REVISED United States Court of Appeals,

Fifth Circuit.

No. 96-60673.

Robert Mitchell PITTS, Plaintiff-Appellant,

v.

James V. ANDERSON, Superintendent, Mississippi State Penitentiary, Defendant-Appellee.

Sept. 19, 1997.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING, DAVIS and DeMOSS, Circuit Judges.

DAVIS, Circuit Judge:

Mississippi state prisoner Robert Mitchell Pitts appeals from

the district court's denial of his habeas corpus petition filed

pursuant to

. Pitts alleges that the prosecutor in

his state trial improperly impeached him using his post-Miranda1

silence, in violation of Doyle v. Ohio,

,

,

(1976). Concluding that the prosecutor's questions and comments do not violate Doyle, we affirm

the judgment of the district court and deny the writ of habeas

corpus.

I.

This case arises from an incident occurring in the early

morning of January 14, 1990, in a rural part of Wayne County,

1 Miranda v. Arizona,

,

,

, (1966).

1 Mississippi. Pitts had been deer hunting and two of his dogs were

loose. He received a report that his dogs were at the home of 68-

year-old Pauline Smithinger and her 77-year-old cousin, Roy

Baggett. Pitts was told that Smithinger had tied up the dogs and

was going to kill them unless the owner came for them. Around one

o'clock in the morning, Pitts went to Smithinger's home. Finding

the gate to Smithinger's yard locked, Pitts shot off the lock with

his rifle. He then went in and retrieved his dogs.

There is some dispute as to what happened next, as Pitts's and

Smithinger's versions of the events conflict. At trial, Pitts

testified that Smithinger came out of her house trailer and yelled

obscenities at him as he attempted to explain that he was there to

pick up his dogs. He further testified that Baggett came out of

the trailer with a pistol and began shooting at him. Pitts then

retrieved his rifle from his truck, where he had put it after

shooting the lock. According to Pitts, Smithinger grabbed the

rifle barrel and shook it. While Smithinger was shaking the rifle,

it went off several times, striking Baggett in the arm and severing

an artery. Pitts testified that he offered to bring Baggett to the

hospital, but Smithinger refused. Pitts then went back to his deer

camp and went to sleep. Baggett bled to death several hours later.

Smithinger testified that she was awakened early the morning

of January 14 when Pitts came to her house to get his dogs. She

told him that it was late and urged him to come back at a more

reasonable time. She testified that Pitts was holding a rifle and

had his finger on the trigger. Baggett then came out of the house

2 and Pitts turned and pointed his rifle at him.2 Smithinger grabbed

the rifle so that it would fire into the air, but Pitts shook her

away. Pitts then shot Baggett. Smithinger testified that Pitts

did not offer to help Baggett, but instead got into his truck and

drove away.

Later that morning, Sheriff Marvin Farrior went to Pitts's

deer camp and arrested him. After being advised of his Miranda

rights, Pitts first told the sheriff that he did not know what the

sheriff was talking about. The sheriff then told Pitts that he

would need to see the gun that he had with him the previous night.

Pitts then told the sheriff that "a man come out on [me]. The man

come out on me with a gun." The sheriff asked what kind of gun,

and Pitts replied "a pistol." Pitts made no further statements

regarding what happened at Smithinger's home.

Pitts was indicted and tried for murder. Pitts's defense at

trial was that his rifle accidentally discharged during his tussle

with Smithinger. During direct examination of Sheriff Farrior, the

prosecution elicited testimony that after being read his Miranda

rights, Pitts stated that "a man come out on him. The man come out

on me with a gun." The prosecutor then inquired whether Pitts had

told the sheriff about Baggett firing the gun or Smithinger

grabbing the rifle while the shots went off. The sheriff responded

that "[h]e didn't tell me anything about that."

2 Smithinger testified that Baggett had a pistol tucked in his belt, but that he never raised it at Pitts, and certainly never fired it at him. Smithinger testified that Baggett had fired the pistol earlier in the evening to scare away coyotes.

