THE PEOPLE, Plaintiff and Appellant, v. ERIC FORD, Defendant and Respondent.
Crim. No. 25361
Supreme Court of California
May 19, 1988
45 Cal.3d 431
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, W. Scott Thorpe, Eddie T. Keller and Shirley A. Nelson, Deputy Attorneys General, for Plaintiff and Appellant.
Catherine Aragon, under appointment by the Supreme Court, for Defendant and Respondent.
OPINION
EAGLESON, J.—Subdivision (a) of
In this case we consider whether that statutory proscription of comment on the exercise of a privilege, or any other statute, constitutional provision, or rule precludes comment by the prosecutor on defendant‘s failure to call his former codefendants as witnesses to support his alibi defense. We consider, in particular, whether, in the absence of an actual exercise of privilege by an otherwise available potential witness, comment is precluded because the witness should be deemed to be “unavailable.”
The privilege in issue here is the privilege against self-incrimination. A jury convicted defendant of first degree burglary. (
We conclude that a witness who has not exercised his privilege against self-incrimination is not an “unavailable” witness. Absent a stipulation that
I
Defendant Ford, and his alleged accomplices Paul Bridges, Thomas Cooper, and Napoleon Elder were charged with burglary. Before defendant came to trial, Cooper and Bridges had been convicted, on their pleas of guilty, of being accessories to a felony (
About 10:15 a.m., on April 11, 1984, Christeen Martinez, was visiting her mother-in-law, Irene Martinez. Christeen observed defendant and a Black man conversing with an Hispanic man seated in a rusty green car with a white top parked across the street from the Martinez home. She noticed the three men frequently glance up and down the street as they talked. After approximately 10 minutes they drove away. Shortly thereafter, Christeen and Irene went to the nearby home of Shirley Brushia Williams, described the men and the automobile, and told her to “keep an eye on the street.”
The next day, at approximately 10 a.m., while driving home Shirley noticed a White man and a Black man walking down the street who fit the description provided by Christeen and Irene.3 Shirley continued down the street, parked in a cul-de-sac, and waited for the men to walk toward her. As she waited she observed a Black man and another man driving in a rusty green car with a white top, but did not notice the White man and the Black man she had observed earlier. Her suspicions aroused, Shirley returned home and called the sheriff‘s office. Waiting for the police to arrive, Shirley, Irene Martinez, Patricia Blair, and several other neighbors huddled on the
While the men were being questioned Patricia Blair approached the home located at 5025 Springfield, opened an unlocked gate, looked through a nearby window, and observed a stereo and other items stacked in a pile. She promptly informed Officer Carlson of her discovery. After learning that all four men had been seen in the area and that defendant and the Black man had been seen leaving the property at 5025 Springfield, Carlson arrested defendant, Bridges, Cooper and Elder.
Linda Jo Klement, the owner of the home located at 5025 Springfield, testified that several of the rooms had been ransacked and her stereo, clock radio, television, and several other items were either stacked or in pillow cases near the front door. She also noticed the front door was unlocked, the screen removed from a kitchen window, and the window was opened much wider than it had been when she left home that morning.
Defendant also testified. He denied any involvement in the burglary. He stated that after spending the morning at the apartment of his girlfriend, Jennifer Pace, he went to the home of Thomas Cooper, arriving there before 11 a.m., on April 11, 1984. Before leaving the Pace apartment he had seen Napoleon Elder at some time between 7:30 and 9 a.m. when Elder came to the door to ask if defendant wanted to run. Defendant had declined. He went to Cooper‘s house because he and Cooper had been looking for jobs and Cooper had a newspaper. He spent the day of April 11 at Cooper‘s house where he went through the newspaper looking for jobs, lifted weights, and scraped paint off his car. Defendant claimed he and Cooper left the house at one point to visit an acquaintance but otherwise remained at Cooper‘s most of the day.
Defendant described his whereabouts on April 12, 1984, as follows: Approximately 9 a.m., he arrived at Thomas Cooper‘s house, having again come from the apartment of Jennifer Pace. Napoleon Elder‘s girlfriend lived in the apartment across from that of Pace, but defendant had not seen Elder there that morning. Approximately 9:30 a.m., Paul Bridges and
Defendant‘s evidence regarding his whereabouts on April 11, thus placed him at the home of codefendant Cooper, not on Springfield Way. Not only did that testimony place him at another location, but it placed codefendant Cooper at the other location. His testimony regarding his whereabouts on April 12 again placed him and Cooper, and on this occasion, Elder, at the home of Cooper and away from the house on Springfield Way at the time the burglary was being committed.
