Randolph v. State

• Decision Date: 23 November 2011
• Docket Number: No. PD–0404–10.,PD–0404–10.
• Citation: 353 S.W.3d 887
• Parties: Emanuell Glenn RANDOLPH, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

353 S.W.3d 887

Emanuell Glenn RANDOLPH, Appellant,

v.The STATE of Texas.

No. PD–0404–10.

Court of Criminal Appeals of Texas.

Nov. 23, 2011.

Ira Perz, Houston, for Appellant.

Gail Kikawa McConnell, Asst. District Atty., Richmond, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, JOHNSON, KEASLER and HERVEY, JJ., joined.

Appellant testified to an alibi defense at the guilt phase of his aggravated robbery trial and then exercised his Fifth Amendment right not to testify at the punishment phase. In her final punishment argument, the prosecutor stated that appellant was not worthy of probation because he had not taken responsibility for the crime. The court of appeals, relying on Swallow v. State,¹ found that the State's argument was an impermissible (and harmful) comment on appellant's failure to testify at the punishment phase.² We granted the State's petition for review to consider whether Swallow should be overruled and to “correct, clarify, and brighten” the test for determining whether a prosecutor has impermissibly commented on a defendant's failure to testify.³ The State's punishment argument in this case, unlike that in Swallow, explicitly referred to appellant's alibi testimony at the guilt phase and did not mention any lack of remorse. We conclude that, by testifying that he was not the person who committed this aggravated robbery, appellant expressly denied responsibility for the crime. The State was therefore entitled to comment on that denial of responsibility at either the guilt or punishment stage. The State did not comment on appellant's failure to testify at the punishment stage.

I.

On February 10, 2007, Jose Ventura and his family went out to dinner. Jose's wife, Cynthia, drove the family back to their Sugar Land home. As Cynthia pulled their car up the driveway, Jose and his six-year-old son got out of the car to race to the back door, as they always did. But before they made it, Jose heard a voice say, “Turn around.” When he did, he saw a strange man with a semi-automatic gun pointed at his face demanding money. The man “was a tall black person, skinny, kind of slim.” He was wearing a black, zip-up sweatshirt. It was zipped up all the way, the hood was up over his head, and a bandana was covering his face. Jose, who does not carry a wallet, pulled up his jacket to show the man that he didn't have a wallet. He offered to get his wallet from his van, which was parked up against the garage. He also asked the man to stop pointing the gun “because my boy is in the back, behind me and I don't want him to get scared.” At that point, the hooded man looked “disappointed” and ran off. Cynthia, who was still in the car with the couple's baby daughter, had witnessed the failed robbery. The Venturas called 911, and the police came within five minutes. The Venturas gave police a description of the gunman, and forty-five minutes later an officer spotted a man matching that description at a nearby Shell station/Burger King. It was appellant, who, with a companion, was waiting for a triple Whopper with cheese that he had ordered and paid for.

Appellant never got his Whopper. He was frisked, handcuffed, and driven back to an area near the Ventura home, where the Venturas separately identified him as the gunman. Both were confident in their identifications. A couple of hours later, Deputy Pickett's two bloodhounds independently tracked appellant's scent from the Ventura's driveway to the Shell station. One of the dogs, Clue, was let into the station, and he “lit up on that ATM machine.” Surveillance video showed appellant standing at the Shell station ATM before he placed his order at Burger King.

Appellant testified during the guilt stage that he was home watching the NFL Pro Bowl when the robbery occurred. He said that, when there were just a few minutes left in the game, he and a friend decided to walk to the Burger King. They left around 8:00 p.m. for the approximately thirty-minute walk. They went into the Shell station/Burger King and tried to use the ATM, but the debit card appellant had gotten from FEMA after Hurricane Katrina would not let him get cash. He used the card to pay for his Burger King order and was waiting for his food when the officer approached him. Appellant denied that he had ever been near Jose Ventura's home or that he had ever pulled a gun on him: “I've never even owned a gun in my life and no I didn't pull no gun on him.”

