State v. MontoyaState v. Montoya
Arturo Carlos Montoya, charged by bill of information with having committed armed robbery in violation of
The offense for which defendant was prosecuted was the armed robbery of Joseph Marino, a drug clerk working at the Livaudais Pharmacy, 2733 Dauphine Street, New Orleans. To establish defendant‘s participation in the armed robbery the State, in addition to the testimony of Mr. Lawton J. LeBlanc and Mr. Joseph Marino, relied on the defendant‘s silence under police interrogation regarding his possession of drugs after his arrest.
ASSIGNMENT OF ERROR NO. 17
During the prosecution‘s direct examination of Detective Laird, the arresting police officer, the following interrogation, objection, ruling and testimony occurred:
“BY [PROSECUTOR]:
“Now, did you ask Montoya where he got these drugs, and—
“BY [DEFENSE ATTORNEY]:
“Your Honor, at this time, I would object to any testimony in regard to what—
“BY THE COURT:
“Well, let him answer yes or no.
“BY [DEFENSE ATTORNEY]:
“Alright.
“BY THE WITNESS:
“Yes, we did ask him.
“BY [PROSECUTOR]:
“Q. You did ask him.
“A. Yes sir.
“Q. Did he tell you?
“A. No sir. * * *”
In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) the United States Supreme Court held that a state prosecutor may not seek to impeach a defendant‘s exculpatory story by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. The Court stated:
“The warnings mandated by [Miranda], as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee‘s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S., at 177, 95 S.Ct. at 2137. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person‘s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, 422 U.S. at [171] 182-183, 95 S.Ct. [2133] at 2139 [45 L.Ed.2d 99] put it very well: `. . . when a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone
would reasonably conclude from Miranda warnings that this would not be the case.‘” 426 U.S. at 617, 96 S.Ct. at 2245, 49 L.Ed.2d at 97-98. (Footnotes omitted.)
In the instant case the defendant did not take the stand. Thus, there is even less justification here for the State to call attention to his silence at the time of arrest than there was in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest. Therefore, we conclude it was clearly reversible error for the trial court to permit the State to use the arrested person‘s silence against him at trial. Doyle v. Ohio, supra; cf. United States v. Hale, 422 U.S. 71, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).
The only quibble we foresee with this ruling is the contention that the defense attorney waived his objection by saying “alright” after the trial judge overruled his objection and by failing to reiterate his objection. However, the record is equally subject to the interpretation that, having unsuccessfully objected to the improper threshold question by which the prosecution gained entrance to a forbidden area of inquiry, defense counsel concluded his objection to this line of questioning was preserved. Therefore, in the absence of clear and convincing evidence that defense counsel intended to waive his objection to a substantial violation of defendant‘s constitutional rights, we will construe the record against such a waiver. The trial judge should have sustained his objection because it was directed to a question which could have no purpose other than to elicit from the police officer the fact that the defendant remained silent upon his arrest in contravention of defendant‘s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Doyle v. Ohio, supra. Cf. United States v. Hale, supra.
ASSIGNMENT OF ERROR NO. 23
Before the case was submitted to the jury, defendant objected to the trial judge‘s jury instruction that one in unexplained possession of recently stolen property is presumed to be the thief. Because defendant objected to the trial judge‘s instructions on the effect of the
The portion of the charge objected to is as follows:
“* * * Now, in law there are numerous presumptions. A legal presumption relieves him in whose favor it exists from the necessity of any proof, but, may nonetheless be destroyed by rebutting evidence. Such is the presumption that the defendant intended the natural and probable consequences of his acts, that the defendant is innocent, that the defendant is sane and responsible for his actions, that the person in the unexplained possession of property recently stolen is the thief, that evidence under the control of a party and not produced by him, was not produced because it would not have aided him, and so on.
“From the recent possession of stolen property, guilt may be inferred unless, there is a reasonable account given of the property as having been lawfully and not feloniously obtained. This inference or presumption is strengthened or weakened in accordance with the length of time between the theft and the time of the finding of the property. * * *”
Defendant contends this instruction had the effect of abridging his constitutional right to remain silent in the face of the State‘s accusation.
Instead, the State was content to rely simply on the presumption as it is formulated in article 432 of Title 15, that one in the unexplained possession of property recently stolen is the thief. Of course, theft is but one element of the crime of armed robbery.
