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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Randolph Edward DOUGHERTY, Defendant and Appellant.

Cr. 3644.

Decided: February 19, 1980

James W. Swanson, Fresno, for defendant and appellant. Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Shirley A. Nelson, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.


After trial by the court sitting without a jury appellant (Dougherty) was convicted of selling marijuana (Health & Saf. Code, § 11360).   He contends on appeal that the trial judge denied him the constitutional right to have his attorney argue the case by immediately deciding the case after the conclusion of the evidence without affording counsel an opportunity to present an argument.   Dougherty contends that all elements of an entrapment defense were brought out by the testimony and that he should have been able to argue that defense before a ruling was made.

The purchase from Dougherty was made by a controlled buy at Dougherty's house in which the informant-buyer was equipped with a radio transmitter.   The conversation at the sale was monitored.   Dougherty admitted the sale but testified in his own defense that he needed money and sold the marijuana only after being talked into it by the undercover agent.   While the record as a whole shows that the defense of entrapment was relatively weak, under the then legal test of entrapment 1 there was sufficient evidence to make the issue one of fact for the trier of fact.  (See People v. Benford (1959) 53 Cal.2d 1, 10, 345 P.2d 928;  People v. Gossett (1971) 20 Cal.App.3d 230, 233, 97 Cal.Rptr. 528.)

At the close of the evidence the following occurred:

“MR. GENDRON [defense counsel]:  ․ ․ ․  We have no further witnesses, your Honor.

“THE COURT:  Any further testimony, Mr. Avent?

“MR. AVENT [the prosecutor]:  No further testimony, your Honor.

“THE COURT:  The Court is going to find that the Petition is true.   I mean that the Indictment is true, and it's been established beyond a reasonable doubt, and the Court will now set this matter for a Probation Officer's report and the pronouncement of judgment and the imposition of sentence.”

The court did not ask counsel if he desired to argue.   Counsel did not request argument nor did he object to the court's making an immediate decision without argument.

The United States Supreme Court in Herring v. New York (1975) 422 U.S. 853, 864, 95 S.Ct. 2550, 2556, 45 L.Ed.2d 593, held that a total denial of the opportunity for final argument in a non jury trial is a denial of the basic right of the accused to make his defense.  Herring at 860, 95 S.Ct. at 2554 quoted with approval from Yopps v. State (1962) 228 Md. 204, 207, 178 A.2d 879, 881, as follows:

“ ‘The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument,  ․ ․ ․  and the trial court has no discretion to deny the accused such right.’ ”

Herring further stated at 860–863, 95 S.Ct. at 2554–2556:

“The widespread recognition of the right of the defense to make a closing summary of the evidence to the trier of the facts, whether judge or jury, finds solid support in history.   In the 16th and 17th centuries, when notions of compulsory process, confrontation, and counsel were in their infancy, the essence of the English criminal trial was argument between the defendant and counsel for the Crown.   Whatever other procedural protections may have been lacking, there was no absence of debate on the factual and legal issues raised in a criminal case.   As the rights to compulsory process, to confrontation, and to counsel developed, the adversary system's commitment to argument was neither discarded nor diluted.   Rather, the reform in procedure had the effect of shifting the primary function of argument to summation of the evidence at the close of trial, in contrast to the “fragmented' factual argument that had been typical of the earlier common law.

“It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case.   For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole.   Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions.   And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt.  [Citation.]

“The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.   In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.

“․ ․ ․

“Some cases may appear to the trial judge to be simple—open and shut—at the close of the evidence.   And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be ‘likely to leave [a] judge just where it found him.’   But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict.   And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel.”  (Footnotes omitted.)  (Emphasis added.)

Furthermore, in Herring the United States Supreme Court noted in footnote 15:

“15.  The contention has been made that, while a right to make closing argument should be recognized in a jury trial, there is insufficient justification for such a right in the context of a bench trial.   This view rests on the premise that a judge, with legal training and experience, will be likely to see the case clearly, rendering argument superfluous, or to recognize that further illumination of the issues would be helpful, in which case he would permit closing argument.

“We find this contention unpersuasive.   Judicial training and expertise, however it may enhance judgment, does not render memory or reasoning infallible.   Moreover, in one important respect, closing argument may be even more important in a bench trial than in a trial by jury.   As Mr. Justice Powell has observed, the ‘collective judgment’ of the jury ‘tends to compensate for individual shortcomings and furnishes some assurance of a reliable decision.’   Powell Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1, 4 (1966).   In contrast, the judge who tries a case presumably will reach his verdict with deliberation and contemplation, but must reach it without the stimulation of opposing viewpoints inherent in the collegial decision-making process of a jury.”  (Emphasis added.)