The jury found appellant guilty of aggravated robbery. Appellant did not testify during the punishment phase. In its closing argument, the State told the jury appellant was not worthy of probation because he had not taken responsibility for the crime. Defense counsel objected that the prosecutor was commenting on appellant's failure to testify at the punishment phase, but his objection was overruled:

Prosecutor: Well, you heard Mr. Randolph testify during the guilt/innocence portion of this case and he completely refused to take responsibility for his actions.

Defense: Objection, Judge, this is a comment on the silence of Mr. Randolph.

Prosecutor: Judge, it's a comment on his alibi story that he gave that this jury did not believe.

Judge: This was the statement that was made during the other phase of the trial. It is allowed. You may continue.

Prosecutor: You heard from him, you heard his version and you dismissed it by finding him guilty. He has not taken responsibility for this crime—

Defense: Objection, a comment on his silence in the punishment phase.

Prosecutor: Judge, he hasn't remained silent, he testified.

Judge: He testified, that's correct, and the jury heard the testimony and the jury can draw whatever conclusion they wish. You may continue.

Prosecutor: As I said, probation is a privilege and not a right. Because of what you have heard from the defendant during the guilt/innocence, he does not deserve probation.

The jury assessed a sentence of nine years in prison.

On appeal, the court of appeals held that the trial court properly overruled the objection to the prosecutor's first reference to appellant's failure to take responsibility for his actions because that comment was directly tied to appellant's alibi defense at the guilt stage.⁴ However, the court then held that, under Swallow v. State, the prosecutor's next statement was objectionable because it alluded, in part, to appellant's failure to testify during the punishment phase.⁵ Finding the error harmful under Harris v. State,⁶ the court reversed for a new punishment hearing. ⁷

II.

A comment on a defendant's failure to testify violates both the state and federal constitutions as well as Texas statutory law.⁸ The defendant has a separate Fifth Amendment privilege not to testify at either the guilt or punishment phases of trial. A waiver of the privilege at the guilt phase does not waive the privilege for the punishment phase.⁹ Thus, a comment on the defendant's silence at the punishment phase is improper even if the defendant testified at the first phase of trial.

In assessing whether the defendant's Fifth Amendment right has been violated, courts must view the State's argument from the jury's standpoint and resolve any ambiguities in the language in favor of it being a permissible argument.¹⁰ Thus, the implication that the State referred to the defendant's failure to testify must be a clear and necessary one. ¹¹ If the language might reasonably be construed as merely an implied or indirect allusion, there is no violation.¹² As the Fifth Circuit has stated, “We cannot find that the prosecutor manifestly intended to comment on the defendants' failure to testify, if some other explanation for his remark is equally plausible.” ¹³ The test, then, is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify.¹⁴ In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character.¹⁵

Prosecutors often argue at the punishment phase of trial that a defendant is not deserving of leniency or a probated sentence because he has not taken responsibility for his actions, shown remorse, or both. In a case in which the defendant does not testify either type of statement could constitute an impermissible comment on the failure to testify.¹⁶

But remorse and responsibility are two entirely different concepts. “Remorse” means “a deep, torturing sense of guilt felt for one's actions; the keen pain or anguish excited by a sense of guilt; compunction of conscience for an evil act committed; self-reproach.” ¹⁷ “Responsible” means “answerable or accountable as being the cause, agent, or source of something,” ¹⁸ such as being the agent or cause of a crime. Remorse is the feeling of sorrow or self-reproach, accompanied by guilt, while responsibility is the act of accepting accountability. One who does not accept responsibility would not, under normal circumstances, express remorse. But one can accept responsibility without expressing remorse (e.g., “I am responsible for Dan's death, but I shot him in self-defense,” or “the dead dude deserved it”). One can accept responsibility by pleading guilty. Thus, the defense may fairly argue, during punishment, that the defendant has accepted responsibility by pleading guilty.

Conversely, a defendant may expressly deny responsibility by putting on an alibi defense or asserting that the result was an accident. Thus, the prosecution may fairly argue, during the guilt or punishment stage, that the defendant denied responsibility because he testified to an alibi or he claimed that the deceased died as the result of an accident. Simply pleading not guilty and demanding that the State prove its case neither accepts nor denies responsibility. Thus, the State could not argue, at...