Harkness v. State, 21252

• Decision Date: 05 November 1991
• Docket Number: No. 21252,21252
• Citation: 820 P.2d 759,107 Nev. 800
• Parties: Glen Theodore HARKNESS, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 759

820 P.2d 759

107 Nev. 800

Glen Theodore HARKNESS, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 21252.

Supreme Court of Nevada.

Nov. 5, 1991.

Morgan D. Harris, Public Defender, David T. Wall and Stephen J. Dahl, Deputy Public Defenders, Clark County, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland and Robert Langford, Deputy Dist. Attys., Clark County, Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant Glen Theodore Harkness, Jr., was charged with murder in the shooting death of his father. At trial, it was adduced that appellant had been drinking and that he shot his father following an argument during which his father apparently indicated appellant could no longer live in his parents' home. After reporting the shooting to a neighbor, appellant drove off in his father's pickup truck and was apprehended by the police about an hour later. Various inculpatory statements made by appellant to the police were admitted at trial, including a tape recorded statement made after appellant had been "Mirandized." Also introduced were inconsistent explanations of the shooting that appellant had given to his mother at various times. Appellant did not testify at trial.

On rebuttal during closing argument, the prosecutor made the following remarks which are the subject of this appeal:

If we have to speculate and guess about what really happened in this case, whose fault is it if we don't know the facts in this case?

These remarks were not objected to by defense counsel. ¹ Later, the prosecutor stated:

Again, we know so little about the case really in terms of what the defendant told us, which naturally raises the logical question, what is he hiding?

Defense counsel objected and moved for a mistrial. The prosecutor explained that he was referring to the inconsistent explanations of the shooting that had been admitted as evidence. The district judge denied the motion for a mistrial.

The jury found appellant guilty of first degree murder with use of a deadly weapon. The district judge sentenced appellant to two consecutive life terms with the possibility of parole. This appeal followed.

Appellant contends that the prosecutor's comments, quoted above, are blatant references to appellant's failure to testify in violation of his fifth amendment rights. He contends that, even if the prosecutor merely intended to comment on the evidence, the prosecutor's statements nevertheless brought attention to the fact that appellant did not testify. Appellant further contends that the error was prejudicial because, although he admitted responsibility for his father's death, it was a close case as to whether the crime was first degree murder, second degree murder, or voluntary manslaughter. We agree that the comments were both improper and prejudicial, and therefore reverse and remand for a new trial.

The United States Constitution states that a defendant shall not "be compelled in any criminal case to be a witness against himself." U.S. Const.Amend. V; see also Nev.Const. Art. 1, sec. 8. A direct reference to a defendant's decision not to testify is always a violation of the fifth amendment. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Barron v. State, 105 Nev. 767, 783 P.2d 444 (1989). When a reference is indirect, the test for determining whether prosecutorial comment constitutes a constitutionally impermissible reference to a defendant's failure to testify is whether "the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant's failure to testify." United States v. Lyon, 397 F.2d 505, 509 (7th Cir.), cert. denied sub nom., Lysczyk v. United States, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968). See also Barron, 105 Nev. at 779, 783 P.2d at 451-52. The standard for determining whether such remarks are prejudicial is whether the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 21-24, 87 S.Ct. 824, 826-28, 17 L.Ed.2d 705 (1967).

We hold that the prosecutor's comments constituted improper reference to appellant's failure to testify. Although the state contends that the prosecutor merely intended to comment on the evidence, the test is whether the prosecutor "manifestly intended" it or whether "the jury would naturally and necessarily" take it to be a comment on the accused's failure to testify. Lyon, 397 F.2d at 509; see also Barron, 105 Nev. at 779, 783 P.2d at 452. Taken in context, we believe the jury would have taken the prosecutor's comments to be references to appellant's silence. Pointing out discrepancies or gaps in the evidence and suggesting that appellant is responsible for them is something the jury would "naturally and necessarily" take to be a comment on the accused's failure to testify. With regard to the second comment, the prosecutor had finished talking about second degree murder and had just changed the topic to first degree murder. He said he wanted to discuss some "rather curious factors." The jury would "naturally and necessarily" understand the second comment to mean that a "curious factor" which caused the jury to "know so little about the case" was appellant's "hiding" of the truth by exercising his right to remain silent. We therefore conclude that the comments were constitutionally impermissible.

Moreover, the question "whose fault is it if we don't know the facts in this case?" suggests that the accused, rather than the state, has the burden of proving or disproving the crime. Such a suggestion is clearly impermissible:

It is a fundamental principle of criminal law that the State has the burden of proving the defendant guilty beyond a reasonable doubt.... The tactic of stating that the defendant can produce certain evidence or testify on his or her own behalf is an attempt to shift the burden of proof and is improper.

Barron, 105 Nev. at 778, 783 P.2d at 451. The first comment was therefore unconstitutional for this reason as well.

When judged by the applicable standard, the error cannot be deemed harmless beyond a reasonable doubt. This appears to have been a close case, not with regard to culpability, but with regard to the degree of culpability to attach to the crime. Although the trial transcript is not that long, the jury spent three hours in deliberation before rendering a verdict. It is quite probable that the jury took into account in its deliberating process the prosecutor's suggestions that appellant was responsible for gaps in the evidence, had the burden of proving or disproving the crime, and was hiding the truth. Although the jury was instructed to draw no inferences from appellant's silence, this instruction was not a sufficient cure for the prosecutor's unconstitutional remarks. We conclude that the errors were prejudicial. Accordingly, we reverse appellant's judgment of conviction, and we remand this matter for a new trial.

STEFFEN, Justice, concurring:

I have elected, reluctantly, to concur in the majority's reversal because it is in accordance with current concepts of constitutional law announced by the United States Supreme Court and dutifully followed by this court. I nevertheless question whether the law as it now exists is sound, socially desirable, and warranted under the letter or spirit of the fifth amendment. My reason for writing a concurrence, therefore, is simply to provide a cacophonous note to a judicial choir that has sung on the same key for too long.

Harkness's conviction is being reversed because the prosecutor in effect commented on the former's failure to fill in the blanks concerning factual details that were known only to Harkness. Harkness elected not to testify at trial. Predictably, the majority observes that "[a] direct reference to a defendant's decision not to testify is always a violation of the fifth amendment." Primary support for the unquestioned proposition was the case of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

Although I do not criticize my brethren in the majority for the result reached in their opinion, I nevertheless believe that the opinion too readily accepts the proposition that reference to a defendant's failure to testify is a violation of the fifth amendment. Although adherence to United States Supreme Court opinions concerning the meaning and effect of provisions within our federal constitution is both constitutionally mandated and desirable in our federal system of government, I consider it both responsible and sufficiently deferential to preeminent federal judicial authority for state courts to address areas of concern that may be at odds with the pronouncements of the Supreme Court. Attesting to the fact that constitutional law is not static are the numerous United States Supreme Court cases that have overruled or modified prior pronouncements of that court regarding constitutional principles.

It is true that the Griffin court stated that comment on a defendant's refusal to testify "is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Griffin, 380 U.S. at 614, 85 S.Ct. at 1232-33. It is likewise true that the court then concluded that "the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id. at 615, 85 S.Ct. at 1233.

The Griffin ruling has been questioned and criticized by numerous judges and scholars. An appropriate starting point for such criticism is the amendment itself. The pertinent language of the fifth amendment specifies in unambiguous terms, "nor shall [any person] be compelled in any criminal case to be a...