People v. Martin

• Decision Date: 08 February 1980
• Docket Number: Cr. 19440
• Citation: 101 Cal.App.3d 1000,162 Cal.Rptr. 133
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert MARTIN, Defendant and Appellant.

Page 133

162 Cal.Rptr. 133

101 Cal.App.3d 1000

The PEOPLE, Plaintiff and Respondent, v. Robert MARTIN, Defendant and Appellant.

Cr. 19440.

Court of Appeal, First District, Division 1, California.

Feb. 8, 1980.

Hearing Denied April 3, 1980.

Jay E. Goodman, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Tiffany Rystrom, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

GRODIN, Associate Justice.

The defendant Robert Martin, convicted of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) and found to have used a firearm in the commission of the assault (Pen.Code, § 12022.5), appeals from the judgment of conviction on grounds of prosecutorial misconduct and instructional errors. Understanding and evaluation of his contentions on appeal require an overview of the evidence adduced at trial.

Martin shared an apartment on Chestnut Street in San Francisco with Ms. Stephanie Hill. On the evening of September 14 1978, Martin was standing on a balcony outside their apartment, which was on the third floor of the apartment building, when he saw Hill get out of a station wagon and enter the building. Inside the wagon were three men, waiting for Hill to return with her laundry. When Hill entered the apartment, Martin expressed anger that she was with the three men, hit her several times with his fists, and threatened to blow her brains out with a gun he pulled from his pocket. Meanwhile James Mark, one of the three men in the wagon, went up to see what was taking Ms. Hill so long. Ignoring a warning from someone on the second floor that he "shouldn't be going up there," Mark proceeded to the apartment and rang the bell. When the door was opened, he saw Martin had pulled or was pulling something out of his pocket and, fearing that it was a knife or gun, turned to run. Martin shot Mark in the back. Mark survived, but is permanently paralyzed from the chest down. Immediately after the shooting, Martin came back into the living room and Hill asked, "why did you shoot, why did you do it?" Martin, silent, turned and walked away. The police were called, and when they arrived, prior to any inquiry or investigation, Martin came forward with his hands up and said, "I shot him, don't shoot me," or words to that effect. That, in capsule form, was the prosecution's case.

Martin testified and admitted the shooting, claiming it was self-defense. According to him, he and Hill were having a fight when Hill tried to get out a knife. Just then Hill's daughter Kimberly opened the door, and Martin got his gun from under a pillow and went to the door and saw Mark, who said, "What the hell is going on?" When Martin replied, "Didn't I tell you not to come in my house?" Mark made a quick turning motion with his hand coming out of his pocket, and Martin, thinking Mark was armed, shot him.

1. Prosecutorial Misconduct.

In his closing remarks to the jury, the prosecutor made the following comments: "Another thing you can evaluate is whether a defendant made an inconsistent statement. Now usually that means a prior inconsistent statement. But I think in this case, it is important, because I am using the term 'inconsistent statement' in a broader sense. (P) The Defendant, when he was accused by Stephanie Hill of shooting James Mark, for no reason at all, he made a very broad statement, a very inconsistent statement. (P) Now Stephanie was not a police officer there to advise the Defendant he was under arrest and had a right to remain silent. She was the woman who lived with him. She said 'You shot him for nothing.' (P) And the Defendant made a very eloquent statement, which was inconsistent with his innocence, he said nothing. He is not a man who does not speak, or is short of words. Nor did he say 'I shot him to protect my house or to protect you or myself.' He said nothing. (P) And he proceeded downstairs to hide the gun. (P) He made another inconsistent statement that is very important. When Officer O'Brien arrived, the officer hadn't placed the Defendant under arrest, hadn't threatened him or asked him a question. Didn't know who he was. And the Defendant blurts out 'I shot him, don't shoot me.' (P) But you never heard the Defendant blurt out 'I was trying to protect my family or myself.' (P) So those statements, the statement of silence when he is accused, when an honest man who has been wronged would have protested and said 'I am innocent' ."