3 The prosecution asked similar questions of Pitts on

cross-examination. Pitts responded that "I didn't tell the sheriff

nothing else after I told him he come on me with a pistol." During

closing argument, the prosecutor returned to Pitts's failure to

include the accidental nature of the shooting in his original

statement to Sheriff Farrior, arguing that:

The sheriff said, I have a warrant for your arrest, Mr. Pitts. He said, I don't know what you are talking about. He didn't say, oh, sheriff, it was a terrible accident. I don't know what you are talking about, he said.... He told the sheriff, he came on me with a gun. He didn't say it was an accident. He didn't say Mrs. Pauline [Smithinger] had her finger on the trigger and fired the gun. He didn't say it occurred during a tussle. All he said was, he came on me with a gun.

The prosecutor then suggested that some time after speaking with

the sheriff, Pitts learned that the pistol had been fired and

fabricated the story about Baggett firing to conform with the

evidence. Pitts's counsel failed to object to most of the

prosecution’s questions and comments regarding omissions in Pitts's

post-arrest statement.

The jury convicted Pitts of manslaughter, and he was sentenced

to 20 years imprisonment. On direct appeal, the Mississippi

Supreme Court affirmed Pitts's sentence and conviction. Pitts's

counsel did not raise the Doyle issue on direct appeal. Pitts then

filed a state habeas corpus petition, arguing for the first time

that the prosecutor's statements regarding his post-Miranda silence

violated Doyle. The Mississippi Supreme Court denied Pitts's

petition, holding that Pitts's habeas claims were "barred from

4 consideration by Miss.Code Ann. § 99-39-213 and fail to present a

substantial showing of the denial of a state or federal right as

required by Miss.Code Ann. § 99-39-27."4

Pitts then filed a federal petition for writ of habeas corpus.

In his report and recommendation, the magistrate judge, concluding

that the prosecutor impeached Pitts on his post-Miranda statements,

rather than on his silence, recommended that Pitts's petition be

denied. The district court adopted the magistrate judge's report

and recommendation and added that even if there was Doyle error, it

did not justify habeas relief because it did not influence the

jury's verdict. See Brecht v. Abrahamson,

,

,

(1993) (announcing standard of

review of Doyle error in habeas cases). Pitts timely appealed.

II.

A.

3 Section 99-39-21(1) provides that:

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver. 4 Section 99-39-27(5) provides, in relevant part, that:

Unless it appears from the face of the application ... that the claims presented by such are not procedurally barred under section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application.

5 Before addressing the putative Doyle violation, we must

consider the state's argument that Pitts’s petition was properly

dismissed because of a procedural default. We review the district

court's denial of federal habeas relief based on a state procedural

ground de novo. Livingston v. Johnson,

(5th

Cir. 1997); Amos v. Scott,

(5th Cir. 1995). As

described above, Pitts's attorneys failed to object at trial to the

prosecutor's questions and comments and failed to raise his Doyle

argument on direct appeal. Under the procedural default doctrine,

a federal court may not consider a state prisoner's federal habeas

claim when the state based its rejection of that claim on an

adequate and independent state ground. See Coleman v. Thompson,

,

,

(1991);

Martin v. Maxey,

(5th Cir. 1996).

Where, as here, a state court clearly and expressly states

that its judgment rests on a state procedural bar, a presumption

arises that the state court decision rests on independent and

adequate state law grounds. See Harris v. Reed,

,

,

(1989); Martin,

. A defendant may rebut this presumption by establishing that

the procedural rule is not strictly or regularly followed by the

state courts. See Moore v. Roberts,

(5th

Cir. 1996), cert. denied, --- U.S. ----,

,

(1997). Pitts, however, does not argue that § 99-39-21(1) is

not strictly or regularly applied, and he therefore fails to rebut

the presumption.

6 Nonetheless, Pitts may still prevail by demonstrating (1)

cause for the procedural default and actual prejudice as a result

of the alleged violation of federal law or (2) that failure to

consider his claims will result in a fundamental miscarriage of

justice. See Coleman,

,

. Pitts

attempts to demonstrate cause by arguing that his attorney's

failure to object and raise the Doyle issue on appeal constituted

ineffective assistance of counsel. See Coleman,

-

54,

("Attorney error that constitutes

ineffective assistance of counsel is cause.").

