Summary
In Keener, we held that the prosecution's statement on rebuttal that: "I raised some questions, challenged them to be answered.
Summary of this case from People v. MarinOpinion
No. 75-065
Decided August 26, 1976. Rehearing denied September 23, 1976. Certiorari granted January 24, 1977.
In trial for criminal nonsupport, trial court allowed defendant's testimony in previous civil contempt proceeding to be read into evidence. From subsequent conviction, defendant appealed.
Affirmed
1. CRIMINAL LAW — Self-Incrimination — Fifth Amendment — Witness Must Assert — Voluntary Testimony — Waives Privilege. If a witness desires the protection of the Fifth Amendment, he must claim the privilege or he will not be considered to have been "compelled" to testify within the meaning of that Amendment; thus, defendant in criminal nonsupport trial waived the privilege when, with assistance of counsel, he voluntarily took the witness stand in a previous civil contempt proceeding and did not invoke the privilege as to any question asked; accordingly, his recorded testimony from that proceeding was properly admitted at the later criminal trial.
Appeal from the District Court of Larimer County, Honorable Dale E. Shannon, Judge.
Stuart A. Van Meveran, District Attorney, Loren B. Schall, Assistant District Attorney, Francis H. Oldham, Deputy District Attorney, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Forrest W. Lewis, Deputy State Public Defender, for defendant-appellant.
Defendant Keener (the father) was found guilty by a jury of nonsupport, a class 5 felony, see § 14-6-101, C.R.S. 1973, and was sentenced to a maximum term of five years in the penitentiary. On appeal his principal contentions are that the admission in his criminal trial of testimony given by him in a prior divorce proceeding for contempt of court violated his Fifth Amendment privilege against self-incrimination, and that without this testimony the evidence was insufficient to support a conviction and his motion for judgment of acquittal should have been granted. We do not agree, and affirm the conviction.
The father was divorced from Patricia Ann Keener (the mother) in February of 1972. They have two children, born in 1960 and 1963, respectively. In the divorce decree, the father was ordered to pay $100 a month for the support of the children.
The criminal information in this case was filed December 27, 1973, charging nonsupport of the children by the father during the period January 4 through December 13, 1973. The mother had also instituted contempt of court proceedings in the divorce action for the father's nonpayment of child support and attorney fees. A hearing on that was held April 9, 1974, at which the father testified.
The following facts are undisputed. During the period covered by the criminal information, January 4 through December 13, 1973, the father paid a total of $50 in child support. The father paid only $350 in child support for the period March through December 1972, and nothing in 1974 to the date of the trial. The mother was employed and the children resided with her during the entire period.
At trial, the prosecution was allowed to endorse and call as a witness the court reporter at the prior civil contempt proceeding to testify from his stenographic notes what the father said at that time as to his 1973 earnings. Defense counsel objected to such testimony as a violation of the father's Fifth Amendment rights. The objection and his subsequent motion for mistrial on the same grounds were overruled.
After being identified as the one who took the testimony of the father on April 9, 1974, the court reporter read from his notes the following question and answer:
"What did your 1973 W-2 show for income and wages in 1973?"
$8900.00."
Defense counsel then had the reporter read into evidence the entire testimony of the father, except for deleting any reference to this having been in a contempt of court proceeding. This showed that the father had been called as his own witness by his retained counsel (not the appointed public defender who represented him in the criminal trial). On direct examination he stated that he was a construction worker and had worked intermittently for the same employer since January of 1973. His reason for not making the child support payments that he had not been able to because of his present wife's health problems, including major surgery and four hospitalizations, the support of his wife and himself, and the costs of taking bankruptcy. He admitted owing the money and promised to make every effort to get caught up. That he had earned $8900 in 1973 appeared in the cross-examination of the mother's attorney.
I.
The father contends that admitting his testimony given at the prior civil proceeding violated his Fifth Amendment privilege against self-incrimination. However, Garner v. U.S., 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370, and a number of other recent United States Supreme Court cases have delineated the boundaries of the Fifth Amendment privilege, and these cases indicate that the present testimony is not within the area protected thereby.