 We hold that the right to counsel includes an opportunity to have counsel make a closing argument no matter (in the words of Yopps, supra ) “however simple, clear, unimpeached and conclusive the evidence may seem” before the judge renders his decision (see Covington v. State, 282 Md. 540, 386 A.2d 336, 340 (Eldridge, J., dissenting) and cases cited;  see also Annotation, Prejudicial Effect of Trial Court's Denial, or Equivalent, of Counsel's Right to Argue Case, 38 A.L.R.2d 1396 and extensive citations of pre-Herring cases in Mildner v. Gulotta (E.D.N.Y.1975) 405 F.Supp. 182, 214 (Weinstein, J., dissenting) (affirmed 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751);  see also City of Columbus v. Woodrick (1976) 48 Ohio App.2d 274, 357 N.E.2d 58, 60).   Of course, the right can be waived.

 The record in this case clearly shows that there was a denial of Dougherty's right to have a closing argument before the judge made a determination of guilt or innocence.   There was no waiver of that right.   In fact, on the record before us Dougherty's counsel had no opportunity to waive such right.   We have found no post-Herring case in California which considered this question.

 Insofar as the record shows, constitutional error took place in this case.   Such an error cannot be cured by the judge withdrawing the finding of guilty and reopening for the purpose of hearing argument after the decision (such as in Swain v. State (Fla.App.1965) 172 So.2d 3, 5, a pre-Herring opinion;  People v. Daniels (1977) 51 Ill.App.3d 545, 9 Ill.Dec. 574, 577, 366 N.E.2d 1085, 1088;  People v. Moczarney (1978) 65 Ill.App.3d 410, 22 Ill.Dec. 224, 229, 382 N.E.2d 544, 549) or at a motion for new trial (such as People v. Aggie (1940) 37 Cal.App.2d 110, 113–114, 98 P.2d 806–also a pre-Herring opinion).   Hearing the matter after a decision by the judge is totally unrealistic.   Short of the actual granting of a new trial the error remains.   The bell having rung cannot be unrung (see The Rubaiyat of Omar Khayyam, stanza 72).

As Eldridge, J., stated in his dissenting opinion in Covington, supra, 386 A.2d at p. 342:

“A right of this character is certainly not satisfied merely by affording an opportunity to persuade the court, after it renders a guilty verdict, to reconsider or change its mind.   One court has characterized a closing argument at this stage as ‘futile,’ United States v. Walls, 443 F.2d 1220, 1223 (6th Cir. 1971).   However, without in any way intimating that judges are not amenable to reconsideration arguments, there is nevertheless a considerable difference between making an argument before a judge has announced a decision and making that same argument after the judge has formally taken a contrary position.”  (Second emphasis in original.)

This matter goes to the very integrity of the fact finding process.   Defense counsel, of course, must be competent in the trial of a case.   That certainly includes a duty to make a choice whether or not as a matter of tactics argument should be made.   Counsel may sometimes conclude that he would antagonize the particular judge in a particular case by argument.   However, the record shows in the instant case that defense counsel never even had the opportunity to waive the right to argument.2  As soon as the district attorney stated, after the defense had rested, that he had no further testimony, the court announced its decision.   Defense counsel simply had no opportunity to argue, request time for argument, or waive argument.

Even before Herring there was a split of authority in the United States on how the right to argue may be waived.   Cases holding such a right is waived by failure to object are distinguishable, incorrectly decided, and certainly after Herring are no longer controlling authority.3  As Herring states at page 864, 95 S.Ct. at 2556:

“The credibility assessment was solely for the trier of fact.   But before that determination was made, the appellant, through counsel, had a right to be heard in summation of the evidence from the point of view most favorable to him.”  (Fn. omitted.)

 We recognize the pressures upon a trial court to expedite the completion of cases.   We do not suggest that an affirmative waiver on the record is required.4  That would, of course, be the easy way for this constitutional error to be avoided, i. e., the trial judge could simply inquire whether counsel wished to argue.   The extent of what less than an affirmative waiver is adequate to avoid the error need not concern us at this time.   Whatever that extent may be, it does not exist in the present case because, insofar as this record shows, there was no opportunity here to waive.

