State v. Anderson
Decision Date | 20 December 1973 |
Docket Number | No. 2813--PR,2813--PR |
Citation | 517 P.2d 508,110 Ariz. 238 |
Parties | The STATE of Arizona, Appellee, v. Robert Austin ANDERSON, Jr., Appellant. |
Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen. by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
We granted the defendant Anderson's petition to review a decision and opinion of the Court of Appeals, 20 Ariz.App. 309, 512 P.2d 613 (1973), in order that we might consider only one question: Was the prosecutor's jury argument directed to defendant's pretrial silence fundamental error? As to the other questions raised by the defendant, the opinion of the Court of Appeals in State v. Anderson, supra, is approved.
At the trial the defendant took the stand and testified in his own behalf, disclaiming any guilty intent in entering the house in question and inferring that an accomplice was the guilty party. During the cross-examination of the defendant, the prosecutor asked the following questions:
'Q Now, it was your testimony today that you weren't upset that you only got $50.00 for the cameras, is that correct?
'A That's correct.
'Q Have you told this story to anyone before today?
'A No, I haven't.
'Q Where was the car parked at the time the boxes were loaded into it at 1643 N. Markdale on the evening August 12th?'
In closing argument, the prosecutor referred to this cross-examination of the defendant as follows:
* * *'
And later:
* * *.'
No objection was made either to the cross-examination or closing argument.
The Court of Appeals was of the opinion that two previous cases of this court, State v. Shing, 109 Ariz. 361, 509 P.2d 698 (1973) and State v. Benton, 109 Ariz. 427, 510 P.2d 743 (1973), were in conflict, and followed what appeared to be the holding in State v. Benton, supra.
In State v. Benton, supra, we stated:
'The defendant also claims that certain questions asked him during cross-examination and several statements made by the prosecutor during closing argument constituted reversible error, even though not objected to at the time.
* * *'State v. Benton, supra, 109 Ariz. at 428, 510 P.2d at 744--745.
In Benton, supra, the defendant's silence occurred after the initial denial of guilt and continued to the time he took the stand to testify. The comment concerned his failure to reassert this innocence prior to the time he took the stand in his own behalf. In the other case considered by the Court of Appeals, State v. Shing, supra, after the defendant had been read his 'standard rights card' the following questions were asked:
* * *
* * *
'In his closing argument the prosecutor commented:
State v. Shing, supra, 109 Ariz. at 364, 509 P.2d at 700--701.
The Shing case is, of course, a much stronger case in that the defendant had been given his 'Miranda warnings,' including the right to remain silent, and the defendant immediately chose to exercise that right. In Shing, supra, we held that comment on the exercise of that right was fundamental error. See also State v. Greer, 17 Ariz.App. 162, 496 P.2d 152 (1972).
The cases are not unanimous on this question. The Kansas Supreme Court in State v. Jackson, 201 Kan. 795, 443 P.2d 279 (1968), relied upon by the Court of Appeals in this case, has held that this type of comment is not error as has the United States Court of Appeals for the Third Circuit, United States ex rel. Burt v. New Jersey, 475 F.2d 234 (1973). Colorado, in a remarkably similar case, reached the same result, Johnson v. People, 172 Colo. 406, 473 P.2d 974 (1970). However, the Tenth Circuit reversed the Colorado court in Johnson v. Patterson, 475 F.2d 1066 (1973). The facts as set forth in the Tenth Circuit opinion are as follows:
'* * * During cross-examination of Johnson, the following questions and answers took place:
Q. Now, Mr. Johnson, you didn't tell the police this, did you?
A. No, sir.
Q. The first time then that anyone has heard this is here today in court, is that correct?
A. No, sir. I told Mr. Hellerstein when he came out to see me in the County Jail.
Q. Mr. Hellerstein, your attorney, is that correct?
A. Yes, sir.
During closing argument the prosecution again referred to Johnson's failure to tell the police his story.
And isn't it interesting that this is the first time that he has decided to tell the truth other than, of course, he testified that he told his lawyer, and didn't bother to tell the police.'
In holding that this was fundamental error, the court stated:
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