People v. Tealer

• Decision Date: 29 May 1975
• Docket Number: Cr. 26034
• Citation: 48 Cal.App.3d 598,122 Cal.Rptr. 144
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald Barron TEALER, Defendant and Appellant.

Page 144

122 Cal.Rptr. 144

48 Cal.App.3d 598

The PEOPLE, Plaintiff and Respondent, v. Donald Barron TEALER, Defendant and Appellant.

Cr. 26034.

Court of Appeal, Second District, Division 3, California.

May 29, 1975.

Hearing Denied July 23, 1975.

Anthony J. Serra, Glendale, under appointment by the Court of Appeal, for appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., and Norman H. Sokolow and Lawrence P. Scherb II, Deputy Attys. Gen., for respondent.

DELL, ^* Associate Justice.

Defendant and his companion, Donald Wayne Henry, were convicted by a jury of a single count of attempted robbery (Pen.Code, §§ 211, 664.) Having been sentenced to state prison for the term prescribed by law (Pen.Code, §§ 213, 664) as augmented by a finding of use of a firearm (Pen.Code, § 12022.5), defendant appeals. ¹

Although defendant has failed to appreciate the full significance of his strongest contention on appeal--and the only one with any substantial degree of merit--he has at least recognized the tip of a Griffin ² iceberg. Regrettably (since we think the investigating officer's characterization of the crime as 'cold turkey' was fully justified) we are compelled to reverse because the effect of improper argument by the prosecutor and erroneous instructions by the trial court was a deprivation of defendant's privilege against self-incrimination under both the United States and California Constitutions.

Following the bungled attempted robbery of a men's clothing store in Compton--Henry having been shot and disabled by the owner--defendant departed rapidly on foot, hitched a ride for a mile and a half with a school security officer after complaining that 'three Crips had tried to rob him and he was running from them,' and was arrested by deputy sheriffs. Defendant was advised of his rights to counsel and silence and, upon waiving them, told a Compton police officer, 'We were just passing by the place and decided to rob it.' ³ The prosecutor proposed to 'Arandize' ⁴ the statement to delete Henry's participation, leaving only 'I was just passing by the place and decided to rob it.' Defendant's trial counsel objected on the basis of Aranda and Massie (see fn. 4) but the objection was overruled, the trial judge saying, 'The Court does not find that the offer of the district attorney to sanitize the admission or confession, whatever it may be, is one which does not do exactly what it's purported to do under Aranda, and should go under Aranda, namely, not implicate the co-defendant. It does not in any way affect the co-defendant, and no parts of that confession as edited would favor the confessing defendant, which are the three rules, as I see them, that I have to watch out for in granting or denying the Aranda motion.' ⁵

In due course defendant's altered statement was presented to the jury. Defendant testified briefly in his own defense, limiting his testimony to a denial of the making of the statement. We set forth his entire testimony in the margin. ⁶

Although we have not been furnished a transcript of closing arguments, the following excerpt of a proceeding in chambers sheds light on the nature of the prosecutor's tactics:

'THE COURT: These proceedings are taking place in chambers. Present are Mr. Marks on behalf of the defendant Tealer, and Mr. de la Sota on behalf of the People, the reporter, and the Court.

'MR. MARKS: Yesterday I made a motion to have the Court declare a mistrial because Mr. de la Sota, in my judgment, made Griffin error in his argument by commenting on the fact that my client had not explained away certain things when he took the stand, and the Court denied the motion on the basis of Griffin.

'What I failed to tell the Court is another ground for that objection, and it was an oversight on my part, for which I apologize, but I believe that the Court should have granted my motion, because what Mr. de la Sota said was untrue in another particular, and that is that The substance of his argument was that Mr. Tealer took the stand and didn't deny the facts of the case when he had an opportunity to do so.

'In truth and in fact, Mr. de la Sota had the opportunity to ask him about the facts of the case, as well as I did, and he failed to do so, and I think that he decided not to ask him about the facts of the case intentionally because it would be my judgment that he would be afraid of what answers or responses he would get, and at least that's a reasonable inference to draw from his failure to ask my client about the facts of the case, and therefore I feel that his comment to the jury about that is unfair, and a mistrial should be granted on those grounds, in addition to the grounds I stated yesterday.

'THE COURT: Any comment?

'MR. DE LA SOTA: No, I have no comment, Your Honor.

'THE COURT: All right. The Court's ruling will stand. I do not intend to declare a mistrial on that ground, either, and the record is made.' ⁷ (Italics added.)