The constitutionality of
As we said in State v. Searle, supra,
“* * *
La.R.S. 15:432 is * * * so indefinite in some respects that it easily lends itself to unconstitutional application, depending upon the trial judge‘s use of it in articulating his jury instructions.” 339 So.2d at 1203.
The phrase “unexplained possession” cannot constitutionally refer to defendant‘s failure to take the stand in his own defense. Furthermore, under the United States Supreme Court‘s ruling in Doyle v. Ohio, supra, the fact of an accused‘s post-arrest silence cannot be used to establish that his possession of recently stolen property is “unexplained.” See also, United States v. Hale, supra. As we stated in State v. Searle, supra,
“* * * If the meaning of the presumption as conveyed to the jury by an instruction in a particular case is that the defendant must personally explain his possession of the stolen property to the police or the jury, reversible error will have been committed. * * * Additionally, the statute cannot be interpreted to mean, or a jury led to believe, that the defendant must do anything other than produce some evidence contrary to or, at most, create a reasonable doubt as to the presumed fact in order to destroy the
presumption.” 339 So.2d at 1203. (Citations omitted.)
During the course of his direct examination of Detective Laird, the State‘s attorney, in an apparent attempt to establish that Montoya‘s possession of the stolen property was unexplained, elicited, over defense objection, the fact of Montoya‘s failure to explain his possession of the stolen property after his arrest. In his closing argument the assistant district attorney made the following observations:
“* * * But the other three items, they definitely positively identified them as the drugs that were taken from them just an hour and forty-five minutes before they were found on the person of the defendant. Now, this is the presumption. Now, of course, just like the presumption of innocence can be rebutted—the presumption that the defendant is a thief can be rebutted.—
“* * *
“* * * Now, gentlemen, as I said, this presumption can be rebutted. It can be overcome. How? By complying with the law, furnishing explanations of how he came into the possession of this property, which we now know is stolen.—
“* * *
“* * * He refused to tell him where he got this bottle, or the rest of the drugs, or the money. So that, you have no explanation. You have the presumption unrebutted. Now, this is one instance where the defendant does have to do something. He‘s got to explain his possession. He‘s got to explain how he came into possession of this property.” (Emphasis supplied.)
Counsel objected to these arguments on the ground that they violated Montoya‘s constitutional right to remain silent.3 The trial judge overruled counsel‘s objections and commented to the jury:
“Gentlemen of the jury, when these arguments are over, I will instruct you on what the law is. You are to apply that law to the evidence which you heard from this witness stand to arrive at your judgment. * * *”
It was incumbent on the trial judge, in giving his jury instructions relative to the presumption of theft that can be drawn from the unexplained possession of stolen goods, to inform the jury of the significance of the phrase “unexplained possession.”
In view of the State‘s improper references to defendant‘s post-arrest silence, which the State had used to show that Montoya‘s possession of the stolen property was “unexplained,” the jury, given only the trial judge‘s instruction previously reproduced, probably assumed that Montoya‘s post-arrest silence should be considered by them in determining whether to apply the
Had the State not used Montoya‘s post-arrest silence to show that his possession of the recently stolen property was unexplained, perhaps the trial judge‘s instruction would not have substantially violated his constitutional rights. Given the facts of this case, it did.
For the foregoing reasons defendant‘s conviction and sentence are set aside, and the case is remanded for a new trial.
SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.
Notes
“* * * I just spoke of the presumption of innocence. Well, that presumption is contained in Title 13, [sic] Section 432 of the Louisiana Revised Statutes. I‘d like to read you the entire article so that you can better understand it. `A legal presumption‘—and the judge is going to charge you on this at the conclusion of the trial also. `A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; * * * [one such presumption is] that the person in the unexplained possession of property recently stolen is the thief—
“* * *
“Now, all this means, is that there are certain things that are so logical that the law presumes it. The law says that you don‘t have to prove it. This doesn‘t mean that it can‘t be rebutted. For instance, remember the word `unexplained‘—I would like to reiterate the legal presumption, that a person who is found in possession of recently stolen property is presumed to be the thief.—”
Also, the State‘s attorney discussed the presumption at length in his closing argument, over defense objection.