People v. Bostick

• Decision Date: 03 June 1965
• Docket Number: Cr. 7423
• Citation: 44 Cal.Rptr. 649,62 Cal.2d 820,402 P.2d 529
• Court: California Supreme Court
• Parties: , 402 P.2d 529 The PEOPLE, Plaintiff and Respondent, v. George W. BOSTICK, William Alfred Davis, Jr., Clarence Pitts and Jimmie Lawson, Defendants and Appellants.

Page 649

44 Cal.Rptr. 649

62 Cal.2d 820, 402 P.2d 529

The PEOPLE, Plaintiff and Respondent, v. George W. BOSTICK, William Alfred Davis, Jr., Clarence Pitts and Jimmie Lawson, Defendants and Appellants.

Cr. 7423.

Supreme Court of California, In Bank.

June 3, 1965.

B. T. Davis, Jr., Robert W. Stanley and Erling J. Hovden, Public Defender, under appointment by the Supreme Court, James L. McCormick and J. Stanley Brill, Deputy Public Defenders, and Lee, La Vigne & Davis, Los Angeles, for defendants and appellants.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendants George W. Bostick, William Alfred Davis, Jr., Clarence Pitts and Jimmie Lawson were charged with the murder of Oscar J. Williams, and with robbing Williams while armed with a deadly weapon. Bostick and Pitts were charged with and admitted two prior felony convictions. A jury found each guilty of murder in the first degree, guilty of the robbery, and of the charge of being armed at the time of the commission of the offense. On the penalty issue, the same jury imposed the death penalty on Bostick, and life imprisonment on his three codefendants. Motions for new trial were denied, Bostick's motion to reduce the penalty was denied, and each of his codefendants was denied probation. Bostick's appeal is automatic (Pen.Code, § 1239). The appeals of Pitts, Lawson and Davis were taken over by this court in order to have the four appeals heard and decided together.

On May 28, 1964, we filed our opinion reversing the judgment imposing the death penalty on Bostick, and affirming the judgments in all other respects. On June 24, 1964, we granted a rehearing for the purpose of allowing the parties to be heard on the impact, if any, of the decision of the United States Supreme Court in the case of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 which decision was filed subsequent to our original opinion herein, and which touched upon a constitutional question raised by these defendants in their original briefs on appeal. Malloy held that the Fifth Amendment privilege against self-incrimination is available to a defendant in a state court, via the Fourteenth Amendment. The defendants here had claimed (and we had disallowed the contention) that the issue presented in Malloy (then pending) required reversal of the long-established California rule that court and prosecutor may comment, to a limited degree, upon a defendant's failure to testify in a criminal proceeding.

Subsequently we requested all counsel to investigate and argue the possible relevancy of the rules announced by the United States Supreme Court in two additional decisions filed on June 22, 1964 (two days before we granted the rehearing herein). In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the higher court ruled that confessions obtained by the police from an accused person who was denied opportunity to consult with counsel, and who was not warned of his constitutional right to remain silent, were inadmissible at trial. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, held invalid certain procedures in the determination of the allegedly involuntary nature of extrajudicial confessions. Thus, the following three new questions were presented: (1) Did the comment of the court and the prosecuting attorney regarding the failure of the several defendants to testify, violate defendants' privilege against self-incrimination? (2) Did the manner in which any of defendants' confessions were obtained render them inadmissible under the rule of Escobedo? (3) Did the manner in which the trial court determined the allegedly involuntary nature of such confessions violate the rule of Jackson? This last issue need not be passed on because we have determined, for reasons hereafter set forth, that the judgment of guilt as to each defendant must be reversed for a violation of the rules set forth in Escobedo, supra.

