                    SUPREME COURT OF ARIZONA
                             En Banc

STATE OF ARIZONA,                 )   Arizona Supreme Court
                                  )   No. CR-11-0083-PR
                        Appellee, )
                                  )   Court of Appeals
                 v.               )   Division One
                                  )   No. 1 CA-CR 09-0903
PETE J. VANWINKLE,                )
                                  )   Maricopa County
                       Appellant. )   Superior Court
                                  )   No. CR2008-113869-001 DT
                                  )
                                  )
                                  )   O P I N I O N
__________________________________)


        Appeal from the Superior Court in Maricopa County
              The Honorable Paul J. McMurdie, Judge

                            AFFIRMED
________________________________________________________________

    Memorandum Decision of the Court of Appeals, Division One
                       Filed Mar. 24, 2011

                             VACATED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                   Phoenix
     By   Kent E. Cattani, Chief Counsel
          Criminal Appeals/Capital Litigation Section
          Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona

MICHAEL J. DEW                                           Phoenix
Attorney for Pete J. VanWinkle
________________________________________________________________

H U R W I T Z, Vice Chief Justice
¶1          The question in this case is whether a defendant’s

post-custody, pre-Miranda silence may be used as evidence of

guilt.

                                      I.

¶2          Petitioner Pete J. VanWinkle and four others — Mike,

Joel, Cory, and Gerry — were in Joel’s apartment.1                        VanWinkle

shot Mike in the head.        Gerry saw the shooting from the kitchen,

confronted VanWinkle, and disarmed him after a struggle.                        Cory,

who was in the bathroom at the time of the shooting, detained

VanWinkle while Joel called 911.              When police arrived, Cory was

restraining       VanWinkle   on   the       second-floor       balcony    of     the

apartment building.

¶3          The police ordered Cory to descend the stairs.                        He

complied,     but    exclaimed     that      VanWinkle     was     the     shooter.

VanWinkle said nothing in response.                The police then ordered

VanWinkle down the stairs and handcuffed him.

¶4          At VanWinkle’s trial for attempted murder and other

offenses, the prosecution introduced evidence of his silence in

the face of Cory’s allegation and argued to the jury that this

was   a   tacit   admission   of   guilt.       The    trial     court    overruled

defense     objections    that     admission      of     this     evidence,       and

prosecutorial       comment   on    it,       violated      VanWinkle’s         Fifth

1
     “We view the facts in the light most favorable to upholding
the verdicts.”   State v. Chappell, 225 Ariz. 229, 233 n.1 ¶ 2,
236 P.3d 1176, 1180 n.1 (2010).
                                         2
Amendment privilege against self-incrimination.                      The jury found

VanWinkle guilty on all charged offenses.

¶5          The court of appeals affirmed.                   State v. VanWinkle,

No. 1 CA-CR 09-0903, 2011 WL 1086602 (Ariz. App. March 24, 2011)

(mem.   decision).        The       court    assumed    that   VanWinkle    was    in

custody when Cory made his accusation, but held that Miranda v.

Arizona, 384 U.S. 436, 444 (1966), did not apply because there

was no police interrogation.            Id. at *2 ¶¶ 8-9.

¶6          We granted review to resolve an issue of statewide

importance.     We have jurisdiction under Article 6, Section 5(3)

of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

                                            II.

                                            A.

¶7          When a statement adverse to a defendant’s interests is

made in his presence and he fails to respond, evidence of the

statement     and   the    defendant’s            subsequent    silence     may    be

admissible as a “‘tacit admission of the facts stated.’”                      State

v. Saiz, 103 Ariz. 567, 569, 447 P.2d 541, 543 (1968) (quoting

Ruth v. Rhodes, 66 Ariz. 129, 135, 185 P.2d 304, 308 (1947)).

The defendant must have been able to clearly hear the statement

and the circumstances must have been “‘such as naturally call

for a reply if [the defendant] did not intend to admit such

facts.’”     Id.    VanWinkle does not contend that his silence was

improperly    treated     as    a    tacit       admission   under   the   rules   of

                                             3
evidence,2 but rather only that it should have been excluded

under the Fifth Amendment.

                                            B.