 Closing argument is part of such a basic right that its denial or the equivalent of denial requires reversal per se.  (In re William F. (1974) 11 Cal.3d 249, 256, 113 Cal.Rptr. 170, 520 P.2d 986;  Herring v. New York, supra, 422 U.S. at p. 864, 95 S.Ct. at p. 2556.)   Even the appearance of compulsion to waive must be avoided.  (See the civil jury trial case of Shippy v. Peninsula Rapid Transit Co. (1925) 197 Cal. 290, 295–296, 240 P. 785.)   Otherwise, the very integrity of the system suffers.   Closing argument hones the issues for resolution by the trier of fact (see fn. 16 of United States v. Busic (2d Cir. 1978) 592 F.2d 13, quoting from Stryker, The Art of Advocacy, p. 111, describing argument (summation) as the apex of counsel's trial representation).   Denial of the opportunity to make a closing argument for the defense in a criminal case prior to the determination of guilt or innocence is a deprivation of an accused's basic right to present a defense.   As indicated, this is an error which can be avoided but it cannot be cured save and except by reversal and retrial.   As it would be futile for us to measure prejudice on the basis of an argument which counsel never had the opportunity to present (In re William F., supra, 11 Cal.3d 249, 256, 113 Cal.Rptr. 170, 520 P.2d 986;  Herring v. New York, supra, 422 U.S. at pp. 864–865, 95 S.Ct. at pp. 2556–2557), the judgment is reversed.

I concur in the reversal.   The constitutional right to argue necessarily implies a meaningful opportunity to argue, which was denied here.

I would also like to add another thought.   There are two standpoints from which an error may be considered in determining whether it is harmless:  the standpoint of the prejudice resulting to the litigant and the standpoint of the judicial system as a whole (see 71 Colum.L.Rev. 527 (1971), reviewing Traynor, The Riddle of the Harmless Error (1970)).   Although an error in trial court procedure may not prejudice a litigant because it cannot be said that it contributed to the judgment, nevertheless, the error may be so injurious to public confidence in the judicial system as to require a reversal.   An affirmance of the judgment in this case might well be construed in some quarters as approval of a practice whereby a trial judge may pronounce judgment following presentation of the evidence unless counsel immediately requests argument.   The appropriate and traditional procedure is for the judge to invite argument on the disputed issues, either expressly or by necessary implication, before rendering his decision.   Only in this fashion will there by any hope that the litigants and the public believe the decision to be impartial.

I dissent.

It is clear that at the conclusion of the evidence the court did not on the record ask counsel if he desired to argue.   Counsel did not request argument nor did he object to the court's making an immediate decision without argument.

At the outset it must be made clear that appellant is not contending that his trial counsel incompetent or inadequate.1  On the contrary, the crux of his contention is that “the court rendered his counsel ineffective by denying his counsel an opportunity to argue the crucial defense of entrapment.”

The law is now settled that total deprivation of the right to argue in a criminal case violates constitutional proscriptions and is reversible error.   (Herring v. New York (1975) 422 U.S. 853, 864–865, 95 S.Ct. 2550, 2556–2557, 45 L.Ed.2d 593;  In re William F. (1974) 11 Cal.3d 249, 255–256, 113 Cal.Rptr. 170, 520 P.2d 986.)

However, Herring and In re William F., cases upon which the principal opinion places primary reliance, are distinguishable from the case at bench in at least one important respect.   In those cases defense counsel expressly requested to be permitted to argue, and the trial judge refused the request.   Thus, the refusal to permit argument was clear, unequivocal and express.   In the case before us there was no refusal to permit argument and no affirmative restrictions placed on argument.   From all that appears the judge merely overlooked the phase of the trial usually reserved for arguments, or, what is more likely in light of Judge Goldstein's long experience as a trial judge, that he had some off-the-record indication from counsel that no argument was desired.

Under these circumstances it is erroneous to say that appellant was denied the right to argue.   Under Penal Code section 1093, subdivision 5,2 counsel is not required to argue but is accorded the statutory right of doing so.   While it certainly is better judicial procedure and practice for trial judges to inquire if counsel desires to argue before deciding the case, no statute, rule or case has been cited which requires that the judge do so.   In my opinion the proper rule should be that if counsel desires to argue it is his burden and obligation to request argument at the peril of being held to have waived argument by failing to do so.   To place the burden on the trial judge to ask if argument is desired, as the principal opinion does, is an example of a disturbing trend to overload trial judges with sua sponte duties instead of leaving them where they should be—on the shoulders of counsel.   If counsel wants to argue, it would be a simple matter for him to say so.   As an appellant it is his obligation to affirmatively establish error on the record.

