NO. 83-72A
INTHE SUPREME COURT OF THE STATE OFMONTANA 1984

STATE OF Plaintiff and Respondent,

VS

## . DALE LEO GLADUE, Defendant and Appellant.

Appeal from: District Court of theEighth Judicial District, Inand fortheCounty of Cascade Honorable Joel G.Roth, Judgepresiding. Counsel of Record:
For Appellant: Karl Nagel, Great Falls, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana J. Fred Bourdeau, County Attorney, GreatFalls, Montana

Submitted on briefs- October 19, 1983 Decided: February 16, 1984 

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### 'fjfj4 Filed: ' .-Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Dale Leo Gladue was convicted of attempt to commit burglary, a felony, after jury trial in the District Court, Eighth Judicial District, Cascade County. He and two other defendants were charged in the szme information,but Gladue

was tried separately. We reverse the conviction. On May 9, 1982, the Great Falls City Police Department received. a telephone report of a burglary taking place at Anderson Office Machines in Great Falls. The telephone call

was fromDick Pike,a formerdeputy sheriff, who lived across the alley from the Anderson business premises. Shortly before midnight, he had been attracted by some loud banging to look out the back window of his house. Across the alley he saw a lighta-ndmoving shadows at the ba.ckof the Anderson business. He immediately call-edthe sheriffk office to report thathebel-ievedaburglary was inprogress. While he talked on the telephone he informed the dispatcher that he

saw two men walking down the alley away from thepremises. A sheriff's deputy and the city police responded immediately and arrived at the scene "withinminutes." Deputy Sheriff Richard Donovan arrived inhis patrol car first. With its police lights blinki-ng, the patrol car turned into the alley near the Anderson business where Donovan observed "threemale subjects,"whobegan to run from him when he left his petrol car. He ordered them to halt. The one who stopped turned out to he David LaPier,one of the co-defendants here. Donovan put handcuffs on LaPier, and conducted a search, in which he found a small flashl.iqhton his person. The flashlightwas introduced into evidence in this case. Theother two individualsdisappeared.Pike,who had reported the apparent burglary, came out of his house after the police arrived, but within a few minutes, and in looking over his premises, found the defendant, Dale Gladue, crouching behind a wood pile. Pike took him into custody, and brought him to the deputy out in the alley. In the meantime another officer, in another yard, found defendant George Owens, and he was also taken into custody. The officers investigated the Anderson business premises. They found its back door open, thedoor knobbroken off, and the premises in darkness. In a later investigation they found two sets of footprintson the doormat at the back door entrance. The owner of theAnderson business later testified to the cost of replacing and repairing the damaged door and door jam, each apparently made of steel. The investigating officers found marks on the door jam and on the door which indicated apry had been used to force the door open. The next day, Pike,using a dog he owned trained to do police work, located a tire iron a short dista~cefrom the Anderson premises. The tire iron had no finqerprintson it, but its size and shapematched the marks made by the pry on theAnderson doorway. All three persons arrested were charged with felony attempt to commitburglary. Gladuewas tried separately. At his trial an expert photographer testified that he had taken prints from the footprints found on the doormat of the Anderson business and by comparing the same,could definitely identify the shoes worn by Owens as having made one set of the footprints on the doormat. The expert could not prove that the other footprints came from Gladue's shoes, but an officer opined that the square-toed footprint found 

### on thedoormat appeared to match the square-toed shoes worn by Gladue at the time. In making his opening statement to the jury, Gladue's defense counsel stated to the jury: "Now,the defendant will testify that he was simply walking down the alley coming from the bar on Tenth Avenue South to another bar downtown where hewasmeeting some friends. He was dropped off on Tenth Avenue South--did not have a car--that'swhere hewaswalking. Now he wi-1-1testify in the defense case which follows the State's.

# . .. Iambasically asking you to listen critically to the testimony that you are going to hear today and! to listen with an open mind awaiting to hear what the defendant has to sav, and perhaps listen with even a questioningmind 

# . .

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The Stateput on its case against the d-efendant,calling severalwitnesses. Neither of Gladue's co-defendants,Owens

or LaPier, were called to testify. In the defenda.ntls case-in-chief, the defendant called one witness, one Arthur Roach, but the defendant himself did not testify and there

were no other witnesses. The defense rested, and the State offeredno rebuttal. After settlement 

