No. 88-29 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCARL ESSIE JOHNSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Peter Funk, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, Montana 

Stephen Hagerman & Kim Schulke, Deputy County Attorneys 

SEP- ; Filed: - 

Submitted on Briefs: July 21, 1988 

Decided: September 1, 1988 

Clerk 
defendant became unconscious. Ms. Shippers ran to the nearby 

apartment of a friend and notified the police. She led the 

police back to the defendant's apartment where he was found 

still unconscious. An ambulance was called for the defendant 

and the police also took Ms. Shippers to the hospital for 

examination and treatment. 

At trial, Ms. Shippers identified the defendant as her 

attacker and described the events of January 4, 1987, in 

detail. There were no eyewitnesses to the crimes, although 

the State called a number of witnesses who corroborated the 

details of Ms. Shippers' story. David Cowden, the friend to 

whom Ms. Shippers fled, testified as to her condition upon 

arriving at his home. The prosecution presented testimony 

with regard to the examination of Ms. Shippers and samples of 

hair, swabs, saliva, and blood as part of a rape examination 

kit. In addition, an FBI laboratory agent testified that the 

hairs taken from various pieces of evidence matched those of 

the defendant and the victim. 

Mr. Johnson did not call any witnesses or present any 

evidence in his defense. Rather, defense counsel's closing 

argument was based solely upon the failure of the State to 

present sufficient evidence to prove its case beyond a reasonable doubt. During the State's final closinq argument, 

the following discussion took place before the jury: 

Prosecution: Also remember that while the State 

of Montana produces evidence, it's 

under no obligation to produce all 

the evidence. And, moreover, while 

the State can subpoena Mr. Podolak 

from Washington, D.C. and all the 

other witnesses, the defense has the 

same opportunity . . . 

Defense: I object. The defendant is not 

required to produce any evidence. I 

ask the iury to he instructed that 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The defendant, Carl E. Johnson, appeals his conviction 

and sentence entered by the District Court of the Eighth 

Judicial District, Cascade County. The jury found Mr. Johnson guilty of aggravated kidnapping, felony assault, sexual 

intercourse without consent, and aggravated burglary. He was 

sentenced to life imprisonment without possibility for parole, and received a total of 130 years to run consecutively, 

plus an additional 100 years as a persistent felony offender. 

We affirm the conviction. 

The single issue for our consideration is whether the 

burden of proof was impermissibly shifted to the defendant by 

the denial of defendant's motion for a mistrial following the 

comments of the deputy county attorney during closing 

argument. 

The uncontradicted testimony of Holly Shippers established that on January 4, 1987, she was awakened at approximately 4 a.m. She heard the striking of a match. When she 

turned on the light she discovered Mr. Johnson standing in 

the doorway of her bedroom. After Ms. Shippers screamed, the 

defendant jumped on top of her, held a knife to her throat, 

and told her to shut up. The testimony of Ms. Shippers 

established that the defendant then committed rape upon her 

by forcing her to engage in oral sex and sexual intercourse. 

The defendant then forced Ms. Shippers into her own automobile and drove her to his own apartment. Over the course of 

the next several hours, the defendant again repeatedly raped 

Ms. Shippers by forcing her to engage in sexual intercourse 

and oral sex. Later the defendant told Ms. Shippers that it 

was "time for one of us to die." The defendant went into the 

bathroom and returned with several pills which he swallowed. 

After requiring Ms. Shippers to write out a will for him, the 
that's clearly an erroneous 

statement. 

The Court: Don't talk about what they are 

supposed to do or can do. Don't 

talk about their power of subpoena, 

because I have given an instruction. 

Prosecution: On the defendant not testifying, and 

we cannot comment on that. 

The Court: But I am giving an instruction that 

the defendant need not prove his 

innocence. 

Prosecution: That's correct. 

The Court: Don't get into any question about 

their power of subpoenaing witnesses. The objection is sustained. 

Defense: Thank you. 

The Court: And I want the jury to be admonished 

to disregard any remarks by Mr. 

Hagerman about the defendant's right 

to subpoena witnesses from Washington, D.C. or any where else. 

