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296.2 Standards Of Prejudice On Appeal

    296.2.2 Standard Of Prejudice: Miscellaneous Issues

    296.2.2.1 Deciding Whether An Issue Implicates The Federal Constitution
    296.2.2.2 Standard Of Prejudice On Appeal: When Instructions Include Legally Incorrect Theory
    296.2.2.3 Standard Of Prejudice On Appeal: Failure To Instruct On A Defense Or Defense Theory
    296.2.2.4 Standard Of Prejudice On Appeal: Failure To Define A Technical Term
    296.2.2.5 Standard Of Prejudice On Appeal: Failure To Instruct On Accomplice Corroboration Requirement
    296.2.2.6 Written Instructions To The Jury As Reversible Error
    296.2.2.7 Standard Of Prejudice: Ineffective Assistance Of Counsel
    296.2.2.8 Standard Of Prejudice: Prophylactic Reversal -- Necessity Of Reversing Conviction To Avoid Future Error
    296.2.2.9 Standard Of Prejudice On Appeal: When Defense Theory Goes To Degree Of Culpability
    296.2.2.10 Harmless Error Analysis: Sufficient Evidence To Support Verdict Absent The Error Does Not Establish Harmless Error
    296.2.2.11 Prosecutor Misconduct: Standard Of Prejudice

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PRACTICE NOTE: There are countless ways an instructional issue can implicate the federal constitution even if it seems to deal with statutory rules or procedure. (See NCJIC Chapter 309 [Constitutional Macros]; see also NCJIC Chapter 300 [Substantive Federal Constitutional Claims Relevant To Jury Instruction].)

CAVEAT: Because each case is unique the federal constitutional inquiry should not be limited to the examples in NCJIC.

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: Application of the harmless-error analysis for erroneous jury instructions is applied when the trial court submits a case to the jury on two or more alternate theories, one of which is the subject of an erroneous instruction. Under such circumstances, the determination of whether the error was harmless is guided by Yates v. United States (1957) 354 US 298, 311-12 [77 SCt 1064; 1 LEd2d 1356]; see also United States v. Hudgins (4th Cir. 1997) 120 F3d 483, 486-87. Under Yates, reversal is required when a case is submitted to a jury on two or more alternate theories, one of which is legally (as opposed to factually) inadequate, the jury returns a general verdict, and it is impossible to discern the basis on which the jury actually founded its verdict. (See Yates, 354 US at 311-12; see also Griffin v. United States (1991) 502 US 46, 52 [112 SCt 466;16 LEd2d 371].) "This rule is appropriate because when it cannot be determined that the conviction did not rest entirely on a legally inadequate ground, it is impossible to say that the error in submitting the legally inadequate ground to the jury was harmless beyond a reasonable doubt." (U.S. v. Hastings (4th Cir. 1998) 134 F3d 235, 242.)

    A reviewing court must attempt to ascertain what evidence the jury necessarily credited in order to convict the defendant under the instructions given. If that evidence is such that the jury must have convicted the defendant on the legally adequate ground in addition to or instead of the legally inadequate ground, the conviction may be affirmed. (See Hudgins, 120 F3d at 487-88 [affirming § 924(c)(1) conviction because the evidence necessarily credited by the jury in order to convict under the erroneous "use" instruction established that the defendant had "carried" a firearm]; United States v. Boots (1st Cir. 1224) 80 F3d 580, 589 [reversing conviction under Yates because the evidence supporting conviction on a valid ground was "not so intricately intertwined with the invalid ... count that we can necessarily say that the ... conviction had a legally correct basis"]; see also People v. Guiton (CA 1993) 4 C4th 1116, 1127-30 [17 CR2d 365]; People v. Green (CA 1980) 27 C3d 1, 69-70 [164 CR 1].) Under this rule the prosecution must establish that "no juror relied upon the erroneous instruction ...." (People v. Smith (CA 1984) 35 C3d 798, 809 [201 CR 311]; see also Stromberg v. State (1931) 283 US 359, 369-70 [51 SCt 532; 75 LEd 1117]; Cabana v. Bullock (1986) 474 US 376, 383, fn 2 [106 SCt 689; 88 LEd2d 704].)

