Frost v. Van Boening, 11–35114.

Citation757 F.3d 910
Decision Date29 April 2014
Docket NumberNo. 11–35114.,11–35114.
PartiesJoshua James FROST, Petitioner–Appellant, v. Ron VAN BOENING, Superintendent, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

757 F.3d 910

Joshua James FROST, Petitioner–Appellant,
v.
Ron VAN BOENING, Superintendent, Respondent–Appellee.

No. 11–35114.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted En Banc June 26, 2013.
Filed April 29, 2014.


[757 F.3d 912]


Erik B. Levin, Berkeley, CA, for Petitioner–Appellant.

John J. Samson, Assistant Attorney General, Olympia, WA, for Respondent–Appellee.


Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, Senior District Judge, Presiding. D.C. No. 2:09–cv–00725–TSZ.
Before: ALEX KOZINSKI, Chief Judge, and STEPHEN REINHARDT, SIDNEY R. THOMAS, KIM McLANE WARDLAW, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges.

Opinion by Judge THOMAS; Dissent by Judge TALLMAN.

OPINION

THOMAS, Circuit Judge:

The Supreme Court has instructed that preclusion of closing argument in a criminal defense trial is structural constitutional error. Herring v. New York, 422 U.S. 853, 864–65, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). Joshua Frost had two legitimate defenses to criminal charges, but the state trial court only permitted his counsel to argue one theory in closing, and the court specifically prohibited counsel from arguing that the State had not met its burden of proof. Because this conceded constitutional error requires a retrial under Herring, we reverse the district court's denial of federal habeas relief.

I

Frost is serving a 55–year prison sentence for his convictions stemming from his involvement in five robberies that occurred over eleven days. In the first robbery, three men—Matthew Williams, Alexander Shelton, and Frost—robbed and burglarized the home of an elderly couple. Firearms were used, though Frost testified he did not carry a gun. In the second robbery, Frost acted as the driver for Shelton and Williams, who robbed a Taco Time restaurant while armed with guns. In the third robbery, Shelton, Williams, Frost, and another man participated in the robbery of an adult video store. Frost again acted as the driver and performed surveillance prior to the robbery by entering the store and asking about the closing time and other questions. In the fourth robbery, Frost acted as driver for Williams and Shelton, who robbed a 7/Eleven at gunpoint. During this incident, Shelton threatened two customers in the store's parking lot with a gun. Finally, immediately following the 7/Eleven robbery, Frost drove Shelton and Williams to a store,

[757 F.3d 913]

which they also robbed using firearms. During this robbery, an employee was shot in the hand. Police arrested Frost, Shelton, and Williams three days later. Frost was charged with six counts of robbery, one count of burglary, one count of attempted robbery, and three counts of assault. Most charges included firearms enhancements.

Frost admitted his involvement in the incidents in his trial testimony and in recorded statements to police, which were played at trial. The defense theory of the case was two-fold: there was reasonable doubt as to whether Frost's involvement rose to the level of an accomplice and, regardless, any actions he took were under duress. Defense counsel explained both theories in his opening statement and developed both throughout the trial.

During the jury instruction conference, the trial judge responded to Frost's proposed instruction by observing that “duress is a defense which requires the defendant to admit the elements of the crime before it can be raised.”

After some discussion about the instruction, the following colloquy occurred:

MR. WAGNILD [prosecutor]: My concern is we are going to see him get up in closing and argue, first of all, we haven't proved accomplice liability for any of them and then saying duress.

THE COURT: If he says that[,] the duress instruction will come out of the case.

MR. STIMMEL [defense counsel]: Excuse me, your Honor?

THE COURT: You cannot argue to the jury that the state hasn't proved accomplice liability and claim a duress defense. You must opt for one or the other. Riker is very clear on this. You must admit the elements of the offense have been proved before you can use the duress offense [sic]. Fortunately for you, your client just got on the stand and admitted everything except the assault in the second degree charge. He admitted he knew about it, he participated in every one of these events and he at least assisted by being the get away driver except for the assault in the second degree charge. I can't believe you would disregard your client's testimony.

MR. STIMMEL: But am I not permitted to argue in the alternative, using duress and failure to prove in the alternative?

THE COURT: No. Duress is an affirmative defense. To quote Riker, a defense of duress admits that the defendant committed the unlawful act but pleas an excuse for doing so. You may not argue both. Riker wouldn't stand up if that was the ability the defense has. Once the state proves its charges [,] the defense says it is proved and that is when you get an opportunity to raise this affirmative defense and prove it by a preponderance. I don't see any other way to write it. There are pages and pages about this.