During his closing argument the prosecutor made the comment which is the focus of this appeal: “One other thing I would submit to you that it‘s very convenient that the defendant cannot recall being on Springfield Street on April the 11th. He certainly can‘t tell you that he was there casing the area. There is just one other point that I would like to make, and that is that if the testimony is indeed true, why didn‘t he bring in Mr. Cooper, Mr. Elder?”
II
The Court of Appeal held that the mere existence of a privilege did not render Cooper and Elder unavailable as witnesses, noting that although they were charged with the same offense as defendant, they were competent witnesses who could have been called to determine if they would have exercised their privilege against self-incrimination. The Court of Appeal recognized the possibility, on which the trial court relied, that Cooper and Elder would have asserted a valid claim of privilege, but concluded that it was equally possible that, having already pled guilty to being an accessory and therefore risking no further liability, Cooper might have been willing to testify to exculpate defendant if defendant had not been involved in the burglary. The court also reasoned that because Elder had not yet pled guilty, he might have been amenable to giving testimony that confirmed that neither he nor defendant had been involved.
Defendant argues, and the dissent agrees, that whenever a witness is or was a “codefendant”5 who may exercise the privilege against self-incrimination the witness must be deemed “unavailable” and comment on defendant‘s failure to call him forbidden. We disagree. Such a rule assumes without foundation that any testimony of a codefendant would necessarily incriminate the codefendant, and fails to recognize well established principles governing exercise of the privilege.
Had Elder and Cooper been called by defendant to corroborate his alibi for April 11, their evidence presumably would have shown that Elder was at the Pace apartment at some time between 7:30 to 9 a.m. on April 11, and that Cooper was at Cooper‘s home or in the company of defendant at a location other than Springfield Way from and after 11 a.m. on April 11. Nothing in the evidence offered at trial suggests that corroborative testimony by Elder or Cooper, regarding their whereabouts on April 11 would have had a tendency to implicate them, and thus incriminate them, with respect to the April 12 burglary. Defendant does not argue that such corroborative testimony would have been incriminatory. Rather, he suggests that whenever a witness is an unsentenced codefendant who retains the privilege against self-incrimination the witness must be deemed to be “unavailable.”
We address first the assumption inherent in this argument that any assertion of the privilege against self-incrimination by a codefendant, or other witness, is an exercise of the privilege by the holder.
The privilege against self-incrimination is, of course, personal and may be asserted only by the holder. (Rogers v. United States (1951) 340 U.S. 367, 370-371; People v. Chandler (1971) 17 Cal.App.3d 798, 803.)
It is well established moreover that in order to assert the privilege against self-incrimination a witness must not only be called but must also be sworn. (Ex parte Stice (1886) 70 Cal. 51, 53; People v. Harris (1979) 93 Cal.App.3d 103, 117.) Were we to accept the proposition that a witness is “unavailable” because he might claim the privilege if called, that prerequisite to exercise of the privilege would be abandoned and the reasons for its existence ignored.
The primary reason for the requirement that the witness be called and sworn was set forth by this court more than a century ago in Ex parte Stice, supra, 70 Cal. at p. 53: “It is no answer to a refusal to be sworn that the petitioner asserted at the time as a reason for such refusal that his testimony would have a tendency to subject him to punishment for a felony. Such a privilege cannot be urged by the witness until a question is put to him after being sworn, the answer to which would have the tendency stated above. Whether the answer to such question would or might be of such tendency, the court in which the trial is proceeding must adjudge (Wharton‘s Crim. Ev., 9th ed., sec. 469), and it cannot be called on to do so in advance of the question being put. To hold that the reason stated above would justify a person called in refusing to be sworn would be to make such person, and not the court, the final judge, and exclude the court from any consideration of the matter whatever. Such is not and cannot be the law.”
It is still the law that a witness does not have an unqualified right to exercise the privilege against self-incrimination, and unless the question clearly calls for an incriminating answer the witness who has asserted the privilege bears the burden of satisfying the court that an answer would have a tendency to incriminate the witness.
