PEOPLE v. GLIDDEN III

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer George GLIDDEN III, Defendant and Appellant.

No. G004848.

Decided: May 10, 1989

Rodger P. Curnow, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Linda C. Johnson and Robert M. Snider, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Elmer Glidden was convicted by jury of conspiracy to sell narcotics and related charges.   He contends the prosecutor committed prejudicial misconduct by improperly cross-examining him on the subject of his postarrest silence and in focusing on that issue in argument.   Defense counsel, he urges, was ineffective for failing to object to these tactics.   Although we agree with many of the points raised, we must affirm on the present record.

I

On January 25, 1985, in a series of telephone calls, undercover narcotics agents negotiated the purchase of half a kilogram of cocaine from Ronald Walker for $21,000.   The telephone number Walker gave the investigators was that of the home of his employee, Glidden.   Agent and dealer agreed to meet later that day at a local motel restaurant.

Walker arrived at the location as scheduled.   Moments later, agents saw Glidden drive his Chevrolet Blazer into the movie theater parking lot next door.   Glidden then cruised slowly through the restaurant lot, returned to the theater lot, and parked within view of Walker's vehicle and the restaurant.   Although holding a magazine, Glidden kept the restaurant under constant surveillance.

Meanwhile, Walker met Agent Edward Manavian inside.   The latter explained his partner was waiting nearby with the cash, and the men went outside to Walker's truck to view the goods.   Walker was arrested as soon as he unveiled the cocaine.

Within seconds of Walker's arrest, Glidden began to back out of his parking stall at the theater.   Agents immediately closed in, and he was taken out of the vehicle at gunpoint and forced to lie facedown on the pavement.   The officers noticed a gun pouch on the right front seat.   With Glidden's consent, they examined it and found a .22 caliber semi-automatic handgun inside.   Elsewhere in the vehicle they found a clip containing ammunition for the gun, marijuana paraphernalia, and several of Walker's business cards.   Glidden was arrested as a conspirator in the cocaine sale.

Glidden was the only defense witness, and he gave a plausible account of his actions:  He had known Walker for five or six years and worked for him as a roofer for some nine months.   Both men were experiencing marital problems, and Walker had been staying at Glidden's house at least three or four nights per week in January 1985.   On the morning of January 25, they returned to Glidden's home from a job site.   After relaxing for a while, Walker went to the bedroom he occupied and made telephone calls for several hours.   Normally an even-tempered sort, Walker appeared very nervous.   Defendant heard him whispering on the telephone, mentioning a meeting at a motel, and suspected Walker was arranging a rendezvous with Glidden's wife.

When Walker left the house, Glidden followed a few minutes behind.   He entered the movie theater lot thinking he could get to the motel from there, but discovered he was unable to make the necessary turns.   Glidden then left the theater lot and went into the motel parking area looking for his wife's car.   He only saw Walker's truck, however.   Not wanting to be observed, Glidden returned to the theater and parked behind some bushes.   Angry and upset, he waited to see whether Walker and his wife would meet.   The gun was in his car before he left home.   He often kept it there because he worked in dangerous neighborhoods;  he had no plans to use it on this occasion.

After waiting five to ten minutes, Glidden saw several persons converge on Walker's truck.   He watched the disturbance only briefly before deciding to leave and was then stopped and arrested.   Glidden was not aware of Walker's plans and did not know where his employer obtained the cocaine.   He would never have followed Walker had he known his true purpose.

The record does not reveal whether Glidden was ever given a Miranda warning.1  But defense counsel elicited details of a field interrogation that seemingly should have been preceded by an appropriate advisement.   On direct examination Glidden testified to the following:

“Q During the time you were laying on the ground there, did the officers ask you any questions?

“A Yes, they did.

“Q What was that?

“A They asked me what I was doing there.   They asked me if I had—why I was there, if I knew what was going on.

“Q In regard to those questions, did you respond?

“A Yes, I did.

“Q Do you recall what your response was?