The judge concluded the discussion by again warning defense counsel not to try to argue both theories in closing. Thus, defense counsel was precluded from arguing reasonable doubt, forced to at least tacitly admit the elements of the crimes, and then put to the task of proving the duress defense by a preponderance of the evidence.

As a result, defense counsel never argued in closing that the State had failed to meet its burden of proof. He argued only that Frost acted under duress due to threats from Williams. Counsel admitted that the duress defense would not absolve Frost of one, and possibly two, of the robberies.

In his rebuttal, the prosecutor pounced on the failure of defense counsel to argue that the State hadn't proven the elements

[757 F.3d 914]

of the crime, calling it “noticeably absent,” and saying:

Because if Mr. Stimmel had pointed you to the law and pointed to the elements of the offenses and he pointed to the firearm instruction and made his argument you would realize that his argument is phoney, his arguments don't match up with what the law is and that is really what we are here for.

The jury convicted Frost of all charges except for one assault. The court sentenced him to almost 55 years in prison. The Washington Court of Appeals affirmed Frost's convictions. State v. Frost, 128 Wash.App. 1026 (2005) (unpublished).

The Washington Supreme Court narrowly affirmed on different grounds. State v. Frost, 160 Wash.2d 765, 161 P.3d 361, 364 (2007) (en banc). The court held that the trial judge misinterpreted its precedent to preclude Frost from arguing both that the prosecution failed to meet its burden of proof beyond a reasonable doubt and that he acted under duress. Id. at 366–67. The court noted that defendants may generally present inconsistent defenses so long as they are supported by evidence. Id. at 365. The court found an “evidentiary basis, however slim, for counsel to argue that the State failed to prove Frost participated in each of his accomplices' criminal acts with adequate knowledge of promotion or facilitation.” Id. at 368. This argument was “best illustrated by the robberies in which Frost was only a driver and remained in the car.” Id. at 368–69.

By preventing defense counsel from making both of his legitimate arguments in his closing, the court unanimously held, the trial judge violated Frost's Fourteenth Amendment right to due process and Sixth Amendment right to counsel. Id. at 365–66, 368–69. “[I]n accordance with due process, the State was required to prove the elements of accomplice liability, beyond a reasonable doubt, as to each offense.” Id. at 368 (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). By preventing defense counsel from arguing reasonable doubt in closing, the trial judge “lessened the State's burden to some degree” and “infringed upon Frost's due process rights.” Id. The trial court's “undue limitation on the scope of defense counsel's closing argument” also violated Frost's Sixth Amendment right to counsel under Herring, 422 U.S. at 862, 95 S.Ct. 2550, which held that a defendant is entitled to closing argument. Frost, 161 P.3d at 365–66, 369.

Nonetheless, a bare majority of the court held this error was “not so egregious as to require automatic reversal,” id. at 370, and found the error harmless, id. at 369–71. Four justices dissented, arguing that preventing defense counsel from arguing reasonable doubt was structural error under Herring.Id. at 371–72 (Sanders, J., dissenting). The Supreme Court denied certiorari. Frost v. Washington, 552 U.S. 1145, 128 S.Ct. 1070, 169 L.Ed.2d 815 (2008).

Frost filed a federal habeas petition, which the district court denied. Frost v. Van Boening, No. C09–725Z, 2011 WL 486198 (W.D.Wash. Feb. 4, 2011). A divided panel of this court affirmed. Frost v. Van Boening, 692 F.3d 924 (9th Cir.2012). A majority of the non-recused active judges voted to rehear the case en banc.Frost v. Van Boening, 707 F.3d 1143 (9th Cir.2013).

II

As the Washington Supreme Court correctly concluded, the state trial court unconstitutionally precluded defense counsel from arguing reasonable doubt, under both Herring and Winship. The only question is whether these constitutional

[757 F.3d 915]

violations are subject to harmless error analysis.

The Supreme Court has divided constitutional errors into two categories: trial errors, which are subject to harmless error review, and structural errors, which require automatic reversal. Arizona v. Fulminante, 499 U.S. 279, 306–10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). “[M]ost constitutional errors can be harmless.” Id. at 306, 111 S.Ct. 1246; see also id. at 306–07, 111 S.Ct. 1246 (citing examples of nonstructural errors). These...

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