State v. Perry

• Decision Date: 10 December 1977
• Docket Number: No. 48779,48779
• Citation: 573 P.2d 989,223 Kan. 230
• Parties: STATE of Kansas, Appellee, v. Daniel L. PERRY, Appellant.
• Court: Kansas Supreme Court

Page 989

573 P.2d 989

223 Kan. 230

STATE of Kansas, Appellee, v. Daniel L. PERRY, Appellant.

No. 48779.

Supreme Court of Kansas.

Dec. 10, 1977.

Syllabus by the Court

1. The giving of an instruction, over objection of the defendant, that the jury

shall not consider the fact that the defendant did not testify in arriving at its verdict is not constitutional error.

2. In an appeal from a conviction of aggravated robbery, the record is examined and it is held that the giving of such an instruction was not prejudicial and is not reversible error.

Phillip S. Frick, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and was on the brief for appellant.

James L. Linn, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty. and Stephen M. Joseph, Asst. Dist. Atty., were with him on the brief for appellee.

MILLER, Justice:

Daniel L. Perry appeals, following his conviction by a jury of aggravated robbery, K.S.A. 21-3427.

He raises but one point: that the trial court violated his constitutional rights when it instructed the jury, over his objection, that:

"You shall not consider the fact that the defendant did not testify in arriving at your verdict."

This instruction is taken from PIK Crim. 52.13. Defendant acknowledges in his brief and in oral argument that the instruction is a correct statement of the law, and he does not challenge the substance of the instruction.

Instead he argues, and not without support, that the Fifth Amendment right not to testify, enforceable against the states through the Fourteenth Amendment, carries with it the correlative right to prevent the trial judge from singling out and emphasizing the accused's failure to testify, in the jury instructions; and that such an instruction, over defendant's objection, constitutes a "comment" on his failure to testify, and is prejudicial.

We have previously considered this or similar instructions, and we have held that the giving of such an instruction correctly states the law and is not erroneous. State v. Kowalec, 205 Kan. 57, 60, 468 P.2d 221; State v. McCoy, 160 Kan. 150, 161, 160 P.2d 238; State v. Olsen, 88 Kan. 136, 142, 127 P. 625. Long ago, in State v. Goff, 62 Kan. 104, 61 P. 683, we held that it was reversible error for a trial court to refuse to give such an instruction if requested by the defendant to do so. And recently, in State v. Quinn, 219 Kan. 831, 549 P.2d 1000, where a similar instruction was given over the objection of the defendant, we held that the instruction, when considered with others given, was adequate. In Quinn, however, the precise issue raised here was not asserted.

The Fifth Amendment to the Constitution of the United States provides that "No person . . . shall be compelled in any Criminal Case to be a witness against himself . . ." Similarly, section 10 of the Kansas Bill of Rights provides that ". . . No person shall be a witness against himself . . ." Speaking of these constitutional provisions, Justice Fatzer, speaking for a unanimous court in State v. Faidley, 202 Kan. 517, 520, 450 P.2d 20, 22, said:

". . . The provisions of the Fifth Amendment grant no greater protection against self-incrimination than does Section 10 of the Bill of Rights. . . . The manifest purpose of the constitutional provisions, both state and federal, is to prohibit the compelling of self-incriminating testimonial or communicative acts from a party or a witness, and 'the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation . . .' (Counselman v. Hitchcock, 142 U.S. 547, 584, 585, 12 S.Ct. 195, 35 L.Ed. 1110, 1121.) . . ."

The defendant premises his claim upon Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and a number of subsequent federal and state appellate court decisions which have extended the Fifth Amendment privilege. In Griffin, in conformity with a California statute, the trial court instructed the jury:

" 'As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury 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.' " (p. 610, 85 S.Ct. p. 1230.)

The accused did not testify. During closing argument, the prosecutor dwelt upon the accused's failure to testify, emphasizing that the defendant would know various things, and the answers to questions which arose in the case, but that he had not seen fit to take the stand and deny or explain them. The United States Supreme Court held:

". . . that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Emphasis supplied.) (p. 615, 85 S.Ct. p. 1233.)

The court specifically reserved decision on whether an accused can require that the jury be instructed that his silence must be disregarded (Footnote 6, p. 615, 85 S.Ct. 1229). That right has been afforded an accused in this state since the turn of the century. State v. Goff, supra.

A few courts have recently held that it is error of constitutional magnitude and a violation of a defendant's rights for a trial court, over defendant's objection, to give the instruction here involved, and thus to "comment" on an accused's silence. These include the Supreme Courts of Arkansas, Iowa, and Indiana, and the Courts of Appeal of Arizona and California.

A number of courts have held it improper (on non-constitutional grounds), to give such an instruction over defendant's objection, and hold that it should be given only upon defendant's request. An equal or larger number have found no constitutional or other error where the instruction is given over defendant's objection, or without defendant's request. Most courts have approved the giving of the instruction sua sponte. Multiple defendant cases, where one defendant requests the instruction and others object to it, have perplexed trial and appellate courts alike in those jurisdictions which base the propriety of the giving of the instruction upon the request or the objection of the accused.

The great majority of the courts do not recognize any constitutional right in this area, and most cases turn on statutory or other grounds. We found no decision holding that the instruction misstates the law. We have reviewed many of these opinions, but do not believe citations or lengthy discussions of all of them need be included here. The conflict is explored and many of the cases are cited in an annotation found at 18 A.L.R.3d 1335.

Though the instruction was not requested by either defendant, it was given sua sponte by the trial judge, and was cited as error on appeal in United States v. Garguilo, 310 F.2d 249 (2d Cir. 1962). Judge Friendly, speaking for the majority, says:

". . . Garguilo argues that it is error for the judge to give any instruction unless requested by the defendant to do so, since there is a risk that, the failure to testify being thus spotlighted, the light will penetrate the curtain sought to be drawn over it.

"There may be enough in this so that, as Judge Learned Hand said for this Court many years ago, 'It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it. . . .' But we agree also with the rest of Judge Hand's statement: 'but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.' . . . It is far from clear that such an instruction is prejudicial to a defendant; the chances are rather that it is helpful. The jurors have observed the defendant's failure to take the stand; in the absence of instruction, nothing could be more natural than for them to draw an adverse inference from the lack of testimony by the very person who should know the facts best. And 'despite the vast accumulation of psychological data, we have not yet attained that certitude about the human mind which would justify * * * a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court that the failure of an accused to be a witness in his own cause "shall not create any presumption against him." ' . . ." (p. 252.)

A constitutional challenge to such an instruction was raised in Aiuppa v. United States, 393 F.2d 597 (10th Cir. 1968). Chief Judge Murrah discussed the issue as follows:

"It is argued that the language of the instruction amounts to a prejudicial comment on the failure of a defendant to take the stand, prohibited in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. But, we cannot agree. We know, of course, that such an instruction must be given if requested . . . . While it may be the better practice not to charge on this subject unless specifically requested by a non-testifying defendant, it is not reversible error to do so. . . . When couched in such careful terms as used here, we do not think the charge can be said to be more than 'a faithful compliance with the "implied direction" given district judges by Congress to fulfill "their traditional duty in guiding the jury by...