Brief Bank # B-570 (Re: F 2.03c / F 2.04b / F 2.06e / F 2.52f [Consciousness Of Guilt: Must Relate To Charged Crime])
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DATE OF BRIEF: JULY 1993
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
__________________________________/
Excerpt From
OPENING BRIEF OF APPELLANT JOHN DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Orange
The Honorable Richard M. Aronson
Presiding Commissioner
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
III. The Conviction Should Be Reversed Because The Instructions Permitted The Jury To Infer “Consciousness Of Guilt” Of The Offenses Charged From Alleged Flight And Evidence Suppression, When Based On The Record, Those Alleged Facts May Only Have Shown “Consciousness Of Guilt” Of Other Offenses, And Not Of The Charged Offenses
The trial court gave two standard jury instructions (CALJIC 2.06 and 2.52) that permitted the jury to find “consciousness of guilt” from certain alleged actions of the defendant, namely, flight and suppression of evidence.
As this section will show, these instructions as given violated Mr. Doe’s right to due process of law in this particular case, because (1) based on the record evidence, the “guilt” of which the defendant supposedly had “consciousness” may have been guilt of an uncharged offenses and not of the charged offenses for which he was on trial, and (2) no logical inference–nothing beyond conjecture–would allow the jury to determine whether the offense for which the defendant was supposed to have manifested “consciousness of guilt” was an offense for which he was on trial or some other offense.
Appellant therefore asks that if a new trial is ordered, this Court also hold that neither CALJIC 2.06 nor CALJIC 2.52 can be given as they were in the original trial. In the alternative, if this Court did not find any other reversible error, appellant would ask that the judgment be reversed on this ground alone.
CALJIC 2.06 and 2.52 allowed the jury to infer appellant’s guilt of the offenses for which he was charged and tried from certain factors alleged that are supposed to show “consciousness of guilt”–suppression of evidence and flight. [Footnote 1] Appellant assumes that CALJIC 2.52 was based on his struggle after being arrested, and CALJIC 2.06 was based on his throwing the bag over a fence three feet away. While the baggie toss seems like a futile gesture more than anything, and it appears to be stretching things to label Mr. Doe’s struggle as “flight,” appellant accepts arguendo that the acts in question are evidence of attempted flight and attempted suppression of evidence.
“Flight” and “suppression of evidence” are not themselves direct evidence of most crimes (the exceptions being ones such as obstruction of justice and failure to render aid). In this case, “flight” and “suppression” certainly are not direct proof of the offenses charged. That a person struggled during an arrest, or threw a plastic bag a distance of three feet, does not itself show that a person offered or sold cocaine.
What such acts are accepted as showing is a “guilty mind,” evidently based on the underlying assumption that a person who is innocent does not flee to avoid detection or apprehension, and does not try to destroy evidence. “[I]t is more probable that a guilty man will flee from the scene of a crime than an innocent one.” (People v. Flannelly (1900) 128 Cal. 83, 87.) “[A] party’s . . . suppression of evidence by . . . spoilation . . . is receivable against him as an indication of his consciousness that his case is a weak or unfounded one.” (Thor v. Boska (1974) 38 Cal.App.3d 558, 567, quoting 2 J. Wigmore, Wigmore on Evidence (3d ed. 1940), § 278, p. 120.)
In other words, flight and suppression of evidence are said to show a “consciousness of guilt.” (People v. Brooks (1966) 64 Cal.2d 130, 138; People v. Hannon (1977) 19 Cal.3d 588, 599.) In turn, a “consciousness of guilt” is said to be an “implied admission,” and thus evidence of crime. (People v. Brooks, supra, 64 Cal.2d at p. 138; see also E. Cleary, McCormick’s Handbook of the Law of Evidence (2d ed. 1972), § 273 at 660.)
However, “consciousness of guilt” evidence such as flight and suppression of evidence, of itself, has no probative value other than to show “consciousness of guilt.” (E.g., People v. Hill (1967) 67 Cal.2d 105, 120.) [Footnote 2]
Appellant agrees that if such alleged facts are proven in a given case, they can be evidence of consciousness of guilt of an offense, and therefore evidence that a person is guilty of an offense. At the same time, if these factors are evidence of consciousness of guilt of some offense, that does not necessarily mean they are evidence of consciousness of guilt of the offense for which a defendant is being charged and tried.
