F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 4, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-1129
V ERNO N W. TEM PLEM A N ,
Defendant-Appellant.
APPEAL FROM THE UN ITED STATES DISTRICT CO URT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 05-cr-00342-REB)
R. Scott Reisch, The Reisch Law Firm, Denver, Colorado, for D efendant-
Appellant.
James C. M urphy, Assistant Unites States Attorney (Troy A. Eid, United States
Attorney and M atthew Kirsch, Assistant United States Attorney, with him on the
brief), Denver, Colorado, for Plaintiff-Appellee.
Before BRISCO E, BALDO CK , and HA RTZ, Circuit Judges.
B ALDO C K , Circuit Judge.
A jury convicted Defendant Vernon Templeman and three co-defendants of
retaliation against a w itness in violation of 18 U.S.C. §§ 1513(b)(1) & 2, and
conspiracy to commit the sam e in violation of 18 U.S.C. § 371. Defendant argues
on appeal the district court should have granted his motion for a mistrial after a pro
se co-defendant called him to the witness stand in the presence of the jury. W e have
jurisdiction pursuant to 28 U.S.C. § 1291. W e affirm.
I.
Defendant and several co-defendants were tried jointly. The Government
alleged Defendant and co-defendant Carl Pursley assaulted Jessie Cluff because the
latter had testified against Pursley and one other co-defendant at a different
proceeding. At the conclusion of the Governm ent’s case in chief, Defendant
presented no evidence and rested his case. Subsequently, while in the presence of
the jury and without notice to the court or Defendant, W endel W ardell, a pro se co-
defendant, called D efendant to the stand as a witness. Defendant immediately
objected and moved for a mistrial pursuant to Fed. R. Crim. P. 26.3. The court
promptly dismissed the jury. In response to the court’s inquiry, Pursley, also acting
pro se, explained to the court he w as “somewhat at fault in helping precipitate this”
because he and W ardell believed that calling Defendant to testify was necessary to
preserve their right to appeal the district court’s prior denial of their motion for
severance. W ardell echoed Pursley’s explanation and apologized to the court.
The district court denied D efendant’s motion for a mistrial. The court
concluded that although W ardell should not have called Defendant to the stand in
front of the jury, “very little prejudice, if any,” resulted from W ardell’s blunder. The
court further concluded any prejudice would be lim ited by properly instructing the
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jury on Defendant’s rights. At the close of the evidence, the court instructed the jury
in instruction nine as follow s:
The defendant in a criminal case has an absolute right under our
Constitution not to testify.
The fact that a defendant did not testify must not be discussed or
considered in any way when deliberating and in arriving at your verdict.
No inference of any kind may be drawn from the fact that a defendant
decided to exercise his privilege under the Constitution and did not
testify.
As stated before, the law never im poses on a defendant in a
criminal case the burden or duty of calling any witnesses or of
producing any evidence.
Defendant timely appealed.
II.
W e review for an abuse of discretion a district court’s refusal to grant a motion
for a mistrial. See United States v. M artinez, 455 F.3d 1227, 1129 (10th Cir. 2006).
A mistrial is proper where an error impairs a defendant’s right to a fair and impartial
trial. Id. W e w ill not disturb a district court’s decision to deny a motion for a
mistrial unless the decision “was based on a clearly erroneous finding of fact or an
erroneous conclusion of law or manifests a clear error of judgment.” Id. (quoting
United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir. 2005)).
Defendant argues W ardell’s attempt to call him as a witness “was intended as
a comment” on his failure to testify. Defendant’s argument is essentially a Griffin
challenge. In G riffin v. California, 380 U.S. 609, 615 (1965), the Supreme Court
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held a defendant’s Fifth Amendment privilege against self-incrimination prohibits
a prosecutor from commenting on a defendant’s exercise of his right not to testify.
In United States v. W alton, 552 F.2d 1354, 1362-63 (10th Cir. 1977), we extended
Griffin to prohibit comm ents by a co-defendant’s counsel on a defendant’s failure
to take the stand. See also United States v. M cClure, 734 F.2d 484, 491 (10th Cir.
1984). W e have no reason to doubt the protection the Fifth A mendment affords a
defendant applies with equal force when a pro se co-defendant comments on a
defendant’s failure to testify. See United States v. Kaplan, 576 F.2d 598, 600 (5th
Cir. 1978) (addressing a pro se co-defendant’s attempt to call a defendant to the
stand).
Undoubtedly W ardell’s attempt to call Defendant to testify in the presence of
the jury was improper. Yet a mistrial is a “drastic sanction.” Not all im proper
comments require a new trial. Rather, only comments which threatened to deny a
defendant a fair trial require such sanction. See U nited States v. Gabaldon, 91 F.3d
91, 95 (10th C ir. 1996). W hen evaluating comments bearing upon a defendant’s
failure to testify, we look to see if the language used w as “manifestly intended to be
a comment on the defendant’s failure to testify” or was of “such character that the
jury would naturally and necessarily take it to be such a comment.” United States
v. Rahseparian, 231 F.3d 1267, 1273 (10th Cir. 2000). “The court must look to the
context in which the statement was made in order to determine the manifest intention
which prompted it and its natural and necessary impact on the jury.” United States
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v. M orales-Quinones, 812 F.2d 604, 613 (10th C ir. 1987). Because the comments’
likely impact on the jury is paramount, the answer to the question of whether such
comm ents on a defendant’s failure to testify require a mistrial ultimately turns on
discernible prejudice to the defendant. See Kaplan, 576 F.2d at 600.
Applying this standard, w e cannot conclude that in attempting to call
Defendant to testify, W ardell manifestly intended to comment to the jury on
Defendant’s silence or sought to create an inference of Defendant’s guilt from his
silence. Compare Kaplan, 576 F.2d at 600. A s the record reflects, W ardell was
under the impression, albeit a mistaken one, that calling Defendant to testify was
necessary to preserve his right to appeal the court’s denial of his severance motion.
Similarly, we do not believe a reasonable jury would “naturally and necessarily”
take W ardell’s attempt to call Defendant to the stand as a comment on Defendant’s
exercise of his right to remain silent. Rahseparian, 231 F.3d at 1273 (emphasis
added). At no point during the proceedings did W ardell expressly comm ent or allude
to the fact Defendant had refused to testify in his own defense.
Finally, the court’s jury instructions dispelled any prejudice that might have
resulted from W ardell’s conduct. See United States v. Davis, 40 F.3d 1069, 1079
(10th Cir. 1994) (holding “potentially prejudicial statements by a codefendant’s
counsel can be remedied through jury instructions”). Jurors are presumed to follow
the judge’s instructions. See United States v. Chanthadara, 230 F.3d 1237, 1251
(10th Cir. 2000). Because no likelihood exists that W ardell’s conduct improperly
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influenced the jury, the district court did not abuse its discretion in denying
Defendant’s motion for a mistrial.
A FFIR ME D.
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