State v. Johnson

No. 88-29
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
CARL ESSIE JOHNSON,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Keith, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Peter Funk, Asst. Atty. General, Helena
Patrick L. Paul, County Attorney, Great Falls, Montana
Stephen Hagerman & Kim Schulke, Deputy County Attorneys

Submitted on Briefs: July 21, 1988
Decided: September 1, 1988
SEP- ;
Filed: -

Clerk
defendant became unconscious. Ms. Shippers ran to the nearby
apartment of a friend and notified the police. She led the
police back to the defendant's apartment where he was found
still unconscious. An ambulance was called for the defendant
and the police also took Ms. Shippers to the hospital for
examination and treatment.
At trial, Ms. Shippers identified the defendant as her
attacker and described the events of January 4, 1987, in
detail. There were no eyewitnesses to the crimes, although
the State called a number of witnesses who corroborated the
details of Ms. Shippers' story. David Cowden, the friend to
whom Ms. Shippers fled, testified as to her condition upon
arriving at his home. The prosecution presented testimony
with regard to the examination of Ms. Shippers and samples of
hair, swabs, saliva, and blood as part of a rape examination
kit. In addition, an FBI laboratory agent testified that the
hairs taken from various pieces of evidence matched those of
the defendant and the victim.
Mr. Johnson did not call any witnesses or present any
evidence in his defense. Rather, defense counsel's closing
argument was based solely upon the failure of the State to
present sufficient evidence to prove its case beyond a rea-
sonable doubt. During the State's final closinq argument,
the following discussion took place before the jury:

Prosecution: Also remember that while the State
of Montana produces evidence, it's
under no obligation to produce all
the evidence. And, moreover, while
the State can subpoena Mr. Podolak
from Washington, D.C. and all the
other witnesses, the defense has the
same opportunity ...
Defense: I object. The defendant is not
required to produce any evidence. I
ask the iury to he instructed that
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

The defendant, Carl E. Johnson, appeals his conviction
and sentence entered by the District Court of the Eighth
Judicial District, Cascade County. The jury found Mr. John-
son guilty of aggravated kidnapping, felony assault, sexual
intercourse without consent, and aggravated burglary. He was
sentenced to life imprisonment without possibility for pa-
role, and received a total of 130 years to run consecutively,
plus an additional 100 years as a persistent felony offender.
We affirm the conviction.
The single issue for our consideration is whether the
burden of proof was impermissibly shifted to the defendant by
the denial of defendant's motion for a mistrial following the
comments of the deputy county attorney during closing
argument.
The uncontradicted testimony of Holly Shippers estab-
lished that on January 4, 1987, she was awakened at approxi-
mately 4 a.m. She heard the striking of a match. When she
turned on the light she discovered Mr. Johnson standing in
the doorway of her bedroom. After Ms. Shippers screamed, the
defendant jumped on top of her, held a knife to her throat,
and told her to shut up. The testimony of Ms. Shippers
established that the defendant then committed rape upon her
by forcing her to engage in oral sex and sexual intercourse.
The defendant then forced Ms. Shippers into her own automo-
bile and drove her to his own apartment. Over the course of
the next several hours, the defendant again repeatedly raped
Ms. Shippers by forcing her to engage in sexual intercourse
and oral sex. Later the defendant told Ms. Shippers that it
was "time for one of us to die." The defendant went into the
bathroom and returned with several pills which he swallowed.
After requiring Ms. Shippers to write out a will for him, the
 that's clearly an erroneous
statement.
The Court: Don't talk about what they are
supposed to do or can do. Don't
talk about their power of subpoena,
because I have given an instruction.
Prosecution: On the defendant not testifying, and
we cannot comment on that.
The Court: But I am giving an instruction that
the defendant need not prove his
innocence.
Prosecution: That's correct.
The Court: Don't get into any question about
their power of subpoenaing witness-
es. The objection is sustained.
Defense: Thank you.
The Court: And I want the jury to be admonished
to disregard any remarks by Mr.
Hagerman about the defendant's right
to subpoena witnesses from Washing-
ton, D.C. or any where else.
Prosecution: Suffice it to say that the State of
Montana doesn't have to produce all
of the evidence that there may be in
the case.
In chambers the defendant moved for mistrial and the
District Court denied that motion. The defendant appeals
that denial.
Did the District Court properly deny defendant's motion
for a mistrial in light of the prosecutor's comments made
during his closing argument?
The prohibition against a prosecutor's comments on the
defendant's failure to testify is contained in Griffin v.
California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d
106, and Chapman v. California (1967), 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705. The holdings in Griffin and Chapman
form the foundation for the Montana cases which have consid-
ered the same issue. As pointed out in State v. Gladue
(Mont. 1984), 677 P.2d 1028, 41 St.Rep. 249:

