Brief Bank # B-739
EXCERPT FROM BRIEF
II. THE TRIAL COURT ABROGATED APPELLANT’S STATE AND FEDERAL DUE
PROCESS AND FAIR TRIAL RIGHTS WHEN IT INSTRUCTED OVER DEFENSE
OBJECTION WITH CALJIC NO. 2.52, “FLIGHT AFTER CRIME.”
A. Summary Of Proceedings Below.
During jury instruction discussion outside the presence of the jury, appellant objected to the trial court giving CALJIC 2.52, which read:
“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.”
Defense counsel argued that the only relevant evidence was that everyone ran at the same time from the scene; thus, appellant’s running from the scene could not be construed as consciousness of guilt. (RT 357.) The prosecutor argued that officer Miller, Mr. W and Mr. K stated that appellant was not around for police questioning. (RT 358.) The trial court overruled appellant’s objection (RT 358) and gave the instruction to the jury. (RT 375-376.)
B. The Trial Court Should Not Have Instructed With CALJIC 2.52 Because The Instruction
Focused The Jury On Flight As Evidence of Appellant’s Guilt When There Was No
Evidence That Appellant “Fled” At All.
1. The insufficiency of the evidence
“It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.” (People v. Saddler (1979) 24 Cal.3d 671, 681; citations omitted.) Thus a trial court must not instruct with CALJIC 2.52 — which informs jurors that they may consider a defendant’s post-crime flight as evidence of guilt — unless there is sufficient evidence that the defendant fled. There was no such evidence in this case.
People v. Pensinger (1991) 52 Cal.3d 1210 held that it was neither error nor a violation of due process to instruct with CALJIC 2.52 when there was no evidence the defendant knew he was accused when he fled. (Id. at 1243-1244.) As appellant correctly argued during jury instruction discussions, however, there is an even deeper flaw in the evidence here: the prosecution presented simply no evidence at all that appellant “fled.”
All of the percipient witnesses testified that everyone in the crowd bolted at the same time, when appellant and Mr. D were in the heat of their confrontation and the police were pulling up. Thus, while it is true that appellant ran, there is absolutely no evidence that he was “fleeing” the scene of the crime because he was culpable. In fact, it is quite possible that appellant’s running was a retreat, in response to Mr. D’s pulling the gun that Mr. L’s post-trial statement alleged he had. The point is that there is simply no evidence to indicate why and from what appellant ran.
The fact that Mr. W and Mr. K came back to give statements but that appellant did not is also insufficient evidence of flight. Finding other sufficient evidence of the defendant’s post-crime behavior to warrant giving the instruction, the Pensinger court nonetheless noted that “evidence that the accused left the scene and went home is not evidence of flight that necessarily supports an inference of consciousness of guilt.” (People v. Pensinger, supra, 52 Cal.3d at p. 1244; see also People v. Watson (1977) 75 Cal.App.3d 384, 402-403 [arrest at a later date and at a location different from the place of a crime is not sufficient evidence to warrant giving instruction on flight].)
2. The rights the error abridged
As appellant sets forth below, instruction with CALJIC 2.52 in the face of insufficient evidence abridged appellant’s state-created and federal rights.
a. California state law
California courts have long recognized the errors inherent in instructing improperly on flight. (See, e.g., People v. Jackson (1996) 13 Cal.4th 1164 [implying that the mere fact that the defendant drove back home with his sole source of transportation was not evidence of flight, but holding that running from the murder scene was sufficient to justify the instruction]; People v. Carrera (1989) 49 Cal.3d 291 [trial court should have deleted instruction language irrelevant to the particular flight that had occurred].) The trial court’s improper instruction regarding appellant’s flight in the face of insufficient evidence that appellant fled clearly abridged appellant’s state-created and recognized rights.
b. Federal constitutional rights
Instructions which lessen the state’s burden of proof or shift that burden to the defendant violate the Sixth Amendment right to trial by jury and the due process clause of the Fourteenth Amendment. (Yates v. Evatt (1991) 500 U.S. 391 [instruction that “malice is implied or presumed” from the “wilful, deliberate, and intentional doing of an unlawful act,” or from the “use of a deadly weapon” violated due process].) Instructing with CALJIC 2.52 when there was no evidence appellant fled lessened the prosecution’s burden of proof in precisely this manner: the prosecution got the benefit of an instruction which reframed appellant’s post-crime actions as a “flight” which the jury could consider as evidence of his guilt.
This instruction also abrogated appellant’s federal due process in another way. Where an inference of guilt is merely permissive (rather than mandatory), the state’s use of the inference only violates due process when, under the facts of the case, there is no rational way for the jury to make the logical connection which the inference permits. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157.) [Footnote 1] Here, because there simply was no evidence that appellant fled, all inferences and suggestions from the giving of this flight instruction were improper. There was no evidence that appellant fled; thus, this instruction that raised the specter of his consciousness of guilt based on actions he did not take was irrational, and violated his federal due process rights.
Finally, McDowell v. Calderon (9th Cir. 1997) 97 Daily Journal D.A.R. 14347 reversed a state penalty verdict on federal due process and cruel and unusual punishment grounds when the trial court failed to correctly instruct the jury after the jurors sought clarification of the instructions. The McDowell court recognized this violated due process because:
“A jury cannot fulfill its central role in our criminal justice system if it does not follow the law. It is not an unguided missile free according to its own muse to do as it pleases. To accomplish its constitutionally-mandated purpose, a jury must be properly instructed as to the relevant law and as to its function in the fact-finding process, and it must assiduously follow these instructions.” (Id. at 14348.)
In sum, appellant’s federal rights to fair trial and due process were abrogated when the trial court instructed the jury on flight.
C. The Instructional Error Requires Reversal
Since the error is of constitutional dimension, this Court must review for prejudice under the Chapman v. California (1967) 386 U.S. 18, 24 standard of reversal. This Court must reverse unless the prosecution can prove beyond a reasonable doubt that the error did not contribute to the verdict. This the prosecution cannot do. [Footnote 2]
The prosecution’s case against appellant was based principally on the testimony of three eyewitnesses who gave considerably contradictory testimony about when, whether, and under what circumstances appellant ever possessed a gun. Thus the slightest error in jury instructions was more than likely prejudicial. Here, the trial court instructed the jurors that they could consider the fact that appellant ran from the scene as evidence of his guilt. This is just the sort of “evidence” that tips the scale in favor of guilt in close cases such as this. As such, the error requires reversal.
Footnote 1: “[I]nference instructions in general are a bad idea. There is normally no need for the court to pick out one of several inference that may be drawn from circumstantial evidence in order for that possible inference to be considered by the jury. Inferences can be argued without benefit of an instruction; indeed, inferences are more appropriately argued by counsel than accentuated by the court. Further, because they are a detour from the law which applies to the case, inference instructions tend to take the focus away from the elements that must be proved. In this way they do a disservice to the goal of clear, concise and comprehensible statements of the law for lay persons on the jury. Balanced inference instructions are also difficult to craft.” (United States v. Warren (9th Cir. 1994) 25 F.3d 890, 900, J. Rymer, concurring.)
Footnote 2: Even under the more rigorous standard in People v. Watson (1956) 46 Cal.2d 818, reversal is required.