Metropolitan News-Enterprise


Friday, February 13, 2009


Page 1


Court Upholds Conviction in Killing of Estranged Wife’s Fiancee

Ninth Circuit Says Judge’s Note to Jury in Lawyer’s Absence Not Structural Error




A Santa Clara Superior Court judge who sent a note to jurors in response to a question, in the absence of defense counsel, did not commit structural error requiring that the defendant be granted a new trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed a U.S. district judge’s denial of Matthew Musladin’s petition for writ of habeas corpus.

The Ninth Circuit had ordered a new trial for Musladin in 2005, ruling that his right to a fair trial had been compromised because relatives of the victim appeared in court wearing buttons with the deceased’s picture on them.

Case Remanded

That ruling was overturned the following year by a unanimous Supreme Court, which sent the case back to the Court of Appeals to resolve other issues.

Musladin was convicted in the 1994 killing of Tom Studer, who was engaged to marry Musladin’s estranged wife.

Pamela Musladin testified that she and her husband, who had come to her home to pick up their son for a weekend visit, got into an argument and that Studer and her brother, Michael Albaugh, with whom she shared the house, came out to assist her after she was pushed to the ground. Musladin, she said, grabbed a gun and fired two shots, killing Studer.

The defendant admitted pushing his wife to the ground. But he contended that Studer and Albaugh were armed and that he shot in their direction out of fear for his own life.

Experts agreed that Studer was killed by a ricocheting bullet. Musladin claimed both self-defense and imperfect self-defense.

During deliberations, the jury sent a note regarding the phrase “express malice” in the instructions defining first degree murder. The note asked “[d]oes this exclude ‘implied’ malice.”

Musladin’s attorney, in response to a phone call from the court, said he would “be right over,” and arrived 10 to 15 minutes later. Before counsel arrived, however, the court returned the note to the jury with the written direction “REFER TO THE INSTRUCTIONS.”

The jury returned a guilty verdict within an hour. The defendant was sentenced to 32 years to life in prison, and the Court of Appeal affirmed in an unpublished opinion.

The state Supreme Court denied review, and the district judge denied habeas corpus relief.

Judge’s Reasoning

Judge Marsha Berzon, writing yesterday for the Ninth Circuit, agreed with the defendant that the trial judge should not have communicated with the jury in the absence of defense counsel, but said that the court cannot, on habeas corpus review, conclude that the error occurred at a “critical stage” of the proceedings, which would make it structural occur. 

Under the Antiterrorism and Effective Death Penalty Act of 1996, Berzon explained, federal courts must defer to the Court of Appeal’s implicit holdings—the issues were not specifically addressed—that the error was not structural and was harmless beyond a reasonable doubt, unless U.S. Supreme Court precedent dictates otherwise.

“Specifically,” the judge explained,  “we must find that a state court would be objectively unreasonable in holding that a mid-deliberations communication to the jury that does no more than refer the jury back to the original jury instructions is not a ‘critical stage’ under [United States v.] Cronic [466 U.S. 648],” a 1984 case.

Under Cronic and subsequent Supreme Court cases, Berzon explained, a stage of the proceedings is “critical” only if counsel’s absence has a significant impact on the outcome. It would not have been unreasonable, she said, for the Court of Appeal to determine that because the trial judge’s response merely incorporated the original instructions, which were formulated with defense counsel’s participation, the formulation of the response was not a critical stage.

The judge went on to say that the error was harmless because even if defense counsel had been present and persuaded the judge to give a more favorable instruction on malice, the jury’s first degree murder verdict effectively shows that they would have found express malice.

The case is Musladin v. Lamarque, 03-16653


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