FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DALE R. HURD, No. 08-55162
Petitioner-Appellant,
D.C. No.
v.
CV-99-11311-
C.A. TERHUNE; ATTORNEY GENERAL RSWL
OF THE STATE OF CALIFORNIA,
OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted
April 7, 2010—Pasadena, California
Filed August 23, 2010
Before: Harry Pregerson, Robert R. Beezer and
David R. Thompson, Circuit Judges.
Opinion by Judge Beezer
12627
HURD v. TERHUNE 12629
COUNSEL
Philip M. Brooks, Berkeley, California, for the petitioner-
appellant.
Blythe J. Leszkay, Deputy Attorney General, Los Angeles,
California, for the respondents-appellees.
12630 HURD v. TERHUNE
OPINION
BEEZER, Circuit Judge:
Dale R. Hurd petitions for a writ of habeas corpus follow-
ing his first-degree murder conviction in California state court
and resulting life sentence without the possibility of parole. At
trial, the state court allowed the prosecution to present Hurd’s
refusal to reenact the shooting of his wife during police inter-
rogation as affirmative evidence of his guilt. The California
Court of Appeal affirmed Hurd’s conviction and held that the
admission as evidence of Hurd’s refusal to perform a reenact-
ment was not in violation of Miranda v. Arizona, 384 U.S.
436 (1966), and Doyle v. Ohio, 426 U.S. 610 (1976). Hurd
petitioned for a writ of habeas corpus in the United States
District Court for the Central District of California. The dis-
trict court denied Hurd’s petition, and Hurd timely appealed.
Because the California courts’ application of Miranda and
Doyle was unreasonable, we reverse the decision of the dis-
trict court and direct that a writ of habeas corpus issue.
I
On March 3, 1995, Hurd was convicted of the first degree
murder of his wife, Beatrice (“Bea”), following a second trial
by jury. Hurd’s first trial resulted in a hung jury and a mis-
trial. The jury in Hurd’s second trial found that Hurd carried
out the murder of his wife for financial gain, a special circum-
stance making Hurd eligible for a sentence of death or life
without the possibility of parole under section 190.2 of the
California Penal Code. The jury also found that Hurd used a
firearm in the commission of a felony, adding a mandatory
consecutive sentence of up to ten years under section 12022.5
of the California Penal Code. Based on these findings, the
trial court sentenced Hurd to a term of life imprisonment
without the possibility of parole, plus a consecutive term of
four years.
HURD v. TERHUNE 12631
Hurd appealed his conviction to the California Court of
Appeal, which affirmed the trial court. Hurd petitioned the
Supreme Court of California and the Supreme Court of the
United States for review. Both courts denied his petitions. On
October 28, 1999, Hurd petitioned for a writ of habeas corpus
in the United States District Court for the Central District of
California. On November 20, 2007, the district court denied
that petition. Hurd appeals.
A
Hurd and Bea had been married for eight years at the time
of her death in April 1993. In March 1993, Bea separated
from Hurd and sought the counsel of an attorney. Bea’s attor-
ney estimated that Hurd would owe her between $2,800 and
$3,300 per month in alimony upon their divorce. At that time,
Hurd earned $8,593 per month. On April 1, 1993, Bea served
Hurd with divorce papers.
On April 16, 1993, Bea took their two children, aged four
and eight, to Hurd’s house, where the children spent the night.
The next morning, Bea arrived to pick up the children and
brought with her a stack of typed papers. Bea was upstairs
with Hurd when their son, downstairs, heard a shot. Bea, cry-
ing, walked down the stairs before collapsing. Hurd
descended the stairs behind her and took their son outside.
Hurd reentered the house and called 911. An ambulance
arrived and took Bea to the hospital, where she died from a
single bullet wound to the chest.
Investigation showed that the shot was fired from a dis-
tance of one to six inches. The bullet entered Bea’s chest from
left to right, front to back, at a 35- to 40-degree downward
angle. Bea’s face and scalp had abrasions and bruises appar-
ently suffered before her death.
Hurd testified that when Bea arrived at his house on the day
of the incident, Bea expressed concern over possible rioting
12632 HURD v. TERHUNE
following the pending verdict in the second Rodney King trial.1
Hurd told Bea that he would let her borrow his firearm and
show her how to operate it. Standing in front of Bea, Hurd
attempted, with difficulty, to load a round into the firearm.
Hurd testified that as he lowered the firearm to inspect it, it
accidentally discharged.
