THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE GLENN MODESTO, Defendant and Appellant.
Crim. No. 7877
In Bank
Feb. 11, 1965.
436
Stanley Mosk and Thomas C. Lynch, Attorneys General, William E. James, Assistant Attorney General, Norman H. Sokolow, Deputy Attorney General, William O. Mackey, District Attorney (Riverside), and Roland Wilson, Deputy District Attorney, for Plaintiff and Respondent.
TRAYNOR, C. J. This appeal is automatic from a judgment imposing the death penalty. (
In a previous trial defendant had been found guilty of the first degree murders of Connie Mack and Mary Mack, and sentenced to death. The judgment was reversed on the ground that the trial court erred in refusing to instruct the jury on the issue of manslaughter. (People v. Modesto, 59 Cal.2d 722, 727-731 [31 Cal.Rptr. 225, 382 P.2d 33].) Before retrial defendant reinstated his pleas of not guilty by reason of insanity, which he had withdrawn during the first trial. Upon retrial the jury found defendant guilty of two counts of first degree murder, determined that he was sane at the time each crime was committed, and fixed the penalty on each count at death.
At the retrial on the issue of guilt the prosecution introduced substantially the same evidence it introduced at the former trial. The basic facts were summarized in our former opinion as follows.
“Shortly after midnight on October 29, 1961, defendant entered the home of Mr. and Mrs. Ardel Mack carrying a hand sledge hammer with a 4-pound head. The Macks’ daughters, Connie, age 12, and Mary, age 9, were asleep in the house. At about 10:30 p.m. the previous evening defendant had seen Mr. and Mrs. Mack at a place where Mr. Mack played the guitar with a band and knew that they would not return home until about 2 a.m. Upon returning home the Macks found Mary lying on the floor dead. Connie had disappeared. Her blankets were on the floor, and there was blood on her bed.
“Defendant was arrested at his home at about 2:30 a.m., October 29, 1961. The arresting officers found bloodstains on the right rear fender, the right rear door handle, the rear seat, and the floor mat of defendant‘s automobile. The blood on the rear seat appeared to have been smeared by a body moving on the seat. Defendant‘s sledge hammer was removed
“At the time of his arrest, defendant was asleep in his bed, wearing only a pair of shorts. His hands were bloodstained, as were his shorts and his other clothes found on the floor of his room. A police chemist testified that there were semen stains on defendant‘s T-shirt, on the outside of his trousers, and on the shorts he was wearing when arrested.
“At 7 p.m. on the day of his arrest, defendant admitted to police investigators that he struck Mary and Connie with the sledge hammer. He stated that he entered the Mack home ‘with the intentions of scaring Connie Jean for the way she has been acting, snotty and smart-aleckie, and just to kind of get back at her for a lot of things she said. I went into the house through the side door. The house was dark and the door wasn‘t locked. So I went to the bedroom, flicked on the light and Connie Jean turned over and mumbled something and I shut the light off again, and I went over to shake her awake, and little Mary turned on the light, and I turned around with the intention of scaring her, and my hand went too far and I hit her with the sledge hammer. She went down, moaning, and Connie Jean started screaming, so I told her to be quiet, and I went like this (indicating) to hit her too, but my hammer just went right on and I hit her too; and I don‘t know, after that I don‘t know how many times I hit them—three or four or five times apiece—I don‘t know. They were moaning and screaming and I couldn‘t remember how many times I hit them.’
“Defendant stated to the officers that he then picked up Connie and dropped her on the lawn, returning to the house for the hammer. After putting Connie‘s unconscious body on the rear floor of the car, defendant stated that he intended to go back for Mary, but panicked and drove away when he saw the lights of approaching automobiles. Shortly thereafter he stopped at a drainage ditch to clean the blood from Connie‘s head. ‘When I opened the door her legs hung out. And the next thing I knew she was on the ground—so I grabbed her by the hand and pulled her over to the side of that drainage ditch . . . so I could get some water to clean her off, and she just tumbled into the water, moaning loudly. . . .’