¶8            In    Doyle v. Ohio, the Supreme Court of the United

States held that a defendant’s silence after arrest and after

being given Miranda warnings could not be used against him, even

for impeachment purposes.               426 U.S. 610, 617-20 (1976).             The

Court    found           silence    under    such      circumstances      “insolubly

ambiguous”         and    possibly     “nothing       more   than   the   arrestee’s

exercise of these Miranda rights.”                      Id. at 617.       Six years

later,   the       Court     held    that   post-arrest,      pre-Miranda    silence

could    be    used       for   impeachment      if    the   defendant    testified.

Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam); see

also Wainwright v. Greenfield, 474 U.S. 284 (1986) (holding that

a defendant’s post-arrest, post-Miranda silence cannot be used

in the prosecution’s case-in-chief); Jenkins v. Anderson, 447


2
     Some courts have held in circumstances similar to those
here that silence is not admissible as an evidentiary matter.
See, e.g., Weitzel v. State, 863 A.2d 999, 1004-05 (Md. 2004)
(holding that in light of the depiction of Miranda warnings in
popular culture and the widespread knowledge that statements
made in the presence of police will be “used against you in a
court of law,” silence in the presence of police is too
ambiguous to be probative); People v. DeGeorge, 541 N.E.2d 11,
13 (N.Y. 1989) (holding that silence in police presence is
inadmissible because it is a natural reaction); Ex parte Marek,
556 So. 2d 375, 381 (Ala. 1989) (“[T]he accused might well
remain silent because he is angry, or frightened, or because he
thinks he has the right to remain silent that the mass media
have so well publicized.”).
                                            4
U.S. 231 (1980) (concluding that the State may use a defendant’s

pre-arrest, pre-Miranda silence for impeachment).                             No Supreme

Court case addresses, however, whether the State’s use of post-

custody, pre-Miranda silence in its case-in-chief violates the

Fifth Amendment.

¶9           The     State    argues     that      this       Court     approved        this

practice in State v. Ramirez, 178 Ariz. 116, 125, 871 P.2d 237,

246 (1994).        But Ramirez did not involve prosecutorial comment

on    a   defendant’s        silence.           Rather,       that    case     considered

prosecutorial comment on the defendant’s actual statements and

demeanor, and the opinion made plain that “[t]he prosecutor did

not comment on defendant’s post-arrest ‘failure to proclaim his

innocence’     or     on     defendant’s         post-arrest         silence.”          Id.

Although Ramirez stated that “[a] prosecutor may . . . comment

on a defendant’s pre-Miranda warnings silence, either before or

after     arrest,”    id.,     that     language        was    dictum.         Thus,     the

question before us is one of first impression in Arizona.

                                            C.

¶10          We assume arguendo, as did the court of appeals, that

VanWinkle    was     in    custody      when     Cory     identified         him   as   the

shooter.      We     agree    with    the    court      of    appeals    that      because

VanWinkle’s silence was not in response to police interrogation,

its admission did not violate the Miranda rule.                        Miranda created

“a prophylactic means of safeguarding Fifth Amendment rights”

                                            5
during custodial interrogation.                    Doyle, 426 U.S. at 617; see

also    Dickerson    v.    United      States,       530    U.S.     428,    432    (2000)

(noting     constitutional       underpinnings         of        Miranda).      But    the

Miranda     rule is not violated when, as here, the defendant’s

silence was in response to an accusation made by a civilian

unaffiliated with the police before a warning could be given,

and there is no indication of any wrongdoing by the police.

¶11           But   that   does     not      end    the     analysis.         The    Fifth

Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.”                          U.S. Const.

Amend.      V.      This    privilege            against    self-incrimination          is

incorporated into the Fourteenth Amendment’s due process clause.

Malloy v. Hogan, 378 U.S. 1, 6 (1964).                      “[T]he right to remain

silent derives from the Constitution and not from the Miranda

warnings themselves.”           United States v. Velarde-Gomez, 269 F.3d

1023, 1029 (9th Cir. 2001) (en banc); see also State v. Easter,

922 P.2d 1285, 1290 (Wash. 1996) (“An accused’s right to silence

derives,      not   from    Miranda,         but     from    the     Fifth     Amendment

itself.”).

