State v. Hodges

671 P.2d 1051, 105 Idaho 588, 1983 Ida. LEXIS 513

• Court: Idaho Supreme Court
• Decided: October 19, 1983
• Docket: 14203
• Status: Published

Opinions

HUNTLEY, Justice.

Appellant was arrested and charged with possession of a controlled substance after police officers discovered a leather “kit” in his jacket pocket. The kit contained drug paraphernalia and a small bottle of white powder which later proved to be cocaine. Appellant’s jacket was searched as part of a general search of his motel room. A warrant for that search was issued on the strength of the following circumstances: (1) appellant had given six or eight pills which he referred to as “robin’s eggs” (street slang for a type of amphetamine) to an all-night convenience store clerk; (2) appellant told the clerk he had sixteen thousand more of the pills where those came from; (3) the store clerk notified the police, who ran a lab test on the pills which was “inconclusive”; (4) a field test was later run, yielding a “positive” result for the presence of amphetamine.

The magistrate judge determined there was probable cause and issued a search warrant. Police then searched appellant’s motel room and obtained a box full of pills similar to those given to the store clerk, and the kit referred to above. . Laboratory tests later indicated that the pills contained no amphetamine substance; however, the powder was cocaine.

Appellant contends that, given the failure of the first test to indicate the presence of amphetamine in the pills he gave the store clerk, there was not sufficient probable cause for a warrant to issue. Appellant’s motion to suppress the evidence obtained incident to the warrant was denied by the district court. The district court relied in part on State v. Oropeza, 97 Idaho 387, 545 P.2d 475 (1976), wherein this court stated that the “issuing magistrate’s determination ‘of probable cause should be paid great deference by reviewing courts ....’” Id. at 391, 545 P.2d at 479. The police officers’ affidavit in the present case contained sufficient information from which the magistrate could make a determination of probable cause. Certainly it was not necessary that the search warrant affidavit indicate conclusive test results as to the presence of a controlled substance before probable cause could exist. Although, as appellant contends, the results of the two tests run on the pills were contradictory, there were sufficient other factors present for the magistrate to determine that the individual described in the affidavit probably possessed a controlled substance in violation of the law. The pills given to the store clerk were described as amphetamines; they were taken from a plastic bag; appellant stated he had sixteen thousand more of them, which he had obtained from the airport. We find no error in the district court’s ruling that the “affidavit to support the search warrant provided sufficient facts to support a finding of probable cause that controlled substances would be within the motel room and the vehicle which the warrant authorized to be searched.”

Appellant also contends that the warrant was invalid as being based on erroneous information, or on willful misrepresentation of information. We find in the record absolutely no basis for the suggestion that the police officers deliberately misrepresented information in their affidavit. To the contrary, they included both tests in their oral affidavit, and indicated the first test did not test positive for amphetamine. Moreover, there was testimony at trial tending to prove that the pill contained a substance (ephedrine sulphate) which causes a reaction somewhat similar to amphetamine in the type of field test used by the officers, although generally requiring a longer reaction time. The most that could legitimately be claimed with regard to the field test in question is that the officer misinterpreted the results. In State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979), we held that “negligent or innocent misrepresentations, even if necessary to establish probable cause, will not invalidate a warrant.” Id. at 41, 592 P.2d at 856.

Finally, appellant alleges error in the trial court’s failure to grant a mistrial after the prosecution referred to appellant’s silence. Appellant points to two separate incidents of impermissible reference to his silence. The first occurred after the prosecution asked a witness whether the defendant had made any statements at the time of the search. The witness mentioned one statement, and the defense objected to its admission because it was not contained in discovery obtained from the state. The judge then retired the jury and the admissibility of the statement was discussed, with the prosecution making the following comment:

“Secondly, the statement that the officer presented to the jury, we are not introducing it for the purpose of in essence incriminating the defendant. Where I’m coming from on this particular line of questioning is basically to the effect that when he discovered this vial containing the white substance, and the kit, that the defendant observed him take that out and ... he stated nothing to him at that time. He didn’t deny he owned it. He did not deny that he was unaware [sic] of it ... if I had been allowed to go on further, we would have established that he remained silent after that point in time. And I think that’s relevant. I think it’s admissible. And that’s where we are going on this particular line of questioning.”

