Steve L. Hunter v. Richard Clark and Indiana Attorney General
906 F.2d 302
7th Cir.
1990
Check Treatment

*2 COFFEY, Before FLAUM and MANION, Judges. Circuit COFFEY, Judge. Circuit Clark, Richard Superintendent of the Prison, Indiana State and the Indiana At- torney appeal General the district court’s grant of Steve L. petition for writ of habeas corpus. The grant- district court the petition ed corpus habeas on the ground Indiana state trial court’s refusal to provide Hunter request- with his ed instruction that the jury make no ad- verse inference from Hunter's failure to testify violated Hunter’s privilege against self-incrimination under the fifth and four- teenth amendments of the United States Constitution. We reverse.

I.

At approximately 11 a.m. January 1984, Steve L. Hunter entered the Indiana National Bank branch located at 62nd Michigan Street and Road in Indianapolis, Indiana. At this time Hunter was un- masked inquired of bank Phyllis teller concerning Jones possibility opening savings account. Mrs. Jones invited seat, to take instead, but he walked directly manager’s into bank office, pointed a handgun silver at the man- ager and informed him that a robbery was occurring. Hunter pulled then a ski mask over his Phyllis Jones, face. teller, a bank had an opportunity to observe Hunter’s face before he donned the mask and was thus identify able to Hunter at trial as the man who wielded the handgun. silver Shortly thereafter, Hunter’s two accom- plices, armed shotguns, with burst into the bank and present ordered all to touch nei- ther buttons nor alarms. Hunter ordered the bank manager, Cain, Dewey to enter the tellers’ stations and money remove pistol on pulled he had ted further re- Mr. Cain drawers. the tellers’ men three Each of manager. bank $14,000 three approximately moved total), of which ($300 all pillow- $100 Smith gave it in a placed drawers tellers’ an- Smith dye. in the red stained Included by Hunter. provided case *3 Anthony cousin, money” from accomplice, Hunter’s “bait pack and other dye a loot was dye red “bait remove to attempted When the Thompson, drawer. Phyllis Jones’ teller’s unsuccess- the money from but were removed from the was money” stains and activated that alarm testified drawer, off Thompson it set At trial ful. addition, the when morning on the him telephoned cameras. the bank’s had Hunter bank, dye pack a money” left the he asked him robbery “bait and the of in bait the hidden device Hunter triggering money,” but with a some to “make wished by a automatically activated proba- was money his over of concerns because refused left the dye pack exploded and radio robbery convic- previous a from tion status over sprayed dye Red was premises. bank tion. stolen. had robbers the cash January following day, theOn accomplices his two and When Hunter Beas- Sergeant Ron County Sheriff Marion keys from one bank, car they took left the automobile. in his Smith ley arrested They forced customers. bank’s of the dye in red with money stained had Smith gunpoint manager at assistant bank’s Smith During questioning, possession. his them precede keys and to up his car give Sergeant home address his revealed parked a van stole The men door. out the transported to was Smith Beasley. After engine lot parking with bank’s in the Department, County Sheriff’s the Marion Later, scene. crime left the running and directly to proceeded Beasley Sergeant at- van and abandoned robbers Wilson, Felicia he met home where Smith’s vehicle, failed but another tempted steal Beasley ad- apartment. of lessee Shortly in a ditch. got stuck that car that “believed police her that vised stealing in thereafter, successful they were robbery bank this from evidence was there owner forcing the car after a different her of search obtained could be that pistol. “nickel-plated” car with permission to for and asked apartment,” Hunter, along with day, Later Wilson premises. a search conduct Hatcher, third and Charles co-defendant the search. permitting a waiver signed home Beard, went Lynell man named apartment, the search course had Hatcher friend, Smith. Howard aof rifle, a a semi-automatic upon came police and pistol chrome earlier borrowed and a revolver shotgun, a silver sawed-off por- for a exchange shotgun from Smith dye. with red soap stained bar used rob- taken money to be tion of with charged subsequently was Hunter Hunter, and Hatcher time At this bery. count robbery and counts five red loot, with stained dumped the Beard with a jointly and tried confinement1 and house Smith’s table in dye, on Hatcher, in an co-defendant, Charles While money. count proceeded Hunt- the trial During court. heard money, the men counting the de- in his own stand not take er did robbery news account a TV observed evidence, Hunt- close At the fense. who by a witness a statement that included be instructed jury requested er beaten, robbed