### of instructions came the closing arguments. In the course of his argument to the jury,the deputy county attorney stated: "A secondpecularity in this case is that Mr. Nagel has not proved what he set out to prove, as he stated in his opening statement. I took careful notes during the time of Mr. Nagel's opening statement, as did my co-counsel, and I have reviewed those notes prior to preparing my closing argument for you today. Mr. Nagel suggested to you that there would be no direct evidence in this case againstMr. Gladue,the defendant herein, but, of course, that is not true, ladies and gentlemen, because there was direct evidence, and Mr. Nagel also told you that the only evidence in this casewould. be against other individuals,and that isnot true either, even though there was evidence, both directand circumstantial, against Da.vid Lapier and George Owens, therewas alsoplentyof evidence against Mr. Dale Gladue in this case, so, of course, that wasn't true. Finally, Mr. Nagel told you that the defendant would testify that he was merely wa-lking down the alley, well, the clefendant did not testify at all in this case, especially as to that, and we don't know what the reason for that is. NOW, ladies and gentlemen, we must be careful here. The defendant is entitled to be presumed innocent until proven guilty, and that presumption carries through the entire trial in this case, and, of course, Mr. Gladue alsohas the right not totestify in this case, and. that ishisright, and that is a Constitutional right, and that isa rightof allof the citizensof this country, and we must not presume anything merely because he chose, or his counsel chose, not totestifyortake thewitness standinthiscase, sowe arenot todraw any in£ erence from that; however, Mr. Nagel did a.ssurein hisopening statement that the defendant would testify, and he did not, sohe did not follow through on what he said would be his proof. 

# . ."

No objectj-on was made by the defense counsel at this p0in.t. However, when defense counsel wa.smaking his closing summation tothejury, he statedon thispoint: 

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. . I said that there would be no evidence against the defendant, and I stated that the majority of the evidence would be against people who are not on trial here, and that is obviously true. The defendant did not testify in this case. The defendant does not need to testify. The law saysthatthedefend-ant has theright not totestify, and you are not tohold that against him. It isup to the State to carry the burden of proof, and they must prove, beyond a reasonable doubt every single element of the crime. 

# . .Now, thedefendant didnot testify. The defendant didn't have to testify. He did not testify for the purpose of trying tohide anything from you, but ratherhe didn't testifybecause he didn't need to. The reason: The state has not carried its burden of proof, and that's what I willtalk about now. 

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# ."Not content to let the matter rest, the deputy county attorney inhis rebuttal closing argument stated as follows: 

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.. Letme begin by just going through and numbering and listing for you the concessions that Mr. Nagel made when he was up here giving his finalargument to you. He conceded, firstof all, thathe did tellyou that Mr. Gladue, the defendant, would testify, and that he did not testify, and Mr. Nagel says that he did not do so because it was not necessary for him to testify. I am not going to comment beyond that, other than toremind you that Mr. Magel did not fulfill his assurance toyou in his opening, and he alsodidn't fulfillhis assurance toyou inregard towhat elsehe would prove in thecase. 

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The defendant was found guiltyby thejury and thecourt eventually entered judgment of conviction against him and sentenced him tofiveyears inprisonwith allbut sixmonths of that sentence suspended. On appeal Gladue raisesthefollowing issues forreview: 1. Was there sufficient evidence to support the jury verdict? 2. Did the State violate Gladue's Fifth Amendment rights by commenting in itsclosing arguments on his failure totestify? We will discuss first the issue of the comments by counsel on Gladue's not taking the witness stand in his defense. There can be no doubt thatthe comments by theprosecutor about the defendant not taking the stand were error. That is conceded by the State. The error was probably compounded by the remarlcs made by the defense counsel who also referred to it in his closing statement. The fact remains, however, that the comments were initiated by the prosecutor and were used by him a.gain in his closing summa.tion. Ineffect,theprosecutor solemnized "the silenceof the accused into evidence against him." Griffin v. California (19651, 380 U.S. 609 at 614, 85 S.Ct. 1229, 14 L.Ed.2d 106. The brief submitted by the State in this case states that it cannot argue that the prosecutor's intentwas not to comment adversely on the defendant's silence. The State does contend, however, that error notwithstanding, it was notprejudicial to thedefendant. The State contends that the prosecutor's comments added nothing to the impression that was a-lreadycreated by Gladue's failure to testify after the jury had been promised by his lawyer that he would take the stand. The State also contends that no relief should be granted because defense counsel offered no objection to theprejudicial commentsat the trial. The State's contention that the prosecutor's remarks cannot be prejudicial requires us to examine the cases bearing on such prosecutor's comments so thatwemay draw the necessary legal conclusions therefrom. In Griffin

