People v. Evans

Facts^[1] .

At approximately 9:27 p.m. on April 19, 1996, Hanford Police Officers Todd Talent and David Scott were dispatched to the area of an alleyway two blocks from their location. The dispatch described two men in the alleyway, one possibly with a gun. The men were described as White males wearing dark clothing.

While driving to the alley, Officer Talent saw a jogger and briefly talked with him to determine whether he was the man with the gun. After initial questioning revealed the jogger was not the suspect, the jogger told the officers he heard a couple of people in the alley. He opined they were the persons the officers were looking for. Officer Talent estimated they spent no more than 30 seconds with the jogger.

As the officers arrived at the alley, they noticed it was dark and no one appeared to be around. Officer Talent then saw a vehicle with two White males exiting the alley. Officer Talent estimated he first observed the car about two minutes after receiving the dispatch. Believing these were the men described in the dispatch, the officers stopped the vehicle. No other vehicles or pedestrians were seen in the alley.

Appellant was the car’s driver. After being stopped, he alighted from the vehicle. He identified himself as Timothy Welcher. Officer Scott later searched the vehicle and found a wallet containing an identification card bearing a photograph of appellant, showing his correct name.

Officer Scott detected a strong odor of an alcoholic beverage on appellant’s breath and observed other signs that appellant could be intoxicated, so he requested another arriving officer, Brian Toppan, to administer field sobriety tests. Based on the results of those tests, Officer Toppan arrested

Just before the prosecution rested its case, however, counsel informed the court that appellant, against counsel’s advice, was planning to testify. After some colloquy among the court, counsel, and appellant, the court conducted a Marsden^[2] hearing outside the presence of the prosecutor. When the trial resumed, appellant informed the court that he had decided not to testify. The court then discussed the matter of jury instructions, telling counsel that CALJIC Nos. 2.60 and 2.61 would be given.

“I am going to—I had started to write withdrawn in front of 260 and 261, ' I’m blackening that out now on the index and putting my initials on that to show that they will be given at the defendant’s request.”

The defense rested without offering any evidence. The court then instructed the jury, but in doing so failed to read CALJIC Nos. 2.60 and 2.61. The written version of those instructions appear in that portion of the clerk’s transcript entitled “Jury Instructions Not Given.”

Respondent concedes the instructions should have been given, but argues the error was harmless. Appellant contends Carter error is not subject to harmless error analysis.

B. Whether Carter error is reversible per se is undecided

Not all federal constitutional errors in the course of a criminal trial require reversal. (Chapman v. California (1967) 386 U.S. 18 [ 87 S.Ct. 824 , 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ].) The United States Supreme Court recognized that some constitutional rights are so basic to a fair trial that their infraction can never be treated as harmless error. (Id. at p. 23 [87 S.Ct. at pp. 827-828].) Other constitutional errors, however, may in the setting of a particular case be so unimportant and insignificant that they may be deemed

When it decided Carter, the United States Supreme Court expressly declined to reach the question of whether not giving requested instructions on the defendant’s failure to testify could be treated as harmless error. (Carter v. Kentucky, supra, 450 U.S. at p. 304 [101 S.Ct. at p. 1121].)^[3] The Supreme Court has not subsequently decided that question.

The only case of which we are aware which seems to consider whether Carter error may be treated as harmless is U.S. v. Castaneda (9th Cir. 1996) 94 F.3d 592 . There the trial court rejected a defendant’s proposed instruction that the jury should draw no “adverse inference” from his failure to testify. The defendant raised the issue in his appeal from a conviction. The Ninth Circuit Court of Appeals affirmed the conviction, but the opinion is not entirely clear as to the grounds on which the court rested its decision.

The Castaneda court first recognized the defendant’s constitutional right, under Carter v. Kentucky, supra, 450 U.S. 288 , to a jury instruction that “ ‘minimize^] the danger that the jury will give evidentiary weight to a defendant’s failure to testify.’ ” (U.S. v. Castaneda, supra, 94 F.3d at p. 596.) It noted, however, that “ ‘[a] defendant is not entitled to any particular form of instruction, nor is he entitled to an instruction that merely duplicates what the jury has already been told.’ ” (Ibid., quoting U.S. v. Lopez-Alvarez (9th Cir. 1992) 970 F.2d 583 , 597.)

The Castaneda court then observed that the trial court gave the jury an instruction on the government’s burden to prove guilt beyond a reasonable doubt “and that ‘[t]he defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence.’ ” (U.S. v. Castaneda, supra, 94 F.3d at p. 596.) The court stated that while the specific words “no inference” are preferable in such an instruction, they are not required under Carter, and the instruction given “sufficiently covered the substance of Castaneda’s proposed instruction: The defendant’s failure to testify does not lessen the government’s burden to prove its case.” (U.S. v. Castaneda, supra, at p. 596 .)

