United States v. Ronald Glen Shaw

Ronald Glen Shaw was convicted by a jury of five federal offenses: (1) receiving a firearm after earlier being convicted of the felony of rape and assault with intent to rape, in violation of 18 U.S.C. § 922(h); (2) first degree murder of Terrell Johnson, Jr., in violation of 18 U.S.C. § 1111; (3) carrying a firearm unlawfully and using it to kill Terrell Johnson, Jr., in violation of 18 U.S.C. § 924(c); (4) assault with intent to murder Lachelle Johnson, in violation of 18 U.S.C. § 113; and (5) carrying a firearm unlawfully and using it in the assault of Lachelle Johnson, in violation of 18 U.S.C. § 924(c). He was sentenced to life impris *375 onment plus twenty-one years. On appeal, Shaw alleges numerous errors: (1) the rifle found in his pickup truck was discovered as the result of an illegal search; (2) various statements were obtained from him in violation of his right to counsel; (3) his right to a fair trial was prejudiced by a pattern of prosecutorial misconduct, including comments on his right to remain silent, use of character evidence to prove he committed the crime in question, and improper statements during closing argument; (4) there was insufficient evidence to support the jury’s verdict of premeditated murder; (5) the trial court’s supplemental jury instructions were erroneous, and (6) counts in the indictment were multiplictous and should have been dismissed. Following an exhaustive review of the record, we conclude that Shaw’s contentions are without merit. We affirm his conviction on all counts.

FACTS

Late Christmas night, 1980, Kenneth Brinkley was driving his automobile down a secluded two-lane highway in the sparsely populated area of Mississippi known as the Natchez Trace Parkway. 1 With him in the car were his son, his flaneé, Linda Johnson, and her children, twelve-year-old Lachelle and nine-year-old Terrell Johnson. The three children were sleeping in the back seat. While passing the Ballard Creek rest area, Brinkley noticed a parked pickup truck, which appeared to be a dark-colored, red and white late model Ford with chrome trim on the side. Brinkley had seen no other vehicles on the road. Immediately after Brinkley passed the rest area, a rifle shot ripped through the car’s back seat. The bullet struck the young Johnson boy in the legs and hit his sister in the hip.

Brinkley quickly sought help in the nearby town of Mathiston, telling the local police where the shooting had taken place and describing the pickup he had seen in the Ballard Creek rest area immediately prior to the shooting. Relying on this information, three officers proceeded to the Trace Highway about a half mile north of the rest area. After waiting approximately ten or fifteen minutes they saw a late model, two-tone pickup approaching from the south at 35 to 40 miles per hour. Shaw was apprehended in the truck after a chase in which speeds exceeded 110 miles per hour. Shaw was frisked and told his vehicle fit the description of one at the scene of the shooting. He was arrested for speeding and driving while intoxicated, handcuffed, and placed in a patrol car.

After Shaw got out of the truck, one of the officers shined a light through its open door and saw four bullets on the floor on the driver’s side. Another officer then released the seat latch and folded back the driver’s seat. Behind the seat, fully cocked, was a .35 caliber rifle. Shaw was read his Miranda rights and told of the traffic charges. He made no statement to police. Shaw was then driven to the sheriff’s office in Ackerman, Mississippi. After he was again read his Miranda rights, he indicated that he wished to answer questions. Shaw told the sheriff that he had been “driving around” on the Natchez Trace Highway and stopped at “a pull-off place” because he was sick. He emphatically denied that he had fired his gun since deer hunting that afternoon.

Later that same night young Terrell Johnson died of his wounds. The next day, Friday, December 26, Shaw was questioned by FBI agents. He repeated his story that he did not load or fire his rifle after dark on Christmas Day. That night, a janitor at the hospital discovered in the hospital treatment room the bullet which had struck the two children. Saturday afternoon, December 27, FBI agents interviewed Shaw again. The agents showed Shaw the battered slug, and told him that ballistic tests were going to be performed on the bullet. Shaw then stated that he would answer no more questions without having an attorney present, and the interview was terminated. Shaw’s parents were told that a ballistic report would be received by Monday morning, the 29th.

