# People v. Hardy

> California Supreme Court · March 12, 1992 · 2 Cal. 4th 86

URL: https://www.frixlaw.com/law-library/cases/9794380

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD HARDY and MARK ANTHONY REILLY, Defendants and Appellants
- **Court:** California Supreme Court
- **Decided:** March 12, 1992
- **Citations:** 2 Cal. 4th 86; 10 Cal. Rptr. 2d 796; 92 Daily Journal DAR 3841; 825 P.2d 781; 92 Cal. Daily Op. Serv. 2166; 1992 Cal. LEXIS 974
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Lucas, Mosk, Kennard
- **Cited by:** 445 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9794380

## How later opinions describe it (automated extraction)

- finding “no reasonable probability ... [of] actual prejudice” where the trial court permitted a juror, during a view of a crime scene, to examine a door and to have it opened and closed

## Opinion text

MOSK, J.
I concur in the judgment. After review, I have found no error requiring reversal.
I write separately because I disagree with the majority’s analysis of the claim of error that defendants James Edward Hardy and Mark Anthony Reilly raise under Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ].
The Fifth Amendment to the United States Constitution grants every person a privilege against compelled self-incrimination. This right is applicable to the states through the due process clause of the Fourteenth Amendment. (Malloy v. Hogan (1964) 378 U.S. 1, 8 [ 12 L.Ed.2d 653, 659 , 84 S.Ct. 1489 ].) It operates, of course, when the government is the agent that seeks to compel. But it functions as well when others are in that position. Such others include, as relevant here, codefendants in a joint criminal trial. (E.g., Coleman v. United States (D.C. Cir. 1969) 420 F.2d 616 , 625 [ 137 App.D.C. 48 ]; United States v. Housing Foundation of America (3d Cir. 1949) 176 F.2d 665, 666 .) Compulsion directly violates the privilege.
In Griffin, the United States Supreme Court held that the self-incrimination privilege prohibits any comment on a defendant’s failure to testify at trial that invites or allows the jury to infer guilt therefrom, whether in the *217 form of an instruction by the court or a remark by the prosecution. (380 U.S. at pp. 611-615 [14 L.Ed.2d at pp. 108-110].) Comment of this sort indirectly violates the privilege. “It is a penalty imposed ... for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” (Id. at p. 614 [14 L.Ed.2d at pp. 109-110].)
After Griffin, the self-incrimination privilege’s prohibition against comment on a defendant’s silence has been held to reach beyond judge and prosecutor to codefendant. (E.g., People v. Jones (1970) 10 Cal.App.3d 237, 243-244 [ 88 Cal.Rptr. 871 ]; People v. Haldeen (1968) 267 Cal.App.2d 478, 481 [ 73 Cal.Rptr. 102 ]; U.S. v. Kane (5th Cir. 1989) 887 F.2d 568, 575 ; see generally 3 LaFave & Israel, Criminal Procedure (1991 pocket supp.) § 23.4, p. 21, fn. 28 [stating that “the Griffin principle also applies to one codefendant’s comment on the failure of the other to testify”]; but see U.S. v. Anderson (8th Cir. 1989) 879 F.2d 369 , 379, fn. 4 [declining to address the issue].)
The reason for the extension of Griffin is plain. “It is the fact of comment rather than the source of comment that effects denial of the right.” (People v. Haldeen, supra, 267 Cal.App.2d at p. 481 ; accord, U.S. v. Kane, supra, 887 F.2d at p. 575 .)
The extension of Griffin was anticipated by Judge John Minor Wisdom in his seminal opinion for the court in De Luna v. United States (5th Cir. 1962) 308 F.2d 140 . “If comment on an accused’s silence is improper forjudge and prosecutor, it is because of the effect on the jury, not just because the comment comes from representatives of the State. Indeed, the effect on the jury of comment by a co-defendant’s attorney might be more harmful than if it comes from judge or prosecutor. A judge, in keeping with his high degree of responsibility to conduct a fair trial, would be expected to give a balanced, moderate explanation of the inferences to be drawn from silence. Similarly, but to a lesser degree, a prosecutor would be expected to recognize his responsibility for fair comment. But much less restraint can be expected from an attorney to whom no little latitude is allowed when zeal, emotion, eloquence, and the advocate’s afflatus take hold of a jury argument.” (Id. at p. 152, fn. omitted.)
