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Town of Columbus v. Harrington12/11/2001
m, essentially advising him of his Miranda rights. I asked him if he would be willing to speak with me and give a statement at that time. He refused." During closing the prosecutor posed the following rhetorical question to the jury, "wouldn't you want to tell somebody it was an accident? . . . [Sullivan] has the better part of twenty-four hours to turn himself in and then another twenty-four hours before he gives a statement." Sullivan, 280 Mont. at 30-31, 927 P.2d at 1036.
In contrast, here the prosecutor's comments during voir dire generally referred to the fact that Harrington did not have to testify, and Newell's testimony simply stated that Harrington was given the Miranda warning and then heeded it. No comment was made that Harrington at any time refused to give a statement or refused to testify. Contrary to the situation in Sullivan, the prosecutor did not insinuate that an innocent person would have given a statement or would have testified. We hold that the prosecutor's comments and the testimony elicited during the State's case-in-chief did not constitute Doyle error.
The Fifth Amendment guarantees an accused the right to remain silent during his criminal trial, and prevents the prosecution from commenting on the silence of a defendant who asserts the right. Finley, 276 Mont. at 141, 915 P.2d at 217. Article II, Section 25 of the Montana Constitution guarantees the same right. The Montana constitutional guaranty affords no greater protection than that of the federal constitution. State v. Dawson (1988), 233 Mont. 345, 356, 761 P.2d 352, 359. Prosecutorial comments deny the accused this privilege when the language used is manifestly intended or is of such character that the jury would naturally and necessarily take it as a comment on the failure of the accused to testify. Dawson, 233 Mont. at 356, 761 P.2d at 359 (quoting State v. Anderson (1970), 156 Mont. 122, 125, 476 P.2d 780, 782).
Here, the prosecutor commented during his rebuttal argument that "there wasn't contradictory evidence to Officer Newell's testimony about what he observed about the driving, and driving is what it's about." Harrington points out that he is the only person who could have offered contradictory evidence. His two minor children were the only others present, besides himself and Newell.
In 1969, this Court considered a similar issue. State v. Hart (1969), 154 Mont. 310, 462 P.2d 885. In that case, the defendant did not testify and during closing, the prosecutor stated that "[Defendant's attorney] has not seen fit to offer any evidence to controvert this story." Hart, 154 Mont. at 312, 462 P.2d at 887. The Court stated that "unless it is apparent on the record that there was someone other than himself whom the defendant could have called, the comment of necessity pointed to the only person who could have offered the contradiction, the defendant himself." Hart, 154 Mont. at 314, 462 P.2d at 888 (quoting Desmond v. United States (1st Cir. 1965), 345 F.2d 225, 227). The Court held that the prosecutor's comments were prejudicial as a violation of the Fifth Amendment and stated, "To take the view that the prosecution may not comment on the defendant's failure to testify, but may properly comment on the defendant's attorney's failure to offer evidence, where that could only come from the defendant himself, is to make an unwarranted distinction not permissible in law." Hart, 154 Mont. at 315-16, 462 P.2d at 888.
The State fails to address Hart, but argues the comment only emphasized the strength of the prosecution's case and not the defendant's failure to take the stand. We have approved statements by the county attorney which argue that there is "no evidence" or "no testi
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