STATE v GLADUE

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NO. 83-72A I N T E SUPREME C U T O T E STATE O F M N A A H O R F H OTN 1984 STATE O F P l a i n t i f f and Respondent, VS . D L L O GLADUE, AE E Defendant and A p p e l l a n t . Appeal from: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Cascade Honorable J o e l G.Roth, J u d g e p r e s i d i n g . Counsel of Record: For Appellant: K a r l Nagel, G r e a t F a l l s , Montana F o r Respondent : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana J. Fred Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana Submitted on b r i e f s - October 1 9 , 1983 Decided: Filed: FF8 .' 1,-;'fjfj4 February 1 6 , 1 9 8 4 Mr. Justice John C. Court. Sheehy delivered the Opinion of the Dale Leo Gladue was convicted of attempt to commit burglary, a felony, after jury trial in the District Court, Eighth Judicial District, Cascade County. He and two other defendants were charged in the szme information, but Gladue was tried separately. We reverse the conviction. On May 9, 1982, the Great Falls City Police Department received. a telephone report of a burglary taking place at Anderson Office Machines in Great Falls. The telephone call was from Dick Pike, a former deputy sheriff, who lived across the alley from the Anderson business premises. Shortly before midnight, he had been attracted by some loud banging to look out the back window of his house. Across the alley he saw a light a-nd moving shadows at the ba.ck of the Anderson business. He immediately call-ed the sheriff k office to report that he bel-ieved a burglary was in progress. While he talked on the telephone he informed the dispatcher that he saw two men walking down the alley away from the premises. A sheriff's deputy and the city police responded immediately and arrived at the scene "within minutes." Deputy Sheriff Richard Donovan arrived in his patrol car first. turned With into its police lights blinki-ng, the patrol car the alley near the Anderson business where Donovan observed "three male subjects," who began to run from him when he left his petrol car. He ordered them to halt. The one who stopped turned out to he David LaPier, one of the co-defendants here. Donovan put handcuffs on LaPier, and conducted a search, in which he found a small flashl.iqht on his person. this case. The flashlight was introduced into evidence in The other two individuals disappeared. Pike, who had reported the apparent burglary, came out of his house after the police arrived, but within a few minutes, and in looking over his premises, found the defendant, Dale Gladue, crouching behind a wood pile. Pike took him into custody, and brought him to the deputy out in the alley. In the meantime another officer, in another yard, found defendant George Owens, and he was also taken into custody. The officers investigated the Anderson business premises. They found its back door open, the door knob broken off, and the premises in darkness. In a later investigation they found two sets of footprints on the doormat at the back door entrance. The owner of the Anderson business later testified to the cost of replacing and repairing the damaged door and door jam, each apparently made of steel. The investigating officers found marks on the door jam and on the door which indicated a pry had been used to force the door open. The next day, Pike, using a dog he owned trained to do police work, located a tire iron a short dista~ce from the Anderson premises. The tire iron had no finqerprints on it, but its size and shape matched the marks made by the pry on the Anderson doorway. All three persons arrested were charged with attempt to commit burglary. felony Gladue was tried separately. At his trial an expert photographer testified that he had taken prints from the footprints found on the doormat of the Anderson business and by comparing the same, could definitely identify the shoes worn by Owens as having made one set of the footprints on the doormat. The expert could not prove that the other footprints came from Gladue's shoes, but an officer opined that the square-toed footprint found on the doormat appeared to match the square-toed shoes worn by Gladue at the time. In making his opening statement to the jury, Gladue's defense counsel stated to the jury: "Now, the defendant will testify that he was simply walking down the alley coming from the bar on Tenth Avenue South to another bar downtown where he was meeting some friends. He was dropped off on Tenth Avenue South--did not have a car--that's where he was walking. Now he wi-1-1 testify in the defense case which I am basically follows the State's. asking you to listen critically