Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA101512, Dewey Lawes Falcone, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Appellant Woody Hume appeals from a jury verdict of guilty of second-degree murder, for which Woody was sentenced to 15 years to life in prison. On June 29, 2007, Woody hit victim Samuel Desrosiers (Sammy) with a pick-up truck, which resulted in Sammy’s death. During her rebuttal closing argument, the prosecutor remarked that “[o]nly Woody Hume knows whether he is serious or not. It’s the only person who knows whether he means those threats. We’ll never be able to jump in[to] his body and get in[to] his mind frame.” On appeal, Woody argues that the prosecutor’s comment was one on his exercise of his right not to testify and constituted reversible Griffin error in violation of his Fifth Amendment right against self-incrimination. We disagree and affirm the judgment.
As this case involves several members of multiple families, all parties are referred to by their first names to avoid confusion.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual history
1. Prosecution’s case
Woody was engaged to the victim, Sammy’s, cousin Wendie Desrosiers. The Humes and the Desrosiers knew each other because members of each family worked for a moving company called King Relocation Services. Though the families were close, tension had been developing between Woody on one side, and Sammy and Mike (Wendie’s uncle) on the other side. On June 7, 2007, Sammy discovered that his car window had been smashed. Woody admitted to smashing the window because Woody thought that Mike had scratched his car with a key. Woody volunteered to pay for the damage, and Sammy did not press charges.
Shortly thereafter, Woody threatened Sammy’s life in conversations with Sammy’s friends and family several times. On June 17, 2007, Woody spoke to Wendie’s sister, Tiffany, on the phone. During the course of the conversation, Woody threatened, “about three times,” to get a gun and shoot Sammy in the head. About a week before June 29, Woody spoke to Lisa Carrasco on the phone. Lisa was once married to Mike’s brother, Jon. Woody told Lisa he would get a gun and shoot Sammy in the head. Finally, a few days before June 29, Woody called Jon and asked him to “take care of Sammy.” When Jon refused, Woody replied that he would get a gun and shoot Sammy himself. No one ever reported these threats to the police.
On June 29, Woody returned early from a long haul trip to Texas. Although he was not expected at work until the following day, Woody came into the office and mouthed some kind of derogatory name––perhaps “idiot” or “asshole”––at Sammy, who was also in the office. Sammy seemed upset by Woody’s behavior, but said nothing in response. Sammy left the office with his supervisor, Francis Sheber (“ ‘Chip’ ”).
As Woody was conversing with his dispatcher, his dispatcher noticed that Woody was distracted, and was in fact watching Sammy’s bobtail truck outside. Woody left in the middle of the conversation when he saw Sammy and Chip get into the truck. The dispatcher immediately called Woody, to ensure that no conflict ensued between Woody and Sammy. When Sammy and Chip stopped at a red light shortly after leaving the King Relocation lot, they noticed Woody’s Dodge pick-up truck was about an eighth of a mile behind them. This prompted Sammy to get out of the bobtail’s passenger seat and walk back towards Woody’s truck. Woody then hit Sammy with his truck. Woody’s dispatcher, who was still on the phone with Woody, heard Woody say “call 911” or “call the paramedics.” After the impact, Sammy tried to walk but soon collapsed. Chip testified that he did not hear skidding tires. Eyewitness Maria Tiznado corroborated this testimony when she stated that she did not see Woody’s truck brake. Further, the prosecution’s traffic reconstruction expert found no evidence that Woody’s pick-up truck had braked. Sammy was taken to the hospital and pronounced dead on arrival.
2. Defendant’s case
The defense proceeded on the theory that Woody struck Sammy with his car accidentally. Wendie testified that Woody was “hyper” but “not too violent,” which is why she did not take any threats Woody made seriously. Wendie also stated that she had filled out paperwork to obtain a restraining order for Woody against Mike and Sammy, because Mike had been leaving “creepy” messages on Woody’s cell phone and Sammy had been making antagonistic comments on the phone with Wendie.
Dave Parmer, who was in the pick-up truck with Woody, testified that at the time of the incident, Woody was stopped at a red light. When the light changed, Woody accelerated rapidly and moved into the right lane to turn. Though Dave did not see the collision, he felt a crash and saw Woody frantically jump out of the truck and move towards Sammy. Dave heard Woody ask, “ ‘Why did he jump out in front of me[?]’ ” Woody then told Dave to call 911. Dave testified that Woody began to administer CPR to Sammy at that point. Woody proceeded to pace by and sit on the curb. He was frantic and stated that he didn’t mean to kill Sammy, that Sammy was his best friend, and that the collision was an accident.
A defense accident reconstruction expert testified that though he was unsure why Woody swerved to the left, Woody was driving at 30 miles per hour before the swerve and the impact. Woody would not have been able to see Sammy until Woody was 64 feet away from Sammy. Given these figures, Woody would have only had 1.5 seconds to react. Though the expert testified that 95 percent of the population can perceive and react without thinking to unexpected danger in 1.5 seconds, he stated that Woody would have had time to perceive danger and react to it, but would have had no time to think. The expert also testified that he used an Acura (rather than a Dodge pick-up truck) and a female pedestrian who was significantly smaller than the victim to reconstruct the scene of the crime.
