People v. Howe

Opinion

ELKINGTON, J. Defendants William Glen Howe {Howe) and Timothy Allen Clark {Clark) were found guilty by a jury of the crime of kidnapping for the purpose of robbery, in violation of Penal Code section 209. Each of them has appealed from a judgment which was entered upon the jury’s verdicts.

On each of their respective appeals, Howe and Clark contend that: “The prosecutor committed prejudicial misconduct during the course of his closing argument which violated appellant’s federal constitutional rights and warrants reversal of his convictions.”

It is argued by each of them that the charged misconduct occurred during the prosecutor’s closing jury argument by (1) his comment upon defendants’ failure to testify at trial, and (2) by telling the jury that defendants were “robbers” and “criminals” and “therefore must have had the intent to commit the kidnap for robbery and robbery charged.”

It is first noted that no objection, or request for an appropriate jury admonition, was made at the trial as to either of the assignments of misconduct. In our opinion had such been made, and acted upon, any conceivable prejudice to defendants would have vanished. Under such circumstances, we are told by People v. Green (1980) 27 Cal.3d 1, 27-36 [164 Cal.Rptr. 1, 609 P.2d 468], that the claimed misconduct may not be raised on appeal.

Moreover, the first claimed prosecutorial misconduct was the following statement: “Now, was the movement in this case of the person caused with the specific intent to rob him and was that intent to rob existent at the time that the kidnapping commenced? That question is one that is clearly answered by the circumstantial evidence in this case, by the reasonable, logical, common sense interpretation of what occurred here. We don’t have in this case statements of the defendant saying that, ‘My state of mind was such and such,’ or, ‘My state of mind was this and that.’ That would be direct evidence.

“We have the circumstances which attest to their actions that prove what their specific intent was, and what are those circumstances in this case to serve the specific intent? Well, number one, we have the defendant Clark [348]getting into the car with a knife in his hand. His first words are, ‘Cooperate or you’re going to get hurt,’ and then immediately says, ‘Hand over your wallet.’