In ruling on an assertion of a privilege, the court must consider the context and circumstances in which it is claimed. “‘The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence. . . . The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 340 U.S. 367 (1951), and to require him to answer if “it clearly appears to the court that he is mistaken.” Temple v. Commonwealth, 75 Va. 892, 899 (1881).‘” (Cohen v. Superior Court, supra, 173 Cal.App.2d at p. 70 [quoting Hoffman v. United States (1951) 341 U.S. 479, 486-487].)
A determination that the witness may exercise the privilege must be made, therefore, after the witness has asserted the privilege. “[B]efore a claim of privilege can be sustained, the witness should be put under oath and the party calling him be permitted to begin his interrogation. Then the witness may invoke his privilege with regard to the specific question and the court is in a position to make the decision as to whether the answer might tend to incriminate the witness.” (People v. Harris, supra, 93 Cal.App.3d at p. 117. See also, People v. Cornejo (1979) 92 Cal.App.3d 637, 657-658.)
The comments to
III
Application of these procedures in the present context—in determining whether comment is permissible—is particularly appropriate. Here, the evidence that defendant could have been expected to elicit from Cooper and Elder regarding defendant‘s whereabouts on April 11 would have established an alibi not only for defendant, but also for both witnesses. Assuming the truth of defendant‘s testimony, there is no suggestion that responding to questions designed to corroborate defendant‘s testimony would have had a tendency to incriminate Cooper or Elder. The same is true in most cases where alibi is the defense, whether or not the potential witness is charged with participation in the same crime,7 since the testimony would exculpate both.
Defendant nonetheless argues that the People should not have been permitted to comment and thereby point out the obvious—that if defendant‘s testimony were true he could be expected to call as witnesses those persons in whose company he claimed to be at the time the burglars were apparently “casing” the Springfield Way house. He thus asks the court and prosecutor to assume that his codefendants would refuse to corroborate his testimony even if they could do so without danger of self-incrimination.
A court need not and should not assume that a logical witness would refuse to give testimony that would exculpate both the witness and the defendant, however. Nor should the court assume that, even if testifying would incriminate a witness, in all cases the witness would be unwilling to give truthful testimony that would exonerate a codefendant. Requiring that the witness actually be called even when a possibly incriminating question will be put to him recognizes the possibility that he may waive the privilege. “A witness does not become incompetent to testify merely because his testimony will incriminate him. The privilege against self-
The suggestion of the dissent that when a defendant has testified under oath to facts that a witness could be expected to corroborate without incriminating himself, it is the prosecutor who bears the burden of proving the witness would not assert the privilege against self-incrimination, and therefore is “available,” turns logic on its head. The prosecutor cannot know, much less prove whether a witness would testify if asked to do so by the defendant. It is the defendant whose testimony has created the situation that makes the person a logical exculpatory witness. There is nothing unfair in requiring the defendant to bear the burden of establishing that the reason the witness was not called is that he is “unavailable” because he has exercised a privilege.
A blanket rule forbidding comment if the defendant does not do so would encourage and license perjury. The defendant would be assured that no matter how transparently perjured his testimony, there would be no burden on him to call witnesses who might be expected to corroborate it without incriminating themselves, and the prosecutor would be prohibited from commenting on his failure to call those logical witnesses. The facts of this case persuaded us that such a rule is not compelled and should not be adopted. The effort to ascertain the truth is far better served by requiring that the defendant who has offered the testimony bear the burden of establishing that the corroborating witnesses are actually “unavailable” because they hold a privilege by calling them. Then, if the privilege is claimed, its assertion can be subjected to existing procedures to determine the validity of its exercise, and the propriety of prosecutorial comment on the failure to call the witness determined objectively rather on the basis of speculation as to whether the witness is “unavailable.”