to the testimony that you are going to hear today and! to listen with an open mind awaiting to hear what the defendant has to sav, and perhaps listen with even a questioning mind ... . . ." The State put on its case against the d-efendant,calling several witnesses. or LaPier, were Neither of Gladue's co-defendants, Owens called to testify. In the defenda.ntls case-in-chief, the defendant called one witness, one Arthur Roach, but the defendant himself did not testify and there were no other witnesses. The defense rested, and the State offered no rebuttal. After settlement of instructions came the closing arguments. In the course of his argument to the jury, the deputy county attorney stated: "A second pecularity in this case is that Mr. Nagel has not proved what he set out to prove, as he stated in his opening statement. I took careful notes during the time of Mr. Nagel's opening statement, as did my co-counsel, and I have reviewed those notes prior to preparing my closing argument for you today. Mr. Nagel suggested to you that there would be no direct evidence in this case against Mr. Gladue, the defendant herein, but, of course, that is not true, ladies and gentlemen, because there was direct evidence, and Mr. Nagel also told you that the only evidence in this case would. be against other individuals, and that is n o t t r u e e i t h e r , even though t h e r e was e v i d e n c e , b o t h d i r e c t and c i r c u m s t a n t i a l , a g a i n s t Da.vid L a p i e r and George Owens, t h e r e was a l s o p l e n t y of e v i d e n c e a g a i n s t Mr. Dale Gladue i n t h i s c a s e , s o , of course, t h a t wasn't true. Finally, Mr. Nagel t o l d you t h a t t h e d e f e n d a n t would t e s t i f y t h a t he was merely wa-lking down t h e a l l e y , w e l l , t h e clefendant d i d n o t t e s t i f y a t a l l i n t h i s case, especially a s t o t h a t , and w e d o n ' t know what t h e NOW, l a d i e s and reason f o r t h a t i s . The gentlemen, we must be c a r e f u l h e r e . d e f e n d a n t i s e n t i t l e d t o b e presumed i n n o c e n t u n t i l proven g u i l t y , and t h a t presumption c a r r i e s t h r o u g h t h e e n t i r e t r i a l i n t h i s c a s e , and, of course, M r . Gladue a l s o h a s t h e r i g h t n o t t o t e s t i f y i n t h i s c a s e , and. t h a t i s h i s r i g h t , and t h a t i s a C o n s t i t u t i o n a l r i g h t , and t h a t i s a r i g h t of a l l of t h e c i t i z e n s o f t h i s c o u n t r y , and we must n o t presume a n y t h i n g merely b e c a u s e he c h o s e , o r h i s c o u n s e l chose, not t o t e s t i f y o r t a k e t h e witness s t a n d i n t h i s c a s e , s o we a r e n o t t o draw any i n £e r e n c e from t h a t ; however, M r . Nagel d i d a . s s u r e i n h i s o p e n i n g s t a t e m e n t t h a t t h e d e f e n d a n t would t e s t i f y , and he d i d n o t , s o he d i d n o t f o l l o w t h r o u g h on what h e s a i d would be h i s p r o o f . . ." No o b j e c t j - o n was made by t h e d e f e n s e c o u n s e l a t t h i s p0in.t. However, when d e f e n s e c o u n s e l wa.s making h i s c l o s i n g summation t o t h e j u r y , he s t a t e d on t h i s p o i n t : ". . . I s a i d t h a t t h e r e would be no e v i d e n c e a g a i n s t t h e d e f e n d a n t , and I s t a t e d t h a t t h e majority of t h e evidence would be a g a i n s t p e o p l e who a r e n o t on t r i a l h e r e , and t h a t i s o b v i o u s l y t r u e . The d e f e n d a n t d i d n o t t e s t i f y i n t h i s case. The d e f e n d a n t d o e s n o t need t o testify. The law s a y s t h a t t h e defend-ant h a s t h e r i g h t n o t t o t e s t i f y , and you a r e I t i s up n o t t o h o l d t h a t a g a i n s t him. t o t h e S t a t e t o c a r r y t h e burden of p r o o f , and t h e y must p r o v e , beyond a r e a s o n a b l e d o u b t e v e r y s i n g l e e l e m e n t of t h e crime. Now, t h e d e f e n d a n t d i d n o t testify. The d e f e n d a n t d i d n ' t have t o testify. He d i d n o t t e s t i f y f o r t h e p u r p o s e o f t r y i n g t o h i d e a n y t h i n g from you, b u t r a t h e r he d i d n ' t t e s t i f y b e c a u s e h e d i d n ' t need t o . The r e a s o n : The s t a t e h a s n o t c a r r i e d i t s burden of p r o o f , and t h a t ' s what I w i l l t a l k a b o u t now. . .. ." Not c o n t e n t t o l e t t h e m a t t e r r e s t , t h e d e p u t y c o u n t y a t t o r n e y i n h i s r e b u t t a l c l o s i n g argument s t a t e d a s f o l l o w s : ". . . L e t me b e g i n by j u s t g o i n g t h r o u g h and