PEOPLE v. REDMOND (1980)

Robert Stewart Redmond appeals from a judgment of conviction entered on a jury verdict finding him guilty of assault with a deadly weapon (Pen.Code, s 245(a)).

Evidence produced at trial revealed that Leon Shubert, the victim of the knife wound, had known appellant for ten years. Appellant lived with his mother in his mother's house on Fresno Street in Berkeley.

At about 10:00 p. m. on May 1, 1978, Shubert drove to appellant's house to return an automobile that appellant had loaned to him. Shubert, who had brought a six-pack of beer, entered the kitchen to visit. Shubert and appellant went into the garage where they each consumed three beers and then drank two-thirds of a bottle of whiskey. Shubert testified that he was feeling “pretty good.”

At approximately 1:30 a. m., the two men drove to the liquor store to get wine, then returned to the garage and finished the bottle of wine.

There is conflict in the record concerning where and how Shubert was wounded. Shubert declared there had been no argument prior to the time of the stabbing. The victim testified that while in the garage he turned toward the workbench to extinguish a cigarette. He stated: “As I turned around, I turned around with my back to the bench and I saw his head right about here and the knife was already going into me.” He recalled that after being stabbed he opened the main garage door and started walking down the driveway. Appellant then steered him into the kitchen.¹ Shubert, accompanied by appellant, left the kitchen, walked down the driveway and continued to walk down Fresno Street. At Solano Avenue appellant returned to the house and Shubert went to a phone booth.

Shubert called the operator, who connected him with the dispatcher at the Berkeley Police Department. When asked by the dispatcher on two occasions who stabbed him, he replied that he did not know. When the dispatcher asked him where he was stabbed, he told her that he had been stabbed at a bus stop.

Shubert testified that about two years prior to the incident he had blackouts and would end up in the drunk tank, not knowing how he got there. He stated that just before the incident he was drinking two to three times a week with appellant. Appellant also had a drinking problem and Shubert tried to talk him into a dryout program.

Appellant testified that on the night in question Shubert came to visit him and they were in the garage drinking. After a while, appellant walked his dog then went into the house to lie down. About an hour later he went back to the garage. Shubert seemed intoxicated. His words were slurred; he was not steady on his feet. Appellant saw that Shubert had been throwing a knife into a workbench and had cut his finger or hand. The knife was sticking in the bench. Appellant went back into the house to ask his mother for bandages for Shubert's hand. Appellant reentered the garage, pulled the knife out of the workbench and told Shubert to come into the house to clean his hand. They exited through the side door of the garage which leads to the backyard and up to the kitchen. Appellant walked in front of Shubert, knife in hand. Just as appellant was turning around in the kitchen, Shubert either slipped or fell against him and went into the knife.

Appellant testified he went into the bedroom to get his car keys and told his mother he was taking Shubert to the hospital. It took him about a minute to find his car keys which were in a pair of pants. Although appellant was gone for only two minutes, when he returned to the kitchen Shubert was gone. He looked for him in the garage, in front of the house, in the backyard, and up and down the street. He then went back to the kitchen, opened a can of beer and started to clean up the kitchen. When appellant was asked why he made no further attempts to find Shubert, the prosecutor's objection on the grounds of relevancy was sustained.

Appellant's mother testified that on the night in question she ate dinner with her son, cleaned up and disposed of a paring knife because it was old and dull. She went to bed around 8:00 p. m. and was awakened by appellant, who asked for bandages for Shubert. She went to the kitchen, got a roll of bandages, put them on the sink and went back to bed, never seeing the victim. She was later awakened by voices in the kitchen. She went back to sleep and was awakened again when appellant came to her door. He told her that he was taking Shubert to the hospital. She heard sirens and stayed in bed. She went outside when requested to do so by the Berkeley police.

Appellant's sister testified that she saw blood on the workbench in the garage, that she saw the trail of blood on the steps at the back door of the house and that she saw holes in the workbench, which she had not previously seen.

An identification technician testified that there was a trail of blood from the main garage door to the side door of the house, and no blood at the side door of the garage.