The defense then pointed out that the prosecution was attempting to make of the defendant’s silence a tacit admission of guilt. The court agreed and instructed the prosecution that such testimony would not be admissible.

After the jury returned and trial resumed, and during direct examination of another witness, the prosecution brought up the matter of silence:

“Q. During the course of this investigation at the motel room, did the defendant remain silent?

A. All except for one statement.

Q. Well, all right. That statement we can’t go into.

A. Okay.

Q. But other than that, did he remain silent?

A. Yes, he did.

MR. HICKS: Object, Your Honor, and move that that be stricken from the record.

THE COURT: Yes. Sustained. The jury will disregard that question and answer and strike it from your minds.”

The court recessed, and defense counsel moved for a mistrial. After consideration, the court denied the motion.

The second alleged reference to defendant’s silence occurred in the prosecution’s closing argument:

“I note in the defendant’s arguments that basically they are saying he’s not guilty because this wasn’t cocaine. Pam Server has been qualified in numerous court trials to testify. She’s a qualified expert. Ladies and gentlemen, it was cocaine, and you know it if you construe this evidence with any reasonableness at all. Even a higher standard, I mean, when you use the word ‘reasonable’ to a standard almost up to what we talked about, beyond all doubt, her testimony is uncontradicted.” (Emphasis added.)

Defense counsel objected, arguing that the prosecution’s remark was “a blatant reference to the fact that [the defendant] didn’t take the stand.” The court sustained the objection and when the jury was called back, instructed them to disregard the remark. The defense’s renewed motion for a mistrial was denied.

It is clearly erroneous for a prosecutor to introduce evidence of the defendant’s postarrest silence for the purpose of raising an inference of guilt.¹ State v. White, 97 Idaho 708, 551 P.2d 1344, cert. denied, 429 U.S. 842, 97 S.Ct. 118, 50 L.Ed.2d 111 (1976); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is likewise erroneous for a prosecutor to comment to the jury on the defendant’s failure to testify at trial. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

Turning first to the prosecutor’s remark that state witness Server’s testimony was “uncontradicted,” we hold that it does not constitute an impermissible reference to the defendant’s failure to testify. Rather it is a comment on the weight of the evidence produced: the state presented expert testimony by one who had chemically tested the substance found in defendant’s possession and determined it to be cocaine; the defense, on the other hand, presented no evidence — by means of expert testimony or otherwise — tending to contradict the state’s suggested conclusion that the substance was cocaine. There was no implication that defendant himself had some obligation to take the witness stand (and was admitting guilt by not doing so). As stated by the California Supreme Court,

“Griffin [supra] forbids either direct or indirect comment upon the failure of the defendant to take the witness stand. The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.” People v. Jackson, 28 Cal.3d 264, 168 Cal.Rptr. 603, 623, 618 P.2d 149, 169 (1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1750, 68 L.Ed.2d 232 (1981).

We turn now to the more difficult matter of the prosecutor’s reference to defendant’s silence at the time of his arrest. By his own admission the prosecutor was attempting to establish part of the state’s case (and the defendant’s guilt) by drawing inferences from the defendant’s silence.² The record shows that at the time referred to by the prosecutor the defendant had already been informed of his constitutional right to remain silent. The defendant’s decisión to exercise that right cannot later be made the basis for inferring any admission of guilt. State v. White, supra. However, prosecutorial reference to defendant’s silence does not constitute per se reversible error. Chapman v. California, supra. The court will look to see whether such error was “harmless.”

In State v. LePage, 102 Idaho 387, 630 P.2d 674, cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981), this court set out the test to be applied where inadmissible evidence was put before the jury. The error alleged is harmless if the appellate court is “convinced beyond a reasonable doubt that the same result would have been reached had the evidence been properly excluded.” Id. at 396, 630 P.2d at 383. See also, State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983) (admission of tainted evidence will be held to be harmless error where admissible evidence provides beyond a reasonable doubt “ ‘overwhelming and conclusive proof of a defendant’s guilt’ ”); State v. LaMere, 103 Idaho 839, 655 P.2d 46 (1982); State v. Garcia, 100 Idaho 108, 594 (1979); State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978).

