Opinion
As Modified on Denial of Rehearing May 21, 1964.
Gregory S. Stout, San Francisco, for appellant.
Stanley Mosk, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Edsel Haws, Deputy Atty. Gen., Sacramento, for respondent.
PIERCE, Presiding Justice.
Defendant, charged in an indictment with assault with intent to commit murder, was convicted of the lesser offense, assault by means of force likely to produce great bodily harm. The appeal is from the 'judgment of conviction' and from the order denying his motion for new trial. Judgment and sentence, however, had been suspended (defendant having been granted probation on condition, inter alia, that he pay a fine and serve a 90-day jail term). The order denying motion for a new trial is not appealable. We treat the appeal as one from an order granting probation. (Penal Code, sec. 1237; People v. Reed, 128 Cal.App.2d 499, 275 P.2d 633.)
We find well grounded, and requiring reversal, defendant's sole contention that the trial court prejudicially erred in admitting (over objection) evidence of defendant's invocation when questioned by the grand jury of the privilege against self-incrimination. This evidence was admitted in cross-examination of defendant during the trial purportedly for purposes of impeachment. Actually, it could only have been received, under the circumstances extant, as implying defendant's guilt.
The alleged victim of the assault, Cornie Grootveld, testified that defendant and one Concannon riding in a pickup truck overtook an automobile driven by Grootveld and called for him to stop. He did so; whereupon, according to Grootveld, defendant leaped out of his vehicle, grabbed Grootveld and committed an unprovoked assault, continuing for 10 to 15 minutes.
Contradicting this, defendant's testimony was that as he and Concannon passed Grootveld, the latter had called to them to stop. He got out to find out what was wanted and Grootveld hit him, causing him to lose his balance, fall against the pickup and injure his elbow. By the time he got up, Concannon suggested they leave. When another car drove up, Grootveld drove off.
Each party to the affray had witnesses to support his contentions. Testimony of an apparently impartial witness strongly suggests exaggeration, and possibly even perjury, on both sides. The evidence showed bad blood between the two, stemming from the operations of an irrigation district of which Grootveld was a director and at one time president. Defendant was a landowner within the district.
This very condensed treatment of the facts is sufficient for the purposes of this opinion. To characterize our appraisal of the conflicting evidence: there existed substantial evidence which, but for the overbalancing effect of erroneously-received evidence (hereinafter to be discussed), could well have convinced the jury that defendant's guilt had not been established. (Calif.Const. Art. VI, sec. 4 1/2.)
Defendant had been subpoenaed to appear before the grand jury, which later returned his indictment. At these proceedings he was called as a witness and the district attorney, fixing time, date and place, specifically asked whether he 'did not assault one Cornie Grootveld.' To this defendant answered, 'I respectfully decline to answer the question upon the grounds it is the opinion of my attorney and myself the answer might tend to incriminate and degrade me.' The same answer was given to the questions: 'Did you not, at that time and place * * * grab Mr. Grootveld by the wrist and also strike him in the ear?' and 'Did you also at the same time and place threaten Mr. Grootveld's life, threaten to choke him?'
At the trial defendant, as indicated above, took the stand and testified in his own behalf. Preceding its admission, the court admonished the jury at length.
In the course of a longer dissertation to the jury, the judge stated:
The California Constitution (Art. I, sec. 13) provides: 'No person shall be * * * compelled, in any criminal case, to be a witness against himself.' The Fifth Amendment of the United States Constitution contains identical language. This prohibition is repeated in Penal Code, section 1323.
Under these provisions, no implication of guilt can be drawn from the defendant's reliance on this guarantee. (People v. Calhoun, 50 Cal.2d 137, 147, 323 P.2d 427; People v. Snyder, 50 Cal.2d 190, 197, 324 P.2d 1.) If the defendant's reliance upon the privilege against self-incrimination on some earlier occasion could be admitted at his later trial as evidence establishing his guilt, then the guarantee would indeed be illusory. (See 11 Stanford Law Rev. p. 559, note 3.) In People v. Kynette, 15 Cal.2d 731, 104 P.2d 794, however, a distinction is made between admissibility of the prior invocation of the privilege as evidence establishing guilt and its use for purposes of impeachment. Use for the latter purpose was held to be proper. There, as here, defendant's assertion of the privilege had occurred when he had been called to testify before the grand jury. The court says (15 Cal.2d on page 750, 104 P.2d on page 804):
'* * * [T]he use solely for impeachment purposes of a defendant's prior refusal to testify before a grand jury because of fear of self-incrimination, no more destroys that constitutional privilege than does the right to comment upon and consider a defendant's failure to explain evidence against him tend to destroy his equally valuable constitutional right to refuse to be a witness against himself. In this latter connection, see People v. Byers, 5 Cal.2d 676, 685, 55 P.2d 1177. * * *'
The case cited, People v. Byers, 5 Cal.2d 676, 55 P.2d 1177, had followed the 1934 amendment to section 13 of Article I of the Constitution permitting the court and counsel to comment upon, and the jury to consider a defendant's 'failure to explain or to deny by his testimony any evidence or facts in the case against him' whether defendant had testified in the case or not. In Byers this had been interpreted to allow comment on the defendant's assertion of the privilege in a prior proceeding.
