                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2003

Lewis v. Pinchak
Precedential or Non-Precedential: Precedential

Docket No. 00-2425




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                          PRECEDENTIAL

                               Filed November 4, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 00-2425


                   LESTER LEWIS
                     Appellant
                         v.
      STEVEN PINCHAK; ATTORNEY GENERAL
         OF THE STATE OF NEW JERSEY

   On Appeal From the United States District Court
            For the District of New Jersey
         (D.C. Civil Action No. 99-cv-03805)
    District Judge: Honorable William G. Bassler

                Argued: June 3, 2003
BEFORE: ALITO, ROTH and STAPLETON, Circuit Judges

          (Opinion Filed November 4, 2003)

                   Annette Verdesco (Argued)
                   Pope, Bergrin & Verdesco
                   572 Market Street
                   Newark, NJ 07105
                     Attorney for Appellant
                              2


                       Russell J. Curley (Argued)
                       Office of Attorney General
                        of New Jersey
                       Division of Criminal Justice
                       Richard J. Hughes Justice Complex
                       Trenton, NJ 08625-0086
                         Attorney for Appellees


                 OPINION OF THE COURT

STAPLETON, Circuit Judge:
  In 1990, a New Jersey jury convicted Lester Lewis, the
Petitioner in this habeas proceeding, of two counts of first-
degree attempted murder, two counts of second-degree
aggravated assault, two counts of third-degree aggravated
assault with a deadly weapon, and second-degree
possession of a firearm with the purpose to use it
unlawfully against another. Lewis was sentenced and
thereafter exhausted his right to direct appeal in the New
Jersey state courts.
  In 1994, Lewis’s first petition for a writ of habeas corpus
to the United States District Court for the District of New
Jersey was dismissed for failure to exhaust state remedies.
Lewis then petitioned the New Jersey Superior Court for
collateral relief. Among other things, Lewis alleged that the
state court failed to honor his request that the jury be
instructed that it was to draw no adverse inference from
Lewis’s decision not to testify. The Superior Court denied
the petition, finding that the claim should have been raised
on direct appeal.
   The New Jersey Superior Court, Appellate Division,
affirmed the judgment. It first concluded that Lewis was
entitled to the requested instruction pursuant to Carter v.
Kentucky, 450 U.S. 288 (1981), and that the instruction
was not given. The court then noted that the issue had not
been raised on direct appeal. It affirmed the denial of relief,
however, on the ground that the failure to give the
instruction “was not such as to be capable of producing an
unjust result.” App. at 39. The court observed that Lewis
                              3


did, in effect, testify at trial because he represented himself
and the trial judge gave him wide latitude in presenting his
version of events while examining other witnesses and
during opening and summation. The court also noted that
identity was not a significant issue in this case since Lewis
was well known to his victims, who had identified him as
their attacker. The New Jersey Supreme Court denied the
Appellant’s petition for certification.
   In 1999, Lewis again unsuccessfully petitioned the
United States District Court for the District of New Jersey
for habeas corpus relief. Regarding the request for a no-
adverse-inference instruction, the District Court noted that
Lewis was required to fairly present his federal claims in
state court in order to satisfy the exhaustion requirement of
28 U.S.C. § 2254. It then concluded that Lewis had only
alleged violations of state law. Lewis now appeals the
District Court’s disposition of his no-adverse-inference
claim.
  Before us, Respondent contends that Petitioner failed to
raise a federal, no-adverse-inference claim in either the
state courts or the federal district court. Alternatively, he
urges us to conclude that the state court’s failure to give
the requested instruction was harmless error.
   Lewis insists, with some record support, that he raised
his federal claim in the state courts as well as in the
District Court. The opinion of the New Jersey Superior
Court, Appellate Division, can be read as recognizing and
resolving a federal claim. That court acknowledged that
Lewis was entitled to a no-adverse-inference instruction
and cited Carter v. Kentucky in support of that proposition.
Carter held that “a state trial judge has the [federal]
constitutional obligation, upon proper request, to minimize
the danger that the jury will give evidentiary weight to a
defendant’s failure to testify.” 450 U.S. at 305. Additionally,
Lewis’s petition to the District Court quoted from the
portion of the Appellate Division’s opinion stating that he
had a right to a no-adverse-inference charge under Carter
v. Kentucky. He also referenced his “right” to have the judge
charge the jury, at his request, that his failure to testify
should not be considered a sign of guilt.
                                   4