Officer Gillis, an Albany police officer, responded to assist Shubert. Outside the presence of the jury, Gillis testified that when he asked Shubert who stabbed him, Shubert replied, “I don't know.” The defense counsel argued that the statement was admissible as a spontaneous declaration or under the prior identification exception. The court ruled that there is a “tremendously low degree of probability” that the statement was made in direct response to Gillis' question, and thus did not allow the statement.

Officer Hector Zavala, a member of the Berkeley Police Department who also responded to Shubert's call, testified that he asked Shubert who had stabbed him and where the stabbing had occurred. Shubert replied that he needed a doctor. He was in apparent shock and was not making coherent statements. There was an alcohol odor on his breath and he slurred his words.

Officer Zavala then followed a trail of blood to appellant's house. The police dispatcher called the residence, asking appellant to step outside. As soon as he stepped outside he was handcuffed. Appellant's mother exited from the house and gave Officer Zavala permission to search the house. The officers observed blood on the back door and in the wash room near the porch. On the counter in the kitchen they found some gauze with blood stains, and in the wastebasket, a brown paper bag with a knife inside. Officer Zavala asked Mrs. Redmond if he could search the garage. Appellant stated they could not search the garage without a warrant. Mrs. Redmond gave the officers permission to search the garage, and handed Zavala the key to the garage. The police found some old sheets with blood stains on them near the workbench. There were also blood stains along a counter near the workbench. The officer noticed holes on the workbench in the garage.

Shubert was admitted to the Herrick Hospital Emergency Room at 3:17 a. m. Doctor Steinbach, an emergency room doctor, testified that Shubert had been stabbed below the left lower rib, that the direction of the wound was down, towards the abdomen. Dr. Steinbach summoned a surgeon. Just before the victim was taken to the operating room, he stated “Robert Redmond” and also the word “stabbed.” Defense counsel's hearsay objection to the admission of that statement was overruled under the spontaneous declaration exception to the hearsay rule.

The attorneys stipulated that Shubert previously told the doctors at the hospital that he was approached and stabbed at a bus stop after being in a bar and having several drinks.

On appeal, appellant contends that the trial court erred in denying him the right to present evidence in his defense. The crux of appellant's contention is that by the erroneous exclusion of relevant evidence, the court thwarted his attempt to put on an adequate defense. The theory of the defense was that the stabbing was an accident. The line of questioning stopped by the trial court consisted of an attempt to elicit testimony from appellant as to why he did not make further attempts to find Shubert after the stabbing.

It is fundamental in our system of jurisprudence that all of a defendant's pertinent evidence should be considered by the trier of fact. (People v. Mizer (I 61) 195 Cal.App.2d 261, 269, 15 Cal.Rptr. 272.) While the trial court has broad discretion under Evidence Code section 352, it is not unlimited. (People v. Ross (1979) 92 Cal.App.3d 391, 407, 154 Cal.Rptr. 783.) The truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the weight of such testimony for the jury or the court. (Washington v. Texas (1967) 388 U.S. 14, 22, 87 S.Ct. 1920, 1924-1925, 18 L.Ed.2d 1019.) An accused is entitled to have received in evidence and considered by the jury all competent, relevant, and material evidence on any material issue. (Ponce v. Marr (1956) 47 Cal.2d 159, 163, 301 P.2d 837; R. J. Cardinal Co. v. Ritchie (1963) 218 Cal.App.2d 124, 146-147, 32 Cal.Rptr. 545.) The general test of relevancy of evidence in a criminal case is whether or not it tends logically, naturally and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. Evidence is relevant when, no matter how weak it may be, it tends to prove the issue before the jury. (People v. Slocum (1975) 52 Cal.App.3d 867, 891, 125 Cal.Rptr. 442.)

In the instant action, the question appellant was precluded from answering was relevant to shed light upon his state of mind. We have a situation where the testimony of the appellant and the victim as to the way in which the stabbing occurred is in direct conflict. Therefore, the appellant's state of mind is a critical issue.

