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

PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Dean ELLIS, Defendant and Appellant.

Cr. 5303.

Decided: June 29, 1966

James R. Tormey, Jr., San Mateo, for appellant (Under appointment of District Court of Appeal). Thomas C. Lynch, Atty. Gen., of State of California, Edward P. O'Brien, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

Appellant asserts violation of his right against self-incrimination (U.S. Const., 5th Amend.;  Cal. Const., Art. I, § 13) in the introduction of evidence that he refused to speak for purposes of voice identification, while in custody after arrest.

Charged with assault with intent to commit rape (Pen.Code, § 220), defendant was found guilty by a jury and sentenced to prison.   He appeals.

There is evidence that the complaining witness was waiting for a bus at 4:50 a.m. when defendant approached her, offered a fee for sexual intercourse and, when she refused, threatened to use a knife to compel her submission.   She fled, screaming, and defendant pursued her.   Defendant departed when a newsboy heard the victim's screams and approached the scene.   Complainant positively identified defendant, and the newsboy identified a white Cadillac automobile similar to defendant's as being nearby.

After defendant's arrest, he was identified by the complaining witness at a lineup.   She told the officers that she could also identify his voice.   She was then taken to the jail and placed within earshot, but out of the sight, of defendant.   An officer told him that she had identified him, and was in a position to hear him.   He was advised of his right to remain silent, to be represented by counsel, and that anything he said could be used against him (People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361;  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and was asked, for purposes of further identification, to speak.   He was asked to repeat two sentences which complainant said had been spoken by her attacker.   He signalled his refusal to do so.   The officer then attempted to engage him in general conversation, but he said no word.   Evidence of this occurrence was introduced, and was argued to the jury by the prosecutor.

 We lean to respondent's view that, if defendant had spoken at the jail testimony by the complainant that she recognized his voice, as then revealed, as that of her attacker.   The privilege against self-incrimination generally protects only against testimonial compulsion (Schmerber v. Calfornia, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908;  People v. Lopez, 60 Cal.2d 223, 244, 32 Cal.Rptr. 424, 384 P.2d 16;  8 Wigmore on Evidence, McNaughton rev., § 2263;  McCormick on Evidence, § 126;  see also People v. Gilbert, 63 Cal.2d 690, 709, 47 Cal.Rptr. 909, 408 P.2d 365 [but cert. granted June 13, 1966] ).  Identification of defendant in a police lineup does not violate the privilege (People v. Gilbert, supra).   Handwriting exemplars made by defendant after arrest are admissible (People v. Graves, 64 A.C. 216, 49 Cal.Rptr. 386, 411 P.2d 114), as is voice identification made from hearing him speak at a police lineup (People v. Lopez, supra, 60 Cal.2d 223, 243–244, 32 Cal.Rptr. 424, 384 P.2d 16).   The California view as to what is incriminating has been modified by the United States Supreme Court (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106), but a post-Griffin decision (People v. Gilbert, supra) has substantially reaffirmed the view of Lopez.

 We recognize that two jurisdictions refused admission of voice identification evidence based upon repetition of statements allegedly made in the course of the crime (State of South Carolina v. Taylor, 213 S.C. 330, 49 S.E.2d 289, 16 A.L.R.2d 1317;  Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706).   But strong dictum to the contrary exists (Johnson v. Commonwealth, 115 Pa. 369, 9 A. 78).   New Jersey has adopted this view (State v. King, 84 N.J.Super. 297, 201 A.2d 758) as has Iowa (State v. Williams, 245 Iowa 494, 502–503, 62 N.W.2d 742, 746–747;  and apparently, Alabama (Aaron v. State, 271 Ala. 70, 83–84, 122 So.2d 360, 372;  see other cases collected at 16 A.L.R.2d 1322–1328;  2 A.L.R.2d Later Case Service and 1966 pocket parts, both supplementing the foregoing annotation).   In light of comments of text writers (Wigmore, supra, p. 396;  McCormick on Evidence, p. 266), we find the view of the latter decisions more tenable when repetition of words associated with the crime is used solely for the purpose of voice identification.

 Similarly, we would, had defendant answered, find no violation of the Miranda–Escobedo–Dorado rule (Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602;  Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977;  People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361).   This rule proscribes police questioning designed to elicit testimonial answers, a point made clear in Gilbert and Graves.   Defendant here was not asked to admit, deny or explain the statements, but only to reveal his voice in the same way he could be asked to reveal his face.

