Hunter v. Clark

• Decision Date: 06 June 1991
• Docket Number: No. 89-2594,89-2594
• Parties: Steve L. HUNTER, Petitioner-Appellee, v. Richard CLARK and Indiana Attorney General, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

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934 F.2d 856

Steve L. HUNTER, Petitioner-Appellee, v. Richard CLARK and Indiana Attorney General, Respondents-Appellants.

No. 89-2594.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 1990.

Reargued Nov. 27, 1990.

Decided June 6, 1991.

Monica Foster, Robert W. Hammerle, Allen, Baratz, Conway & Hammerle, Indianapolis, Ind., for petitioner-appellee.

Kirk A. Knoll, Deputy Atty. Gen., Ronald J. Semler, Asst. Atty. Gen., Federal Litigation, Indianapolis, Ind., for respondents-appellants.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Richard Clark, Superintendent of the Indiana State Prison, and the Indiana Attorney General appeal the district court's granting of Steve Hunter's habeas corpus petition on the ground that the state trial judge's refusal to give the requested "no adverse inference" instruction violated Hunter's Fifth Amendment privilege against self-incrimination. Because we hold that the overwhelming evidence of Hunter's guilt makes the state court's refusal to give the instruction harmless beyond a reasonable doubt, we reverse.

I. PROCEDURAL STATUS OF THE CASE

The facts leading to Hunter's conviction are set out in full in the opinion of the panel that initially heard this case, Hunter v. Clark, 906 F.2d 302 (7th Cir.1990), reh'g granted, en banc, vacated, Hunter v. Clark, No. 89-2594 (7th Cir. Sept. 17, 1990). In brief, Hunter and two accomplices, Charles Hatcher and Lynell Beard, robbed a branch of Indiana National Bank in Indianapolis, Indiana, on January 24, 1984. During the course of the robbery, which was conducted at gunpoint, the bank robbers took the assistant manager hostage and stole at least two vehicles in their getaway. The State of Indiana charged Hunter with five counts of robbery and one count of confinement, and the state prosecutor chose to try Hunter jointly with codefendant Hatcher. Hatcher repeatedly objected to the joint trial, but the state judge refused to grant his requests for severance.

During the trial court's preliminary discussion of jury instructions with counsel, prior to the taking of evidence, Hunter requested that a "no adverse inference" instruction be given, while Hatcher requested that the instruction not be given. The trial judge stated that he would not give the instruction, for "the [Indiana] Supreme Court says it doesn't have to be given," State Rec. at 165, whereupon the following colloquy occurred:

Defense Counsel: "It is [Hunter's] desire that the instruction be given.

Court: "So you want severance of the jury trial then to be able to do that?

Defense Counsel: "Judge, we're just requesting that instruction to be given. And, we would like our objection noted as not being given at this point.

Court: "I'll show your request to be given noted for the record. And, possibly, by the time we get around to final instructions, maybe I will give it."

Id. at 165-66. The state judge eventually determined that he would not give the requested "no adverse inference" instruction. See id. at 1180-81. The jury found Hunter guilty of all six charges, and the court sentenced Hunter to six consecutive twenty-year terms of confinement for each count (120 years).

Hunter appealed his conviction and sentence to the Indiana Supreme Court on the same ground he alleges here, that his Fifth Amendment right against self-incrimination was violated when the trial judge refused to give the "no adverse inference" instruction. After reciting the facts regarding the co-defendants' opposing requests about the "no adverse inference" instruction, the Indiana Supreme Court held:

"By his actions here, Hunter placed the trial court on the horns of a dilemma which made it impossible for it to refrain from committing error. The trial court gave Hunter the opportunity to resolve this dilemma by offering to sever the trials as Hatcher had, in fact, requested, but Hunter declined to accept that alternative. He therefore has waived any error the court might have committed in resolving the matter as he did."

Hunter v. State, 492 N.E.2d 1067, 1069 (Ind.1986).