been he had recounted any adverse to make they were time At this car. from his and forced testify. inferences from Beard, and Smith Hatcher stated However, Hatcher co-defendant news on the interviewed witness given. The not be lying about touched had not been confronted judge admit- day’s events the details kidnap penalty" than offense, significantly severe less confinement" "criminal Indiana's (Ind. State, 35-42-3-3, 419 N.E.2d ping. Owens § in Ind.Stat.Ann. found "[cjarved 1981). statutory defini previous "punishable kidnapping, tion” of dilemma, offered to sever defen- the “failure testify” or “no adverse in- dants’, Hatcher’s, Hunter and trials or- ference” instruction issue “[tjhis might der that he their cannot accommodate re- find an Indiana court rule or spective requests statute requires conflicting jury in- defendant move for a structions. severance or judge, The trial upon being an offer of severance in preserve forced to order to amake choice between the re- ‘failure to testify’ issue.” quests Id. at 1341. The co-defendants, individual district court went on to hold that Hunter’s elected jury not to instruction con- fifth rights amendment were violated when cerning drawing of the "no adverse the state trial court chose to enforce his requested. co-defendant’s state constitutional convicted Hunter of five robbery counts of *4 to have a testify” “failure to and one count of confinement. Hunter was given over Hunter’s federal constitutional sentenced to 20-year six consecutive terms right to such an instruction. imprisonment for each of the five rob- “When a state right una bery counts (120 and the confinement count voidably conflicts with a federal constitu total). years right, tional state give must appealed his convictions and sen- way to the under the man tences to the Supreme Indiana Court. dates of the Supremacy Clause of the affirming convictions, Hunter’s the Indiana Constitution See, United States. Supreme rejected allega- Hunter’s e.g., Reynolds Sims, v. 377 U.S. 584 tions of error concerning the trial court’s 1362, 1393, 12 [84 L.Ed.2d 506] give refusal to his “no adverse inference” (1964). Consequently, in joint instruction. After recounting the facts of petitioner’s Fifth Amendment case, including divergent requests request a ‘failure testify’ in the jointly tried regarding co-defendants struction prevailed should have over co- furnishing aof “no defendant Hatcher’s state constitutional instruction, the Indiana court stated: right not to have the given. State, See Lucas 499 N.E.2d “By here, [v. his actions placed (where 1093 (Ind.1986)] the trial court on the horns of a dilemma Court of same). Indiana held Thus, impossible made it for it to refrain petitioner’s Fifth rights Amendment from committing error. The trial court were violated when the state trial court gave Hunter the opportunity to resolve give refused to his tendered ‘failure to by this dilemma offering sever testify’ instruction.” had, trials as fact, Hatcher requested, Hunter, but Hunter Lastly, declined to at 1342. alter- district court native. He held that the therefore trial any has waived provide might jury error the have the “no adverse infer- committed ence” resolving the instruction was not matter as he “harmless error” did.” because “the supporting evidence [Hunt- State, Hunter v. 492 N.E.2d ” convictions is not ‘overwhelming.’ er’s] (Ind.1986). at 1343. Id. The court believed years later, Two 26, 1988, on October facts that positively witness iden- Hunter filed petition this habeas corpus tified Hunter as one of the bank robbers alleging that “his Fifth rights Amendment and the state’s upon extensive reliance ac- were violated when state trial court complice testimony of after accessories give refused to his tendered ‘failure to fact necessitated a conclusion that the evi- testify’ instruction.” Hunter v. Duck dence in favor of Hunter’s conviction worth, F.Supp. 1338, (N.D.Ind. not overwhelming. Reasoning further he 1989). The granted district court held that “the state trial court’s error in corpus petition, habeas ruling in contraven refusing give requested ‘failure to tion of the Court’s deci testify’ instruction is not sion, and held that there was no waiver of a reasonable doubt.” Id. at testify failure to regarding struction II. realization full requisite for ais Kentucky, Carter I, by Article granted each citizen right of 67 L.Ed.2d 300, 101 S.Ct. Constitution] the Indiana XIV Section [of States (1981), United prosecu- criminal person, that ‘no in our enunciated principles held that “[t]he testify against compelled to tion, shall against privilege construing cases himself.’ lead unmis self-incrimination] compulsory N.E.2d State, 270 Ind. Priest Fifth conclusion takably to Therefore, “in Indiana (Ind.1979). 