Prosecution: Suffice it to say that the State of 

Montana doesn't have to produce all 

of the evidence that there may be in 

the case. 

In chambers the defendant moved for mistrial and the 

District Court denied that motion. The defendant appeals 

that denial. 

Did the District Court properly deny defendant's motion 

for a mistrial in light of the prosecutor's comments made 

during his closing argument? 

The prohibition against a prosecutor's comments on the 

defendant's failure to testify is contained in Griffin v. 

California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 

106, and Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 
824, 17 L.Ed.2d 705. The holdings in Griffin and Chapman 

form the foundation for the Montana cases which have considered the same issue. As pointed out in State v. Gladue 

(Mont. 1984), 677 P.2d 1028, 41 St.Rep. 249: 

In Griffin v. California . . . the United States 

Supreme Court set aside a judgment 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." 

In Gladue, this Court also discussed the qualification 

placed on Griffin by the U.S. Supreme Court in the Chapman 

case: 

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, "that before a federal constitutional 

issue can be held harmless, the court must be able 

to declare a belief that it was harmless beyond a 

reasonable doubt." 

677 P.2d at 1031. This Court concluded that because the 

Court was unable to determine beyond a reasonable doubt that 

the prosecutor's comments did not contribute to the verdict 

against Gladue, the conviction should be reversed. 

In State v. Wilkins (Mont. 1987), 746 P.2d 588, 44 

St.Rep. 1794, applying the same rationale, this Court concluded that the District Court's comments had the effect of 

focusing the jury's attentions on the defendant's silence at 

a late stage and that the court was not convinced the curative instruction had remedied the error. The Court noted 

that in order to rebut the presumption, the State must prove 

beyond a reasonable doubt th-at the error did not taint the 

conviction, citing Gladue. 
In State v. Gonyea (Mont. 1987), 730 P.2d 424, 44 

St.Rep. 39, the same standards were applied. After a careful 

consideration of the entire transcript, the Court concluded 

that the comments were harmless beyond a reasonable doubt. 

We conclude that the comments by the prosecution were 

improper in several respects. We agree with the District 

Court that it was not proper for the prosecution initially to 

comment on the defendant's opportunity to subpoena witnesses. 

Next counsel referred to the fact that he could not comment 

on the defendant not testifying. While that remark undoubtedly was inadvertent, it was not proper. Last the prosecution reemphasized that the State did not have to produce "all 

the evidence." That comment could have been construed by the 

jury to again suggest that the defendant somehow had failed 

in his duty to present a case to them. The record does not 

suggest an intentional comment on the accused's silence. 

Nonetheless we conclude that the remarks clearly were 

objectionable. 

The State's evidence, which we will review further, was 

direct and compelling, with no significant contradictory 

evidence. Given the strength of the State's case, there was 

clearly no need for any comments of this nature. Before 

considering the effect of these objectionable remarks in the 

present case, we wish to make a comment for the benefit of 

the prosecution in other criminal cases. -- Do not comment, 

even indirectly, -- on the silence -- of the accused. 

Because we find the remarks to be objectionable, we must 

next consider the Chapman rule to determine if the error was 

harmless beyond a reasonable doubt. The testimony submitted 

by the State, including the extensive and unrebutted testimony of Ms. Shippers, clearly established the commission of the 

crimes by the defendant. Because of the revolting nature of 

the evidence, we have not discussed it at length. However, 
we wish to emphasize that the evidence of guilt was overwhelming. Even the circumstantial corroborating evidence was 

uncontradicted. In addition, the District Court gave numerous instructions during the course of the trial concerning 

the State's burden of proof. The admonition of the jury 

immediately following the prosecutor's remark demonstrates 

the trial court's efforts to impress upon the jury the right 

of the defendant to remain silent and not to present any 

evidence. We therefore conclude that the evidence was so 

overwhelming that the comments can be classed as harmless 

beyond a reasonable doubt. We hold that the District Court's 

denial of the motion for mistrial was proper. 

We affirm the conviction of Mr. Johnson. 

We Concur: 

Justices