The subsequent conduct of a defendant following a fatal injury is entitled to consideration by the jury. (People v. Ogg (1958) 159 Cal.App.2d 38, 51, 323 P.2d 117.) Appellant's subsequent acts were relevant to show whether his account of the incident was true or untrue. (People v. Roberts (1926) 79 Cal.App. 506, 513, 250 P. 208.) In People v. Brown (1921) 53 Cal.App. 664, 666, 200 P. 727, defendant admitted a killing although he claimed it was accidental and not intentional. The court held that any evidence was material that tended to show the commission of the act was prompted by a motive inconsistent with innocence. Hence, in the instant case, appellant's testimony was material in that it tended to show a state of mind inconsistent with appellant's guilt. Respondent argues that the objection to the question of why appellant made no further efforts to find Shubert was properly sustained. At oral argument, respondent claimed appellant was permitted to testify that he thoroughly exhausted all efforts “to find” Shubert and that accordingly, the question was redundant.

In fact, the record belies this assertion. Appellant testified that after the stabbing he looked for Shubert in the garage and in the backyard. He also proceeded to the end of the driveway by his mother's car and looked down the street. He did not testify that he had exhausted all efforts to find Shubert. Moreover, the basis for the prosecutor's objection was that the evidence was irrelevant, not that it was cumulative.

Evidence Code section 354, subdivision (a), states in pertinent part that a verdict shall not be reversed, by reason of the erroneous exclusion of evidence unless the substance, purpose, and relevance of the excluded evidence was made known to the court by the question asked, an offer of proof, or by any other means.

Respondent argues that appellant is foreclosed from challenging on appeal the trial court's ruling on the objection since he failed to make an offer of proof. However, an offer of proof is not necessary when appellant asks the question in such form that it clearly discloses its purpose, relevancy and materiality. (Witkin, Cal.Evidence (2d ed. 1966) s 1312, p. 1212.) Under the circumstances presented here, the making of a formal offer of proof was not a prerequisite to a review of the propriety of the exclusion. While it is true that the trial court could not assume the happenings which defense counsel sought to adduce or the reasons for them, it was prejudicial error to prevent defense counsel from proving those matters by the testimony which he sought to elicit from his witness. (People v. Rowland (1968) 262 Cal.App.2d 790, 798, 69 Cal.Rptr. 269.)

Respondent relies upon People v. Demond (1976) 59 Cal.App.3d 574, 130 Cal. Rptr. 590, and People v. Thomas (1970) 3 Cal.App.3d 859, 83 Cal.Rptr. 879, for the proposition that a formal offer of proof is a prerequisite to a review of the error on appeal. However, in Demond and Thomas, the questions asked did not in themselves apprise the court of their relevancy. It was not until the appellate stage that the argument advanced by counsel shed light upon the relevancy of the offered testimony. Respondent argues that the question as phrased was not relevant but would have been if counsel had asked why the appellant did not make further attempts to “aid” rather than “find” Shubert after the stabbing. Clearly finding someone is a prerequisite to aiding him. Thus, this argument is not convincing. We agree with appellant that as a condition of review the proponent need not make a formal offer of proof within the strict sense of that phrase. (See Evid.Code, s 354, subd. (a).) In the oral proceedings, appellant set forth the theory upon which he based his offer. The trial court was adequately apprised of the relevancy of the question and no further showing in the way of an offer of proof was required. (People v. Nemie (1978) 87 Cal.App.3d 926, 930, 151 Cal.Rptr. 32.)

In the instant case, the prosecutor commented to the jury that appellant did not call an ambulance or help Shubert after he was stabbed. Appellant argues that the prosecutor's comments were manifestly unfair and should be cited by this court as misconduct.

Misconduct of a prosecutor may consist of improper remarks in the opening statement, improper examination or improper argument. (Witkin, Cal.Crim. Procedure (1963) s 748, p. 722.)