“Defendant also stated to the officers that ‘Between there [the drainage ditch] and . . . the house . . . I don‘t know
“Connie‘s body was found face down in the drainage ditch downstream from the point at which defendant stated she had gone into the water.
“Autopsies of the girls’ bodies showed four separate injuries to Connie‘s head and five separate injuries to Mary‘s head, which were probably inflicted by the sledge hammer. Although drowning was the immediate cause of Connie‘s death, the injuries to her head would have been fatal. Mary‘s death resulted from injuries to the brain caused by multiple skull fractures. Since Connie had been carried downstream in rapidly moving water and had been in the water nine to ten hours, the pathologist was unable to state whether or not she had been sexually molested.” (People v. Modesto, 59 Cal.2d 722, 725-727 [31 Cal.Rptr. 225, 382 P.2d 33].)
It is not disputed that defendant killed the two girls. The prosecution sought to prove that the killings were murders of the first degree on the ground that they were either wilful, deliberate, and premeditated, or occurred during the commission of burglary, rape, or an act punishable under
Defendant contends that the trial court erred in denying his motion for a change of venue on the ground that he could not obtain a fair and impartial trial in Riverside County. (
The newspaper articles attached to defendant‘s affidavit
Defendant contends that the trial court erred in admitting into evidence photographs and color slides of the victims. We adhere to our holding on the former appeal that the trial court did not abuse its discretion in determining that the probative value of this evidence outweighed any probable prejudicial effect. (People v. Modesto, 59 Cal.2d 722, 733-734 [31 Cal.Rptr. 225, 382 P.2d 33].)
At the trial on the issue of sanity, defendant relied on the testimony of two psychiatrists that he was undergoing a psycho-motor epileptic seizure at the time he committed the homicides and was therefore legally insane. The prosecution relied on the testimony of four other psychiatrists to the effect that defendant was legally sane. In view of this conflict, there is no merit in defendant‘s contention that the evidence does not support the verdicts finding him sane.
At the trial on the issue of guilt several statements made by defendant to the police were introduced into evidence over objection after the prosecution laid a foundation that each statement was freely and voluntarily made. Defendant contends that at least the last and most damaging of these statements was inadmissible under the decisions of the United States Supreme Court in Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], and Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]. We shall consider the admissibility of all of them in the light of those decisions.
Officer Mabbitt questioned defendant at about 6 in the morning following the homicides. At that time Connie‘s
About 7:30 a.m. Officer Mabbitt was joined by Mr. Boller, an investigator from the district attorney‘s office, and the two had a second conversation with defendant. He repeated to Mr. Boller what he had told Officer Mabbitt and at first denied having seen Connie after he took her home the afternoon before. Either Officer Mabbitt or Mr. Boller suggested to defendant that Connie might still be alive and that if he could help them to locate her, they might be able to save her life. Defendant studied a few minutes and then said “water,” studied a few more minutes and said, “Avenue 62 and the storm drain.” He then told the officers that Connie fell in the water and that he would show them where it happened.
The officers took defendant to the storm drain, and he showed them where Connie fell into it. While the officers and defendant were at the storm drain, Mr. Marsh, an attorney acting apparently at the request of defendant‘s family, arrived to represent him. Mr. Marsh conferred privately with defendant in the police car and then joined in the search. Shortly thereafter the officers learned that Connie‘s body had been found some distance away, and they returned with defendant to the police station.
