Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tuolumne CountySuper. Ct. No. CRM21493. Eleanor Provost, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Dawson, J.
A jury found Jay Anthony Garcia, Jr., guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), the only crime with which he was charged. Garcia asserts the prosecutor committed misconduct by eliciting testimony that he invoked his right to remain silent. (Doyle v. Ohio (1976) 426 U.S. 610.) We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Garcia conceded the victim, Bryan Mulligan, was seriously injured when he was struck in the head with a metal flashlight. He testified, however, that he was not the assailant. Unfortunately, he was identified by three people as the only person who could have been the assailant.
The incident occurred after a fireworks show at a local lake a few days before July 4, 2006. Hundreds of people attended the show. Those involved in the incident admitted drinking during the day, but denied being intoxicated. Mulligan testified that he was approached by Garcia and several other individuals in an angry and threatening manner as those in attendance were leaving the lake. Garcia was walking very close to Mulligan (chest to chest), began talking in a very aggressive manner, and shined a large metal flashlight in Mulligan’s eyes. Mulligan never had met Garcia, nor did he have any idea why Garcia approached him. Mulligan attempted to calm everyone down as the group encircled him. As he turned to talk to others in the group, he was struck in the head from behind and began bleeding profusely. When Mulligan turned to see who had struck him, he again saw Garcia standing right next to him with the flashlight in his hand. He did not see anyone else with a metal flashlight or other object that could have been used to strike him. The physician that treated Mulligan confirmed that the injury was consistent with a large instrument, like a metal flashlight, but could not state with certainty the exact type of instrument that caused the injury.
Ryan Bohan spent the day with Mulligan and observed the group approach and become very aggressive with Mulligan. He identified Garcia as the only individual in the group with a flashlight in his hand. Bohan did not see who hit Mulligan because he left the scene to notify the authorities of a potential fight before the assault occurred.
Brian Klebanoff also was at the lake on the night of the assault. He admitted being acquainted with Garcia, but claimed he could not recall if he saw Garcia on the night in question. He recalled seeing people arguing and speaking with deputies that night. He could not recall, however, what he told the deputies or the details of what occurred.
Deputy Sheriff Oliver Imlach spoke with Klebanoff on the night of the incident. Klebanoff was not willing to give Imlach a statement at the time because Klebanoff was afraid it would upset people. Klebanoff, however, did identify Garcia as the person involved in the incident.
Imlach obtained a statement from Klebanoff approximately two weeks later. Klebanoff told Imlach he went to the scene after someone told him about the fight. Klebanoff saw Garcia and Mulligan in a verbal argument. Klebanoff’s description of Garcia’s clothing and his distinctive hair style was consistent with Mulligan’s description. Garcia was holding a red metal flashlight and shining it in Mulligan’s eyes. Mulligan attempted to reason with Garcia, but to no avail. Mulligan stated he was going to leave. As Mulligan turned away, Garcia struck Mulligan over the head with the flashlight. Garcia then left the scene. Klebanoff stated Garcia was wearing a different shirt and hair style when he saw him later that night.
Mulligan made the same observation when he spoke with police.
The trial court sentenced Garcia to five years’ felony probation on the condition that he serve eight months in jail and was ordered to pay restitution.
DISCUSSION
It is difficult to tell from Garcia’s opening brief how he claims his constitutional rights were violated. His reply brief, however, clarifies that he contends the following testimony was improper.
Deputy Sheriff Robert Nikiforuk II testified that he spoke with Garcia shortly after Garcia was detained. During direct examination, the following colloquy occurred between the prosecutor and Nikiforuk:
“Q: And did you tell him about the investigation that was occurring?
“A: Yes.
“Q: And what did he say regarding this investigation?
“A: (Pause.)
“Q: What’s the first thing he said?
“A: I read him his Miranda rights, and at first, he did not want to talk, and then he began to tell me what had happened.
Miranda v. Arizona (1966) 384 U.S. 436.
“Q: Now, you say he didn’t want to talk, what did he say?