To establish ineffective assistance of counsel, Pitts must

show that (1) his counsel's performance was deficient and (2) the

deficient performance prejudiced his defense. See Strickland v.

Washington,

,

,

(1984). In determining whether an attorney's performance is

deficient, "a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action

might be considered sound trial strategy."

,

(internal quotation omitted). "Our scrutiny of counsel's

performance [is] "highly deferential,' and we must make every

effort "to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct, and

to evaluate the conduct from counsel's perspective at the time.' "

Motley v. Collins,

(5th Cir.) (quoting

7 Strickland,

,

), cert. denied,

,

,

(1994). If, and only if,

"we adjudge counsel's performance to have been deficient, then we

must determine whether there exists a reasonable probability that

but for the complained-of error the outcome of the trial or appeal

would have been different." Sharp v. Johnson,

, 286 n.

9 (5th Cir. 1997).

For reasons that follow, we conclude that the prosecutor's

questions and comments did not violate Doyle and, accordingly, that

Pitts's attorney was not deficient in failing to object to the

comments and to raise the Doyle issue on appeal. See Turner v.

Johnson,

(5th Cir. 1997).

B.

In Doyle, the Supreme Court held that a prosecutor's use of

a defendant's post-arrest, post-Miranda silence for impeachment

violated due process. As subsequent cases have made clear, Doyle

forbids the government's exploitation of silence after the

government has helped induce that silence by informing a defendant

of his right to remain silent. Jenkins v. Anderson,

,

,

(1980) (Pre-arrest silence

may be used for impeachment because "no governmental action induced

[the defendant] to remain silent before arrest"); Fletcher v.

Weir,

,

,

(1982) (per curiam) (Post-arrest statements made before Miranda

warnings are given may be subject to prosecutorial comment).

In Anderson v. Charles,

,

,

8 2182,

(1980) (per curiam), the Supreme Court

explained that when a defendant makes a post-Miranda statement that

is inconsistent with his testimony at trial, Doyle does not bar

impeachment based on the prior inconsistent statements. The Court

reasoned:

Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.

(emphasis added).

However, Charles does not mean that anytime a defendant makes

a post-Miranda statement the prosecution has carte blanche to use

the defendant's silence to impeach him. See, e.g., United States

v. Laury,

(5th Cir. 1993) ("That [the

defendant] did not remain completely silent following his arrest

did not give the prosecutor unbridled freedom to impeach [him] by

commenting on what he did not say following his arrest."). Where

prosecutorial comments are "designed to draw meaning from silence,"

Charles,

,

, they remain subject to

the rule in Doyle. In other words, prosecutorial statements that

are either intended to or have the necessary effect of raising a

negative inference simply because of the defendant's exercise of

his right to remain silent are prohibited. However, where a

prosecutor's questions and comments are aimed at eliciting an

explanation for an arguably prior inconsistent statement, no Doyle

violation occurs.

9 While this distinction may at times be subtle, see Smith v.

Cadagin,

(7th Cir. 1990) ("Certainly there is a

fine line between impeachment by showing a curious incompleteness

in a suspect's story and impeachment from silence.") (quoting

Phelps v. Duckworth,

(7th Cir. 1985) (en banc)

(Easterbrook, J., concurring)), evaluating the prosecutor's

comments in the context of the entire record resolves most cases.

As we have previously explained:

The alternative tests for determining whether a prosecutor's or witness's remarks constitute comment on a defendant's silence are whether the "manifest intent" was to comment on the defendant's silence or, alternatively, whether the character of the remark was such that the jury would "naturally and necessarily" construe it as a comment on the defendant's silence. Both the intent of the prosecutor and the character of the remarks are determined by reviewing the context in which they occur, and the burden of proving such intent is on the defendant.

United States v. Shaw,

(5th Cir. 1983), cert.

denied,

,

,

(1984)

(quoted in Laury,

).

