                                IN THE COURT OF APPEALS
                                         OF THE
                                  STATE OF MISSISSIPPI
                                       NO. 1999-KA-01698-COA
TIMOTHY MCGRONE A/K/A THOMAS MCCALLAHAN                                                      APPELLANT
v.
STATE OF MISSISSIPPI                                                                           APPELLEE

DATE OF JUDGMENT:           08/03/1999
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
TRIAL COURT DISPOSITION:    MOTOR VEHICLE THEFT (HABITUAL OFFENDER) -
                            SENTENCED TO SERVE A TERM OF 5 YEARS IN THE
                            CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
                            CORRECTIONS.
DISPOSITION:                REVERSED AND REMANDED- 4/3/01.
MOTION FOR REHEARING FILED: 5/15/2001; denied 8/14/2001
CERTIORARI FILED:           8/16/2001; granted 10/11/2001
MANDATE ISSUED:

     EN BANC

     IRVING, J., FOR THE COURT:

¶1. Timothy McGrone was tried and convicted of auto theft. Feeling aggrieved, he perfected this appeal
and charges in his sole issue on appeal that certain questions posed by the State during cross-examination
and certain comments by the State's attorney during closing argument constituted impermissible references
to his post-arrest right to remain silent. He argues that the trial court's decision to allow the comments
constituted reversible error. This Court agrees.

                                                  FACTS

¶2. 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.

¶3. 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.

¶4. 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 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.

¶5. 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.

                                 ANALYSIS OF ISSUE PRESENTED

¶6. At trial McGrone was questioned as follows:

     CROSS-EXAMINATION BY MS. WOOTEN:

     Q. Mr. McGrone, when did you tell the police that Milton Stewart stole this vehicle?

     MS. JACKSON: Objection, Your Honor

     THE COURT: Overruled.

     Q. When did you tell the police that Milton Stewart stole the truck?

     A. I've never spoken to the police to this very day.
     Q. You have never had the opportunity to tell the police that Milton Stewart stole the truck.

     MS JACKSON: Objection, Your Honor.

     THE COURT: Basis?

     MS. JACKSON: He's not required to talk to the police.

     THE COURT: Overruled.

     Q. Did you hear my question?

     A. Yes, ma'am. I've never spoken with the police.

     Q. And my question was did you have an opportunity to tell the police that Milton Stewart stole the
     truck, not you?

     A. No. ma'am.

     Q. You never had that opportunity?

     Q. When the police arrested you between the two houses on Valley Street, was there something
     wrong with your throat that you couldn't talk?

     MS. JACKSON: Objection, Your Honor, he has a Fifth Amendment right not to talk with them.

     MS. WOOTEN: Your Honor, he's taken the stand. He's waiving that.

     THE COURT: Overruled.

                                                  ****

     Q. Mr. McGrone, in the year and a half that you have been incarcerated, have you once told anyone
     from the Jackson Police Department or the Hinds County Sheriff's Department that you did not steal
     this car and Milton Stewart stole the car?

     A. No.

     Q. You've never done that?

     A. I've never had the opportunity.

     Q. You have never done that.

     A. I have never spoken with anybody.

     Q. You've never had the opportunity to speak to a deputy of the Sheriff's Department?

     A. Nobody has ever tried to talk to me concerning this case.

¶7. The following occurred during the State's closing argument:
      MR. COLLINS: And I would take my coat off and wave it just to show it, but I won't do it. If I was
      locked up in the Hinds County Detention Center for a year and a half, you could hear me hollering at
      the top of my lungs if someone else did it as those deputy sheriffs walked by every two or minutes
      [sic], hey, somebody else did this. Hey, somebody else did this.

      MS JACKSON: Objection, Your Honor.

      THE COURT: Overruled.

      MR. COLLINS: But he didn't say a word. He didn't say a word until he could think up how to put it
      off on someone else. It narrows the gap and narrows the question.

¶8. McGrone argues that these questions and comments by the State constituted impermissible references
to his post-arrest right to remain silent and were unfairly prejudicial. The same argument was made at the
hearing on the motion for JNOV or, in the alternative, for a new trial, and the trial court had this response:

      THE COURT: Here's where I am. I'm making a ruling. It's over. I am going to deny the motion for a
      new trial or to set aside the verdict. If there is any way to expedite the appeal, I want it expedited.
      And for the record, for the appellate court, there is no question that the trial record was silent on the
      issue of any Miranda warnings, when they were given, whether or not a Miranda warning was ever
      given. And it's clear to me that that factual determination is critical to the application of Doyle in this
      case. All other facts, I think it's conceded, are on all-fours with Doyle. With regard to the Miranda
      warnings, our trial record was silent.

¶9. In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the United States Supreme Court held that in a case
where the defendant had been mirandized at the time of arrest, it was a violation of the Due Process Clause
of the Fourteenth Amendment to cross-examine the defendant regarding the defendant's post-mirandized
silence to impeach the defendant's exculpatory story which was told for the first time at trial. The
Mississippi Supreme Court in Johnson v. State, 596 So. 2d 865, 868 (Miss. 1992) ( citing Wainwright
v. Greenfield, 474 U.S. 284 (1986)) made it clear that a prosecutor's closing argument commenting upon
that silence is also prohibited.