    For example, in Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664, the court held, on federal habeas, that improper instruction on felony murder in violation of the Ireland rule (People v. Ireland (CA 1969) 70 C2d 522, 539 [75 CR 188]) was reversible even though the erroneous legal theory was not argued by the prosecutor and the evidence of malice was "very strong." A harmless error determination cannot be based on "the seemingly overwhelming weight of the evidence" pointing to guilt when it is impossible to tell which theory of culpability the jury followed in reaching a general verdict. (998 F2d at 670.)

    Similarly, in U.S. v. Aguilar (9th Cir. 1996) 80 F3d 329, the jury was alternatively instructed upon a correct and incorrect theory of liability. The 9th Circuit held the error to be prejudicial because it could not "tell whether the jury found the facts necessary to support a conviction." (U.S. Aguilar, 80 F3d at 333; see also People v. Swain (CA 1996) 12 C4th 593, 607 [49 CR2d 390] [improper implied malice theory required reversal where it could not be "determined beyond a reasonable doubt that the erroneous implied malice murder instructions did not contribute to the convictions ... and [nothing] else discoverable from the verdicts ... enable[d] [the court] to conclude that the jury necessarily found the defendants guilty of conspiracy to commit murder on a proper theory .... [Citation.]"].)

    On the other hand, if the record establishes which theory the jury relied upon then reversal is not required. (E.g., People v. Austell (CA 1990) 223 CA3d 1249, 1251-52 [273 CR 212] [prosecutor's concessions during argument established that the jury did not rely on improper theory].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE:

A.   Federal Courts: If a defendant's theory of the case is supported by the law and, if there is some foundation for the theory in the evidence, the failure to give the defendant's proposed jury instruction concerning his or her theory should be "reversible error." (See e.g., U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 495; U.S. v. Zuniga (9th Cir. 1993) 6 F3d 569, 571; U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201; United States v. Edwards (7th Cir.1994) 36 F3d 639, 645-46; U.S. v. Riffe (6th Cir. 1994) 28 F3d 565, 570 ["[S]o long as there is even weak supporting evidence refusal to give the instruction [on the defense theory of duress] is reversible error." [Citations omitted]; Graves v. U.S. (1989) 554 A2d 1145, 1147; see also Gray v. U.S. (DC 1988) 549 A2d 347, 349 [defendant entitled to jury instruction on a "theory of the case that negates his guilt of the crime charged" if the instruction is supported by "any evidence, however weak"].)

    For example, in Escobar de Bright the Ninth Circuit held that the right to have the jury instructed as to the defendant's theory of the case is one of those constitutional rights whose infraction can never be treated as harmless error. (742 F2d at 1202.) In so holding the court stated that: "Jurors are required to apply the law as it is explained to them in the instructions they are given by the trial judge. They are not free to conjure up the law for themselves. Thus, a failure to instruct the jury regarding the defendant's theory of the case precludes the jury from considering the defendant's defense to the charges against him. Permitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury's mind, will entitle the defendant to a judgment of acquittal." (Escobar de Bright, 742 F2d at 1201-02.)

    B.   State Courts:  A defendant is entitled to have his or her theory of the case presented to the jury if there is evidence to support it. (See generally NF Holmes v. South Carolina (2006) _____ U.S. _____ [126 SCt 1727; 164 LEd 2d 503]; Martin v. Ohio (1987) 480 US 228, 233-34; see also U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-1202 [“[p]ermitting a defendant to offer a defense is of little value if the jury is not informed that the defense, if it is believed or if it helps create a reasonable doubt in the jury’s mind, will entitle the defendant to a judgment of acquittal”]; Conde v. Henry (9th Cir. 1999) 198 F3d 734, 739-42 [same]; Soule v. General Motors Corp. (CA 1994) 8 C4th 548, 586; UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide IV(K) [Defendant's Right to Have the Jury Instructed on the Defendant's Theories of Defense] (Oregon State Bar, 1998).) Accordingly, the accused should be entitled to an instruction on every defensive issue raised by the evidence. (See Muniz v. State (TX 1993) 851 SW2d 238, 254.)