Our Circuit has had few occasions to address the application

of Doyle to cases in which a defendant's post-arrest and trial

statements, while not impossible to reconcile, are arguably

inconsistent. In fact, only one opinion of this court, United

States v. Laury, is even analogous to the present scenario. In

Laury, the defendant was arrested for bank robbery. At the time of

his arrest and after being read his Miranda rights, Laury made a

statement to the police in which he admitted making numerous large

cash expenditures shortly after the date of the robbery but stated

that he obtained the money for the purchases from two jobs, his

10 girlfriend, and his girlfriend's grandmother. At trial, Laury

asserted for the first time, as did three alibi witnesses, that he

was out of town attending a cousin's birthday party on the date of

the robbery. On cross-examination and in closing argument, the

prosecutor made much of the fact that Laury had not included the

new alibi information in his original statement to the police. In

holding that the prosecutor's comments violated Doyle, we reasoned

that because Laury's testimony at trial dealt with subject

matter—his whereabouts at the time of the robbery—not addressed in

his post-arrest statement, "nothing [he] told the FBI agents was

inconsistent with his trial testimony that he was at a birthday

party on the date of the bank robbery."

. Because

there was no inconsistency, we viewed the prosecutor's remarks as

comments on Laury's post-arrest silence in violation of Doyle.

.

While instructive, Laury does not control this case. Laury

establishes that where a defendant's testimony at trial deals with

subject matter not addressed in his post-arrest statement, there

can be no inconsistency between the statements and, therefore,

Charles is inapplicable. Stated differently, where a defendant's

testimony at trial does not deal with the same subject matter as

his pre-trial statement, a prosecutor's remarks on omissions in the

pre-trial statement is considered a plea for the jury to infer

guilt or other negative inferences from the defendant's exercise of

his Fifth Amendment rights. In essence, this is the necessary

corollary to the Supreme Court's pronouncement in Charles that

11 "[a]s to the subject matter of his statements, the defendant has

not remained silent at all." 447 U.S. at 408, 100 S.Ct. at 2182

(emphasis added).

In the present case, however, Pitts' post-arrest and trial

statements concerned the same subject matter—the events leading up

to the shooting. The question we must decide is whether Pitts's

statement post-arrest—the victim "come out on me with a gun"—is

sufficiently inconsistent with his trial testimony—Smithinger shook

the rifle and the shooting was accidental—to conclude that the

prosecutor's comments were designed and had the effect of

highlighting the arguable inconsistency, rather than commenting on

Pitts's exercise of his right to remain silent.

Most courts to address similar issues have held that where

post-arrest and trial statements involve the same subject matter

and where the post-arrest statement is sufficiently incomplete as

to be "arguably inconsistent," i.e. where the implications of the

statements, if not their language, suggests they may be

inconsistent, Charles applies and comment upon the omissions is

permitted.

For example, in Smith v. Cadagin,

(7th Cir. 1990),

the Seventh Circuit determined prosecutorial comment on a

defendant's omission in his post-arrest statement did not violate

Doyle. There, a defendant, charged with unlawful restraint and

intimidation arising from an incident in which he attempted to

force a woman to accompany him at gunpoint, made a post-arrest

statement that the situation "got out of hand." He then testified

12 for the first time at trial that his actions were meant as a

"practical joke." The prosecutor cross-examined the defendant and

commented during closing argument concerning his failure to tell

the police that his actions were meant as a practical joke. The

court reasoned that there was no Doyle violation because the

defendant "voluntarily commented upon his participation in the

incident and quite gratuitously characterized the event as one that

"got out of hand.' At trial, he returned to the same "subject

matter' ... and used another verbalization to characterize his

acts—a "practical joke.' "

. Consequently, "[t]he

prosecutor's cross-examination was limited to the defendant's

earlier description of the encounter and was not ... an attempt to

exploit the defendant's silence—the gravamen of the error condemned

in Doyle."

The Ninth Circuit reasoned similarly in United States v.