¶10. Johnson involved comments made by a prosecutor during closing argument, not about questions
during cross-examination, regarding the defendant's story told for the first time during trial. The facts in
Johnson, however, are similar to the facts in our case regarding the absence of the Miranda warnings. The
prosecutor had argued during closing argument that the police had mirandized the defendant and that the
defendant had failed to tell the police, after being mirandized, the story that the defendant told at trial. The
defense did not make a contemporaneous objection but did make an objection, as well as a motion for a
mistrial, at the close of the prosecution's argument. The objection was twofold: lack of evidence in the
record to support the statement that defendant had been mirandized and thereafter chose to remain silent
and, even if there were evidence to that effect in the record, the prosecutor's argument ran afoul of the
defendant's Fifth Amendment rights. Johnson, 596 So. 2d at 867.

¶11. The Johnson court reversed and remanded because of the improper comments by the prosecutor.
However, it appears that while the Johnson court discussed Doyle, it based its decision to reverse and
remand not squarely on the fact that the comments ran afoul of the defendant's Fifth Amendment rights but
as well, on the fact that the comments lacked evidentiary support. This is what the court said: "The
prosecutor's repeated references to Hawkins's [also known as Johnson] silence, all of which lacked
evidentiary support, were improper and highly prejudicial to him. They require reversal because they had
the probable effect of unfairly influencing the jury's decision making." Id. at 869.

¶12. In an earlier case, Austin v. State, 384 So. 2d 600, 601 (Miss. 1980), the Mississippi Supreme
Court held that it was error for the prosecution to comment on a defendant's post-arrest silence. This
holding does not appear to turn on whether the Miranda warnings were given as there was no discussion of
them in the opinion. However, the court further held that the error was harmless in light of the overwhelming
evidence of appellant's guilty. Id. In Austin, the defense counsel made the following statement in closing
argument:

      Here and now is the first time that anyone has heard his side of this case, and I ask you, as the only
      people who have ever hear his side of the case and the only people probably that ever will hear his
      side of the case . . . .

In response to the statement by defense counsel, the district attorney said, "And, if he was not guilty, why
didn't he tell the law enforcement officers that. I asked him, did he give a statement. No." Id.

¶13. 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.

¶14. 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.

¶15. In Puckett v. State, 737 So. 2d 322 ( ¶85) (Miss. 1999), the Mississippi Supreme Court held the
following:

      The purpose of Miranda is to protect the defendant's Fifth Amendment right against self-incrimination
      by affording him the right to remain silent. However, if the defendant does not take advantage of his
      right to remain silent, any statements he voluntarily makes can and will be used against him in a court
      of law. The United States Supreme Court's holding in Doyle simply reiterates that the
      defendant's silence cannot be used against him during cross-examination. However, because
      Puckett did not invoke his right to silence, and made voluntary statements, the Miranda and Doyle
      provisions do not apply.

(emphasis added).
¶16. Our case differs from Puckett in that the record was clear that the defendant in Puckett was read the
Miranda warnings, and here the record is silent as to whether the warnings were given. Nevertheless, we
believe that Puckett is helpful to our analysis. As shown in the quote above, the Mississippi Supreme
Court's view of Doyle is that Doyle "simply reiterates" an existing right; it does not create a new right.
Therefore, it seems to us if the right exists by virtue of the Fifth Amendment to the United States
Constitution, it cannot cease to exist by virtue of law enforcement officials' failing to do something that is
only intended to reiterate the existence of the right. We hold that the State's cross-examination and closing
argument regarding McGrone's post-arrest silence were impermissible references to his post-arrest right to
remain silent, and it was error for the trial court to permit the cross-examination and comments during
closing argument.

¶17. Having determined that it was error to permit cross-examination regarding McGrone's post-arrest
silence and comments about the same during closing argument, we look to see whether the error was
harmless. In Ridley v. State, 1998-KA-00996 (Miss. Ct. App. Aug. 24, 1999), this Court, quoting
extensively from United States v. Mc. Donald, 620 F. 2d 559 (5th Cir. 1980), held, as did the McDonald
court, that in order for reversible error to occur from improper prosecutorial comments regarding a
defendant's right to counsel, the comments must "strike at the jugular" of the defendant's exculpatory story.
Id. at (¶18). Is that the case here? We conclude that it is.

¶18. As stated, McGrone's defense was 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. He stated that it was only after he had stopped temporarily at one of the roadblocks that Stewart
told him that the truck was stolen. He further testified that he continued on through the roadblock, not
because he had stolen the truck, but because he saw an armed person approach the truck. According to
McGrone, he thought the armed person might have been the owner. On the other hand, Stewart testified for
the State and contradicted McGrone's story.