*376 Around 10:30 a.m. Monday, Shaw’s parents called one of the agents and said that their son wanted to talk to him. The agent responded that he could not speak to Shaw because Shaw had requested an attorney. The parents insisted, and the FBI agent went to see Shaw in person, accompanied by another agent. At this point, the ballistic report had been received. It indicated conclusively that Shaw’s rifle had been the one to fire the shot. The agents readvised Shaw of his rights. Shaw explained that he, not his parents, wanted the agents to hear the story. The agents had Shaw carefully study a written Miranda waiver, which he signed. The agents then agreed to listen to Shaw’s story. Shaw said that his earlier statement was false, that on Christmas night, he had been “headlighting deer” from the Pigeon Roost rest stop, and while walking into the woods north of the area he had slipped and fallen, causing his gun to go off as it hit the ground. He saw the car pass, and worried that he had hit it, but because the car seemed to be proceeding normally, he assumed that it had not been hit. He then went back to his truck, waited a few minutes, and began driving on the Trace Highway where he was stopped by the state police.

On December 30, the sheriff filed a state complaint for first degree murder of Terrell Johnson. Following appointment of counsel and a preliminary hearing on January 12,1981, Shaw was bound over to the federal grand jury, and on January 29, indicted.

At the conclusion of trial, the jury found Shaw guilty on all counts. His motions for judgments of acquittal and for a new trial were denied, and he was sentenced to imprisonment for life, plus twenty-one total years for the other offenses. This appeal follows.

I. SEARCH OF VEHICLE

A. At Time of Apprehension

Shaw’s first contention is that the district court erred in not suppressing as evidence the rifle and shells seized by the officers from his pickup during the initial stop on the night of December 25, 1980.

It is a cardinal principle of Fourth Amendment jurisprudence that searches conducted outside the judicial process of obtaining a warrant are per se unreasonable, except those conducted in a few narrowly defined situations. The exceptional situations are those in which “the societal costs of obtaining a warrant, such as danger to law officers or risk of loss or destruction of ..evidence, outweigh the interest of recourse to a neutral magistrate.” Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). Predicated on this “exigent circumstances” rationale is the so-called “automobile exception”, first articulated by the Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In Carroll, the Supreme Court held that a warrantless search of an automobile on a highway is not unreasonable within the meaning of the Fourth Amendment so long as the police have probable cause to believe that the “contents of the automobile offend against the law”. Id. at 159, 45 S.Ct. at 287.

Recently, in United States v. Edwards, 577 F.2d 883 (5th Cir.) (en banc), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978), this Court stated that probable cause to search an automobile exists when “trustworthy facts and circumstances within the officer’s personal knowledge would cause a reasonably prudent man to believe that the vehicle contains contraband.” Id. at 895. We stressed that probable cause is the “sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers.” Id., quoting Smith v. United States, 358 F.2d 833, 837 (D.C.Cir.1966), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967). Each individual layer of information is not to be weighed. Rather, the “laminated total” of the facts available is the source of the justification for a vehicle search without a warrant. United States v. Edwards, supra, 577 F.2d at 895, quoting *377 Smith v. United States, supra, 358 F.2d at 837; Doescher v. Estelle, 666 F.2d 285, 289 (5th Cir.1982).

Shaw argues that the totality of the circumstances known to the officers prior to the time the driver’s seat of the truck was pulled back and the gun was discovered did not rise to the level of reasonable belief. Examining the information known to the police prior to the search, we aggregate the critical facts. The police officers proceeded to the Natchez Trace Highway approximately 20 minutes after a reported sniper shooting had occurred near the Ballard Creek rest stop. They were relying on Mr. Brinkley’s report that he had seen a late model two-tone Ford pickup with chrome on the side and which appeared to be red and white, parked on the side of the road with its lights off, immediately before the shooting. The officers knew that the Natchez Trace is an isolated highway of limited use; large trucks are banned on the road and there is virtually no traffic on the unlit highway late at night.

Moments after reaching an area approximately 300 yards north of the site from which Brinkley said the shot had been fired, the officers observed, proceeding toward them from the direction of the Ballard Creek rest stop, a late model “brown” or “maroon and white” two-tone Ford pickup, travelling at an “unusually slow rate of speed.” 2 No other vehicle was seen on the highway. One of the policemen recognized the driver as Shaw, whom he knew had recently been released from jail on a rape conviction. The pickup rapidly accelerated and the police gave chase. Shaw stopped three miles later when the police overtook the vehicle and signalled the driver to stop. Shaw got out of the cab of the pickup at the police’s request. Through the door Shaw had left open as he exited the truck, one of the officers saw in plain view several live .35 caliber rifle shells on the floor of the truck. There is no contention that these shells were not validly seized. 3 Whether the “sum total” of these “layers of information” to this point justified an actual search of the truck is the question before us. 4

