Weekly v. State , 1973 Okla. Crim. App. LEXIS 524 ( 1973 )

BRETT, Judge

(dissents).

I respectfully dissent to this decision because I believe defendant’s constitutional rights were so jeopardized that he did not receive due process of law.

I believe both of defendant’s propositions are well taken. In support of his first proposition defendant cites this Court’s decision in Messier v. State, Okl.Cr., 428 P. 2d 338, 341 (1967). In the Messier case the defendant complained that her constitutional rights were violated when she was cross-examined concerning her refusal to testify at an earlier preliminary hearing on another case, claiming her constitutional right against self-incrimination. The Messier case was reversed on that proposition alone. Judge Nix stated in that unanimous decision:

“This Court has never had an opportunity to pass upon this question, but the Supreme Court of the United States has spoken in this regard numerous times. “In the case of Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, 62 A.L.R.2d 1344, where Hal-perin, one of the defendants, took the stand to testify in his own behalf; on cross-examination the prosecuting attorney asked him the same question that he had refused to answer before a grand jury. This time, Halperin answered the question: His answers tended to show his innocence of any wrong doing. The Government was permitted, over objection, to draw from him the fact that he had previously refused to answer these questions on the grounds that his answers might tend to incriminate him. The Court held that under the circumstances, it was prejudicial error for the trial judge to permit cross-examination of petitioner relative to taking the Fifth Amendment privilege before the grand jury, and that Halperin must be granted a new trial. In a special concurring opinion, Justice Black, joined by Justice Douglas and Justice Brennan, had this to say:

T agree with the Court that use of this claim of constitutional privilege to reflect upon Halperin’s credibility was error, but I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them.

‘It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution.’ ”

In the instant case, defendant offered to explain, but the prosecutor limited him to a “yes” or “no” answer. On redirect examination, the prejudice could not be overcome. In this case, defendant is being penalized for exercising his constitutional right to remain silent upon arrest.

Concerning defendant’s second proposition, the errors complained of by defendant are of such fundamental nature that no objection was required. Tf it was improper to cross-examine the defendant concerning his remaining silent upon arrest, then it was equally improper for the prosecutor to dwell on that same fact in closing argument. Defendant’s brief cites five lengthy examples of the prosecutor’s improper argument. In Thurmond v. State, 57 Okl.Cr. 388, 48 P.2d 845 (1935), the first, second and fourth paragraphs to the Court’s syllabus state:

“1. Under the Constitution and laws of this state the defendant is entitled to have the opportunity of consulting with counsel at all stages of the proceedings, from the time he is arrested until the final disposition of the case, and he is not required and does not have to make a statement to the officers or the court. He may sit mute and say nothing, and the fact that he does not make a statement to the officers is not and cannot be construed as evidence of guilt, and it is improper for the prosecuting officer to argue to the jury the fact that the defendant did not make a statement to the officers. [Emphasis added.]

“2. However strong the prosecuting attorney’s belief of the prisoner’s guilt may be, he must remember that unfair trials may happen to result in doing justice in particular cases, but the justice so obtained is dangerous to the whole community. It matters not how guilty the prisoner on trial charged with crime may be, he is entitled to a fair and impartial trial, and a judgment of conviction for manslaughter in the first degree and imposition of a four-year sentence may be as great a wrong to society if unfairly secured, although the accused may be guilty, as it would be for such person to go unwhipped of justice.

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“4. Where the record shows that counsel for the state, in the prosecution of a person charged with crime, has been guilty of conduct calculated to inflame the minds of the jurors and arouse prejudice or passion against the defendant, or to prevent the accused having a fair and impartial trial, conviction will be set aside and a new trial granted.”

The Attorney General argues in his brief that the questions and answers propounded to the defendant in this instance was a part of the res gestae, and therefore proper. He reasons further, the questions being proper, then the argument to the jury was likewise proper. The difficulty with the Attorney General’s argument is that the rule of res gestae does not supersede defendant’s constitutional rights, provided by both the United States Constitution and the Constitution of the State of Oklahoma.

Therefore, I respectfully dissent to this decision. I believe it should be reversed and remanded for a new trial.