In 71 Harvard Law Review 109, 110 (commenting on Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, hereinafter to be discussed) it is said: 'The distinction between using such evidence [i. e., prior assertion of the Fifth Amendment] for impeachment purposes and using it in the determination of guilt is a difficult one to maintain * * *.'
It would seem that when the question propounded to the witness does not relate directly to the issue of guilt it is not completely illogical to suggest that a jury, properly instructed, may reasonably be expected to weigh the import of such refusal for impeachment purposes, i. e., to determine the veracity of the defendant, without accepting it to imply his guilt. (But Grunewald v. United States,
The court in People v. Kynette, supra, seems not to have considered this syllogistic cul de sac. There, as here, the questions asked (or some of them) called for answers admitting or denying guilt. There, as here, use for impeachment of the defendant's exercise of the privilege necessarily carried with it a request that the jury imply guilt. Nevertheless, if the rule of Kynette and a subsequent case following it (People v. Wayne, 41 Cal.2d 814, 829-830, 264 P.2d 547) is still the law as applied to this case we are bound thereby. We have reached the conclusion, however, that subsequent authority, the United States Supreme Court in Grunewald v. United States, supra, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, and the California Supreme Court in two cases, People v. Calhoun, supra, 50 Cal.2d 137, 323 P.2d 427, and People v. Snyder, supra, 50 Cal.2d 190, 324 P.2d 1, releases us from obligation to accept the rule in Kynette as applicable here.
In Grunewald v. United States, supra, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, involving a conspiracy to defraud the United States, Halperin, one of the defendants, had been supoenaed to appear before the grand jury. He answered certain questions affirming his innocence but asserted his Fifth Amendment privilege when asked if he knew Grunewald and another of the alleged coconspirators, also when asked if he had held or delivered certain escrowed money involved in witness tampering. At the trial he gave answers to these questions consistent with his innocence and the trial court permitted the prosecution to show the questions and answers before the grand jury, the evidence being received assertedly solely for impeachment purposes. The United States Supreme Court unanimously reversed the conviction. Two opinions were written. Justice Harlan's majority opinion quoting (on page 418 of 353 U.S., on page 981 of 77 S.Ct., on page 951 of 1 L.Ed.2d) appellant's contention that "an innocent man may honestly claim that his answers may tend to incriminate him" stated (on page 421 of 353 U.S., on page 982 of 77 S.Ct., on page 953 of 1 L.Ed.2d), '[w]hen we pass to the issue of credibility, we deem it evident that Halperin's claim of the Fifth Amendment privilege before the Brooklyn grand jury in response to questions which he answered at the trial was wholly consistent with innocence.' But, the opinion pointed out (on page 422 of 353 U.S., on page 983 of 77 S.Ct., on page 953 of 1 L.Ed.2d), had the answers later given at the trial been given before the grand jury that body 'would have provided the Government with incriminating evidence from his own mouth.' It was also noted that Halperin when asked to give evidence was already a potential defendant faced with the possibility of an early indictment and it was quite natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself. The opinion states (on page 423 of 353 U.S., on page 983 of 77 S.Ct., on page 954 of 1 L.Ed.2d):
'* * * For many innocent men who know that they are about to be indicted A separate opinion by Justice Black (with whom the Chief Justice and Justices Douglas and Brennan joined) states (on page 425 of 353 U.S., on page 984 of 77 S.Ct., on page 955 of 1 L.Ed.2d):
'* * * 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.'
As in Grunewald, the act of defendant here in invoking the constitutional guarantee against self-incrimination was not inconsistent with innocence. Sharer, like Halperin, was a putative defendant. The grand jury hearing involved no general investigation; it involved a single alleged assault charged against defendant alone. Again, as in Grunewald, defendant was called to testify before a tribunal where he had no right to be aided by counsel; he could not call witnesses; he had no right of cross-examination. He had been subpoenaed and was required to appear. (In re Lemon, 15 Cal.App.2d 82, 59 P.2d 213.) The nature of the charge here was peculiarly one concerning which an innocent accused, appearing unrepresented before a grand jury might well regard full exposition with clarity very difficult. The charge was assault. The vital question was was whether he or the alleged victim had been the aggressor. This, to paraphrase the opinion in Grunewald, was a situation in which an innocent man might wisely believe he would be gravely disadvantaged in 'bringing out the exculpatory circumstances in the context of which superficially incriminating acts occurred.' So believing, he could reasonably conclude he should exercise his right to stand mute. In doing so his act was not inconsistent with his later denial of guilt, and use for impeachment purposes was therefore unjustified.
The facts just related seem to us to illustrate with emphasis the very type of situation which the privilege against incrimination was designed to serve. They also point up in italics the dilemma confronting the innocent accused before the grand jury. If he waives his right he suffers the consequences of unguided and possible inarticulate expression. On the other hand if he asserts it he does so with knowledge that a subsequent trial jury will be asked to regard his explanation as perjurious.