“A I said that I was there to watch Mr. Walker.”

The prosecutor cross-examined on the subject;  and, as we shall see, by use of the word “ever,” she crossed into proscribed territory within two questions:

“Q And you just testified a few moments ago, when your attorney was asking you questions, that you had spoken with some officers that day when you got arrested;  is that correct?

“A Yes, it is.

“Q Did you ever tell any of these officers that you were there to watch out for Mr. Walker because you thought he was having an affair with your wife?

“A No.

“Q Did you ever tell this to anybody else before today?

“A Yes.

“Q Who?

“A My lawyer.

“Q Anyone besides that?

“A No.

“Q So you went and you got arrested, and you never told anyone, ‘Hey, this is a mistake.   I'm just there because I think my wife is having an affair with that guy’?

“A No, I didn't.   I wasn't given a chance.

“Q So, you never explained that to anyone;  is that correct?

“A As I said, I was never given a chance to explain.

“Q Well, this happened back in January of '85;  is that correct?

“A Yes.

“Q And so over this year and a half now you've never mentioned this to anybody until today, except for your attorney?

“A No, not that it would have been with relevance here.   I mentioned it to friends that's why I was there, but no, never.

“Q Didn't it occur to you, if that was a good explanation, a valid explanation about what happened, you should have said something to somebody about that?

“A I did to my own attorney.   To the police?   They arrested me.”

The prosecutor concluded her opening argument to the jury with the same point:  “It's obviously something he has made up now, because in almost two years he hasn't repeated that story to anybody [which was not Glidden's testimony, of course].  And it's always easy when you have time to think up something that can match the facts.   What I want you to do is think about that and please consider all the evidence.   Thank you.”

Defense counsel never objected to the prosecutor's interrogation or argument.   He did attempt to rebut her in his own comments to the jury, however:  “Let's go through some of these facts.  [The prosecutor] made a big deal about, one, Mr. Glidden didn't tell anybody.   Now I [see] that somewhat as a smokescreen․  [L]et me try to answer some reasons why somebody wouldn't tell the police these things․  We'll start with the initial arrest.

“As you saw, Mr. Glidden was out there, he's taken out of his car at gunpoint, thrown on the ground facedown, police surround him with guns.   I think any of you can picture that as not being the most pleasant of situations.   It's not real conducive to talking.

“․ [T]he only thing [the police] asked him about was, can we look in your car, or can we get the gun.   Nobody asked him what are you doing here.   They had their minds made up when they got there․

“․ [Y]ou get arrested, you go to jail․  [¶] ․ [You] find that talking to police is not going to get you out of trouble.   I've never seen a case yet where it gets you out of trouble.   You get into a lot of trouble when you talk.”

II

 It is a violation of the due process clause of the Fourteenth Amendment to impeach a defendant based on postarrest silence following a Miranda warning.  (Doyle v. Ohio (1976) 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91.)   The invocation of the right to remain silent after the advisement “is insolubly ambiguous because of what the State is required to advise the person arrested.  [Citation.]”  (Id., at p. 617, 96 S.Ct. at p. 2244.)  Doyle does not apply, according to the United States Supreme Court, where no Miranda warning is given, however.  (Fletcher v. Weir (1982) 455 U.S. 603, 605–607, 102 S.Ct. 1309, 1311–1312, 71 L.Ed.2d 490.)

People v. Free (1982) 131 Cal.App.3d 155, 182 Cal.Rptr. 259 criticized the Fletcher rule on the basis that it would encourage police to ignore Miranda and stated the California rule was to the contrary.  (Id., at p. 165, 182 Cal.Rptr. 259.)   We agree with that court's assessment of Fletcher and offer an additional reason:  Miranda is so well known, particularly to professional criminals, that postarrest silence remains “insolubly ambiguous,” whether or not the warning is given.   Requiring the defendant to explain he stood on his constitutional rights rather than reveal his defense would invite perjury from some defendants and create the risk that truthful ones would be prejudiced before a jury for an honest assertion of rights guaranteed by both the federal and state Constitutions.   And in either situation the jury could easily draw the improper inference that the defendant's constitutional expertise derived from former unpleasant contacts with law enforcement, not scholarly analysis of the Bill of Rights.

However, Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) abrogated the exclusion of evidence in criminal trials unless it is required by federal law (In re Lance W. (1985) 37 Cal.3d 873, 886–889, 210 Cal.Rptr. 631, 694 P.2d 744;  People v. Wade (1989) 208 Cal.App.3d 304, 308, 256 Cal.Rptr. 189;  People v. Uhler (1989) 208 Cal.App.3d 766, 770, fn. 1, 256 Cal.Rptr. 336) or “any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.”   (Cal. Const., art. I, § 28, subd. (d).)  The majority in People v. Jacobs (1984) 158 Cal.App.3d 740, 750–751, 204 Cal.Rptr. 849 avoided application of Proposition 8 in similar circumstances by holding Evidence Code section 940, which codifies the right against self-incrimination, is such a “statutory rule of evidence relating to privilege.”   But our Supreme Court, in a 4–3 decision, undercut the reasoning of the Jacobs majority in People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307.   There the court specifically held Proposition 8 overturned People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (statements taken in violation of Miranda not admissible for impeachment), notwithstanding Evidence Code section 940.

Despite our sympathy with the holding of the Jacobs majority and the rationale of the dissenters in May, we are compelled to the view that section 940 is now a blind alley in the analysis of the problem.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   That conclusion need not detain us, however.   Justice Lillie's separate opinion in Jacobs, based on an exception indisputably retained by Proposition 8, states a correct rule and is unscathed by the reasoning of May.

After observing that Fletcher v. Weir, supra, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312 specifically permitted states “ ‘to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony’ ” (People v. Jacobs, 158 Cal.App.3d at p. 752, 204 Cal.Rptr. 849 (conc. & dis. opn. of Lillie, J.)), Justice Lillie notes, “The California Evidence Code confers on the trial court the discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.  (Evid.Code, § 352.)   It is in its exercise of this discretion that I find the trial court erroneously allowed cross-examination as to defendant's postarrest silence.”  (People v. Jacobs, supra, at pp. 752–753, 204 Cal.Rptr. 849.)   We agree for similar reasons.

 Evidence of postarrest silence is so lacking in probative value and so fraught with the risks of prejudice and undue consumption of time it should rarely, if ever, be permitted.   That has been the essence of the California view before and after Proposition 8, and nothing in that measure causes us to see the matter differently.   Because Proposition 8 left Evidence Code section 352 intact, the cross-examination and argument of the prosecutor should have been curtailed upon a proper objection.2  None was forthcoming, however.

III

 The next step is to determine whether an objection is required to preserve Doyle error, particularly where defense counsel has cracked the door by asking the original questions in this sensitive area.  (Doyle v. Ohio, supra, 426 U.S. 610, 96 S.Ct. 2240.)   In Doyle defense counsel did make appropriate objections.  (Id., at p. 614, 96 S.Ct. at p. 2243.)   Although some cases suggest no objection is needed—at least in the usual situation where the prosecution initiates the inquiry—they are suspect for various reasons.   First, in Jacobs the court's two opinions do not agree as to whether there was an objection in addition to a claim that the questioning exceeded the scope of direct examination.   The majority says no (People v. Jacobs, supra, 158 Cal.App.3d at p. 746, 204 Cal.Rptr. 849), but Justice Lillie maintains Jacobs did raise an Evidence Code section 352 objection (id., at p. 754, 204 Cal.Rptr. 849).