In People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, our Supreme Court set forth the appropriate inquiry to be made in all cases in which a defendant complains of prosecutorial misconduct. “ (T)he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected (citation); if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution. (Citations.)” (Id. at p. 34, 164 Cal.Rptr. 1, 609 P.2d 468.)²

Turning to the facts of the case at bar, we apply the foregoing analysis to the prosecution's remarks as to which appellant Redmond made no objection at trial. The District Attorney objected to the introduction of appellant's testimony as to why he did not make further attempts to find Shubert after the stabbing. Later, he commented to the jury on three occasions during his closing argument, “He then-he can't find the guy, so then he doesn't call the police, he doesn't inform the fire department, but just goes into the kitchen and opens a beer and starts to clean up. This is a friend he has known for ten years.”

Under the Green analysis, appellant is deemed to have waived the objection and the point cannot be raised on appeal. It is improper for the prosecutor to comment on appellant's failure to produce evidence after he himself has prevented the defendant from producing the evidence. (People v. Asta (1967) 251 Cal.App.2d 64, 88-89, 59 Cal.Rptr. 206; People v. Randolph (1957) 147 Cal.App.2d Supp. 836-845, 306 P.2d 98.) However, appellant failed to object to the remarks. The harm flowing therefrom could have been cured by appropriate admonition. “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.’ ” (People v. Green, supra, 27 Cal.3d at p. 27, 164 Cal.Rptr. 1, 609 P.2d 468.)

However, the prejudicial effect of the erroneous exclusion of evidence was compounded by the trial court's rendition of CALJIC No. 2.62, instructing the jury that it could draw adverse inferences from the defendant's failure to explain or deny evidence against him.³

“ ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. (Citation.) ’ ” (People v. Saddler (1979) 24 Cal.3d 671, 681, 156 Cal.Rptr. 871, 597 P.2d 130.) Our duty is to ascertain if appellant failed to explain or deny any fact of evidence that would render CALJIC No. 2.62 applicable. We find that there is no indication that appellant failed to explain or deny any facts within his knowledge which would have shed further light on the incident. There were contradictions between appellant's testimony and that of the prosecution witness, but a contradiction is not a failure to explain or deny. (Id., at p. 682, 156 Cal.Rptr. 871, 597 P.2d 130.) We reject respondent's contention that there were other material gaps in appellant's explanation of his conduct in the crucial period. It is suggested for example that defendant failed to explain why he did not summon an ambulance for Shubert. However, this question was not asked.⁴ Furthermore, the court erroneously sustained an objection to a question that may have shed light on that matter.⁵

Appellant next contends that the prosecutor improperly argued to the jury that appellant's exercise of his Fourth Amendment rights to be free from warrantless searches and seizures was evidence of consciousness of guilt.

Officer Zavala testified that he requested permission from Mrs. Redmond to search the garage area when appellant stated that he could not search the residence without a warrant. In closing argument the prosecutor made as many as six references to the fact that appellant asserted his Fourth Amendment right as evidence of guilt.⁶

Defense counsel requested that the court instruct the jury as follows: “It is the constitutional right of every citizen to voice objection to the warrantless search of his or her residence and you must not draw any inference of guilt from the fact the defendant objected to the warrantless search of his residence nor should this fact be discussed by you or enter in your deliberations in any way.” Upon the prosecutor's objection, the court denied the instruction.

The question of whether a defendant's assertion of the Fourth Amendment right to be free from warrantless searches and seizures may be used by the prosecution to infer that the defendant acted with a guilty conscience appears to be an issue of first impression for California courts.

In Griffin v. California (1965) 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106, the United States Supreme Court held that the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. (See also, Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91; People v. Andrews (1970) 14 Cal.App.3d 40, 92 Cal.Rptr. 49.) The Griffin court reasoned that comment on the defendant's refusal to testify is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. (380 U.S. at p. 614, 85 S.Ct. at pp. 1232-1233.) “The purpose of the Griffin rule is to prevent the accused's exercise of his constitutional privilege against self-incrimination from being judicially emphasized as affirmative evidence against him.” (People v. Brady (1969) 275 Cal.App.2d 984, 992, 80 Cal.Rptr. 418.)

We find the instant case analogous to Griffin. The prosecution's extensive references to appellant's assertion of his Fourth Amendment privilege to be free from warrantless searches and seizures is in effect a penalty imposed on appellant for exercising his constitutional right to object to a warrantless search.

