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HABEAS CORPUS, DIRECTED VERDICT
Wed May 7 18:20:47 2003
208.152.73.195

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, DIRECTED VERDICT

Powell v. Galaza, No. 01-15195 (9th Cir. 05/06/2003)
http://caselaw.lp.findlaw.com/data2/circs/9th/0115195p.pdf

A state trial court's mid-trial jury instruction improperly removed the element of specific intent from the jury's consideration and effectively directed the jury to find for the state on that element. A "harmless error" review standard is inapplicable.

[1] We review de novo a district court’s decision to deny a 28 U.S.C. § 2254 habeas petition. Lockhart v. Terhune, 250 F.3d 1223, 1228 (9th Cir. 2001); Charles v. Hickman, 228 F.3d 981, 985 (9th Cir. 2000). Because Powell’s petition was filed after April 24, 1996, it is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lockhart, 250 F.3d at 1228. Therefore, the petition may be granted only if: the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). As the Supreme Court most recently put it, "a state court decision is ‘contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases’ or ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ " Lockyer v. Andrade, ___ U.S. ___, 123 S. Ct. 1166, 1173 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The state court need not cite or even be aware of the governing Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Packer, 123 S. Ct. at 365. In determining whether a state court decision is contrary to or an unreasonable application of federal law, we will examine the "last reasoned decision of [a] state court as the basis of the state court’s judgment." Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002).

A. The Midtrial Instruction: The Supreme Court’s holdings in Carella v. California, 491 U.S. 263 (1989), and Sandstrom v. Montana, 442 U.S. 510 (1979), provide the controlling authority here. Because the California Court of Appeal failed to apply the correct analysis as determined by Carella and Sandstrom and reached a result that contradicts the reasoning and result of those cases, its decision was contrary to federal law. Packer, 123 S.Ct. at 365. The trial court’s instruction improperly removed the element of specific intent to evade the court process — the only contested issue — from the jury’s consideration and in effect commanded a directed verdict for the state. Under Carella and Sandstrom, this was error.

[2] In Carella, the Supreme Court reiterated its rule that a mandatory presumption — a specific instruction that "both alone and in the context of the overall charge, could have been understood by reasonable jurors to require them to find the presumed fact if the State proves certain predicate facts" — violates the Fourteenth Amendment because it "directly foreclose[s] independent jury consideration of whether the facts proved establish[ ] certain elements of [the charged offense] . . . and relieve[s] the State of its burden of . . . proving by evidence every essential element of [the] crime beyond a reasonable doubt." 491 U.S. at 265-66 (citing In re Winship, 397 U.S. 358, 364 (1970), and Francis v. Franklin, 471 U.S. 307 (1985)); accord Sandstrom, 442 U.S. at 521 (holding unconstitutional instruction that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts" because the jury could have interpreted it as either a burden-shifting or conclusive presumption).

[3] Here, the trial court told the jury that Powell’s testimony was "an admission that he intended to evade the court process," and that w]hat [Powell is] saying by his repeated statements against [the court’s] order is that he didn’t come to court because he wanted to evade the process of the court, because he knew in all reason that he was going to be sent to prison. And that’s what . . . the intentional element of this offense is all about: Intent to evade the court process.

This instruction went beyond the mandatory presumption instructions found unconstitutional in Carella and Sandstrom. The jury was not merely instructed to find specific intent to evade the process of the court once it found certain predicate facts. Rather, the court stated that Powell’s testimony "starts with an admission that he intended to evade the process of the court."4 The court thus in effect instructed the jury that the specific intent element had been satisfied. Moreover, the court’s later instructions were inadequate to undo the damage caused by the court’s earlier definitive statement. The court’s qualification that "I have not intended by anything I have said or done . . . to intimate or suggest what you should find to be the facts" was too general and too late to ensure that the jurors would entirely disregard the court’s instruction that the only contested issue in the case should be decided against Powell. Therefore, the midtrial instruction clearly violated the principles enunciated in Carella and Sandstrom.