Comment on defendants' failure to testify:

Although Davis and Lawson each testified on voir dire as to the allegedly involuntary nature of their extrajudicial confessions, and all defendants testified during the penalty phase of the trial, no defendant took the stand on the issue of his guilt. At the conclusion of the guilt phase of the trial the prosecutor argued, and the court instructed the jury, regarding the legal effect of that failure to testify. It is not urged that such comment or instruction went beyond the limits of the rules expressed in People v. Adamson, 27 Cal.2d 478, 165 P.2d 3, and affirmed in Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903. Defendants do contend, however, that both Adamson decisions were impliedly overruled by Malloy. This position has been affirmed by the United States Supreme Court, which recently held that our comment rule violates the Fifth Amendment privilege against self-incrimination (Griffin v. California, 380 U.S. 609, ^* 85 S.Ct. 1229, 14 L.Ed.2d 106). It follows, therefore, that the comment of the prosecutor and the trial court's instruction herein each constituted error. That portion of section 13 of article I of the California Constitution which purports to authorize such comment must bow to the superior mandates of the Fifth and Fourteenth Amendments to the United States Constitution.

Such error, unless it resulted in a miscarriage of justice, does not, however, automatically require a reversal if article VI, section 4 1/2, of our Constitution is applicable to it. We are of the opinion that such section is applicable.

The contention that the section is not applicable to errors involving due process under the Fourteenth Amendment finds some support in language to that effect in such cases as People v. Kiihoa, 53 Cal.2d 748, 752, 3 Cal.Rptr. 1, 349 P.2d 673; People v. Modesto, 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33; People v. Muza, 178 Cal.App.2d 901, 3 Cal.Rptr. 395; and in Witkin, California Criminal Procedure (1963) 733-734. Such federal decisions as Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Jackson v. Denno, supra, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and similar cases dealing with the admission of involuntary confessions also give some support to this contention. The language of these and other authorities, when separated from the problem there under discussion, appears to support the proposition that whenever the error is predicated upon constitutional grounds including a denial of due process under the Fourteenth Amendment it is reversible per se, and the resulting judgment is not saved by the fact that the error was not prejudicial. However, when such authorities are viewed together with those which have failed to reverse in the presence of acknowledged constitutional error, it becomes apparent that those requiring reversal per se were either cases dealing with the erroneous admission of confessions or cases in which the trial was fundamentally unfair. (See, e. g., People v. McKay, 37 Cal.2d 792, 798, 236 P.2d 145.) Other authorities (both federal and state) indicate that in many other situations the courts have held error which constituted a denial of due process or a violation of some other constitutional right to have been nonprejudicial and hence nonreversible. (Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.)

There is nothing in Malloy or Griffin that suggests that the highest federal court considers every violation of due process to be prejudicial per se. Many prior decisions of the United States Supreme Court indicate that it will not reverse for every acknowledged constitutional error, some of which dealt with error of the type alleged herein.

In Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, the court held that comment on the defendant's reliance on his privilege against self-incrimination was error, but failed to reverse because the error had been waived. That was not tantamount to affirmance because the error was nonprejudicial, but indicates that denial of due process is not always reversible per se.

In Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650, the court reversed because of the prosecutor's comment on defendant's failure to take the stand as a witness. There the court held the comment to be error because of a federal statute requiring that no presumption shall be created against defendant by reason of his decision not to testify, and therefore was not required to rely on the constitutional provisions. However, the following language (at p. 70, 13 S.Ct. at 768) is persuasive herein: 'We do not see how this statute can be completely enforced, unless it be adopted as a rule of practice that such improper and forbidden reference by counsel for the prosecution shall be regarded good ground for a new trial in all cases where the proofs of guilt are not so clear and conclusive that the court can say affirmatively the accused could not have been harmed from that cause.' (Italics added.) While the closing clauses of the foregoing quotation may be less liberal than our Watson rule (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243), it conclusively demonstrates that, in the field of illegal comment, the United States Supreme Court has in the past been mindful of the fact that error may be nonreversible when the circumstances show it to be nonprejudicial. For similar reasoning by the lower federal courts, see Coleman v. Denno (D.C.S.D.N.Y.1963) 223 F.Supp. 938, affirmed in United States ex rel. Coleman v. Denno (2d Cir.1964) 330 F.2d 441; United States v. Di Carlo (2d Cir.1933) 64 F.2d 15.

Turning now to the California authorities, even more cause exists to adhere to the dictates of section 4 1/2 of article VI of our state Constitution. Prior to the 1934 amendment authorizing comment on a defendant's failure to testify...