The prosecutor requested that the jury be instructed in accordance with CALJIC 2.62, ⁸ which includes the following language: 'In this case defendant has elected to and has testified as to certain facts. If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.'

It appears from the clerk's transcript that the trial judge initially refused the instruction but later changed his mind and gave it, interlineating the names of both defendants and causing the third sentence to read: 'In this case defendant Tealer and defendant Henry have elected to and have testified as to certain facts.' ⁹

Earlier we mentioned the trial judge's seemingly minor modification of defendant's statement. The effect of that modification was to throw the entire onus of the planned robbery on defendant by converting the sometimes ambiguous and partially exculpatory 'we' into an unmistakable 'I.' We think the ruling caused 'prejudice to the declarant' within the meaning of Aranda and was error by the trial judge. ¹⁰ Standing alone, the error might not have been prejudicial (People v. Watson, 46 Cal.2d 818, 829--832, 299 P.2d 243), but when defendant found it necessary to deny making that--or any other-- statement to the investigating officer, the prosecutor utilized the opportunity to argue that defendant 'had not explained away certain things' and 'didn't deny the facts of the case.'

This was clear Griffin error. A defendant who elects to testify does not give up his Fifth Amendment rights nor his corresponding California privilege against self-incrimination (Cal.Const., art. I, § 15) Except as to matters within the scope of relevant cross-examination (People v. Thornton, 11 Cal.3d 738, 760--761, 114 Cal.Rptr. 467, 523 P.2d 267; People v. Ing, 65 Cal.2d 603, 611, 55 Cal.Rptr. 902, 422 P.2d 590; People v. Bagwell, 38 Cal.App.3d 127, 140, 113 Cal.Rptr. 122).

'Even when a defendant chooses to offer testimony on his own behalf, the privilege against self-incrimination serves 'to prevent the prosecution from questioning the defendant upon the case generally, and in effect making him its own witness.' (People v. Gallagher (1893) 100 Cal. 466, 475, 35 P. 80, 83; People v. O'Brien (1885) 66 Cal. 602, 6 P. 695; People v. Sims, Supra, 165 Cal.App.2d 108, 113, 331 P.2d 799.) Such general compelled cross-examination would not only post the same 'cruel trilemma of self-accusation, perjury or contempt' recognized in Murphy v. Waterfront Comm., Supra, 378 U.S. 52, 55, 84 S.Ct. 1594, (12 L.Ed.2d 678, 681) it would also penalize and thereby deter a defendant's assertion of his right to take the witness stand to explain or contradict a particular aspect of the case against him. (Fn. omitted.)

'None of these fundamental principles, however, imply that when a defendant voluntarily testifies in his own defense the People may not fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. The provision of former Penal Code section 1323 'does not mean that the cross-examination must be confined to a mere categorical review of the matters, dates or times mentioned in the direct examination. . . . It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on direct examination.' (People v. Pike (1962) 58 Cal.2d 70, 90, 22 Cal.Rptr. 664, 675, 372 P.2d 656, 667; People v. Zerillo (1950) 36 Cal.2d 222, 228, 223 P.2d 223.) (Fn. omitted.)' (People v. Schader, 71 Cal.2d 761, 770--771, 80 Cal.Rptr. 1, 6, 457 P.2d 841, 846.)

The key words in the second paragraph quoted from Schader are 'inferences which may necessarily be drawn.' This is illustrated in cases which hold that a defendant who takes the stand to make a general denial of a charged offense may necessarily imply that he lacked criminal intent (People v. Schader, Supra, 71 Cal.2d at p. 771, 80 Cal.Rptr. 1, 457 P.2d 841; People v. Zerillo, Supra, 36 Cal.2d at p. 229, 223 P.2d 223) or that his association with a codefendant was innocent (People v. Pike, Supra, 58 Cal.2d at p. 91, 22 Cal.Rptr. 664, 372 P.2d 656) or that he did not commit similar offenses, whether charged or uncharged (People v. Thornton, Supra, 11 Cal.3d at pp. 755--760, 114 Cal.Rptr. 467, 523 P.2d 267; People v. Ing, Supra, 65 Cal.2d at p. 611, 55 Cal.Rptr. 902, 422 P.2d 590; People v. Perez, 65 Cal.2d 615, 619--622, 55 Cal.Rptr. 909, 422 P.2d 597) and thus render himself subject to cross-examination on the...