Yet the only “consciousness of guilt” evidence that could be probative in any given case is evidence of “consciousness of guilt” of the particular offense for which a defendant is being charged and tried. Obviously, if a defendant has a “guilty mind” about having committed crime A, that does not make it any more likely that he committed crime B, at least when A and B are different crimes. One could hardly argue that if a defendant had attempted a nighttime burglary but fled upon being discovered, that would be probative evidence that the same defendant committed a completely unrelated murder.
CALJIC 2.06 and 2.52 do not make this distinction, and indeed suggest to a jury that if it finds a factor supposedly showing some “consciousness of guilt” of some unstated crime, this is evidence of guilt of the crime for which the defendant is on trial. But in some cases, that is not a logical inference, because a defendant may have “consciousness of guilt” of an uncharged offense just as easily as he might have “consciousness of guilt” of a charged offense, and it may be impossible to tell which is true because the record shows more than one offense of which the defendant might have a “guilty mind.”
In such a case, there is no logical connection between the evidence and the defendant’s guilt of the offense for which he is being charged and tried. To instruct the jury that it may draw the desired inference from such evidence contravenes California statute and violates a defendant’s right to due process of law.
An example from this particular case may help to clarify. Mr. Doe’s post-arrest struggle is apparently alleged to have been “flight” justifying CALJIC 2.52. His throwing the bag over the wrought iron fence is apparently alleged to be an attempt to suppress evidence justifying CALJIC 2.06.
Neither of these events alleged, however, sheds any light on whether Mr. Doe had a “consciousness of guilt” as to the charged offenses, offer or sale of cocaine. Based on this record, Mr. Doe may also have had a “consciousness of guilt” of mere possession of cocaine. That, after all, is also a felony which can result in a prison term. A person who possessed cocaine, knew he was being arrested, and feared the consequences of a possession charge could as easily try to resist arrest as one who feared the consequences of a sale charge. A person who feared a possession charge could as easily try to throw away the evidence as one who feared a sale charge.
In other words, the jury was told that it could consider these acts as evidence of Mr. Doe’s guilt of the charged offense, when based on the record, the acts may not have been evidence of guilt of the charged offense at all, but only evidence of guilt of an uncharged offense such as possession.
The inference that Mr. Doe was “conscious of guilt” of one of the offenses charged is no more likely to be true than the inference that he was “conscious of guilt” of something else that appears in the record. Any connection between the underlying fact (the alleged flight or suppression of evidence) and the sought-after inference (consciousness of guilt of the offense charged) is entirely speculation; the underlying fact may just as easily lead to a completely different inference, and have nothing to do with the one sought by the prosecution.
Our Supreme Court has stated, “A reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.'” (People v. Crandell (1988) 46 Cal.3d 833, 871.) That in fact underlies much of the problem here. Based on this record, jurors were told that they could infer guilt of “the specific offense charged” from evidence that only showed “some wrongdoing,” which may or may not have been the specific offense charged. There is no way a juror could know.
To allow the jury to draw such an inference–inferring consciousness of guilt of the offense charged from what is no more than evidence that the defendant is conscious of guilt of some offense, when more than one offense of which the defendant might have “consciousness of guilt” is suggested from the record
–is contrary to both California law and the U.S. Constitution.
Evidence Code section 600, subsection (b) states that “[a]n inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts” (emphasis added). When, as here, the underlying fact could lead to any one of a number of conclusions, and none of those conclusions more logically flows from the underlying fact than any of the other conclusions, the desired “deduction” is really nothing more than conjecture.
As our Supreme Court has repeatedly held, “[a] reasonable inference . . . ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.’ . . . [¶] A finding of fact must be an inference drawn from evidence rather than mere speculation as to probabilities without evidence.” (People v. Morris (1988) 46 Cal.3d 1, 21 (citations omitted). Here, there are not even probabilities; there are mere possibilities, and it is impossible to tell which is more possible. This does not rise to the level of a permissible inference under state law.
Furthermore, since this presents a situation where there is no rational–as opposed to speculative or conjectural–connection between the underlying facts (flight or suppression) and the sought-after inference (consciousness of guilt of the offense charged), instructing the jury that it may draw the desired inference from the underlying facts is a violation of a defendant’s right to due process of law. The general principle was set forth in Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 165, when the Supreme Court held that a permissive inference (or permissive presumption) violates a defendant’s right to due process unless there is a rational connection between the underlying fact and the desired inference, and it can be said “with substantial assurance” that the latter is “more likely than not to flow from” the former. (Accord People v. Pensinger (1991) 52 Cal.3d 1210, 1243, cert. denied (U.S. Oct. 21, 1991) 116 L.Ed.2d 290; People v. Anderson (1989) 210 Cal.App.3d 414, 427.)