Makhlouta,

(9th Cir. 1986). There, the court found no

Doyle error where a defendant stated post-arrest that he

distributed cocaine in part because he had not anticipated being

detected and at trial claimed for the first time that he had been

entrapped. Noting Charles's observation that " "[a]s to the

subject matter of his statements, the defendant has not remained

silent at all,' " the court concluded that both statements "address

the subject matter of why he sold heroin" and were arguably

inconsistent.

at 1404 (quoting Charles,

,

). The court further explained that "once a defendant

makes post-arrest statements that "may arguably be inconsistent

13 with the trial story,' he has raised a question of credibility.

The government, to provide all relevant evidence bearing on

credibility, "may probe all post-arrest statements and the

surrounding circumstances under which they were made, including

defendant's failure to provide critical details.' "

(citations omitted).

Likewise, in United States v. Butler,

(D.C.Cir.), cert. denied,

,

,

(1991), a defendant charged with possession with intent to

distribute cocaine made a post-arrest statement that he obtained

the drugs from a known dealer and that he was "just getting ready

to drop it off." At trial, he testified for the first time that,

in an effort to get even with the dealer, he took the drugs and was

heading to the police station to turn them in when he was arrested.

The D.C. Circuit allowed cross-examination on why the defendant did

not include that information in his original statement to police,

explaining that "[t]he prosecutor was entitled to examine

[defendant] regarding his ambiguous, if not inconsistent, statement

to [the officer]" and that defendant's "initial omission from his

explanation of the pivotal fact ... is simply not the kind of

"silence' protected under Doyle."

.

The Eighth Circuit adopted this same approach in United States

v. Schultz,

(8th Cir. 1983). There, a defendant

charged with attempted extortion admitted post-arrest to picking up

a package of money left by a bank manager who received a

threatening phone call and then testified at trial for the first

14 time that he was in the area to meet a friend. The court held that

the prosecutor's comments on the defendant's failure to mention the

reason for his presence—to meet a friend—in his post-arrest

statement did not violate Doyle. The court reasoned that "when

[defendant] chose to testify at trial, he was subject to

cross-examination with respect to his prior, arguably inconsistent

statement concerning the same subject matter."

.

Similarly, in Grieco v. Hall,

(1st Cir. 1981), a

defendant was arrested outside a vehicle that the police had been

chasing from the scene of a robbery. Defendant made a post-arrest

statement that he did not know the owner of the getaway vehicle and

that he was a hitchhiker. At trial, he testified that he was

merely urinating behind a building next to where the vehicle

stopped. The First Circuit allowed prosecutors to inquire into why

he didn't include that information in his post-arrest statement,

holding that "once a defendant makes post-arrest statements that

may arguably be inconsistent with the trial story, inquiry into

what was not said at arrest may be designed not "to draw meaning

from silence,' but to elicit an explanation for a prior

inconsistent statement."

at 1034 (quoting Charles,

,

).

We agree with the near uniform approach of our sister

circuits and hold that where a defendant's post-arrest statement

addresses the same subject matter as his trial testimony and is

arguably inconsistent with that testimony, a prosecutor's questions

and comments designed to highlight the inconsistency do not violate

15 Doyle. Such questions are simply not designed to cause the jury to

infer guilt because of the defendant's exercise of his Fifth

Amendment rights. Rather they are intended to probe and explain

the defendant's post-arrest statement and the circumstances under

which it was made. Because a defendant has not remained silent as

to the subject matter of his post-arrest statements, Charles,

,

such questions do not use a

defendant's government-induced silence against him and, thus, do

not fall within the purview of Doyle5

Applying this standard to the present case, we conclude that

no Doyle error occurred. While Pitts's post-arrest statement that

the victim "come out on me with a gun" and his trial testimony that

Smithinger grabbed the gun and the shooting was an accident are not

necessarily inconsistent, they do concern the same subject matter

and their implications are arguably inconsistent: Pitts's

statement that the victim came out with a gun suggests the shooting

may have been in self-defense, while his trial testimony suggests

the shooting was accidental. Because the statements concern the

same subject matter and are arguably inconsistent, the prosecutor's

questions and comments regarding Pitts's failure to include facts

supporting the accidental nature of the shooting in his post-arrest

5 Brecht v. Abrahamson,

,

,

(1993) is not to the contrary. The issue in Brecht was the standard for determining harmless error for a "Doyle " error on collateral review. The Supreme Court had no difficulty finding Doyle error because the petitioner made no statement after he was given his Miranda warnings and the prosecutor called this fact to the jury's attention. The court concluded, however, that the error was harmless because it did not "substantially influence" the jury's verdict.