“A: He said he didn’t want to talk. I don’t remember the exact quotes, but--
“Q: Did you ask him any questions after that?
“A: No.
“Q: What did he say?
“A: He started telling me about when he came to the marina and set up for his group to have the fireworks show that evening.”
Nikiforuk’s testimony then focused on Garcia’s evolving story regarding the incident. Garcia claimed that Mulligan approached him and his friends in a drunken rage, but Garcia tried to escort him from the area in a friendly manner. Garcia claimed he left before Mulligan was struck in the head.
Garcia argues this exchange violated the rule established in Doyle v. Ohio, supra, 426 U.S. 610. Doyle held that once a defendant is advised of his constitutional right to remain silent, the prosecutor may not use that silence to impeach the defendant’s testimony at trial. The reasoning is quite simple. Once a defendant is told the Constitution ensures his right to remain silent, it is unfair to urge the jury to use the exercise of that right to infer his testimony is fabricated.
Miranda v. Arizona, supra, 384 U.S. 436.
The facts in Doyle are similar to the facts in this case. Garcia refused to answer questions after he was detained, and his silence was mentioned at trial. The difference between the two situations is that Nikiforuk’s testimony was not an attempt to impeach Garcia’s trial testimony -- the People did not argue the jury should infer Garcia’s testimony was fabricated because he remained silent after he was detained. In fact, the opposite is true -- the People argued the jury should infer Garcia’s testimony was fabricated because it differed from what he told the police when he initially was detained.
Nonetheless, some cases have stated that the mere mention of a defendant’s post-Miranda silence constitutes a violation of Doyle. (See, e.g., United States v. Shaw (5th Cir. 1983) 701 F.2d 367, 382.) Four justices in Greer v. Miller (1987) 483 U.S. 756 concluded that Doyle’s proscription was violated when the prosecutor asked the defendant why he failed to tell his exculpatory testimony before trial, even though the defendant’s objection to the question was sustained by the trial court, which immediately instructed the jury to disregard the question.
While it seems likely Doyle was violated in this case, we need not decide the question because reversal is not required, even if there was error. We affirm a judgment when a Doyle error occurs if we conclude the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; People v. Earp (1999) 20 Cal.4th 826, 857-858.)
We conclude that admission of the testimony was harmless beyond a reasonable doubt. Our conclusion is based on the insignificance of the testimony to the trial. The cases which require reversal because of Doyle error often do so because the prosecution asks the jury to infer the defendant is guilty because he was silent, or that the defendant’s explanation of his innocence is untrustworthy because he did not come forth with it when initially arrested. In this case, the prosecution did not argue Garcia was guilty for either of these reasons. Instead, the prosecution argued Garcia was guilty because his explanation evolved over time. He began by stating he did not know what the officers were talking about. He then admitted he was there, but he was a peacemaker who left before the assault occurred and never had a flashlight. At trial he admitted having a yellow plastic flashlight at the scene, but maintained he was the peacemaker who left before the assault occurred. The prosecutor argued the jury could infer Garcia was guilty from his statements and testimony, not from his silence. The concerns Doyle addressed were not implicated.
Moreover, the case against Garcia was strong. While neither Mulligan nor Bohan saw Garcia strike Mulligan, each stated he was the only one at the scene with a metal flashlight. They also described Garcia as very aggressive. Mulligan’s description of the events left little doubt that Garcia was the only person who could have hit him in the head. Finally, although Klebanoff did not do so at trial, he told the police he saw Garcia strike Mulligan in the head with the flashlight.
Despite Garcia’s continued protestations of innocence, we conclude that the admission of his initial refusal to speak to the police after he was advised of his constitutional rights pursuant to Miranda was harmless beyond a reasonable doubt. The evidence against Garcia was overwhelming. His explanation of the events was not believable, considering the three eyewitnesses that directly contradicted his testimony. The error, if one occurred, does not require reversal.
DISPOSITION
The judgment is affirmed.