numbering and l i s t i n g f o r you t h e c o n c e s s i o n s t h a t M r . Nagel made when he was up h e r e g i v i n g h i s f i n a l argument t o you. H e conceded, f i r s t of a l l , t h a t h e d i d t e l l you t h a t M r . Gladue, t h e d e f e n d a n t , would t e s t i f y , and t h a t h e d i d n o t t e s t i f y , and M r . Nagel s a y s t h a t h e d i d n o t do s o b e c a u s e i t was n o t n e c e s s a r y I am n o t g o i n g t o f o r him t o t e s t i f y . comment beyond t h a t , o t h e r t h a n t o remind you t h a t M r . Magel d i d n o t f u l f i l l h i s a s s u r a n c e t o you i n h i s o p e n i n g , and h e a l s o d i d n ' t f u l f i l l h i s a s s u r a n c e t o you i n r e g a r d t o what e l s e h e would p r o v e i n t h e case. . ." The d e f e n d a n t was found g u i l t y by t h e j u r y and t h e c o u r t eventually entered judgment of conviction a g a i n s t him and s e n t e n c e d him t o f i v e y e a r s i n p r i s o n w i t h a l l b u t s i x months of t h a t s e n t e n c e suspended. On a p p e a l Gladue r a i s e s t h e f o l l o w i n g i s s u e s f o r r e v i e w : 1. Was t h e r e s u f f i c i e n t e v i d e n c e t o s u p p o r t t h e j u r y verdict? 2. Did the State violate Gladue's Fifth Amendment r i g h t s by commenting i n i t s c l o s i n g arguments on h i s f a i l u r e to testify? We counsel will on discuss Gladue's first not the taking issue the of the witness comments stand in by his defense. There can be no d o u b t t h a t t h e comments by t h e p r o s e c u tor about the defendant not T h a t i s conceded by t h e S t a t e . taking the s t a n d were e r r o r . The e r r o r was p r o b a b l y com- pounded by t h e remarlcs made by t h e d e f e n s e c o u n s e l who a l s o r e f e r r e d t o it i n h i s c l o s i n g statement. however, The f a c t r e m a i n s , t h a t t h e comments were i n i t i a t e d by t h e p r o s e c u t o r and were used by him a.gain i n h i s c l o s i n g summa.tion. In effect, the prosecutor solemnized "the silence of the accused into evidence against him." Griffin v. California (19651, 380 U.S. 609 at 614, 85 S.Ct. 1229, 14 L.Ed.2d 106. The brief submitted by the State in this case states that it cannot argue that the prosecutor's intent was not to comment adversely on the defendant's silence. The State does contend, however, that error notwithstanding, it was not prejudicial to the defendant. The State contends that the prosecutor's comments added nothing to the impression that was a-lready created by Gladue's failure to testify after the jury had been promised by his lawyer that he would take the stand. The State also contends that no relief should be granted because defense counsel offered no objection to the prejudicial comments at the trial. The State's contention that the prosecutor's remarks cannot be prejudicial requires us to examine the cases bearing on such prosecutor's comments so that we may draw the necessary legal conclusions therefrom. In Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d aside a 106, the United States Supreme Court set judcpent of conviction holding that the federal constitution "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." 380 U.S. at 615. In Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, the United States Supreme Court considered the additional question, whether when such remarks are made by a prosecutor so as to cause constitutional error, se it must adopt a per - rule, that such error automatically required a reversal. The Chapman Court adopted the position that it would not adopt a per - rule, and that instead it se would look at such cases where error occurred and determine, "tha.t before a federal constitutional error can be held. harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. at 24. In Chapman, the United States Supreme Court found that the stat.e prosecutor's argument and continuously and the trial judge's repeatedly impressed the instructions jury that the silence of the defendant had served as an irrefutable witness against himself. 