¶12           A defendant has the right to remain silent when it is

“evident from the implications of the question, in the setting

in which it is asked, that a responsive answer to the question

or     an   explanation    of    why    it       cannot     be    answered     might   be

dangerous because injurious disclosure could result.”                              Hoffman

                                             6
v. United States, 341 U.S. 479, 486-87 (1951).         The prosecution

may not comment on a defendant’s exercise of his right to remain

silent.   Griffin v. California, 380 U.S. 609, 615 (1965).

¶13        A majority of the federal appellate courts have held

that    post-custody,   pre-Miranda   silence    cannot   be   used   as

evidence of a defendant’s guilt.3      Most of these cases involve

police questioning, and thus implicate          Miranda’s prophylactic

rule.     Two federal courts of appeals, however, have squarely

held that post-custody, pre-Miranda silence is not admissible in

the prosecution’s case-in-chief under the Fifth Amendment, even

absent police interrogation.      See United States v. Whitehead,

200 F.3d 634, 637-39 (9th Cir. 2000); United States v. Moore,

104 F.3d 377, 384-90 (D.C. Cir. 1997).           In Moore, the court

stated that “neither Miranda nor any other case suggests that a

defendant’s protected right to remain silent attaches only upon

3
     The Seventh, Ninth, and District of Columbia Circuits have
found post-custody, pre-Miranda silence inadmissible.        See
United States v. Hernandez, 948 F.2d 316, 321-24 (7th Cir.
1991); United States v. Whitehead, 200 F.3d 634, 637-39 (9th
Cir. 2000); United States v. Moore, 104 F.3d 377, 384-90 (D.C.
Cir. 1997). Other circuits have extended that ban to pre-arrest
silence.   See Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st
Cir. 1989); Combs v. Coyle, 205 F.3d 269, 280-83 (6th Cir.
2000); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.
1991); but see United States v. Oplinger, 150 F.3d 1061 (9th
Cir. 1998), overruled on other grounds by United States v.
Contreras, 593 F.3d 1135 (9th Cir. 2010) (en banc) (per curiam).
The Fourth, Eighth, and Eleventh Circuits have found post-
custody, pre-Miranda silence admissible. United States v. Love,
767 F.2d 1052, 1063 (4th Cir. 1985); United States v. Frazier,
408 F.3d 1102, 1109-11 (8th Cir. 2005); United States v. Rivera,
944 F.2d 1563, 1567-68 (11th Cir. 1991).
                                  7
the commencement of questioning as opposed to custody.”                               104

F.3d at 385.         The Ninth Circuit is in accord.                 See Whitehead,

200 F.3d at 639 (“[W]hen the district court admitted evidence of

Whitehead’s post-arrest, pre-Miranda silence . . . it plainly

infringed          upon        Whitehead’s        privilege          against         self

incrimination.”).

¶14          We    find   persuasive      the    reasoning     of    the    Ninth     and

District of Columbia Circuits.                   The Fifth Amendment gives a

person   the      right   to    remain   silent    once   in    custody,       even   if

Miranda warnings have not yet been given.                      See Velarde-Gomez,

269   F.3d   at    1029   (noting       that    Miranda   warnings     are     not    the

“genesis” of the right to remain silent); Ex parte Marek, 556

So. 2d 375, 382 (Ala. 1989) (“An individual with the right to

remain silent has the right to remain silent without regard to

whether an officer has told him of that right.”).

¶15          The    State      argues    that    VanWinkle     had    the    right     to

remain silent only if under police questioning.                        But “custody

and not interrogation is the triggering mechanism for the right

of pretrial silence.”            Moore, 104 F.3d at 385.             And, “the Fifth

Amendment’s protection does not vanish simply because a question

is posed or statement made by a third party in the presence of

police rather than by the police themselves.”                    United States v.

Yates, 524 F.2d 1282, 1285 n.8 (D.C. Cir. 1975).                      When a person

is in custody, even if police have not given Miranda warnings or

                                           8
begun interrogation, the prosecution’s subsequent “comment on

the defendant’s exercise of his right to silence violates the

Fifth Amendment.”    Velarde-Gomez, 269 F.3d at 1029.4             The right

to remain silent would mean little if the consequence of its

exercise is evidence of guilt.            See Mitchell v. United States,

526 U.S. 314, 330 (1999) (“[T]here can be little doubt that the

rule   prohibiting   an   inference       of   guilt   from   a   defendant’s

rightful silence has become an essential feature of our legal

tradition.”).   The trial court thus erred in admitting evidence

of VanWinkle’s silence as evidence of his guilt and allowing the

prosecution to comment on that silence.

