Hines v. Com.

• Decision Date: 22 April 1977
• Docket Number: No. 760464,760464
• Parties: Ronald Lamont HINES v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 262

234 S.E.2d 262

217 Va. 905

Ronald Lamont HINES v. COMMONWEALTH of Virginia.

Record No. 760464.

Supreme Court of Virginia.

April 22, 1977.

Michael Morchower, Richmond (John W. Luxton, Ott, Morchower, Thompson & McMullan, Richmond, on brief), for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

Ronald Lamont Hines contends that an instruction given at his trial relative to his failure to testify violated his Fifth Amendment rights and constituted prejudicial error requiring a reversal of his conviction.

Hines was indicted for (1) the possession of heroin with intent to distribute; (2) possession of drug paraphernalia; and (3) possession of marijuana. At his trial appellant did not testify in his own behalf and introduced no evidence. The jury found defendant guilty as charged and fixed his punishment at ten years in the penitentiary, twelve months in jail and a fine of $1,000, and twelve months in jail, respectively. Judgment was entered by the trial court, and this appeal was noted.

A search of appellant's apartment, made by Richmond police officers pursuant to a search warrant, disclosed approximately 52 packages of heroin, some marijuana, and drug paraphernalia, including a spoon, strainer, needle and syringe. At the time of Hines' arrest, 24 days after the search, he had in his possession United States currency in the amount of $418. Defendant told police that he won the money gambling.

During closing argument, the Commonwealth's Attorney made the following statement: "Well, did you hear any did you hear witnesses on behalf of the defendant come in here and tell you that he was gambling . . . and that's how he got his money?" Counsel for defendant objected on the grounds that the argument was not relevant; that the burden of proof was on the Commonwealth; and that since there was no obligation on the part of defendant to offer any evidence his failure to do so was not a proper subject of comment. In the absence of the jury the trial judge observed that he did not think the Commonwealth's Attorney had "entered the forbidden line. The forbidden line is comment on defendant's failure to testify. Why can he not comment on the failure to produce evidence?" After the exchange with counsel the trial court said: "In light of your objection, I will give a further instruction . . . which I think the jury ought to have anyhow . . . That instruction does not say anything about the failure to produce evidence." The jury returned, and the court gave the following instruction, to which defendant objected:

"Failure of the defendant to testify creates no presumption against him and in considering his innocence or guilt, his failure to testify is not a circumstance which the jury is entitled to consider."

Virginia Code § 19.2-268, which affords an accused the opportunity to testify or not, as his interests dictate, also provides that "his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by the prosecuting attorney". We have said that the statutory prohibition against comment upon the failure of the accused to testify is so positive, so clear and so direct, that it is unnecessary to enter the realm of speculation to discover the intention of the lawmakers. In unambiguous language they have said it shall not be done. And we have held that the requirement of the section must be strictly observed. Banovitch v. Commonwealth, 196 Va. 210, 83 S.E.2d 369 (1954).

In determining whether a remark falls within the boundary of the prohibition that a prosecutor shall not make an adverse comment before the jury on a defendant's failure to testify, the test is whether, in the circumstances of the particular case, "the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify". Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). See also United States v. Williams, 172 U.S.App.D.C. 290, 521 F.2d 950, 953 (1975).

In the instant case, appellant had a large sum of currency in his possession at the time of his arrest. It was obviously the theory of the Commonwealth that this money was obtained in the course of defendant's illegal trafficking in drugs. The purpose of the prosecutor's argument was to direct the jury's attention to the fact that there was no other explanation for defendant's possession of such a sum. The trial judge correctly concluded that this argument was not a comment upon defendant's failure to testify. See Washington v. Commonwealth, 216 Va. 185, 217 S.E.2d 815 (1975); Miller v. Commonwealth, 153 Va. 890, 149 S.E. 459 (1929); Sutton v. Commonwealth, 85 Va. 128, 7 S.E. 323 (1888). However, because of the objection that had been made and apparently because the jury might possibly have construed the argument of the prosecuting attorney as a reference to the failure of the accused to testify, the court gave the cautionary instruction in dispute. The trial judge was faced with the alternatives of overruling the objection made by defendant and permitting the prosecutor to continue his argument; of declaring a mistrial; or of sustaining the objection and giving the jury a cautionary instruction.

