NO. 83-72A 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF 

Plaintiff and Respondent, 

VS . 

DALE LEO GLADUE, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable Joel G.Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Karl Nagel, Great Falls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Submitted on briefs- October 19, 1983 

Decided: February 16, 1984 

FF 8 1, -; '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 from Dick Pike, a former deputy 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 light a-nd moving shadows at the ba.ck of the Anderson 

business. He immediately call-ed the sheriff k off ice to 

report that he bel-ieved a burglary was in progress. While he 

talked on the telephone he informed the dispatcher that he 

saw two men walking down the alley away from the premises. A 

sheriff's deputy and the city police responded immediately 

and arrived at the scene "within minutes." 

Deputy Sheriff Richard Donovan arrived in his patrol car 

first. With its police lights blinki-ng, the patrol car 

turned into the alley near the Anderson business where 

Donovan observed "three male subjects," who began 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.iqht on 

his person. The flashlight was introduced into evidence in 

this case. The other two individuals disappeared. 
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, the door knob broken off, 

and the premises in darkness. In a later investigation they 

found two sets of footprints on the doormat at the back door 

entrance. The owner of the Anderson 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 a pry 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~ce from the 

Anderson premises. The tire iron had no finqerprints on it, 

but its size and shape matched the marks made by the pry on 

the Anderson doorway. 

All three persons arrested were charged with felony 

attempt to commit burglary. Gladue was 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 the 
doormat 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 he was meeting 

some friends. He was dropped off on 

Tenth Avenue South--did not have a 

car--that's where he was walking. Now he 

wi-1-1 testify in the defense case which 

follows the State's. . . . I am basically 

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 

questioning mind . . ." 

The State put on its case against the d-efendant, calling 

several witnesses. 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 

offered no rebuttal. 

After settlement of instructions came the closing arguments. In the course of his argument to the jury, the deputy 

county attorney stated: 

"A second pecularity 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 

against Mr. 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 case would. 

be against other individuals, and that is 
not true either, even though there was 

evidence, both direct and circumstantial, 

against Da.vid Lapier and George Owens, 

there was also plenty of 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 also has the right not to testify 

in this case, and. that is his right, and 

that is a Constitutional right, and that 

is a right of all of the citizens of this 

country, and we must not presume anything 

merely because he chose, or his counsel 

chose, not to testify or take the witness 

stand in this case, so we are not to draw 

any in£ erence from that ; however, Mr. 

Nagel did a.ssure in his opening statement 

that the defendant would testify, and he 

did not, so he 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.s making his closing 

summation to the jury, he stated on this point: 

". . . 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 says that the defend-ant 

has the right not to testify, and you are 

not to hold that against him. It is up 

to the State to carry the burden of 

proof, and they must prove, beyond a 

reasonable doubt every single element of 

the crime. . . Now, the defendant did not 

testify. The defendant didn't have to 

testify. He did not testify for the 

purpose of trying to hide anything from 

you, but rather he didn't testify because 

he didn't need to. The reason: The 

state has not carried its burden of 

proof, and that's what I will talk about 

now. . ." 
Not content to let the matter rest, the deputy county 

attorney in his rebuttal closing argument stated as follows: 

". . . Let me begin by just going through 

and numbering and listing for you the 

concessions that Mr. Nagel made when he 

was up here giving his final argument to 

you. He conceded, first of all, that he 

did tell you 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 to remind 

you that Mr. Magel did not fulfill his 

assurance to you in his opening, and he 

also didn't fulfill his assurance to you 

in regard to what else he would prove in 

the case. . ." 

The defendant was found guilty by the jury and the court 

eventually entered judgment of conviction against him and 

sentenced him to five years in prison with all but six months 

of that sentence suspended. 

On appeal Gladue raises the following issues for review: 

1. Was there sufficient evidence to support the jury 

verdict? 

2. Did the State violate Gladue's Fifth Amendment 

rights by commenting in its closing arguments on his failure 

to testify? 

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 that the comments by the prosecutor 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. In 
effect, the prosecutor solemnized "the silence of 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 intent was not to comment 

adversely on the defendant's silence. 

The State does contend, however, that error notwithstanding, it was not prejudicial to the defendant. The State 

contends that the prosecutor's comments added nothing to the 

impression that was a-lready created 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 the prejudicial comments at 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 that we may 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 instructions by the court that such 

silence is evidence of guilt." 380 U.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 additional question, whether when such remarks 

are made by a prosecutor so as to cause constitutional error, 

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 it 
would look at such cases where error occurred and determine, 

"tha.t before a federal constitutional error can be held. 

harmless, the court must be able to declare a belief that it 

was harmless beyond a reasonable doubt." 386 U.S. at 24. In 

Chapman, the United 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 defendant had served as an irrefutable witness 

against himself. 386 U.S. at 25. Therefore, it found tha.t 

the error was 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.tement of facts in the 

case shows that: 

". . . 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 Justice Burger as follows: 
"At the outset, we address Lockett's 

various challenges to the validity 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-ose of the 

case, that L,ockett would 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 

already been created by Lockett's refusal 

to testify after the jury had been promised a defense by her lawyer a.nd told 

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 stand when 

the prosecutor, in summation, emphasizes the strength of the 

case the State has presented. State v. 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 this 
does not constitute a 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.gain the 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, 386 U.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 apprehended behind a wood 

pile. The footprint expert coul-d not prove that the footprints found on the doormat were those of Gladue, although he 

and another police officer testified that they "appeared" to 

he Gladue's footprints. Gladue appeared to be in fl.j.ght at 

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 fingerprints were 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 burglary 
may be open to question. He did not testify, and his two 

co-defendants could not be compel-led to testify. Against 

that background, the comments of the prosecutor on his 

failure to testify loom larger in proportion and point to his 

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, we must reverse. 

There is indeed another significant fa.ctor in 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 in much 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.t the 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 was 
required than simply determining whether under the evidence 

the error is harmless. Justice Tra.ynor stated: 

". . . 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-ed the same result by an 

error-free route had the erroneous route 

been denied it. Overwhelming evidence of 

guilt does not negate the fact that an 

error that constituted a substantial. part 

of the prosecution1 s case may have 

played a substantial part in the jury's 

deliberation and thus contributed to the 

a.ctua1 verdict 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.n Cha.pman, the 

comments and instruction on defendant's 

silence constituted a substantial part of 

the prosecution's case. It served to 

make defendant a witness against himself 

by using his silence to stifle the doubts 

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 

Supreme Court, in effect sustaining the position taken by the 

dissenter, Chief Justice Traynor. 
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 against Gladue, 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 conviction of Gladue. 

We Concur: 

Chief Jugti& 

Justices 
Mr. 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 objections were made, no motion for a 

mistrial was made, and no attempt was made to use this 

conduct as the basis for a motion 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