                                                  NO.    83-72A

                      I N T E SUPREME C U T O T E STATE O F M N A A
                           H           O R   F H             OTN

                                                           1984




STATE OF

                                           P l a i n t i f f and Respondent,

         VS   .
D L L O GLADUE,
 AE E

                                           Defendant and A p p e l l a n t .




Appeal from:           D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
                       I n and f o r t h e County o f Cascade
                       Honorable J o e l G.Roth, J u d g e p r e s i d i n g .

Counsel of Record:

         For Appellant:

                  K a r l Nagel, G r e a t F a l l s , Montana

         F o r Respondent :

                  Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                  J. Fred Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana




                                                          Submitted on b r i e f s - October 1 9 , 1983

                                                                               Decided:        February 1 6 , 1 9 8 4

Filed:
              FF8
              '.-
                       1,-;'fjfj4
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 office 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 defen-
dant, 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 premis-
es.   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 argu-
ments.   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 state-
          ment, 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
              n o t t r u e e i t h e r , even though t h e r e was
              e v i d e n c e , b o t h d i r e c t and c i r c u m s t a n t i a l ,
              a g a i n s t Da.vid L a p i e r and George Owens,
              t h e r e was a l s o p l e n t y of e v i d e n c e a g a i n s t
              Mr.      Dale Gladue i n t h i s c a s e , s o , of
              course, t h a t wasn't true.                    Finally, Mr.
              Nagel t o l d you t h a t t h e d e f e n d a n t would
              t e s t i f y t h a t he was merely wa-lking down
              t h e a l l e y , w e l l , t h e clefendant d i d n o t
              t e s t i f y a t a l l i n t h i s case, especially
              a s t o t h a t , and w e d o n ' t know what t h e
              reason f o r t h a t i s .               NOW, l a d i e s and
              gentlemen, we must be c a r e f u l h e r e .                    The
              d e f e n d a n t i s e n t i t l e d t o b e presumed
              i n n o c e n t u n t i l proven g u i l t y , and t h a t
              presumption c a r r i e s t h r o u g h t h e e n t i r e
              t r i a l i n t h i s c a s e , and, of course, M r .
              Gladue a l s o h a s t h e r i g h t n o t t o t e s t i f y
              i n t h i s c a s e , and. t h a t i s h i s r i g h t , and
              t h a t i s a C o n s t i t u t i o n a l r i g h t , and t h a t
              i s a r i g h t of a l l of t h e c i t i z e n s o f t h i s
              c o u n t r y , and we must n o t presume a n y t h i n g
              merely b e c a u s e he c h o s e , o r h i s c o u n s e l
              chose, not t o t e s t i f y o r t a k e t h e witness
              s t a n d i n t h i s c a s e , s o we a r e n o t t o draw
              any i n £e r e n c e from t h a t ; however, M r .
              Nagel d i d a . s s u r e i n h i s o p e n i n g s t a t e m e n t
              t h a t t h e d e f e n d a n t would t e s t i f y , and he
              d i d n o t , s o he d i d n o t f o l l o w t h r o u g h on
              what h e s a i d would be h i s p r o o f .                    . ."
       No o b j e c t j - o n was made by t h e d e f e n s e c o u n s e l a t t h i s
p0in.t.    However, when d e f e n s e c o u n s e l wa.s making h i s c l o s i n g

summation t o t h e j u r y , he s t a t e d on t h i s p o i n t :

