Brief Bank # B-799 (Re: F 17.30 n4 [Improper For Trial Judge To Direct Jury To Matters Adverse To The Defense In Guise Of “Comment On The Evidence”].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
JOHN DOE, JR.,
Defendant and Appellant
APPELLANT’S SUPPLEMENTAL OPENING BRIEF
Pursuant To Court Order Issued September 10, 1998
Appeal From Final Judgment of Conviction
Superior Court, County of San Diego
The Honorable Donald Meloche
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
Attorney for John Doe, Jr.
By appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
10. Friday, February 2, 1996
a. Repeatedly Directing The Jury To Matters Adverse To The Defense, In The Guise Of “Comment On The Evidence”
This was an example of the judge engaging in partisan advocacy against the defense, in the guise of “comment on the evidence” and jury instructions. The subject matter was defense counsel’s opening statement.
There were certainly many things defense counsel said in opening statement for which he ended up adducing no evidence. The reason is self-evident: At the time of his opening statement, he had assumed he would be putting on a significant defense case. He didn’t think the trial court would make rulings that gutted the defense case, by creating huge downsides if defense counsel called five key defense witnesses (appellant, his parents, and Drs. H and F). By the end of the trial, defense counsel was stuck with that problem whether the judge’s rulings were right or wrong: Since counsel had lost most of his witnesses, much of what he said in opening statement couldn’t be proved. The prosecution could mention that in closing, and some jurors might give it some significance.
The judge capitalized on that by giving a series of instructions–culminating in a lengthy “comment on the evidence” that was far closer to a closing argument–which repeatedly hammered home to the jurors that defense counsel hadn’t proved much of what he said in opening statement. With the exception of the few standard instructions, these instructions and comments were all given ad hoc, since they appear nowhere in the written instructions in the Clerk’s Transcript. The only plausible purpose of these ad hoc instructions and “comments” was to damage the defense even further. Certainly, that was its only possible effect.
Shortly before closing arguments, the judge told defense counsel: “I am going to have to look at what your opening statement, defense opening statement indicated.” (RT 2112:6-8.) Defense counsel responded: “I don’t think it’s the least bit appropriate if the Court by that comment means [that] it is going to comment that some piece of evidence has or has not been established by argument from the–” (RT 2112:9-13.)
The judge cut off counsel, and denied he would do that. However, he said he would caution the jury about opening statements, because “you were amply warned that your opening statement would have to be pretty much what you intend to prove.” (RT 2112:17-19.) Nothing in the record indicates defense counsel violated that rule; the record shows what is self-evident, that counsel didn’t expect to lose all of his eyewitnesses plus two of his experts to the judge’s rulings. (Counsel lost his own client and Drs. F and H when the judge permitted the prosecutor to use against appellant a thrice-privileged and involuntarily provided document, and lost appellant’s parents to the ruling that defense counsel promoted Ms. M’s notepassing cabal by not doing anything.)
Immediately before closing arguments, the judge reminded the jury that just before opening statements, he had told them opening statements were not evidence. (RT 2122:13-17.) The judge had given a detailed instruction on that subject before trial. (RT 717:4-10.) He was also going to give the standard instructions after closing arguments, that jurors could decide the case only on the evidence, and statements of counsel are not evidence.
Thus, these points had been made and made again, and would be made yet again. There was no need to dwell on them, and no need for any further specific reference to opening statements. Judges are supposed to presume that jurors will follow their instructions; that is “the crucial assumption underlying our constitutional system of trial by jury.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
But the judge went on: “Now, sometimes it’s difficult to remember what was in an opening statement, and what was the evidence. But that is one of the burdens that we have in trying to conduct a case.” (RT 2122.) This remark signalled to jurors that they should go back and think about what was in the opening statements, so that they could remember what it was they weren’t supposed to consider. The remark was partisan advocacy against the defense, because there was clearly no need for it, and only the defense had major gaps in evidence which had been referred to in opening statement, due to the judge’s rulings.
The court then gave an emphasized variation of the standard “statements of counsel are not evidence” instruction:
Anything that the attorneys say at this time is not evidence, and they don’t intend it to be. But you have to be very careful that you use only the evidence in arriving at an opinion in this case and your ultimate decision when you go into the jury room to start talking about it. So be very careful in that regard.
