State v. Armstrong

• Decision Date: 04 August 1976
• Docket Number: No. 13063,13063
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Harold ARMSTRONG, Defendant and Appellant.
• Court: Montana Supreme Court

Page 616

552 P.2d 616

170 Mont. 256

The STATE of Montana, Plaintiff and Respondent, v. Harold ARMSTRONG, Defendant and Appellant.

No. 13063.

Supreme Court of Montana.

Submitted June 4, 1976.

Decided July 20, 1976.

Rehearing Denied Aug. 4, 1976.

John R. Prater, argued, Terry, Donald W. Molloy, argued, Law Student, Robert C. Pyfer, argued, Law Student, Daniel A. Piedalue, argued, Law Student, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., William J. Anderson, argued, Asst. Atty. Gen., Helena, Harold Hanser, argued, County Atty., Billings, for plaintiff and respondent.

HASWELL, Justice.

Defendant was convicted by jury verdict of deliberate homicide and robbery in the district court, Yellowstone County. Judge Charles Luedke sentenced him to consecutive prison terms of 100 years for deliberate homicide and 40 years for robbery. Defendant appeals from the judgment of conviction.

Because no eye-witness accounts of the crimes charged were presented at the trial, the state's case was built upon testimony concerning the events preceding and following the crimes, the physical evidence related thereto, and evidence regarding police investigations.

We will only set forth those facts pertinent to this appeal which are established by the record.

At about 8:00 a. m. on January 22, 1975, the body of the victim of the crimes involved, Lynn Lords, was found in a boiler room located in an alley in Billings, Montana. There were multiple stab wounds in Lords' neck, chest and back; the cause of his death was determined to be massive blood loss from a wound in the neck. The weapon causing the stab wounds was medically determined to be a relatively heavy-duty knife of some sort.

Lords had participated in a poker game at the Crystal Lounge in Billings on the preceding night, January 21-22, 1975. He played until approximately closing time then cashed in chips with a value of between two hundred and four hundred dollars. The defendant participated in the same poker game cashed in no more than about thirty dollars worth of chips at the end of the game.

During the few days prior to the poker game, the defendant had indicated to at least two witnesses that he was without funds and had written checks on a bank account with insufficient funds. He had recently been laid off from his job.

The defendant and Lords separately entered the Crystal Lounge early on the evening of January 21, 1975; they apparently left separately and by different exists at about 2:00 a. m., January 22. When defendant first entered the establishment on January 21 he was wearing a blue coat and a gun belt with a pistol and hunting-type knife therein. The belt, gun and knife were left at the bar and the pistol was given to a Crystal employee as security for a loan of money to defendant. The knife was returned to defendant at about 12:30 a. m.; the gun was never returned to him.

Shortly after 2:30 a. m., January 22, the defendant drove his vehicle into a service station in Billings. He requested the attendant to perform certain repair work on the vehicle, for which defendant paid in cash, giving a twenty-dollar bill and having considerable other money in his possession. He also cleaned his vehicle and washed the floor mats and a pair of boots with water. The attendant later retrieved some articles from a wastebasket which defendant had apparently thrown away.

On the afternoon of January 22, 1975, defendant was arrested for shoplifting a blue coat from a hardware store in Billings. When he entered the store he was not wearing a coat. The investigation relating to the shoplifting arrest eventually led to the charges involved in the instant case.

The trial lasted six days and involved the testimony of 39 state witnesses and the admission of 55 state exhibits and two defense exhibits. Fourteen Billings police officers testified for the state on various aspects of the investigation of the crimes and of defendant's shoplifting arrest. Counsel for the defense made no opening statement, and rested at the close of the state's case in chief. The defendant did not testify.

The jury returned guilty verdicts on both crimes charged. After sentencing, defendant made motion for a new trial, which was denied.

The issues on appeal are as follows:

1. Where the prosecutor's comments to the jury on closing argument tantamount to comments on the failure of defendant to testify and therefore in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, Section 25, 1972 Montana Constitution?

2. Did the district court commit prejudicial error in admitting evidence of other acts or conduct of the defendant?

3. Did the district court commit prejudicial error in admitting into evidence a coat and testimony pertaining to the alleged theft of the coat?

4. Did the district court err in its failure to instruct the jury on the elements of theft in the course of its instructions on the elements of robbery?

5. Was the testimony of 14 pollice officers so unnecessary and unduly prejudicial as to deny the defendant a fair trial?

The first issue concerns certain remarks made by the county attorney during his closing argument to the jury. It is beyond question that the prosecution is strictly prohibited from commenting on a defendant's failure to testify, for such comment may negate the presumption of a defendant's innocence in violation of his right to remain silent under the Fifth Amendment of the United States Constitution. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. This federal constitutional right inures to the benefit of defendants in state courts by reason of the Fourteenth Amendment to the United States Constitution. Griffin, supra; State v. Hart, 154 Mont. 310, 316, 462 P.2d 885. The Montana constitutional guaranty affords no greater protection than that of the Federal constitution. State v. Anderson, 156 Mont. 122, 125, 476 P.2d 780, 782. In Anderson this Court said that the test of the propriety of a prosecutor's comments is:

"* * * whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'

In Hart, we found reversible error in the prosecutor's comment that the defendant's attorney did not see fit to offer any evidence to controvert the story of a policeman who testified to searching the defendant and finding incriminating evidence. The foundation of that decision was that any controverting evidence '* * * could only come from the defendant himself * * *.' In so holding, the Court relied upon two federal cases: Desmond v. United States, 345 F.2d 225, 14 A.L.R.3d 718 (First Cir. 1965), and Rodriguez-Sandoval v. United States, 409 F.2d 529 (First Cir. 1969). In both cases convictions were reversed because comment was made that direct testimony of prosecution witnesses was no contradicted. In all three cases, the uncontradicted testimony commented upon concerned situations where the government witness and the defendant himself were present and no other witnesses to the particular occurrences were available. Thus, the inference to be drawn from such comments is that the defendant's failure to testify negates the presumption of innocence.

In the instant case the facts are significantly different. In the first place the county attorney never made reference to defendant's failure to testify nor to defense counsel's failure to call defendant to the witness stand. Second, there was no reference to the uncontradicted nature of the testimony of any witness who was present with the defendant during or immedicately after the crimes as was the case in Hart, Desmond and Rodriguez-Sandoval.

While it is true that the county attorney often asked rhetorical questions which amounted to comments that there was 'no evidence' or 'no testimony' to rebut the inferences raised by the state's evidence, nowhere does it appear that these comments would necessarily imply that defendant was the only source which could negate state's evidence. The most that can be said of the county attorney's comments is that they referred to the fact that the defense presented no case at all. Certainly the prosecution, as an adversary for the state, cannot be prohibited from arguing the strength of its case to the jury. The manifest fact that the defense presented no testimony of its own may be detrimental to the defendant, but such fact cannot deny the prosecution its right to stress the strength of its own evidence. Compare: United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir. 1969), cert. den. 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665.

Thus, we hold that the county attorney's comments regarding the absence of controverting evidence in this case did not constitute a violation of defendant's right to remain silent under the United States Constitution, 1972 Montana Constitution, Article II, Section 25; Griffin, or Hart.

We also note here, as we did in State v. Caryl, Mont., 543 P.2d 389, 399, 32 St.Rep. 1207, 1221, where error was assigned to prosecution comments made during trial, that:

'A measure of the lack of significance of this alleged error is found in the failure of the defendant to move for a mistrial, submit an additional cautionary instruction request the court to admonish the county attorney in the presence of...