People v. Terramorse (1916) 30 Cal.App. 267, 273, the seminal case on which Klor, supra, 32 Cal.2d 658, and Wilkes, supra, 44 Cal.2d 679, relied, explained that the impropriety of comment on the failure of the defendant‘s spouse to testify lay in the defendant‘s exercise of his privilege to exclude such testimony. “In declining to consent that [defendant‘s wife] should be a witness against him the defendant was standing as strictly upon his legal rights as he would have been had he declined to be a witness himself, and he was equally entitled to the application of the rule that his declination to permit his wife to be a witness should not in any manner prejudice him or be used against him on the trial.” (See also Thompson v. Hickman (1948) 89 Cal.App.2d 356, 365-368; People v. Heacock (1909) 10 Cal.App. 450, 456-457. Accord Griffin v. California (1965) 380 U.S. 609 [comment on exercise of privilege against self-incrimination forbidden by Fourteenth Amendment].)
The rule of Klor, supra, 32 Cal.2d 658, and Wilkes, supra, 44 Cal.2d 679, therefore, is that comment upon exercise by the holder of a privilege impinges on that exercise and is forbidden. That rule is statutory (
Nor does People v. Frohner (1976) 65 Cal.App.3d 94, 108-109, support defendant. In that case the witness was “unavailable” because he could not be located. The prosecutor was aware that the defendant could not obtain the testimony of the witness. In those circumstances the prosecutor may not invite the jury to speculate that the defendant‘s failure to call the witness reflects recognition that the testimony would not be favorable to the defense. Although the evidence might support that inference, it is improper to invite a jury to draw the inference if the jury is unaware of an equally plausible inference that the witness has not been called because he cannot be located. Here, by contrast, the defendant made no showing that Cooper and Elder could not be located or were otherwise “unavailable.” An invitation by the prosecutor to speculate that the failure to call them as witnesses was because their testimony would not corroborate that of defendant was not conduct which would mislead the jury as to the reason that they were not called, and would not impinge on the exercise of a privilege by either defendant or the codefendants.
Of the out-of-state cases relied upon by defendant, only one arguably supports the blanket “unavailability” rule it enunciates. In that case, Christensen v. State (1975) 274 Md. 133, the Supreme Court of Maryland found prejudicial error in the court‘s refusal to grant defendant‘s request for an instruction that no unfavorable inference could be drawn from his failure to call a witness. Although it was conceded that defense counsel had done all that he could to locate a logical defense witness, the prosecution believed that the defendant had not provided full and complete information. No evidence had been presented to the trial court to support that belief, but the court denied the requested instruction. The prosecutor then commented during his closing argument that if the witness had been present at trial he might have helped in determining the truth, and questioned whether defendant had made an effort to contact the witness. The Maryland Supreme Court held that the “missing witness rule” which permitted an adverse inference was inapplicable on the facts of that case, and, in so doing, quoted 1 Wharton, Criminal Evidence (Torcia ed. 1972) section 148, page 251: “No inference arises if the person not called as a witness by the defendant is a codefendant or an accomplice not presently on trial, or
In explaining why it adopted that rule the Maryland court reasoned that if the witness had been called and had invoked his right against self-incrimination, the defendant might be damaged. Therefore, to put the defendant to the decision of whether to call him would be “incompatible with our concept that a defendant is innocent until proven guilty beyond all reasonable doubt and that the burden of proof never shifts from the State.” (Christensen, supra, 274 Md. at p. 140.) As we have seen, however, it is not necessary that the witness be called before the jury. Christensen, therefore, is both distinguishable and unpersuasive.
The remaining cases are unhelpful. In none does the court declare, as a matter of law, that comment is never permissible if a witness who has not been called was once a codefendant. In State v. Cavness (1963) 46 Hawaii 470, for example, the defendant was charged with aiding and abetting a prostitute. The prosecution evidence suggested that he had acted as a lookout during her act of prostitution. Defendant denied that he had been asked to assist in that manner. She was not called to corroborate his denial of involvement. On those facts, where testimony by the witness would necessarily incriminate her, the court held that comment was improper. (Id., at p. 686.) In Morgan v. State (1972) 49 Ala.App. 330, the defendant had offered an alibi, stating that he was in Michigan at the time a still was raided. Prosecution evidence placed Hardin at the still. Hardin had pleaded guilty, but had not been sentenced. Comment on the defendant‘s failure to call a witness whose offense he was accused of aiding and abetting was held to be improper because in the peculiar circumstances of that case the witness might have believed that testimony favorable to the defendant would result in imposition of a harsher sentence on the witness. The court reasoned: “Such a witness could not be supposed to be favorable,” and thus could not be considered any more available to the defendant than to the state. (Id., at p. 261.) Hadley v. State (1975) 165 Ind.App. 416, states no rule at all. In that case, after determining that reversible error was present because of impermissible prosecutorial comment on the defendant‘s failure to take the stand, the appellate court simply listed among other misconduct a comment on the defendant‘s failure to subpoena and present the testimony of a “codefendant.” (Id., at pp. 271-272.)