686, 689 a criminal trial requires Amendment or not of whether choice infer ‘no adverse single must judge fail on the instructs jury instruction ence’ belongs the defendant.” testify ure Su Conversely, the so.” to do defendant (Ind. 628, 630 State, N.E.2d Parker giving “the of [a held that preme 1981). over the no-adverse inference] arises problem type Obviously, violate does objection multiple-defendant ais there only where compulsory self-incrimina against privilege divergent the defendants Four Fifth and by the guaranteed *5 adverse the “no respect to v. Ore interests Lakeside Amendments.” teenth multiple-defen- In instruction. 340-41, inference” U.S. gon, 435 accommo- cannot court when the (footnote (1978) dant 1095-96, 319 55 L.Ed.2d in involved conflicting interests Nonetheless, date added). omitted, emphasis right constitutional federal defendant’s also noted in Lakeside Supreme instruc- inference” a “no adverse receive judge not to trial wise for may “It that: constitu- and another tion over cautionary instruction give such to instruc- such an to receive right not is, tional State And each objection. prop- has Supreme Court tion, Indiana judges its trial forbid course, free Amend- “Fifth' that erly determined of state law.” a matter as doing so from warning the right to an ment Prior Lake at 1095. S.Ct. 98 Id. at inferences adverse not draw guar had Supreme Court Indiana side right prevail over his silence must right defendants criminal anteed granted under instruc inference” adverse “no receive it decide whether Indiana Constitution State, 261 v. chose. Gross they so tion if instruc- to have such an suits defendant] [a (Ind. 371, 372-73 N.E.2d 306 Ind. State, 499 not.” Lucas or given Lakeside, the Indiana Following 1974).2 (Ind.1986). 1090, 1093 N.E.2d grounded explicitly Supreme Court Constitution, holding: Lucas, case, Indiana unlike right in Hunter’s In request honor the opted to responsibilities our regard for state trial due “With refrain our re-examined co-defendant we have of Hunter’s judges, inference” State, “no adverse 371 providing a Hill holding in [v. Gross request than of rea rather (Ind.1978)] light 1303 N.E.2d are convinced We re instruction. interests an for such and evaluation soning case, the court so, that, of this we the facts Having done under vealed Lakeside. Indiana properly. Both premises acted basic convinced remain sepa made court4 and the district reasoning in Gross Court3 Court’s of this stated findings and rate mechanism and that sound Hill opportunity offered Hunter to choose accused for the therein erected co-defen- from his severed ease in- to have his jury given have right receive "no not to appeared the Indiana 2.In Gross Lakeside. holding upon Fifth Amendment to base See 306 States Constitution. United State, 1068-69. N.E.2d at 492 Obviously, this rationale at 372-73. N.E.2d States the United not survive could Duckworth, n. 1. at 1342 4. recognize Amendment a Fifth refusal Court’s dant’s, but he refused severance. Based “The majority is correct suggesting upon our record, examination of the we the ‘court devised and logical offered a conclude that these factual determinations legally acceptable (severance) solution were free from clear error. See Walton v. protected would have both Hunter’s federal Lane, (7th F.2d Cir.1988) right to receive a no adverse (state court factual pre- determinations are inference instruction and his co-defendant’s sumed correct in a corpus federal habeas right not to receive an [state] instruction.’ proceeding and a [may] “federal court[] Dissent at (quoting Majority Opinion at make a contrary finding of fact if ‘on 306-307). The dissent agrees that: a consideration of ... the record aas whole “Faced with competing demands of the concludes court] fac- case, defendants in this the trial court’s tual determination is fairly supported remedy of severance was reasonable [a] by the record.’ 28 2254(d)(8).”). U.S.C. § one since it would have accorded each of Presented with the need to reconcile two they defendants what sought.” Dis- jointly tried defendants’ conflicting rights, sent at 311. light recog- dissent’s the state trial court devised and offered a nition that the trial proposed court’s sever- logical legally acceptable (sev- solution ance preserved would have Hunter’s consti- erance) that would protected both tutional to a “no adverse inference” Hunter’s federal to re- instruction, great we have difficulty under- ceive a “no adverse inference” instruction standing the position dissent’s that the Su- and his co-defendant’s not to receive preme Court’s Carter, decisions in such an Lake- instruction. failing agree side and James v. Kentucky, proposed solution, Hunter, petitioner-appellee, (1981), L.Ed.2d effectively waived *6 right his complain to should be right and his to a construed to require “no a conclusion adverse inference” instruction. that a The Sixth defendant has a right upon to insist and Eighth Circuits have preferred observed that a his means of vindicating his con- “ judge ‘trial can not be faulted for any stitutional right (reception of the ad- “no mishaps trial that he offers to and could joint verse inference” in instruction tri- correct.’ United Feroni, States v. 655 al). 707, (6th Cir.1981) F.2d 712 (quoting Unit- The effect of the reasoning dissent’s is to ed Splain, States v. 1131, 545 F.2d 1133 right extend the to a “no adverse infer- (8th Cir.1976)). agree We with the Sixth ence” beyond instruction a simple right to Eighth Circuits and hold that the state receive such an right instruction to a to trial separate court’s offer of a trial would refuse procedural trial court solution have allowed Hunter request- to receive his preserve right to a to “no adverse ed “no adverse inference” instruction and inference” through instruction a trial would mech- any prejudice have avoided accompa- anism that is not of nying prefer- his failure to receive such an instruc- tion in ence. In joint support position his of trial. As Supreme regarding Court this court nature often stated: “absolute” aof “The Constitution right entitles a criminal defen- to a “no adverse inference” instruc- dant to a fair perfect not a tion, one.” page quotes dissent at 310 Arsdall, Delaware v. 673, Van 475 U.S. first half of a sentence from James 681, 1431, 1436, 106 S.Ct. 89 L.Ed.2d 674 Kentucky, 466 U.S. at 104 S.Ct. at (1986); Dortch v. O’Leary, 863 F.2d 1836: “The obliges Constitution the trial (7th Cir.1988). 1346 judge to tell jury, in an effective man- ner, not to The draw the if argues inference dissent that “the defen- judge trial requests_” dant so dissent, deviated from Supreme established how- Court precedent ever, and in doing so omits violated the second Supreme Hunter’s half to receive the ‘no Court’s in ad- sentence James which modifies verse inference’ instruction.” Dissent at with the statement it “but 311. Interestingly, dissent admits that: does not afford the defendant Constitution]

308 has not States The United dictate, inconsistent right to reviewing a date of this decided told.” is to be how practice, constitu disregard a trial may court at 1836 104 James, U.S. at 466 a "no provide failure improper tionally view, Hunt- our original). in (emphasis a similar instruction inference” adverse determina- the trial court’s refusal er’s error is if this situation right to factual receive Hunter would Carter, doubt. See a a reasonable beyond instruction inference no adverse (“While it 1121 at at- an 450 U.S. represents proceeding “severed” no [a a refusal arguable specific manner dictate tempt similar inference inference] no adverse adverse right to never be here can vindicated, attempt an one that be would issue, reach part harmless, legitimate we decline constitute does to or con presented it was federal Hunter’s of Ken Court also note We sidered instruction. However, omitted). (citation “clearly tucky.”) established none re- reached that have appeals the dissent to which courts federal precedent” that a unanimously held Carter, Lake- James, question have namely, fers— pro co-defendants erroneous joint constitutionally trials side—involved “no as to requests inference” adverse conflicting “no making vide there- harm We if error disregarded instruction. may blatant Fin See doubt. to condone a reasonable refuse fore less pro- (6th state trial F.2d attempt orchestrate Rothgerber, ney v. Indeed, 1020, 105 S.Ct. denied, benefit. ceedings his own Cir.), cert. manip- trying to (1985); Richardson apparent 2048, 85 L.Ed.2d Cir.1984). revers- committing (5th into trial court Lucas, F.2d ulate trial. a new F.Supp. to obtain Hoke, in order error ible Carroll callous to such party not be Su will The Indiana (E.D.N.Y.1989). We 450-51 dockets overburdened for the disregard a state held that has also preme courts. The Con the federal both judge’s violation viable solution offered “no adverse provide failing to stitution *7 inference” “no adverse for request ignored may be instruction inference” case of no aware instruction, and we rea beyond harmless is the error comply with court to a trial requiring State, 425 v. Parker doubt. sonable preference stated defendant’s manipulative (Ind.1981). See 628, 630 N.E.2d or her preserving (Ind. the means of State, 446 N.E.2d Brown Thus, we hold rights.6 the federal and agree We App.1983). Hunt- violate did not trial court this issue and of resolution courts’ rights. amendment fifth ad er’s a “no provide failure conclude may appropri instruction inference” verse III. error disregarded when ately be the state harmless. agreed if we Even a no adverse provide “recognizes rule error The harmless deprived Hunter inference of a purpose the central principle the federal Constitu under protected rights ques decide factual is to criminal remain not, there would tion, we do innocence.” guilt or tion of the would an error whether question 570, 577, 106 S.Ct. Clark, 478 U.S. Rose conviction. Hunter’s reversal justify inference” "no receive at 310. 