendant’s silence in closing argument, reminding

the jury that although the defendant had heard the substance of the state’s case on several occasions

prior to trial, “today . . . is the very first time [the defendant] has ever told you – or told anyone –

the truth about what happened.” Id. at 788. After concluding that the prosecution’s improper

references “amounted to blatant and egregious Doyle error,” the court proceeded to evaluate the

effect of the improper references upon the jury under the Brecht standard. Id. at 789. The court held

that the Doyle violations had a substantial influence on the jury “due to the facts of the case and the

egregiousness of the prosecutor’s misconduct.” Id. In reaching this conclusion, the court

emphasized the frequency of the prosecutor’s improper references, the weight of the state’s

permissible evidence against the defendant, and the significance of the defendant’s credibility to his

defense. Id. at 789-90. See also Lieberman v. Washington, 128 F.3d 1085, 1096 (7th Cir. 1997)

(finding Doyle error harmless under Brecht upon consideration of similar factors, where the

evidence of defendant’s guilt was overwhelming, defendant’s credibility had already been

substantially undermined by physical evidence showing his alibi to be false, and the improper

references were limited in intensity and frequency).


                                                 -12-
       Although the harmless error standard has changed, our cases applying the standard

articulated in Chapman v. California, 386 U.S. 18 (1967) – whether the error was harmless beyond

a reasonable doubt – nevertheless inform and assist us in our analysis under Brecht. Turning to

those cases, we first observe that we have repeatedly held Doyle error harmless where the violation

consisted of only a single reference to the defendant’s post-Miranda silence during the course of a

trial at which the government’s evidence was otherwise overwhelming. See United States v. Gabay,

923 F.2d 1536, 1541 (11th Cir. 1991); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.

1985); Sullivan v. Alabama, 666 F.2d 478, 485 (11th Cir. 1982). In so holding, we have often

emphasized both that the improper reference was “isolated” or “unintentional” or promptly

addressed by a curative instruction from the trial court, and that the prosecutor made no effort to

further “highlight” the defendant’s exercise of Miranda rights either in questioning other witnesses

or during closing argument. See United States v. Gonzalez, 921 F.2d 1530, 1549-50 (11th Cir. 1991)

(finding the prosecutor’s single reference to defendant’s post-Miranda silence harmless where “[t]he

prosecutor did not return to this testimony either while questioning other witnesses or upon closing

argument,” the state’s evidence was “otherwise strong to clearly indicate [the defendant’s]

involvement,” and the improper comment “was quickly objected to and a curative instruction was

promptly given to the jury”); United States v. Smith, 635 F.2d 411, 413–14 (5th Cir. Unit B 1981)

(finding a single comment on defendant’s silence harmless where the prosecutor “did not ‘focus on’

or ‘highlight’ the defendant’s silence in his examination of the witnesses or in his closing remarks,”

the court immediately gave a curative instruction, and the evidence of guilt was otherwise

overwhelming); United States v. Espinosa-Cerpa, 630 F.2d 328, 335 (5th Cir. 1980) (finding

improper references to defendant’s silence by a government witness harmless in light of the low


                                                -13-
probability of prejudice given that the “statements were isolated and unsolicited, never ‘highlighted’

by repeated questioning or subsequent reference by the prosecutor,” the court’s curative instruction,

and the otherwise overwhelming evidence of the defendant’s guilt).

       In contrast, we have declined to find Doyle error harmless in those cases where the

prosecutor returned repeatedly to the defendant’s post-Miranda silence throughout trial to impeach

a plausible exculpatory story offered by the defendant. See United States v. Tenorio, 69 F.3d 1103,

1106-07 (11th Cir. 1995) (Doyle error not harmless beyond a reasonable doubt where the

prosecution’s references to the defendant’s post-Miranda silence occurred during direct examination

of a government witness, during cross-examination of the defendant, and in closing argument);

Matire v. Wainwright, 811 F.2d 1430, 1436-37 (11th Cir. 1987) (Doyle error not harmless where the

prosecutor repeatedly elicited testimony highlighting the defendant’s silence and utilized that

testimony to defeat his insanity defense, and where “the evidence of [defendant’s] sanity was far

from overwhelming”); United States v. Meneses-Davila, 580 F.2d 888, 891, 895-96 (5th Cir. 1978)

(prosecution’s “four separate, intentional references to defendant’s post-arrest silence” not harmless

where “[d]efendant’s [exculpatory] story is not totally implausible and the indicia of guilt is not

overwhelming”). Moreover, this court has recognized that even a single improper reference might

not be harmless under the Chapman standard where the defendant’s exculpatory story – on which

the prosecution’s comment cast doubt – was not implausible, the government’s evidence was not

overwhelming, and the reference was purposeful. See United States v. Shavers, 615 F.2d 266, 269-

70 (5th Cir. 1980); United States v. Impson, 531 F.2d 274, 277-79 (5th Cir. 1976).

