Hines v. People

Decision Date19 June 1972
Docket NumberNo. 24618,24618
PartiesJohn M. HINES, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtColorado Supreme Court

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Thomas M. Van Cleave, III, Deputy Public Defender, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Aurel M. Kelly, Asst. Atty. Gen., Denver, for defendant in error.

HODGES, Justice.

Defendant John M. Hines was charged with burglary and found guilty by a jury. By writ of error, he urges reversal on the ground that the prosecution's questioning and closing argument brought forth impermissible references concerning the fact that defendant had exercised his Fifth Amendment right to remain silent when questioned by the police. We agree, and therefore, reverse the judgment and remand this cause for a new trial.

The defendant was accused of burglarizing an apartment from which he removed a color TV set. A resident of the building saw the burglar remove the TV set and obtained the license number of his car. A detective traced the license number to a certain address. When he went to that address, he recognized the defendant's name on a mail box because of previous contact with him. The detective obtained several photographs, including one of defendant, from police department filed and showed them to the witness. She identified the defendant as the burglar. The defendant was thereupon arrested.

At trial, the detective narrated the events up to this point. He then testified that he interviewed the defendant shortly after his arrest and advised him of his constitutional rights. The detective testified that 'at this time Mr. Hines stated that he did not want to make any statement to me concerning this offense.' This comment was not met with any objection from defense counsel.

The defendant testified in his own behalf. The substance of his testimony was that he had been at the Rainbow Billiard Room and the Merry-Go-Round Lounge in North Denver from 8:00 p.m. on approximately 2:15 a.m. on the night of the burglary. The district attorney opened cross-examination of the defendant by asking the defendant if it was true that he had not told the detective about any part of his alibi when he was questioned after his arrest. This line of questioning also passed without any objection.

In closing argument, the district attorney in commenting upon the defendant's alibi testimony and its credibility, stated 'And this innocent man waited until today to tell anybody about it.' No objection was made to this comment.

The defendant in substance asserts that he was unconstitutionally prejudiced by the district attorney's questioning and closing argument, the composite of which brought forth with clarity for the jury's consideration the fact that he had exercised his Fifth Amendment right to remain silent when questioned by the police after his arrest. Although defendant's trial counsel did not make any contemporaneous objections nor raise this issue in his post- trial motion, we, nevertheless, will consider this alleged error because it involves a fundamental right which has purportedly been violated. United States v. Nolan, 416 F.2d 588 (10 Cir. 1969); United States v. Brinson, 411 F.2d 1057 (6 Cir. 1969); Walker v. United States,404 F.2d 900 (5 Cir. 1968); People v. Brown, 83 Ill.App.2d 457, 228 N.E.2d 505 (1967); People v. Harris, 83 Ill.App.2d 422, 228 N.E.2d 179 (1967).

We have studied most of the authoritative cases involving situations where the prosecution's questioning and oral argument have made it clear to a jury that a defendant has exercised his constitutional right to remain silent. The clear weight of authority favors a reversal in such a situation where the prosecution has thus utilized the defendant's silence as a means of creating an inference of guilt. We agree, and hold that a defendant may not be so penalized by the exercise of his Fifth Amendment right to remain silent in the face of accusation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Arnold, 425 F.2d 204 (10 Cir. 1970); United States v. Semensohn, 421 F.2d 1206 (2 Cir. 1970); United States v. Nolan, Supra; United States v. Brinson, Supra; Fowle v. United States, 410 F.2d 48 (9 Cir. 1969); Walker v. United States, Supra; Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586 (1968); United States v. Mullings, 364 F.2d 173 (2 Cir. 1966); Baker v. United States, 357 F.2d 11 (5 Cir. 1966); State v. Ford, 80 N.M. 649, 459 P.2d 353 (1969); People v. Christman, 23 N.Y.2d 429, 297 N.Y.S.2d 134, 244 N.E.2d 703 (1969); People v. Brown, Supra; People v. Harris, Supra; State ex rel. Riendeau v. Tahash, 276 Minn. 26, 148 N.W.2d 557 (1967).

We are not persuaded that Harris v. New York,...

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30 cases
  • Harris v. People
    • United States
    • Colorado Supreme Court
    • 17 January 1995
    ...have severely compromised a defendant's constitutional right to a fair trial. See, e.g., Wilson, 743 P.2d 415; Hines v. People, 179 Colo. 4, 497 P.2d 1258 (1972). See also Jones, 832 P.2d 1036; Adams, 708 P.2d 813; People v. Trujillo, 624 P.2d 924 (Colo.App.1980). In view of the prosecutor'......
  • Jerskey v. State
    • United States
    • Wyoming Supreme Court
    • 27 January 1976
    ...reversible error where the prosecution has used the defendant's silence as a means of creating an inference of guilt. Hines v. People, colo., 497 P.2d 1258 (1972). Other courts have similarly held that reversible error is committed by comment which directs the jury's attention to the fact t......
  • People v. Greer, 08CA0329.
    • United States
    • Colorado Court of Appeals
    • 21 April 2011
    ...in the interest of justice may and should deal with it, even though it is raised for the first time on appeal.”); Hines v. People, 179 Colo. 4, 6, 497 P.2d 1258, 1259–60 (1972) (claim that prosecutor had improperly commented on the defendant's invocation of his right to remain silent); Peop......
  • State v. White
    • United States
    • Idaho Supreme Court
    • 7 July 1976
    ...N.W.2d 190 (1973); State v. Elmore, 467 S.W.2d 915 (Mo.1971); State v. Anderson, 110 Ariz. 238, 517 P.2d 508 (1973); Hines v. People, 179 Colo. 4, 497 P.2d 1258 (1972); State v. Griffin, 120 N.J.Super. 13, 293 A.2d 217 (1972); Reid v. Commonwealth, 213 Va. 790, 195 S.E.2d 866 (1973); Commen......
  • Request a trial to view additional results
1 books & journal articles
  • Avoiding Error in Closing Argument
    • United States
    • Colorado Bar Association Colorado Lawyer No. 24-1, January 1995
    • Invalid date
    ...1975). 41. Id. at 436. 37 42. 515 P.2d 460 (Colo. 1973). 43. The court cited a number of cases with similar results: Hines v. People, 497 P.2d 1258 (Colo. 1972); People v. Mingo, 509 P.2d 800 (Colo. 1973); Montoya v. People, 457 P.2d 397 (Colo. 1969); Griffin v. California, 380 U.S. 609 (19......

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