People v. Stewart

• Decision Date: 21 July 1965
• Docket Number: Cr. 10126
• Citation: 236 Cal.App.2d 27,45 Cal.Rptr. 712
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Andre Jack STEWART, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 712

45 Cal.Rptr. 712

236 Cal.App.2d 27

The PEOPLE of the State of California, Plaintiff and Respondent, v. Andre Jack STEWART, Defendant and Appellant.

Cr. 10126.

District Court of Appeal, Second District, Division 2, California.

July 21, 1965.

Rehearing Denied Aug. 23, 1965.

Hearing Denied Sept. 15, 1965.

Bernard Grossman,* Northridge, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty, Gen., Herbert Davis, Deputy Atty. Gen., for respondent.

ROTH, Chief Justice.

Appellant was charged by information with three counts of violating Penal Code § 211. It was alleged that he was armed at the time. A jury found appellant guilty on all counts but concluded that he was not armed. He appeals from the judgment.

On December 24, 1963, after midnight, four men entered and robbed the Hamburger Hamlet restaurant in Sherman Oaks. Appellant was first observed by Mr. Madden, the night manager, behind a stationary stand in the center of the dining room area. At that time appellant was facing Madden and approximately 25 feet away. Madden again observed appellant when he was forced to open the restaurant safe and afterwards passed by appellant who was standing in a lighted area. Madden subsequently identified appellant in a police lineup. George Johnson, a bus boy, took the stand and identified appellant as one of the participants in the robbery. Previously, he, too, had seen appellant in the police lineup. Johnson, however, testified at the preliminary hearing that he was unable to identify any of the robbers. After the preliminary hearing he told the police that he had refused to identify appellant and one other participant, although he recognized them, because he had been told by two men 'If you want to live, you don't know nobody.'

Appellant was arrested on January 2, 1964, and arraigned shortly thereafter. On January 13, appellant and one co-defendant, Brooks, were taken from their cells in the county jail to an interrogation room on the third floor of the Hall of Justice and confronted by officers Deiro and Williams and Charles Clements, one of the other participants in the robbery. The three arrestees thus met acknowledged knowing one another. Clements then read out loud his detailed confession, 15 pages in length.

In Clements' confession appellant Stewart is mentioned by name several times and is connected with almost all facets of the robbery and the preparation therefor. Appellant remained silent during the reading thereof and approximately 30 seconds to one minute after the conclusion was returned to his cell. Over appellant's objection, but after the trial court assured itself that a proper foundation existed for its admission, Clements' entire 15 page statement was read to the jury. Officer Deiro testified that appellant remained silent in the face of the accusatory statement.

Appellant contends that the court committed prejudicial error in admitting both the confession of Clements and in the giving of an instruction to the jury in respect of the inferences it could draw from appellant's silence in the face of the accusatory statement.

Appellant testified that at the time of the robbery he was at his hotel room with a friend. At the time of his arrest, he denied to the arresting officers, which denial they confirmed, of his participation in the robbery. Appellant testified that immediately prior to the time he was confronted with Clements, he was told by Officer Deiro '* * * not to open his mouth * * *' and also that prior to the confrontation he had been advised by counsel not to say anything. After the statement was read, he was not asked to make any comment.

When appellant was confronted with the Clements' confession, the accusatory stage of the proceedings had been reached. He had an absolute constitutional right to remain silent.

Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, holds that the provision in our State Constitution (art. I, § 13) allowing the prosecution to comment on the defendant's failure to take the stand, is unconstitutional: 'We said in Malloy v. Hogan, supra, 378 U.S. p. 11, 84 S.Ct. p. 1495, that the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.' We take that in its literal sense and hold that the Fifth Amendment, in its direct application to the federal government and in its bearing on the States by reason of the Fourteeth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' (85 S.Ct. 1233, 14 L.Ed.2d 110.)

Our courts prior to Griffin have held: 'When the response to an accusatory statement consists of evasion, equivocation or silence, 'It is for the court in the first instance to determine whether the import of the statements is such that it would furnish a foundation for proof of conduct, and it is then for the jury to decide whether the accused was aware the statements were made, whether, under all the circumstances shown, they called for a disclaimer, whether the accused did reply to them, and whether, if he did not do so, such failure showed criminal intent or a consciousness of guilt.' [Citations.]' (People v. Davis, 43 Cal.2d 661, 670, 276 P.2d 801, 806; see also People v. Simmons, 28 Cal.2d 699, 713, 172 P.2d 18; People v. Moore, 211 Cal.App.2d 585, 596, 27 Cal.Rptr. 526.)

Justice Carter noted in Simmons, supra, at p. 715, 172 P.2d at p. 27, that 'Many other forms of restraint [besides arrest] have the same effect, such as fear, physical pain, suffering, advice of counsel, admonition as to silence, warning against self-incrimination, a belief that the accused will serve his best interests by silence, or other physical or mental pressure.' He concluded, by way of guideline to the trial courts, that 'For [these reasons], any accusatory statement and a response thereto made by a defendant under restraint, should be considered with great caution, and if the police questioning has been insistent, so that the defendant has been induced or persuaded against his better or more considered judgment to make a response or has adopted the policy of silence, the accusatory statement should be held inadmissible by the trial judge in the first instance. * * * [A]nd his response should certainly be held inadmissible unless, at the time of questioning, the defendant has been clearly advised that his reaction can be held against him as an admission.' (Emphasis added.) (Supra, pp. 718-719, 172 P.2d p. 29.)

In the case at bench appellant testified that he was advised by Officer Deiro and his attorney to remain silent and manifestly, once an accused has been advised he has the right to remain silent, his silence cannot be used against him as an admission. (People v. Spencer, 78 Cal.App.2d 652, 657, 178 P.2d 520.) There is no showing that appellant waived any of his constitutional rights at the time of the confrontation or at any other time. Unless the accused has intelligently waived his constitutional rights, it follows that the accused's absolute constitutional right to remain silent (Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; ¹ Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977) cannot be exploited to his disadvantage by conversion into an inference of guilty consciousness no matter how psychologically compelling such inference may be. This conclusion would seem to follow logically in the footsteps of People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361.

It is now thoroughly settled that those statements falling within Dorado include admissions and exculpatory statements as well as confessions. (People v. Hillery, 62 A.C. 726, 746, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Sears, 62 A.C. 783, 789, 44 Cal.Rptr. 330, 401 P.2d 938; People v. Finn, 232 A.C.A. 515, 42 Cal.Rptr. 704; People v. Haley, 234 A.C.A. 520, 44 Cal.Rptr. 1346;) and that the accusatory stage matures 'when the...