About 1:20 in the afternoon Officer Mabbitt interrogated defendant again. Mr. Boller and a court reporter were also present, and the interview was taken down and transcribed. Defendant repeated the same story he had told before about being with Mr. Mack, drinking beer, picking up Connie and taking her home, and going to the christening. He also stated that later in the evening he went to a cafe where Mr. Mack worked and to another cafe. He met his mother and father and they all drank beer. His father drove him home because he was too drunk to drive. The next thing he remembered was seeing Connie on the floor of the back seat of his car with blood over her. He took her to the storm drain to wash the blood off, and she slipped into the water. He looked for her along the bank, and although he could not see her, he could hear her moaning and thought she had caught on some roots
About 3:30 in the afternoon, Undersheriff Presley took over the questioning of defendant. He told defendant several times that he did not believe that defendant did not remember further details of the crimes. He testified that “There was considerable discussion back and forth on these points and finally he said that he would like to tell his attorney first. . . . Q. What did you say to that? A. Well, I tried to impress him at this time the importance of telling us at this particular time, rather than to wait and tell the attorney later. . . . I pointed out to Mr. Modesto in the light of this statement regarding the attorney, the fact he could tell his attorney what had happened, I felt he did remember and he was also capable of telling us at this time.”
The officers then took defendant to dinner and made an unsuccessful attempt to reach Mr. Marsh. After dinner Undersheriff Presley took defendant back to the office where he had been interviewing him and attempted without success to call Mr. Marsh on the telephone. He then gave the telephone to defendant, who dialed Mr. Marsh‘s number but was also unable to reach him. Defendant then started to tell the officers what had occurred. He made the statements set forth above in which he described the details of the commission of the crime including the fact that he thought he had had intercourse with Connie.
In Escobedo v. Illinois, 378 U.S. 478, 490-491 [84 S.Ct. 1758, 12 L.Ed.2d 977], the United States Supreme Court held that “where . . . [a criminal] investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively
With respect to defendant‘s last and most complete and damaging statements, all of the conditions of the Escobedo holding were met. It is immaterial that defendant was allowed to consult with his attorney several hours earlier and was advised that he could talk to the police if he wished and repeat the substantially less damaging admissions he had already made at that time. Escobedo had also discussed with his attorney what he should do in case of interrogation, but in this case as in the Escobedo case, there is no evidence that defendant was advised as to what he should or could do in the face of the continuing interrogation that took place. (Escobedo v. Illinois, 378 U.S. 478, 485, fn. 5 [84 S.Ct. 1758, 12 L.Ed.2d 977].) Accordingly, the judgment must be reversed.
The admissibility of defendant‘s other statements will arise on retrial. The statements made by defendant before Connie‘s body was discovered are admissible. They were freely and voluntarily made at a time when the officers were concerned primarily with the possibility of saving Connie‘s life. The paramount interest in saving her life, if possible, clearly justified the officers in not impeding their rescue efforts by informing defendant of his rights to remain silent and to the assistance of counsel. Since these statements were voluntarily made and lawfully obtained, there is no basis for their exclusion. (See People v. Roberts, 47 Cal.2d 374, 379 [303 P.2d 721].) It is true that in Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], the United States Supreme Court held that incriminating statements surreptitiously obtained from an indicted defendant who had been released on bail could not be used against him at his trial even though the court assumed the statements were lawfully obtained in the course of a continuing police investigation of crime. In the Massiah case, however, no compelling emergency was present, and the continuing investigation of other crimes could reasonably be segregated from the proof of the crime for which the defendant had been indicted. In the present case the officers’ investigatory and rescue
The statements made between the time Connie‘s body was found and the time defendant sought to consult again with his attorney present still a different problem. Under our holding in People v. Dorado, ante, p. 338 [42 Cal.Rptr. 169, 398 P.2d 361], these statements are inadmissible unless as to them defendant waived his right to counsel and his right to remain silent. In view of his reference to his attorney‘s advice with respect to making these statements, it is possible that defendant waived his rights as to them. That reference was ambiguous at best, however, and unless the prosecution can present additional evidence of waiver on retrial, these statements should be excluded.
Both the trial court and the prosecutor, as the California comment rule1 allows, commented on the failure of the defendant to take the stand. Defendant contends that these comments infringed his privilege against self-incrimination,2 now guaranteed by the Fourteenth Amendment to state criminal defendants (Malloy v. Hogan, 378 U.S. 1, 3 [84 S.Ct. 1489, 12 L.Ed.2d 653]), by permitting unfavorable references from his refusal to testify. We reject this contention. We hold that the use of the comment in defendant‘s trial was constitutionally permissible.