### v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the United States Supreme Court set aside a judcpent of conviction holding that the federal constitution "forbids either comment by the prosecution on the accused's silence or instructionsby the court that such silence is evidence of guilt." 380U.S. at 615. In Chapman

### v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, the United States Supreme Court considered the additionalquestion,whetherwhen such remarks are made by aprosecutor so as to cause constitutionalerror, it must adopt a 

### per - se rule, that such error automatically required a reversal. The Chapman Court adopted the position that it would not adopt a 

### per - se rule, and that instead itwould look at such cases where error occurred and determine, "tha.tbefore a federal constitutional error can be held. harmless, the court must be able to declare a belief that it

was harmlessbeyond a reasonabledoubt." 386U.S. at 24. In Chapman, theUnited States Supreme Court found that the stat.e prosecutor's argument and the trial judge's instructions continuously and repeatedly impressed the jury that the silence of the defendanthad served as an irrefutablewitness against himself. 386 U.S. at 25. Therefore, it found tha.t the errorwas not harmless and reversed the conviction. The State in this case, however, relies on Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973. The facts in Lockett parallel to some extent the facts in Gladue. We determine that Lockett does not control this case,but it is necessary for us to discuss the case to show why. Lockett had been convicted in a felony murder case,and she was sentenced to death. The sta.tementof facts in the

case shows that: 

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. . In the course of the defense presentation, Lockett's counsel informed the court, in the presence of the jury, that he believed Lockett was to be the next witness and requested a short recess. After the recess,Lockett's counsel told the judge that Lockett wished to testify but had decided to accept her mother's advice to remain silent,despite her counsel's warninq that, if she followed that advice, she would have no defense except the cross-exzmination of the state's witnesses. Thus, the defense did not introduce any evidence to rebut the prosecutor's case." 438 U.S. at 592-93. Nothing further appears in the opinion as to what the prosecutor stated in his summation except the language of Chief JusticeBurger as follows:"At the outset, we address Lockett's various challenges to thevalidity of her conviction. Her first contention is that the prosecutor's repeated references in his closing remarks to the State's evidence as 'unrefuted'a.nd 'uncontradicted' constituted a comment on her failure on her part to testify and violated her Fifth and Fourteenth Amendment rights. See, Griffin v. California (giving citation)

# . We conclude, however, that the prosecutor's closing comments in this case did not violate constitutional prohibitions. Lockett

### 's own counsel had clearly focused the jury's attention on her silence, first by outlining her contemplated defense in his opening statement,and, second,by stating to the court and jury n.ear the cl-oseof the case, that L,ockettwould be the "next witness.

### " When viewed asainst this background, it seems clear that the prosecutor's closing remarks added nothing to the impression that had alreadybeen createdby Lockett's refusal to testify after the jury had been promised a defense by her lawyer a.ndtold that Lockett would take the stand." 438 U.S. at 594-95.

It is clear to us from the language used by the United States Supreme Court in Lockett, that the prosecutor did not comment on the failure of the defendant to take the witness stand, but rather commented on unrefuted evidence and uncontroverted testimony of the State's case. We have already held in this state that it is not a comment by a prosecutor on the d.efendantrs failure to take the standwhen the prosecutor, in summation, emphasizes the strength of the

case the State haspresented. Statev. Armstrong (1976),170 Mont. 256, 552 P.2d 616; State v. Dolan (Mont. 1980), 620 P.2d 355, 37 St.Rep. 1860. We have approved in those cases statements by the county attorney which argue that there is "no evidence," or "no testimony" to rebut the inferences raised by the state's evidence, and we have held that thisdoes not constitutea comment on the failure of the defendant, to testify. Since we find no comfort for the State in the Lockett case,we return to Chapman to consider a.gainthe test there imposed on us whether we can declare a belief that the remarks of the prosecutor were harmless beyond a reasonable doubt. We note parenthetically that Chapman held.that the harmless error rule becomes a federal question when it involves a claimed denial of rights guaranteed against invasion by the Fifth and Fourteenth Amendments to the United States Constitution. Chapman, supra, 386U.S. at 21. The State's case against Gladue is based upon circumstantial evidence. It is not iron-clad. The eye-witness to the attempted burglary, Pike, looking from his home across the alley, discerned a flashlight and moving shadows. He reported to the dispatcher that he saw two persons walking down the alley. When the police officer turned into the alley with his patrol car, he spotted three persons walking down the alley. Later,Gladue was apprehendedbehind a wood pile. The footprint expert coul-dnot prove that the footprints found on the doormatwere those of Gladue,althoughhe and another police officer testified that they "appeared"to he Gladue's footprints. Gladue appeared to be in fl.j.ghtat the time of his apprehension. On the other hand, the tire iron found near the scene, and.which matched the pry marks, was not connected with any of the defendants,but especially Gladue. No fingerprintswere on the tire iron. The flashlight was found on LaPier, and one set of footprints on the doormat were those of Owens. From the evidence, it appears undoubted that Gladue was at the scene of the attempted burglary. Whether he participated in the attempted burglarymay be open to question. He did not testify, and his two co-defendants could not be compel-ledto testify. Against that background, the comments of the prosecutor on his failure to testify loom larger inproportion and point tohis guilt. As a Court, therefore,we are unable to say beyond a reasonable doubt that the prosecutor's comments did not contribute to the guilty verdict against Gladue. On that basis,wemust reverse. There is indeed another significant fa.ctorin considering this kind of prejudicial error that was touched upon in People 

