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Name: People v. Morgain
Case #: A121530
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 09/04/2009

Testimony of a witness claiming the Fifth Amendment, which is then stricken, and comment on the witness’ refusal to testify by the prosecutor in closing argument violates neither the confrontation clause nor due process. Appellant was prosecuted for and convicted of first degree murder. During the trial, the prosecution sought to present testimony of appellant’s girlfriend that appellant confessed the murder to her. Although the prosecutor granted use immunity, the girlfriend, in front of the jury, refused to testify, despite being ordered to do so by the court with the threat of being held in contempt. On the request of the defense, her testimony was stricken. At closing, the prosecution argued that the jury could draw a negative inference from the girlfriend’s refusal to testify. The appellate court rejected appellant’s claim that permitting the prosecutor to ask the girlfriend if she told police that appellant confessed was a violation of the confrontation clause in that her refusal to testify denied appellant the right to cross-examine her. The court found that when the trial court granted appellant’s request to strike the testimony and instructed the jurors not to consider the prosecution’s questions, the assumption that the jurors followed the instruction applies when confrontation clause rights are at issue; as such, there was no testimony subject to cross examination. As to the prosecution’s comment on the girlfriend’s refusal to testify, jurors are entitled to draw a negative inference from a witness’ refusal to testify when the witness has no constitutional or statutory right not to testify, such as the case here where the girlfriend was granted immunity. The court agreed that appellant was entitled to an additional one day of presentence credit against the 51 years to life state prison sentence.