In his concurring opinion in United States v. Grunewald (1957) 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, Justice Black stated: “I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them.” (P. 425.)

In California, our Supreme Court has indicated that refusal to permit a warrantless search may not be considered as probable cause for arrest (Tompkins v. Superior Court (1963) 59 Cal.2d 65, 68, 27 Cal.Rptr. 889, 378 P.2d 113; see also, People v. Cressey (1970) 2 Cal.3d 836, 841, fn. 6, 87 Cal.Rptr. 699, 471 P.2d 19); nor may it constitute a violation of Penal Code, section 148 (People v. Wetzel (1974) 11 Cal.3d 104, 113 Cal.Rptr. 32, 520 P.2d 416.)

Federal court decisions have been more on point. In United States v. Prescott (9th Cir. 1978) 581 F.2d 1343, defendant was convicted of being an accessory after the fact by assisting a suspected felon in order to prevent his arrest. On appeal, defendant claimed that her refusal to let police enter her apartment without a warrant was constitutionally protected and should not have been considered as evidence of guilt. The court held it was prejudicial error to permit the government to prove, as evidence of the offense charged, that defendant declined to let police enter her apartment without a warrant.

With respect to defendant's assertion of Fourth Amendment rights, the court concluded that one cannot be penalized for passively asserting this right, regardless of one's motivation. (United States v. Prescott, supra, 581 F.2d at p. 1351.) “The Amendment gives him a constitutional right to refuse to consent to entry and search. His asserting it cannot be a crime.” (Ibid.) The majority reasoned, “If the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right and future consents would not be ‘freely and voluntarily given.’ ” (Ibid.)

The People do not appear to object to the proposition that it is improper to comment on a defendant's assertion of his Fourth Amendment privilege. Rather, respondent argues that appellant did not assert his Fourth Amendment right, but attempted to convince his mother to assert her Fourth Amendment right. Respondent points to testimony during both the preliminary hearing and the trial when appellant testified that he told his mother not to let the police search without a warrant. However, there is ample testimony that, in addition to telling his mother not to allow the police to search without a warrant, appellant directly told the police that he did not want them searching without a warrant.

Respondent also contends that even if appellant attempted to exercise his right, he was not in a position to claim that the police did not have a right to search the premises, since the officers were led to the house by a fresh trail of blood, clearly an exigent circumstance. While this argument might be pertinent to whether there was a legal search, it is not relevant to the issue presented. We are not here dealing with the exclusionary rule; rather, we are concerned with whether testimony that an alleged criminal attempted to exercise a constitutional right may be considered as evidence of consciousness of guilt. Following the reasoning in Prescott, we find that it is impermissible to penalize a criminal defendant for exercising a constitutional privilege.

Appellant also argues that the prosecutor committed prejudicial error by arguing that appellant's exercise of his Fifth Amendment right against self-incrimination was evidence of consciousness of guilt. Although Mrs. Redmond's discarded paring knife was found in the kitchen, the knife which stabbed Shubert was later found in appellant's bedroom. During cross-examination of appellant the prosecutor asked when the first time was that he had told anyone that the knife that cut Shubert was in his bedroom. Over defense counsel's objection, the prosecutor elicited the response that the first time appellant mentioned the knife to anyone was in late June, two months after the incident.

During closing argument the prosecutor argued to the jury that the delay in appellant's informing his attorney about the knife was further evidence of a guilty consciousness.⁷

In People v. Andrews, supra, 14 Cal.App.3d 40, 92 Cal.Rptr. 49, defendant was tried and convicted of first degree robbery of a service station. At trial, the prosecutor elicited testimony of a deputy sheriff that defendant had refused to make a pretrial statement and, in an attempt to discredit defendant's defense that he was asleep in the back of a car at the time of the robbery, interrogated him on cross-examination as to whether he had made a pretrial disclosure to anybody of his defense. In reversing the judgment, the appellate court found that the prosecutor had embarked on a calculated effort to convert the defendant's silence into a tacit admission of guilt (p. 48) and held that “(b)y eliciting the deputy sheriff's testimony that defendant had refused to make a statement, the prosecutor committed a flagrant violation of defendant's right to remain silent ” (P. 47, 92 Cal.Rptr. 49.)