(RT 2122:18-27.) The extra detail served no function, other than causing jurors to think about what they were supposed to be “very careful” about, i.e., opening statements which weren’t proved by evidence. Thus by now, the judge had become an advocate, trying affirmatively to get the jurors to think about the fact that so much of defense counsel’s opening statement wasn’t proved, and thus to view the defense presentation less favorably.
Then, near the beginning of the full set of instructions, the trial court gave an extra emphasis to the standard instruction that “statements of counsel are not evidence.” This too was ad hoc, because it wasn’t in the written instructions. (CT 554.) The judge did it for no other standard instruction; he emphasized only this one: “Now, the next instruction I am going to read to you concerns the statements of counsel. [¶] Statements made by the attorneys during the trial are not evidence . . . .” (RT 2170.) Once again, the judge was making extra effort to focus the jury on the lack of evidence to support the defense opening statement.
Then, near the end of his instructions, the judge gave an extremely lengthy instruction of his own, which was again directed to opening statements. The court repeatedly and specifically told the jury that numerous matters set forth in opening statements had not been proved and should not be considered. The first paragraph was CALJIC No. 17.32:
At this time . . . for the purpose of assisting you in properly deciding this case, I will comment on the testimony and the evidence and the believability of the witness[es]. My comments are intended to be advisory only and are not binding on you as you must be the exclusive judges of the facts and the believability of the witnesses. You may disregard any or all of my comments if they do not coincide with your views of the evidence . . . .
Then followed the judge’s “comment,” reprinted here in pertinent part:
[Y]ou will recall at the first of the case that the attorneys were allowed to make opening statements. I cautioned you at that time that those statements are not evidence and should not in any way be considered as evidence. And if you are — you will have to be especially vigilant to make sure that any of the statements of fact that were stated by both counsel in their opening statements, those are not to be considered and should not in any way influence you in this particular case. If you reach into the factual situations in the opening statements, you will be drawing out some facts which have not been substantiated by the evidence. And that is up to you to decide which they are.
So what I am cautioning you is, from the time that the opening statements are closed, and until the arguments of counsel start, that is the area in which you must be drawing your information from, also the exhibits and so forth. So it’s that testimony of the witnesses or stipulations that, and any observations that I have made concerning that. And it’s extremely important in this case. And I want to warn you about that particular situation. . . .
I think that by viewing the evidence in this case, that you will be able to reach a verdict. And that also pertains to what evidence you may have seen or heard or felt during the case other than, say, the judge, the attorneys, anybody in the audience. Don’t be swayed by anything of that nature. The evidence only. And the evidence only as it came in and not as it might have been stated by counsel. (RT 2187:14-21, 2188:5-26, 2189:12-19.)
It is one thing to give the jury a simple extra instruction. It is quite another to go on during jury instructions for several minutes on a topic that is clearly detrimental to the defense, specifically reminding the jury of opening statements that the jury may otherwise have long since forgotten. That is particularly so because the trial court instructed the jury in detail, just before opening statements, that opening statements were not evidence. (RT 717:4-10.) And there is no question the judge was referring specifically to defense counsel in his lengthy “comment,” because defense counsel was the only one that had proof problems with matters in his opening statement.
It is as if the judge repeatedly told the jury, “Defense counsel said all sorts of things in opening statement. None of them are true; there is no evidence to support any of them. Remember, listen very carefully, these things defense counsel said simply aren’t supported by any evidence. You want to think about opening statements, and remember that there simply was no evidence to support most of the things claimed by the defense.” [Footnote 1]
This lengthy warning, on top of everything else the judge did to direct the jury’s attention to opening statements, can only have been intended to draw the jurors’ attention to the absence of evidence to support numerous parts of the defense opening statement, which would necessarily damage the defense. By that time of trial, jurors might have forgotten about opening statements, dismissed them as unimportant, or paid little heed to them. The judge made sure that didn’t happen.
Strikingly similar to this case, but far less egregious, is People v. Manchetti (1946) 29 Cal.2d 452. There, a witness named Edwards testified for the prosecution, answered a few questions on cross-examination, and then excused himself; he was never cross-examined further, and his testimony wasn’t stricken. Instead, the trial judge told the jury:
[You] are the sole judges of the weight to be given to the evidence of any witness who may have testified in this case. And in this connection I desire to call to your attention the testimony of the witness David T. Edwards. I charge you that you are the sole judges or the worth or value or credibility of the testimony of this witness, and of every other witness.