The logic of permitting comment or instructions in criminal cases that an adverse inference may be drawn from a party‘s failure to call an available witness whose testimony would naturally be expected to be favorable is recognized by our sister states and the federal courts. (See, e.g., United States v. Ariza-Ibarra (1st Cir. 1981) 651 F.2d 2; People v. Terry (1981) 83 App. Div.2d 491; State v. Moore (Mo. 1981) 620 S.W.2d 370; Commonwealth v. Niziolek (1980) 380 Mass. 513.)
Comment on a defendant‘s failure to call a logical witness in no way undercuts the privilege against self-incrimination. In Griffin v. California, supra, 380 U.S. 609, the United States Supreme Court held that the Fifth Amendment forbids comment on a defendant‘s exercise of the privilege against self-incrimination, or instructions by the court that such silence may be considered evidence of guilt. The court did so because “comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice’ . . . which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” (380 U.S. at p. 614.) Manifestly, comment on a defendant‘s failure to call a witness has no comparable impact on the defendant.
We recognize that a rule permitting comment on a defendant‘s failure to call witnesses is subject to criticism if applied when the reason for his failure to do so is ambiguous, or if the defendant is simply standing on his right to have the state prove his guilt. Therefore, the trial court must have discretion to determine when the circumstances of the case are such that comment is not permissible. When the defendant has taken the stand, however, and offered an alibi defense in which he identifies other persons who could support his testimony, and those witnesses are available and subject to subpoena, there should be no question but that comment is appropriate and permissible.
IV
In holding that a witness must be called, and an assertion of the privilege against self-incrimination upheld by the trial court, as a prerequisite to deeming him unavailable, we do not intend to foreclose preargument rulings that comment is impermissible.8 Counsel may stipulate that
comment will not be permitted or defendant may satisfy the court that the witness cannot be called or that in the circumstances of the case an adverse inference should not be drawn from the failure to call a witness.
Defendant did not seek a ruling or stipulation in this case, however, and he fails to articulate any policy which precludes comment on the state of the evidence when that evidence supports an inference that the reason a defendant has failed to call a witness to corroborate his testimony is that the testimony is perjured. Comment is permissible if the witness is not a codefendant. A rule that forbids comment on grounds that the witness must be “deemed” to be unavailable, arguably would limit the right of the People to use relevant evidence. The right of the prosecutor to comment “is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify.” (Griffin v. California, supra, 380 U.S. 609, 613.) The failure of a defendant to call an available witness whom he could be expected to call if that witness testimony would be favorable is itself relevant evidence. The omission traditionally has been considered an admission by conduct—an admission that the witness‘s testimony would not be favorable. (McCormick, Evidence (Lawyer‘s ed. 1984) § 272, p. 804; 2 Wigmore, Evidence (Chadbourn ed. 1979) § 285 et seq., p. 192 et seq.; Comment, Drawing an Inference from the Failure to Produce a Knowledgeable Witness: Evidentiary and Constitutional Considerations (1973) 61 Cal.L.Rev. 1422.)
The Legislature and the electorate of this state have acted in a manner which clearly reflects a policy that such comment be permitted.
Neither principle nor precedent supports the rule which defendant and the dissent seek to establish. Their rule would create a judicial presumption that an entire class of potential witnesses is “unavailable” and comment on their absence would be prohibited solely because the potential witnesses have been charged with the same offense as the defendant. The presumption would apply regardless of whether the testimony that could logically be expected from the “unavailable” witness would be incriminating to the witness, and regardless of the actual willingness of the witness to testify. We decline the opportunity to engage in such judicial rulemaking.
The prosecutor‘s invitation to the jury in this case to infer that the reason defendant failed to call Cooper and Elder was that their testimony would not support his alibi did not impinge on the exercise of a privilege and did not mislead the jury as to the reason for their absence. Because comment inviting the jury to draw a logical inference based on the state of the evidence, including comment on the failure to call available witnesses, is permissible except as limited by
The judgment of the Court of Appeal is affirmed.
