State v. Brannson

HIGGINS, Judge,

dissenting.

I am reluctant to assign error in the conduct of a trial where the defendant can ascribe no error that the trial court refused relief, because none was requested. Nevertheless, in my opinion, the incidents described by the majority caused manifest injustice to the accused in this case and warrant plain error relief for reasons taken from the opinion of the Honorable Charles Shangler in the court of appeals.

An attorney in the case may not comment on the failure of an accused to testify in the trial under the constitutional principle that such a comment violates the guarantee to an accused to be free from compelled self-incrimination. Fifth Amendment to the United States Constitution; Mo. Const. Art. I, § 19. Section 546.270, RSMo 1978, which disallows any reference by an attorney in the case to the election of an accused not to testify, enacts that constitutional principle. Rule 27.05(a) reiterates that fundamental public policy.

Missouri cases hold that the principle proscribes only “direct and certain references to failure of the accused to testify.” State v. Hutchinson, 458 S.W.2d 553, 555[3] (Mo. banc 1970); State v. Inscore, 592 S.W.2d 809, 812-813[8] (Mo. banc 1980). Thus, comment by the prosecutor that the defendant offered no evidence insinuates only indirectly the failure to testify, and so does not violate the constitutional prohibition. State v. Pugh, 649 S.W.2d 480, 482[2], (Mo.App.1983). Also, a hearsay objection by the prosecutor in terms of; “The defendant is attempting to testify without taking the stand” where the question on cross-examination was propounded by professional counsel was held to be only an indirect reference to the silence of the defendant, and so was cured by the prompt instruction of the court that the jury disregard the remark. State v. Martin, 624 S.W.2d 879, 883[13—15] (Mo.App.1981). On the other hand, an inquiry by the court to the defendant before the jury: “Will you be sworn, sir; are you going to testify?”— where the defendant refused the stand— *251was a direct comment by the trial judge on the failure of the accused to testify and so violated the constitutional principle, the statute and the rule. State v. Gray, 503 S.W.2d 457, 461[7] (Mo.App.1973). Thus, also, comments such as: “There is not a single witness who took the stand who is on trial” [State v. Reed, 583 S.W.2d 531, 533[2] (Mo.App.1979) ]; “I don’t know what this boy [defendant] says. There is no evidence of any type by him in this case.” [State v. Lindner, 282 S.W.2d 547, 550[2—4] (Mo.1955)]; “Mr. Lindsey doesn’t have to go forward with any evidence if he doesn’t wish to. He doesn’t have to take the stand if he doesn’t want to.” [State v. Lindsey, 578 S.W.2d 903 (Mo. banc 1979) ]; and the remark by the court to the defendant: “Now you were given the opportunity to take the stand. You’re going to keep quiet through these proceedings or you’re going to have to leave the courtroom.” [State v. Howard, 540 S.W.2d 86, 87 (Mo. banc 1976) ] were held to be direct references to the failure of the defendant to take the stand, and so, reversible error.

In the assessment whether the comment was a direct or indirect reference, the critical terms are accused and testify: the test is whether the jury’s attention was drawn to the accused’s absence from the witness stand. State v. Frankoviglia, 514 S.W.2d 536, 541[5] (Mo.1974).

The comments by the prosecutor—iterated and reiterated in one form or another nine times—“This defendant is testifying in this case without taking the stand so that I can cross-examine him”—were direct references to the failure of the accused to testify in the trial. The only question is whether the cross-examination by the pro se advocate was in effect disguised testimony so that the defendant, although unsworn and so not subject to cross-examination, nevertheless gave voluntary evidence.

The privilege against compulsory self-in-erimination is personal to the accused and may be waived. The conduct of an attorney who performs on behalf of the accused may result in a waiver—as where counsel in the trial for stratagem or other purpose calls attention to the silence of the client. State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 587[8-ll] (1950). A parity of logic requires that an accused who acts pro se may waive the privilege by statements tantamount to testimony or by an acknowl-edgement before the jury that he has elected not to testify. That is the sense of the federal decisions on the question.

The prosecution interpolates the federal authorities to hold that a pro se defendant who persistently presents unsworn “testimony” under the guise of cross-examination waives the privilege against self-incrimination. The rationale of these authorities, an analysis discloses, encompasses more than cross-examination and applies the principle to any conduct which manifests a purpose to insinuate to the jury matters of fact, defense, or proofs by un-sworn statements—whether in cross-examination [United States v. Mahanna, 461 F.2d 1110, 1113[2] (8th Cir.1972) ], opening statement [United States v. Lacob, 416 F.2d 756, 760[4] (7th Gir.1969) ], summation argument [United States ex rel. Miller v. Follette, 397 F.2d 363, 366 (2d Cir.1968) ], or asides to the jury [United States v. Kaufman, 429 F.2d 240, 246[10] (2d Cir. 1970) ].

Thus, as in Redfield v. United States, 315 F.2d 76 (9th Cir.1963), the defendant acted pro se and in the course of cross-examination of prosecution witnesses, [l.c. 80[3]] “persistently testified, though not under oath ... while purporting to act in the role of counsel, and in flagrant and contemptuous disregard of repeated admonitions and orders from the bench not to testify without first being sworn.” In that context, the official suggestion that the defendant take the witness stand to accomplish that testimonial purpose was not an infringement of the privilege against self-incrimination, since by that time the de-. fendant Redfield, by conduct tantamount to voluntary testimony, had already waived the privilege. That does not describe, by temper or analogy, the conduct and events which induced the remarks of the prosecutor in the case on review. There was no *252warning by the court to the pro se advocate Brannson as to any impropriety of the form of the cross-examination, no order issued, nor was any disobeyed. The prosecutor lodged nine separate objections to pro se cross-examination questions. The orders of the court were laconic and without admonition or other color: twice the court ruled: “The objection will be overruled,” and seven times: “The objection will be sustained.” Once, the court embellished that decision with comment: “The objection that it’s speculative will be sustained.”

