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Name: People v. Bowman
Case #: D057467
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/23/2011

Selective silence may be viewed as an adoptive admission after Miranda waivers and in the context of a voluntary police interview. An issue involving the right to remain silent during police questioning, pursuant to Doyle v. Ohio (1976) 426 U.S.610, 619 is forfeited on appeal by the failure to object at trial. Even if the issue had not been forfeited, it lacked merit. After a Miranda waiver, and in the context of an ongoing interview, there were three instances in which the defendant made no response when he was confronted with an inconsistency or with information that he had been identified as a robber. The prosecution introduced the officer’s testimony about Bowman’s silence and he obtained instruction on adoptive admissions. Doyle error involves the use of the defendant’s silence to impeach the defendant’s trial testimony. California extended the Doyle rule to prohibit post-Miranda silence as evidence of guilt during the prosecution’s case-in-chief. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.) The Doyle rule did not prohibit the use of selective silence as adoptive admissions. Bowman never indicated that he wanted the questioning to cease or that he wanted to invoke his right of silence after his initial waivers. He was fairly afforded an opportunity to hear, understand, and to reply in circumstances with no inference that he was relying on the right to remain silent. Both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.