Grayson v. State, s. 229-84
| Decision Date | 19 December 1984 |
| Docket Number | 922-84,Nos. 229-84,s. 229-84 |
| Citation | 684 S.W.2d 691 |
| Parties | Leonard Charles GRAYSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Kerry P. Fitzgerald, Dallas, Bill Glaspy, Mesquite, for appellant.
Henry Wade, Dist. Atty. and Jeffrey B. Keck, Jerry Banks and Paul Macaluso, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was charged by two indictments with the offense of attempted capital murder. Each indictment was enhanced by two prior felony convictions. The cases were joined for trial before a jury. The jury found appellant guilty of both offenses, found the enhancement allegations true, and assessed punishment at life imprisonment for each offense. The Fifth Court of Appeals (Dallas) affirmed both convictions in an unpublished opinion. Grayson v. State, Nos. 05-82-00855 and 00856-CR, 12-27-83. We granted appellant's petition for discretionary review to examine the Court of Appeals' holding that the trial court properly refused to allow appellant to question a defense witness in the presence of the jury because the witness had not waived her Fifth Amendment privilege against self-incrimination.
This case rose out of a drug raid on a residence in Dallas. Gunfire from the residence wounded two police officers taking part in the raid. Several people were in the residence at the time, and appellant's defense was that some other occupant had shot the officers.
Appellant took the stand at the guilt-innocence phase and testified at length. His counsel then sought to call as a witness Janice Joiner, who had been present in the house at the time of the shooting.
The trial judge retired the jury and had Joiner, who was under indictment and in custody of the Sheriff's Department, brought in. The judge then permitted Joiner to consult her attorney, who was also in the courtroom, about "whether or not she is willing or desires to testify in this case."
After a brief recess, and with the jury still out of the courtroom, Joiner was sworn and took the stand. The following exchange took place:
The court kept Joiner on the stand so that appellant's counsel could make a bill of exceptions. The questioning went as follows:
Following another brief recess, the court addressed Joiner again:
Appellant's counsel then asked Joiner five questions about events surrounding the shooting. 1 Joiner replied by invoking the Fifth Amendment each time. Appellant's counsel then stated to the trial judge:
The Fifth Amendment privilege against self-incrimination is binding upon the states, and "the same standards must determine whether an accused's silence in either a federal or state proceeding is justified." Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
The Court of Appeals applied the standard of Klein v. Harris, 667 F.2d 274, 287 (2nd Cir.1981), that a waiver of the privilege should be inferred from a witness' prior statements only if: "(1) the witness' prior statements have created a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth, and (2) the witness had reason to know that his prior statements would be interpreted as a waiver of the fifth amendment's privilege against self-incrimination." The court reasoned that because the jury heard none of Joiner's testimony, the finder of fact was not left with nor prone to rely on a distorted view of the truth. Under the test of Klein v. Harris, the court found no waiver.
The need to avoid distortion of the evidence is one concern of Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951). In Rogers, petitioner testified under subpoena before a federal grand jury that she had held the post of Treasurer of the Communist Party of Denver until January, 1948, and that, by virtue of her office, she had been in possession of membership lists and dues records of the Party. She denied having the records any longer, and testified that she had turned them over to another. When asked to identify the person to whom she gave the Party's books, she refused.
The Supreme Court affirmed petitioner's commitment for contempt. The Court noted that her claim of the privilege against self-incrimination ...
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