    "If there is evidence in the record to support the defendant’s theory of defense, the trial judge may not refuse to grant a proper, proffered instruction. Furthermore, where evidence tends to sustain both the prosecution’s and defense’s theory of the case, the trial judge is required to give requested instructions covering both the theories." (VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL Chapter 1(1) [Role Of Instruction-General] (Lexis, 2000).)

    For example, in Mery v. Commonwealth (VA 1991) 407 SE2d 18, 20 the court refused a pinpoint instruction on the defense of consent in a rape case based on the conclusion that the general instructions defining the crime already address the issue and the pinpoint instruction was needlessly repetitive. On appeal the failure to give a separate instruction defining consent was held to be reversible error because "consent was vital to [the] defense and it was supported by sufficient evidence to make it a jury issue." (Mery, 407 SE2d at 21; see also People v. Rivera (CA 1984) 157 CA3d 736, 743 [203 CR 842]; People v. Anderson (CA 1983) 144 CA3d 55, 63 [192 CR 409] [appellate court cannot cure the error in failing to instruct on a defense by weighing the evidence]; People v. Parker UNPUBLISHED (CA 1991, F013203) [failure to instruct on reasonable belief in consent as defense to rape held reversible]; Sheppard v. Commonwealth (VA 1995) 464 SE2d 131, 140 [court assumes that, if supported by the evidence, a correctly stated instruction on accessory after the fact may be given upon request]; see also State v. Basham (WV 1976) 223 SE2d 53, 58 [Under his plea of not guilty, a defendant in a criminal case is entitled to have the jury consider, under proper instructions, every theory of defense to which the evidence or the reasonable inferences to be drawn therefrom may entitle him]; WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, 8.01 [Theory Of Defense] (Wyoming State Bar, 1996) [where defendant has put forth a theory of defense, the trial court is required to give the jury an instruction embodying that theory of defense, even if the defendant does not tender a proper proposed instruction]; see also Mc Inturff v. State (WY 1991) 808 P2d 190, 195.)

    C.    General Elements Instruction Insufficient To Pinpoint Defense Theory

    Even though the general instruction defining the elements of the offense and other defenses may cover the same issue, a failure to provide a special instruction on a specific defense has been held to be reversible error. (See e.g., U.S. v. Shackelford (5th Cir. 1982) 677 F2d 422, 425-26 [instruction on requirement of specific intent to steal "does not sufficiently direct the jury's attention to the defense of abandonment"]; Owens v. State (GA 1985) 326 SE2d 509, 513; State v. Gamarsh (NH 1985) 489 A2d 157, 158; see also NCJIC 250.4.1 [Defense Theory: Not Included In General Burden Of Proof Instruction]; see also NCJIC 297.1.6 [Specific Instruction Controls Over General].)  Moreover, when such violations are considered collaterally on federal habeas, reversal is also required because such an error is so fundamentally unfair that it amounts to a due process violation within the meaning of Estelle v. McGuire (1991) 502 US 62, 74 [112 SCt 475; 116 LEd2d 385;].) As observed by one federal district court in concluding that the refusal to instruct upon entrapment violated due process:

    "If the Ninth Circuit has held that the failure to give a defense instruction supported by the evidence can never be harmless under the federal constitutional standards for determining harmless error, the issue herein is one of fundamental fairness ... As the right to have the jury instructed on a defense theory of the case is one of those rights 'so basic to a fair trial' when some evidence exists to support such an instruction, failure to give such an instruction would be fundamentally unfair." (Hollis v. Gomez UNPUBLISHED (CIV-S-90-0904 GEB), Findings and Recommendations of Magistrate p. 13.)

CAVEAT: Total preclusion of a defense theory should be deemed structural error. (See NCJIC 250.9.1 [Precluding Defendant From Arguing Theory Of Case Is Structural Error].)

APPELLATE PRACTICE NOTE: Failure to instruct on alibi as reversible error. (See NCJIC 251.2.2.3 [Failure To Give Alibi Instruction As Reversible Error].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: It is generally accepted that the jury instructions must define words which are "technical terms" or "words of art" that have technical legal meaning. (See NCJIC 3.2.6 [Duty To Define Terms with Specialized/Technical Meaning]; see also State v. Hoffer (IA 1986) 383 NW2d 543, 548.)