Shaw contends that because the truck he was driving was dark brown and beige, rather than the red and white described by Brinkley and Mrs. Johnson, that the police necessarily lacked the probable cause on which to predicate the search. We must disagree. Photographs of the truck reveal it to be a brown color, close to maroon in tone. One of the officers at trial, when asked to relate the color of the truck, described it as “dark red or maroon.” Certainly this truck, illuminated by headlights on an otherwise dark highway, would reasonably be within the range of Mr. Brinkley’s description.

Shaw relies heavily on Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). In that case, someone in a passing car had fired shots at the house of a non-striker during a labor dispute. A witness called police and described only a “kinda (sic) old make, model car”. Shortly thereafter, the police observed a “suspicious” car, into *378 which a shot had been recently fired, which then sped away. The police had not been informed that the car in question had been hit by a bullet. The police pursued the car, the driver was arrested for reckless driving, and the car was searched without a warrant after it was taken to the police station. The Supreme Court reversed the defendants’ convictions and ruled that no probable cause existed to justify the warrantless search. In Dyke, the sum total of information available to the police was a description from a witness of an older model car, and the fact that the car they observed had sped up when pursued.

A recent decision of this Court is more directly analogous to the instant case than is Dyke. In United States v. Edwards, 577 F.2d 883 (5th Cir.) (en banc), cert, denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978), a defendant charged with possession of stolen mail was initially stopped by police for driving without a valid license. Prior to the stop, the police had been told that a person meeting the defendant’s description had earlier been seen conversing with a woman suspected of stealing welfare checks from private mailboxes. When the defendant was first approached for questioning, he “acted suspiciously” and leaned down as if to hide something on the floor under the seat. At this point, the Court said, probable cause to search the car did not exist. The officers’ “suspicions” were held to have “ripened into probable cause”, however, when they saw several identification cards containing pictures of the suspected woman under different names. The cards were lying on the seat in plain view. Id. at 895-96.

There was a similar ripening here. The officers were informed there had been a sniper shooting on the Natchez Trace Highway. They saw a vehicle which closely matched the description given on the otherwise deserted highway. The driver of the vehicle initially drove off at high speed when the police presence became obvious. Finally, several live rifle shells were seen lying on the floor of the truck in plain view. The “laminated total” of facts within the knowledge of the police clearly was sufficient to warrant “men of reasonable caution”, Carroll v. United States, supra 267 U.S. at 162, 45 S.Ct. at 288, to conclude that there was probable cause to believe that the pickup contained some evidence of the shooting. To hold otherwise would not serve the purposes of the Fourth Amendment, but rather would undermine its ultimate standard of reasonableness. See Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). This was no haphazard or discriminatory stop. We find that the district court correctly ruled that the police had probable cause to believe Shaw’s truck contained evidence of the crime, and we uphold denial of Shaw’s motion to suppress. 5

B. After Impoundment

Shaw also argues that a search of his pickup on the morning of December 26, after the vehicle had been impounded, was improper. In this search, the sheriff seized one live round of ammunition, as well as napkins, beer cans and tangerine peels, which he wished to compare with similar items found earlier at Ballard Creek. Shaw claims that the exigent circumstances to justify the warrantless search of an auto under Carroll no longer existed once police had impounded his vehicle.

*379 While Carroll may initially have been interpreted to limit a finding of inherent exigency to situations in which a car is stopped on a public highway, later decisions by the Supreme Court have abandoned such a limitation. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Supreme Court held that police officers may conduct a warrantless search of a vehicle, even after it has been impounded, if there is probable cause to believe there is contraband inside the vehicle that had earlier been lawfully stopped on the road. Accord, Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209 (1975). In Michigan v. Thomas, — U.S. —, 102 5. Ct. 3079, 73 L.Ed.2d 750 (1982), the Supreme Court summarily reversed the suppression of evidence found in an automobile’s air vents. The Court stated:

It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.

Id. at 3081.