This conclusion is consistent with waiver principles and appellate practice in other situations involving constitutional violations and the majority of cases decided in other jurisdictions.   For example, in the area of Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) violations, an error is deemed waived unless objection is made and may not be raised for the first time on appeal.  (In re Dennis M. (1969) 70 Cal.2d 444, 462, 75 Cal.Rptr. 1, 450 P.2d 296;  People v. Peters (1972) 23 Cal.App.3d 522, 529–532, 101 Cal.Rptr. 403 (cert. den. 409 U.S. 1064, 93 S.Ct. 563, 34 L.Ed.2d 517).)   Similarly, if a search and seizure violation is not raised at the trial court level the defect may not be raised on appeal.   (People v. Jenkins (1975) 13 Cal.3d 749, 753, 119 Cal.Rptr. 705, 532 P.2d 857 (cert. den. 423 U.S. 860, 96 S.Ct. 115, 46 L.Ed.2d 88).)   Nor is it permissible to argue lack of counsel at a lineup for the first time on appeal.  (People v. Williams (1970) 2 Cal.3d 894, 909, 88 Cal.Rptr. 208, 471 P.2d 1008 (cert. den. 401 U.S. 919, 91 S.Ct. 903, 27 L.Ed.2d 821).)

In at least six other jurisdictions it has been held an objection is required and the denial of argument question may not be raised for the first time on appeal.  (State v. Hale (Mo.1971) 472 S.W.2d 365, 366–367;  State v. Mann (Me.1976) 361 A.2d 897, 904–905;  Covington v. State (1978) 282 Md. 540, 386 A.2d 336, 337;  Casterlow v. State (1971) 256 Ind. 214, 267 N.E.2d 552, 553–554;  State v. Weippert (N.D.1975) 237 N.W.2d 1, 6;  State v. Rojewski (1979) 202 Neb. 34, 272 N.W.2d 920, 923;  see also United States ex rel. Spears v. Johnson (3rd Cir. 1972) 463 F.2d 1024, 1026.)   Alternatively, in Minnesota it was held objection was not required.  (State v. Tereau (1975) 304 Minn. 71, 229 N.W.2d 27, 29.)   Ohio holds any waiver must be clearly voluntary.  (City of Columbus v. Woodrick (1976) 48 Ohio App.2d 274, 357 N.E.2d 58, 60.)

Further, the principal opinion necessarily accepts appellant's argument that no objection should be required because an objection would have been pointless.   The majority maintains that, in view of the fact a decision had been announced, subsequent argument could only attempt to unring the proverbial bell.   Acceding to appellant's contention has required the majority to conclude that the trial judge would not listen to such argument in good faith and with an open mind.   On the contrary, it must be presumed judges will properly perform their duties.  (Cf. Evid.Code, § 664;  Ross v. Superior Court (1977) 19 Cal.3d 899, 913, 141 Cal.Rptr. 133, 569 P.2d 727.)   In this regard, one California case has held that argument presented at a motion for a new trial was sufficient.  (People v. Aggie (1940) 37 Cal.App.2d 110, 113–114, 98 P.2d 806.)   Additionally, in a number of the out-of-state cases courts felt the case could be “reopened” (if a decision was made before argument) and argument then made.  (See, e. g., State v. Hale, supra, 472 S.W.2d 365;  State v. Rojewski, supra, 202 Neb. 34, 272 N.W.2d 920;  State v. Weippert, supra, 237 N.W.2d 1;  Swain v. State (Fla.App.1965) 172 So.2d 3, 5;  Commonwealth v. Cooper (1974) 229 Pa.Super. 52, 323 A.2d 255, 257;  People v. Daniels (1977) 51 Ill.App.3d 545, 9 Ill.Dec. 574, 577, 366 N.E.2d 1085, 1088.)   If the error can be corrected after a decision is made by way of a motion for a new trial or after reopening of the case I perceive no reason why the error could not be corrected by a delayed request for argument even though the judge had announced his intention to decide the case in a certain way.

I would affirm the judgment.


1.   The legal test of entrapment was changed in People v. Barraza (1979) 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947, from a subjective to an objective test.   The rule of that case was expressly made applicable only to trials that had not yet begun at the time the decision became final.  (Id., at fn. 5, p. 691, 153 Cal.Rptr. 459, 591 P.2d 947.)   Accordingly, the old test applies.

2.   Cases involving issues of search and seizures or lack of counsel at a lineup or failure to give warnings as to the right to counsel before custodial interrogation are all distinguishable.   In such situations, unlike the instant case, there is an opportunity to raise the issue.   Furthermore, such issues do not go to the basic right of the accused to make his defense which is a fundamental principle of due process of law.