People v. Andrews (1970) 14 Cal.App.3d 40, 92 Cal.Rptr. 49 is cited by the Jacobs majority for the notion that an objection is not required.   (People v. Jacobs, supra, 158 Cal.App.3d at p. 746, 204 Cal.Rptr. 849) But, assuming it is on point, Andrews is clearly dated.   There, “[a]lthough defense counsel objected when defendant was asked whether he had made a pretrial disclosure of his defense, he did not object when the deputy sheriff was asked whether defendant had given him a statement.”  (People v. Andrews, 14 Cal.App.3d at p. 48, 92 Cal.Rptr. 49.)   The misconduct by the prosecutor, according to Andrews, “was of such serious nature ․ that no objection, motion or request was necessary to preserve the point for appeal.”  (Ibid.) 3  It is unclear from the opinion whether Andrews was given a Miranda warning, but he testified his decision not to talk to the officers was based on his awareness of the right to remain silent.   Thus, the Andrews court may have meant only that it is unnecessary to object when the prosecutor reveals the defendant asserted his Miranda rights;  that appears to be a direct violation of the Fifth Amendment and Miranda itself.   (Miranda v. Arizona, supra, 384 U.S. 436, 468, fn. 37, 86 S.Ct. 1602, 1624, fn. 37;  People v. Ellis (1966) 65 Cal.2d 529, 536, 55 Cal.Rptr. 385, 421 P.2d 393.)

 Under either interpretation, Andrews is no longer good authority for the proposition that garden variety Doyle/Fourteenth Amendment error does not require an objection to preserve it.   Prosecutorial misconduct issues must be preserved by appropriate objection unless an objection and an admonition from the court could not have cured the harm.  (People v. Green (1980) 27 Cal.3d 1, 27–34, 164 Cal.Rptr. 1, 609 P.2d 468, questioned on another point in People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal.Rptr. 112, 718 P.2d 99.)  Jacobs simply failed to recognize the applicability of Green.

A pre-Doyle opinion specifically grounded on the Supreme Court's supervisory power over the lower federal courts also suggests the error may be of a type that is never harmless, but it is treacherous authority.   In United States v. Hale (1975) 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, the court reversed even though the trial judge admonished the jury to disregard the improper questioning.  (Id., at p. 175, fn. 3, 95 S.Ct. at p. 2136, fn. 3.)   However, in the case of Griffin error (Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 [prosecutor's comment on defendant's failure to testify] ), an analogous and even more prejudicial type of prosecutorial misconduct, the California Supreme Court has repeatedly held an objection would not be futile and is required to preserve the issue for appeal.  (See, e.g., People v. Johnson (1989) 47 Cal.3d 1194, 1236, 255 Cal.Rptr. 569, 767 P.2d 1047.)   And that court has specifically found a prosecutor's comment on the defendant's invocation of the right to counsel after a Miranda warning, categorized as a form of Doyle error, may be harmless beyond a reasonable doubt.  (People v. Crandell (1988) 46 Cal.3d 833, 877–879, 251 Cal.Rptr. 227, 760 P.2d 423.)   Certainly that will be the likely outcome when, as here, defense counsel raises the subject first.4  By examining on a time line commencing from arrest to trial, however, the prosecutor far exceeded any reasonable response to the defense direct examination.  (See fn. 2, ante.)   Nevertheless, per Green the failure to object must be deemed fatal for purposes of appeal.

IV

 Glidden cites the failure to object as ineffective assistance of counsel, and he is probably right.   Whether or not Miranda warnings were given, after Glidden obtained an attorney evidence of postarrest silence was barred by the Sixth as well as the Fourteenth Amendment.  (See Wainwright v. Greenfield (1986) 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623;  Doyle v. Ohio, supra, 426 U.S. 610, 96 S.Ct. 2240;  People v. Crandell, supra, 46 Cal.3d 833, 877–879, 251 Cal.Rptr. 227, 760 P.2d 423.)   Defense counsel will generally advise clients to keep silent, and it is grossly improper to stigmatize those who rely on the admonition of an attorney.   Also, it places the lawyer in the position of a potential witness for the defense because he might have to corroborate the defendant's explanation for remaining silent.   Glidden's trial counsel was in this very predicament, although he never appears to have realized it.   Moreover, jurors will frequently be unaware that the prosecution has very little right to discovery and assume there is some responsibility on the part of the defense to reveal its strategy pretrial.