This Court disposed of the same argument in United States v. Mitchell, 538 F.2d 1230 (5th Cir.1976) (en banc) cert. denied, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d 792 (1977):

[T]he contention, that by the time of the search [the vehicle] had been immobilized, exigence had passed, and a warrant could have been obtained at leisure, is foreclosed by Chambers v. Maroney and Cardwell v. Lewis [417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325]. Both of these authorities recognize that exigence is to be determined as of the time of the seizure of an automobile, not as of the time of its search; the fact that in these cases sufficient time to obtain the warrant had passed between each seizure and the corresponding search did not invalidate either.”

Id. at 1232 (citations omitted). See also United States v. McBee, 659 F.2d 1302, 1305 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982). 6

Clearly, the rationale of Chambers and its progeny is not that an automobile maintains its mobility when parked at the police station, but rather that, given the scope of the initial intrusion caused by seizure of an automobile, there is no constitutional difference between the proper search on the highway and the later search at the station. 7 In the words of the Supreme Court, “for constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting a probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable.” United States v. Ross, 456 U.S. 798, 807 n. 9, 102 S.Ct. 2157, 2163 n. 9, 72 L.Ed.2d 579 (1982), quoting Chambers, supra, 399 U.S. at 52, 90 S.Ct. at 1981.

We conclude that the critical evidence obtained by the two searches of Shaw’s vehicle was properly acquired. Shaw’s Fourth Amendment rights were not violated.

II. Bight to Counsel

Shaw next claims that the statement made by him to the FBI on Monday, December 29, was obtained in violation of his Sixth Amendment right to counsel. The statement made on the 29th contradicted *380 two earlier statements to police in which he denied having fired his gun on the night the child was killed. On the 29th, Shaw admitted that he had fired the shot that killed the child, but told the FBI agents that the shooting had occurred accidentally while he was “headlighting” deer.

A person comes under the protection of the Sixth Amendment’s right to counsel at the time adversary judicial proceedings are initiated against him, “whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). Shaw makes lengthy arguments that the “prosecutorial forces” of the state had solidified against him so as to trigger Sixth Amendment protection at the time the county sheriff filed an affidavit charging him with murder under state law.

We note initially that Shaw predicates his claim on the Sixth, rather than the Fifth Amendment. Because “the policies underlying the two constitutional protections are quite distinct”, Rhode Island v. Innis, 446 U.S. 291, 300 n. 4, 100 S.Ct. 1682, 1689 n. 4, 64 L.Ed.2d 297 (1980), Shaw is correct in arguing that a suspect may waive his Fifth Amendment right to the advice of counsel in deciding to remain silent without waiving his Sixth Amendment right to counsel. In determining whether the individual has been coerced to give evidence against himself, waiver will be examined within the context of evaluating whether the suspect’s conduct indicates that his statements were made voluntarily. Accordingly, statements made in the absence of counsel in a conversation initiated by an accused may well not violate Fifth Amendment rights. See Edwards v. Arizona, 451 U.S. 477, 486 n. 9, 101 S.Ct. 1880, 1885 n. 9, 68 L.Ed.2d 378 (1981). Waiver of the Sixth Amendment right to legal assistance after formal adversary criminal process has begun mandates a different focus. See Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). Because a Sixth Amendment violation is not dependent upon coercion, the protection of the Sixth Amendment is not waived by conduct showing that the defendant’s statements were not coerced. The government must prove that the defendant knowingly and intelligently relinquished his right not to be questioned in the absence of counsel “after adversary proceedings had commenced.” Jordan v. Watkins, 681 F.2d 1067, 1075 (5th Cir.1982). There must be proof of “an intentional relinquishment and abandonment” of the right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

Under either a Fifth Amendment or Sixth Amendment claim, however, Shaw effectuated a valid waiver. See Brewer v. Williams, supra, 430 U.S. at 405-06, 97 S.Ct. at 1242-43. The FBI agents were reluctant to meet with Shaw in the absence of an attorney. They did so only upon the repeated requests of Shaw’s parents, who implored the federal authorities to hear their son’s story. Upon meeting with Shaw, the agents were told by Shaw that he, not his parents, was responsible for initiating the interview. They ascertained that Shaw, having been a college student, was fully capable of understanding his rights. They had Shaw carefully study a form explaining the waiver of his right to an attorney and carefully explained his right to an attorney under Miranda. Shaw signed the waiver of those rights. Although waiver of Fifth Amendment rights is not necessarily sufficient to effectuate a waiver of rights under the Sixth Amendment, Shaw was not coerced and was totally informed of a right to counsel. Shaw initiated the dialogue with police after full appraisal of his rights earlier and on that occasion as well. The totality of facts and circumstances in this case clearly support a knowing and intelligent waiver.