386 U.S. at 25. Therefore, it found tha.t the error was not harmless and reversed the conviction. The State in this case, however, relies on Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973. The facts in Lockett parallel to some extent the facts in Gladue. We determine that Lockett does not control this case, but it is necessary for us to discuss the case to show why. Lockett had been convicted in a felony murder case, and she was sentenced to death. The sta.tement of facts in the case shows that: ". . . In the course of the defense presentation, Lockett's counsel informed the court, in the presence of the jury, that he believed Lockett was to be the next witness and requested a short recess. After the recess, Lockett's counsel told the judge that Lockett wished to testify but h a d decided to accept her mother's advice to remain silent, despite her counsel's warninq that, if she followed that advice, she would have no defense except the cross-exzmination of the state's witnesses. Thus, the defense did not introduce any evidence to rebut the prosecutor's case." 438 U.S. at 592-93. Nothing further appears in the opinion as to what the prosecutor stated in his summation except the language of Chief Justice Burger as follows: "At the outset, we address Lockett's various challenges to the validity of her conviction. Her first contention is that the prosecutor's repeated references in his closing remarks to the State's evidence as 'unrefuted' a.nd 'uncontradicted' constituted a comment on her failure on her part to testify and violated her Fifth and Fourteenth Amendment rights. See, Griffin v. California (giving citation) We conclude, however, that the prosecutor's closing comments in this case did not violate constitutional prohibitions. Lockett ' s own counsel had clearly focused the jury's attention on her silence, first by outlining her contemplated defense in his opening statement, and, second, by stating to the court and jury n.ear the cl-ose of the case, that L,ockett would be the "next witness. " When viewed asainst this background, it seems clear that the prosecutor's closing remarks added nothing to the impression that had already been created by Lockett's refusal to testify after the jury had been promised a defense by her lawyer a.nd told that Lockett would take the stand." 438 U.S. at 594-95. . It is clear to us from the language used by the United States Supreme Court in Lockett, that the prosecutor did not comment on the failure of the defendant to take the witness stand, but rather commented on unrefuted uncontroverted testimony of the State's case. evidence and We have al- ready held in this state that it is not a comment by a prosecutor on the d.efendantrsfailure to take the stand when the prosecutor, in summation, emphasizes the strength of the case the State has presented. State v. Armstrong (1976), 170 Mont. 256, 552 P.2d 616; State v. Dolan (Mont. 1980), 620 P.2d 355, 37 St.Rep. 1860. We have approved in those cases statements by the county attorney which argue that there is "no evidence," or "no testimony" to rebut the inferences raised by the state's evidence, and we have held that this does not constitute a comment on the failure of the defendant, to testify. Since we find no comfort for the State in the Lockett case, we return to Chapman to consider a.gain the test there imposed on us whether we can declare a belief that the remarks of the prosecutor were harmless beyond a reasonable doubt. We note parenthetically that Chapman held. that the harmless error rule becomes a federal question when it involves a claimed denial of rights guaranteed against invasion by the Fifth and Fourteenth Amendments to the United States Constitution. Chapman, supra, 386 U.S. at 21. The State's case against Gladue is based upon circumstantial evidence. It is not iron-clad. The eye-witness to the attempted burglary, Pike, looking from his home across the alley, discerned a flashlight and moving shadows. He reported to the dispatcher that he saw two persons walking down the alley. When the police officer turned into the alley with his patrol car, he spotted three persons walking down the alley. pile. Later, Gladue was apprehended behind a wood The footprint expert coul-d not prove that the foot- prints found on the doormat were those of Gladue, although he and another police officer testified that they "appeared" to he Gladue's footprints. Gladue appeared to be in fl.j.ght at the time of his apprehension. On the other hand, the tire iron found near the scene, and. which matched the pry marks, was not connected with any of the defendants, but especially Gladue. No fingerprints were on the tire iron. The flash- light was found on LaPier, and one set of footprints on the doormat were those of Owens. From the evidence, it appears undoubted that Gladue was at the scene of the attempted burglary. Whether he participated in the attempted burglary may be open to question. He did not testify, and his two co-defendants could not be compel-led to testify. that background, the comments of Against the prosecutor on his failure to testify loom larger in proportion and point to his guilt. As a Court, therefore, we are unable to say beyond a reasonable doubt that the prosecutor's