5. Dissent request a co-defendant’s face in the given. at 311. How- Dissent be judge's decision that the trial *8 independently Thompson corroborate Howard Smith was later arrested the Smith’s accounts hearsay possession state- of dye-stained money; an old ments. We are convinced that bar of because of soap also with dye stained red was the overwhelming guilt, evidence of found in Hunt- apartment. Smith’s money The er’s testify failure to appeared and the lack to be the from dye stained the red no-inference packet planted in instruction had money. impact the no addition, In on jury Smith the verdict. It is testified about belief statements our “the Hunter that made, jury recounting would with have specificity many of convicted [the defendant] the facts alleged absent circumstances surrounding constitutional error].” the Fencl, events during and 841 immediately F.2d at Furthermore, after 769. if the robbery. Another accomplice there were (Anthony a constitutional error Thompson) testified as to Hunter’s solicita state court’s provide failure to a no adverse tion of participation in a possible instruction, inference it would have been scheme to “make some money” day on the harmless beyond a reasonable doubt. Although Thompson declined the invitation attempts to Smith in dye to remove the red part take robbery, Thompson money. assisted

310 300, 288, Kentucky, 450 U.S. v. attempt Carter to its voluminous to contrast (1981). 67 L.Ed.2d S.Ct. court that the conclusion

refute our giv- objected his co-defendant When error, dis- no constitutional committed exercised instruction ing of our disagreement relegates sent have the right not constitutional to a issue error harmless disposition v. Parker jury, see read to instruction stating: footnote (Ind.1981), the 628, 630 State, 425 N.E.2d notes, the correctly majority “As placed that it court believed whether yet to decide has co-defendant, The dilemma. of a the horns inference no adverse the failure able been however, have should error. harmless can be the Su- objection, a successful maintain at S.Ct. Carter, at [101 450 U.S. determined previously having Court preme Kentucky, 1121]; James inference] no-adverse giving of “the [a (1984). L.Ed.2d 346] [104 objection over toas remains question a serious While com- against privilege not violate does con- can ever [be] error such guaranteed self-incrimination pulsory not reach harmless, need I sidered Amendments.” Fourteenth Fifth and court’s the district I since issue 340-41, Oregon, U.S. Lakeside clearly not harmless it was finding that 1095-96, L.Ed.2d case.” in this added). omitted) (emphasis (footnote (1978) dis- previously As n. 3. Dissent constitu- principles established Applying uniformly precedent cussed, the federal Indiana law, tional pro- conclusion supports a posing the case in a noted subsequently instruction” inference a “no adverse vide here, proper presented issue precise As also error. harmless constitute can the su- apparent: have been should route clear that above, quite it is discussed “Fifth that the mandates clause premacy a rea- was harmless error involved warn- to an Amendment of Hunter’s evidence as the doubt sonable inferences draw adverse not to ing the overwhelming, and we guilt prevail over must his silence convicted jury would opinion granted under alleged any absent Hunter to decide whether Constitution delineation extensive of our light error. instruc- to have defendant] suits [a was harmless error why the the reasons State, 499 not.” Lucas or given specifically dissent failure of than (Ind.1986). Rather 1090, 1093 N.E.2d than other harmlessness bases isolate chose result, the trial reaching this opin- court’s district in the forth those set severance, and option offer conclu- alter our reason ion, no we see in- declined, to read refused he errors alleged constitutional sion honoring the instead jury, struction beyond reasonable indeed were majori- the co-defendant. objection of doubt. effectively waived ty holds district hold that we Because when, fundamental failing provide error commit did it, he de- exercising affirmatively after instruction, and “no adverse proffered procedural the trial clined of this facts under error any such holding *9 my view remedy. Because been case would Supreme clearly established contravenes dis- of the doubt, judgment reasonable clause supremacy precedent Court petition granting trict waiver, I principles recognized as well is corpus habeas dissent. respectfully must Reversed. 288, 450 U.S. Kentucky, Carter In dissenting. Judge, FLAUM, Circuit L.Ed.2d 300, 101 S.Ct. a de- reversed (1981), the exercised trial, During Steven his fifth and conviction “no fendant’s receive violated were rights amendment fourteenth jury instruction.

