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Name: People v. Lewis
Case #: A098387
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 03/30/2004
Subsequent History: Rev. den. 6/30/04

The centerpiece of appellant’s defense during his trial for assault was alleged deficiencies in the photo lineups from which he was identified. During questioning of an investigating officer, the prosecutor referred to appellant’s failure to demand a live lineup, and he mentioned it again during closing argument. On appeal, appellant contended that the prosecutor committed misconduct by doing so, analogizing it to a situation where the prosecutor comments on a defendant’s post-Miranda advisement silence(Doyle), or his failure to testify at trial(Griffin). The appellate court here rejected the argument. Because lineups do not implicate the right to remain silent, Griffin and Doyle do not prohibit comment on refusal to participate in a lineup or on the failure to request one. Further, there was no misconduct where the prosecutor argued that complaining about the photo lineup where no live lineup was requested was like the Menendez brothers asking for sympathy because they were orphans. The comparison was inapt, but not misconduct,and there was no reasonable likelihood that the jury would have confused appellant with the Menendez brothers. Also, any error would have been waived by the failure to object.