But that is precisely the situation here, because there is only a conjectural and not a rational connection between alleged flight/suppression and consciousness of guilt of the offense for which Mr. Doe was charged and tried, and the latter is no more likely to flow from the former than is consciousness of guilt of other offenses for which Mr. Doe was not on trial.
To put it another way, the instructions in question permitted the jury to infer a given mental state from the defendant’s acts, when it was impossible to tell whether those acts showed that particular mental state or a different mental state. Any conclusion as to which inference to draw would be speculation, not rational inference. Conviction based on speculation lightens the prosecution’s burden of proving each element of a crime beyond a reasonable doubt, and thereby violates a defendant’s right to due process. (In re Winship, supra; see People v. Saddler (1979) 24 Cal.3d 671, 679-80.) [Footnote 3]
Thus, an instruction that permits a jury to draw an inference from certain underlying facts, when it cannot be said “with substantial assurance” that the inference is “more likely than not” to flow from the underlying facts, is constitutionally deficient under the U.S. Supreme Court’s decision in Ulster County Court v. Allen, supra. The Ninth Circuit Court of Appeals found exactly this type of federal constitutional deficiency, under different facts, in the recent case of Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316 (citing Ulster County Court v. Allen, supra).
In order for appellant’s conviction to stand, the prosecution would have to show that the error was “harmless beyond a reasonable doubt”–that without the error, the only conclusion a rational juror could reach would be that the prosecution had proven all elements of the crime beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) Neither that nor the lesser showing set forth in People v. Watson (1956) 46 Cal.2d 818, 836, cert. denied (1957) 355 U.S. 846, can be met here.
Assuming arguendo that there was sufficient evidence to convict Mr. Doe (otherwise, the issue in this section would not need consideration), the evidence would have been weak at best. There was no delivery of the substance and therefore no sale, and no evidence of whether Mr. Doe intended to deliver it and therefore no offer. In such a tenuous case, allowing the jury to infer that a defendant is guilty of the charged offenses from evidence of bad conduct that was not logically connected to the charged offenses is certainly harmful error. Furthermore, the prosecution made a strong argument that the jury should draw the impermissible inference, that the alleged flight and suppression of evidence showed Mr. Doe’s guilt of the offense charged (RT 117):
[Mr. Doe] is the one who, when he is confronted with the fact that Officer Jimenez is, in fact, a police officer, is the one who tries to flee, tries to leave, tries to throw away the evidence trying to destroy it. Doesn’t that demonstrate his knowledge that what he’s doing is wrong, that he knew he got caught, and that his bias has to do with being found guilty of having to make that sale to the officer?
The fact that the prosecution highlighted the impermissible inferences in closing argument underscores the fact that the error was not harmless. (See People v. Roder (1983) 33 Cal.3d 491, 505; People v. Pugh (1983) 145 Cal.App.3d 854, 858.)
The conviction should be reversed.
OPENING BRIEF FOOTNOTES:
Footnote 1: The trial court gave CALJIC 2.06 as follows:
If you find that the defendant attempted to suppress evidence against himself in any manner, such as by destroying evidence or by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration. (RT 124)
The trial court gave CALJIC 2.52 as follows:
The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. (RT 128)
A related instruction given at this trial was CALJIC 2.03, dealing with alleged false statements. This instruction warranted reversal for reasons relating to those set forth in this section, but also presented additional problems of its own. As a result, the CALJIC 2.03 issues will be discussed in this next section.
Footnote 2: That also follows from the fact that flight and suppression are not themselves evidence that a person committed a crime, and do not establish guilt standing alone. (See, e.g., People v. Moore (1963) 211 Cal.App.2d 585, 600; CALJIC 2.06, 2.52.)
Footnote 3: CALJIC 2.52, as given in this case, presents a compounded problem relating to this analysis. That instruction refers to the flight of a person “immediately after the commission of a crime, or after he is accused of a crime” (emphasis added). It says such flight may be considered in deciding the question of the defendant’s guilt or innocence of the crime charged. In other words, a jury may consider a defendant’s flight after commission or accusation of any crime–whether or not it is the one charged–to determine guilt or innocence as to the one charged. The breadth of that instruction tells a jury that it can draw the irrational inference that “consciousness of guilt” of crime A is evidence that the defendant is guilty of crime B, allowing the jury to convict the burglar described above of the unrelated murder.