                                 III.

¶16        The admission of evidence of a defendant’s silence and

a prosecutor’s comment on that silence are subject to harmless

error review.    State v. Guerra, 161 Ariz. 289, 297, 778 P.2d

1185, 1193 (1989).    Error is harmless “if the state, in light of

4
     The   Fifth   Amendment  prohibits  only   compelled  self-
incrimination.    U.S. Const. Amend. V (providing that no one
“shall be compelled in any criminal case to be a witness against
himself”). It is not intuitively obvious that comment on a
defendant’s silence amounts to compulsion.    Indeed, in dissent
in   Griffin, Justice Stewart argued that the Court had
“stretche[d] the concept of compulsion beyond all reasonable
bounds.”    380 U.S. at 620 (Stewart, J., dissenting).     Other
justices have expressed similar views.   See Mitchell v. United
States, 526 U.S. 314, 331-40 (1999) (Scalia, J., dissenting);
Jenkins, 447 U.S. at 241-45 (Stevens, J., concurring in the
judgment); Doyle, 426 U.S. at 620-36 (Stevens, J., dissenting).
The Griffin majority, however, rejected Justice Stewart’s
position, 380 U.S. at 613-15, which has never commanded a
majority of the Court.
                                      9
all of the evidence, can establish beyond a reasonable doubt

that the error did not contribute to or affect the verdict.”

State v. Valverde, 220 Ariz. 582, 585 ¶ 11, 208 P.3d 233, 236

(2009) (citation and internal quotation marks omitted).

¶17          The State has met that burden here.            The four other

men at the scene, including the victim, gave consistent accounts

of    what   happened,     each   implicating     VanWinkle.       All      four

testified    that   Cory   was    in   the   bathroom,   Gerry   was   in   the

kitchen, and the other three men were in the living room.5                   All

gave consistent testimony regarding where VanWinkle, Mike, and

Joel were sitting in the living room and what was happening just

before the shooting.         Gerry testified that he saw VanWinkle

shoot the victim.        Joel testified that he saw VanWinkle holding

the gun immediately after he heard the gunshot.                  And police

officers testified without objection that both Joel and Cory had

identified VanWinkle as the shooter to police at the scene.

When police arrived, VanWinkle’s holster, which he was wearing,

was empty and his gun was on the living room floor.               Ballistics

tests positively identified VanWinkle’s gun as having fired the

shot that wounded the victim.

¶18          While in jail, VanWinkle told an inmate that he had

shot Mike because he “wanted to kill somebody to see how it


5
      Although Mike testified that he did not remember being
shot, he recalled clearly the events leading up to the shooting.
                                       10
fe[lt].”      VanWinkle also called Cory from jail apologizing for

the shooting and asked Cory not to testify against him.                          And,

VanWinkle did not object at trial to the introduction of Cory’s

accusation at the scene that VanWinkle was the shooter, but only

to     the   evidence     of    VanWinkle’s       subsequent     silence.        Cory

testified at trial, and VanWinkle chose not to cross-examine him

about his statement.

¶19          Under      the    facts   of    this   case,   we    find   beyond     a

reasonable doubt that the evidence of VanWinkle’s silence in the

face of Cory’s accusation and the prosecutor’s comment on that

silence did not contribute to or affect the verdicts.6

                                            IV.

¶20          For the reasons above, we hold that the admission of

post-custody, pre-Miranda silence and prosecutorial comment on

such    silence    violate      a    defendant’s     constitutional      right     to

remain silent.       Accordingly, we vacate the decision of the court

of    appeals,    but    affirm     VanWinkle’s     convictions    and   sentences

because we find the error in this case harmless.




                                    _____________________________________
                                    Andrew D. Hurwitz, Vice Chief Justice




6
     We therefore need not address the State’s contention that
VanWinkle was not in custody when Cory made his accusation.
                                            11
CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
W. Scott Bales, Justice


_____________________________________
A. John Pelander, Justice


_____________________________________
Robert M. Brutinel, Justice




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