There is no authoritative holding whether state comment rules violate the privilege against self-incrimination. The United States Supreme Court has heard two cases challenging state comment rules, but refused to decide the issue in both of them. (Malloy v. Hogan, 378 U.S. 1, 2-3, fn. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653].) In the first case, Twining v. New Jersey, 211 U.S. 78, 90-91 [29 S.Ct. 14, 53 L.Ed. 97], the court assumed that the comment infringed the federal privilege against self-incrimination but held that the Fourteenth Amendment did not require the states to grant that privilege.
The rule against comment in the federal courts does not necessitate our holding the California comment rule unconstitutional. The federal rule is founded not on constitutional command but on statutory interpretation. The congressional provision that a defendant‘s failure to request to be a witness in the case “shall not create any presumption against him” (
In determining the constitutionality of the California comment rule, the narrow scope of the permission to comment is crucial.5 The comment rule does not relieve the prose-
Such carefully circumscribed comment does not conflict with the policies of the federal privilege against self-incrimination. The United States Supreme Court restated those policies in Murphy v. Waterfront Com., 378 U.S. 52, 55 [84 S.Ct. 1594, 12 L.Ed.2d 678], on the same day it held the Fifth Amendment binding on the states. It stated that the privilege was based on “our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incrimination statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,‘. . . ; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ . . . ; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty’ is often a ‘protection to the innocent.‘” The California com-
testify would compel an acceptance of the truth of the prosecution‘s evidence.” (Adamson v. California, 332 U.S. 46, 55 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223].)
Defendant contends, however, that Malloy v. Hogan, 378 U.S. 1, 8 [84 S.Ct. 1489, 12 L.Ed.2d 653], establishes that the comment rule violates the privilege against self-incrimination. In that case, the petitioner refused to answer any questions, relying on his privilege against self-incrimination. The state court found, however, that the privilege was not properly invoked. Petitioner was therefore committed to prison until he was willing to answer the questions. The United States Supreme Court reversed, holding that the Fourteenth Amendment guaranteed petitioner the Fifth Amendment‘s privilege against self-incrimination and that under the applicable federal standard, petitioner properly asserted the privilege. In discussing the rule that the Fourteenth Amendment forbids the state from coercing a confession, the court stated that “it follows a fortiori that it also forbids the States to resort to imprisonment, as here, to compel him to answer questions that might incriminate him. The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining, for such silence.” (378 U.S. 1, 8; see Grunewald v. United States, 353 U.S. 391, 425 [77 S.Ct. 963, 1 L.Ed.2d 931, 62 A.L.R.2d 1344] (dissent); Adamson v. California, 332 U.S. 46, 124 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223] (dissent).)
Defendant contends that the inference permitted by the comment rule and comment thereon restricts “the unfettered exercise of his own will” and constitutes a “penalty” within
Defendant contends that People v. Tyler, 36 Cal. 522, 530, and People v. Adamson, 27 Cal.2d 478, 487 [165 P.2d 3], establish that the California comment rule violates the privilege against self-incrimination as defined in the Fifth Amendment. In the Tyler case, however, the court was concerned only with the state privilege against self-incrimination, and in the Adamson case it held, following Twining v. New Jersey, 211 U.S. 78 [29 S.Ct. 14, 53 L.Ed. 97], that the federal privilege was not binding on the states. Accordingly, any statements or implications in those opinions on the scope of the federal privilege were necessarily dicta. Whatever the court may have believed at the times it decided those cases, we are now for the first time required to face the federal constitutional issue. We are bound by the California Constitution‘s provision for comment unless it clearly violates the United States Constitution. Since we do not believe that it does so, we are precluded from giving effect to any contrary implications in Tyler or Adamson.