The same problem exists here. Commission of a crime does not present a logical inference, at least in this case, that the defendant is guilty of the particular crimes with which he is charged. There is nothing to suggest that evidence of flight after a defendant is caught possessing a substance containing cocaine has any logical connection to whether the defendant is guilty of the offenses of offering or selling cocaine.
The fact that Officer Jimenez advised Mr. Doe that he was under arrest for selling cocaine (RT 26, 37) does not solve any of the problems discussed in this section. First, a defendant who believes he is guilty of one crime (here, possession) may still have a significant “consciousness of guilt” of that crime, even if an arresting officer advises him that the arrest was for a different crime of which he may not be guilty. Second, Mr. Doe could not have had any “consciousness of guilt” of the offense for which he was told he was being arrested, sale of narcotics, because he did not sell any narcotics. Mr. Doe in fact told Officer Jimenez that he had not sold him any narcotics (RT 37), and he was quite right in that regard. Thus, whatever “consciousness of guilt” Mr. Doe may have had was unrelated to the offense for which he was told he was being arrested. It is not possible to tell which of the offenses for which he was not told he was being arrested was the one for which he was supposed to have had “consciousness of guilt.”
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
__________________________________/
Excerpt From
REPLY BRIEF OF APPELLANT JOHN DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Orange
The Honorable Richard M. Aronson
Presiding Commissioner
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
III. The Conviction Should Be Reversed Because The Instructions Permitted The Jury To Infer “Consciousness Of Guilt” Of The Offenses Charged From Alleged Flight And Evidence Suppression, When Based On The Record, Those Alleged Facts May Only Have Shown “Consciousness Of Guilt” Of Other Offenses, And Not Of The Charged Offenses [Appellant’s Opening Brief, Part III, Pages 25-35]
A. The Merits
The State’s arguments misconstrue and fail to address the legal issue actually raised by the appellant:
Does the federal constitutional guarantee of due process of law, as well as Evidence Code § 600, prohibit a trial court from instructing a jury that it may consider a defendant’s flight or suppression of evidence as evidence of the offense charged, when (a) the record shows more than one possible offense that might have been committed by the defendant; (b) the defendant might have committed an uncharged offense without having committed the offense charged against him; and (c) it is impossible to determine whether the defendant’s flight or suppression of evidence relates to an uncharged offense that appears from the evidence, as opposed to the offense actually charged against him?
The answer should be self-evident. If something has no tendency in reason to prove or disprove something of consequence to the action actually brought against the defendant, it is not admissible evidence. (Evid. Code §§ 210, 350; People v. Hill (1992) 3 Cal.App.4th 16, 29-30.)
To tell the jury that something which lacks that tendency in reason to assist in the determination of the action may be considered as evidence, when it is not evidence, unconstitutionally lightens the prosecution’s burden of proving the defendant’s guilt beyond a reasonable doubt. (See, e.g, Sandstrom v. Montana, supra, 442 U.S. at pp. 520-21.) That error is compounded and magnified when the jury is told that the nonprobative item may be considered evidence of consciousness of guilt, because of the substantial prejudice (and questionable probative value) of such evidence. (See, e.g, E. Cleary, McCormick’s Handbook of the Law of Evidence (2d ed. 1972), § 271 at 655.)
None of the cases cited by the State regarding CALJIC 2.06 and 2.52 address the issue raised by the appellant. Similarly irrelevant here are the various cases cited by the State which have held that CALJIC 2.06 and 2.52 can be given under other circumstances.
The State appears to posit that flight or suppression of evidence always reflects consciousness of guilt of any crime with which a person might eventually or theoretically be charged. (See Respondent’s Brief, at 17, first full paragraph, second sentence.) No support is or could be adduced for such a creative proposition. If a homeless drug addict were caught on the street with a rock of cocaine and tried to throw away the rock, that would not logically support a later allegation that he was involved in a major drug conspiracy or was selling cocaine to minors.
Furthermore, something is not evidence if it merely supports a hypothetical charge that might be “out there” but has never been made. Something is only evidence if in a particular case, on the charges actually made against the defendant, it tends to prove those particular charges by logic and not speculation. (Evid. Code § 210; People v. Hill, supra; People v. Morris (1988) 46 Cal.3d 1, 21.)