But our question is whether defendant's failure to speak, either by repetition of the statements or on general subjects, can be used against him.   There is apparent inconsistency in advising him that he may remain silent, as was done here, and then using his silence against him at trial.   This inconsistency may be more apparent than real, and perhaps could be explained by an implied limitation of the admonition to answers which are testimonial in character, but we need not decide that issue here.

 A much more serious problem, which seems to us insurmountable, is posed by the decision in Griffin.   In the case before us, the prosecutor, in his argument to the jury, commented on defendant's failure to speak when he could be heard by the complainant.   Comparable comment was stated by the United States Supreme Court to be “a penalty imposed by courts for exercising a constitutional privilege” (Griffin v. State of California, supra, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, and see Miranda v. Arizona, supra, 384 U.S. at p. 468, 86 S.Ct. at p. 1624, fn. 37).  Griffin forbids “either comment by the prosecution * * * or instructions by the court” on defendant's silence (id., p. 615, 85 S.Ct. p. 1233).   It follows, we think, that the prosecutor's comment here was error.   If defendant had spoken, and complainant had added identification by voice to her testimony that she recognized the defendant visually as her attacker, the voice identification could have been tested on cross-examination, and, possibly, by rebuttal.   Silence, and argument upon it, cannot be so met, and raises a strong possibility that the jury may regard it as evidence of a consciousness of guilt.   We understand this likelihood of incrimination by silence to be the basis of the decision in Griffin.   Even if the right to remain silent were not absolute, we feel that the rationale of Griffin bars comment upon that silence (see Schmerber v. California, supra, 384 U.S. 757, 86 S.Ct. 1826, fn. 9).

 But the error, unless it resulted in a miscarriage of justice, does not require reversal (People v. Bostick, 62 Cal.2d 820, 823–826, 44 Cal.Rptr. 649, 402 P.2d 529;  People v. Cockrell, 63 Cal.2d 659, 669–671, 47 Cal.Rptr. 788, 408 P.2d 116).   Thus we look to the entire record to determine whether there is “a reasonable possibility that the evidence complained of might have contributed to the conviction” (Fahy v. State of Connecticut, 375 U.S. 85, 86–87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171), or it is “reasonably probable that a result more favorable” to defendant would have been reached in the absence of the error (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254).   We have concluded that under either test the error here was not prejudicial.

Defendant offered alibis for the crime charged and for a strikingly similar offense which occurred some 6 weeks later.   The alibi for the crime charged was weakened on cross-examination, but could have been accepted by the jury.   The alibi for the similar offense was through testimony of defendant and his wife, who had also supported his alibi for the crime charged.   They testified, in detail, that they had gone to Sacramento, where defendant competed in a bowling tournament, and that both stayed overnight there, returning home the next day, some hours after the similar occurred.   Two disinterested rebuttal witnesses testified that:  they accompanied defendant to Sacramento, and participated in the bowling tournament;  Mrs. Ellis did not make the trip;  defendant drove back from Sacramento, left his guests at a point near the scene of the crime more than an hour before its commission, and drove away alone in his distinctive car.   These witnesses were not cross-examined, and no surrebuttal was offered

This evidence shattered the alibi for the similar.   It thus cast grave doubt on the integrity of defendant and his wife in the alibi for the crime charged.   It gravely weakened all testimony of defendant.   In light of the positive identification of defendant by the complaining witness, corroborated by the newsboy's identification of his distinctive automobile at the scene of the crime, it seems neither probable nor possible that the verdict was in any way affected by the evidence of, and the brief comment in argument upon, defendant's failure to reveal his voice after arrest.

 In his argument, the prosecutor referred to “lies” and “perjury” by alibi witnesses, but did so in the course of discussing the evidence of these witnesses and the flatly contradictory evidence of prosecution witnesses in rebuttal.   He did not seek to express his personal opinion.   In such a context, reference to “lies” or “liars” is not improper (People v. Mora, 139 Cal.App.2d 266, 272–273, 293 P.2d 522;  People v. Baker, 183 Cal.App.2d 615, 624–625, 7 Cal.Rptr. 22).   We are aware that one decision (People v. Reese, 220 Cal.App.2d 143, 146–147, 33 Cal.Rptr. 561) found error in argument that alibi witnesses were “perjurers”.   It does not appear, however, that the testimony of the witnesses there referred to was contradicted, or that the expressions were used in the course of summation of the evidence.   Here, the alibi testimony referred to by the prosecutor was completely contradicted by two witnesses whose disinterest was unquestioned, and the epithets attacked were used only in summation of the evidence.

We do not find Reese applicable.

Judgment affirmed.

DRAPER, Presiding Justice.

SALSMAN and DEVINE, JJ., concur.