In the present case, appellant had a constitutional right not to disclose any matter concerning his defense except with his attorney during preparation for trial. It is fundamentally unfair and a deprivation of due process to allow an arrested person's silence to be used to impeach his trial testimony. (Doyle v. Ohio, supra, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91.)⁸ By commenting on appellant's assertion of the privilege in closing argument, the prosecution committed constitutional error, in that the effect of the comment was to chill the assertion of appellant's Fifth Amendment right to remain silent.

Thus, we find that several errors were committed in the trial below. In a close case, the cumulative effect of multiple errors may be sufficient to warrant the conclusion of an unfair trial and hence a miscarriage of justice. (People v. Buffum (1953) 40 Cal.2d 709, 726, 256 P.2d 317; People v. Craig (1978) 86 Cal.App.3d 905, 921, 150 Cal.Rptr. 676.) Here, appellant flatly denied an intentional stabbing of Shubert. The jury had to resolve the question of credibility between two witnesses, and only two witnesses. To circumstantially support his denial of an intentional stabbing appellant testified on his own behalf but was erroneously precluded from answering the question of why he did not make further attempts to find and thus aid Shubert after the stabbing. “When the case depends on a determination of whether one prosecution witness or the defendant is to be believed by the jury, one error which deprives the defendant of evidence which circumstantially supports the defendant's testimony and another error which tends erroneously to impeach him cannot be said not to be prejudicial.” (People v. Roberson (1959) 167 Cal.App.2d 429, 432, 334 P.2d 666, emphasis in original.) The above errors clearly resulted in a miscarriage of justice. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Furthermore, the prosecution commented that appellant's exercise of his Fourth and Fifth Amendment rights demonstrated consciousness of guilt. Applying the federal harmless error test enunciated in Chapman v. California (1966) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, we have no doubt that these errors were not harmless.

Judgment is reversed.

FOOTNOTES

1.  At the preliminary hearing Shubert testified that he had not been in the kitchen, but explained at trial that after seeing a photograph of the kitchen his memory was jarred.

2.  In Green, supra, the court examined each remark in context and was of the view that any harm flowing therefrom could have been cured by appropriate admonition. Accordingly, the point was deemed waived.

3.  The judge instructed the jury as follows:“In California, it is the constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. In this case the defendant has elected to and has testified as to certain facts. If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable.“In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proof in every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.”

4.  Relying on People v. Perez (1967) 65 Cal.2d 615, 55 Cal.Rptr. 909, 422 P.2d 597, and People v. Ing (1967) 65 Cal.2d 603, 55 Cal.Rptr. 902, 422 P.2d 590, respondent argues that the defendant need not be asked to explain, in order to render his failure to explain or deny a proper subject for argument and instruction. However, Perez and Ing, supra, are clearly distinguishable. In both cases the prosecution attempted to elicit an explanation from the defendant during cross-examination but the trial court improperly sustained an objection to the question. In the instant case, no such attempt to ask the defendant to explain or deny was made.

5.  There were no facts or evidence in the prosecution's case within appellant's knowledge which he failed to explain or deny. The victim testified that he was stabbed in the garage and subsequently opened the garage door. It is asserted that the appellant failed to explain why the garage door was shut and locked when the officers arrived. The fact that the door was shut and locked was entirely consistent with appellant's testimony that he and Shubert left through the side door of the garage. Furthermore, when defense counsel asked appellant how the garage door could be opened from the inside if it were locked from the outside, respondent objected to the question as irrelevant. Appellant further explained about the blood in the garage and the stains on the white sheet in the garage. The appellant was never asked why the stab wound was downward rather than upward.