    The failure to define such a term which is an essential element of the charge may be reviewed as reversible federal constitutional error because it precludes the jury from determining every material issue presented by the evidence. (See e.g., Williams v. State (OK 1976) 554 P2d 842, 847 [failure to define "proximate cause" was reversible error]; see also People v. Reynolds (CA 1988) 205 CA3d 776, 779 [252 CR 637]; Commonwealth v. Claudio (MA 1994) 634 NE2d 902, 911 [failure to define the term "felony" requires reversal].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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    Many cases have expressly held that the failure to instruct on accomplice corroboration does not implicate the federal constitution. (See e.g., Lisenba v. California (1941) 314 US 219, 225-27 [62 SCt 280; 86 LEd2d 166] [14th Amendment does not bar state from construing and applying laws on accomplice testimony]; Caminetti v. U.S. (1917) 242 US 470, 495 [37 SCt 192; 61 LEd2d 442] ["there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them"]; Lugo v. Munoz (1st Cir. 1982) 682 F2d 7, 11; People v. Frye (CA 1998) 18 C4th 894, 966 [77 CR2d 25]; Gaiter v. Lord (NY 1996) 917 FSupp 145, 150 [dismissing habeas claim "because the Federal Constitution does not prohibit the conviction of a defendant based on the uncorroborated testimony of an accomplice"]; Blake v. State (TX 1998) 971 SW2d 451, 454.)

    However, Du Bois v. Lockhart (8th Cir. 1988) 859 F2d 1314, 1316-18 rejected a prosecution argument that the absence of state mandated accomplice corroboration was not subject to the federal constitutional principles of due process, sufficiency of evidence (Jackson v. Virginia (1979) 443 US 307, 339 [99 SCt 2781; 61 LEd2d 560]) and double jeopardy. (Burks v. U.S. (1987) 437 US 1, 11 [98 SCt 2141; 57 LEd2d 1].) "The question, ... is not whether corroborated accomplice testimony is an element of the crime but whether it affects the proof required for a conviction. Clearly, under the Arkansas statute, it does, because without submission of such corroboration, a conviction is not permissible. The Arkansas statute affects the resolution of every element of a crime. Under the statute, any amount of proof submitted by the prosecution is deficient, unless accomplice testimony is corroborated." (Lockhart, 859 F2d at 1318.)

NOTE: Under federal law an accomplice need not be corroborated unless the testimony is incredible or insubstantial. (See e.g., U.S. v. Necoechea (9th Cir. 1993) 986 F2d 1273, 1282.)

    Some cases measure the prejudice from failure to instruct on the requirement of corroboration by independently reviewing the record to determine if corroborating evidence was presented. Upon finding such evidence in the record, these cases have pronounced the instructional error to be harmless. (See e.g., People v. Marquez (CA 1993) 16 CA4th 115, 122 [20 CR2d 365].) However, under this standard, the failure to instruct on corroboration will either be harmless -- if corroborating evidence exists -- or moot -- if corroborating evidence does not exist. Such a scheme is unsound judicial policy since it recognizes a judicial error for which there is no appellate remedy.

    It has been held reversible error to fail to instruct that one accomplice cannot corroborate another. (Jones v. Commonwealth (VA 1967) 69 SE 953, 955 [reversible error to refuse to instruct the jury that the testimony of one accomplice was insufficient to corroborate the testimony of another accomplice].)

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: People of Terr. of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1315, held that where the court gave written instructions to the jury in lieu of reading them in open court, structural error was committed which compelled automatic reversal. Similarly, in State v. Norris (KS 1985) 699 P2d 585, 588, the court stated that "oral instruction is vital to the fulfillment of the court's duty to instruct the jury. Instruction of the jury is one of the most fundamental duties of the court and it is only through their oral delivery that the court can be assured that each member of the jury has actually received all of the instructions." (Id. at 588; see also United States v. Noble (3rd Cir. 1946) 155 F2d 315, 317; State v. Iosefa (HI 1994) 880 P2d 1224, 1288 [failure to read presumption of innocence instruction was plain error even though jurors were given written copy of all instructions]; Purdy v. State (IN 1977) 369 NE2d 633, 635; State v. Lamb (ND 1996) 541 NW2d 457, 460; see also Hollace v. Ferguson (OR 1966) 417 P2d 989, 993.)

