People v. Ortega, C-1576

• Decision Date: 09 July 1979
• Docket Number: No. C-1576,C-1576
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Thomas Leo ORTEGA, Respondent.
• Court: Colorado Supreme Court

Page 1034

597 P.2d 1034

198 Colo. 179

The PEOPLE of the State of Colorado, Petitioner, v. Thomas Leo ORTEGA, Respondent.

No. C-1576.

Supreme Court of Colorado, En Banc.

July 9, 1979.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Felipe V. Ponce, Asst. Atty. Gen., Denver, for petitioner.

J. Gregory Walta, Public Defender, Lee Belstock, Deputy Public Defender, Denver, for respondent.

CARRIGAN, Justice.

A jury found the defendant guilty of first-degree trespass, section 18-4-502, C.R.S.1973, and felony theft, section 18-4-401, C.R.S.1973. On appeal the court of appeals held that certain remarks of the prosecutor in closing argument to the jury amounted to impermissible comment upon the fact that shortly after his arrest the defendant had failed to make a detailed exculpatory statement. People v. Ortega, Colo.App., 580 P.2d 813 (1978). Holding that these impermissible comments on the defendant's constitutional right to remain silent violated his privilege against self incrimination, that court reversed the conviction and granted a new trial. We affirm the court of appeals' decision.

Early one morning the driver of a pickup truck lost control of his vehicle and was injured. After calling for aid, he went to a hospital for treatment. Upon returning to his truck about forty-five minutes later, he noticed that hand wrenches, a jack, a lug wrench and numerous other items were missing from the truck. He reported the missing items to the police.

Observations by the police led them to obtain a search warrant for a house at which the defendant was present. At the house, the officers saw some of the missing items described in the warrant and thereupon arrested the defendant.

The defendant was advised of his rights and asked if, having those rights in mind, he wished to talk to the officers. He responded in the affirmative. Upon questioning, the defendant stated that the items had been removed from a pickup truck and that he had helped bring them to the house. The officers then began collecting the items. When one officer picked up a tool that had not been removed from the truck, the defendant proceeded to gather the items for the officers.

While the defendant was still being questioned, another individual, whom the defendant already had identified as a co-participant in removing the tools from the pickup, arrived at the house. Despite the marked police cars in front of the house, he entered, and he, too, was arrested. He made a statement to the effect that he and the defendant had removed the tools for safekeeping only.

At trial the defendant's theory of the case was that in removing the tools he and his companion had lacked any intent to steal in the sense of intent permanently to deprive since they had sought only to safeguard the items. In his opening argument to the jury the prosecutor, reviewing the circumstances surrounding the defendant's arrest, stated:

"We further know, from . . . (Sheriff) Emrie's testimony that he then gave the defendant the full constitutional warning that the law requires that after having done so, he asked the defendant where he had gotten that stuff, or words to that effect and the defendant said he got them out of the pickup, and Mr. Emrie asked who else was with him and he mentioned the Tysckas. We know that is all he said. That's all that he told Sheriff Emrie, that he had taken the things, and that the Tysckas had been with him. We know that the Defendant and his friends had an opportunity not only To tell Deputy Sheriff Sanchez about this property they had taken, but even more than that, they had an opportunity, if all they were trying to do was safeguard this material, to save themselves a lot of bother, by simply turning it over to Deputy Sheriff Sanchez when he arrived at the scene." (Emphasis added.)

In our view this constituted improper comment on the defendant's exercise of his right to remain silent. As a result, defense counsel apparently felt compelled to explain the defendant's conduct. In doing so, defense counsel emphasized to the jury that the totality of the circumstances refuted any intent to steal. He stressed evidence that the items had been taken openly rather than surreptitiously, and that they had not been hidden but rather had been left in a conspicuous pile on the back porch. He suggested that one factor which indicated lack of criminal intent was that the defendant, after being advised of his right to remain silent and understanding that he did not have to talk, proceeded to answer questions.

Apparently the prosecutor concluded that defense counsel's responsive argument had "opened the door" to rebuttal argument that an inference of guilt should be drawn from the incompleteness of the defendant's explanation. In his rebuttal closing, therefore, he magnified the problem by posing to the jury the following series of rhetorical questions:

"Is it reasonable, ladies and gentlemen, in light of your common sense and your every day experience in life, that this defendant didn't have a culpable mental state; if he didn't intend to get into that pickup and steal those things, and if he didn't actually steal them, is it reasonable in light of your common sense, that once he was placed under arrest for theft, that the defendant, a totally innocent Good Samaritan, as the defense counsel calls him, responded to the Sheriff's questions by saying, yes, I took the things, without saying another word? Is it reasonable that the defendant's statement to the Sheriff didn't include a protestation of innocence if he was a totally innocent Good Samaritan?"

We hold that the prosecutor's initial and rebuttal references to the defendant's post-arrest silence violated his constitutional right to a fair trial implicit in the guarantee of due process and abridged his constitutional privilege against self-incrimination. U.S.Const., Amends. V and XIV; Colo.Const., Art. II, sections 18 and 25.

Initially we note that the defendant did not interpose any objection to the district attorney's remarks based on his fifth amendment or due process rights. Nor did he raise the issue of improper comment in his motion for a new trial. Nevertheless we here consider the issue since the error was so egregious that it seriously prejudiced the most fundamental guarantee of our justice system, the right to a fair trial. It was, therefore, plain error. C.A.R. 1(d); Hines v. People, 179 Colo. 4, 497 P.2d 1258 (1972).

Every person accused of a crime has the right to remain silent in the face of a criminal accusation. U.S.Const., Amend. V; Colo.Const., Art. II, section 18. Prosecutorial comment which has the effect of creating an inference of guilt by reference to the defendant's silence during custodial interrogation effectively penalizes the defendant for exercising a constitutional privilege. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973); Meader v. People, 178 Colo. 383, 497 P.2d 1010 (1972); Hines v. People, supra. Such remarks "cut(s) down on the privilege by making its assertion costly" and thereby violate the defendant's right to remain silent. Griffin v. California, 380 U.S. at 614, 85 S.Ct. at 1233, 14 L.Ed.2d at 110 (1965).

While our courts may often fall short of providing perfect trials, and we may tolerate imperfections which do not result in denying a fair trial, we cannot countenance denial of a fair trial for any litigant.

It would be ironic indeed if a court system which prides itself on fairness should place its imprimatur on a practice of first advising an arrestee of his constitutionally guaranteed right to remain silent, then penalizing him for his silence by allowing the state to argue that his silence constituted an implied admission of guilt. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); People v. Reynolds, 194 Colo. 543, 575 P.2d 1286 (1978). The Court in Doyle v. Ohio succinctly stated:

"When a person under...