State v. Geter
| Decision Date | 21 April 1971 |
| Docket Number | No. 1047-E,1047-E |
| Citation | 108 R.I. 437,276 A.2d 274 |
| Court | Rhode Island Supreme Court |
| Parties | STATE v. Cariton GETER. x. &c. |
The defendant was tried and convicted before a judge and jury in the Superior Court on an indictment charging him with robbery. He now urges exceptions to two evidentiary rulings.
The only evidence in the case relating to the elements of the offense charged came from a clerk employed and in attendance at the Sterling Spa in Providence on the afternoon of July 8, 1969. Her testimony was that defendant entered the Spa premises at about 4:45 o'clock that afternoon. He was armed with a two-foot pipe, and she became concerned for her own safety. After some conversation not here pertinent, he pushed by her as he went behind the counter where the cash register was located. After appropriating substantially all of the money in the register, he left the premises. He was apprehended not long thereafter and these proceedings followed.
The only other witness was the arresting officer, a detective in the Providence Police Department. He was called by the state and his testimony, although brief, is the source of defendant's principal exception. After identifying himself, the witness said that he had been assigned to investigate the Sterling Spa theft and then the following exchange took place.
'Mr. Archetto: I think it is beneficial to show that the defendant was apprehended.
'The Court: The motion to strike the testimony is denied.
'Mr. Kelley: Note my exception, Your Honor.
'The Court: Yes.
'Mr. Kelley: No questions Your Honor.
'(Defendant's Exception Noted).'
In his brief defendant argues that the arresting officer's testimony should have been stricken because of the rule which says that the failure of one under arrest to respond to a charge or an accusation that he committed a crime will not sustain an inference that by standing mute and not responding he acquiesced in the truth of the accusation. State v. Marcello, 72 R.I. 382, 51 A.2d 828; State v. Epstein, 25 R.I. 131, 55 A. 204. While it became apparent during oral argument that this rule was inapposite to the facts in this case, it also became obvious from the arresting officer's testimony that defendant did not refuse to respond to that officer's inquiries until after he had been advised of his 'rights' and had refused to sign a 'rights form'. The question then becomes whether to allow the jury to receive this information was objectionable under the principles enunciated in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.
In Griffin the accused did not testify, and the Supreme Court held that the fifth amendment, as made obligatory upon the states by the fourteenth amendment, outlawed either adverse comment by the prosecution on that silence or instructions by the court that it was evidence of guilt. Its rationale was that to allow such comments or instructions would impose a penalty upon an accused 'for exercising a constitutional privilege' and would cut 'down on the privilege by making its assertion costly.' Id. at 614, 85 S.Ct. at 1232-1233, 14 L.Ed.2d at 109-110. Although unarticulated, it may well be that the Court, in substance, recognized that to permit the jury to learn that an accused had taken advantage of his right to remain silent might lead to an inference of guilt by the jury because '* * * most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.' Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968).
In this case, to be sure, the jury was not told in so many words that defendant was exercising a constitutional privilege, but it is not open to serious question that the jurors, or at least some of them, gained that impression from the arresting officer's testimony that defendant, upon apprehension and after being advised of his 'rights,' refused to sign the 'rights form' and said that 'he didn't want to say anything.' On principle we can see no difference between what transpired here and a Griffin situation. In each case the accused asserted, although in differing contexts, his constitutional right not to be a witness against himself, and in each the jury was made aware that this right had been exercised. The final result should not hinge on whether the advice came from the prosecutor in his closing argument as in Griffin or from a prosecution witness during the trial. Consistency as well as logic dictate that if one is constitutionally impermissible, the other should be. This was decided in Baker v. United States, 357 F.2d 11 (5th Cir. 1966). There an FBI agent testified that the accused, when first questioned, indicated that he wanted a lawyer and thereafter made no further statement. In holding that the admission of that testimony was erroneous the Court said:
To the same effect is United States v. Arnold, 425 F.2d 204 at 206 (10th Cir. 1970) where the Court said that the testimony that defendant said nothing...
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...18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711 (1967); see also State v. Duffy, R.I., 308 A.2d 796, 800 (1973); State v. Geter, 108 R.I. 437, 276 A.2d 274 (1971); State v. Danahey, 108 R.I. 291, 274 A.2d 736 The defendant also assigns as error the trial justice's refusal to grant his mo......
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