In Garner, the court held that defendant's income tax returns were properly admitted in a nontax criminal prosecution for conspiracy to violate federal gambling statute. On the tax returns, defendant had reported his occupation to be "professional gambler" and listed substantial income from "gambling" or "wagering," which information was material to rebut defendant's claim in the criminal proceedings that his relationships with other conspirators were innocent ones. In its Fifth Amendment analysis, the court considered the information revealed in the tax returns as if Garner had testified as a witness in a prior nonrelated proceeding. The basis for finding the material admissible was that since the defendant, as a matter of choice, had made the disclosures on his tax returns instead of then claiming his privilege against self-incrimination, the admission of the returns did not violate the defendant's Fifth Amendment privilege. The disclosures were not "compelled" by the government even though the defendant, if he had claimed the privilege on the returns, might have been prosecuted for wilful failure to make a return, or might have been summoned to produce records or testify at administrative proceedings.
[1] The court in Garner admitted that taxpayers are not "volunteers" when they file their tax returns, and that the government "compels the filing of a return much as it compels, for example, the appearance of a witness before a grand jury." It then stated:
"An individual under complusion to make disclosures as a witness who revealed information instead of claiming the privilege lost the benefit of the privilege . . . .
. . . .
"In the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not 'compelled' him to incriminate himself."
"'The Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment'. . . .
. . . .
"Unless the Government seeks testimony that will subject its maker to criminal liability, the constitutional right to remain silent absent immunity does not arise. An individual therefore properly may be compelled to give testimony, for example, in a noncriminal investigation of himself. . . . Unless a witness objects a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make a timely assertion of the privilege. If, instead, he discloses the information sought, any incriminations properly are viewed as not compelled."
The court in Garner limited Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, to situations involving custodial interrogations. See, to the same effect, Beckwith v. U.S., 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1; Walker v. People, 175 Colo. 173, 489 P.2d 584. Accordingly, Garner was held foreclosed from invoking the privilege when the information was later introduced as evidence against him in his criminal trial.
Of similar effect in Fifth Amendment analysis are Beckwith v. U.S., supra; U.S. v. Kahan, 415 U.S. 239, 94 S.Ct. 1179, 39 L.Ed.2d 297; and U.S. v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1.
In the instant case, the father waived the privilege when, with the assistance of retained counsel, he offered himself and voluntarily took the witness stand in the civil contempt proceedings without invoking the privilege as to any question asked, including the one about his 1973 earnings. Accordingly, he was not "compelled," see Garner, supra, to be a witness against himself, and his recorded testimony was properly admitted at the trial as an admission.
The testimony from the civil proceeding having been properly admitted, the evidence sustains the conviction, and the denial of the motion for judgment of acquittal was correct. See People v. Pearson, 190 Colo. 313, 546 P.2d 1259.
II.
The father contends also that the court committed reversible error in refusing to grant a mistrial after the prosecutor, during closing argument, commented on the father's failure to testify. He claims as error the statement in opening argument that "some of the questions should be answered for you in the argument of the defense," and the statement on rebuttal, "I raised some questions, challenged them to be answered. I don't think they were answered." As further error, he points to the remark at the conclusion of the argument:
"He made a conscious and intentional decision not to try and provide any support for these children. Because, if his decision had been anything else, there would have been something. It could have been shown to you or would have shown to you on his providing something for those children other than $50.00 out of a whole year period."
We agree with the trial court's conclusion that the remarks quoted above did not constitute comments on the failure of the father to testify. See People v. Todd, 189 Colo. 117, 538 P.2d 433; People v. Calise, 179 Colo. 162, 498 P.2d 1154. Further, there were no contemporaneous objections made at the time the remarks were made, and those remarks do not constitute plain error. See People v. Simbolo, 188 Colo. 49, 532 P.2d 962; People v. Becker, 188 Colo. 160, 531 P.2d 386. Also, defense counsel in his argument remarked that he had not come forth with evidence. Hence, there was no reversible error in the prosecutor's closing argument.
III.
The instructions as given, considered as a whole, correctly instructed the jury on the meaning of "willfully" and on the essential elements of the crime of nonsupport. See People v. Green, 178 Colo. 77, 495 P.2d 549; Tucker v. People, 136 Colo. 581, 319 P.2d 983. And, since physical incapacity was not at issue, and since that concept was covered in an instruction given, there was no error committed in refusing defendant's instruction thereon.
Judgment affirmed.
JUDGE COYTE concurs.
JUDGE KELLY dissents.