Our Supreme Court held that the instruction was not a “comment on evidence” but a jury instruction, and it was reversible error, because it called particular attention to Edwards’ testimony and may have caused the jury to give it particular attention:
This does not purport to be a comment on the evidence. It is an instruction as to law which calls particular attention to the testimony of Edwards. We agree with defendant’s contention that the instruction is erroneous. It is impossible to know what effect the naming of this incompletely cross-examined prosecution witness had upon the jury. They may have received the impression that his testimony deserved especial regard. We cannot, in view of the entire record, say that this possible erroneous impression was corrected by a previous instruction that ‘the Court is not expressing, nor does the Court desire to express, any opinion upon the weight of the evidence or any part of it, or on the truth or falsity of any witness’ testimony.’
(Manchetti, supra, 29 Cal.App.2d at p. 462.)
The above is far more true here. The judge’s repeated emphasis on the evidence in question here didn’t exist in Manchetti, and it much more obviously directed the jury to the subject of the instruction (opening statements) than in Manchetti. And as Manchetti and other cases make clear, an admonishment that jurors are the sole arbiters of evidence does not overcome the force of an improper judicial “comment on evidence.” (Accord People v. Cook (1983) 33 Cal.3d 400, 410, fn. 9; Crowe v. DiManno (1st Cir. 1955) 225 F.2d 652, 655.)
Also strikingly similar to this case is People v. Pantages (1931) 212 Cal. 237. While Pantages was a case of prosecutorial misconduct rather than judicial misconduct, the issue was otherwise the same as that here: Defense counsel made various statements in his opening statement which it later turned out he couldn’t prove, because during trial, the trial court sustained numerous objections that substantially reduced his available evidence. (Id at p. 244.) While the prosecution could properly have mentioned the defense’s failure to prove the matters in its opening statement “plainly and simply” (id. at p. 245), the prosecution went well beyond that, repeatedly disparaging the defense case on that basis. (Id. at pp. 242-243.) The trial court ruled this was proper comment. (Id. at p. 243).
Our Supreme Court held it was not. It held this type of argument was prosecutorial misconduct–ironically, for the reason used by the judge in this case to justify his comments, that statements of counsel are not evidence:
[T]he only purpose of an opening statement is to apprise the jury in a general way of what is expected to be prove; [but] it has no binding force as against the party in whose behalf it is made; nor can it be considered as evidence of any fact. . .
It is clear that in the trial of an action, proper argument should be based solely on the evidence and that if the opening statement to the jury does not constitute evidence and is not binding upon the party making it, then, in the absence of ‘bad faith,’ his failure to ‘make good’ should not be argued by the opposite party as a reason for a verdict. The conviction of a defendant of the crime of which he is accused should rest not even slightly upon the dereliction (if any) of his counsel, but ordinarily should be grounded upon acts committed by the defendant . . . .
(Pantages, supra, 212 Cal. at p. 244.) The Court held that in light of the trial judge’s approval of the argument, “the prejudicial effect on the substantial rights of the defendant becomes apparent” (id. at p. 245), and the error taken together with others warranted reversal. (Id. at p. 278.)
If such repeated references to the defense’s failure to prove its opening statement (with trial court approval) were prejudicial prosecutorial misconduct in Pantages, then a fortiori, they are prejudicial judicial misconduct here. While the judge here claimed the defense opening statement was in bad faith (RT 2112:17-19), that is wholly unsupported by the record. The only evidence is that defense counsel withdrew each of his three fact witnesses and two of his experts due to the trial court’s rulings, because he concluded–no doubt correctly–that the rulings would have severely damaged the defense had any of these witnesses testified. (RT 1739:15-18, 1774:9-19, 1777:16-17, 1780:16-20, 1781:5-7, 2029:9-14.) There is no material distinction between this case and Pantages.
The trial judge cannot become an advocate in the guise of commenting on the evidence. (People v. Cummings (1993) 4 Cal.4th 1233, 1305.) This one did. The comments of a judge must be fair, objective and impartial. (People v. Moore (1974) 40 Cal.App.3d 56, 65.) These weren’t.
Worse, the major disparity between the defense opening statement and the evidence was attributable entirely to the judge’s improper and erroneous rulings. It was inappropriate for the judge to capitalize on his erroneous rulings in that manner. (See People v. Contreras (1998) 66 Cal.App.4th 842, 847-849.)
