Harmon v. Marshall

• Decision Date: 24 October 1995
• Docket Number: No. 94-55733,94-55733
• Citation: 69 F.3d 963
• Parties: 95 Cal. Daily Op. Serv. 8267, 95 Daily Journal D.A.R. 14,277 Cedric Roshawn HARMON, Petitioner-Appellee, v. Charles D. MARSHALL, Warden of Pelican Bay State Prison; Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 963

69 F.3d 963

95 Cal. Daily Op. Serv. 8267, 95 Daily Journal

D.A.R. 14,277

Cedric Roshawn HARMON, Petitioner-Appellee, v. Charles D. MARSHALL, Warden of Pelican Bay State Prison Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellants.

No. 94-55733.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 9, 1995.

Decided June 9, 1995.

Amended Opinion Oct. 24, 1995.

Janet E. Burns, Deputy Attorney General, Los Angeles, California, for respondent-appellant.

Andrew E. Rubin, Washington, D.C., for petitioner-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, D.W. NELSON and HAWKINS, Circuit Judges.

PER CURIAM:

We are called upon to determine whether the complete failure to instruct a jury in a criminal case with respect to a particular offense requires automatic reversal of a conviction on collateral review. At the outset, we emphasize that this case does not involve the failure to instruct on a single element of an offense, but the failure to instruct on any element of a particular offense. As did the district court, we conclude that the failure to give the jury any definition of an offense at all is such fundamental and basic error that it cannot be harmless.

I.

Charles D. Marshall, Warden of Pelican Bay State Prison, ("Marshall") appeals the district court's grant of the habeas corpus petition of Cedric Roshwan Harmon ("Harmon"). Harmon challenges two of the twelve counts of which he was convicted because no instruction at all was given to the jury in his criminal trial on any of the elements of the offense constituting those two counts. Marshall concedes, as he must, that the trial court in fact failed to give the jury any instruction with respect to the elements of the challenged offenses. Marshall further concedes that the failure to instruct amounts to constitutional error; he contends, nonetheless, that the error was harmless. The district court held that the failure to instruct at all--the failure to give the jury any definition of any of the elements of an offense--cannot be analyzed by harmless error principles and requires automatic reversal. We agree.

II.

The district court's grant of a petition for habeas corpus is reviewed de novo. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993).

III.

The Supreme Court has long emphasized the constitutional right to have a jury, rather than a judge, find the existence of each element of a charged offense beyond a reasonable doubt. See, e.g., In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970); Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1979). Most recently, in Sullivan v. Louisiana, --- U.S. ----, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the Court reiterated the fundamental nature of that right. Sullivan teaches that a constitutionally deficient reasonable doubt instruction deprives the defendant of his basic right to a jury verdict and "vitiates all the jury's findings." Id. at ----, 113 S.Ct. at 2082. Moreover, the error is not subject to harmless error analysis--which focuses on the basis upon which the jury actually rendered its verdict--because there is no jury verdict within the meaning of the Sixth Amendment, and thus "no object upon which harmless error scrutiny can operate." Id. An appellate court can only engage in speculation about what the jury found. Id.

The Sixth Amendment requires more than appellate speculation about a hypothetical jury's actions, or else directed verdicts for the state would be sustainable on appeal; it requires an actual jury finding of guilty.

Id. (citation omitted).

Sullivan also relies upon the distinction set forth in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), between:

"structural defects in the constitution of the trial mechanism, which defy analysis by 'harmless error' standards," and ... trial errors which occur "during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented."

Sullivan, --- U.S. at ---- - ----, 113 S.Ct. at 2082-83 (quoting Fulminante, 499 U.S. at 307, 309). The erroneous reasonable doubt instruction is a structural defect because it affects the defendant's basic right to a jury verdict, with consequences that are "necessarily unquantifiable and indeterminate." Id. at ----, 113 S.Ct. at 2083.

Applying Sullivan and other Supreme Court authority, we have held that omitting instruction on, or otherwise failing to submit to the jury, one element of an offense is reversible per se. United States v. Gaudin, 28 F.3d 943, 951 (9th Cir.1994) (en banc), affirmed --- U.S. ----, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995); United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1170, 130 L.Ed.2d 1124 (1995). See also United States v. Hove, 52 F.3d 233, 236 (9th Cir.1995). We recognized that harmless error analysis was not feasible in the face of such an omission:

[W]e may no longer consider the strength of evidence and determine whether it was so clear that the jury would have found the element of a crime to exist, had it been properly instructed, but, instead, we must determine whether the jury was actually able to consider that evidence under the instructions given by the court.

Gaudin, 28 F.3d at 951.

We previously came to the same conclusion in People of the Territory of Guam v. Marquez, 963 F.2d 1311 (9th Cir.1992), where the trial court had sent a set of written instructions to the jury, but did not read those instructions aloud. We held that this error could not be analyzed under harmless error standards "because the impact of the error on the jury's performance of its duties cannot be reviewed." Id. at 1316. It is impossible to know whether the jury in fact read the instructions on the elements of the charged offenses. Id.

The error in this case is considerably more egregious than that in Gaudin and Stein, where only one element was omitted, as well as Marquez, where the jury received proper written instructions. The jury here was not given instruction (oral or written) on any element of the counts Harmon challenges. This error is more akin to that in Sullivan, because the entire basis for the jury verdict was tainted; we cannot be sure that the jury made any of the requisite factual findings.

As the district court quite properly concluded, this error requires automatic reversal. The error undoubtedly affected Harmon's constitutional right to a proper jury verdict. See Sullivan, --- U.S. at ---- - ----, 113 S.Ct. at 2080-81 (Due Process Clause and Sixth Amendment require that the fact finder determine beyond a reasonable doubt the facts necessary to establish each element of offense). We find it difficult to imagine a more fundamental or structural defect than allowing the jury to deliberate on and convict Harmon of an offense, for which it had no definition. See id. at ----, 113 S.Ct. at 2083 (deprivation of the "basic protection" of having a jury make the requisite finding of guilt "unquestionably qualifies" as a "structural defect" under Fulminante, 499 U.S. at 279, 111 S.Ct. at 1248). In effect, the jury was free to convict Harmon without finding that the State proved any of the requisite elements of the crime. There is no way we can determine the extent to which Harmon's convictions were actually affected by the failure to instruct, because we simply cannot tell how the jury reached its decision.

Marshall insists that the evidence establishing Harmon's guilt on these very serious charges was overwhelming. We agree. But this does not change our result. We cannot judge the defendant guilty; that role is reserved for the jury. Id.

[N]o matter how clear evidence may be, the Sixth Amendment requires that the jury, not the judge, must find the facts necessary to decide [the] element[s] of a crime beyond a reasonable doubt.

Gaudin, 28 F.3d at 951. See also United States v. Howard, 506 F.2d...