Johnson v. People

Citation473 P.2d 974,172 Colo. 406
Decision Date24 August 1970
Docket NumberNo. 23631,23631
PartiesMatthew JOHNSON, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
CourtSupreme Court of Colorado

Truman Coles, Asst. State Public Defender, Earl S. Wylder, David G. Manter, Deputy State Public Defenders, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James F. Pamp, Eugene C. Cavaliere, Asst. Attys. Gen., Denver, for defendant in error.

HODGES, Justice.

Defendant Matthew Johnson was convicted on a charge of rape. At the trial by jury, the defendant took the stand and testified that he did have intercourse with the complaining witness, but with her consent and at her invitation after he caught her while she was attempting to steal his automobile.

During the cross-examination on this testimony by the district attorney, the following questions were asked and answered:

Q. 'Now, Mr. Johnson, you didn't tell the police this, did you?

A. 'No, sir.

Q. 'The first time then that anyone has heard this is here today in court, is that correct?

A. 'No, sir. I told Mr. Hellerstein when he came out to see me in the County Jail.

Q. 'Mr. Hellerstein, your attorney, is that correct?

A. 'Yes, sir.'

The defendant urges that the district attorney's questions and answers during this cross-examination amounts to impermissible comments by the prosecution on the defendant's constitutional right to remain silent after arrest.

Upon the request of this court, the record was supplemented with a full transcript of the closing arguments. In the rebuttal argument of the district attorney, we note a brief reference as to the defendant not telling the police about his testimony version of what transpired. This would also be subject to the same objection interposed against the cross-examination questions and answers above quoted. Under the particular facts of this case, it is our view that reversible error is not involved in either the cross-examination or the rebuttal closing argument of the district attorney, nor does the effect of both of these amount to reversible error.

The defendant also urges reversal on the ground that the evidence presented at the trial was insufficient to justify a conviction of rape. In our view, this contention is not supportable.

I.

In claiming reversible error, the defendant advances the proposition that the foregoing cross-examination of the defendant created a strong inference that the defendant's constitutional right to remain silent after arrest had been exercised; and furthermore, that if he were innocent as he claimed in his trial testimony, he would have, at the time of arrest or later, made the same denial or explanation to investigating officers. In effect, he is stating that the prosecution improperly used the fact that he stood mute or claimed his privilege to remain silent in the face of accusation. The defendant cites the following statement from Miranda v. Arizona, 384 U.S. [172 Colo. 409] 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, to support his contention that the prosecution's cross-examination in this regard requires reversal:

'* * * it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.'

In accord with Miranda, the defendant also emphasizes the holdings of United States ex rel. Smith v. Brierly, 267 F.Supp. 274 (E.D.Pa. 1967); McCarthy v. United States, 25 F.2d 299 (6th Cir. 1928); and United States v. Pearson, 344 F.2d 430 (6th Cir. 1965) to support his argument that the involved cross-examination in effect was a prohibited comment by the prosecution on the defendant's constitutional right to remain silent.

In addition to the cases cited by the defendant, we have examined several recent cases which relate to fact situations where comment by the prosecution, instructions to the jury, or questioning of witnesses was held to be improper and a basis for reversible error because these actions drew to the attention of the jury the fact that the defendant either elected not to testify or exercised his constitutional right to remain silent when questioned by the police. See United States v. Arnold, 425 F.2d 204, announced April 29, 1970 (10th Cir. 1970); United States v. Nolan, 416 F.2d 588 (10th Cir. 1969); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586 (1968); Montoya v. People, Colo., 457 P.2d 397.

In all the cases examined, we note one common element which is lacking in this case, and therefore, in our view, renders this case distinguishable. All of the cases cited above involved a direct reference to the fact that the accused had elected not to testify or had exercised his right to remain silent when questioned by the police. Additionally, in these cases there was further comment in the questioning, in the closing argument, or in the instructions which directed the jury's attention to the defendant's constitutional right not to testify or his constitutional right to refuse to make any statement to the police.

The facts of the instant case which, in our view, removes it from the sanction of Miranda and the other cited cases, are as follows:

(1) Here, the defendant testified in his own behalf. He gave an account of his relationship with the complaining witness which was in direct conflict with the evidence presented by the prosecution and it pointed up a complete variance between his version of what occurred and the complaining witness' account of the events in question.

(2) In neither the cross-examination nor the brief comment in his oral argument did the district attorney make any direct reference to the fact that the defendant ever exercised his constitutional right to remain silent when interrogated by the police. The fact is that there is nothing in this record to show whether or not the defendant was interrogated regarding this charge by the police or whether or not the defendant exercised his constitutional right to remain silent and to refuse to say anything relating to this alleged crime.

We believe this case demonstrates a close approach to a twilight zone in which two dogmas of law are in competition, namely: (1) the prohibition against any infringement on the constitutional privilege...

To continue reading

Request your trial
13 cases
  • Johnson v. Patterson
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 22, 1973
    ...tried and convicted for rape in the state of Colorado and the judgment of conviction was affirmed on direct appeal. Johnson v. Colorado, Colo., 172 Colo. 406, 473 P.2d 974. The sole issue presented here, which was given full consideration on direct appeal, is whether the prosecution's quest......
  • Hines v. People
    • United States
    • Colorado Supreme Court
    • June 19, 1972
    ...the instant case. The district attorney here has gone far beyond the danger point of potential prejudice referred to in Johnson v. People, 172 Colo. 406, 473 P.2d 974 and therefore reversible error is clearly demonstrated We note that this problem in relation to alibi need not arise in the ......
  • People v. Fierro
    • United States
    • Colorado Supreme Court
    • February 19, 1980
    ...in every criminal prosecution for unlawful sexual acts. People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973); Johnson v. People, 172 Colo. 406, 473 P.2d 974 (1970); LaBlanc v. People, 161 Colo. 274, 421 P.2d 474 (1967). Rather, the need for corroboration is determined through an ad hoc ......
  • People v. McCormick
    • United States
    • Colorado Supreme Court
    • April 2, 1973
    ...is necessary in every rape to support a conviction. Rather, each case must be decided on its own facts and circumstances. Johnson v. People, 172 Colo. 406, 473 P.2d 974; LaBlanc v. People, 161 Colo. 274, 421 P.2d 474. Here, however, the facts and circumstances, if believed, substantially co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT