Metropolitan News-Enterprise


Friday, December 2, 2022


Page 1


Ninth Circuit Answers Question High Court Sidestepped

Panel Says Judge’s Failure to Give Standard Instruction Not to Draw Negative Inference From Defendant’s Decision Not to Take the Stand Is Subject to Harmless Error Doctrine, Agreeing With California Decision


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals declared yesterday that California’s First District Court of Appeal did not fail to apply clearly established federal law by affirming a conviction notwithstanding a judge having neglected to render the standard instruction to the jury not to infer guilt from a defendant’s decision not to testify.

In so holding, it did what the U.S. Supreme Court declined to do in its 1981 decision in Carter v. Kentucky. There, the high court reversed a third-degree burglary conviction because the judge did not give Kentucky’s standard instruction that “[t]he defendant is not compelled to testify and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way,” but did not say whether such a failure is subject to the harmless error doctrine it recognized in its 1967 decision in Chapman v. California.

 Writing for the majority, Justice Potter Stewart said in Carter:

“While it is arguable that a refusal to give an instruction similar to the one that was requested here can never be harmless…, we decline to reach the issue, because it was not presented to or considered by the Supreme Court of Kentucky.”

Agreement With Margulies

The Ninth Circuit, in affirming the denial of a petition for a writ of habeas corpus, yesterday agreed with the view expressed by California Court of Appeal Justice Sandra L. Margulies of Div. One in her Feb 27, 2015 unpublished opinion in People v. Forbes that the doctrine does apply, (as other California courts have found). Margulies observed that Solano Superior Court Judge Earl Bradley Nelson erred in failing to give the standard instruction but said:

“We conclude the trial court’s inadvertent failure to give CALCRIM No. 355 was harmless beyond a reasonable doubt.”

The Court of Appeal upheld the conviction of Howard Forbes on what Margulies summarized as “several sex crimes after he violently assaulted an intoxicated woman.”

The instruction Nelson neglected to deliver reads:

“A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”

Comment to Venirepersons

Margulies noted that although the instruction was omitted, “the trial court instructed the prospective jurors prior to voir dire on the issues raised by CALCRIM No. 355, essentially repeating to them the text of the instruction.”

The Ninth Circuit’s three-judge panel said in yesterday’s memorandum opinion that Nelson’s “observation” to prospective jurors “was consistent with federal law.”

 The California justice pointed out in her 2015 opinion that “the prosecution did not affirmatively call the jury’s attention to defendant’s silence in closing argument, reducing the risk of prejudice.”

The federal jurists commented:

“There is no established federal law to the contrary. Although the prosecutor stated in summation that the defense had presented no evidence to rebut the state’s case, the Supreme Court has not established that a prosecutor may not comment on the weight of the evidence in a way that indirectly refers to the defendant’s silence.”

Strong Evidence

Margulies wrote:

“[T]he evidence of defendant’s guilt was very strong….[T]he victim was found in an emotional and physical state suggesting she had been the victim of serious violence, and the medical exam found evidence of sexual abuse. The extent of her injuries and the emotional trauma she exhibited strongly supported an inference the sexual acts had occurred against her will.”

Physical evidence was corroborative and there was “no realistic room for doubting the substance of her testimony that crimes of sexual violence had been committed against her and defendant was the person who committed them,” the First District justice added.

The panel declared in yesterday’s opinion:

“[T]he court reasonably concluded that the weight of the evidence against Forbes was strong.”

Signing the opinion were Circuit Judge Johnnie B. Rawlinson, Senior Circuit Judge Andrew D. Hurwitz, and District Court Judge Kathleen Cardone of the Western District of Texas, sitting by designation. The opinion in the case—Forbes v. Eldridge, 21-16301—affirms a decision by District Court Judge Morrison C. England Jr. of the Eastern District of California.


Copyright 2022, Metropolitan News Company