Deats v. Rodriguez

• Decision Date: 03 May 1973
• Docket Number: No. 72-1637.,72-1637.
• Citation: 477 F.2d 1023
• Parties: Donald A. DEATS, Appellant, v. Felix RODRIGUEZ, Warden, New Mexico State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

477 F.2d 1023 (1973)

Donald A. DEATS, Appellant, v. Felix RODRIGUEZ, Warden, New Mexico State Penitentiary, Appellee.

No. 72-1637.

United States Court of Appeals, Tenth Circuit.

Argued March 28, 1973.

Decided May 3, 1973.

Charles T. Flett, Arvada, Colo., for appellant.

Jay R. Rosenthal, Sp. Asst. Atty. Gen. (David L. Norvell, Atty. Gen., with him on the brief), for appellee.

Before SETH and BARRETT, Circuit Judges, and SMITH^*, District Judge.

SETH, Circuit Judge.

The petitioner, Donald A. Deats, appeals from an order of the United States District Court for the District of New Mexico dismissing his petition for a writ of habeas corpus.

Appellant was found guilty in a New Mexico state court of aggravated burglary and larceny of property, and sentenced to concurrent terms in the New Mexico State Penitentiary. He exhausted all possible state remedies and applied to the United States District Court for a writ of habeas corpus, urging as error:

1. That because of pretrial publicity and the refusal of the state judge to grant a change of venue, he did not have a fair trial.

2. That the closing argument of the district attorney which contained references to appellant's refusal to talk to the police officers who arrested him was prejudicial and denied him due process of law.

3. That the presence of a felon on the jury, which fact should have been known to the prosecuting attorney, since the prosecuting attorney allegedly secured the conviction of the jury member, was prejudicial.

Deats' petition for a writ of habeas corpus was dismissed by the trial court without a hearing.

Because the closing argument of the district attorney was prejudicial and requires reversal, it is not necessary to discuss the first or third allegation of error. We trust that when the state retries appellant, the publicity which occurred prior to 1967 when appellant was tried for the crimes herein will have long been forgotten, and a new jury for a new trial will not raise the issue of the effect of a felon sitting on the jury.

During his closing arguments, the district attorney made the following remarks:

"MR. BRANDENBURG: . . . Why didn\'t Mr. Deats tell it when the officer talked to him? He showed a reluctance to testify.

"MR. CALKINS: Object. I will reserve it. I won\'t object to that point.

"THE COURT: All right. Proceed.

"MR. BRANDENBURG: Why didn\'t Mr. Deats tell the officer? If this is the way it happened, why didn\'t he tell them right then? If you were caught in a situation like Mr. Deats was caught in, and you are innocent, what is the first thing you are going to tell the police? Aren\'t you going to tell them exactly what you have been doing? Aren\'t you going to tell them about calling Mr. Farnum? Aren\'t you going to tell them the whole story so they can check it out? And if it turns out to be true, are you going to languish in jail and say, `Forget it, I don\'t want to talk to you?\' I think you will consider this also. . . ."

At the conclusion of the district attorney's closing argument and out of the presence of the jury, Deats' counsel moved for a mistrial on the ground that the closing argument was highly prejudicial and inflammatory. The motion was denied.

The New Mexico Court of Appeals, in State v. Montoya, 80 N.M. 64, 451 P.2d 557, refused to consider this point of alleged error because appellant's counsel had withdrawn his objection to the prejudicial statements during closing argument. The New Mexico Supreme Court also refused to rule on this point. Deats v. State, 80 N.M. 77, 451 P.2d 981.

We find this case to be controlled by United States v. Arnold, 425 F.2d 204 (10th Cir.), and United States v. Nolan, 416 F.2d 588 (10th Cir.), where we held that comments by the prosecuting attorney on an accused's silence were plain, fundamental error, and that we would overlook the lack of objection in the trial court to consider the error. The issue was again considered in Johnson v. Patterson, 475 F.2d 1066 (10th Cir., 1973), where we held that any comment on an accused's silence cannot be made at trial under the guise of its being a prior inconsistent statement admissible under the rule of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, when the accused takes the stand. It is difficult to distinguish the problem here raised from that in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L. Ed.2d 106, wherein comment on a failure to take the stand is not permitted. Also in the circumstances where a defendant does not take the stand, but a prior statement is admitted, this silence is not held to be inconsistent with the prior statement.

If the accused chooses to remain silent on arrest, but at trial, for any one of several good reasons unrelated to the truth or falsity of his statement, chooses to take the stand on his own behalf, whatever he may there say is inconsistent with his prior silence under the view contrary to that taken by this court. Anything said is inconsistent with silence. Thus any change of mind by the accused from initial silence to taking the stand necessarily creates an inconsistent position or statement which cannot be avoided, and is under the contrary view subject to comment. Under such a view, the theory is that if the testimony on the stand is true, the...