At this point Martin's counsel objected and asked the court to order a mistrial or to admonish the jury. The court refused both requests. Martin contends the prosecutor's remarks violated his rights under Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and Doyle v. Ohio (1976) 426 U.S. 610, 95 S.Ct. 2240, 49 L.Ed.2d 91, and their progeny.

In Griffin the United States Supreme Court held that the Fifth Amendment precludes prosecutorial comment on the accused's failure to testify at trial: "(C)omment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice,' (citations), which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." (380 U.S. at p. 614, 85 S.Ct. at p. 1232-1233.) "The rationale of Griffin implicitly proscribes drawing an inference adverse to the defendant from his failure to reply to an accusatory statement if the defendant was asserting his constitutional privilege against self-incrimination." (People v. Cockrell (1965) 63 Cal.2d 659, 669-670, 47 Cal.Rptr. 788, 795, 408 P.2d 116, 123.) In Cockrell, the court found Griffin error in the admission of evidence that the defendant, after arrest and while in custody at the police station, remained silent when a police officer confronted him with an accusatory statement by a codefendant and asked what he had to say about "that." "(E)ven though it does not appear that Mr. Cockrell made any statement indicating that he was invoking his privilege against self-incrimination, he had a right to remain silent and an inference adverse to him may not be drawn from his silence." (Id., at p. 670, 47 Cal.Rptr. at p. 795, 408 P.2d at p. 123.) Similarly, comment by the prosecutor upon the defendant's failure to come forward after arrest and during custody with the alibi he asserted at trial has been held to constitute prosecutorial misconduct under Griffin and Cockrell. (People v. Crawford (1967) 253 Cal.App.2d 524, 536, 61 Cal.Rptr. 472.)

And in In re Banks (1971) 4 Cal.3d 337, 352, 93 Cal.Rptr. 591, 482 P.2d 215, our state Supreme Court held that the Griffin -Cockrell rationale precluded use of a defendant's silence in the face of accusations as adoptive admissions of guilt where the accusations were made by a police officer in the context of a search of the defendant's person at the scene of the crime. ¹ The People argued in Banks that Cockrell should be limited to the "accusatory stage" of police investigations but the court, while expressing no opinion as to that argument, found that even if Cockrell were so limited it would apply to the facts of that case. "The accusatory stage is certainly reached 'after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' (Citation.) Petitioner may not have been formally arrested at the moment the police began to search him, but had been significantly deprived of his freedom of action." (4 Cal.3d at p. 352, 93 Cal.Rptr. at p. 602, 482 P.2d at p. 226.)

In Doyle v. Ohio, Supra, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the United States Supreme Court applied a different rationale in addressing prosecutorial use of a defendant's silence. The defendants in that case testified and asserted that they had been framed. On cross-examination the prosecutor attempted to impeach them by asking why they had not told their frame-up story at the time they were arrested. The defendants had received Miranda warnings at the time of their arrest. The court reasoned that "(s) ilence in the wake of these warnings may be nothing more than arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested." (426 U.S. at p. 617, 96 S.Ct. at p. 2244.) It held, therefore, that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." (Id., at p. 620, 96 S.Ct. at p. 2245; see also People v. Stewart (1965) 236 Cal.App.2d 27, 31, 45 Cal.Rptr. 712.)

These cases provide scant support for Martin's argument that it was error for the prosecutor to comment upon his silence in the face of accusation by Ms. Hill. Since that accusation was by a private party acting independently of the police, the Doyle rationale based on Miranda has no application. As our Supreme Court recently said in In re Eric J. (1979) 25 Cal.3d 522 at page 527, 159 Cal.Rptr. 317 at page 319, 601 P.2d 549, at page 551: "The procedural safeguards set forth in Miranda 'come into play only where "custodial interrogation" is involved, and by "custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. " ' (People v. Fioritto (1968) 68 Cal.2d 714, 718, 68 Cal.Rptr. 817, 819, 441 P.2d 625, 627. . . . ) 'A private citizen is not required to advise another individual of his rights before questioning him. Absent evidence of complicity on the part of law enforcement officials, the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees.' (People v. Mangiefico (1972) 25 Cal.App.3d 1041, 1049, 102...