Evans

I concur with my colleagues’ affirmance of the judgment entered against the defendant. However, I disagree with their rationale. In my view, the fact that the defendant first introduced evidence concerning his choice not to speak to the police after being informed of his Miranda *373 (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) rights makes a Doyle (Doyle v. Ohio (1976) 426 U.S. 610 [ 49 L.Ed.2d 91 , 96 S.Ct. 2240 ]) analysis unnecessary. Moreover, even if Doyle were relevant to our inquiry, I do not believe that the facts of this case constitute a Doyle violation.

In Doyle, two defendants (Doyle and Wood) were convicted in separate state trials of selling marijuana to an informant. At their trials, Doyle and Wood had told “not entirely implausible” exculpatory stories, and little “direct evidence” was introduced to contradict them. (Doyle v. Ohio, supra, 426 U.S. at p. 613 [ 49 L.Ed.2d at p. 95 ].) The prosecutor was permitted, over repeated defense objections, to ask whether or not Doyle and Wood told their stories to the arresting agent (Beamer) when they were arrested. (Id., at pp. 613-615 [49 L.Ed.2d at pp. 95-96].)

The…

Doyle v. Ohio (1976) 426 U.S. 610 [ 49 L.Ed.2d 91 , 96 S.Ct. 2240 ] holds that once an arrestee chooses to remain silent after being admonished pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], the prosecution cannot use the fact of that silence to impeach an exculpatory story told for the first time at trial. The primary issue presented is whether Doyle is violated when a single question is posed and a defense objection thereto is overruled. We hold that in such circumstances a Doyle violation has occurred.

Background

Ms. X. testified that in the early morning hours of October 20, 1991, she was alone and asleep in her apartment when she was awakened by a hand over her mouth and a voice telling her not to scream. She found a man on top of her, telling her to spread her legs. The man got “astride” her, fondled her breast, and touched her vaginal area. The man demanded oral copulation or sexual intercourse. Hoping to “get him off his guard,” Ms. X. agreed to orally copulate the man. He produced a condom and ordered Ms. X. to put the condom on him. After she did so, the man checked to see that the door was locked. When…

[Opinion certified for partial publication. [*] ]

OPINION

POCHE, J.

Doyle v. Ohio (1976) 426 U.S. 610 [ 49 L.Ed.2d 91 , 96 S.Ct. 2240 ] holds that once an arrestee chooses to remain silent after being admonished pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], the prosecution cannot use the fact of that silence to impeach an exculpatory story told for the first time at trial. The primary issue presented is whether Doyle is violated when a single question is posed and a defense objection thereto is overruled. We hold that in such circumstances a Doyle violation has occurred.

Ms. X. testified that in the early morning hours of October 20, 1991, she was alone and asleep in her apartment when she was awakened by a hand over her mouth and a voice telling her not to scream. She found a man on top of her, telling her to spread her legs. The man got "astride" her, fondled her breast, and touched her vaginal area. The man demanded oral copulation or sexual intercourse. Hoping to "get him off his guard," Ms. X. agreed to orally copulate the man. He produced a condom and ordered Ms. X. to put the condom on him. After she did so, the…