Defendant contends that the reason a defendant refuses to testify is that his prior convictions will be introduced in evidence to impeach him (
The privilege against self-incrimination protects the defendant from assisting the prosecution in building its case against him. It cannot protect him from the inferences that may reasonably be drawn from his failure to rebut the prosecution‘s case to the best of his apparent ability. For the court and counsel studiously to ignore those inferences or for the court to instruct that no inference is to be drawn from the defendant‘s failure to testify can only result in confusing the jury. The existence of the privilege is a matter of common knowledge, and whatever use the defendant makes of it at his trial is also a fact known to the jury. The objective of the court‘s instructions and counsel‘s arguments is to assist the jury in reaching the correct decision on the basis of all of the evidence before it. The Fifth Amendment imposes no pointless taboo on the pursuit of that objective.
Defendant contends finally that the trial court erred at the trial on the issue of penalty in admitting into evidence inflammatory details of other crimes committed by him. It does not appear, however, that the trial court abused its discretion in determining that the probative value of the challenged evidence outweighed any probable prejudicial effect. (See People v. Terry, 61 Cal.2d 137, 142-145 [37 Cal.Rptr. 605, 390 P.2d 381].)
The judgment is reversed.
Tobriner, J., Peek, J., and Dooling, J.,* concurred.
PETERS, J., Concurring and Dissenting.—I concur in the judgment of reversal, and in those portions of the majority opinion which are unrelated to the issue raised by the California comment rule. In that connection the majority hold that
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
In my opinion the majority in reaching their conclusion not only misinterpret the United States Supreme Court cases, and their impact on the California comment rule, but fail to consider the real impact of several California cases on the subject under discussion.
The majority concede that Malloy established the rule that the Fourteenth Amendment makes the Fifth Amendment privilege against self-incrimination binding on the states, and quote the Malloy language to the effect that “The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence” (378 U.S. 1, 8).
In the face of this concession, however, the majority then hold that because of the narrow scope of the permission to comment in California—i.e., because the penalty for not testifying is not very great—such “comment does not conflict with the policies of the federal privilege against self-incrimination.”
I am unable to read into Malloy any inference that a slight penalty is “no penalty” at all. I am unable to subscribe to the theory that because the inferences to be drawn and commented upon are circumscribed, they do not affect “the unfettered exercise” of defendant‘s will to remain silent. As a matter of fact, there is explicit language to the contrary in Johnson v. United States, 318 U.S. 189 [63 S.Ct. 549, 87 L.Ed 704] (cited in the majority opinion). There the high court said (at pp. 196-197) that “where the claim of privilege
The majority attempt to distinguish Johnson on the ground that there the defendant had been misled as to the consequences of his reliance on the privilege. That, of course, does not explain the explicit holding above quoted. We as a state court, on federal constitutional questions, are bound by the unqualified language of the United States Supreme Court to the effect that where, as here, the privilege against testifying could not have been denied, fair trial precludes “any comment” thereon or the invitation to draw “any” inference therefrom.
The majority conclude with the assertion that the comment allowed by the California rule does not place before the jury anything not already within its general store of knowledge—that is that the jurors as knowledgeable persons are aware that one capable of testifying in rebuttal of incriminating evidence will ordinarily do so. Therefore, it is asserted, neither harm nor injury can occur by reminding them of that fact.2 That is to assert that the 1934 amendment accomplished nothing at all. But it accomplished a great deal, because, as will be later pointed out, it was necessary to pass it to change the then existing California law which prohibited any comment at all.
The majority opinion argues at some length that Malloy did not, by implication or otherwise, overrule Adamson v. California, 332 U.S. 46 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223], which affirmed this court‘s holding in People v. Adamson, 27 Cal.2d 478 [165 P.2d 3], on the theory that
The majority opinion concedes that Malloy overruled Adamson insofar as it held that the
As already pointed out, long before 1934 the
The first case to interpret the original constitutional provision similar to the
Thereafter, Tyler was followed without exception until, 65 years later, in 1934, the
People v. Albertson, supra, 23 Cal.2d 550, referred to in the footnote, is of particular interest because there Chief Justice Traynor (then Justice Traynor) in his concurring opinion said (at p. 584): “Before the constitutional amendment it was error to comment on the defendant‘s failure to take the stand or to advise the jury that it could draw inferences unfavorable to him on that account. (People v. Tyler, 36 Cal. 522.) The constitutional amendment changes the rule of the Tyler case and permits such comment but does not do more.” He then went on to hold that the comment of the prosecutor in Albertson went beyond that allowable under the constitutional amendment.
