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A criminal defendant’s request for a jury charge explaining his constitutional right to plead the Fifth Amendment at trial trumps a co-defendant’s objection to such an instruction, the Pennsylvania Supreme Court has ruled in a case of first impression. Two co-defendants, facing charges of murder, robbery and criminal conspiracy, differed on whether a Philadelphia trial judge should give the jury a so-called “no adverse inference” instruction at trial. This charge advises jurors that they may not draw negative conclusions about the defendants’ constitutional right to refuse to testify. The defendant who objected to the instruction cited a rule set forth in a 1993 Supreme Court case holding that a defendant may waive the no adverse inference instruction as a matter of trial strategy, and that it is per se reversible error for a trial court to give the instruction in such cases. In its ruling last week in Commonwealth v. Garcia, the court said that this rule “must yield in a multi-defendant action when a trial court is presented with two competing requests by the defendants, one of which is constitutional in nature.” That is, defendant Antonio Lambert’s constitutional right to the no adverse inference instruction necessarily trumps co-defendant Miguel Garcia’s strategic objection to it. The court, led by Chief Justice Ralph J. Cappy, also noted its discomfort with its 1993 ruling in Commonwealth v. Edwards, permitting defendants to waive their right to the no adverse inference instruction. In a footnote, Cappy said the court’s reasoning in Edwards — which found Massachusetts’ case law persuasive — has been eroded by the Bay State high court’s decision to overrule that precedent. Still, Cappy, who dissented to the adoption of the per se rule in Edwards, said Garcia was not the right vehicle to overrule that case. He wrote: “While we agree that the continued viability of Edwards may be open to debate, this is not the appropriate case in which to reconsider the per se rule announced therein; the fact that [Garcia] involves multi-defendants sufficiently distinguishes this case.” Writing in a concurring opinion, Justice Ronald D. Castille reluctantly agreed with Cappy that “strictly speaking” Edwards did not need to be overruled in order for the court to reach its decision in Garcia. But Castille seemed to suggest that the court should go ahead and toss out a bad precedent anyway. Castille said that Edwards‘ intent was to give defense counsel the right to decide whether a no adverse inference instruction should be given, but the omission of this charge is “a risky trial strategy” for a defense attorney to take. “It is difficult to see how any defendant in a circumstance where the court orders the jury not to draw the logical lay inference that results from silence in the face of evidence of guilt can be said to have been prejudiced,” he wrote. “To grant relief irrespective of actual prejudice, in instances such as those contemplated by Edwards, may forestall appeals, but at the cost of criminal justice.” Castille said Edwards‘ per se rule is flawed, and indicated that since prosecutors have challenged it in Garcia, the court should take the opportunity abolish it. “Moreover,” he wrote, “since Edwards announced this unwise per se rule in a case where the rule itself was not applied, there would be a certain symmetry in the court correcting the mistake expeditiously here, so as to better ensure the cause of justice sooner rather than later.” Justice J. Michael Eakin joined Castille’s concurring opinion. Cappy was joined by Justices Sandra Schultz Newman, Thomas G. Saylor and Max Baer. Justice Russell M. Nigro did not participate in the decision of the case. According to court documents, Garcia and Lambert were tried in Philadelphia Common Pleas Court for the February 2001 shooting death and apparent robbery of Mary Edmond. On the night of the shooting, Garcia, 17 years old at the time, was driving in his car with Anthony Cheatham when they stopped to pick up Antonio Lambert. According to court papers, the trio drove around North Philadelphia, buying and using drugs. Cheatham later testified that at one point during the evening, both Garcia and Lambert got out of the car. Cheatham said he heard a gunshot soon after that but did not see who fired it. According to court papers, Cheatham testified that when Garcia and Lambert returned to the car, Lambert was carrying a gun. Cheatham was later dropped off at home. Early the next morning, Garcia, Lambert and another man were pulled over in Garcia’s car. The men ultimately fled on foot, and police saw Garcia toss a gun that was later determined to be the murder weapon, according to court documents. Garcia and Lambert were tried jointly before Philadelphia Judge Steven R. Geroff on charges of murder, robbery and criminal conspiracy. At trial, Lambert requested the no adverse inference instruction be given to the jury, but Garcia asked that the charge not be given. The judge decided to give the instruction, to which Garcia did not make any exceptions, according to Cappy’s opinion. Garcia was convicted of second-degree murder, robbery and criminal conspiracy, and was sentenced to a life term for the murder conviction and a concurrent term of five to 10 years for conspiracy. The Superior Court upheld the judgment of sentence, and the Supreme Court granted allocatur limited to the question of whether a trial court should give the no adverse inference instruction in a multi-defendant trial when one defendant requests it and the other waives it. First, Cappy rejected prosecutors’ contentions that Garcia waived his challenge by failing to formally object or make an exception after the instruction was given. He said that under the court’s recent ruling in Commonwealth v. Pressley, an objection or exception to a proposed point of jury charge must be registered with the trial court in order for a defendant to later appeal. But the court deemed this clarification in the law prospective from the date of the November ruling. Turning to the substance of Garcia’s appeal, Cappy said the state and federal constitution — as well as state and federal case law — give defendants the right to have a no adverse inference instruction when they choose not to testify in a criminal trial. Edwards, however, instructed trial courts that it was per se reversible error to give such an instruction over a defendant’s objection. The difference, Cappy said, is that the defendant’s right to the instruction is constitutional in nature, while the Edwards rule has no “constitutional dimension.” “There was simply no indication in Edwards that the right recognized therein was of constitutional proportion either by citation to the Pennsylvania Constitution or relevant Pennsylvania case law,” Cappy wrote. “We will not assume that the mere fact that we considered the error to be per se amounted to pronouncement of a rule of constitutional dimension,” he added later. The “underpinnings of our decision in Edwards was to prevent the trial court’s interference with defense counsel’s strategy,” Cappy explained. But in cases such as Garcia, “a defendant’s constitutional right to receive the charge trumps his co-defendant’s right to decide his or her trial strategy.” This ruling is consistent with decisions from other jurisdictions, Cappy added, citing cases from Illinois, Iowa, Maryland and New Jersey courts. Philadelphia sole practitioner Mitchell S. Strutin represented Garcia. He declined to comment on the ruling. Jonathan Levy of the Philadelphia District Attorney’s Office argued the commonwealth’s case, and Hugh J. Burns, head of the appeals unit, was also listed as counsel. Neither attorney could be reached for comment at press time.

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