B. Procedural history
An information alleged one count of murder in violation of Penal Code section 187, subdivision (a). The case proceeded to a jury trial. The jury found Woody guilty of one count of murder in the second degree. On May 13, 2008, the trial court sentenced Woody to 15 years to life in prison. Woody filed a timely notice of appeal on May 13, 2008.
CONTENTIONS
Woody contends that the prosecutor’s comment violated his constitutional right against self-incrimination under Griffin, supra, 380 U.S. 609, and his right to due process under the Fourteenth Amendment. Specifically, Woody argues that because the sole issue for the jury to decide was whether he possessed the intent to kill, the prosecutor’s comment that only Woody knew what was his true intent served as a comment regarding a central issue in the defense case, and therefore constituted reversible error. In response, the People contend that no Griffin error occurred as the comment was isolated or, alternatively, that even if the prosecutor’s comment was improper it was not prejudicial.
DISCUSSION
During her closing argument, defense counsel attempted to establish reasonable doubt that Woody intended to kill Sammy by arguing that because no one took Woody’s threats seriously, Woody could not have intended to carry them out. The prosecutor responded during her rebuttal closing argument by stating, “[o]nly Woody Hume knows whether he is serious or not. It’s the only person who knows whether he means those threats. We’ll never be able to jump in[to] his body and get in[to] his mind frame.” The defense objected and the court implicitly overruled the objection by stating, “[o]kay, so noted. [¶] Go ahead, Ms. Dodd.”
The judge instructed the jury using CALJIC No. 2.60, which states: “A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.”
A. The prosecutor’s comment did not constitute Griffin error because it served as a remark on the state of the evidence, rather than an implication that the jury should infer guilt from the defendant’s silence.
The Fifth Amendment to the United States Constitution provides, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself.” Article I, section 15 of the California Constitution contains an identical provision. In Griffin, the Supreme Court held that a prosecutor may not comment, either directly or indirectly, on a criminal defendant’s choice not to testify. Nonetheless, while it is not permissible for a prosecutor to comment on a defendant’s silence in such a way that it implies that the defendant’s guilt can be presumed from his lack of testimony, “[i]t is well[-]established... that the rule prohibiting comment on defendant’s silence does not extend to comments on the state of the evidence....” (People v. Medina (1995) 11 Cal.4th 694, 755 (Medina).) In reviewing whether a prosecutor’s comment constitutes Griffin error, appellate courts are called to determine “whether there is a reasonable likelihood that the jurors misconstrued or misapplied the words in question.” (People v. Roybal (1998) 19 Cal.4th 481, 514.)
A prosecutor’s comment on a defendant’s exercise of his right not to testify is permissible so long as it represents a comment on the state of the evidence and does not imply that the jury should infer guilt from the defendant’s silence. In People v. Mitcham (1992) 1 Cal.4th 1027, 1049-1050 (Mitcham), during closing argument, the prosecutor discussed whether the defendant had intended to kill the victim. The prosecutor remarked, “ ‘Do you think [the evidence] demonstrates an intent to kill plus an overt act toward its completion? I think the evidence shows it does. She didn’t die, obviously. That’s not the killer's fault. The killer probably thought that she was dead. We’ll never know what [the defendant] thought.’ ” The court considered this a comment on the state of the evidence, and found that no Griffin error had occurred. Similarly, in Medina, supra, 11 Cal.4th at page 755, the court found that the prosecutor’s comments that “ ‘[n]obody on the defense side–excuse me, the defense attorney did not explain this evidence and how it pointed to some other rational conclusion...’ ” and “ ‘[w]here was [defense counsel’s] rational explanation?’ ” (id. at pp. 755-756) did not constitute Griffin error as the comments, “viewed in context, can only be seen as... fair comment[s] on the state of the evidence.” (Id. at p. 756; accord People v. Bradford (1997) 15 Cal.4th 1229, 1339 [holding that the prosecutor’s remark that the defendant was “ ‘certainly... free to call his own witness to testify to those facts,’ ” among other comments, was not Griffin error because the comment did not “allude to the lack of refutation... by the sole remaining witness, defendant, but rather to the lack of evidence” (Bradford, at p. 1340)].)” Thus, a prosecutor may make a reference to a defendant’s silence at trial if, in doing so, the prosecutor is merely commenting on the evidence presented.
In the instant case, the prosecutor commented on Woody’s threats to kill Sammy by stating, “[o]nly Woody Hume knows whether he is serious or not. It’s the only person who knows whether he means those threats. We’ll never be able to jump in[to] his body and get in[to] his mind frame.” This comment is virtually indistinguishable from the comment made by the prosecutor in Mitcham (“ ‘[w]e’ll never know what [the defendant] thought’ ” (italics omitted)), which was held to be a comment on the state of the evidence and therefore permissible under Griffin. (Mitcham, supra, 1 Cal.4th at p. 1050.) Likewise, the prosecutor’s comment is analogous to the comments in Medina, where the California Supreme Court found no Griffin error even though the prosecutor referred to the defendant’s silence in his observation that the defense never introduced evidence to disprove the prosecution’s theory. (Medina, supra, 11 Cal.4th at pp. 755-756.) Thus, because the prosecutor’s comment was only a reference to the state of the evidence, there was no reasonable likelihood that the jury misconstrued the prosecutor’s words. We therefore find no evidence of Griffin error in this case.
