Brief Bank # B-573 (Re: PG IX(C)(2) [General Rules For Framing Supplemental Instructions: Response to Jury Reinstruction Request Must Be Balanced].)
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VII
THE COURT VIOLATED APPELLANT’S DUE PROCESS RIGHT TO A FAIR TRIAL
AND RIGHT TO COUNSEL WHEN IT REREAD THE PROSECUTION’S CLOSING
ARGUMENT REGARDING THE SEVERAL EVIDENTIARY POINTS WHICH
PURPORTEDLY ESTABLISHED PREMEDITATION
A. Facts/introduction
After the jury had deliberated for nearly two and one-half hours it indicated to the court that: “We need to use the 17 points the DA used as evidence to come to a verdict in his closing statements. (to reread the points of interest) if this is possible. Thank you. We are having a problem with premeditation.” (R.T. 1133; C.T. 257, 259, 261.) The court ascertained that the jury did not find CALJIC 8.20 useful to resolving its confusion. (R.T. 1136.) Over appellant’s objection the court reread the prosecution’s rebuttal argument, in which it listed all of the evidence which it contended established premeditation. (R.T. 1135,1136; C.T. 261.) No other instruction regarding premeditation was given. Rereading the prosecution’s argument denied appellant of his right to due process, a fair and balanced trial and his sixth amendment right to counsel.
It was apparent that the jury could not rely on the standard instruction to resolve the question of premeditation and were looking to the prosecution’s closing argument so that it could come to a verdict. (C.T. 258.) The court reminded the jury that, “statements of attorneys are not evidence (and) that closing arguments are the attorneys attempts to argue or persuade you to their position to what they believe the evidence shows.” (R.T. 1135.) The only additional instruction the jury received on the issue of premeditation was the prosecution’s summation argument.
B. The Court’s Instruction Denied Appellant of His Due Process Right To A Fair Trial
Due process notions demand that when the jury has expressed difficulty in resolving an issue at trial that the court’s response must be balanced and not unequally favoring either side. As one federal court has written:
It is well-established that in giving additional instructions to a jury, particularly in response to inquiries from the jury, a court must be especially careful not to give an unbalanced charge. Although the failure to give any presumption of innocence instruction does not mandate reversal in all criminal appeals, (citation omitted) the particular significance of a supplemental charge when a jury has been unable to reach a decision on the basis of all it has heard up until that time demands an exacting sensitivity on the part of the trial court to give an accurate and balanced instruction. (Bollenbach v. United States (1979) 326 U.S. 607, 612, 66 S.Ct. 402, 90 L. Ed. 350 (additional citation omitted) (United States v. Meadows (1979) 598 F. 2d 984,990)
The Meadows case arose in the context of the jury requesting additional instruction on the law of fraud, which was given without a “balancing” instruction on the burden of proof requisite in that trial. (Id., at p.989.) The Fifth Circuit has also relied on the well-established principle that:
When the jury requests further instructions on points which are favorable to the Government, the trial judge should repeat instructions favorable to the defense where the requested instructions taken alone might make an erroneous impression in the minds of the jury. (citation omitted) In the present case the instructions requested by the jury were not inherently favorable to either side; but the trial court went beyond the request to provide additional instructions strongly emphasizing the theory of the prosecution. (citation omitted) (United States v. Carter (1974) 491 F. 2d 625, 634.)
The Carter court recognized that after nearly two hours of deliberation that when the jury returns not with a verdict but with a request for a clarification for a particular point of law, “It must be recognized that the jury has been unable to reach a decision on the basis of all it has heard up until that time. Under those circumstances a trialjudge must be acutely sensitive to the probability that the jurors will listen to his additional instructions with particular interest and will rely more heavily on such instructions than on any signal portion of the original charge. Thus, the court must exercise special care to see that inaccuracy or imbalance in supplemental instructions do not poison an otherwise healthy trial. (United States v. Carter, supra, at p.633, emphasis added.) There the court found that the supplemental charge did not meet the “high standard of balance and fairness necessary to assure defendant a fair trial.” (Ibid.)
In the present case, the jury indicated that they were having trouble with premeditation and requested further instruction, and if possible a reread of the prosecution’s list of points establishing premeditation. Due process principles make it incumbent upon the court to give a balanced response to the jury’s request for instruction, rather than the prosecution’s rebuttal argument on the issue of premeditation.
