                            IN THE SUPREME COURT OF MISSISSIPPI

                                         NO. 1999-CT-01698-SCT

TIMOTHY McGRONE a/k/a THOMAS McCALLAHAN
v.
STATE OF MISSISSIPPI

                                      ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                                  8/3/1999
TRIAL JUDGE:                                       HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED:                         HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                           THOMAS M. FORTNER

                                                   ROBERT M.. RYAN
ATTORNEY FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL

                                                   BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY:                                 EDWARD J. PETERS
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       REVERSED - 02/21/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    3/14/2002

      EN BANC.

      DIAZ, JUSTICE, FOR THE COURT:

¶1. Timothy McGrone was indicted by the Hinds County Grand Jury on one count each of theft of a motor
vehicle, aggravated assault, aggravated assault on a law enforcement officer, and simple assault on a law
enforcement officer, arising from McGrone's alleged theft of a truck from a construction site in Jackson.
McGrone went to trial solely on the auto theft charge and was convicted and sentenced, as a habitual
offender, to five years imprisonment. McGrone appealed his conviction and sentence to this Court, which
assigned the case to the Court of Appeals. A divided Court of Appeals reversed McGrone's conviction and
remanded the case to the circuit court. This Court granted certiorari to consider whether consistent with his
due process rights, McGrone could be impeached at trial on his failure to provide, at some time after his
arrest, his version of the events leading up to his arrest. After consideration, this Court finds that McGrone's
due process rights were not violated by the State's questioning, and the Court of Appeals erred in reversing
his conviction.

                                                       I.

¶2. The following statement of facts is provided by the opinion of the Court of Appeals:
      The charge for which McGrone stands convicted on this appeal is auto theft. There were no witnesses
      to the theft of the truck. Immediately preceding its theft, the truck was parked at a construction site
      where its owner was working. A police report was made as soon as the theft was discovered, and the
      truck was spotted by police officers soon after the dispatch went out. McGrone was also indicted on
      other charges in connection with the theft as a result of his attempt to evade police capture by leading
      them on a high speed chase through the city of Jackson. Those charges included two counts of
      aggravated assault on police officers and one count of assault on a dispatcher trainee. The police
      chase ended when McGrone crashed the stolen truck into a house. McGrone then exited the crashed
      truck and fled on foot. When he was finally apprehended, McGrone allegedly struggled with one of
      the police officers for control of the officer's weapon. The struggle ended when McGrone received a
      gunshot wound to the leg.

      McGrone was granted a pretrial motion in limine that prohibited the admission or mentioning of any
      evidence of any other criminal charges against him in connection with the theft of the truck. The
      prosecution agreed to the motion and even moved to have two of the untried charges voluntarily
      dismissed without prejudice. At trial, McGrone's defense to the charge of auto theft was that he did
      not steal the truck. He claimed that he was driving the truck with the permission of his passenger,
      Milton Stewart, who had agreed to allow McGrone the use of the truck for a few hours at a cost of
      twenty dollars. Stewart had already testified to the contrary during the State's case-in-chief.

      Stewart's testimony was that McGrone drove the truck to Stewart's residence on the day of the theft
      and claimed that the truck belonged to McGrone's uncle who was in the construction business. The
      truck's true owner was in the construction business, and there were items connected with the
      construction business on the truck. Therefore, Stewart said he believed the story. According to
      Stewart, McGrone told him that McGrone's uncle was looking for workers that day and, if Stewart
      was interested in working, to ride with him to the work site. Stewart testified that he agreed to go and
      that is how he came to be in the truck with McGrone when the police spotted the truck and tried to
      stop it. Stewart testified that he jumped from the truck during the chase after McGrone ignored all of
      the efforts of the police to get him to stop.

      McGrone admitted during his trial testimony that he did not stop the truck. He testified that he did not
      stop the truck because he was afraid, not because he had stolen the truck. He said that, when he
      stopped the truck momentarily at a police roadblock, Stewart admitted that the truck was stolen.
      McGrone said that he then saw an individual coming toward the truck with a gun in his hand. Thinking
      that he might be the truck's owner, McGrone drove off and kept driving because he was afraid of
      being shot by the owner and caught by the police while driving a stolen vehicle. The individual with the
      gun was actually a plain-clothed Jackson police officer.

McGrone v. State, No. 1999-KA-01698-COA, at ¶¶ 2-5(Miss. Ct. App. Apr. 3, 2001).

¶3. On cross-examination the State repeatedly questioned McGrone, over defense counsel's objection,
about whether he had ever told his version of the events leading up to his arrest to law enforcement. The
objection was overruled, and McGrone stated that he had not spoken to anyone in law enforcement about
the case. The State also referred to McGrone's action in revealing his version of the events leading up to his
arrest, or lack thereof, in closing argument.

¶4. On appeal, the Court of Appeals reversed McGrone's conviction and remanded. It found that if it was
improper for the State to cross-examine a defendant regarding his silence after being arrested and read his
Miranda warnings, then it was also improper to cross-examine McGrone in this manner, where there was
no evidence in the record as to whether he had been given Miranda warnings or not. The Court of Appeals
found that a defendant would have the protection of the Fifth Amendment in either case, and if cross-
examination was prohibited under the first scenario, it was also prohibited under the second. Four judges
dissented and argued that McGrone had waived the privilege by taking the stand and testifying about the
merits of the case.