The conduct of the pro se defendant Brannson was neither obdurate nor disobedient in the face of admonition, correction or direction by the court, because there was none given. The only question is whether the record discloses that the purpose or effect of the Brannson cross-examinations was to assert testimonial fact in the guise of that advocacy function.

The prosecution presented twelve witnesses. Brannson cross-examined them all, save one. The objections by the prosecutor went to questions posed to three of the witnesses. There is no contention, therefore, that there was a pervasive purpose to use the pro se status as a ploy to insinuate a defense to the jury. The prosecutor made nine separate general objections to the pro se examinations of the three witnesses—some of them not even articulated, but still incipient. The comment: “This Defendant is testifying in this case without taking the stand so that I can cross-examine him” accompanied each objection. The sense of each objection was that the question assumed a fact not in evidence. The cross-examination questions, however, were not all vulnerable [the court overruled two of them], and those which were fallible were faulty for a variety of reasons. Thus, one inquiry to witness Solomon was sustained as a comment on the evidence, and an inquiry to witness Yukon was sustained on the ground it was speculative. Thus, also, these actions of the court belied the basis of objection to four of the pro se cross-examination questions. The proper objection to the remainder of them was simply that each of the questions assumed a fact not in evidence. That on the rule that a question based upon the assumption that a certain fact has been proven, when it has not been, is improper. Schwane v. Kroger Company, 480 S.W.2d 113, 116[1-3] (Mo.App.1972); 98 C.J.S., Witnesses § 341c (1957).

To put a question on cross-examination which assumes a fact not in evidence, in any event, is a vagary of courtroom practice to which even the most skilled professional advocate occasionally succumbs. It is the kind of error a trial court tolerates and corrects, and unless made with the purpose to self-serve, gives no cause for comment by counsel in opposition or by the court. It is by the very nature inevitable, of course, that a jury will understand any cross-examination questions by a pro se advocate in a criminal case as assertions of defense, simply because the interrogator is also the accused on trial. In the correction of a vagrant pro se advocate practice, there must be care that constitutional prerogatives be given due deference [United States v. Warner, 428 F.2d 730 (8th Cir. 1970), l.c. 739]:

It is true, that a judge must be able to limit counsel to proper questioning and argument whether he be trained counsel or pro se and a prosecuting attorney should have latitude to indicate to the jury what constitutes evidence and what does not as he would if his adversary were trained counsel. On the other hand constitutional rights should be paramount and if at all possible judge and prosecutor should be particularly careful not to violate such constitutional rights in the case of a pro se defendant. In most cases judges and prosecutors can adequately perform their tasks without commenting on a defendant’s failure to testify. A judge can warn a pro se defendant as to his excesses and out of the jury’s presence perhaps warn him of the possible loss and waiver of Fifth Amendment rights which may be attendant upon failure to follow the judge’s instructions. A prosecutor can indicate that a *253defendant’s comments are not evidence as he would state that an attorney’s comments are not evidence without commenting on pro se defendant’s failure to testify-

The cross-examination of the eleven witnesses by pro se defendant Brannson was orderly, deferential and for the most part skillful. The several questions which assumed facts not in evidence were errors innocent of any undue testimonial design, and gave the trial court no concern.

There is no reason to suppose that an objection by the prosecutor [as United States v. Warner, supra, recommends] that the questions assumed facts not in evidence would not have sufficed, nor to suppose that a request by the prosecutor for the court to warn the pro se defendant of the waiver implications of repetition would not have allayed the cause of objection. The prosecutor, rather [after expressing concern to the bench that the pro se defendant was about to ask leading questions of the witness—and the response by the court that such questions were legitimate on cross-examination], immediately, avidly and insistently launched into the objection and comment that “this defendant is testifying in this case without taking the stand.” That objection, the first of the series, was overruled [as it appears because the question was merely leading and not an assumption of fact not in evidence] so that the comment—a direct reference— as to the failure of the defendant to testify was altogether gratuitous and without provocation. That suffices to reverse this conviction.

The mandate of section 546.270 and Rule 27.05(a) is peremptory: it declares the constitutional principle that the failure of a defendant to testify shall not prejudice the accused nor give occasion for comment to any attorney in the case. State v. Shuts, 329 Mo. 245, 44 S.W.2d 94, 96[8] (1931). Their purpose is to keep from a jury any reference to the constitutional right of a defendant to be free from compelled self-incrimination. State v. Barker, 399 S.W.2d 1, 3[1—2] (Mo.1966). Here, the first objection to cross-examination question by the pro se defendant: “This Defendant is testifying in this case without taking the stand so that I can cross-examine him”—shorn of euphemism—states the bald equivalent: “This Defendant chooses not to take the stand’ to testify.” That comment was unprovoked and gratuitous, and so was not induced by a waiver.

The infringement of the constitutional principle by a direct and certain reference that the defendant does not choose to testify denies a fair trial, and so is not likely harmless. State v. Reed, 583 S.W.2d 531, 533[3,4] (Mo.App.1979); State v. Lindsey, 578 S.W.2d 903, 904[2, 3] (Mo. banc 1979); State v. Gray, 503 S.W.2d 457, 463 (Mo. App.1973). It is a manifest injustice which is subject to review and redress as plain error under Rule 29.12. State v. Reed, supra, State v. Gray, supra; State v. Howard, 540 S.W.2d 86, 87[2] (Mo. banc 1976).

Accordingly, I would reverse the judgment and remand the cause for a new trial.