B
Police arrived at Hurd’s house and found him sitting
motionless near the front entrance, next to Bea. Police took
Hurd into custody and informed him of his Miranda rights.
Hurd expressed his willingness to talk without an attorney
present, and Detective Carr began questioning him.
After Hurd recounted his version of the facts, Carr asked
Hurd to submit to a polygraph examination. Carr assured
Hurd that, if the polygraph showed that Hurd was being truth-
ful, the police department would end its investigation of him.
Hurd declined to undergo the polygraph exam and explained
that he believed them to be unreliable. Carr replied, “I think
you don’t want to take one because you murdered your wife.”
Carr then repeatedly suggested that Hurd take a polygraph.
Hurd maintained that he would not.
1
On April 29, 1992, four white Los Angeles police officers were acquit-
ted of assaulting Rodney King, a black man, despite a widely publicized
videotape of them tasing him, kicking him and repeatedly striking him
with their batons. After the verdict was announced, riots erupted through-
out the city, eventually causing over $1 billion in property damage and
leaving more than 50 people dead with over 4,000 injured and 12,000
arrested. See Staff of the L.A. Times, Understanding the Riots: Los Ange-
les Before and After the Rodney King Case (1996).
Three months later, a federal grand jury indicted the same officers on
federal civil rights charges. Robert Reinhold, U.S. Jury Indicts 4 Police
Officers in King Beating, N.Y. Times, August 6, 1992. On April 17, 1993,
the jury announced its verdict convicting two of the four officers. Seth
Mydans, Verdict in Los Angeles; 2 of 4 Officers Found Guilty in Los
Angeles Beating, N.Y. Times, April 18, 1993. In the days leading up to this
verdict, the city braced itself for riots similar to those of 1992. Id.
HURD v. TERHUNE 12633
Carr next asked Hurd to demonstrate how the shooting
occurred. Hurd refused to reenact the shooting. Carr contin-
ued to question Hurd about the chain of events and again
asked Hurd to demonstrate. When Hurd declined, Carr sug-
gested that Hurd either take a polygraph or demonstrate what
happened. Hurd refused, and Carr suggested that Hurd would
go to jail for being uncooperative. Carr’s supervisor, Detec-
tive Straky, entered the room and explained that the District
Attorney would not think much of Hurd’s refusals to cooper-
ate.
Carr and Straky continued to ask Hurd to demonstrate how
the shooting took place, and Hurd continued to refuse. The
detectives suggested that a judge and jury would find his lack
of cooperation unreasonable. Through the remainder of the
questioning, Straky and Carr asked for a reenactment several
more times, with Hurd refusing each time.
C
Before trial, Hurd moved to suppress statements made at
his interrogation as involuntary based on the investigating
detectives’ multiple false promises of leniency for coopera-
tion, false assurances, and coercive statements. Hurd argued
that the voluntariness of the interrogation ended when Carr
threatened to jail Hurd if he refused to submit to a polygraph
examination. Hurd further argued that his repeated refusals to
submit to a polygraph or reenact the shooting were invoca-
tions of his constitutional right to remain silent and that his
responses to that line of questioning were therefore inadmissi-
ble. The trial court denied Hurd’s motion, concluding that
Hurd did not effectively invoke the protections of the Fifth
Amendment because he offered responses and explanations
instead of flat refusals. Throughout Hurd’s trial, the prosecu-
tion referred to Hurd’s refusal to reenact the shooting as affir-
mative evidence of his guilt. In his opening statement, the
prosecutor played the tape of Hurd’s interrogation and
counted the number of times he refused to demonstrate the
12634 HURD v. TERHUNE
shooting. The prosecutor referred to Hurd’s refusals again
while presenting his case-in-chief and during his closing argu-
ment.
At trial, the prosecution also relied on testimony from sev-
eral witnesses regarding Bea’s prior statements detailing
instances of physical abuse in her marriage. The court
instructed the jury that this testimony “was admitted solely for
the purpose of showing Bea Hurd’s state of mind” and that it
should not be considered for any other purpose. The court
also instructed the jury that evidence of past crimes “may not
be considered . . . to prove that [Hurd] is a person of bad char-
acter or that he has a disposition to commit crimes” and that
it “may be considered . . . only for the limited purpose of
determining if it tends to show the existence of the intent
which is a necessary element of the crime charged.” The court
further instructed that evidence of past crimes must be
weighed “in the same manner . . . as all other evidence in the
case.”
II
We review de novo a district court’s denial of a petition for
a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
Christian v. Frank, 595 F.3d 1076, 1080 (9th Cir. 2010).