But, although it is highly unlikely defense counsel had anything resembling a rational tactical purpose for failing to object, there is no way to tell what he could have been thinking.   As Doyle, Hale, and Justice Lillie in Jacobs explain in great depth, postarrest silence has so little probative value and is so potentially prejudicial, it is difficult to imagine a reasonable defense attorney entertaining the notion it could somehow be turned to the client's advantage.   Nevertheless, “[w]hen a defendant makes an ineffective assistance of counsel claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation.   If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one or unless there could be no satisfactory explanation, the case is to be affirmed on appeal.  [Citation.]  In such cases, the claim is more appropriately made in a petition for habeas corpus.   [Citation.]”  (People v. Johnson, supra, 47 Cal.3d at p. 1251, 255 Cal.Rptr. 569, 767 P.2d 1047.)   Counsel's closing argument does not suggest he had any reason for failing to object;  but a satisfactory explanation, while unlikely, is possible.5  For example, the Attorney General speculates counsel lured the prosecutor into a trap designed to expose the weakness of her case.   We are dubious.   Nevertheless, if Glidden chooses to pursue the matter, the ineffective assistance of counsel issue will have to be resolved via petition for writ of habeas corpus.

Habeas is also a more satisfactory approach because the question of whether a Miranda warning was given can be resolved there.   If a warning was indeed given, the Doyle error can be readily identified.

V–VII **

Judgment affirmed.

I concur in the judgment and in the reasoning of Parts V, VI, and VII of the majority opinion.   However, I cannot join in the reasoning of Parts II, III, and IV.   There, the majority embark on a journey for which none of the litigants in this case have had the opportunity to prepare.   Issues never raised or briefed by the parties are proposed, expounded, and passed upon, despite the proscriptions to the contrary in Government Code section 68081.   The majority thus appear more concerned with dissertations on principles of law unnecessary to the determination of this matter than with resolving the issues actually presented in this case.

I

It has long been held a violation of due process to allow an accused's silence following Miranda 1 warnings to be used to impeach an explanation subsequently offered at trial.  (Doyle v. Ohio (1976) 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91.)   The record here, however, fails to show Glidden was ever given such warnings.   Under federal law, the giving of Miranda advisement is a prerequisite for application of the Doyle rule.   (Fletcher v. Weir (1982) 455 U.S. 603, 605–607, 102 S.Ct. 1309, 1311–1312, 71 L.Ed.2d 490.)

The majority apparently are taking judicial notice that Miranda is so well known “particularly to professional criminals” that the warning need not be given any more in order to invoke the benefits of Miranda.   Such a rule would be at odds with Fletcher v. Weir, supra.

Prior to the effective date of Proposition 8, California courts were free to give Doyle a more expansive reading under the California Constitution.   For example, in People v. Free (1982) 131 Cal.App.3d 155, 165, 182 Cal.Rptr. 259, the Court of Appeal concluded, under the “California rule [,] postarrest silence may not be commented upon if it follows a Miranda warning.   The same rule may apply if there is no Miranda warning in order to foreclose inducement of police to dispense with a Miranda advisement where they suspect that the arrestee would refuse to talk anyway or where they know that he will, but manipulate the facts by asking no questions immediately after the arrest, in order to use the defendant's silence against him, later giving a Miranda warning in order to secure a statement.”  (Emphasis added.)   Despite this rationale, the Court of Appeal recognized such police tactics do not violate the federal rule:  “Although this procedure leads to gamesmanship,” the court wrote, “it is approved by United States Supreme Court precedent.   (Fletcher v. Weir (1982) 455 U.S. 603 [102 S.Ct. 1309, 71 L.Ed.2d 490]․)”  (Id.)