16 statement do not violate Doyle. Pitts waived his right to remain

silent as to the subject matter of his post-arrest statement, and

the prosecutor's comments can fairly be described as designed to

highlight the arguable inconsistency between Pitts's statements,

rather than drawing some inference from his exercise of his Fifth

Amendment rights.

III.

Because the prosecutor's comments did not violate Doyle, Pitts

has failed to demonstrate ineffective assistance of counsel or

other cause for his failure to object to the prosecutor's comments

in a timely fashion. Accordingly, Pitts's application for federal

habeas relief is barred by the procedural default rule, and the

district court's judgment denying his habeas petition is AFFIRMED.

AFFIRMED.

DeMOSS, Circuit Judge, Specially Concurring:

I agree with the majority that we should affirm the judgment

of the district court which denied habeas relief. However, I agree

for reasons which are different from those expressed by the

majority.

In my view, this case is controlled by the Supreme Court's

decision in Brecht v. Abrahamson,

,

,

(1993), both as to whether a Doyle1 error occurred in

Pitts' trial, and as to whether the occurrence of such error

justified reversal of the state conviction on collateral review by

1 Doyle v. Ohio,

,

,

(1976).

17 the federal courts under habeas corpus.

The circumstances involved in the instant case and in Brecht

are strikingly similar. Both cases involve state prosecutions for

murder in which the defendant took the stand at trial and testified

as to circumstances which he claimed show that the shooting was

accidental. In both cases, the defendant more or less admitted

firing the fatal shots. In both cases, there was significant

testimony as to the defendants' actions (after the shooting, but

before arrest), which tended to contradict their respective claims

of accident. In both cases, on cross-examination, the prosecutor

asked the defendant whether he had told the arresting officer, or

anyone else, anything about the accidental circumstances which he

now claimed at trial. Additionally, in Pitts' case, the prosecutor

asked the arresting officer on direct examination whether Pitts had

spoken about accidental circumstances.

In holding that Doyle error did occur in Brecht, the Supreme

Court drew a distinction between proof of the defendant's conduct

and statements before the time he received his Miranda2 warnings,

and proof of the defendant's conduct and statements after he

received the Miranda warnings. The Supreme Court stated:

On the other hand, the State's references to petitioner's silence after that point in time [when the Miranda warnings were given] or more generally to petitioner's failure to come forward with his version of events at any time before trial ... crossed the Doyle line. For it is conceivable that, once petitioner has been given his Miranda warning, he decided to stand on his right to remain silent because he believed his silence would not be used against him at trial.

2 Miranda v. State of Arizona,

,

,

(1966).

18 Brecht,

(internal reference omitted). In my

view, Brecht is on point. As in Brecht, the prosecutor in our case

was clearly attempting to show (during both his direct questioning

of the arresting officer and his cross-examination of Pitts) that,

following Pitts' arrest and his receipt of the Miranda warning,

Pitts did not speak about the very accidental circumstances of

which he chose to speak at trial. In my book, remaining silent and

not speaking are one and the same thing.

To circumvent Doyle and Brecht, the majority would fashion a

new rule premised upon an extension of the Supreme Court's holding

in Anderson v. Charles,

,

,

(1980) (holding that Doyle does not apply to cross-examination

that merely inquires into prior inconsistent statements). The

majority's new rule would extend the Charles holding to

circumstances when the Court can conclude that a defendant's trial

statements are "arguably inconsistent" with his prior statements.

