ANDERSON v. NELSON, WARDEN.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT. No. 652, Misc.
Decided April 1, 1968.
Comment on petitioner's failure to testify cannot be labeled harmless error where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for conviction, and where there is evidence that could have supported acquittal.
Certiorari granted; 379 F.2d 330, reversed.
Charles A. Legge for petitioner.
Thomas C. Lynch, Attorney General of California, for respondent.
Petitioner Anderson was convicted after jury trial in California courts of forgery and the State District Court of Appeal affirmed, finding all errors nonprejudicial under the State's harmless error rule. After the California Supreme Court returned to petitioner unfiled his petition for hearing in that court, with the notation that it was not timely, petitioner sought habeas corpus relief in Federal District Court. The District Court issued the writ, holding that the prosecutor's comment on the failure of petitioner to testify at his trial, made in violation of Griffin v. California, 380 U.S. 609 , was not harmless error. The State appealed. One week after oral argument, our decision in Chapman v. California, 386 U.S. 18 , was handed down. Applying the Chapman standard, the majority of the Court of Appeals concluded that the Griffin error was harmless "beyond a reasonable doubt." Wilson v. Anderson, 379 F.2d 330, 335. Judge Ely dissented.
We agree with Judge Ely that comment on a defendant's failure to testify cannot be labeled harmless [390 U.S. 523, 524] error in a case where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal. We find this is such a case.
The bookkeeper for a trucking firm had written a $196 payroll check to employee Michael Pittman and had placed it in the firm's office. The check disappeared at a time either shortly before or after petitioner was in the firm's office asking for a job. Two days later petitioner had possession of the check and asked gasoline station operator Kernen to cash it for him. According to Kernen, petitioner told him he had been working for the trucking firm and it was his payroll check. Kernen was acquainted with petitioner, knew him as Willy, and knew he was the brother of Jim Anderson, who had a charge account with Kernen. Kernen told petitioner he did not have enough money on hand to cash the $196 check, but they agreed to apply $112 to Jim Anderson's account, with petitioner taking $84. According to Kernen's testimony, petitioner then borrowed a pen from him and endorsed the name Michael Pittman on the check. When the check was returned to Kernen by the bank, he met with police and identified petitioner from a police "mug shot."
The arresting officer testified that he asked petitioner about the incident and that petitioner admitted cashing the check but denied he endorsed it. Petitioner told the officer he was in a bar when an unknown person came up to him and said he wanted to cash a check. Petitioner took it to the service station and substituted $112 he had on his person for the amount withheld by Kernen.
Petitioner did not testify and presented no evidence. The trial court instructed the jury on inferences to be drawn from petitioner's silence as follows:
While the evidence against petitioner was sufficient to convict, the facts that petitioner allegedly forged the name Michael Pittman in the presence of an acquaintance of petitioner's who knew him as Willy, the brother of Jim Anderson, that petitioner allegedly chose to cash a worthless check at a place where he was known and openly agreed to have the major portion of the proceeds applied to his brother's account and yet, after all this, did not flee the county could be viewed as casting doubt on the prosecution's case, perhaps on Kernen's veracity. In this posture, we cannot say that the prosecutor's extensive argument asking the jury to overlook inferences favorable to petitioner because he invoked his constitutional right not to testify was, in the words of Chapman, "harmless beyond a reasonable doubt." 386 U.S., at 24 . Since petitioner is entitled to relief for this reason, we do not reach the other questions he seeks to raise. Nor are we persuaded by respondent's contention that petitioner's late filing of a petition for hearing in the State Supreme Court constituted a deliberate bypass of state remedies, precluding him from habeas corpus relief in federal courts. See Fay v. Noia, 372 U.S. 391 . Cf. Henry v. Mississippi, 379 U.S. 443 . [390 U.S. 523, 526]
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment is