State v. Smith

• Court: Arizona Supreme Court
• Writing for the Court: BERNSTEIN; STRUCKMEYER
• Citation: State v. Smith, 101 Ariz. 407, 420 P.2d 278 (Ariz. 1966)
• Decision Date: 17 November 1966
• Docket Number: No. 1673,1673
• Parties: STATE of Arizona, Appellee, v. Sandy SMITH, Jr., Appellant.

Page 278

420 P.2d 278

101 Ariz. 407

STATE of Arizona, Appellee, v. Sandy SMITH, Jr., Appellant.

No. 1673.

Supreme Court of Arizona, In Banc.

Nov. 17, 1966.

Darrell F. Smith, Atty. Gen., and Gary K. Nelson, Asst. Atty. Gen., for appellee.

Vernon B. Croaff, Public Defender, and Grant Laney, Deputy Public Defender, for appellant.

BERNSTEIN, Vice Chief Justice.

The defendant appeals from a conviction of first degree burglary under A.R.S. § 13--302 rendered in the Superior Court of Maricopa County. Statements made by the prosecution during closing arguments relating to possible reasons that the defendant did not take the witness stand form the basis for this appeal.

During the course of trial the counsel for the defense made the following statement:

'Now this is bound to come out, so I will mention it at this time. I know that especially any of you who are jurors in a criminal case for the first time are wondering why the defendant didn't take the stand today in his own defense. Some of you may take this as some kind of an inference of guilt in this matter. For any of you who do not know, our law specifically states that a defendant, is not required to take the stand, that the entire burden is upon the state to prove everything and the defense doesn't have to do anything but can remain mute through the proceedings. This rule was established for the reason that some persons, some defendants, don't have the mental capacity to withstand vigorous cross examination of a Deputy County Attorney, and even though that person may be completely innocent of the charge, he may not have the mental facilities to satisfy a jury as to his innocence. I beg of you, please don't hold against the defendant the fact he didn't take the stand. There are reasons why defendants do not take the stand not necessarily those of being guilty of the charge.'

In his closing argument, and in response to the above statement, the prosecuting attorney had the following to say:

'Counsel talked about the defendant not taking the stand. He gave several reasons for which the defendant did not have to take the stand. Since he has opened the door in that area, I would like to say that one of the reasons the defendant does not have to take the stand is because when he does take the stand, he is submitted to the state would be allowed to go into the state would be allowed to go into any aspect of the defendant's life which might have a bearing on the case and he would be asked about anything that he may have done in the past, any trouble he had been in, any conviction that he may have had, and certainly if he had been in trouble before, he wouldn't want to take the stand.'

The defendant contend that the above statement was prejudicial and in violation of his rights pursuant to A.R.S. § 13--163, subsec. B which provides:

'The defendant's neglect or refusal to be a witness in his own behalf shall not in any manner prejudice him, or be used against him on the trial or proceedings.'

It is an established principle of law that a prosecuting counsel may not comment on the fact that the defendant chose not to take the witness stand in his own behalf. In the case of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the Supreme Court of the United States held that the Fifth Amendment privilege against self-incrimination applied to the states as part and parcel of the Fourteenth Amendment's due process clause, and in the case of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 the same court held that the right to choose not to take the stand And to be free from comment concerning that choice was embodied in the privilege. We are concerned therefore not only with a statutory right under Arizona law but an individual's constitutional rights as well. It is in this light that we now consider the present case.

Counsel for the prosecution admits that if his statement in court stood alone there would be no question but that the defendant's rights had been prejudicially affected. However, he argues that the statement made by the defense counsel justified his response. He bases this argument on the doctrine of 'invited error' recognized by this court on a number of occasions. State v. Gortarez, 98 Ariz. 160, 402 P.2d 992; State v. Evans, 88 Ariz. 364, 356 P.2d 1106; Post v. State, 41 Ariz. 23, 15 P.2d 246. The doctrine provides that where remarks of the prosecuting attorney, even though improper, are invited or occasioned by accused's counsel, or are in reply to or in retaliation for his acts or statements they are generally not grounds for reversal. The question, therefore, before this court is whether the invited error doctrine is properly applicable to the case at hand. For reasons below, we hold that it is not.

The State in urging this court to affirm the defendant's conviction below is, in effect, requesting that we grant broad application to the invited error doctrine while simultaneously giving a narrow interpretation to the rule in Griffin and the protection if affords a defendant's constitutional guaranty against self-incrimination. We cannot sanction this order of emphasis. The rule in Griffin is designed as protection for a constitutional privilege and, consequently, extreme caution must be exercised in permitting an evasion of these fundamental rights.

The court in the case of Glotzbach v. Klavans, D.C., 196 F.Supp. 685, stated that the constitutional guarantee against testimonial...