It is impossible to generalize that any particular type of evidence will always be probative of guilt or innocence in any case, which is how the State seems to approach this issue (see Respondent’s Brief, at p. 18, first paragraph.) Rather, whether something is evidence is assessed on a case-by-case basis, with reference to the particular issues in a particular case. If in a particular case, something is not probative of guilt or innocence of the particular charges against that defendant, then it is not evidence. In such a case, the jury should not be told that it can consider the nonprobative item as evidence of guilt or innocence of the particular charges against the defendant.
Thus, a jury cannot be instructed that alleged flight or suppression of evidence can be used as evidence to convict the defendant of the offenses charged in the particular case for which the defendant is on trial, when it is not probative because there is no way to know whether the alleged flight or suppression has any tendency to prove the offenses charged in the particular case for which the defendant is on trial. However, that is exactly the type of erroneous instruction given the jury here.
“A reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.'” (People v. Crandell (1988) 46 Cal.3d 833, 871, cert. denied (1989) 490 U.S. 1037.) Thus, when a judge instructs the jury that it may consider “consciousness of guilt” as evidence of the specific offense charged in a particular case, (s)he is telling the jury that something which is not probative of the specific offense charged (“consciousness of some wrongdoing,” as opposed to “consciousness of having committed the specific offense charged”) may still be used as evidence supporting guilt of the specific offense charged. The due process violation in such an instruction under those circumstances should be self-evident. [Footnote 4]
“Consciousness of guilt” evidence has generally been considered to be of suspect probative value, especially when compared with the prejudice it can create. (See, e.g, Wong Sun v. United States (1963) 371 U.S. 471, 483, fn. 10 [9 L.Ed.2d 441, 83 S.Ct. 407], and authorities and discussion therein (“[W]e have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime.”).) Thus, for example, a leading evidence treatise harshly criticized the use of “consciousness of guilt” evidence in a manner such as that espoused by the State here:
[I]n many situations, the inference of consciousness of guilt is so uncertain and ambiguous and the evidence so prejudicial that one is forced to wonder whether the evidence is not directed to punishing the “wicked” generally rather than resolving the issue of guilt of the offense charged. Particularly troublesome are the cases where defendant flees when sought to be arrested for another crime, or is wanted for another crime, or is not shown to know that he is suspected of the particular crime. Is a general sense of guilt to be accepted? . . . .
The entire area calls for closer scrutiny of the validity of the suggested inference under the facts and circumstances of each particular case.
(E. Cleary, McCormick’s Handbook of the Law of Evidence, supra, § 271 at pp. 655-56, footnotes omitted.) Of course, after this treatise passage was written, the U.S. Supreme Court issued its decision in Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 165 [60 L.Ed.2d 777, 99 S.Ct. 2213], which raised the suggested “closer scrutiny” of the validity of the inference to an issue of federal constitutional law.
The invalidity of the sought-after inference in this case is also shown by United States v. Silverman (9th Cir. 1988) 861 F.2d 571, 581 (citing with approval United States v. Myers (5th Cir. 1977) 550 F.2d 1036, 1049, cert. denied (1978) 439 U.S. 847). There, the Court of Appeal held that four inferences must be justified for flight evidence to be probative of guilt in a particular case:
(1) the inference of flight, from the defendant’s behavior;
(2) the inference of consciousness of guilt, from the inference of flight;
(3) the inference of consciousness of guilt concerning the crime charged from the inference of consciousness of guilt; and
(4) the inference of guilt of the crime charged from consciousness of guilt of the crime charged.
It is assumed for the sake of this reply brief that (2) and (4) can be valid inferences supported by common experience. (But cf. United States v. Myers, supra, 550 F.2d at p. 1049; see also People v. Rankin (1992) 9 Cal.App.4th 430; Appellant’s Opening Brief at p. 33, fn. 10.) Nevertheless, it is still clear in this case that inference (3) cannot be drawn. There is simply nothing to suggest that any consciousness of guilt Mr. Doe might have had was directed to the offenses for which he was on trial, as opposed to a different offense (such as possession). Consequently, the entire chain collapses, alleged flight is not probative of guilt of the offenses with which Mr. Doe was charged, and a jury instruction stating that it is probative is manifestly in error.