comments did contribute to the guilty verdict against Gladue. not On that basis, we must reverse. There is indeed another significant fa.ctor in considering this kind of prejudicial error that was touched upon in People v. Ross (Cal. 1967), 429 P.2d 606. interesting situation. Ross presents an The prosecutor commented on the failure of the defendant to take the stand, and the trial court instructed the jury in much the same manner as was done in Chapman. In considering whether prejudicial error had occurred, the majority of the California ccurt pointed out that without the testimony of the defendant, there were two possibilities th2.t the jury might consider: the defendant was guilty or the defendant had innocently gotten into a get-away car used in a robbery, in which the proceeds of the robbery were contained, and that the defendant's flight from the pol-ice, and the presence of the defendant in the robbery car were purely fortuitous. The majority of the California court decided. that "given the fact that the defendant fled from the police and fired at them with a sawed-off shotgun similar to that used in the course of the robbery" the two possibilities evaporated into the inherently leaving no gap in the prosecution's case. The majority affirmed the decision. incredible, 429 P. 2d. at 614. However, Chief Justice Traynor dissented, pointing out that under Chapman, more was required than simply determining whether under the evidence the error is harmless. Justice Tra.ynor stated: . . ". it (Chapman) expressly rejected this court's reliance on overwhelming evidence to establish harmless error, a. rejection that can he explained only on the theory that a substantial error that might have contributed to the result cannot be deemed harmless regardless of how clearly it appears that the jury would have reach-ed the same result by an error-free route had the erroneous route been denied it. Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial. part of the prosecution1s case may have played a substantial part in the jury's deliberation and thus contributed to the a.ctua1 verdict reached, for the jury may have reached its verdict because of the error without considlering other reasons untainted hy error that would have supported the same result. (Citing cases.) "In the present case, as i n Cha.pman, the . comments and instruction on defendant's silence constituted a substantial part of It served to the prosecution's case. make defendant a witness against himself by using his silence to stifle the doubts that might have been engendered by the inconsistencies in the prosecution's case. (Citing Griffin). It denied defendant a substantial risht, for it served to deprive him oi his only defense. Under these circumstances the Attorney General has not established beyond a reasonable doubt that the verdict would have been the same in the absence of error. ." 429 P.2d at 621-22. . A writ of certiorari was issued by the United States Supreme Court in People v. ROSS (19681, 391 U.S. S.Ct. 1850, 20 L.Ed.2d the decision 470, 88 750, and per curiam, without argument, in Ross was reversed by the United States Supreme Court, in effect sustaining the position taken by the dissenter, Chief Justice Traynor. Eecause we determine that we cannot say beyond a reasonable doubt that the prosecutor's comments in this case did not contribute to the verdict against Gladue, and because the error may have played a substantial. part in the jury's deliberation and thus contributed to the actual verdict reached, we reverse the conviction of Gladue. We Concur: Chief Jugti& Justices Mr. Justice L.C. Gulbrandson dissenting. I respectfully dissent. In my view, the prosecutor's statements made during final argument were not so prejudicial as to require reversal. The prosecutor clearly advised the jury that it was the defendant's constitutional right to not testify, even though defense counsel, in his opening statement, had requested that the jury "listen with an open mind awaiting what the defendant has to say." Defense counsel made no objection to the prosecutor's statements, and, in fact, he made three separate references in his closing argument that the defendant had not testified. The fact that no objections were made, no motion for a mistrial was made, and no attempt was made to use this conduct as the basis for a motion for new trial, would seem to indicate that defense counsel did not consider the comments prejudicial prior to the jury returning a verdict of guilty and immediately thereafter. I would hold that, under Lockett, the effect of the prosecutor's comments was, at most, cumulative, and

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