In the middle of all of this emphasis on lack of evidence to support defense counsel’s opening statement was the judge’s remark: “I think that by viewing the evidence in this case, that you will be able to reach a verdict.” (RT 2189:12-13 [emphasis added].) This statement tends to suggest that jurors who contemplate dissent should not be doing so, based on the judge’s belief that there should be a verdict. And since this came in the middle of the lengthy “comment” which was clearly critical of the defense, it is clear what verdict the judge was telling the jury it “will be able to reach.”
This too is improper. Such comments are a form of pressure on minority jurors, which can only affect the accused’s “right to have his guilt or innocence determined by the independent vote of each juror.” (People v. Cook, supra, 33 Cal.3d at p. 411.) Under the Sixth Amendment and state-law jury provisions, a defendant is entitled to the independent consideration of each juror–even if it means a hung jury–and the judge is not permitted to impair that right to independent jury consideration. (See People v. Hamilton (1963) 60 Cal.2d 105, 128.) He did so here.
Another portion of this instruction suggests to appellant that the judge believed jurors might have recognized his hostility to the defense:
Also, I think you should be especially vigilant that you do not allow anything that has occurred outside of what we have already talked about that you should be concerned. What the judge’s opinion happen[s] to be of this case, I — if I was on the jury, I wouldn’t be swayed by it. I wouldn’t — I am not intending in any way to influence you folks in any way in this situation. If you think I have, as this says here, if you find that I have said anything or done anything to indicate an opinion or conclusion in this matter, disregard it. You are the people who make the decision and, I don’t want to encroach upon that even though the Constitution does allow me to do such. (RT 2188:27-2189:11 [emphases added].)
As to the underscored passages above, the judge evidently thought he had done things that could be perceived as showing an opinion of the case, or trying to influence the jurors. Otherwise, he would have no need to tell the jury not to be swayed by his opinion of the case, and would have no need to say he wasn’t intending to influence the jurors.
Appellant has never seen an “instruction” like this before. It only further brings home what this record already indicates: There is no way the judge’s attitude toward the defense could have been lost on the jury. But as the discussion at the beginning of this Part shows, this record would show reversible error even if nothing at all happened in front of the jury.
As for the italicized passage above, appellant finds it very disturbing. The judge said, in clear and express language, that the Constitution permitted him to encroach on the jurors’ decisionmaking process.
Appellant finds it disturbing because it is so patently wrong. (E.g., People v. Cook, supra, 33 Cal.3d at p. 408.) A judge who feels that way should not be presiding over a trial for a person’s liberty. Appellant finds it disturbing because it suggests to jurors that if they don’t make the right decision–i.e., the one the judge wanted–the Constitution permits the judge to “encroach” on their wrong decision, which is entirely untrue and can only impair the independence of the jury. And appellant finds it disturbing because before the trial, the judge had threatened jurors with a perjury charge if they violated their oaths. (RT 456:24-457:14.) [Footnote 2] The judge’s “I can encroach on your verdict” instruction thus raised the possibility that a juror who remembered the threat of perjury could conclude (s)he had better vote the right way–or else.
And on top of all of that, the judge told the jurors that they were to treat the judge’s observations concerning evidence in the same category as testimony of witnesses (RT 2188:23-24), which the jury had been instructed was evidence. (RT 2171:18-19.) The jury was also instructed to base its decision only on the evidence. (RT 2169:1-3.) In other words, the judge’s “comment on the evidence,” and his repeated efforts to direct the jury to the lack of proof of much of the defense opening statement, was part of what the jury was required to consider, as much as any evidence in the case.
As our Supreme Court has made clear, “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.'” (People v. Cook, supra, 33 Cal.3d at p. 408.) “[J]udicial comment should be temperate rather than argumentative and the trial court must avoid engaging in partisan advocacy.” (Id.; People v. Wright (1988) 45 Cal.3d 1126, 1136.) These are necessary rules because of the central and authoritative position the judge holds in any trial. The jury will inevitably pay close attention to the judge’s actions and words, and be influenced by his views, whether explicitly or implicitly advanced. (See ante, p. .)
The instructions and “comments” detailed in this section severely violated these fundamental rules. They could only have been intended to damage the defense, and that was their only possible effect. They were improper by themselves, and when considered with everything else described in this Part, they help put the judge’s hostile attitude toward the defense into clear perspective.