In the present case, exclusion of the tainted evidence, that is, the reference to the defendant’s silence at the.time of the search, would still leave a substantial body of evidence establishing his illegal possession of a controlled substance. The prosecutor was attempting to show defendant’s acknowledgement of his possession of the kit when defendant said nothing after being “confronted” with the cocaine taken from his jacket pocket. His ownership of the jacket was not contested, nor did he deny knowledge of the presence of the “kit” in his pocket. Even if he had, his wallet and his identification were in the jacket pocket, a fact pointed out by the district court (which noted when it denied the motion for a mistrial that other evidence establishing guilt was “pretty overwhelming”). Moreover, the district court handled the matter of the evidence of defendant’s silence in such a way as to make consideration of that evidence by the jury very unlikely. Defense counsel was not required to state the basis for his objection in the presence of the jury, and all discussion of the silence issue was conducted out of the jury’s presence. The statement regarding the defendant’s silence was stricken from the record, and the jury instructed to disregard it. The court’s remarks were made so as not to draw additional attention to the inadmissible evidence, and no mention was made of it thereafter.

We accordingly conclude that, on the record before us, the evidence of defendant’s silence was harmless error, there being conclusive proof of the defendant’s guilt established through admissible evidence.³

The judgment of conviction and sentence are affirmed.

DONALDSON, C.J., and SHEPARD, J., concur. BAKES, J., concurs in the result.

1 . The rule would also apply to pre-arrest silence where there is “custodial interrogation,” Miranda v. Arizona, 384 U.S. 436, 467-468, 86 S.Ct. 1602, 1624-1625, 16 L.Ed.2d 694, or where, as here, the defendant was informed of his right to remain silent.

2 . We have in this case a rather serious breach of acceptable conduct on the part of the prosecutor. It is evident from counsel’s colloquy with the court that the prosecutor was instructed not to proceed with his line of questioning on the defendant’s failure to speak during the search of his motel room:

“MR. McLAUGHLIN: Well, before the jury comes back in, Your Honor, I was going to ask the witness whether or not there was any statements made by the defendant regarding the kit or whatever you want to call it, and essentially he would be testifying that, no, there were no such — nothing was stated to him by the defendant in that regard. Are you going to allow us to do that? I guess that’s my question.

THE COURT: Well, there isn’t any objection to that.

MR. McLAUGHLIN: All right.

MR. FRACHISEUR: Your Honor, the objection would be that they are trying to make silence an admission. I don’t think that’s proper. The defendant was obligated — has no obligation to say anything to the police at any time. That’s a violation of his Fifth Amendment rights to make silence an admission of guilt.

THE COURT: I think that’s correct. All right, then. I would'not permit that, Mr. McLaughlin.

MR. McLAUGHLIN: Very well, Your Hon- or.”

In spite of the court’s instruction, however, counsel for the prosecution proceeded to introduce that line of questioning with the state’s next witness (“During the course of this investigation at the motel room, did the defendant remain silent?”). Aside from the potential harm done by the reference to silence itself (“If a prosecutor is allowed to introduce evidence of silence, for ány purpose, then the right to remain silent guaranteed in Miranda v. Arizona ... becomes so diluted as to be rendered worthless ____” State v. White, supra, [97 Idaho] at 714-715, 551 P.2d at 1350-1351), the prosecutor did so with knowledge of the court’s ruling that such evidence would be inadmissible. That is troubling. We take note of a disciplinary rule from the Code of Professional Responsibility (1971) which may have application here:

“C. In appearing in his professional capacity before a tribunal, a lawyer shall not: 1. State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.” DR 7-106.

Subsection A of the same rule prohibits a lawyer from disregarding “a ruling of the tribunal made in the course of a proceeding.”

3 . It should be noted that the test for harmless error where there has been prosecutorial misconduct is the same as that enunciated in Le-Page, supra, for tainted evidence. State v. LaMere, supra. State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980). In Griffiths, decided before LePage, the court held that to constitute reversible error “the misconduct must be shown to have materially contributed to the verdict of the jury.” 101 Idaho at 167, 610 P.2d at 526. However, the “materially contributed” language was discredited in LePage. 102 Idaho at 396, 630 P.2d at 680.