Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

No. 90-55231.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and POOLE, Circuit Judges, and EZRA,^**  District Judge.

MEMORANDUM

After his first trial resulted in a hung jury, Moreno was tried again in the Los Angeles Superior Court and convicted of first degree murder pursuant to Cal.Penal Code Sec. 187. The California Court of Appeal rejected his appeal and the California Supreme Court denied his petition for review. The district court granted Moreno's subsequent petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Borg now appeals the district court's order. The district court exercised jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

We review the district court's decision to grant a conditional writ of habeas corpus de novo. McGuire v. Estelle, 873 F.2d 1323, 1325 (9th Cir. 1989); Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987). With respect to questions of fact involved in a habeas corpus petition, state court findings are entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(d), Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir. 1989), and district court factual findings are reviewed under the clearly erroneous standard. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986). Mixed questions of law and fact are reviewed de novo. United States v. Spillone, 879 F.2d 514, 520 (9th Cir. 1989). Therefore, the ultimate determination as to whether any potential error is harmless is a question of federal constitutional law subject to de novo review. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir. 1988).

Moreno contended in the district court that constitutional error was committed when the superior court instructed the jury that silence in response to an accusation may permissibly be regarded as an adoptive admission. The district court agreed.

" [I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." Miranda v. Arizona, 384 U.S. 436, 468 n. 37 (1966). "What is impermissible is the evidentiary use of an individual's exercise of his constitutional rights after the state's assurance that the invocation of those rights will not be penalized." Wainwright v. Greenfield, 474 U.S. 284, 295 (1986).

The jury instruction at issue contravened Miranda and Wainwright by permitting the jury to penalize Moreno for his failure to deny accusations posed by officers at the time of his arrest. The jury was instructed:

If you should find from the evidence that there was an occasion when the defendant under conditions which reasonably afforded him an opportunity to reply, failed to make denial ... in the face of an accusation, expressed directly to him or in his presence charging him with the crime for which he is now on trial or tending to connect him with its commission, and if you should find that he heard the accusation and understood its nature; the circumstances of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation thus made was true.

The final sentence of this instruction impermissibly informed the jurors that they were permitted to infer guilt from Moreno's invocation of his right to silence.

Borg argues that these instructions were permissible. First, he contends that Moreno was not actually exercising his constitutional right to remain silent when he failed to deny accusations posed by the two police officers. The record indicates, however, that Moreno, after having first waived his Miranda right to silence, later invoked the right by making the following statement: "look, tell him that I have told the truth. I don't want to talk anymore because I have already told you how everything is and everything." If we were to hold that a suspect's explicit request that he does "not want to talk anymore" was insufficient to invoke the right to silence, this would place an impermissible burden on the rights granted in Wainwright and Miranda. Moreno's statement is a clear invocation of his right to remain silent.

Borg's second argument is based on federal case law creating a narrow exception to Miranda and Wainwright, which allows questions that are "not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement". Anderson v. Charles, 447 U.S. 404, 409 (1980) (Anderson) . The use of a suspect's silence in this respect, however, is strictly limited to obtaining explanation for inconsistent statements. United States v. Ochoa-Sanchez, 676 F.2d 1283, 1286 (9th Cir. 1982). Thus, it is clear that this narrow exception to Miranda is applicable only where there is no attempt to draw meaning from silence. Anderson, 447 U.S. at 409. Any utilization of silence in response to interrogation as substantive evidence of guilt "places an impermissible burden upon the exercise of constitutional rights." Alo v. Olim, 639 F.2d 466, 468 (9th Cir. 1980).

In the present case, the instruction permitting the jury to infer guilt from Moreno's choice to exercise his right to remain silent enabled the jury both to draw meaning from silence and to utilize such silence as substantive evidence of guilt. The challenged jury instruction is in violation of Miranda and Wainwright, and resulted in constitutional error.

The writ should not be granted, however, if Borg proves that the constitutionally flawed jury instruction was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); Chapman v. California, 386 U.S. 18, 24 (1967).

The Supreme Court has "repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." A careful review of the record reveals that Moreno's conviction was not based on an overwhelming quantity of credible and conclusive evidence. To the contrary, the vast majority of evidence presented in trial was persuasive in some respects, and yet dubious in others.

Most notably, the state's primary witness, McHenry, claimed to have seen Moreno pointing a gun at the victim just before a gun shot was fired. However, as indicated by the district judge, McHenry's identification is open to serious question. He never actually saw the weapon being fired or the victim being shot. He was unsure in identifying Moreno at the preliminary hearing, and his observational opportunities at the scene of the crime were limited. McHenry's description of the victim was also inaccurate, identifying his actual height incorrectly by 11 inches.

In addition, McHenry's credibility is in doubt. He was serving a sentence in juvenile court at the time of his court testimony, and evidence indicated the possibility that his testimony was motivated by a personal grudge against Moreno. It is difficult to conclude that this eyewitness testimony was strong enough to render the erroneous jury instructions harmless error beyond a reasonable doubt.

With respect to ballistics evidence, the state demonstrated that the spent bullets found at the scene of the crime were fired from the same weapon as had fired spent bullets found at Moreno's place of business. However, the murder weapon was never found, and no spent bullet casings were found at the scene of the crime, even though the weapon registered to Moreno was of a type which automatically ejects bullet casings.

Moreno's claim to have been in Ensenada on the day of the murder is contravened by many witnesses, but the interrogation of Moreno in which the Ensenada alibi was given involved an interpreter and the possibility of improper communication. In addition, no motive was ever demonstrated, nor were any curative instructions given to the jury.

Finally, and perhaps most significantly, while Moreno's second trial resulted in a murder conviction, the first resulted in a hung jury. The only significant difference between the trial in which Moreno was convicted and that in which he was not appears to be the giving of the erroneous jury instructions. Although not conclusive, this certainly is persuasive evidence that the instruction was not harmless error.

In light of the state of the evidence presented, the existence of a deadlocked jury in the first trial (where no challenged jury instruction was involved), and the serious constitutional nature of the error committed, we conclude that Borg has not proven that the error was harmless beyond a reasonable doubt.

Finally, Borg contends that we should not reach this issue because Moreno's efforts in petitioning the California Supreme Court for review failed to exhaust state court remedies sufficiently, thus allegedly rendering federal habeas corpus relief inappropriate. But Borg has waived his right to assert this exhaustion defense by failing to raise it in the district court. " ' [It] seems unwise to adopt a rule that would permit, and might even encourage, the state to seek a favorable ruling on the merits in the district court while holding the exhaustion defense in reserve for use on appeal if necessary.' " Raines v. United States Parole Commission, 829 F.2d 840, 845 (9th Cir. 1987), quoting Granberry v. Greer, 481 U.S. 129 (1987). In Raines, we held the exhaustion defense had been waived in a habeas corpus case when it was raised for the first time on appeal. There is no reason to reach a different conclusion in the present case.

We hold that Moreno's constitutional rights were violated by the superior court's jury instruction permitting an inference of guilt to be drawn from Moreno's exercise of his right to silence. Further, Borg did not prove that this constitutional error was not harmless beyond a reasonable doubt.

AFFIRMED.