3.   A reading of the cases discloses:  In State v. Hale (Mo.1971) 472 S.W.2d 365, there was some opportunity for counsel to have requested a closing argument prior to verdict (at p. 366 the court stated that a “short recess” took place).   A similar opportunity existed in Casterlow v. State (1971) 256 Ind. 214, 267 N.E.2d 552 (see Staton, P. J., conc. in Lee v. State (1977) Ind.App., 369 N.E.2d 1083, 1086, “Casterlow presumes that the opportunity to objection is available.”).   Even the majority in Covington, supra, 386 A.2d at 338, while refusing to hear the matter on appeal stated that the accused had a proper post conviction remedy under the Maryland statute.   In State v. Rojewski (1979) 202 Neb. 34, 272 N.W.2d 920, the judge said that he was going to take the matter under advisement for a day or two and counsel were to return to court at a time certain two days later (272 N.W.2d at 922).   In State v. Weippert (N.D.1975) 237 N.W.2d 1, the record was silent and the court decided there was no way of knowing whether in fact there was no opportunity to make a final argument.   In United States ex rel. Spears v. Johnson (3d Cir. 1972) 463 F.2d 1024, there was a judicial determination that there was no support in the state court record for a conclusion that Spears was denied his right to summation (see 463 F.2d at 1026, fn. 4).   In Commonwealth v. Cooper (1974) 229 Pa.Super. 52, 323 A.2d 255, 257 (a pre-Herring opinion) the appellate court considered that at most there was a misunderstanding as to the accused's intent to proceed without closing argument.  State v. Mann (Me.1976) 361 A.2d 897, 905, cites and relies in part on Hale, Spears, Casterlow, discussed above, along with Long v. City of Opelika (1953) 37 Ala.App. 200, 66 So.2d 126;  Henry v. State (1913) 10 Okl.Cr. 369, 136 P. 982, 986, and refers to Cole v. State (1916) 14 Ala.App. 71, 71 So. 616, Moore v. State (1969) 7 Md.App. 330, 254 A.2d 717 (overruled in Covington v. State (1977) 34 Md.App. 454, 367 A.2d 974, 980, to the extent Moore said a defendant may raise the issue of loss of the right to argue for the first time on appeal (affirmed in Covington v. State, supra, 386 A.2d 336, 339)), Rome v. State (1964) 236 Md. 583, 204 A.2d 674, and People v. Aggie, supra, 37 Cal.App.2d 110, 98 P.2d 806, mentioned hereinbefore.   Those additional cases, all of which antedate Herring, are not persuasive.   In Henry the record was silent on the subject of argument of counsel and the appellate court presumed that the argument was waived or carelessly omitted from the record.   The Oklahoma law provided that error must affirmatively appear from the record and the appellant had to affirmatively show error.   In Long 66 So.2d at 129, when the trial court found the defendant guilty and sentenced him, defense counsel called the court's attention to the fact that argument had not taken place.   When the court then inquired whether counsel wanted to argue and counsel replied, “No, sir, not now, I ask for a mistrial” the trial court withdrew the judgment and permitted argument.   Defense counsel retorted that “It would absolutely useless to argue the case if the court has made up his mind.   I ask for a mistrial.”   The court replied that the motion for mistrial was overruled.   The appellate court relied on a technicality that this proceeding was not really a “mistrial” and thus there was no error.   The case is highly technical in nature, is 22 years before Herring and states a conclusion without giving a reason.   In Cole, the defendant had affirmatively waived his right to argument.   In Rome there was argument on motions for judgment of acquittal and only incriminating evidence was thereafter presented.   In Moore the court followed Yopps and reversed the conviction.   In addition, in Mann the court stated that counsel had already argued fully his motion for acquittal and it would have been needless repetition to reargue the case to the court.

4.   The record must disclose the waiver.   Consequently, if something takes place in chambers or elsewhere on which a waiver can be based, the matter should thereafter be referred to on the record.

1.   In his brief appellant expressly states:  “Appellant does not however, allege that this failure to raise the defense of entrapment was due to trial counsel's incompetence, but argues instead that the court rendered his counsel ineffective by denying his counsel an opportunity to argue the crucial defense of entrapment before the court.”

2.   Penal Code section 1093, subdivision 5, provides:“5. When the evidence is concluded, unless the case is submitted on either side, or on both sides, without argument, the district attorney, or other counsel for the people, and counsel for the defendant, may argue the case to the court and jury;  the district attorney, or other counsel for the people, opening the argument and having the right to close.”  (Emphasis added.)

HOPPER, Associate Justice.

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