As Professors LaFave and Israel have noted, “Courts agree on the standard to be applied in determining whether a comment should be viewed as impermissibly referring to defendant’s silence—‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.’ ” (3 LaFave & Israel, Criminal Procedure (1991 pocket supp.) § 23.4, p. 21, fn. 28.)
*218 In his summation in the case at bar, Jack Stone, who was counsel for codefendant Cliff Morgan, assumed the role and interest of the prosecutor against Hardy and Reilly, and attempted to prove their guilt in order to prove his client’s innocence.
At one point, Stone remarked: “All those v/itnesses that got up there, Debbie, Calvin, Costello, they were accusers not only of Cliff but they accused Buck [Reilly], Mr. Lasting [who was Reilly’s counsel] got up, had a chance to cross-examine every one of them—.” The sentence was not completed because Lasting interposed an objection.
At another point, Stone said: “What is the defense of Mr. Morgan in this case? Sometime back in April when Cliff Morgan and Buck Reilly meet, there is a conversation at lunch. There is where it all starts. Buck told the police that during this conversation he made the statement, ‘You could knock off your wife for that amount of money.’ . . . During that lunchtime conversation, we weren’t there. There were only two people there. Cliff Morgan and Buck Reilly. Cliff Morgan got up on the witness stand and told you what his side of it was. We have to guess at what Mr. Reilly’s side of that conversation was other than the fact that we know that he initiated the thought of knocking off Nancy Morgan for the insurance money.” (Paragraphing omitted.)
At yet another point, Stone declared: “If you know a man has nothing to hide, he gets up on that witness stand and he tells you what’s in his mind. And that’s what Cliff did. He got up there, he let Mr. Jonas [who was the prosecutor] whack away at him for three days, the other two attorneys whacked away at him for three days, and then he bared bis soul in front of you, and that’s the soul of a man who’s been in jail for two years for a crime he did not commit; he has wasted away physically and mentally, and he is frustrated. But he can’t get the one person that’s accusing him to tell him what went on. That’s why Mr. Morgan looks the way he does.”
Hardy and Reilly now claim that by arguing as he did, Stone committed Griffin error.
As to the first comment, was Stone’s language “manifestly intended” to refer to Reilly’s failure to testify or would it have been “naturally and necessarily” taken to carry such a reference?
The answer is negative. That Reilly’s counsel “had a chance to cross-examine every one of’ his “accusers” does not bear on his silence in any significant way.
*219 As to the second comment, was Stone’s language “manifestly intended” to refer to Reilly’s failure to testify or would it have been “naturally and necessarily” taken to carry such a reference?
Here, the answer is affirmative. Recall Stone’s “prosecutorial” role and interest and the core of his remark: “During that lunchtime conversation, we weren’t there. There were only two people there. Cliff Morgan and Buck Reilly. Cliff Morgan got up on the witness stand and told you what his side of it was. We have to guess at what Mr. Reilly’s side of that conversation was other than the fact that we know that he initiated the thought of knocking off Nancy Morgan for the insurance money.” (Paragraphing omitted.)
The message that Stone sent and the jury received was: “We know what Morgan’s story is because he testified. His tale showed his innocence. By contrast, we don’t know what Reilly’s story is because he didn’t testify. We do know, however, that he conceived the insurance fraud scheme. His silence suggests his guilt.”
As to the third comment, was Stone’s language “manifestly intended” to refer to Reilly’s failure to testify or would it have been “naturally and necessarily” taken to carry such a reference?
Here too, the answer is affirmative. “If you know a man has nothing to hide,” remarked “prosecutor” Stone, “he gets up on that witness stand and he tells you what’s in his mind. And that’s what Cliff did. . . . But he can’t get the one person that’s accusing him”—namely, Reilly—“to tell him what went on.”