    "If, for example, written copies of the instructions are given to each juror, a divergence in literacy and reading comprehension may well leave some jurors uninstructed. On the other hand, if the foreman is directed to read the instruction to the other jurors, defendant is deprived of the opportunity to witness the manner in which the foreman intones the instructions. A judge is obligated to act in an impartial and unbiased manner in delivering instructions. He may not sneeringly describe the defendant's defense or make editorial comments while reading the instructions. A jury foreman is under no such constraint once the case has been submitted." (State v. Norris (KS 1985) 699 P2d 585, 588.)

    Moreover, any such error is exacerbated where the court fails to affirmatively instruct the jury to read the written instructions before deliberating. (Ibid.) Without such an instruction there is no assurance that the instructions were read and that the verdict was based on application of the law to the evidence. (Ibid.)

    See also generally, NCJIC Chapter 2: Jury Instruction Procedural Issues].

    See also NCJIC 2.1.1 [Trend Toward Providing Jury With Written Instructions].

    See also NCJIC 2.1.2 [Written Instructions In Lieu Of Oral Instructions As Reversible Error].

    See also NCJIC 2.1.3 [Written Instructions As Improper Even If Oral Rendition Is Also Given].

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE:  Pursuant to U.S. v. Cronic (1984) 466 US 648 [104 SCt 2039; 80 LEd2d 657], the presumed prejudice standard for an ineffective assistance of counsel claim is limited to three situations: (1) where there is a complete denial of counsel, i.e., where the accused is denied the presence of counsel at a critical stage of the proceedings; (2) where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and (3) where counsel is called upon to render assistance under circumstances where competent counsel very likely could not.  (See also Bell v. Cone (2002) 535 US 685 [122 SCt 1843; 152 LEd2d 914].)

    See generally, NCJIC 295.1.2.2 [Ineffective Assistance Of Counsel On Appeal: Failure Of Appellate Counsel To Raise Specific Issues].

    See also NCJIC 295.3.2.1 [The Ineffective Assistance Of Counsel Standard].

    See also NCJIC 295.3.2.7 [Examples Of Cases Finding Prejudicial/Reversible Error Based On Counsel’s Failure To Request Jury Instructions].

    See also NCJIC 4.3.4.1 [Failure To Request Jury Instructions As Ineffective Assistance Of Counsel].

RESEARCH NOTES:

See Capital Punishment Handbook 1.13.3.

See also generally, NCJIC 305.1.12 [Appeal].

    296.2.2.8    Standard Of Prejudice: Prophylactic Reversal -- Necessity Of Reversing Conviction To Avoid Future Error

PRACTICE NOTE: "Considering the emphasis the state placed on [defendant's] gang affiliation, the state would most likely repeat the error with impunity if we were to find it harmless." (Macias v. State (TX 1997) 959 SW2d 332, 340.)

    296.2.2.9   Standard Of Prejudice On Appeal: When Defense Theory Goes To Degree Of Culpability

PRACTICE NOTE:  Where a defendant's primary defense theory conceded responsibility for the crime but challenged the extent of his culpability based on lack of the requisite mental state (rather than asserting actual innocence), the weight of the evidence of guilt against the defendant is not a factor in weighing the prejudice of erroneously admitted testimony.  Instead, the reviewing court must evaluate the effect of the error on the actual defense theory.  (See Ghent v. Woodford (9th Cir. 2002) 279 F3d 1121, 1126-32.)  This analysis was under the Brecht [Brecht v. Abrahamson (1973) 507 US 619, 629 [113 SCt 1710; 123 LEd2d 353]/ Kotteakos [Kotteakos v. U.S. (1946) 328 US 750, 772-74 [66 SCt 1239; 90 LEd 1557] standard used for federal habeas and federal nonconsitutional error.

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PRACTICE NOTE: Merely finding sufficient evidence to convict absent the error does not establish that the error was harmless. As explained in Goodwin v. State (FL 1999) 751 So2d 537 "[i]f one cannot say, with fair assurance, after pondering all that happened without stripping that erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." [Emphasis added.] (Goodwin v. State, 751 So2d at 539-40; see also O’Connor v. State (FL 2003) 835 So2d 1226.)