B. Even assuming arguendo that the prosecutor’s comment did constitute Griffin error, it was harmless error as it represented a single isolated reference to the defendant’s failure to testify, and there were ample other sources of evidence the defendant introduced to contradict testimony regarding his intent.
While Griffin held that direct or indirect references to a defendant’s choice not to testify by the prosecutor may violate a defendant’s Fifth Amendment rights, such references are not per se reversible error. Rather, “indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.” (People v. Hovey (1988) 44 Cal.3d 543, 572 (Hovey).) In reviewing the Griffin error, we ask whether, absent the prosecutor’s comment on the defendant’s right not to testify, it is clear beyond a reasonable doubt that the jury would have found the defendant guilty. (People v. Hardy (1992) 2 Cal.4th 86, 154 [applying the standard articulated in Chapman v. California (1967) 386 U.S. 18, 25-26 (Chapman)].)
Accordingly, while the court in Hovey found that the prosecutor’s comment that “ ‘[the defendant] never told you anything different,’ ” constituted Griffin error, it was not prejudicial as it was only a passing reference to the defendant’s choice not to testify. (Hovey, supra, 44 Cal.3d at p. 572.) Similarly, in Vargas, the court held that the prosecutor’s comment that “ ‘[t]here is no denial at all that they were there’ ” was “ ‘brief and mild,’ ” and therefore did not rise to the level of reversible Griffin error. (People v. Vargas (1973) 9 Cal.3d 470, 479 (Vargas).) Conversely, in Chapman, the court found reversible error existed as the prosecutor and the trial court itself both repeatedly mentioned the fact that the defendant did not testify. (Chapman, supra, 386 U.S. at pp. 25-26.) Consequently, a brief and passing reference to a defendant’s choice not to testify is held to be harmless error.
Here, the prosecutor made a single comment that, “[o]nly Woody Hume knows whether he is serious or not. It’s the only person who knows whether he means those threats. We’ll never be able to jump in[to] his body and get in[to] his mind frame.” Further, the comment was made in response to the defense’s contention during closing argument that Woody did not mean any of the threats that he had made. This solitary reference is certainly a far cry from the kind of “machine-gun repetition of a denial of constitutional rights, designed and calculated to make [the defendant’s] version of the evidence worthless,” that was found to be reversible error in Chapman. (Chapman, supra, 386 U.S. at pp. 25-26.)
Moreover, the California Supreme Court has noted that in determining whether Griffin error is prejudicial, “ ‘we must focus upon the extent to which the comment itself might have increased the jury’s inclination to treat the defendant’s silence as an indication of his guilt.’ ” (Vargas, supra, 9 Cal.3d at p. 478, italics omitted.) Accordingly, a prosecutor’s comment will be found harmless so long as the prosecutor has introduced enough evidence that a reasonable jury would have likely found the defendant guilty regardless of the comment.
In the case at hand, the prosecutor’s comment cannot be seen to have “increased the jury’s inclination to treat the defendant’s silence as an indication of his guilt.” (Vargas, supra, 9 Cal.3d at p. 478, italics omitted.) The court instructed the jury with CALJIC No. 2.60, which stated that “[a] defendant in a criminal trial has a constitutional right not... to testify. You must not draw any inference from the fact that [a] defendant [does] not testify. [¶] Further, you must neither discuss this matter, nor permit it to enter into your deliberations in any way.” Jurors are presumed to both understand and follow the court’s instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.) Thus, the trial court’s instructions conceivably negated any inference of guilt the jury may have been inclined to draw from the prosecutor’s remark on the defendant’s silence.
In addition, the prosecution introduced substantial compelling evidence at trial. On the basis of this evidence alone, a reasonable jury could have convicted the defendant, regardless of the prosecutor’s comment concerning the defendant’s choice not to testify. The prosecutor called three witnesses who all testified that Woody had threatened Sammy’s life prior to June 29, 2007. The prosecutor further introduced the testimony of the police officer who reported to Sammy’s house when Sammy found that Woody had smashed in the back window of Sammy’s car. Additionally, the prosecutor called as a witness an expert in traffic reconstruction, who testified that there was no evidence of braking or skid marks from Woody’s truck before it hit Sammy. Finally, the prosecutor presented the testimony of a neutral and impartial eyewitness, who testified that she did not see Woody’s truck brake when he hit Sammy. On the basis of this evidence, a reasonable jury could certainly have concluded that Woody intentionally hit Sammy with his truck and that Woody was guilty of murder in the second degree. Thus, the prosecutor’s comment––even if we were to find it improper––did not constitute prejudicial Griffin error.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.