Brief Bank # B-793 (Re: PG IX(C)(2) [Response To Jury Reinstruction Request Must Be Balanced].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE
Defendant and Appellant.
___________________________________/
APPEAL FROM THE JUDGMENT
OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
Honorable F. Clark Sueyres, Judge
APPELLANT’S OPENING BRIEF
JANET J. GRAY
Attorney at Law
STATE BAR NO. 99723
P.O. Box 51962
Pacific Grove, CA 93950
(831) 375-6263
Attorney for Appellant
III
THE COURT’S SUPPLEMENTAL INSTRUCTION WAS IMBALANCED,
IMPLIEDLY DIRECTING A VERDICT FOR MURDER
Appellant also contends that the court’s supplemental instruction, cited in detail in Argument I, was unbalanced, favoring the prosecution’s theory of the case and essentially directing a verdict for murder.
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. (Quercia v. United States, supra, 289 U.S. 166.)
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 (5th Cir.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 (5th Cir. 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 trial judge 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.)
In Carter 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.)
Our own state high court has established guidelines in the area of constitutionally authorized judicial comment, distinct from the area of jury instruction, in People v. Rodriguez (1986) 42 Cal.3d 730. There the court wrote, “the decisions admonish that judicial comment on the evidence must be accurate, temperate, nonargumentative, and scrupulously fair. The trial court may not, in the guise of privileged comment, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate factfinding power. [Citations.]” (Id., at p. 766, cited with approval in People v. Proctor (1992) 4 Cal.4th 499; See also, People v. Gates (1987) 43 Cal.3d 1168, 1207.)
The Rodriguez court also noted that a trial court has “broad latitude in fair commentary, so long as it does not effectively control the verdict. For example, it is settled that the court need not confine itself to neutral, bland, and colorless summaries, but may focus critically on particular evidence, expressing views about its persuasiveness. [Citations.]” (People v. Rodriguez, supra, 42 Cal.3d at 768; .)
. . .Appellate courts still must evaluate the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the court’s remarks deprived the accused of his right to trial by jury. (E.g., People v. Scott (1960) 53 Cal.2d 558, 564) [additional citation]
. . .
As we have suggested, “a trial court that chooses to comment to the jury must be extremely careful to exercise its power ‘with wisdom and restraint and with a view to protecting the rights of the defendant.’ [Citations.] The court’s comments must be scrupulously fair and may not invade the province of the jury as the exclusive trier of fact. [Citation.]” People v. Rodriguez, supra, 42 Cal.3d at pp. 766-767.)
In the present case, the jury indicated that they were deadlocked. The supplemental instruction given to the jury when read as a whole impliedly directed a verdict for second degree murder. Initially, the jury was told to consider the charge of first degree murder without regard to appellant’s defense, which unfairly focused the jury on the prosecution’s case without reference to very significant defense factors. There is no way of knowing from this record, whether the jury, having been told to disregard appellant’s defense, merely stopped deliberating having concluded that a murder was in fact committed.
The court’s further efforts to direct the jury to the self-defense factors, were so obscurely stated as to be rendered nearly unintelligible. For example, the court tells the jury after considering just the murder charge, to “consider whether the killing was unlawful, whether the killing was not justified by self-defense.” It is hard to discern what exactly the court is imploring the jury to do, in light of the directive to consider whether the killing was “not” justified by self-defense. In fact, the only way this directive can make sense is to have told the jury to consider whether the killing was justified by self-defense. While telling the jury they should consider if the killing was not justified by self-defense may be grammatically correct, by posing the question in the negative, the expected outcome of the determination is suggested.
Likewise, directing the jury’s attention to the question of imminent peril, the court’s directive strongly suggests that there is no actual imminent peril, and thus no actual but unreasonable belief in the necessity of self-defense. Nothing in the supplemental instructions balanced the focus to favorable defense factors; in fact the complete contrary is true, the court inasmuch told the jury not to consider appellant’s self-defense claim, and if it did, that the element of imminent peril was missing because appellant feared some future harm from the spell that had been placed on him. The result is the same whether the court’s statements are considered under the instruction guidelines of Wright or the judicial comment principles found in Rodriguez. The court’s statements impliedly directed the jury to find appellant guilty of murder.
Appellant has discussed at length the fact that this supplemental jury instruction deprived appellant of his due process right to a fair trial and to the right to trial by jury. Appellant has also discussed elements suggesting prejudice that are likewise, equally applicable here. Appellant refers to that discussion to avoid repetition.
Based on the foregoing, appellant respectfully requests that his conviction be reversed.