It is worthy of note that in Fletcher v. Weir itself, the Sixth Circuit Court of Appeals had sought “to extend [Doyle ] to cover Weir's situation by stating ․ ‘[W]e think an arrest, by itself, is governmental action which implicitly induces a defendant to remain silent.’  [Citation.]”  (Fletcher v. Weir, supra, 455 U.S. at p. 606, 102 S.Ct. at p. 1311.)   The Supreme Court responded by granting certiorari and summarily reversing the judgment of the Court of Appeals, without oral argument, in a per curiam opinion.

The high court made it clear:  “We think that this broadening of Doyle is unsupported by the reasoning of that case and contrary to our post-Doyle decisions.”  (Fletcher v. Weir, supra, 455 U.S. at p. 606, 102 S.Ct. at p. 1311.)  “[W]e have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him [citing Jenkins v. Anderson (1980) 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86].”  (Ibid.)   The Court thus unambiguously held that “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.”  (Id., at p. 607, 102 S.Ct. at p. 1312.)

People v. Jacobs (1984) 158 Cal.App.3d 740, 204 Cal.Rptr. 849 and its progeny,2 upon which Glidden relies, hold “[a] defendant's right under California Constitution, article I, section 15, not to be questioned on cross-examination about his silence during or after his arrest is unaltered by California Constitution, article I, section 28, subdivision (d).”   (People v. Jacobs, supra, 158 Cal.App.3d at p. 750, 204 Cal.Rptr. 849.)   In my view, however, the vitality of the Jacobs' analysis has been extinguished by People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307.

In May, our Supreme Court dealt with the question of whether Proposition 8 and its “Truth-in-Evidence” component (Cal. Const., art. I, § 28, subd. (d)) abrogated the judicially-created exclusionary rule of People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 in favor of the contrary federal rule as stated in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.  Disbrow was, as Jacobs is, based entirely on independent state grounds under article I, section 15, of the California Constitution.   In order to determine whether Disbrow survived the adoption of Proposition 8, our Supreme Court was required to examine the effect of the savings clause contained in article I, section 28, subdivision (d) 3 .

The May majority acknowledged section 940 of the Evidence Code to be “a statutory recognition of the constitutional privileges against self-incrimination” which antedated Proposition 8 and treated it as an “ ‘existing statutory rule of evidence relating to privilege.’ ”  (People v. May, supra, 44 Cal.3d at p. 316, 243 Cal.Rptr. 369, 748 P.2d 307.)   But the majority observed that did not end their inquiry:

“The question is not whether the [defendant] had a constitutional right [under Miranda ] to refuse to disclose any information during the police interrogation․  He clearly had such rights under both the state and federal Constitutions.   The question is rather, given that [defendant's] constitutional privileges against self-incrimination and right to counsel were violated by the interrogation, what remedy is available to him?”  (Emphasis added.)  (Id.)

Relying on In re Lance W. (1985) 37 Cal.3d 873, 886–889, 210 Cal.Rptr. 631, 694 P.2d 744, the majority held the judicially-created exclusionary rule of Disbrow did not survive Proposition 8 because, though it left the rights recognized in Evidence Code section 940 intact, Proposition 8 eliminated the remedy of exclusion for violation of the state Constitution and the federal Constitution to the extent it is more liberally construed under California law.  (People v. May, supra, 44 Cal.3d at p. 316, 243 Cal.Rptr. 369, 748 P.2d 307;  see People v. Neer (1986) 177 Cal.App.3d 991, 1002, 223 Cal.Rptr. 555 (dis. opn. of Crosby, J.).)   The majority reiterated the holding of Lance W.:  “ ‘[I]n the absence of express statutory authority therefor courts may not exclude evidence ․ unless exclusion is compelled by the federal Constitution.’ ”  (Emphasis added.)  (People v. May, supra, 44 Cal.3d at p. 316, 243 Cal.Rptr. 369, 748 P.2d 307.)