Appellant argues that his defense was predicated upon two basic principles the presumption of innocence and the burden of proof required for a conviction. He exercised his Fifth Amendment right to remain silent at trial, and, in the exercise of trial strategy, he did not request an instruction that the jury was not to draw a negative inference from his silence. It is his contention that when the court voluntarily gave such an instruction, it magnified appellant's failure to testify and raised certain adverse inferences in the minds of the jurors which would not otherwise have occurred. Hines relies strongly upon Griffin v. State of California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), where the Court held 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".

In Poole v. Commonwealth, 211 Va. 262, 176 S.E.2d 917 (1970), counsel there also relied primarily on Griffin to sustain his position that a volunteered instruction commented improperly on Poole's failure to testify. We pointed out that Griffin involved a materially different comment to the jury because the judge there instructed the jury that the failure of defendant to testify could be considered as tending to indicate the truth of the evidence produced against him; and further, that, although the instruction was authorized by the California constitution, it violated Griffin's Fifth Amendment privilege against self-incrimination. In Poole the judge specifically instructed the jury that Poole's failure to testify should not prejudice him on the issue of guilt or punishment. We concluded that the judge's comments did not come within the rule of Griffin or violate Poole's Fifth Amendment privilege against self-incrimination.

In the case under review, the trial judge specifically told the jury that the failure of Hines to testify created no presumption against him and that such failure was not a circumstance which the jury was entitled to consider in determining the guilt or innocence of the accused, both being correct statements of the law.

The Attorney General and counsel for defendant agree that the specific question involved here has never previously been considered by this Court. Both also agree that the authorities are divided on the propriety of giving such an instruction when it is unrequested.

The most recent case in point is State v. Piper, 113 Ariz. 390, 555 P.2d 636 (1976). There the Arizona Supreme Court reaffirmed its holding in State v. McAlvain, 104 Ariz. 445, 454 P.2d 987 (1969), cert. denied, 396 U.S. 1023, 90 S.Ct. 597, 24 L.Ed.2d 516 (1970), that it is ". . . better practice for the trial judge to give the instruction . . . (RAJI 8) . . . only if . . . requested by the defendant, but it is not reversible error if . . . given without request". 104 Ariz. at 448, 454 P.2d at 990. ¹ In Piper the defense sought to have the court extend McAlvain by holding that the giving of such a cautionary instruction over the objection of defendant would constitute reversible error. The court stated:

"This argument has been presented in many cases, but rarely successfully, and we decline to extend McAlvain in such a way.

"The trial court is required, we now hold, to give this instruction upon request of a defendant. A.R.S. § 13-163(B); State v. Dean, 8 Ariz.App. 508, 447 P.2d 890 (1968); State v. Hale, Or.App., 537 P.2d 1173 (1975); Kimmel v. People, 172 Colo. 333, 473 P.2d 167 (1970); State v. Baxter, 51 Haw. 157, 454 P.2d 366 (1969), cert. denied, 397 U.S. 955, 90 S.Ct. 984, 25 L.Ed.2d 138 (1970).

"It is certainly not reversible error if the instruction is given without request. State v. Wheeler, 108 Ariz. 338, 498 P.2d 205 (1972); State v. McAlvain, supra. In a joint trial, a court must give the instruction to a jury upon request of one codefendant, even where other codefendants may object. State v. Dean, (8 Ariz.App. 508, 447 P.2d 890) supra; United States v. Epperson, 485 F.2d 514 (9th Cir. 1973); United States v. Schroeder, 433 F.2d 846 (8th Cir. 1970), cert. denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 244 (1971); United States v. Kelly, 349 F.2d 720 (2d Cir. 1965), cert. denied, 384...