¶5. This Court granted the State's Petition for Writ of Certiorari.

                                                       II.

¶6. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L. Ed.2d 91 (1976), the United States Supreme
Court found that a defendant's post-arrest silence, following the reading of Miranda warnings to the
defendant, could not be used for impeachment of the defendant on cross-examination at trial. As in this
case, Doyle and his co-defendant gave a version of events that was difficult to contradict. The prosecution
attempted, as in this case, to impeach Doyle by bringing out the fact that Doyle had not provided to police,
at the time of his arrest, the version of events he was providing on the stand at trial.

¶7. The question raised in this case is whether the prohibition announced in Doyle applies where there is no
evidence that Miranda warnings were given. Neither the State nor McGrone introduced evidence that the
State had provided Miranda warnings to McGrone at the time of his arrest. There should be no surprise
that the warnings were not given, as McGrone was shot in the leg by police immediately before his arrest.

¶8. Doyle has been cited by this Court on numerous occasions, most notably for the purposes of this case
in Johnson v. State, 596 So.2d 865 (Miss. 1992). Johnson did not deal with the question of what was
allowable on cross-examination; this Court reversed Johnson's conviction because of statements made by
the prosecution only during closing argument concerning Johnson's post-arrest silence. While relying on
Doyle as a basis for reversal, this Court also relied on the fact that there was no evidentiary support in the
record for the prosecution's assertions, in closing argument, that Johnson had been read his rights and had
not given the police a statement.

¶9. The Court of Appeals discussed the question of whether the State's cross-examination of McGrone had
been proper and resolved it by finding the following:

      The State argues that the reason for the Doyle rule is the unfairness of first telling a defendant that he
      has a right to remain silent, implicitly assuring him that his silence will carry no penalty, and then using
      his silence against him at trial. The State contends that the rule only applies in the case of an individual
      who is given a Miranda warning. It is the State's contention that where there are no Miranda
      warnings, there is no implied assurance that the silence will not be used, and the silence then becomes
      probative and relevant and should be allowed. This Court disagrees.

      Under the State's reasoning, the police could simply withhold giving the Miranda warnings to an
      individual following the individual's arrest and then take advantage of the defendant's post-arrest
      silence even if the defendant knew without being informed by the police that he had a constitutional
      right to remain silent. It seems to this Court that the Fifth Amendment of the U.S. Constitution
      expressly guarantees the right against self-incrimination and that guarantee is not, and never has been,
     dependent upon whether a Miranda warning is given or not. Logically, it does not follow that an
     individual who simply remains silent without having been told by law enforcement that he has that right
     loses the protection of the guarantee while an individual who is given the Miranda warning and remains
     silent is allowed the protection of the guarantee.

McGrone, ¶¶ 13-14.

¶10. The question before this Court was addressed in Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309,
71 L. Ed. 2d 490 (1982). Weir was convicted of manslaughter. The trial record did not indicate that Weir
received Miranda warnings during the period in which he remained silent after his arrest. The Sixth Circuit
Court of Appeals found that this was irrelevant and extended the rule of Doyle to cases where the
Miranda warnings were not given. The Supreme Court reversed in a per curiam opinion, stating:

     In Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980), a case
     dealing with pre-arrest silence, we said:

     Common law traditionally has allowed witnesses to be impeached by their previous failure to state a
     fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence
     § 1042, p. 1056 (Chadbourn rev. 1970). Each jurisdiction may formulate its own rules of evidence to
     determine when prior silence is so inconsistent with present statements that impeachment by reference
     to such silence is probative.

     In Jenkins, as in other post-Doyle cases, we have consistently explained Doyle as a case where the
     government had induced silence by implicitly assuring the defendant that his silence would not be used
     against him. In Roberts v. United States, 445 U.S. 552, 561, 100 S.Ct. 1358, 1365, 63 L.Ed.2d
     622 (1980), we observed that the post-conviction, presentencing silence of the defendant did not
     resemble "postarrest silence that may be induced by the assurances contained in Miranda warnings."
     In Jenkins, we noted that the failure to speak involved in that case occurred before the defendant was
     taken into custody and was given his Miranda warnings, commenting that no governmental action
     induced the defendant to remain silent before his arrest. 447 U.S., at 239-240, 100 S.Ct., at 2130.
     Finally, in Anderson v. Charles, 447 U.S. 404, 407-408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222
     (1980), we explained that use of silence for impeachment was fundamentally unfair in Doyle because
     "Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that
     his silence will not be used against him.... Doyle bars the use against a criminal defendant of silence
     maintained after receipt of governmental assurances."

     In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not
     believe that it violates due process of law for a State to permit cross-examination as to post-arrest
     silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to
     the judge and jury under its own rules of evidence the resolution of the extent to which postarrest
     silence may be deemed to impeach a criminal defendant's own testimony.

Fletcher, 455 U.S. at 606-07.

¶11. This Court applies the rule of Fletcher v. Weir and finds that Timothy McGrone's due process rights
were not violated by the State's cross-examination concerning his post-arrest silence. Therefore, the
judgment of the Court of Appeals is reversed, and McGrone's conviction for auto theft and sentence as a
habitual offender are affirmed.

¶12. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED; THE JUDGMENT
OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.

      PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND CARLSON, JJ.,
      CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. GRAVES, J., NOT
      PARTICIPATING.