Under these cases, it is perfectly clear that prior to the 1934 amendment the then existing constitutional privilege against self-incrimination prohibited any comment about de-
Some reference should be made to this court‘s decision in People v. Adamson, supra, 27 Cal.2d 478, written by Justice Traynor, which upheld the constitutionality of the 1934 amendment under the
. . .
From the foregoing it follows that, unless the majority are willing to overrule People v. Tyler, supra, 36 Cal. 522, and the many cases following it, and People v. Adamson, supra, 27 Cal.2d 478, there is no alternative but to hold that the California comment rule creates a compulsion upon a defendant “who otherwise would not take the stand” and has a “coercive effect.” The contrary rule adopted by the majority does not permit a defendant “to remain silent unless he
Were it not for the other errors pointed out in the majority opinion which require a reversal, the error under discussion, however, might not necessarily require a reversal. In my opinion the beneficent provisions of
It is urged that that section is not applicable to errors involving due process under the
Looking first to the federal rule, the authorities relied upon dealt either with the use of a coerced confession or evidence
. . .
In Johnson v. United States, supra, 318 U.S. 189, the court held that comment on the defendant‘s reliance on his privilege against self-incrimination was error, but failed to reverse because the error had been waived. That was not tantamount to affirmance because the error was nonprejudicial, but indicates that denial of due process is not always reversible per se.
In Wilson v. United States, 149 U.S. 60 [13 S.Ct. 765, 37 L.Ed. 650], the court reversed because of the prosecutor‘s comment on defendant‘s failure to take the stand as a witness. There the court held the comment to be error because of a federal statute requiring that no presumption shall be created against defendant by reason of his decision not to testify, and
Turning now to the California authorities, even more cause exists to adhere to the dictates of
Subsequent to the 1934 amendment authorizing comment on the defendant‘s failure to testify there was no cause for the courts to pass upon the prejudicial or nonprejudicial
Erroneous denials of constitutional guarantees other than those arising out of the
(a) Error arising out of the absence of defendant from a portion of the proceedings—People v. Isby, 30 Cal.2d 879, 894 [186 P.2d 405]; People v. Daniels, 85 Cal.App.2d 182, 195 [192 P.2d 788]; People v. Miller, 33 Cal. 99; People v. Erwin, 4 Cal.App. 394, 396 [88 P. 371]. (The last two were decided prior to the adoption of
(b) Failure to instruct defendant as to certain of his rights—People v. O‘Brien, 88 Cal. 483, 489-490 [26 P. 362].
(c) Illegal search and seizure—People v. Parham, 60 Cal.2d 378 [33 Cal.Rptr. 497, 384 P.2d 1001], wherein it is said (at p. 386): “To require automatic reversal for such harmless error could not help but generate pressure to find that
If the word “prosecution” is substituted for the word “police” where the latter twice appears in the quotation from Parham, the reasoning applies equally to improper comment on defendant‘s failure to take the stand.
In this opinion there is no necessity to determine whether the claimed error was prejudicial, first because the majority has ruled that it was not error, and second because the judgment must be reversed for reasons other than the violation of the comment rule.
I agree with everything said in the majority opinion, including the reversal, except that portion discussing the comment rule. From that portion of the opinion, I dissent.
SCHAUER, J.* Concurring and Dissenting.—I concur in those portions of the majority opinion which resolve the issue grounded on the California comment rule (
To suggest that reasonable inferences will not or should not be drawn by the fact finder from the failure of an accused to testify as to matters obviously within his knowledge is absurd. Common sense tells us that in such a situation the inferences will be adverse to the defendant if no comment—i.e., no instruction—is given relative to the right of an accused to stand on his plea of not guilty and the comprehensive burden of the state to prove every element of guilt beyond a reasonable doubt. The California comment rule operates constructively to make real and workable to a conscientious fact finder the right of the accused and the burden of the prosecution.
