# People v. Hardy

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

URL: https://www.frixlaw.com/law-library/cases/9794381

## 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 Kennard
- **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/9794381

## 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

KENNARD, J.
I concur in the judgment and in most of the majority’s reasoning. I dissent only from that part of the majority opinion holding that *223 trial counsel for codefendant Morgan made no improper reference to defendant Reilly’s decision not to testify at trial. (Maj. opn., ante, pp. 159-160.)
The prosecution used defendant Reilly’s out-of-court statements to make its case against codefendant Morgan. 1 Commenting on Reilly’s failure to take the witness stand, Morgan’s counsel argued to the jury: “If you know a man has nothing to hide, he gets up on that witness stand and he tells you what’s on his mind. . . . But [Morgan] can’t get the one person that’s accusing him to tell him what went on.” The majority concludes that this statement did not invite the jury to infer Reilly’s guilt from his silence at trial. I disagree.
I
A defendant in a criminal case cannot be compelled to testify. (U.S. Const., 5th and 14th Amends.; Cal. Const., art. I, § 15.) Thus, those who wish to rely on the presumption of innocence, which our system of justice affords to every person accused of a crime, can do so without having to take the witness stand.
To ensure that juries will not treat a defendant’s decision not to testify as an admission of guilt, thereby penalizing the defendant for exercising the constitutional right to remain silent, the United States Supreme Court in Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ] [hereafter Griffin] prohibited prosecutors and judges from adversely commenting on a defendant’s silence. Later cases, applying Griffin, have similarly prohibited comments by one codefendant’s counsel on another defendant’s failure to testify. (See, e.g., De Luna v. United States (5th Cir. 1962) 308 F.2d 140, 141 ; People v. Jones (1970) 10 Cal.App.3d 237, 243 [ 88 Cal.Rptr. 871 ]; People v. Haldeen (1968) 267 Cal.App.2d 478, 481 [ 73 Cal.Rptr. 102 ].) These cases, however, have not clearly established whether the limits on adverse comment imposed on defense attorneys are as great as those imposed on prosecutors and judges.
One recent federal case holds that when the reference to a defendant’s silence is made by a codefendant’s attorney, reversal is required only if the comment “actually” or “implicitly” invited the jury to infer the defendant’s *224 guilt from silence. (U.S. v. Mena (11th Cir. 1989) 863 F.2d 1522 , 1534 [hereafter Mena].) As the Mena court explained its view: “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.... 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, italics in original.)
Relying on this passage in Mena, supra, 863 F.2d 1522 , the majority concludes that counsel for a codefendant should be allowed greater latitude than a prosecutor or judge to comment on a defendant’s failure to testify. Justice Mosk disagrees with the majority, arguing that in evaluating such comments no distinction should be drawn between defense counsel on the one hand and prosecutors and judges on the other. I see no reason to resolve this dispute here; as I shall explain, the comment at issue was improper even under the more permissive standard established by the majority.
II
As I mentioned at the outset, the prosecution used defendant Reilly’s out-of-court statements to prove its case against codefendant Morgan. Against that background, Morgan’s counsel made the following comment regarding Reilly’s failure to testify at trial: “If you know a man has nothing to hide, he gets up on that witness stand and he tells you what’s on his mind .... But [Morgan] can’t get the one person that’s accusing him to tell him what went on.” The majority concludes this comment was not “Griffin error” because it did not “actually” or “implicitly” invite the jury to infer Reilly’s guilt from his silence. (Maj. opn., ante, p. 160.) I disagree.
In arguing to the jury that if defendant Reilly had “nothing to hide” he would have testified, Morgan’s counsel in effect told the jury that Reilly did have something to hide, thereby equating Reilly’s silence with guilt. Because counsel’s comment “implicitly’’ invited the jury to infer Reilly’s guilt from his failure to testify at trial, it was improper even under the less stringent standard articulated by the majority. 2
*225 Although the comment violated Reilly’s constitutional right against self-incrimination, reversal is not required. As the majority concludes, the evidence of Reilly’s guilt was overwhelming. (See maj. opn., ante, pp. 160-161.) In light of that evidence, counsel’s improper comment was harmless beyond a reasonable doubt. (Chapman v. California (1965) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].)
Appellants’ petitions for a rehearing were denied May 14, 1992, and the opinion was modified to read as printed above.
Morgan, the instigator of the plot to kill the two victims in this case (his wife and son) was tried together with defendants Reilly and Hardy during the guilt phase. He is not a party to this appeal.
Defendants Hardy and Reilly contend that two other statements made by counsel for codefendant Morgan were impermissible comments on their decisions not to testify at trial. I agree with the majority that neither of those two statements was improper. (Maj. opn., ante, p. 159.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794381. Public record. Not legal advice.