       As the primary witness in his own defense, Hill maintained that he had been unarmed at the

scene of the shootings. Although several of the state’s witnesses had earlier testified to having seen


                                                -14-
Hill with a gun that night, defense counsel had significantly undermined the credibility of all of the

state’s adult scene witnesses with evidence that they had previously given statements significantly

inconsistent with their trial testimony, that they had been involved in the underlying altercation, or

that they had been under the influence of alcohol and/or marijuana.7 In light of the doubt cast on

the account offered by the various scene witnesses, Hill’s credibility was particularly important to

his defense. Recognizing that any reference by the prosecution to Hill’s silence and request for

counsel at the time of his arrest would be highly damaging to Hill’s credibility, defense counsel went

to great lengths to prevent all such comment. Counsel not only obtained a pre-trial order barring all

reference to any statement by Hill to the effect that “I won’t say anything until I talk to my lawyer,”

but also attempted to ensure the prosecution’s compliance with the court’s order, reminding the

prosecution of the order when the testimony of a state witness began to approach the prohibited

topic, timely objecting to each of the prosecution’s improper references, and moving for a mistrial

at the earliest opportunity.

       Despite defense counsel’s efforts, the prosecution repeatedly referred to Hill’s post-Miranda

silence and request for counsel throughout Hill’s trial, in blatant disregard of the court’s pre-trial

order and subsequent evidentiary rulings. Moreover, the prosecution’s improper references were

not confined to a single witness. Rather, counsel twice elicited testimony in violation of the pre-trial

order from Seay, again commented on Hill’s failure to offer his account of the circumstances of the

shootings at any time prior to trial during Hill’s cross-examination, and then returned to the subject

of Hill’s post-Miranda silence during closing argument. With each of these references, the



       7
        The state’s remaining scene witnesses were Barber’s minor children whose testimony
came largely in response to leading questions.

                                                 -15-
prosecution encouraged the jury to infer the falsity of Hill’s exculpatory story from his exercise of

Miranda rights at the time of his arrest, precisely the inference that Doyle seeks to prohibit.

        Nor can we say that the trial court’s valiant and well-intentioned attempt to remedy the

Doyle error through curative instructions eliminated the taint created by the prosecutor.

Significantly, the most substantial of the trial court’s instructions may have served not to cure but

to magnify the impact of the prosecution’s improper comment. Although defense counsel promptly

objected to Seay’s statement that, while waiting with Hill for an ambulance following Hill’s arrest,

Hill had “stated that he wanted his lawyer,” the court did not give a curative instruction at that time.

Rather, direct examination of Seay continued, the questioning shifting to Seay’s investigation of the

crime scene after Hill was taken to the hospital, until the court recessed for lunch. It was not until

after that recess that the court gave a curative instruction, thus requiring the court to remind the jury

of Hill’s post-arrest silence and request for counsel yet another time and causing further prejudice

to Hill. The court prefaced its remarks with a reference to the curative instruction it had previously

given in response to Seay’s comment that Hill had elected to remain silent upon being advised of

his Miranda rights, then proceeded to mischaracterize the objectionable portion of Seay’s testimony

to Hill’s detriment. Although Seay had testified that Hill had simply “stated that he wanted his

lawyer,” the court offered the following summary of Seay’s comment: “[n]ow it has been called to

my attention that there was a further statement made, that when he asked the defendant about what

happened, he said he didn’t want to make any statement at that time until he talked to his lawyer.”

In these circumstances, we are not persuaded that the trial court’s instructions sufficiently remedied

the prosecution’s misconduct. See Impson, 531 F.2d at 276 (viewing the trial court’s curative

instructions as of “no controlling significance” where those instructions may have “aggravated the


                                                  -16-
harmful effect of the prosecution’s error”); United States v. Kallin, 50 F.3d 689, 694-95 (9th Cir.

1995) (finding that the jury could not possibly be expected to disregard the prosecutor’s extensive

comment, on cross-examination and in closing argument, about the defendant’s post-arrest silence

and retention of counsel where the trial court’s curative instruction “was not contemporaneous with

the [Doyle] error,” requiring the judge to “reiterate[] the impermissible content of the testimony,

again calling attention to defendant’s silence). Moreover, for all of the reasons discussed above, we

cannot say that the jury’s verdict was not substantially influenced by the prosecution’s

Doyle violations.

       REVERSED and REMANDED for further proceedings consistent with this opinion.




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