The use of the comment rule in defendant‘s trial was not only constitutionally permissible, it was good sense and eminently fair. When there is neither relevant court instruction nor any reference by court or counsel to defendant‘s silence in the face of obvious and significant evidence of guilt,
The subject California rule is not so much a comment rule as it is an instruction as to law and a caution as to duty: it emphasizes the burden of the prosecution to prove beyond reasonable doubt every essential element of the crime charged; it makes altogether clear the right of the defendant not to testify at all and not to be prejudiced by his own mere silence; it precludes the jury from drawing any inference adverse to the defendant because of his decision not to testify unless it is further shown that defendant has knowledge of, and the ability to produce, facts which could deny or explain, or in some way obviate the effect of, evidence which if believed, would establish guilt. The rule is essentially correlative both to defendant‘s fundamental right of silence and to the state‘s burden of proof; it becomes operative only when competent evidence has been adduced which is sufficient to establish (1) a prima facie case against the accused, and (2) his ability to furnish exculpatory evidence. Then the necessity for, and the fairness of, the rule become obvious. The comment itself must be hypothetically definitive and explanatory of the rule and its application. Certainly as held by the majority such “carefully circumscribed comment does not conflict with the policies of the federal privilege against self-incrimination.” Failure to comment at all on the obvious facts, or on the other extreme, categorically directing the jurors not to draw inferences which the undisputed evidence and a sound mind dictate, would be futile and would tend to make a mockery of the fact finding process.
We are bound to recognize that the essential function of jurors is to draw (or resolve conflicting) inferences from all material circumstances. The failure of a defendant to testify relative to tentatively established incriminating facts which are peculiarly within his knowledge is in itself a fact which, as hereinabove suggested, may become the more portentous if comment thereon, as required and limited by the California rule, is precluded. As the Chief Justice says, “The defendant . . . is normally faced with the choice of testifying to avoid adverse inferences or of remaining silent and suffering their consequences.” The purpose of a fair trial is to discover the truth and upon the truth to render the judgment provided
. . .
I do not concur in the conclusional declaration that “With respect to defendant‘s last and most complete and damaging statements, all of the conditions of the Escobedo holding were met. . . . Accordingly, the judgment must be reversed.” I am not persuaded that the hypothesis is tenable or that this result must follow. What may be “most . . . damaging statements” is typically for jury and trial judge appraisal. And as I read the Escobedo opinion I am impressed with the conclusion that Mr. Justice Goldberg diligently sought to confine its application to the case he defined and decided. I would limit its reach by the aggregate—not by a selected item or items—of the congeries of facts which he so painstakingly assembled and by multiple reiterations emphasizes. As demonstrated to my satisfaction by Justice Burke in his dissenting opinion in People v. Dorado (1965) ante, pp. 338, 364 [41 Cal.Rptr. 169, 398 P.2d 361], the recited facts of that case clearly show that the majority ruling therein was not compelled by Escobedo. To the contrary, as hereinafter documented, Dorado appears to me to extend the scope of Escobedo in an area forbidden to us by the
I agree with Chief Justice Traynor that Massiah v. United States (1964) 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], is not controlling here, but I note also a related statement which on its face might appear to be a speculative or advisory ruling relative to a question of law and fact which may or may not arise on the third trial of the case at bench. The proposition is stated by the majority as follows: “The statements made between the time Connie‘s body was found and the time defendant sought to consult again with his attorney present still a different problem. Under our holding in People v. Dorado, supra, p. 338 [42 Cal.Rptr. 169, 398 P.2d 361], these statements are inadmissible unless as to them defendant waived his right to counsel and his right to remain silent. In view of his reference to his attorney‘s advice with respect to making these statements, it is possible that defendant waived his rights as to them. That reference was ambiguous at best, however, and unless the prosecution can present additional evidence of waiver on retrial, these statements should be excluded.” The metage of inferences which may be drawn from the myriad cumulant circumstances of a trial is both primarily and distinctively a trial
I agree with Chief Justice Traynor that on any tenable view of the law “The statements made by defendant before Connie‘s body was discovered are admissible” and that “there is no basis for their exclusion.” These statements alone (i.e., excluding from consideration all other statements by defendant), when considered with the other probative evidence which was properly received, in my view amply support the judgment of the trial court. I also agree that “In the present case the officers’ investigatory and rescue operations were necessarily inextricably interwoven until Connie‘s body was found, and it would be needlessly restrictive to exclude any evidence lawfully obtained during the rescue operations. Under these circumstances we do not believe that the Massiah case is controlling.”