In this case we experience grave doubt that impeachment was in fact the prosecutor's sole purpose. The record shows that after defendant had been subpoenaed his attorney had advised the district attorney that defendant, if called before the grand jury, would invoke his privilege against self-incrimination. The district attorney nevertheless insisted upon asking questions regarding his guilt or innocence as to which the prosecutor had been forewarned would invoke the privilege. Since he did so, knowing in advance the fact-finding deliberations of the grand jury would not thereby be aided, an inference may plausibly be drawn that the questioning was contrived at the outset to utilize a rule (impeachment through inconsistent statements) designed for truth-ascertainment as a pretext for prejudicing the jury; in short, that the purpose was not impeachment but implantation of bias.
Defendant here urges that Grunewald v. United States, supra, is binding upon this court under the principle stated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. In Mapp, the Supreme Court held that the federal rule excluding evidence obtained by an unlawful search or seizure was binding upon the states. The majority Wolf v. Colorado,
Defendant's argument, therefore, that state courts are bound by Grunewald is ponderable. If so, then the assertion by the majority in Grunewald that any attempted use by the prosecution of a prior invocation by a defendant of the privilege against self-incrimination under circumstances consistent with a later denial of guilt both violates the Fifth Amendment and the due process guarantee of the Fourteenth. Furthermore, since the views in Grunewald of the then minority of Chief Justice Warren and Justices Black, Douglas and Brennan may very well NOW be those of a majority of the court, it may be forcibly contended that any use of the prior assertion of the privilege against self-incrimination under any circumstances will be held to violate due process in state court trials.
It is unnecessary that we decide these interesting speculative questions. As stated above, the language of our constitutional guarantee (Art. I, sec. 13), and of the Fifth Amendment is identical. Whether or not it is compulsory that we follow the rule of Grunewald, we adopt it because sound reason and very high authority induces it. Grunewald was cited with approval by our Supreme Court in People v. Calhoun, supra, 50 Cal.2d 137, at page 148, 323 P.2d 427. As shown above, People v. Kynette, supra, rested its rule on the 1934 amendment to Article, I, section 13, of the Constitution, permitting comment on a defendant's failure to explain or to deny adverse evidence and upon People v. Byers, supra, 5 Cal.2d 676, 55 P.2d 1177, which extended this constitutional permission to allow comment in a subsequent proceeding regarding a prior assertion of the privilege. In Calhoun it was held that the constitutional permit of comment did not apply to allow introduction in evidence of excerpts of a grand jury transcript in which the privilege was invoked and the court states (50 Cal.2d on page 148, 323 P.2d on page 434): '[a]ny inferences to the contrary in People v. Byers, 5 Cal.2d 676, 55 P.2d 1177, are overruled.'
In People v. Snyder, supra, 50 Cal.2d 190, 324 P.2d 1, the companion case of Calhoun, the Supreme Court held the trial court had prejudicially erred in admitting in evidence transcript excerpts of the Calhoun trial which contained Snyder's refusal to testify (when called as a prosecution witness) on grounds of self-incrimination. In the opinion in Snyder (50 Cal.2d on page 197, 324 P.2d 1) 'statements to the contrary' in People v. Kynette, supra, and People v. Wayne, supra, were overruled.
The Attorney General argues that both Calhoun and Snyder are distinguishable, since in both cases the fact of the exercise of the privilege had not been used to impeach but as an implication of guilt. But as we have pointed out earlier in this opinion, the effect of the admission of the evidence under the circumstances here, whether couched in the form of impeachment or frankly intended to create an implication of guilt, is to do the latter. Therefore, we accept Grunewald, Calhoun and Snyder as precedent and consider Byers, Kynette and Wayne to be no longer controlling on the question here decided.
Although not directly in point, a recent decision by our Supreme Court, People v. Underwood, March 11, 1964, 61 A.C. 94, 101, 37 Cal.Rptr. 313, 389 P.2d 937, uses reasoning apposite here. The rule there stated is that coerced admissions of a defendant--always inadmissible as affirmative evidence--are also inadmissible when offered for impeachment purposes. The
'* * * The credibility of an accused who takes the stand may be of critical importance to the trier of fact in determining whether or not a defense has been established, and we should not permit an accused's credibility to be attacked by use of an involuntary statement which would be inadmissible as affirmative evidence * * *.' (Emphasis supplied.)
Appeal from the order denying the motion for a new trial, such order being nonappealable, is dismissed. The order granting probation and suspending imposition of sentence on terms and conditions is reversed. The case is remanded for a retrial.
SCHOTTKY and FRIEDMAN, JJ., concur.
'Query: Can that be shown to impeach or to detract from the answers which Mr. Sharer gave on the stand here? I am frank to tell you if this were a matter of first impression that I would be inclined to say that couldn't be used; however, it seems reasonably clear under the rules of the courts heretofore laid down that it can be used for whatever it is worth and for you to consider without asking you to assess it one way or the other. If you are a little bit in wonderment what we are doing, we are talking about a point of law, administration of the law, which may or may not be changed if this case goes to a higher court and consequently I want to give you that explanation of it. * * *'