In Griffin v. California . . . the United States
Supreme Court set aside a judgment of conviction
holding that the federal constitution "forbids
either comment by the prosecution on the accused's
silence or instructions by the court that such
silence is evidence of guilt."

In Gladue, this Court also discussed the qualification
placed on Griffin by the U.S. Supreme Court in the Chapman
case:

The Chapman court adopted the position that it
would not adopt a per se rule, and that instead it
would look at such cases where error occurred and
determine, "that before a federal constitutional
issue can be held harmless, the court must be able
to declare a belief that it was harmless beyond a
reasonable doubt."
677 P.2d at 1031. This Court concluded that because the
Court was unable to determine beyond a reasonable doubt that
the prosecutor's comments did not contribute to the verdict
against Gladue, the conviction should be reversed.
In State v. Wilkins (Mont. 1987), 746 P.2d 588, 44
St.Rep. 1794, applying the same rationale, this Court con-
cluded that the District Court's comments had the effect of
focusing the jury's attentions on the defendant's silence at
a late stage and that the court was not convinced the cura-
tive instruction had remedied the error. The Court noted
that in order to rebut the presumption, the State must prove
beyond a reasonable doubt th-at the error did not taint the
conviction, citing Gladue.
 In State v. Gonyea (Mont. 1987), 730 P.2d 424, 44
St.Rep. 39, the same standards were applied. After a careful
consideration of the entire transcript, the Court concluded
that the comments were harmless beyond a reasonable doubt.
We conclude that the comments by the prosecution were
improper in several respects. We agree with the District
Court that it was not proper for the prosecution initially to
comment on the defendant's opportunity to subpoena witnesses.
Next counsel referred to the fact that he could not comment
on the defendant not testifying. While that remark undoubt-
edly was inadvertent, it was not proper. Last the prosecu-
tion reemphasized that the State did not have to produce "all
the evidence." That comment could have been construed by the
jury to again suggest that the defendant somehow had failed
in his duty to present a case to them. The record does not
suggest an intentional comment on the accused's silence.
Nonetheless we conclude that the remarks clearly were
objectionable.
The State's evidence, which we will review further, was
direct and compelling, with no significant contradictory
evidence. Given the strength of the State's case, there was
clearly no need for any comments of this nature. Before
considering the effect of these objectionable remarks in the
present case, we wish to make a comment for the benefit of
the prosecution in other criminal cases. - - comment,
Do not
even indirectly, - - silence - - accused.
on the of the
Because we find the remarks to be objectionable, we must
next consider the Chapman rule to determine if the error was
harmless beyond a reasonable doubt. The testimony submitted
by the State, including the extensive and unrebutted testimo-
ny of Ms. Shippers, clearly established the commission of the
crimes by the defendant. Because of the revolting nature of
the evidence, we have not discussed it at length. However,
we wish to emphasize that the evidence of guilt was over-
whelming. Even the circumstantial corroborating evidence was
uncontradicted. In addition, the District Court gave numer-
ous instructions during the course of the trial concerning
the State's burden of proof. The admonition of the jury
immediately following the prosecutor's remark demonstrates
the trial court's efforts to impress upon the jury the right
of the defendant to remain silent and not to present any
evidence. We therefore conclude that the evidence was so
overwhelming that the comments can be classed as harmless
beyond a reasonable doubt. We hold that the District Court's
denial of the motion for mistrial was proper.
We affirm the conviction of Mr. Johnson.

We Concur:

Justices