Lucas, C. J., Mosk, J., Panelli, J., and Arguelles, J., concurred.
BROUSSARD, J.—I dissent. I disagree with the majority‘s conclusion that Ford‘s codefendants were “available” and that the prosecutor‘s comment on Ford‘s failure to call them as witnesses was proper. The prosecutor‘s comment implied that defendant could have compelled his codefendants to testify and that the reason he failed to call them as his witnesses is that he knew they would refute his alibi. But Ford could not have compelled his codefendants’ testimony and the prosecutor‘s implication to the contrary was misleading and unfair. The trial court properly granted defendant‘s
DISCUSSION
When material evidence is not produced during the course of a trial, an adverse inference may be raised against the party who would have been expected to produce it if it had been favorable to him or her. (Graves v. United States (1893) 150 U.S. 118, 121; Kean v. Commissioner of Internal Revenue (9th Cir. 1972) 469 F.2d 1183, 1187-1188; People v. Coleman (1969) 71 Cal.2d 1159, 1167.) The inference, which may be argued to the jury, is that the party who failed to produce the evidence did so because he or she knew it was damaging. The rationale behind this rule is that a party in an adversarial proceeding is naturally motivated to produce any favorable evidence he or she possesses. (2 Wigmore, Evidence (Chadbourn ed. 1979) § 286, pp. 199-200.) Given the variety of reasons that might motivate a party to decide not to present evidence, the rule is applied only when certain conditions have been met.1
In this case, the propriety of the prosecutor‘s comment depends upon whether or not Cooper and Elder, Ford‘s codefendants, were available to testify. (See Graves v. United States, supra, 150 U.S. at p. 121; Forsberg v. United States (9th Cir. 1965) 351 F.2d 242, 249; People v. Coleman, supra, 71 Cal.2d at p. 1167; see also 2 Wigmore, Evidence, supra, § 287, p. 202.) The majority conclude that they were available to testify because both were subject to subpoena. They further conclude that the codefendants were not rendered unavailable by their present right to assert the privilege against self-incrimination since Ford did not call them as
The majority‘s approach is flawed in several respects. First, it departs from the cases defining a witness as “unavailable” if the defendant has no power to compel the witness‘s testimony. Second, it requires the defendant to anticipate the prosecutor‘s comment and to seek a prior ruling on its impropriety. Finally, it compels a result contrary to that reached by the trial court after a considered exercise of discretion.
The crucial inquiry in determining the availability of witnesses in this context is whether or not the party against whom the inference is drawn can compel the witness‘s testimony. In People v. Coleman, supra, 71 Cal.2d at p. 1167, for example, this court noted that “[b]efore the enactment of the Evidence Code it was misconduct for the prosecuting attorney to comment on the failure of a defendant‘s spouse to testify for the defendant. (People v. Wilkes (1955) 44 Cal.2d 679, 687, and cases cited.) At that time, however, neither spouse could testify for or against the other without the consent of both. (
In a similar case involving the former spousal privilege, the court emphasized that the prejudicial effect of the prosecutor‘s comment was compounded by the trial court‘s instruction effectively informing the jury that it should disbelieve the defendant since he did not call his wife to corroborate his testimony. (Wilkes, supra, 44 Cal.2d at p. 688.) The court noted that “[c]ontrary to the effect of the trial court‘s instructions, [defendant] had no power to produce his wife as a witness if she did not consent to testify.” (Ibid., italics added.) Neither Coleman, supra, 71 Cal.2d 1159, nor Wilkes, supra, 44 Cal.2d 679, required the defendant to subpoena the witness and to perform the ritual of having her claim the privilege.2
The prosecutor‘s speculation about the motives underlying Ford‘s failure to call his codefendants necessarily implied that Ford could have compelled
Nevertheless, the majority conclude that there is no reason to believe that the testimony of Cooper or Elder would have incriminated them or that the court would have sustained their claim of privilege if they had asserted it. Either Ford was lying, the majority argue, or Cooper and Elder would have simply corroborated his testimony concerning their innocent activities on the day before the crime. This “either-or” approach is misleading and distorts the applicable legal standard. The trial court must sustain a claim of privilege “unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.” (
Cooper and Elder were logical witnesses to corroborate defendant‘s alibi. However, they were also charged with the same crime for which defendant was being tried. There is no question that their testimony concerning the events on the day of the burglary and the day before could “possibly have a tendency to incriminate [them].” (Ibid.) The trial court properly determined that they could have correctly asserted their Fifth Amendment privilege not to testify.
