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Name: People v. Waldie
Case #: E042303
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/10/2009

It was harmless error for the court to admit testimony and allow comment concerning appellant’s failure to return calls to police. At appellant’s trial for lewd and lascivious acts against a child under 14, a police officer testified that Waldie never participated in a police interview before he was arrested, because after a dozen phone calls and a promise to call back, he never did. The trial court overruled Waldie’s hearsay objection, and instructed the jury that Waldie’s statement promising he would call back tended to show consciousness of guilt. The prosecutor argued that Waldie did not cooperate with the police investigation. On appeal, Waldie argued that this was a violation of his due process rights and privilege against self-incrimination. The appellate court agreed, but found the error harmless. The evidence and argument violated the Fifth Amendment because Waldie was deprived of any meaningful right to refuse to talk to the police. The testimony about repeated phone calls and apparent evasiveness was constitutionally infirm. However, the testimony of the victim and her mother was credible and plausible, and there was other incriminating evidence which supported it. Any error in admitting the detective’s testimony and allowing the prosecutor’s argument could not have affected the verdicts.
The prosecutor’s accidental display of the word “guilty” during closing arguments was not misconduct. During closing arguments, the prosecutor’s laptop computer displayed the word “guilty” and it may have been briefly visible to the jury. Waldie contended that the disply may have improperly affected the jury, and asked for a mistrial. The appellate court held that the trial court did not abuse its discretion by denying the mistrial motion. The inadvertent and casual display of a single word characterizing the prosecutor’s position did not qualify as prosecutorial misconduct. Nor did the defense counsel preserve his objection by seeking a curative instruction.