III. Prosecutorial Misconduct

Shaw next alleges a pattern of prosecuto-rial misconduct which cumulatively deprived him of due process.

*381 A. Comments on Silence

1. Included in this allegation of misconduct are three comments said to trench upon Shaw’s exercise of his Fifth Amendment right to silence following arrest. As we conclude later, two of the three comments of which Shaw complains are justified. We consider first the one which raises a serious question. This comment on Shaw’s silence occurred during the direct testimony of Officer Pennington, one of the state police officers involved in Shaw’s highway arrest. As the officer described the circumstances surrounding the seizure of Shaw’s rifle, the following exchange took place:

Q. Did Officer Breland make any inspection of the rifle at that time?

A. Yes, sir, I believe Officer Breland did smell the barrel on the weapon before placing it in his vehicle; yes, sir.

Q. All right, what happened next then, Officer Pennington?

A. After the rifle was placed into Officer Breland’s vehicle, I then read Ronald G. Shaw his Miranda rights, at which time he told me that he has heard those a thousand times. I advised him he would hear them a thousand and one.

After I read him the Miranda rights I asked him did he want to talk to us now and he put his head in a down position and shook it “no”, and never did say a word.

Q. And you didn’t attempt to question him further?

A. No, sir, I did not.

Shaw claims that Officer Pennington’s testimony was an impermissible comment on his silence following arrest under Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624 n. 37,16 L.Ed.2d 694 (1966). The government contends that the officer’s statement was gratuitous, merely a recitation of events, and did not constitute an invitation to the jury to infer Shaw’s guilt from the fact of his silence.

Because it is “fundamentally unfair” simultaneously to afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him, prosecutorial comment on silence for either substantive or impeachment value is constitutionally prohibited. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). The alternative tests for determining whether a prosecutor’s or witness’s remarks 8 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: United States v. Jones, 648 F.2d 215, 218 (5th Cir.1981); United States v. Fricke, 684 F.2d 1126, 1133 (5th Cir.1982). Both the intent of the prosecutor and the character of the remarks are determined by reviewing the context in which they occur, United States v. Forrest, 620 F.2d 446, 455 (5th Cir.1980), and the burden of proving such intent is on the defendant. United States v. Austin, 585 F.2d 1271, 1280 (5th Cir.1978).

In numerous cases this Court has held that mention of the fact of the defendant’s silence following arrest by the prosecutor in his case in chief is a violation of constitutional dimension. See Chapman v. United States, 547 F.2d 1240, 1245 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977) (question by prosecutor eliciting remark that the defendant said nothing following arrest constituted error); United States v. Johnson, 558 F.2d 1225, 1230 (5th Cir.1977) (testimony that the defendant expressed intent to remain silent even though coupled with words indicating her desire to cooperate was error); Alderman v. Austin, 695 F.2d 124 (5th *382 Cir.1983) (en banc) (single reference by law enforcement witness to fact that interview was terminated after the defendant stated he wished to remain silent constituted error); United States v. Sklaroff, 552 F.2d 1156, 1161 (5th Cir.1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978) (spontaneous remark by witness that defendant had not made a statement following Miranda warnings was error). The standard is strict; virtually any description of a defendant’s silence following arrest and a Miranda warning will constitute a Doyle violation. Accordingly, it appears inescapable that Pennington’s remarks, even though unsolicited and couched in narrative terms, and to which no objection was made, 9 did constitute an improper comment upon silence as envisioned in Doyle.

Such a conclusion, however, does not end our inquiry. We are free to consider whether such a violation was harmless. The Doyle violation will not lead to reversal so long as it is harmless beyond a reasonable doubt. Chapman v. United States, supra, 547 F.2d at 1248. There has been considerable confusion in this Circuit regarding the standard to apply in evaluating whether a Doyle violation is reversible error.

In Chapman, the Court attempted to reconcile previous case law by establishing categories of Doyle violations as a means of weighing the effects of the error. Chapman separated our cases into the following three categories:

(1) “When the prosecution uses defendant’s post arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant’s ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous;”

(2) “When the prosecutor does not directly tie the fact of defendant’s silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming;”

(3) “When there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error.”

Id. at 1249 (citations an