   We decline to resolve this appeal on exhaustion grounds,
deeming it far more efficient to reach the merits of
Petitioner’s claim and terminate the proceedings on Lewis’s
Carter claim. If we regard an application for a writ of
habeas corpus to be without merit, 28 U.S.C. § 2254(b)(2)
affords us the alternative of ignoring any failure to exhaust
state remedies and addressing the merits of the petition.
Lott v. Coyle, 261 F.3d 594, 608 (6th Cir. 2001). We elect
to pursue that course.
   “In Carter v. Kentucky, the Court held that the trial court
must, at the request of the defendant, instruct the jury that
a defendant is not compelled to testify and the fact that he
or she does not testify cannot be used as an inference of
guilt.” United States v. Simmons, 679 F.2d 1042, 1049 (3d
Cir. 1982). Neither party disputes that Lewis requested a
no-adverse-inference instruction at trial, and that, in
violation of Carter, the trial court failed to give such jury
instruction. Accordingly, an error of constitutional
dimension occurred. Two issues remain, however: (1) was
the failure to give a Carter instruction a structural error
that requires reversal without regard to its potential for
affecting the outcome; and (2) if not, was that failure
harmless error in the context of this case.1
  In Arizona v. Fulminante, 499 U.S. 279 (1991), the
Supreme Court recognized a distinction between structural
defects, which require reversal, per se, and trial errors,
which require a reviewing court to engage in harmless error
analysis. Structural defects are “defects in the constitution
of the trial mechanism, which defy analysis by ‘harmless-
error’ standards.” Id. at 309. A structural defect “affect[s]
the framework within which the trial proceeds, rather than
simply an error in the trial process itself. Without these

1. It is not clear to us whether the holding of the Appellate Division of
the New Jersey Superior Court was a merits decision grounded in
harmless error law or a process ruling grounded in “plain error” law. See
Rule 2:10-2 cited by the court and pertaining to review of alleged error
not objected to at trial. As a result, we are unable to determine whether
the deferential standard of review required by 28 U.S.C. § 2254(d) is
applicable here. It is not necessary for us to make that determination,
however, because the petition must be dismissed under any potentially
applicable standard.
                              5


basic protections, a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or
innocence, and no criminal punishment may be regarded
as fundamentally fair.” Id. at 310 (internal quotations
omitted). A trial error, on the other hand, is an “error which
occurred during the presentation of the case to the jury,
and which may therefore be quantitatively assessed in the
context of other evidence presented in order to determine
whether its admission was harmless beyond a reasonable
doubt.” Id. at 307-08. Structural errors have been found in
a “very limited class of cases.” Johnson v. United States,
520 U.S. 461, 468-69 (1997) (citing precedent finding
structural errors for (1) a total deprivation of the right to
counsel; (2) lack of an impartial trial judge; (3) unlawful
exclusion of grand jurors on the basis of race; (4) denial of
the right to self-representation at trial; (5) denial of the
right to a public trial; and (6) an erroneous reasonable
doubt instruction to the jury).
  While the Supreme Court has not decided whether a
judge’s failure to give a Carter instruction is a structural
error requiring reversal, per se, we are confident that, when
presented with the issue, it will hold that Carter errors are
subject to harmless error analysis. Our confidence is
predicated primarily on Chapman v. California, 386 U.S. 18
(1967), and United States v. Hasting, 461 U.S. 499 (1983).
  In Chapman, the state prosecutor, availing himself of
express authority conferred by the state constitution,
repeatedly commented on the defendants’ failure to testify
and suggested that inferences of their guilt should be
drawn. The trial court also advised the jury that it could
draw adverse inferences from the defendants’ failure to
testify. The Supreme Court held that defendants’ Fifth
Amendment rights under Griffin v. California, 380 U.S. 609
(1965), had been violated. It concluded, however, that the
error could be regarded as harmless if the court is “able to
declare a belief that it was harmless beyond a reasonable
doubt.” Chapman, 386 U.S. at 24. The Court ultimately
concluded that, under the circumstances of that case, it
was “impossible . . . to say that the State [had]
demonstrated, beyond a reasonable doubt, that the
prosecutor’s comments and the trial judge’s instruction did
                             6


not contribute to petitioners’ convictions.” Chapman, 386
U.S. at 26.
  In Hasting, the Court once again applied harmless error
analysis to a Griffin v. California violation, this time
concluding that the state had shown harmless beyond a
reasonable doubt the prosecutor’s comments on the failure
of the defense to offer evidence.
   Chapman and Hasting were decided before Fulminante,
and the Court’s analysis is not structured in terms of a
dichotomy between “structural error” and “trial error.” Both
are cited with approval by the Fulminante Court, however,
and a prosecutor’s comment on a defendant’s failure to
testify fits comfortably within that Court’s description of
trial error. Conversely, such comments are difficult to
characterize as “defects in the constitution of the trial
mechanism, which defy analysis by ‘harmless-error’
standards.” Fulminante, 499 U.S. at 309. Accordingly, we
conclude that Chapman and Hasting remain the law of the
land.
   Having so concluded, we find ourselves unable to
meaningfully distinguish those cases. Indeed, it would seem
that the appropriate conclusion here follows a fortiori from
the conclusions reached there. The same constitutionally
protected interest is at stake when there is a Carter
violation and, if anything, the jeopardy to that interest is
greater when a prosecutor improperly comments on a
defendant’s failure to testify. A prosecutor’s comment on a
defendant’s decision not to testify affirmatively places the
inference of guilt before the jury, while the failure to
instruct the jury only creates the possibility that the jury
will, on its own, draw an inference of guilt. See Richardson
v. Lucas, 741 F.2d 753, 754-55 (5th Cir. 1984) (applying
harmless error analysis to a refusal to give a no-adverse-
inference instruction because “prosecutorial comment on
the defendant’s failure to testify” was “a much more
pronounced violation of the fifth amendment privilege
against self-incrimination than the refusal to give the
‘failure to testify’ instruction” and finding no reason for
distinguishing the two types of cases as far as the
application of harmless error is concerned). We also
perceive no material distinction between prosecutorial
                              7