To be sure, in part the message sent and received was unobjectionable: “An innocent man testifies. That’s Morgan.” But in part, it was improper: “A guilty man refuses to testify. That’s Reilly.” In passing on Hardy and Reilly’s related motion for mistrial, the trial court stated that only the former sense was apparent. The words Stone used—even if considered apart from his “prosecutorial” role and interest—are to the contrary.
Thus, Griffin error was committed in this case: the second and third comments indirectly violated the self-incrimination privilege.
Griffin error, however, is not automatically reversible, but is subject to harmless-error analysis under the “beyond-a-reasonable-doubt” standard. (United States v. Hasting (1983) 461 U.S. 499, 507-509 [ 76 L.Ed.2d 96, 105-106 , 103 S.Ct. 1974 ] [dealing with comment by a prosecutor]; Chapman *220 v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ] [same].)
The question that must be asked is: Absent the error, “is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?” (United States v. Hasting, supra, 461 U.S. at p. 511 [ 76 L.Ed.2d at p. 107 ].)
The answer that must be given is: Yes. Whereas the evidence inculpating Hardy and Reilly was literally voluminous, that exculpating them was virtually nonexistent. Moreover, the improper comments were isolated and relatively brief. It was the evidence that determined the outcome. The remarks were of no marginal significance.
For their part, however, the majority conclude that Griffin error was not, in fact, committed. Their reasoning implicates the separate issues of error and prejudice and a conflation of the two.
To begin with, the majority seem to say, one codefendant must be given some (undefined) latitude to violate the self-incrimination privilege of another in order to exercise his own right under the Sixth Amendment to present a defense.
It is undisputed—and manifestly, indisputable—that notwithstanding the Sixth Amendment, one codefendant may not directly violate the self-incrimination privilege of another by applying compulsion. An accused suffers no undue restriction of his right to present a defense as a result. Like the prosecutor, he remains altogether free to attempt to prove his coparty’s guilt—only not by directly violating the latter’s privilege.
Similarly, notwithstanding the Sixth Amendment, one codefendant may not indirectly violate the self-incrimination privilege of another by commenting on his failure to testify. This proposition is hardly problematical. An accused must, of course, present his defense subject to a myriad of substantive and procedural rules, including local court policies and practices that rise barely, if at all, above the level of “housekeeping” arrangements. A fortiori, he must do so subject to his coparty’s self-incrimination privilege, which is of federal constitutional dimension. Again, an accused suffers no undue restriction of his right to present a defense as a result. Like the prosecutor, he remains altogether free to attempt to prove his coparty’s guilt—only not by indirectly violating the latter’s privilege.
In reasoning to the contrary, the majority rely on U.S. v. Castro (9th Cir. 1989) 887 F.2d 988 , U.S. v. Patterson (9th Cir. 1987) 819 F.2d 1495 , United *221 States v. Alpern (7th Cir. 1977) 564 F.2d 755 , and United States v. Shuford (4th Cir. 1971) 454 F.2d 772 . These cases—it is implied—establish the legitimacy of “balancing” one codefendant’s self-incrimination privilege against another’s Sixth Amendment right to present a defense by undertaking such an endeavor. Not so. None of the cited decisions even purports to address the question of “balancing.”
Next, the majority seem to say, a reviewing court must be given some (undefined) latitude in applying harmless-error analysis after one codefendant has violated the self-incrimination privilege of another in order to protect the former’s Sixth Amendment right to present a defense.
But by definition, harmless-error analysis considers whether the codefendant whose self-incrimination privilege was violated has suffered prejudice. Immaterial to the question is any benefit that the codefendant who violated the privilege may have derived therefrom.
Lastly, the majority seem to say, the distinct questions of error and prejudice must be intertwined. To this end, they rely on U.S. v. Mena (11th Cir. 1989) 863 F.2d 1522 . There, the court declined to apply the “manifestly intended/naturally and necessarily taken” standard on the ground that it “is derived from cases in which the allegedly improper comment was made by a prosecutor. Given the prosecutor’s institutional role, when the prosecutor merely ‘comments’ on the failure of an accused to testify, the reference is in all likelihood calculated to encourage the jury to equate silence with guilt; reasonable judicial economy thus permits a finding of reversible error. When the ‘comment’ comes from an actor (such as counsel for a codefendant) without an institutional interest in the defendant’s guilt, however, it would be inappropriate to find reversible error as a matter of course. Instead, the court should ask whether the comment actually or implicitly invited the jury to infer guilt from silence.” (Id. at p. 1534, citations omitted, italics in original.)
The issues of error and prejudice, however, are indeed separate and accordingly should not be conflated.
Further, when it is given meaningful scrutiny, Mena proves to be unpersuasive.
The Mena court does not adequately justify its conclusion that there should be a stricter standard for a prosecutor’s comment and a more tolerant standard for a codefendant’s. There is a tendency for a juror, as for anyone, to infer guilt from silence. Virtually any significant allusion to a defendant’s absence from the witness stand—no matter who the speaker—is enough to *222 suggest culpability. Indeed, in many joint trials, such as that below, counsel for one of the codefendants assumes an “institutional role and interest” similar to the prosecutor’s.
Also, even apart from its intertwining of error and prejudice, the Mena opinion is mischievous and indeed wrong. Contrary to its plain implication, Griffin error by a prosecutor is simply not presumptively reversible. (See United States v. Hasting, supra, 461 U.S. at pp. 507-512 [76 L.Ed.2d at pp. 105-108].)
Be that as it may, even if I were to follow the majority’s reasoning, I would nevertheless conclude that Griffin error was indeed committed in this case.
Was there an “actual” or “implicit” “invitation” to infer guilt from silence?
Clearly, there was an at least implicit invitation in the second comment. Recall again Stone’s “prosecutorial” role and interest and the core of his remark, quoted above. As noted, the message was: “We know what Morgan’s story is because he testified. His tale showed his innocence. By contrast, we don’t know what Reilly’s story is because he didn’t testify. We do know, however, that he conceived the insurance fraud scheme. His silence suggests his guilt.”
More clearly still, there was an at least implicit invitation in the third comment. “If you know a man has nothing to hide,” remarked “prosecutor” Stone, “he gets up on that witness stand and he tells you what’s in his mind. And that’s what Cliff did. . . . But he can’t get the one person that’s accusing him”—namely, Reilly—“to tell him what went on.” True, in part the message was unobjectionable: “An innocent man testifies. That’s Morgan.” But in part, it was improper: “A guilty man refuses to testify. That’s Reilly.”
In conclusion, having found no Griffin error—or any other—that requires reversal, I concur in the judgment. 1
In my concurring and dissenting opinion in People v. Morales (1989) 48 Cal.3d 527, 574 [ 257 Cal.Rptr. 64 , 770 P.2d 244 ], I set out my view that lying in wait as a theory of first degree murder (Pen. Code, § 189 and lying in wait as a special circumstance establishing eligibility for the penalty of death (id., § 190.2, subd. (a)(15)) each require waiting, watching, and actual physical concealment—I did so impliedly as to the theory and expressly as to the special circumstance. Put simply, concealment of purpose as distinguished from concealment *223 of the person is not enough. “I continue to adhere to that view as a matter of personal belief. I have not succeeded, however, in persuading my colleagues of the soundness of my position. After reflection, I have decided not to beat a rataplan.” (People v. Morales, supra, at p. 574, fn. 1 (conc. & dis. opn. of Mosk, J.).)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794380. Public record. Not legal advice.