It was for precisely this reason that United States v. Myers, supra, 550 F.2d at p. 1050, held that evidence of flight was inadmissible to show the crime charged, because it was impossible to tell whether the flight related to the crime charged or a different crime. Exactly the same principle applies here.
B. “Harmless Error” Analysis
The State’s claim of “harmless error” addresses a series of irrelevant issues. The “self-limiting language” of CALJIC 2.06 and 2.52 did not create a permissible inference out of an impermissible one, and did not prevent the jury from drawing the impermissible and irrational inference that flight or suppression could be evidence of guilt in this case. Similarly, CALJIC 17.31 is irrelevant here, because CALJIC 2.06 and 2.52 did apply to the facts of this case; the fatal problem with the “consciousness of guilt” instructions had nothing to do with the facts, but was instead that the jury was permitted to draw inferences of guilt from those facts in a manner contrary to law.
The “harmless error” claim also uses the wrong standard for the federal due process error under Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 165 [60 L.Ed.2d 777, 99 S.Ct. 2213]. The correct standard of review is that for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].)
Chapman held that an error of constitutional dimensions must result in reversal unless the prosecution shows beyond a reasonable doubt that the error did not contribute to the particular judgment of conviction actually imposed by the jury. (See id. at 23, 26; Fahy v. Connecticut (1963) 375 U.S. 85, 86-87 [11 L.Ed.2d 171, 84 S.Ct. 229], cited in Chapman, supra, 386 U.S. at p. 23.) Chapman explicitly rejected California’s then-reliance on “the court’s view of ‘overwhelming evidence'”–the argument also proffered by the State in this case–as a test for harmlessness in federal constitutional error. (See Chapman, supra, 386 U.S. at p. 23.)
Thus, “the question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” (Sullivan v. Louisiana (U.S. June 1, 1993) 93 Daily Journal D.A.R. 6962, 6963, emphasis added.) As Justice Scalia’s opinion for a unanimous Court in Sullivan made clear:
Harmless-error review looks, we have said, to the basis on which “the jury actually rested its verdict.” The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.
(Sullivan v. Louisiana, supra, 93 Daily Journal D.A.R. at p. 6963, emphasis in original, citation omitted.)
The State cannot show the error here to have been harmless beyond a reasonable doubt. The jury was expressly invited by the prosecutor to consider the alleged flight and suppression as evidence of the defendant’s guilt (RT 117), and the trial court told the jury that it could do so. There is obviously a reasonable possibility (and perhaps much more) that the jury took the prosecution up on its offer, and therefore a reasonable possibility that the impermissible inference played a role in the verdict actually returned by the jury.
As long as there is any “reasonable possibility that the evidence complained of might have contributed to the conviction,” the error is not harmless. (Chapman v. California, supra, 386 U.S. at p. 23, quoting Fahy v. Connecticut, supra, 375 U.S. at pp. 86-87; see also Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316, cert. denied (U.S. Jan. 11, 1993) 61 U.S.L.W. 3383, 3470, 3478; United States v. Rubio-Villareal (9th Cir. 1992) 967 F.2d 294, 296, fn. 3.) Thus, even if the questionable or nonexistent evidence of mental state in this case were as “overwhelming” as the State claims, the error would still have been prejudicial, and reversal would still be required.
Even under the lesser standard of People v. Watson (1956) 46 Cal.2d 818, 836, cert. denied (1957) 355 U.S. 846, the error would be prejudicial, because the evidence of guilt of the offenses charged was extremely weak and in fact nonexistent (see ante Part I(A)), and the prosecution attempted to bolster his weak or nonexistent case by arguing the impermissible inference in closing argument. (See Appellant’s Opening Brief, at p. 35.) There is certainly a “reasonable probability” that what the jury engaged in was “punishing the ‘wicked’ generally rather than resolving the issue of guilt of the offense charged.” (See E. Cleary, McCormick’s Handbook of the Law of Evidence, supra, § 271 at p. 655.)
The State’s arguments are without merit, and the conviction should be reversed.
IV. The Conviction Should Be Reversed Because The Instructions Permitted The Jury To Infer “Consciousness Of Guilt” Of The Offenses Charged From An Alleged False Statement, When Based On The Record, It Is Impossible To Tell Whether The Alleged False Statement Related To The Offenses For Which Mr. Doe Was Charged And Tried [Appellant’s Opening Brief, Part IV, Pages 36-39]
The State’s arguments as to CALJIC 2.03 appear to be a carbon copy of its incorrect arguments as to CALJIC 2.06 and 2.52 (see ante Part III), and also misidentifies and inaccurately portrays appellant’s points. There is nothing in Part IV of the respondent’s brief that rebuts the showing actually made by Mr. Doe in Part IV of his brief.