Both state and federal decisions have long recognized that instructions “of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence are impermissible,” on the basis that such an instruction is argumentative. (People v. Gordon (1990) 50 Cal.3d 1223,1276, citing People v. Wright (1988) 45 Cal.3d 1126, 1135-1138.) Likewise a judge is prohibited from instructing the jury with argumentative instructions favoring a certain party. [Footnote 1] (Quercia v. United States (1932) 289 U.S.166, 77 L.Ed.1321, 53S.Ct 698.)
It is evident from the foregoing established body of law that due process principles do not tolerate giving a jury argumentative instruction from the court, whether it be the court’s own directives or rereading the prosecution’s dissertation on the problematic area.
This conclusion is supported by reference to statutory provisions which authorize the procedure for the conduct of a trial. Penal Code, section 1093 states that at the conclusion of the arguments the judge charges the jury. (Pen. Code, § 1093(f).) The statute further provides in part that: “The judge may then charge the jury, and shall do so on any points of law pertinent to the issue, if requested by either party … At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case.” (Pen. Code, § 1093 sub. (f), emphasis added.)
Penal Code, section 1127 states in part: “in charging the jury the court may instruct the jury regarding the law applicable to the facts of the case…either party may present to the court any written charge on the law, but not with respect to matters of fact, and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused..” (Emphasis added.)
Thus the unambiguous intent regarding the conduct of the trial after the arguments have been presented is to instruct the jury with points of law pertinent to the case and not with respect to facts. Attempting to resolve a jury request for more specific instruction on a point of law with the prosecution’s highly factual argument is not authorized by statute and in fact flies in the face of the procedure for charging the jury with their duty to resolve the case.
Appellant is aware of a recent California Supreme Court decision that in dictum held that the inherent authority regarding the performance of its functions “includes the power to order argument by counsel to be reread to the jury or to be furnished to that body in written form.” (People v. Gordon, supra, 50 Cal.3d 1223,1260.) This decision is not controlling in the present case because the court did not decide the issue presented by this case–whether the prosecution has the right to have its argument on crucial points reread when objected to by the defendant and is thus purely dictum.
In Gordon the issue there arose because the jury had requested the defense summation reread, which was denied because the trial court believed that the jury should only consider the evidence in the case, that the attorney’s statements were not evidence and that it was inappropriate to emphasize one argument over another. (Id., at p.1258-1259.) Thus the issue was whether the defense had the right to have its summation reread, instead of whether it was appropriate for the jury to have the prosecution’s argument regarding the very issue they were struggling with reread.
The Gordon decision is likewise not controlling because it did not address the constitutional concerns raised by appellant in this appeal. The Gordon decision was based on the court’s interpretation of Penal Code, section 1138 which it determined obligated the court to reread testimony and provide further instruction on the law upon request but not to reread arguments of counsel. (Id., at p. 1259-1260.) Gordon did not discuss the due process or right to counsel issues raised by appellant. Nor did it analyze the effect of Penal Code, sections 1093 and 1127 discussed above. Cases are not authority for propositions not considered by the ruling court. (See, e.g. People v. Dillon (1983) 34 Cal.3d 441, 473-474.)
C. Rereading the Prosecution’s Rebuttal Argument Denied Appellant the Right to the Effective Assistance of Counsel
Appellant is guaranteed the right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and article 1, section 15, of the California Constitution. The right to counsel is guaranteed at all critical stages of a proceeding when his substantial rights may be affected. (Mempha v. Rhay (1967) 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336.) This right extends to the giving of instructions. (People v. Dagnino (1978) 80 Cal.App.3d 981, 987.) Also within the right to counsel is the right to counsel to prepare a defense and to present an argument to the finder of fact. (People v. Washington(1969) 71 Cal.2d 1061,1085, citing (People v. Eggers (1947) 30 Cal.2d 676, 693.)
The constitutional right to argue necessarily implies a meaningful opportunity to argue. “The right of counsel to discuss the merits of a case, both as the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom.’” (Ibid.) The right to the assistance of counsel means that there can be no restrictions on the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary fact finding process that has been constitutionalized in the Sixth and Fourteenth Amendments. (Herring v. New York(1975) 422 U.S. 853, 95 S.Ct. 2550, 2553, 45 L. Ed.2d 593, 598.)