Because we cannot interpret Castaneda as a clear holding that Carter error may be harmless, we will analyze the question from the start.^[4]

C. The Supreme Court has set standards for determining whether a particular constitutional error is reversible per se

Following its landmark decision in Chapman v. California, supra, 386 U.S. 18 , the United States Supreme Court has frequently applied harmless error analysis in cases involving constitutional errors. (See, e.g., Yates v. Evatt (1991) 500 U.S. 391 , 402 [ 111 S.Ct. 1884 , 1892, 114 L.Ed.2d 432 ] [erroneous burden-shifting instruction] disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62 , 72, fn. 4 [ 112 S.Ct. 475 , 482, 116 L.Ed.2d 385 ]; Arizona v. Fulminante (1991) 499 U.S. 279 , 310 [ 111 S.Ct. 1246 , 1265, 113 L.Ed.2d 302 ] [admission of a coerced confession]; Clemons v. Mississippi (1990) 494 U.S. 738 , 752-754 [ 110 S.Ct. 1441 , 1450-1451, 108 L.Ed.2d 725 ] [unconstitutionally overbroad jury instructions at the sentencing stage of a capital case]; Satterwhite v. Texas (1988) 486 U.S. 249 , 258 [ 108 S.Ct. 1792 , 1798, 100 L.Ed.2d 284 ] [admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment counsel clause]; Carella v. California (1989) 491 U.S. 263 , 266 [ 109 S.Ct. 2419 , 2421, 105 L.Ed.2d 218 ] [jury instmction containing erroneous conclusive presumption]; Pope v. Illinois (1987) 481 U.S. 497 , 501-504 [ 107 S.Ct. 1918 , 1921-1923, 95 L.Ed.2d 439 ] [jury instruction misstating an element of the offense]; Rose v. Clark (1986) 478 U.S. 570 , 582 [ 106 S.Ct. 3101 , 3108, 92 L.Ed.2d 460 ] [jury instruction containing an erroneous rebuttable presumption]; Crane v. Kentucky (1986) 476 U.S. 683 , 691 [ 106 S.Ct. 2142 ,

Here the jury was fully instructed on the elements of the offenses with which appellant was charged and the proper standard of proof required for a guilty verdict.^[5] Thus, what the Supreme Court referred to as the object of harmless error analysis, found lacking in Sullivan, is present here.

We next turn to the Fulminante formulation to determine whether Carter error is a “structural defect[] in the constitution of the trial mechanism, which def[ies] analysis by ‘harmless-error’ standards.” (Arizona v. Fulminante, supra, 499 U.S. at p. 309 [111 S.Ct. at p. 1265].) We conclude it is not.

Appellant received a full opportunity to put on evidence and make argument to support his claim of innocence. He was tried by a fairly selected, impartial jury and an impartial judge. He was adequately represented by counsel. Aside from the challenged instruction, the jury was clearly instructed that it had to find the defendant guilty beyond a reasonable doubt as to every element. “Placed in context, the erroneous . . . instruction does not compare with the kinds of errors that automatically require reversal of an otherwise valid conviction.” (Rose v. Clark, supra, 478 U.S. at p. 579 [106 S.Ct. at p. 3107].)

Perhaps the most persuasive reason for reaching the conclusion we do is that the constitutional privilege against compulsory self-incrimination which was infringed upon here is the same privilege involved in the very case in which the Supreme Court announced its harmless error standard. (Chapman v. California, supra, 386 U.S. 18 .) In Chapman the prosecutor expressly commented upon the defendants’ failure to testify and drew inferences of their guilt therefrom. (Id. at p. 19 [87 S.Ct. at pp. 825-826].) In addition, the trial court instructed the jury it was entitled to draw inferences unfavorable to the defendants from their failure to deny or explain evidence involving facts within their knowledge. (Id., at fn. 2.) Nevertheless, the Supreme Court declined to find the error reversible per se. We fail to see how the lack of

The premise on which Carter error rests is that absent explanatory instructions, the jury may “draw from the defendant’s silence broad inferences of guilt.” (Carter v. Kentucky, supra, 450 U.S. at p. 301 [101 S.Ct. at p. 1119].) But whether the jury was likely to have drawn such inferences, and to what extent, may differ from case to case depending upon the nature of the charges and the type and quality of evidence presented on the critical issues.

The likelihood of improper inferences seems greatest when the defendant presumably has knowledge of facts not otherwise shown in the evidence. For example, if the principal contested issue is identity, the jury may be very likely to draw inferences adverse to the defendant from his failure to testify as to his whereabouts during the relevant time period. Even in such a case, however, a reviewing court may be able to find the error harmless beyond reasonable doubt if the evidence of guilt is compelling. (See United States v. Hasting, supra, 461 U.S. at pp. 510-512 [103 S.Ct. at pp. 1981-1982] [prosecutor’s comment on defendant’s silence harmless in light of victims’ evidence negating doubt as to identification].) As noted by the Supreme Court, the effect of adverse inferences drawn by the jury can “be quantitatively assessed in the context of other evidence presented” to determine whether the error in allowing them was harmless beyond a reasonable doubt. (Arizona v. Fulminante, supra, 499 U.S. at p. 308 [111 S.Ct. at p. 1264].)

In other cases, the probability the jury may draw such adverse inferences may diminish substantially or disappear. If the only contested issue turns on facts not obviously within the defendant’s knowledge, his silence is not likely to be used against him, even without appropriate jury instructions.

For these reasons, we hold that Carter error may be subject to harmless error analysis on a case-to-case basis.

2.-4.^[6]