In this case, there is no evidence that Mr. Doe’s alleged false statements had anything to do with the crimes for which he was being tried (as opposed to an uncharged offense, such as possession). That should begin and end the analysis. The due process and evidentiary problems inherent in treating evidence of a false statement as probative of the offense for which the defendant is on trial, in a situation where there is no rational way to determine whether it really is probative of the offense for which the defendant is on trial, have been fully discussed above in Part III as well as in the Appellant’s Opening Brief, and need not be repeated here.
As a result, CALJIC 2.03 should not have been given, because no legally permissible inference may be drawn that Mr. Doe’s false statements pertained to the offenses for which he was being tried. The fact that CALJIC 2.03 as given told the jury what it could do if it found false statements relating to the offenses for which Mr. Doe was being tried did not cure the error. (See People v. Hannon (1977) 19 Cal.3d 588, 597-98.) Since there was no probative evidence in the record to support the instruction, the trial court should have made that determination as a matter of law, rather than leaving that determination of law to the jury. (Id.)
Instead, the trial court gave CALJIC 2.03, thereby telling the jury that it could find Mr. Doe to have made false statements relating to the crimes for which he was on trial when that conclusion was impermissible as a matter of law. Especially given the prosecution’s reference to false statements in closing argument, it is certainly possible that the jury drew precisely this impermissible conclusion in reaching its verdict. [Footnote 5]
For this reason, the error in the instruction–one of federal constitutional dimension (see Ulster County Court v. Allen, supra)–cannot be said to have been harmless beyond a reasonable doubt. (See ante Part III(B).) In any event, because of the manifest weakness of the prosecution’s case, the error was also prejudicial under the lesser standard of People v. Watson, supra. Again, the conviction should be reversed.
REPLY BRIEF FOOTNOTES:
Footnote 4: The State relies on a case involving rape and murder “in the same transaction at the same location,” People v. Griffin (1988) 46 Cal.3d 1011, 1027. The evidence in Griffin was obviously relevant to the issues in that case under the circumstances of that case. However, the rape-murder issues in Griffin obviously are based on circumstances far different than those in this drug case, and do not even arguably have any relevance to this analysis.
Moreover, while the State may well be able to show who committed a particular crime through “consciousness of guilt” evidence (which is what it did in Griffin), it can hardly rely on such evidence to help resolve the issue of whether the crime charged was committed at all. But that is the very issue here, for Mr. Doe could easily have had a “consciousness of guilt” of something without having had the intent to sell cocaine–and if he had no intent to sell cocaine, then the crime charged was never committed. The State’s argument could thus result in a defendant being convicted of a crime charged against him if he had a “consciousness of guilt” of something other than the crime charged, and in fact the crime charged was never committed. That makes no sense as a proposition of law, and it makes no sense in this case.
Footnote 5: CALJIC 17.31 cannot be relied upon as an omnibus means of ensuring that no error of law involving a jury instruction unsupported by the evidence will ever be reversible. Jurors are told that the trial judge is the sole determiner of the law and that they are the sole determiner of the facts. (CALJIC 1.00.) A juror’s common sense would tell him/her that if the trial judge is bothering to set forth a principle of law upon which the juror is asked to make a factual determination, the evidence in the case must be such that there is a factual determination to make. CALJIC 17.31 does not address that issue or affect that common-sense inference, and therefore would not have prevented the jury from finding that Mr. Doe made false statements relating to the crimes for which he was on trial when there was no evidence that the false statements related to those crimes.
Put differently, CALJIC 17.31 is appropriately given to relate to instructions (such as accomplice testimony instructions) that may or may not be applicable depending on what facts the jury happens to find. It is not appropriately given to relate to instructions that can never be applicable because no evidence supports them. The Comment to CALJIC 17.31 cites as justification for the instruction cases such as People v. Palmer (1946) 76 Cal.App.2d 679, 686-87. The full version of the instruction in Palmer shows clearly that it was intended to apply to the former situations (instruction may or may not be applicable, depending on facts) and not to the latter situations (instruction never applicable, irrespective of the facts).