Having exhausted his state court remedies, Hunter filed his federal habeas corpus petition on October 26, 1988, pursuant to 28 U.S.C. Sec. 2254. The district court granted Hunter's petition on the grounds that there was no waiver of the "no adverse inference" instruction, Hunter's Fifth Amendment right against self-incrimination was violated by the failure to give the instruction, and the error was not harmless beyond a reasonable doubt because "the evidence supporting the petitioner's convictions is not 'overwhelming.' " Hunter v. Duckworth, 741 F.Supp. 1338, 1343 (N.D.Ind.1989). On appeal, a panel of this Court reversed the grant of habeas in a split opinion, holding, as did the Indiana Supreme Court, that Hunter received an offer of severance, in rejecting the offer he waived his right to a "no adverse inference" instruction and that an offer of severance is a constitutionally acceptable alternative to giving the "no adverse inference" instruction. The panel further held that even if the failure to give a "no adverse inference" instruction was an error of constitutional magnitude, it was harmless error, as the evidence of Hunter's guilt was overwhelming. See Hunter v. Clark, 906 F.2d 302 (7th Cir.1990). We vacated the panel opinion and granted rehearing en banc on September 17, 1990.

On appeal to the en banc Court, Hunter argues that a severance offer is an unacceptable alternative to giving the "no adverse inference" instruction, that he did not waive his right to a "no adverse inference" instruction, the failure to give a "no adverse inference" instruction is not subject to harmless error analysis and even if it were, that the error was not harmless beyond a reasonable doubt. Since we base our reversal of the district court's grant of Hunter's habeas petition on the ground of harmless error, we need not deal with Hunter's waiver arguments.

II. DISCUSSION

Hunter no doubt has a right, upon request, to receive a "no adverse inference" instruction under Carter v. Kentucky, 450 U.S. 288, 300, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1981) ("the Fifth Amendment requires that a criminal trial judge must give a single 'no adverse inference' jury instruction when requested by defendant to do so."). It is also clear that if the state judge had given a "no adverse inference" instruction over Hatcher's objection, that would not have violated Hatcher's rights under the federal Constitution. Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319 (1978) ("the giving of [a 'no adverse inference'] instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments."). But under the Indiana Supreme Court's interpretation of the Indiana Constitution at the time of Hunter's trial, Hatcher possessed a right to refuse a "no adverse inference" jury instruction: The opportunity "for the accused to choose whether to have the jury given an instruction regarding his failure to testify is a requisite for full realization of the right of each citizen granted by Article I, Section XIV [of the Indiana Constitution] that 'no person, in any criminal prosecution, shall be compelled to testify against himself.' " Priest v. State, 270 Ind. 449, 386 N.E.2d 686, 689 (1979). This conflict between the United States Supreme Court's interpretation of the federal Constitution and the Indiana Supreme Court's interpretation of the state Constitution is the basis for what the Indiana Supreme Court described as the trial court's "dilemma" in the face of Hunter's and Hatcher's divergent requests. Hunter v. State, 492 N.E.2d at 1069. The Indiana Supreme Court has since eliminated the possibility of such a dilemma again occurring in a joint trial by recognizing that the "Fifth Amendment right to an instruction warning the jury not to draw any adverse inferences from [the defendant's] silence must prevail over the right that this Court has granted under the Indiana Constitution to decide whether it suits [the defendant] to have such an instruction given or not." Lucas v. State, 499 N.E.2d 1090, 1093 (Ind.1986).

Assuming arguendo that Hunter did not waive the right to the requested instruction and thus the state judge's refusal to give Hunter's requested "no adverse inference" jury instruction violated Hunter's Fifth Amendment right against self-incrimination, the error was harmless "if the prosecution can prove beyond a reasonable doubt that a constitutional error did not contribute to the verdict," Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988), or perhaps even if the state can demonstrate that the error did not have "substantial and injurious effect or influence in determining the jury's verdict." United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). ¹ While the Supreme Court has not specifically held that the failure to give a "no adverse inference" instruction when requested could be subject to harmless error analysis, in Chapman v. California, 386 U.S. 18, 23 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967), the Court held that harmless error analysis was applicable to a prosecutorial comment about the defendant's failure to testify. We agree with the Fifth Circuit that prosecutorial comment on the defendant's failure to testify is a greater violation of a defendant's Fifth Amendment right against self-incrimination than is a trial judge's failure to give a requested "no adverse inference" instruction:

"The two types of error both implicate the fifth amendment's privilege against self-incrimination. Furthermore, the Chapman error is the more egregious....