Respondent urges us to analyze the judge’s midtrial instruction under Quercia v. United States, 289 U.S. 466 (1933). The instruction, however, is more appropriately analyzed under Carella than Quercia, which addressed the proper limits on a trial judge’s comments to the jury. Quercia is distinguishable because the court here was not merely commenting on the evidence or making passing remarks during the course of the trial. Rather, as the court itself recognized, it was instructing the jury about the specific intent element.5 Accordingly, the trial judge’s statement should be assessed under the standards employed in scrutinizing other jury instructions, and Carella and Sandstrom, rather than Quercia, constitute the correct controlling authority.

The Ninth Circuit authority Respondent cites does not suggest otherwise. In Rodriguez v. Marshall, 125 F.3d 739, 748-49 n.12 (9th Cir. 1997), overruled in part on other grounds by Payton v. Woodford, 299 F.3d 815 (9th Cir. 2002), the trial judge noted that there had been conflicting evidence and highlighted questions the jurors might have wished to take into account when considering the testimony of one particular witness. The trial court also interspersed these comments with "cautionary admonitions" that it was the jury’s responsibility to determine the facts using its own independent judgment. Id. at 749. We held that the trial judge’s comments were permissible because he "repeatedly reminded members of the jury that they were to determine the facts of the case based on their own view of the evidence." Id. Similarly, in United States v. James, 576 F.2d 223 (9th Cir. 1978), the trial court explained its views of the significance of certain testimony and the relationship between the different counts. Id. at 227-228.

Unlike both Rodriguez and James, the trial judge here made a conclusive statement about the significance of Powell’s testimony and failed to accompany his statement with any caveat or reminder that the jury was ultimately responsible for determining the intent element. See People v. Rodriguez, 726 P.2d 113, 138 n.10 (Cal. 1986) (quoting text of challenged statement); James, 576 F.2d at 228 n. 5 (same); see also Bradley v. United States, 338 F.2d 493, 494-95 (9th Cir. 1964) (holding erroneous instruction regarding admissions made by defendant to be nonprejudicial in light of accompanying cautionary language). The trial judge’s later instruction — delivered four days after the damaging instruction at issue — did not explicitly refer to his earlier statement or otherwise alert the jury to the connection.7 See James, 576 F.2d at 229 (finding significant the later instruction that "I have made mention of the evidence but not in any manner for the purpose of suggesting to you whether or not I think Mr. James is guilty . . . . [A]ny view that I might have with respect to the guilt or innocence of Mr. James . . . is altogether beside the point. Yours is the job of making that determination."). Consequently, the midtrial instruction was impermissible under Quercia and its progeny, as well as under Carella and Sandstrom.

B. Harmless Error: We further hold that harmless error review is inapplicable. The Supreme Court has recognized that "some constitutional errors require reversal without regard to the evidence in the particular case [because they] necessarily render a trial fundamentally unfair." Rose v. Clark, 478 U.S. 570, 577 (1986) (stating that "harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury"), overruled in part on other grounds by Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (rejecting harmless error formulation of Chapman v. California, 386 U.S. 18, 24 (1967), for cases on collateral review). This principle applies on habeas review as well as on direct review. See Conde v. Henry, 198 F.3d 734, 741 (9th Cir. 1999) (refusing to apply harmless error review in consideration of petition for writ of habeas corpus where structural errors rendered trial fundamentally unfair).

The Court in Carella explained that a mandatory presumption instruction may be reviewed for harmless error because it is not equivalent to a directed verdict for the state — the jury is still required to find the predicate facts underlying each element beyond a reasonable doubt. Carella, 491 U.S. at 266; see also Neder v. United States, 527 U.S. 1, 9 (1999) (holding that failure to instruct the jury on a single element of the offense is reviewable for harmless error because the error "did not vitiat[e] all the jury’s findings"); Rose, 478 U.S. at 579-80 (holding that instruction that impermissibly shifts burden of proof on malice element is subject to harmless error review). The instructional errors at issue in Carella, Neder and Rose were subject to harmless error review precisely because the juries in those cases made other factual findings that were untouched by the court’s errors.