XIII. THE TRIAL COURT’S “COMMENT ON THE EVIDENCE” WENT WELL BEYOND THE BOUNDS OF PROPER OR PERMISSIBLE COMMENT, AND WAS FURTHER ERROR IN THAT IT IMPERMISSIBLY SUGGESTED TO THE JURY THE JUDGE’S BELIEF IN THE PROPER OUTCOME [New]
This Part raises as error the judge’s lengthy and repeated effort to direct the jury to the lack of evidence to support numerous portions of the defense opening statement, which has been discussed ante, pp. – (Part XII(B)(10)(a)). Rather than repeating the discussion, appellant incorporates it by reference here.
These instructions are also reversible error for the same specific reason as in People v. Manchetti, supra, 29 Cal.2d at p. 462. As in Manchetti, it is impossible to know what effect the subject of the questioned instruction, with its specific reference, had upon the jury. They may have received the impression that the subject of the specific reference, here the absence of evidence to support many portions of the defense opening statement, “deserved especial regard.” (Id.)
The errors rose to the level of a Sixth and Fourteenth Amendment violation, as they amounted to strong judicial partisanship on a material matter, and also because they impaired the independence of the jury. The State cannot show there is no reasonable possibility jurors viewed the defense case more skeptically or negatively based on these “comments,” which is Chapman error. (Id., 386 U.S. at pp. 23-24.) But the error is reversible under any standard, for all of the reasons herein.
Finally, the court’s improper instructions (“comments on the evidence”) are reviewable for two different reasons. First, they came in the middle of jury instructions. Erroneous jury instructions would be reviewable even in the absence of an objection. (Pen. Code, § 1259; In re Matthew C. (1993) 6 Cal.4th 386, 396 & fn. 10; People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10.) Based on that rule, improper judicial comments which are given with and as part of the instructions are reviewable. (People v. Gosden (1936) 6 Cal.2d 14, 26-27.)
Second, defense counsel objected when the trial court first said it was going to “comment” on the lack of evidence to support much of counsel’s opening statement. (RT 2112:9-13.) He was then cut off, and was thus prevented from finishing his objection. The judge overruled the objection and said he was going to caution the jury that opening statements were not evidence, and the jury should be very careful to make sure they were relying only on evidence and not statements of counsel. (RT 2112:14-28.) When the judge made that ruling, no further objections were necessary; they would have been futile in any event. (See, e.g., People v. Boyer (1989) 48 Cal.3d 247, 270, fn. 13; People v. Jaspal (1991) 234 Cal.App.3d 1446, 1455.) That is particularly so in a setting such as this, where by the end of the trial defense counsel had repeatedly incurred significant judicial wrath, and any further objection to the judge’s own course of action would risk incurring still more. (See People v. Hill (1998) 17 Cal.4th 800, 821.)
The trial court’s actions were unwarranted, highly prejudicial, and violative of the law. The judgment should be reversed.
Footnote 1: It could not plausibly be argued that in all of these instructions and “comments,” the judge was just trying to make sure the jury didn’t think about opening statements. First, the judge specifically directed the jury to think about opening statements and their content. Second, even if the judge had never done that, it still would have been the inevitable result. As one Court of Appeal opinion (modified to fit this case) put it:
At the least, [the judge’s instructions and “comments”] are like the admonition, “don’t think of an elephant”: by reminding the jury repeatedly of the [absence of evidence to support the defense opening statement], their probable effect is to focus the jury’s attention upon that very phenomenon. At the worst, they are like Mark Antony’s speech in mock praise of Caesar’s murderers: depending upon the tone and manner in which they are delivered, they convey a meaning precisely contrary to their literal import.
(In re Rodriguez (1981) 119 Cal.App.3d 457, 468.)
Footnote 2: The pretrial threat of a perjury charge if jurors violated their oaths came in a lengthy warning to prospective jurors not to engage in jury nullification of the law. (RT 456:4-457:14.) The severity of the threat was needless, and the warning would have seemed to serve no purpose at the time, because this case involved no laws that any juror would want to “nullify”; it was an attempted murder/assault with a firearm case, not a prostitution case. By the end of the trial, however, those warnings and threats came to serve a purpose, in conjunction with the instructions and “comments” in the text: They suggested that if jurors didn’t vote the “right” way, it might be a violation of their oaths and there could be severe consequences.