Mathis v. State

469 S.W.2d 796

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 1970
• Docket: 42990
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is robbery by firearms; the punishment, 60 years.

In view of our disposition of appellant’s grounds of error eight (8) and nine (9), we pretermit discussion of the other alleged errors.

In the presence of the jury, the state called as their witness appellant’s co-indictee, Jackie Green, and the following order of sequence occurred:

“Q. (By the prosecutor, Mr. Glover) State your name to the jury.

“A. Jackie Eugene Green.

“Q. Green, directing your attention back to March the 3rd, 1968 (the day of the robbery), around 5:30 a. m. on that morning, I will ask you: Were you at your stepsister’s house on Fourth Avenue?¹

MR. MALONEY: (Court appointed counsel for the witness) Object, your Honor, at this time as Court-appointed counsel for Jackie Eugene Green. I will instruct the witness of his privilege against self incrimination guaranteed by the Constitution of the United States.

“Q. (By the prosecutor) Were you at your stepsister’s house on Fourth Avenue?

MR. MALONEY: Once again, Your Honor, I will instruct the witness not to answer that question on the basis that he is not required to incriminate himself on the ground of the Constitution of the United States.

MR. GLOVER: May we have the witness testify on this?

* * * * * *

“Q. (By the Court) Jackie Eugene Green, is it your desire to claim your constitutional rights of not to testify for fear of incriminating yourself if you testify ?

“A. Yes Sir.

MR. GLOVER: May I go on, Judge?

I am going to continue my examination of this witness, and he can invoke the Fifth Amendment from now until Doomsday, but I am going to continue with my examination of the witness.

THE COURT: All right.

MR. LANDAU (Attorney for the defendant) : Your Honor, I object to the continuous examination of this witness who has invoked the Fifth Amendment . of the United States Constitution, not to incriminate himself, and what the prosecutor is trying to do — he is trying to do indirectly what he couldn’t do directly. He is attempting to put to this witness questions which this witness refused to answer under the basis of the Fifth Amendment of the United States Constitution.

* * * * * *

MR. GLOVER: Your Honor, I have seen the Fifth Amendment invoked many times, and he can invoke it to each question that is asked.

* *. * * * *

MR. GLOVER: Judge, I have never talked with this witness. I don’t know what he wants to invoke the Fifth Amendment with regard to.”

Thereafter, in the absence of the jury, the prosecutor stated that the witness Green had given a confession to the police, that his purpose in examining the witness concerned the confession.² As an illustration of the prosecutor’s purpose, we quote from the record:

THE COURT: The point I am getting at is: Are you trying to get things before this Jury that you may not properly and legally do when he claims his Constitutional right not to testify?'

Now, you can answer that very simply.

MR. GLOVER: Judge, this is simply a matter of courtroom strategy. I have seen this done in a number of courtrooms.

Ultimately, the witness was excused without further questioning. Throughout the questioning and argument of counsel before the jury, appellant objected to the proceedings because of the prosecution’s attempt to do indirectly what was prohibited directly.

Complaint is made that the calling of Jackie Green amounted to prosecutorial misconduct and that the proceedings deprived appellant of his right to cross-examine Green. With such contention, we agree, as we did in Vargas v. State, Tex.Cr.App., 442 S.W.2d 686, where we quoted the following language from Washburn v. State, 164 Tex.Cr.A. 448, 299 S.W.2d 706:

“Unless the witness had agreed to turn state’s evidence, the prosecution ought not to place him on the stand; to do so and wring from him a refusal to testify, affording the jury an opportunity to consider the refusal as a circumstance of guilt, has been said to be ‘certainly prejudicial’.”

This is so because:

“When a witness claims his privilege, a natural, indeed an almost inevitable inference arises as to what would have been his answer if he had not refused.” ³

When the prosecutor has reason to believe or knows that a co-indictee will refuse to testify when called, that co-indictee may not be called and thereby compelled to or invited to refuse to testify. San Fratello v. United States, 340 F.2d 560, 565 (5th Cir., 1965) quotes from the Third Circuit as follows:

“In our view an interrogating official himself gravely abuses the privilege against self-incrimination when, believing a truthful answer will incriminate a witness, he nevertheless insists on asking the incriminating question with a view to eliciting a claim of privilege and thereby creating prejudice against the witness or some other party concerned.”

In Johnson v. State, 158 Tex.Cr.R. 6, 252 S.W.2d 462, which was almost an identical situation to the case at bar, we said, “This should not have been allowed and constitutes error, as it could be offered for no other purpose under the circumstances than to compel or invite the said Bell, who was then under indictment for the same offense, to refuse to testify in order to use this as an incriminating fact against the appellant.” Compare Wall v. State, Tex.Cr. App., 417 S.W.2d 59 (1967); 86 A.L.R.2d 1446n; Washburn v. State, supra; Rice v. State, 121 Tex.Cr.R. 68, 51 S.W.2d 364; Rice v. State, 123 Tex.Cr.R. 326, 59 S.W.2d 119; and McClure v. State, 95 Tex.Cr.R. 53, 251 S.W. 1099, where we said:

„ “Certainly, if no inference of guilt can be indulged against the man who declines to testify, none could be drawn as to the guilt of a co-defendant.”

No efforts were made by the state, prior to calling Green as a witness to determine if he would “turn state’s evidence.” The state is charged with notice that the co-indictee might refuse to testify. To believe that a co-indictee, when called as a witness for the state, would testify on behalf of the state and thereby incriminate himself tests the credulity of any man for it is certainly no more reasonable to assume that he will testify than it is to assume he will not. What we hold is that when the state seeks to use the testimony of a co-indictee, the prosecutor must, in advance of calling the co-indictee, determine that the co-indictee will testify on behalf of the state and will not rely upon his Fifth Amendment right. Any other holding would permit the state to indiscriminately call co-indictees and capriciously utilize their refusal to testify as a circumstance of guilt against the accused.

The burden imposed upon the state is not intolerable in view of the risk to the accused that he be convicted because of his co-indictee’s constitutionally secured silence. The discharge of the burden is complete when the prosecutor interviews the witness prior to trial, either out of the courtroom or in the courtroom and out of the jury’s presence, and determines that the witness will not exercise his Fifth Amendment right. The burden does not mean that if the co-indictee changes his mind after the interview, and upon taking the stand, exercises his right, error will result. What it means, quite simply, is that the state make a conscientious effort to avoid inferring the accused’s guilt in this manner.

Because of the error set forth above, the conviction is reversed and the cause is remanded.

1 . The relevancy of the question bears on the issue of alibi in that there was testimony of the accused being at Green’s stepsister’s house at the time of the com- - mission of the offense.

2 . If the prosecutor had been permitted to question the witness from his confession in the face of a refusal to answer, a reversal would be required, Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934.

3 . United States v. Maloney, 2 Cir., 262 F.2d 535.