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City of Colby v. Granston5/12/2000
tify or present evidence. Carter v. Kentucky makes clear that, once request for a no-adverse-presumption instruction has been made, the 'full and free exercise' of the constitutionally guaranteed privilege against self-incrimination requires more than instruction on the right not to testify and to be presumed innocent until proven guilty. [Citations omitted]." (Emphasis added.) 80 F.3d at 567.
This language from Brand makes clear that, like the Tenth Circuit, the First Circuit recognizes the constitutional necessity of instructing the jury on both compulsion and adverse inference, once such instruction has been requested by a defendant.
For its part, the Kansas Supreme Court has not addressed the exact issue before us. Although it has approved the wording of the PIK instruction given here, its decisions have focused on the propriety of giving the instruction without a request or objection from the defendant or when the defendant objected that the instruction would comment impermissibly on his or her silence. See State v. Goseland, 256 Kan. 729, 737-39, 887 P.2d 1109 (1994) (no request or objection; instruction not clearly erroneous); State v. Perry, 223 Kan. 230, 236, 573 P.2d 989 (1977) (instruction given over defendant's objection; not prejudicial under facts of case but preferable that trial courts not give instruction when only one defendant on trial and defendant objects). See also Lakeside v. Oregon, 435 U.S. 333, 340-41, 55 L. Ed. 2d 319, 98 S. Ct. 1091 (1978) (giving of adverse instruction over defendant's objection does not violate privilege against self-incrimination). These cases simply have not gone to the next step in the analysis, recognizing both the compulsion and adverse inference components in the instruction considered in Carter.
Although we are not bound to follow the federal circuit courts in their interpretations of United States Supreme Court precedents, we find the reasoning of the Tenth and First Circuits persuasive and conclude that, when presented with the opportunity, our Supreme Court would see the issue as we do. See Harder v. Towns, 1 Kan. App. 2d 667, 669, 573 P.2d 625 (1977), rev. denied 225 Kan. 844 (1978). As Brand put it:
"The Fifth Amendment guarantees a criminal defendant both the right to remain silent and that no adverse inferences may be drawn from his exercise of this right. [Citation omitted.] Further, 'when the defendant makes a timely request that a prophylactic instruction be given . . . [the court] has the constitutional obligation . . . to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify.'" Brand, 80 F.3d at 567 (citing Carter, 450 U.S. at 305). (Emphasis added.)
We hold that a trial court runs afoul of a criminal defendant's privilege against self-incrimination when it refuses, after a defendant's request, to instruct the jury not only that it may draw no adverse inference from defendant's silence but that the defendant has a right not to be compelled to testify. Because the PIK instruction given as Instruction No. 6 covered only the adverse inference component and not the compulsion component, as requested by Cranston, the trial court committed error. Although we believe the brevity and clarity of the instruction requested by defendant could be enhanced, it correctly included both the compulsion and adverse inference elements required.
Our next inquiry focuses on whether the trial court's instruction error was harmless. See U.S. v. Flores, 63 F.3d 1342, 1376 (5th Cir. 1995) (Carter instruction error subject to harmless error standard). Because we are convinced that the evidence against Cranston was direct and overwhelming, as further discussed
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