3H when the trial court refused give a repeated no demands for severance. What is adverse inference instruction to the jury. clear is that once Hunter turned down the Speaking unqualified terms, the Court trial court’s eventual offer of severance, recognized part that as of the criminal de- the court was bound to read the instruction fendant’s “absolute guaran- any over objection by Hatcher. The court against tee self-incrimination,” trial judge did so, not do and an examination of the give single “must ‘no adverse inference’ appears record why reveal trial —the jury instruction requested by defen- court apparently guid- misconstrued the dant do so.” Id. at 101 S.Ct. at ance provided by the Supreme Court. (emphasis added). “The Constitution Rather than reading Carter, James, and obliges the judge trial to tell jury, in an Lakeside to mandate that the instruction manner, effective not to draw the inference given despite demand the objection of if the requests.... defendant so James a co-defendant, the judge trial found that in v. Kentucky, these cases “the Supreme says Court (1984). L.Ed.2d 346 The right to a no no adverse inference instruction] instruction, adverse inference as identified doesn’t have given. to be co-defen- [The by Court, unconditional; absolute and doesn’t want it to be [given], dant] so it will to receive the instruction the defendant not.” R. 164-65. I find erroneous such an who does not testify on his own behalf interpretation of precedent. this line of need properly request that the instruc- given. tion be Faced with the competing The majority apparently distinguishes demands of the two case, defendants in this the binding Supreme precedent Court sub the trial court’s remedy of severance was silentio, relying instead on the position reasonable since it would have accorded that Hunter was to blame for the conflict each of the what they sought. defendants which he by caused demanding the instruc- Hunter, however, Defendant was not tion. This “responsibility-shifting,” how- bound to the offer and his decision ever, belies a fundamental fact—the must be equally viewed as appropriate, giv- government party was the that moved for en the resources already devoted to the joint trial and the granted trial court trial, the state of the law mandating that my view, motion. In any conflict between he receive the instruction over his co-defen- co-defendants cannot appropriately be at- objection, dant’s and the fact that he had tributed to either of them but instead must already placed been jeopardy. Once be traced to the actions and decisions of the offer, refused the the trial judge prosecutor and the trial court.1 was bound by the dictates instruction. The majority exonerates the trial court’s acceding to co-defendant objec- Hatcher’s ruling by finding waiver on part instruction, I am constrained to defendant. I must admit to puzzle- some conclude that the trial judge deviated from ment as to how defendant Hunter can be established precedent and deemed to have waived fundamental doing so violated Hunter’s constitutional right in the face of express assertion of right to receive the “no adverse inference” that very right. It undisputed instruction. Hunter was duty under no obligation or It unexplained remains why the accept the trial court’s eventual offer of a court denied co-defendant Hatcher’s earlier just new as he would have had no opinion majority relies on United States prejudicial in the face of remarks made Splain, (8th Cir.1976) 545 F.2d by government view, my witnesses. these Feroni, (6th United States v. 655 F.2d decisions of proportions non-constitutional can- Cir.1981) proposition for the judge a "trial supportive position not be forwarded can not be mishaps faulted for that he majority defendant waives his consti- *10 offers to and could correct.” At 307. These right tutional to a no adverse inference instruc- straightforward cases involved evidentiary situa- tion when he refuses a trial court’s offer of rejected tions a defendant an offer severance. give the trial court to a curative instruction to read it refused al dimension initially.2 The action to demand jury. There- that the suggesting is correct majority logical and offered dissent.3 fore, and respectfully devised “court I (severance) that solution acceptable legally both protected would ORDER adverse a no to receive constitutional his co-defendant’s and inference 17, 1990. Sept. an instruction.” to receive right not [state] In however, be waiver cannot my opinion, service in active judges majority A declination defendant’s woven en banc. this case rehear have voted to perceived solution trial court’s Accordingly, must be Rather, the defendant dilemma. intelligently knowingly rehearing and en banc to have deemed IT IS ORDERED right, see a known hereby, waived GRANTED. be, the same and 458, Johnson, Zerbst