6.  The prosecutor argued: “Now, at this point you have essentially a big white sheet, two sheets put together with four large areas of blood, human type O, which is the same blood type as the victim. Now, this statement, this particular piece of evidence, must be taken in light of Mr. Redmond's statement when the police officers came to the house, Mrs. Redmond gave them permission to come in, search the house for other people and then later gave them permission to search the garage. Mr. Redmond is sitting there saying, ‘Don't let them search the house without a warrant.’ Now that particular statement is essentially saying that Mr. Redmond knew that there was incriminating evidence within that house....“Essentially what that shows is again the defendant's state of mind, what he was thinking about, how he could hide and conceal, that should be taken in light of the defendant's statement, ‘Don't let them search the house without a warrant.’...“Now, again he testified that Mr. Redmond says, ‘Don't let them search the house without a warrant.’ Now ask yourselves, if you were in Mr. Redmond's shoes and that Mr. Shubert had just simply fallen for some unknown reason into a knife and severed his liver and that it was an accident and you were completely innocent of any type of conduct, would you say to a police officer, ‘Don't let them search the house?’ Is that consistent with an innocent state of mind or is that consistent with someone who is in fact trying to convince the mother not to let them search the house because there is incriminating evidence all over the place? I submit to you that it is the latter...“Now ask yourselves a question: If you were innocent if you had nothing to hide, would you say, ‘Don't let them search the house unless they have a search warrant?’...“Now circumstantial evidence is important in this case because it shows you-it is the only way I can show you someone's state of mind ... Essentially what evidence do we have to show state of mind (P) ...The second is, ‘Don't let them search the house unless they have a search warrant.’ He is saying he is concealing the evidence involved, the knife...“Now Mrs. Redmond from the testimony of all of the witnesses appeared to me to be acting just like you and I would act, that she has nothing to hide, so she let them search. Again, I am emphasizing that that particular statement is not Mr. Redmond's true and accurate and honest exercising of a constitutional right, that is, in fact, him trying to hide the fact that there is a lot of incriminating evidence in that house and essentially he did not have enough time to clean it all up.”

7.  The prosecutor argued: “So, essentially what you have is that the police go in to try to find the knife, any kind of knife. They don't know the kind of stab wound, whether it is deep or whether it was shallow. They knew it was serious and we don't find out there is another knife until we are in trial three months later. (P) This happened May 2nd and where are we now. We are in August. Now what this essentially shows is that Mr. Shubert-Mr. Redmond essentially knew there was incriminating evidence, that he had already hidden the knife, he had started to wipe up the blood in the kitchen (P) now it could be that what Mr. Redmond did was after the stabbing, started to clean up, started to conceal and hide evidence, the knife taken from his dresser drawer, that is why he didn't hide the knife in the garage (P) Essentially what that shows is again the defendant's state of mind, what he was thinking about, how he could hide and conceal, that should be taken in light of the defendant's statement, ‘Don't let them search the house without a warrant.’ ”Later, the prosecutor continued this line of argument:“Now the police then arrive shortly later and he is arrested. The first time he tells his attorney about the knife involved in this case is in late June. This occurred in early May.“Now ask yourself a question: If you were innocent, if you had nothing to hide, would you say ‘Don't let them search the house unless they have a search warrant?’ If you were innocent and you were not guilty of what they had arrested you for, would you wait that long to tell somebody who can do something for you about getting out, would you be sitting there in custody that long? I don't think any reasonable man or woman would do that. You would say something.”Finally, the prosecutor argued:“Now circumstantial evidence is important in this case because it shows you-it is the only way I can show you someone's state of mind Essentially what evidence do we have to show state of mind (P) The second is, ‘Don't let them search the house unless they have a search warrant.’ He is saying he is concealing the evidence involved, the knife, not revealing the identity of the knife until three months later to us.”

8.  The circumstances here are clearly distinguishable from those in the recent case of Jenkins v. Anderson (1980) 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86, wherein the U. S. Supreme Court held that a defendant who elects to testify in his own behalf waives any Fifth Amendment objection to the use of his prearrest silence for the purpose of impeachment. In the instant action, appellant was handcuffed and taken into custody when he exited the house. Accordingly, the prosecutor's comments on appellant's failure to disclose the existence of the knife concerned periods of time after appellant was arrested.

MILLER, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.