[4] The instruction here, however, is effectively the same as a directed verdict for the state, because the judge instructed the jury that the only contested element of the offense had been satisfied. In contrast to Carella, Neder and Rose, there were no other disputed facts or elements for the jury to decide. The judge’s instruction left the jury with no choice but to return a guilty verdict, resulting in the sort of error whose absence in Carella was critical to the Court’s decision to review for harmlessness. See Carella, 491 U.S. at 266 (explaining that Sandstrom error is not equivalent to a directed verdict, and is therefore subject to harmless-error analysis, because a jury instructed to presume malice from predicate facts "still must find the existence of those facts beyond a reasonable doubt," and "[i]n many cases, the predicate facts conclusively establish intent"); see also Sullivan v. Louisiana, 508 U.S. 275, 280-81 (1993) (explaining that mandatory presumption instruction on one element may be subject to harmless error analysis because the jury must still find the predicate facts, and "[a] reviewing court may thus be able to conclude that the presumption played no significant role in the finding of guilt beyond a reasonable doubt").

[5] An instruction that the only contested element has been satisfied cannot be reviewed for harmless error because the wrong entity — the judge rather than the jury — is responsible for rendering the verdict. See Rose, 478 U.S. at 578; see also Neder, 527 U.S. at 17 n.2 (affirming Rose for the proposition that a directed verdict is not subject to harmless error review). That is, the guilty verdict cannot be said to emanate from the jury because the judge has made the one factual finding on which the verdict rests. In such circumstances, we cannot say that "the guilty verdict actually rendered . . . was surely unattributable to the error." Sullivan, 508 U.S. at 279. Rather, "[t]he most that an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent a constitutional error. That is not enough." Id. at 280 (holding that defective reasonable doubt instruction will not be reviewed for harmless error because the jury never actually rendered a guilty verdict and because instruction constituted structural error); cf. Conde, 198 F.3d at 740-41 (refusing to apply harmless error analysis where failure to allow closing argument on defense theory, refusal to instruct jury on that theory and erroneous instruction combined to deprive defendant of fair trial). Indeed, the Supreme Court has instructed that "[t]he Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal." Sullivan, 508 U.S. at 280. Because "there has been no jury verdict within the meaning of the Sixth Amendment," harmless error review is inapplicable here. Id. The California Court of Appeal thus "applie[d] a rule that contradicts the governing law" set forth in Sullivan when it reviewed the judge’s instructional error for harmlessness. Packer, 123 S. Ct. at 365 (internal quotation marks omitted). Its decision therefore was contrary to clearly established federal law within the meaning of § 2254(d). Id.

Conclusion: [6] Powell’s conviction must be vacated because the court’s midtrial instruction effectively directed the jury to find for the state on the specific intent element. Indeed, because specific intent was the only contested issue in the case, the trial court’s instruction essentially directed a verdict of guilty and thus clearly violated the principles articulated in Carella and Sandstrom. Moreover, Sullivan establishes that harmless error review is inapplicable. Because the state court’s denial of relief contradicts the reasoning and result of Carella, Sandstrom and Sullivan, it is contrary to clearly established federal law, and habeas relief is warranted.

[7] We therefore reverse the district court, vacate Powell’s conviction and remand the case to the district court, with instructions to grant the writ of habeas corpus conditionally and to remand to the state court, directing that the State of California may retry Powell for failure to appear, if it is done within a reasonable period of time, consistent with the state’s speedy trial requirements.
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Reading clerk in Senate walks out
http://www.gjsentinel.com/news/newsfd/auto/feed/news/2003/05/07/1052312343.00303.6746.4553.html

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