v. ORDERED IT IS FURTHER here, to the (1938),and 82 L.Ed. in this case opinion entered judgment intelligent- knowingly contrary, hereby, be, VA- July majority does right. The ly exercised en reheard banc intelligent be case will “knowing and This CATED. speak of not defen- how the only of the court. rather but waiver” convenience at the trial court to deliver failed dant Furthermore, the conflicting requests. al., AURIEMMA, et John any per- refer to does not opinion majority Plaintiffs-Appellants, waiver support authority to suasive decline Therefore, respectfully I analysis. interpretation innovative join in such actions. al., CHICAGO, et OF CITY Defendants-Appellees. amendment fourteenth The fifth de- criminal guarantee Constitution 90-1872. No. instruct- be fendant inference no adverse it is to draw ed that Appeals, United States I do not testify. decision from his Circuit. Seventh emphatical- right, absolute that this believe Court, can be by the ly sanctioned 1, 1990. June Submitted ac- upon the made conditional remedy fashioned procedural 1990. ceptance July Decided competing meet by a trial co-defendants. jointly-tried demands fundamen- of a dilution my judgment, sup- be cannot protection tal directives. light of ported in the district agreement I am in since granted be should writ of constitution- error committed trial court can inference noa entitled time of At the 2. Carter, at U.S. error. im- statement co-defendant’s aif severance 1121; Kentucky, 466 U.S. ifor admitted James was to be S.Ct. defendant plicating the (1984). separate trial is While L.Ed.2d 346 determine[d] "the court necessary right to a protect a whether such defendant's as to question remains serious promote a fair harmless, appropriate or I need speedy trial ever considered can error of a guilt or innocence determination the district I since the issue reach finding 35-34-1-11(b). I.C. defendant.” clearly not harmless that it case. notes, correctly majority As the whether the yet to decide notes The dissent subjective under- ever, trial court’s apparent- "court may resulted have rights is standing involved provided guidance ly misconstrued Court," irrelevant. concerning 3101, 3105, (1986). 92 L.Ed.2d 460 For a of the robbery.7 facts, These physical constitutional error harmless, be “the evidence, eyewitness testimony, and the court must be able to declare a belief that accomplice’s testimony clearly establish a beyond harmless error] a reason case of guilt Hunter’s beyond a reasonable able Chapman doubt.” v. California, 386 doubt. We specifically disagree with 18, 24, U.S. 824, 828, 17 L.Ed.2d Judge Sharp’s reasoning that the combina (1967). In addressing question tion of accomplice testimony, physical evi harmless error we often upon focus wheth dence eyewitness identification offered er the evidence supporting a conviction in evidence failed to constitute “over “overwhelming.” See, e.g., United States whelming” evidence of guilt. ex “ Lane, rel. Savory 832 F.2d ‘[T]he view the prosecution’s case (7th Cir.1987)(“Typically, require we other must answer questions all and remove all evidence guilt ‘overwhelming’ be doubts course, ... of is not the law be fore concluding a constitutional error is cause that impossible; would be proof harmless.”). However, we have also held need only satisfy reasonable doubt.’ constitutional errors harmless even in the United Nesbitt, States v. 852 F.2d absence “overwhelming” evidence, fo (7th Cir.1988) (quoting Borum v. cusing “impact instead objec States, United (D.C.Cir. 380 F.2d tionable jury’s material on the verdict” as a 1967) (former Chief Justice Burger dissent means to determine whether “the ing) (emphasis Borum)). would have convicted ab [the defendant] sent Even if [the constitutional we Fencl v. were upon to focus ques- error].” Abrahamson, (7th 841 F.2d Cir. tion of the effect on the jury of the failure 1988). Under either approach purpose our provide the “no adverse in- is to determine error struction, Fencl, as in we would also hold a reasonable doubt. alleged error was harmless. The district that, court believed in the absence The facts of clearly this case estab of a “no instruction, adverse inference” guilt. lish Hunter’s Hunter was identified “ there was ‘a reasonable possibility’ that by a bank teller as robbers and jury may petition- considered the wielding observed a silver handgun that er’s failure testify as a tacit admission to was used during the robbery but the truthfulness of the inculpatory state- also at the time a car stolen during ments that made to Smith and [Hunter] attempt to flee from robbery. Police Thompson.” Hunter, at 1344. The com- handgun confiscated silver and other eyewitness, bined physical direct and evi- items from Howard apartment Smith’s dence recounted in this opinion clearly where the robbers tomet count their loot.