comment cases and failure to instruct cases in terms of
their susceptibility to a quantitative assessment of trial
evidence. See, e.g., United States v. Brand, 80 F.3d 560,
568 (1st Cir. 1996) (finding that a failure to give a Carter
instruction is not a structural error because “[i]t is not the
sort of error for which an assessment of the evidence is
unsuitable precisely because it concerns the evidentiary
value the jury may give to a defendant’s election not to
testify on his own behalf ”); Richardson, 741 F.2d at 755-
56; Finney v. Rothgerber, 751 F.2d 858, 864 (6th Cir. 1985)
(applying harmless error analysis to a court’s refusal to give
a Carter instruction in the enhancement phase of a
bifurcated persistent felony offender proceeding); United
States v. Burgess, 175 F.3d 1261, 1265-66 (11th Cir. 1999)
(finding that Arizona v. Fulminante requires that harmless
error analysis be applied to Carter errors).
  We hold that the failure of a trial court to give a Carter
instruction upon request is a trial error amenable to
harmless error analysis.
   Finally, we must determine whether the Carter error was
harmless in Lewis’s case. Since Chapman, the Supreme
Court has held that its “harmless beyond a reasonable
doubt” standard is inapplicable in the context of habeas
corpus proceedings, as contrasted with direct review. Brecht
v. Abrahamson, 507 U.S. 619 (1993). Under Brecht, an
error is not harmless if it “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht,
507 U.S. at 637. Our review of the record before us
convinces us that the failure to give the Carter instruction
did not rise to this level. Indeed, even were we to apply the
more forgiving Chapman standard of whether there was a
“reasonable possibility that the evidence complained of
might have contributed to the conviction,” we would still
find the error harmless. Chapman, 386 U.S. at 23.
   Here, George Bardaloo testified that Lewis, an
acquaintance for 18 years, and “best friend” for ten years,
arrived at the apartment Bardaloo shared with his
girlfriend, Cheryl Anderson. He testified that Lewis pointed
a gun at him. During a struggle, Bardaloo was shot twice,
once in the neck and once in the face. Bardaloo testified
that Lewis ran outside after firing the shots. Bardaloo
                               8


dialed 911 and identified Lewis as his attacker. Afterwards,
Bardaloo testified that he dropped the phone and ran
outside because he had heard his girlfriend, Cheryl
Anderson, scream. He testified that he saw her lying on the
ground and Lewis running down the sidewalk on Essex
Street. He testified that he saw Lewis stop and fire two
more shots, hitting him twice in the shoulder. The
seemingly indestructible Bardaloo, having been shot in the
neck, face, and shoulder, waited until the police arrived,
identified Lewis, described the van he might be driving, and
then passed out.
  Anderson testified that Lewis, an acquaintance that she
had met on ten or more occasions, arrived at the apartment
with another man, Austin Bernard. She testified that she
heard two popping noises and ran outside to get help. She
testified that the next thing she remembered was being face
down against the street with a person saying “Is she dead?”
Anderson testified that she had been shot in the neck.
  Lewis was subsequently arrested. Although he initially
refused to give a statement to police, he later recanted and
confessed to shooting Bardaloo and Anderson with a .380
gun. Lewis also admitted to losing a watch at the scene of
the crimes. Lewis’s description of the watch matched the
watch that was found at the scene. Also, the evidence
discovered during the investigation of the crime scene
corroborated important segments of the testimony of
Bardaloo and Anderson as well as Lewis’s confession. A
spent shell casing and blood were also found on Essex
Street. Blood, spent .380 casings, and a lead bullet were
found in the apartment. A phone cord extended down some
stairs, leading to a phone that was off of its cradle.
   Thus, the evidence implicating Lewis was overwhelming.
Additionally, as the Appellate Division noted, Lewis
represented himself and was accorded considerable leeway
in presenting his version of events. This fact makes it far
less likely that it occurred to jurors to draw an inference of
guilt from Lewis’s failure to formally testify. In this context,
we hold that the Carter error was, indeed, harmless. We will
AFFIRM the judgment of the District Court.
                             9


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        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