Thus, while Jacobs is undoubtedly correct in observing a defendant has both a state and federal constitutional right against self-incrimination, Jacobs errs by concluding that the remedy of exclusion for violation of article I, section 15 of the California Constitution survived Proposition 8.   The right remains;  the remedy has been abolished.   Consequently, we are no longer at liberty to follow Free, nor are we free to expand Doyle beyond its holding.  Doyle error presupposes the giving of Miranda warnings or an equivalent affirmative assurance that the defendant's silence will not be used against him.  (Fletcher v. Weir, supra, 455 U.S. at pp. 605–607, 102 S.Ct. at pp. 1311–1312.)   Since the record before us fails to demonstrate such assurances were communicated to Glidden, his Doyle attack by way of appeal cannot prevail.

If any inference can be drawn from the record on appeal, that inference would appear to be that Glidden did not receive Miranda warnings at the time he was pulled from his car and made to lie prone on the pavement.   There, as the majority's factual statement shows, Glidden neither refused to answer questions nor asked for an attorney's assistance, notwithstanding the majority's finding that Miranda is “so well known.”

II

Though the majority mouth allegiance to Proposition 8 and the explicit holding of the California Supreme Court in People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307, they seek to substitute Evidence Code 352 for the discredited “California rule” which would have made the prosecutor's questions and argument about Glidden's silence objectionable whether Miranda was given or not.   Although federal law requires a showing that Miranda or an equivalent affirmative assurance was given as a prerequisite to a proper objection by counsel, the majority proclaim, “That conclusion need not detain us.”

The majority tout Evidence Code section 352, a ground never invoked at trial nor raised in this appeal, as the panacea for all the ills they perceive in this case.   However, they render their advisory opinion without first examining the patient.

The majority gratuitously observe the prosecutor's questions and argument concerning Glidden's postarrest silence “should have been curtailed upon a proper objection.”   The majority reach this conclusion on the basis that “[p]ostarrest silence is so lacking in probative value and so fraught with the risks of prejudice and undue consumption of time it should rarely, if ever, be permitted.”   Yet the majority show no prejudice or undue consumption of time in the instant case and affirm the judgment below.   Their conclusion demonstrates this case is not a proper vehicle for the majority's musings about what procedure “generally” should be followed.

The majority also seek to buttress their case by interjecting the Sixth Amendment.   Here again, this is done without benefit of briefing or argument and without a Sixth Amendment objection made by defendant or his appellate counsel, and without any showing in the trial court of reliance on advice of counsel.

III

The majority purport to leave the question of the competence of Glidden's counsel for another day, paying lip service to People v. Johnson (1989) 47 Cal.3d 1194, 255 Cal.Rptr. 569, 767 P.2d 1047.   Yet the clues they leave for the trial court to discover on habeas corpus are not subtle and leave little doubt as to the outcome the majority dictate should result.   For example, though contrary to the jury's verdict, the majority starts out by finding defendant gave “a plausible account of his actions.”   Thereafter, the lead opinion states Glidden is “probably right” by claiming the failure to object was ineffective assistance of counsel.   Further, “․ it is highly unlikely defense counsel had anything resembling a rational tactical purpose for failing to object․”  “It is difficult to imagine a reasonable defense attorney entertaining the notion [that a failure to object to the prosecutor's focus upon Glidden's postarrest silence] could somehow be turned to the client's advantage.”   Of course, that there may have been no legal basis for an objection poses no problem for the majority.

As far as one can tell from the record, defense counsel deliberately chose not to object to the prosecutor's questions and remarks and chose to argue to the jury the reasons for Glidden's silence.   While his choice may now appear ineffective in view of the result obtained—i.e. Glidden's conviction, I am not prepared to say his choice lacked any hope of success.   Considering the circumstantial nature of the People's case, defense counsel's argument might have carried the day.