### v. Ross (Cal. 1967), 429 P.2d 606. Ross presents an interesting situation. The prosecutor commented on the failure of the defendant to take the stand, and the trial court instructed the jury inmuch the same manner as was done in Chapman. In considering whether prejudicial error had occurred, the majority of the California ccurt pointed out that without the testimony of the defendant, there were two possibilities th2.tthe jury might consider: the defendant

was guilty or the defendant had innocently gotten into a get-away car used in a robbery, in which the proceeds of the robbery were contained, and that the defendant's flight from the pol-ice,and the presence of the defendant in the robbery

car were purely fortuitous. The majority of the California court decided.that "given the fact that the defendant fled from the police and fired at them with a sawed-off shotgun similar to that used in the course of the robbery" the two possibilities evaporated into the inherently incredible, leaving no gap in the prosecution's case. 429 P.2d. at 614. The majority affirmed the decision. However, Chief Justice Traynor dissented, pointing out that under Chapman,more wasrequired than simply determining whether under the evidence the error isharmless. JusticeTra.ynorstated: 

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# . . it (Chapman) expressly rejected this court's reliance on overwhelming evidence to establish harmless error, a. rejection that can he explained only on the theory that a substantial error that might have contributed to the result cannot be deemed harmless regardless of how clearly it appears that the jury would have reach-edthe same resultby an error-free route had the erroneous route been denied it. Overwhelming evidence of guilt does not negate the fact that an error that constituteda substantial.part of the prosecution1 s case may have played a substantialpart in the jury's deliberation and thus contributed to the a.ctua1verdict reached, for the jury may have reached its verdict because of the error without considlering other reasons untainted hy error that would have supported the same result. (Citing cases.)

"In the present case, as i.nCha.pman,the comments and instruction on defendant's silence constituteda substantial part of the prosecution's case. It served to make defendant a witness against himself by usinghis silence to stifle thedoubts that might have been engendered by the inconsistencies in the prosecution's - case. (Citing Griffin). It denied defendant a substantial risht, for it served to deprive him oi his only defense. Under these circumstances the Attorney General has not established beyond a reasonable doubt that the verdict would have been the same in the absence of error.

# . ." 429 P.2d at 621-22.

A writ of certiorari was issued by the United States Supreme Court in People v. ROSS (19681, 391 U.S. 470, 88 S.Ct. 1850, 20 L.Ed.2d 750,and

### per curiam,without argument, the decision in Ross was reversed by the United States SupremeCourt, in effect sustainingtheposition taken by the dissenter,Chief JusticeTraynor.Eecause we determine that 

### we cannot say beyond a reasonable doubt that the prosecutor's comments in this case did not contribute to the verdict againstGladue,and because the error may have played a substantial.part in the jury's deliberation and thus contributed to the actual verdict reached,we reverse the convictionof Gladue.

We Concur:

Chief Jugti&

JusticesMr. Justice L.C. Gulbrandson dissenting.

I respectfully dissent. In my view, the prosecutor's statements made during final argument were not so prejudicial as to require reversal. The prosecutor clearly advised the jury that it was the defendant's constitutional right to not testify, even though defense counsel, in his opening statement, had requested that the jury "listen with an open mind awaiting what the defendant has to say." Defense counsel made no objection to the prosecutor's statements, and, in fact, he made three separate references in his closing argument that the defendant had not testified. The fact that no objectionswere made, nomotion for a mistrial was made, and no attempt was made to use this conduct as the basis for amotion for new trial,would seem to indicate that defense counsel did not consider the comments prejudicial prior to the jury returning a verdict of guilty and immediately thereafter. I would hold that, under Lockett, the effect of the prosecutor's comments was, at most, cumulative, and