The court’s rereading to the jury the prosecution’s comprehensive argument on the evidence in relation to premeditation undermined appellant’s right to have counsel present when the jury was instructed and to present a meaningful argument. Of course the attorney was physically present when the decision to reread the testimony was made. However, because the prosecution was allowed to get another crack at the major disputed issue in the case, premeditation, without any corresponding reply or balancing instruction, appellant was in effect without counsel during this significant phase of the proceeding. Likewise giving the prosecution an opportunity to have its discourse on premeditation repeated at the most opportune time, when the jury was grappling with the meaning of premeditation, rendered meaningless appellant’s right to present its own argument and defense at this same time when the jury was looking to resolve this issue. This conclusion is especially evident in light of the fact that the “17 points of premeditation” were initially presented to the jury after appellant’s summation argument rendering him unable at any time to address the prosecution’s summation.
D. The Error Requires Reversal Under Chapman or Watson Standard of Review
“Because this error is of federal as well as state constitutional dimension,… (the court) must apply the reversible error test set out in Chapman v. California, supra, 386 U.S. 18.” The government cannot prove beyond a reasonable doubt that this error did not contribute to the verdict obtained, as the Chapman test requires.
As mentioned above the premeditation issue was the primary disputed issue in the case inasmuch as appellant acknowledged that he had killed Ms. B, but did so in the heat of passion. Repeating the prosecution’s summation of the issue at the very time the jury was admittedly having difficulty with the issue, without a corresponding balancing instruction regarding the defense views of premeditation was highly prejudicial inasmuch as the jury returned with a first degree murder conviction.. Because of the timing of this reread in light of the jury’s request for assistance it can be said that even under the Watson standard of review, prejudicial error has occurred. (People v. Watson, supra, 46 Cal.2d at p.836.)
Further the fact that the court also told the jury that the prosecution’s summation was not to be used as “evidence,” could not repair the damage from hearing the government’s interpretation of premeditation in regards to Mr. R. The courts have long recognized that statements made by the prosecution “although worthless as a matter of law, can be “dynamic” to the jury because of the special regard the jury has for the prosecutor…’” (People v. Bolton (1979) 23 Cal.3d 208, 213.) An example of a similar principle in operation is in the Quercia case where the trial court judge had improperly given his opinion that the defendant was lying, but also that his opinion of the evidence was not binding on the jury and they could nevertheless find him not guilty. (Quercia v. United States, supra, 289 U.S. 466 at p. 472, 77 L. Ed. 1321, 1326.)
The federal high court found that this admonition did little to minimize the effect that the court’s statement would have made and that his opinion was “most likely to remain firmly lodged in the memory of the jury and to excite a prejudice which would preclude a fair and dispassionate consideration of the evidence.” (Ibid.) Although here we are not dealing with a judge’s statements there is nevertheless the recognition that the prosecution’s statements carry a significant amount of weight and that at the time the argument was reread, the jury was looking for assistance with their difficulty with the premeditation concept. The unavoidable fact is that the jury said they could not resolve the premeditation issue with CALJIC 8.20 and the only additional tool the court gave the jury to resolve this was the prosecution’s detailed summation on this issue. [Footnote 2]
Further, evidence that the jurors deliberated for such a long time indicates that this was not an open and shut case. (People v. West (1983) 139 Cal.App.3d 606, 610.) The Supreme Court has stated that a six hour deliberation indicates a weak case, and that it was an indication that the jury had uncertainties regarding the identification of the perpetrator of the crime. (People v. Woodard (1979) 23 Cal.3d 329, 341.) Here the jury likewise deliberated a lengthy time and there is no question that the jury did have trouble with the premeditation issue.
Based on the foregoing appellant requests that his conviction be reversed.
FOOTNOTES:
Footnote 1: Not all judicial comments are forbidden. However the comments must be accurate, temperate, non-argumentative and scrupulously fair. (People v. Rodriguez (1986) 42 Cal.3d 730,766-767.)
Footnote 2: The “17 points of premeditation” summation is contained at R.T. 1097-1104.
