Harkness v. State

820 P.2d 759, 107 Nev. 800, 1991 Nev. LEXIS 168

• Court: Nevada Supreme Court
• Decided: November 5, 1991
• Docket: 21252
• Status: Published

Opinions

OPINION

Per Curiam:

Appellant Glen Theodore Harkness, Jr., was charged with murder in the shooting death of his father. At trial, it was adduced that appellant had been drinking and that he shot his father following an argument during which his father apparently indicated appellant could no longer live in his parents’ home. After reporting the shooting to a neighbor, appellant drove off in his father’s pickup truck and was apprehended by the police about an hour later. Various inculpatory statements made by appellant to the police were admitted at trial, including a tape recorded statement made after appellant had been “Mirandized.” Also introduced were inconsistent explanations of the shooting that appellant had given to his mother at various times. Appellant did not testify at trial.

On rebuttal during closing argument, the prosecutor made the following remarks which are the subject of this appeal:

If we have to speculate and guess about what really happened in this case, whose fault is it if we don’t know the facts in this case?

These remarks were not objected to by defense counsel.¹ Later, the prosecutor stated:

Again, we know so little about the case really in terms of what the defendant told us, which naturally raises the logical question, what is he hiding?

Defense counsel objected and moved for a mistrial. The prosecutor explained that he was referring to the inconsistent explanations of the shooting that had been admitted as evidence. The district judge denied the motion for a mistrial.

The jury found appellant guilty of first degree murder with use of a deadly weapon. The district judge sentenced appellant to two consecutive life terms with the possibility of parole. This appeal followed.

Appellant contends that the prosecutor’s comments, quoted above, are blatant references to appellant’s failure to testify in violation of his fifth amendment rights. He contends that, even if the prosecutor merely intended to comment on the evidence, the prosecutor’s statements nevertheless brought attention to the fact that appellant did not testify. Appellant further contends that the error was prejudicial because, although he admitted responsibility for his father’s death, it was a close case as to whether the crime was first degree murder, second degree murder, or voluntary manslaughter. We agree that the comments were both improper and prejudicial, and therefore reverse and remand for a new trial.

The United States Constitution states that a defendant shall not “be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V; see also Nev. Const. Art. 1, sec. 8. A direct reference to a defendant’s decision not to testify is always a violation of the fifth amendment. See Griffin v. California, 380 U.S. 609 (1965); Barron v. State, 105 Nev. 767, 783 P.2d 444 (1989). When a reference is indirect, the test for determining whether prosecutorial comment constitutes a constitutionally impermissible reference to a defendant’s failure to testify is whether “the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant’s failure to testify.” United States v. Lyon, 397 F.2d 505, 509 (7th Cir.), cert, denied sub nom., Lysczyk v. United States, 393 U.S. 846 (1968). See also Barron, 105 Nev. at 779, 783 P.2d at 451-52. The standard for determining whether such remarks are prejudicial is whether the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 21-24 (1967).

We hold that the prosecutor’s comments constituted improper reference to appellant’s failure to testify. Although the state contends that the prosecutor merely intended to comment on the evidence, the test is whether the prosecutor “manifestly intended” it or whether “the jury would naturally and necessarily” take it to be a comment on the accused’s failure to testify. Lyon, 397 F.2d at 509; see also Barron, 105 Nev. at 779, 783 P.2d at 452. Taken in context, we believe the jury would have taken the prosecutor’s comments to be references to appellant’s silence. Pointing out discrepancies or gaps in the evidence and suggesting that appellant is responsible for them is something the jury would “naturally and necessarily” take to be a comment on the accused’s failure to testify. With regard to the second comment, the prosecutor had finished talking about second degree murder and had just changed the topic to first degree murder. He said he wanted to discuss some “rather curious factors.” The jury would “naturally and necessarily” understand the second comment to mean that a “curious factor” which caused the jury to “know so little about the case” was appellant’s “hiding” of the truth by exercising his right to remain silent. We therefore conclude that the comments were constitutionally impermissible.

Moreover, the question “whose fault is it if we don’t know the facts in this case?” suggests that the accused, rather than the state, has the burden of proving or disproving the crime. Such a suggestion is clearly impermissible:

It is a fundamental principle of criminal law that the State has the burden of proving the defendant guilty beyond a reasonable doubt.... The tactic of stating that the defendant can produce certain evidence or testify on his or her own behalf is an attempt to shift the burden of proof and is improper.

Barron, 105 Nev. at 778, 783 P.2d at 451. The first comment was therefore unconstitutional for this reason as well.

When judged by the applicable standard, the error cannot be deemed harmless beyond a reasonable doubt. This appears to have been a close case, not with regard to culpability, but with regard to the degree of culpability to attach to the crime. Although the trial transcript is not that long, the jury spent three hours in deliberation before rendering a verdict. It is quite probable that the jury took into account in its deliberating process the prosecutor’s suggestions that appellant was responsible for gaps in the evidence, had the burden of proving or disproving the crime, and was hiding the truth. Although the jury was instructed to draw no inferences from appellant’s silence, this instruction was not a sufficient cure for the prosecutor’s unconstitutional remarks. We conclude that the errors were prejudicial. Accordingly, we reverse appellant’s judgment of conviction, and we remand this matter for a new trial.

1 As a general rule, failure to object at trial precludes appellate consideration. See Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986). In this case, although counsel failed to object to the first comment contemporaneously, counsel not only immediately objected to the second comment but also moved for a mistrial. Cf. Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973). We conclude that counsel’s conduct in objecting generally to the prosecutor’s improper line of argument was adequate to preserve the issue for appellate review of both comments. Moreover, we have the power to address plain error or issues of constitutional dimension sua sponte. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991). Where, as here, appellant presents an adequate record for reviewing serious constitutional issues, we elect to address such claims on their merits. Cf. Edwards v. State, 107 Nev. 150, 153 n.4, 808 P.2d 528, 530 (1991).