              ". . .           I s a i d t h a t t h e r e would be no
              e v i d e n c e a g a i n s t t h e d e f e n d a n t , and I
              s t a t e d t h a t t h e majority of t h e evidence
              would be a g a i n s t p e o p l e who a r e n o t on
              t r i a l h e r e , and t h a t i s o b v i o u s l y t r u e .
              The d e f e n d a n t d i d n o t t e s t i f y i n t h i s
              case.          The d e f e n d a n t d o e s n o t need t o
              testify.           The law s a y s t h a t t h e defend-ant
              h a s t h e r i g h t n o t t o t e s t i f y , and you a r e
              n o t t o h o l d t h a t a g a i n s t him.            I t i s up
              t o t h e S t a t e t o c a r r y t h e burden of
              p r o o f , and t h e y must p r o v e , beyond a
              r e a s o n a b l e d o u b t e v e r y s i n g l e e l e m e n t of
              t h e crime.       ..     Now, t h e d e f e n d a n t d i d n o t
              testify.            The d e f e n d a n t d i d n ' t have t o
              testify.            He d i d n o t t e s t i f y f o r t h e
              p u r p o s e o f t r y i n g t o h i d e a n y t h i n g from
              you, b u t r a t h e r he d i d n ' t t e s t i f y b e c a u s e
              h e d i d n ' t need t o .              The r e a s o n :        The
              s t a t e h a s n o t c a r r i e d i t s burden of
              p r o o f , and t h a t ' s what I w i l l t a l k a b o u t
              now. .      ."
       Not c o n t e n t t o l e t t h e m a t t e r r e s t , t h e d e p u t y c o u n t y

a t t o r n e y i n h i s r e b u t t a l c l o s i n g argument s t a t e d a s f o l l o w s :

                ". . .       L e t me b e g i n by j u s t g o i n g t h r o u g h
               and numbering and l i s t i n g f o r you t h e
               c o n c e s s i o n s t h a t M r . Nagel made when he
               was up h e r e g i v i n g h i s f i n a l argument t o
               you.        H e conceded, f i r s t of a l l , t h a t h e
               d i d t e l l you t h a t M r . Gladue, t h e d e f e n -
               d a n t , would t e s t i f y , and t h a t h e d i d n o t
               t e s t i f y , and M r . Nagel s a y s t h a t h e d i d
               n o t do s o b e c a u s e i t was n o t n e c e s s a r y
               f o r him t o t e s t i f y .         I am n o t g o i n g t o
               comment beyond t h a t , o t h e r t h a n t o remind
               you t h a t M r . Magel d i d n o t f u l f i l l h i s
               a s s u r a n c e t o you i n h i s o p e n i n g , and h e
               a l s o d i d n ' t f u l f i l l h i s a s s u r a n c e t o you
               i n r e g a r d t o what e l s e h e would p r o v e i n
               t h e case.      . ."
       The d e f e n d a n t was found g u i l t y by t h e j u r y and t h e c o u r t

eventually        entered      judgment        of    conviction         a g a i n s t him and
s e n t e n c e d him t o f i v e y e a r s i n p r i s o n w i t h a l l b u t s i x months

of t h a t s e n t e n c e suspended.

       On a p p e a l Gladue r a i s e s t h e f o l l o w i n g i s s u e s f o r r e v i e w :
        1.    Was t h e r e s u f f i c i e n t e v i d e n c e t o s u p p o r t t h e j u r y

verdict?

       2.     Did       the   State      violate       Gladue's         Fifth        Amendment

r i g h t s by commenting i n i t s c l o s i n g arguments on h i s f a i l u r e

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 d o u b t t h a t t h e comments by t h e p r o s e c u -
tor    about      the    defendant       not     taking      the      s t a n d were e r r o r .
T h a t i s conceded by t h e S t a t e .            The e r r o r was p r o b a b l y com-
pounded by t h e remarlcs made by t h e d e f e n s e c o u n s e l who a l s o
r e f e r r e d t o it i n h i s c l o s i n g statement.             The f a c t r e m a i n s ,

however,      t h a t t h e comments were i n i t i a t e d by t h e p r o s e c u t o r

and were used            by him a.gain i n h i s c l o s i n g 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 notwith-
standing, 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 - rule, that such error automatically
                    se
required a reversal.      The Chapman Court adopted the position
that it would not adopt a per - rule, and that instead it
                              se
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 re-
           cess. After the recess, Lockett's coun-
           sel told the judge that Lockett wished to
           testify but h a d decided to accept her
           mother's advice to remain silent, despite
           her counsel's warninq that, if she fol-
           lowed 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 evi-
          dence 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 prom-
          ised 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 al-
ready held in this state that it is not a comment by a
prosecutor on the d.efendantrsfailure 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 re-
marks 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 in-
volves 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 circum-
stantial 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 foot-
prints 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 flash-
light 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 consider-
ing 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    prosecution1s  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 sup-
          ported 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 ver-
          dict 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