Although, as above shown, I am in full accord with much of the discussion by the Chief Justice, and with a number of his important conclusions, I cannot agree that the judgment must or should be again reversed. It becomes necessary to again refer to what I understand to be the duty unequivocally imposed upon this court by the
I have no quarrel with the forthright narration of facts in the majority opinion of the case at bench. Among other things the majority candidly state “It is not disputed that defendant killed the two girls.” I add that on any reasonable view of the evidence it is not disputable that the evidence sustains the jury‘s implied findings at both the first trial and at the second trial that the object of the two murders was to accomplish the rape of Connie. I cannot find anything in this record which justifies the conclusion of fact or of law that either the conviction of defendant or the sentence of death pronounced thereon constitutes a miscarriage of justice.
Indubitably it is our duty to be concerned with the philosophy as well as the letter of criminal law. Of course our system is not a perfect one. It is not yet given to human beings to create a society perfectly motivated or governed. Men of goodwill may differ sharply in selecting the means to an end, if not as to the objective itself. The ever increasing number in recent years of reversals on technical grounds of judgments in major criminal cases suggests the need for reexamination of the incidents of our philosophy and of our procedures. Are we to abandon or continue to recognize the theory that as between mankind and the lower animals there is a major difference in social responsibility? Are we to continue or abandon the theory that human beings are free moral agents? That those who fail to be restrained by moral concepts may nevertheless be deterred away from, or influenced toward, a given course of conduct by punishment on the one hand or reward on the other? In our organized society today, should the courts, as perhaps the chief instrumentality for attaining its elementary objectives, be primarily concerned with protecting the crime perpetrating nonconformist, not merely in the heretofore recognized constitutional rights of law abiding members, but, as against execution of penal sanctions for demonstrated guilt, in revising procedural rules and applying the revisions retroactively for the benefit of the accused? Or should we give our first concern to protecting law abiding members of that society by firm and prompt enforcement of tenable rules of law as against the rapist-
For the reasons sufficiently articulated in my dissent in People v. Modesto (1963) 59 Cal.2d 722, 735 [31 Cal.Rptr. 225, 382 P.2d 33], I could not then concur in reversing the judgment on the prior appeal. The reversing justices made no finding that it was more probable than not that a verdict more favorable to the defendant would have resulted in the absence of the then declared error. The reversal therefore, as I understand the language of, and respect due, our Constitution, was, and today‘s is, in excess of this court‘s appellate jurisdiction as exclusively granted and specifically limited by
I think it is fair also to add that the reversals of the judgments, both on this appeal and the preceding one, appear to be due not to any incompetence or neglect or mistakes of the investigating or prosecuting officers, or of the trial judges. The reversals have come because courts of appellate jurisdiction have seen fit, or felt compelled, to change the rules governing relevant procedures and to make the changes retroactively effective. If the compulsion for retroactive application is not absolute it should not be indulged. The people of California, as well as this defendant, have a right to due process and fair law enforcement. Among the people who are punished most severely by the new trials are, of course, the family members of the murdered little girls.
It appears to me that the proceedings on, and the results of, the second trial, as illumined also by the record of the first trial, demonstrate that there has been no miscarriage of justice in the trial court.
For all the reasons hereinabove stated I would affirm the judgment.
McComb, J., concurred.