On this record, however, we have no way of knowing whether counsel made a tactical decision not to object or whether Miranda warnings simply were never given to Glidden.   If they were not given, of course, Doyle “would afford him no solace and his counsel's failure to raise the issue [below] would be totally unimpeachable.”  (People v. Crowson (1983) 33 Cal.3d 623, 628, 190 Cal.Rptr. 165, 660 P.2d 389.)   On the other hand, if Miranda was given, “[t]he failure ․ to object to evidence [is a] matter[ ] which usually involve [s] tactical decisions on counsel's part and seldom establish[es] a counsel's incompetence.”  (People v. Frierson (1979) 25 Cal.3d 142, 158, 158 Cal.Rptr. 281, 599 P.2d 587;  cf. People v. Ghent (1987) 43 Cal.3d 739, 772–73, 239 Cal.Rptr. 82, 739 P.2d 1250.)

On appeal, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’  [Citation.]”  (Strickland v. Washington (1984) 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674.)

“Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.   In all other cases the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsel's conduct or omission.”  (People v. Fosselman (1983) 33 Cal.3d 572, 581–582, 189 Cal.Rptr. 855, 659 P.2d 1144, emphasis added;  accord, People v. Johnson, supra, 47 Cal.3d at p. 1251, 255 Cal.Rptr. 569, 767 P.2d 1047;  People v. Milner (1988) 45 Cal.3d 227, 238, 246 Cal.Rptr. 713, 753 P.2d 669.)

While the majority hesitates to reverse the conviction on this appeal, their eagerness to encourage and prejudge the habeas corpus proceeding is disquieting.   To suggest an alternative proceeding to raise issues may be appropriate.   To send out an engraved invitation for such proceedings with the result all but mandated is, I believe, wholly inappropriate.

FOOTNOTES

1.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   Presumably because the conversation was brought out by defense counsel, no issue concerning the failure to recite a Miranda advisement is raised on appeal.

2.   Cross-examination on Glidden's testimony concerning his postarrest statements in the field was invited, of course;  but the prosecutor exceeded the scope of that evidence within two questions.

3.   Had the giving of a Miranda warning been in evidence in the present case, federal Doyle error would be clear.   The probation report says the warning was given after the arrest, but that was never brought out at trial.

4.   Although it curiously fails to mention Doyle, People v. Redmond (1981) 29 Cal.3d 904, 910–911, 176 Cal.Rptr. 780, 633 P.2d 976 is instructive.   There, the defendant was accused of assault with a deadly weapon.   He presented an accident defense, i.e., the victim “stumbled” into the knife.   On direct examination of Redmond's mother, defense counsel brought out that several months after the stabbing, her son told her where to retrieve the weapon in order to turn it over to the police.   The Supreme Court held the prosecutor's comment on the two-month delay did not present a Fifth Amendment violation and any error was waived by a failure to object:  “The defense having raised the issue, presumably to negate consciousness of guilt, the evidentiary door was thereby opened and the People were entitled by reasonable cross-examination to develop the circumstances more fully and to argue reasonable inferences therefrom.”   (Id., at p. 911, 176 Cal.Rptr. 780, 633 P.2d 976.)

5.   Glidden's trial testimony illustrates the point that virtually nothing in life is beyond explanation.

FOOTNOTE.   See footnote *, ante.

1.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2.   See, e.g., People v. Givans (1985) 166 Cal.App.3d 793, 800, 212 Cal.Rptr. 762;  People v. Barrios (1985) 166 Cal.App.3d 732, 739–747, 212 Cal.Rptr. 644;  People v. Navarez (1985) 169 Cal.App.3d 936, 944–945, 215 Cal.Rptr. 519 (contra, People v. Warner (1988) 203 Cal.App.3d 1122, 1129, 250 Cal.Rptr. 462);  People v. Clark (1985) 171 Cal.App.3d 889, 893–894, 217 Cal.Rptr. 819 (contra, People v. Moore (1988) 201 Cal.App.3d 877, 883–884, 247 Cal.Rptr. 353);  People v. Azure (1986) 178 Cal.App.3d 591, 599, 224 Cal.Rptr. 158.

3.   Article I, section 28, subdivision (d) declares in pertinent part:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding․  Nothing in this section shall affect any existing statutory rule of evidence relating to privilege․”

CROSBY, Acting Presiding Justice.

WALLIN, J., concur.

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