The trial court further concluded that the prosecutor knew Ford‘s codefendants were unavailable and that an advance showing was unnecessary. The majority, however, would require defendant to anticipate that the prosecutor intends to comment on the missing codefendants and either call them as witnesses to establish their unavailability or seek an anticipatory ruling on the issue. Because Ford failed to take either precaution, the majority deem his codefendants available. I can think of no other circumstance in which a party‘s objection to his opponent‘s argument is automatically overruled because the objector did not seek to preclude the comment
The majority observe that a witness bears the burden of showing that he is entitled to claim a testimonial privilege (
Furthermore, even assuming defendant should have established the unavailability of his codefendants prior to the prosecutor‘s comment, there is no reason to believe that the trial court would have ruled any differently on the propriety of the inference in the context of a preargument motion than it did in the context of a motion for new trial. Both parties fully briefed the issue in connection with defendant‘s motion for new trial. After considering their respective arguments, the trial court found the prosecutor‘s argument inappropriate.
Ford seeks application of the general rule that codefendants must be considered unavailable for the purposes of precluding prosecutorial argument on the defendant‘s failure to call them as witnesses.5 In their zeal to reject the general rule, the majority fail to acknowledge the trial court‘s determination that, on these facts, the prosecutor‘s argument was improper
As established, the trial court‘s determination that Cooper and Elder could have properly refused to testify is supported by law and logic. Equally reasonable is its determination that Ford did not call his codefendants as witnesses because he believed they would not have testified. The trial court was well within its province to sustain defendant‘s objection to the prosecutor‘s comment suggesting that defendant‘s motives were to conceal unfavorable testimony.
The trial court also acted within its discretion when it determined that its admonition was not adequate to repair the harm caused by the prosecutor‘s misleading comment. This was not a case in which evidence of guilt was overwhelming. The testimony of two important prosecution witnesses was compromised because of erroneous descriptions of the defendant‘s race and clothing, and the jury had difficulty reaching a verdict.
Shirley Williams testified that she could not identify defendant as the White man she saw on the day of the burglary because she had not seen his face. But she recalled that he was wearing the same clothing when she first saw him at the scene as when he was arrested directly afterward. She stated that he was wearing a white T-shirt and Levi‘s. However, a photograph taken by the police following his arrest shows defendant wearing a black coat, blue pants and a dark blue sweatshirt.
Patricia Blair testified that she observed a White man and a Black man leaving the yard of the burglarized home. However, on the day of the crime, she told the officer that she saw a Mexican man and a large Black man emerge from the yard. The officer‘s written report confirms this version.
The jury, after hearing all the evidence and deliberating over two hours, was divided evenly and was unable to reach a consensus. It requested that
Though the majority reject the general rule that comment on defendant‘s failure to call his codefendants as witnesses is improper, they do not conclude that such comment is always proper as a matter of law. Indeed, they acknowledge that the trial court must have discretion to determine when the circumstances of the case are such that comment is not permissible. (Maj. opn., ante, at p. 446.) They completely fail, however, to identify the manner in which the trial court abused its broad discretionary powers in this case.
I would reverse the judgment of the Court of Appeal.
KAUFMAN, J., Dissenting.—Sadly, the majority misconceives the issues in this case and its misconception has led it to an erroneous conclusion. The issue is not whether the codefendants properly exercised their privileges against self-incrimination, but whether defendant could compel their testimony and whether the trial court abused its discretion in granting a new trial because of the prosecutor‘s grossly unfair comment on defendant‘s failure to call the codefendants as witnesses when the defendant could not compel their testimony and the prosecutor had equal ability to call them as witnesses.
With respect to the true issues the dissenting opinion by Justice Broussard is irrefutably correct and I fully endorse the analysis and reasoning therein set forth.
Respondent‘s petition for a rehearing was denied June 30, 1988. Broussard, J., and Kaufman, J., were of the opinion that the petition should be granted.