For the following reasons, I cannot concur in this new rule:

a. Neither in Charles, nor in any later decision, has the Supreme Court recognized the concept of "arguable inconsistency."

b. Prior to this opinion, no case in the Fifth Circuit has recognized the concept of "arguable inconsistency" as a basis for applying the Charles exception to Doyle.

c. The decision of the Fifth Circuit in United States v. Laury,

(5th Cir. 1993), clearly holds that actual inconsistency between a post-arrest statement and a trial statement is essential before the prosecutor can cross-examine the defendant in regard thereto. Laury,

("Therefore, nothing Laury told the FBI agents was inconsistent with his trial testimony that he was at a party on the date of the bank robbery. The prosecutor did not comment on what Laury told FBI agents, but on what he did not tell them.")

19 d. All of the cases from other Circuits upon which the majority relies for its concept of "arguable inconsistency" were decided before the decision of the Fifth Circuit in Laury. Tellingly, Laury does not cite any of the cases upon which the majority now seeks to rely for its new rule.

e. The Supreme Court's Brecht decision (April 1993) came after the Fifth Circuit's Laury decision (March 1993), and after all of the Circuit Court decisions cited by the majority in support of its "arguable inconsistency" rule.

f. The defendant in Brecht testified at trial as to circumstances which he claimed showed that the shooting was an accident. Yet, in deciding the case, the Supreme Court did not cite, or refer to, any of the Circuit Court decisions which articulate the "arguably inconsistent" theory, upon which the majority now relies. Brecht's testimony at trial was just as "arguably inconsistent" with his prior silence as was Pitts' testimony at trial with his prior silence.

g. The concept of "arguable inconsistency" is fraught with ambiguity and borders upon being an oxymoron3. For Statement A to be inconsistent with Statement B, all or some portion of Statement A must contradict all or some portion of Statement B. If Statement B speaks to a fact or condition not mentioned in Statement A, these two statements are not inconsistent as to that fact. The holding in Charles talks of "prior inconsistent statements" not of "prior inconsistent silence." The majority's new rule would, in effect, convert Pitts' silence into a statement.

Given Laury's controlling precedent in this Circuit, and the

total absence of any recognition of the concept of "arguable

inconsistency" by the Supreme Court, I cannot concur with the

majority opinion. I do not think it is the role of this panel to

create a new rule that results in a determination that there was no

Doyle error, particularly in a case which is before us on habeas

corpus collateral review.

Obviously, if I am right and there was Doyle error in this

3 A figure of speech in which antithetical incongruous terms are combined. Webster's II New Riverside University Dictionary (1984).

20 case, we must then address the holding for which Brecht is best

known and determine whether or not Pitts sustained his burden of

showing that the Doyle error committed by the prosecutor in his

state trial "had substantial and injurious affect or influence in

determining the jury's verdict." Brecht,

,

. Upon reviewing the record as a whole, I conclude

that there is adequate admissible evidence upon which a reasonable

jury could find that the shooting was not an accident, as is

contended by Pitts.

First, and foremost, Pitts' testimony that his rifle fired

accidentally during a struggle with Pauline Smithinger (who grabbed

his rifle and attempted to take it away from him) is directly

contradicted by Smithinger's testimony. Smithinger testified that,

while she did grab the rifle, Pitts slung her away from it and the

shots came after she had turned loose of the rifle. The jury was

presented, therefore, with a credibility choice between the two

versions.

Furthermore, Pitts' actions after the shooting and before his

arrest (proof of which are clearly admissible under Brecht) could

reasonably lead the jury to conclude that the shooting was not an

accident. Pitts did not seek help, he did not summon the police

(although he had a CB radio in his truck), and he did not wait at

the scene. Instead, he went back to his camp and hid the rifle

which had fired the shot, which caused the wound that caused the

victim to bleed to death.

Consequently, I conclude that the Doyle error which did occur

21 at Pitts' trial "did not substantially influence the jury's

verdict" so as to entitle Pitts to relief. This is the same

conclusion which the trial court reached in denying Pitts any

habeas corpus relief, and I would affirm on this same basis.

22