¶19. According to Stewart, McGrone came by Stewart's cousin's house in the stolen truck and asked
Stewart if he knew anybody who wanted to work for McGrone's uncle. According to Stewart, he told
McGrone that he wanted to work and got in the truck with McGrone. After getting in the truck, Stewart
asked McGrone if the truck was stolen, and McGrone said it was not. On these facts, it cannot be said that
the prosecutor's attack on McGrone's story during both the cross-examination and closing argument did not
"strike at the jugular" of McGrone's defense. Such attack should not have been permitted by the trial court.
Accordingly, we reverse and remand this case for further proceedings consistent with this holding.

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED
AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

      McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS AND CHANDLER, JJ.,
      CONCUR. LEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
      PAYNE, BRIDGES, AND MYERS, JJ.

      LEE, J., DISSENTING:

¶21. The majority finds that McGrone's conviction must be reversed because questions and comments by
the State constituted impermissible references to his post-arrest right to remain silent and were unfairly
prejudicial. I disagree.
¶22. In his efforts to create a defense for himself, McGrone went further and affirmatively charged Stewart
with a crime. The crime charged is the theft of the truck. Inasmuch as he asserted that Stewart had
committed a crime, why should not the prosecution be allowed to ask him if he had previously told this to
the police or anyone else? The Fifth Amendment privilege against self-incrimination is a shield, not a sword.
Jones v. State, 381 So. 2d 983, 993 (Miss. 1980). Just as any other vital right, the privilege against self-
incrimination can be waived so long as it is done so voluntarily and knowingly. Alexander v. State, 605
So.2d 1170, 1172 (Miss.1992). This privilege is waived when a defendant takes the witness stand and
testifies on the merits of the case. Hentz v. State, 496 So. 2d 668, 673 (Miss. 1986). I am of the opinion
that when McGrone voluntarily took the stand and testified that Stewart had stolen the truck, he waived his
right to remain silent regarding that issue and that it was proper to require him to answer questions relevant
to the issue. Moreover, he also opened the door to cross- examination and impeachment to the same extent
as any other witness in the same situation. Id. It seems to be recognized by all of the courts that this
immunity is waived by the accused when he takes the stand and testifies on the merits of the case. The rule
in 58 Am. Jur. Witnesses § 96 (1948) is quoted in Autry v. State, 230 Miss. 421, 92 So. 2d 856 (1957),
and states:

     An accused may waive his constitutional immunity from giving testimony against himself by offering
     himself as a witness. By electing to testify, the accused subjects himself to cross-examination and
     impeachment, and makes permissible comment by the prosecuting attorney upon his testimony. When
     he voluntarily takes the witness stand in his own behalf, he waives his constitutional privilege of not
     answering proper questions that may tend to convict him of the crime for which he is on trial, and, as
     has frequently been stated, he subjects himself to the same rules that govern other witnesses, and
     further, he subjects himself to cross-examination and impeachment to the same extent as any other
     witness in the same situation.

     The constitutional rule against self-incrimination does not limit the cross- examination of an accused
     testifying in his own behalf, except that he may not be required to state facts constituting an
     independent crime, unless the answer to the question also tends to convict him of the offense charged
     or bears on any issue involved in the case. His voluntary offer of testimony upon any fact is a waiver
     as to all other relevant facts because of the necessary connection between them all. Under this rule the
     accused by taking the witness stand in his own behalf waives the constitutional guaranty against
     compulsory self-incrimination not only as to matters about which he has given testimony in chief, but
     also concerning any matter pertinent to the issue on trial regardless of the extent of the direct
     examination, and cannot then refuse to testify to any fact which would be competent evidence in the
     case if proved by any other witness. * * *

     The waiver by the accused is not partial. Having once cast aside the cloak of immunity, he may not
     resume it at will whenever cross-examination may be inconvenient or embarrassing.

Autry v. State, 230 Miss. at 435-36, 92 So. 2d at 861-62.

¶23. It is apparent that the rule recited in Autry remains the law in this state. Moore v. Moore, 558 So. 2d
834, 837 (Miss. 1990). The opposite rule would permit a witness to give a biased and one- sided version
of his proclamation. Hentz, 496 So. 2d at 674. McGrone asserted that Stewart stole the truck. He was not
being asked why he did not immediately tell the officers of this fact but was asked why he had failed to tell
the police his exculpatory story at any time prior to trial. Such evidence is permitted to show consciousness
of guilt. McClendon v. State, 387 So. 2d 112, 115 (Miss. 1980). McGrone must be reminded that the
Fifth Amendment privilege against self-incrimination is a shield, not a sword. Jones, 381 So. 2d at 993.
Upon taking the stand as a witness and asserting not only that he did not steal the truck, but upon making
the affirmative assertion that Stewart, specifically, had stolen the truck, it is my opinion that McGrone
consequently opened the door and waived any right to silence regarding this issue. Permitting silence at this
point would allow a biased and one sided version of his defense, Hentz, 496 So. 2d at 674, condoning its
use as a sword, which precedent clearly forbids. Id. I would therefore affirm McGrone's conviction and,
accordingly, dissent.

     PAYNE, BRIDGES AND MYERS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
