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July 13, 1990.

FRED R. MASSEY, Appellant.

The opinion of the court was delivered by

This is a criminal action in which Fred Massey appeals from a jury conviction of the first-degree murder, K.S.A. 21-3401, of his wife, Karen. Massey was sentenced to life imprisonment.

The fact of this case, fully set forth in State v. Massey, 242 Kan. 252, 747 P.2d 802 (1987), are briefly summarized. Massey, a severe alcoholic, suffered seizures and loss of consciousness from alcohol abuse. On the day prior to Karen's death, Massey drank beer from morning until night. Massey testified that at the time of Karen's death, he and Karen were discussing afternoon plans to fire a pistol which he had retrieved from a repair shop. The next thing Massey recalled was awakening on the floor with symptoms

[247 Kan. 81]

      similar to those following a seizure. Massey saw part of Karen's face covered with blood, determined she was not breathing, and eventually left the house. The following day, Massey called the police from a motel room and told an officer he had killed his wife. Police officers found Karen lying on the bed with a spent .32 shell beneath her head.

  Massey was convicted of first-degree murder and sentenced to life imprisonment. Upon appeal, we reversed the conviction and remanded the case for new trial. 242 Kan. 252. At the new trial, Massey was again convicted of first-degree murder and sentenced to life imprisonment. Massey appeals.

  Massey first contends the State impermissibly attempted to impeach his credibility by cross-examining him about the events of his arrest. At the trial, during cross-examination, the prosecutor asked Massey the following questions:
"Q: Do you remember asking Officer Doughty or telling Officer Doughty that he should read you your rights?
"A: I believe I stated to him, `Aren't you going to read my rights?' I remember that.
"Q: You remember stating that to him. Then you went on and allowed Officer Doughty or any of the other officers to conduct their investigation, is that correct?
"A: Aloud?
"Q: Yes. They went on and conducted their investigation, that was basically the last contact you had or discussion you had?
"A: No other policeman has come and talked to me since, sir."
  In Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), the United States Supreme Court ruled it was fundamentally unfair and a violation of the Fourteenth Amendment to allow a prosecutor to impeach a criminal defendant's credibility by cross-examining him about post-arrest and post-Miranda silence. 426 U.S. at 619. The court based its conclusion upon the implicit assurance in a Miranda warning that silence will carry no penalty. 426 U.S. at 618.

  This court adopted the Doyle rule in State v. Mims, 220 Kan. 726, 730, 556 P.2d 387 (1976). There, the prosecutor asked the defendant why he did not assert his alibi defense prior to trial. In finding the prosecutor's statement constitutionally impermissible, we specifically overruled State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974); State v. Crowe, 207 Kan. 473, 486 P.2d 503

[247 Kan. 82]

      (1971); State v. Wade, 206 Kan. 347, 479 P.2d 811 (1971); State v. Schroeder, 201 Kan. 811, 443 P.2d 284 (1968); and State v. Jackson, 201 Kan. 795, 443 P.2d 279, cert. denied 394 U.S. 908 (1968), to the extent they conflict with Doyle and Mims.

  In Jenkins v. Anderson, 447 U.S. 231, 65 L.Ed.2d 86, 100 S.Ct. 2124 (1980), the defendant alleged violations of the Fifth and Fourteenth Amendments based upon the prosecutor's questions regarding the defendant's pre-arrest silence. The prosecution attempted to impeach the defendant's credibility by asserting the defendant would have spoken out if the murder had been committed in self-defense. 447 U.S. at 235. The United States Supreme Court determined, however, that use of pre-arrest silence to impeach follows the defendant's decision to testify and does not violate the Fifth Amendment. 447 U.S. at 238.

  In the case at bar, the prosecutor attempted to impeach Massey's credibility by asking him if he remembered making certain statements to the police regarding his Miranda warnings. Massey's statement was made prior to arrest and therefore prior to any Miranda warnings. We find no constitutional violation in the prosecutor's actions. Doyle and its progeny did not provide unlimited protection to the criminal defendant who testifies in his own behalf; rather, they stand for the principle that a defendant's silence induced by government action cannot be used to impeach his credibility. State v. Nott, 234 Kan. 34, 42, 669 P.2d 660 (1983). See Fletcher v. Weir, 455 U.S. 603, 71 L.Ed.2d 490, 102 S.Ct. 1309 (1982); Anderson v. Charles, 447 U.S. 404, 407-08, 65 L.Ed.2d 222, 100 S.Ct. 2180, reh. denied 448 U.S. 912 (1980). Massey has attempted to extend the Doyle rule to a situation where no government action has induced silence and in fact where silence does not exist. Massey's request for Miranda warnings made prior to an arrest does not extend Fifth and Fourteenth Amendment protection to the criminal defendant actively seeking to exercise his rights before any such protection is necessary. We find no error.

  Massey next alleges the State's use of peremptory challenges to strike all black members of the venire from the jury contravenes the constitutional guarantees under the Sixth and Fourteenth Amendments. Massey, a white male, objected at trial to the

[247 Kan. 83]

      State's use of peremptory challenges to exclude all three black persons ...

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