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), we grant a petition if the “last reasoned”
state court decision was “contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court” or was “based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). When evaluating the state court’s application of
federal law, circuit precedent is “persuasive authority.”
Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000).
A state court decision is contrary to federal law if it “ap-
plies a rule that contradicts the governing law as set forth” by
HURD v. TERHUNE 12635
the Supreme Court or reaches a different result on a “materi-
ally indistinguishable” set of facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000); see also Bell v. Cone, 535 U.S. 685,
694 (2002). A state court unreasonably applies federal law
when it “correctly identifies the governing legal principle
from [Supreme Court] decisions but unreasonably applies it to
the facts” of its case. Bell, 535 U.S. at 694.
III
Hurd argues that he is entitled to habeas relief on three sep-
arate bases. We first address Hurd’s argument that the state
trial court improperly admitted as evidence his refusal to reen-
act the shooting in violation of his Fifth Amendment rights as
determined by the Supreme Court in Miranda v. Arizona, 384
U.S. 436 (1966), and Doyle v. Ohio, 426 U.S. 610 (1976).
Because we conclude that the Doyle error in this case serves
as an adequate basis to grant Hurd’s petition for a writ of
habeas corpus, we decline to consider Hurd’s arguments that
his jury instructions violated the Due Process Clause or that
the admission of Bea’s out-of-court statements violated the
Confrontation Clause. See Preiser v. Newkirk, 422 U.S. 395,
401 (1975) (holding that “a federal court has neither the
power to render advisory opinions nor to decide questions that
cannot affect the rights of litigants in the case before them”).
A
1
In Miranda, the Supreme Court decided several consoli-
dated cases in which criminal suspects had been held in police
custody and interrogated without being advised of their right
to remain silent. 384 U.S. at 440. The Court held that when-
ever a criminal suspect is subjected to custodial interrogation,
he must be warned of his right to remain silent and informed
that any statement he makes can be presented as evidence in
12636 HURD v. TERHUNE
court. Id. at 444. These warnings are a procedural safeguard2
necessary to “secure the privilege against self-incrimination.”
Id. When these procedural safeguards are not used, “the pros-
ecution may not use statements, whether exculpatory or incul-
patory, stemming from custodial interrogation of the
defendant.” Id.
[1] The Court also indicated that a suspect may rely on his
right to remain silent selectively: “The mere fact that [the sus-
pect] may have answered some questions or volunteered some
statements on his own does not deprive him of the right to
refrain from answering any further inquiries until he has con-
sulted with an attorney and thereafter consents to be ques-
tioned.” Id. at 445. Indeed, once a suspect indicates “at any
time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease.” Id. at 473-74.
[2] The Court further developed its Fifth Amendment
jurisprudence in Doyle, another group of consolidated cases.
In Doyle, each of the defendants had been arrested and
informed of his Miranda rights. 426 U.S. at 611. At trial, each
defendant took the stand and offered exculpatory testimony.
Id. To impeach that testimony, the prosecution asked each
defendant on cross-examination why he had not told the same
story when he was initially informed of his rights and ques-
tioned. Id. The Court held that this type of impeachment was
improper because Miranda warnings contain an implicit
promise that silence will carry no penalty. Id. at 618-19. The
Court explained that a criminal defendant’s reliance on his
right to remain silent may not be used against him in any way
at trial, including for impeachment. Id. The Court reasoned
that Miranda warnings make a suspect’s silence “insolubly
ambiguous” because that silence could be “nothing more than
[an] exercise of these Miranda rights.” Id. at 617.
2
The Court later explained that this procedural safeguard is, in fact, a
constitutional rule that cannot be superseded by statute. See Dickerson v.
United States, 530 U.S. 428, 444 (2000).
HURD v. TERHUNE 12637
Next, the Court decided Anderson v. Charles, a case in
which a criminal defendant had been arrested while driving a
stolen car. 447 U.S. 404, 404 (1980). Police suspected the
defendant of murder at the time of his arrest because the right-
ful owner of the car had recently been strangled to death. Id.
After the arrest, police informed the defendant of his rights.
Id. at 405. The defendant then told police that he stole the car
near a bus station. Id. At trial, however, the defendant testified
that he stole the car from a different location. Id. On cross-
examination, the prosecutor impeached the defendant’s testi-
mony with his prior inconsistent statement. Id. at 405-06.
After considering these facts, the Court held that while Doyle
“prohibits impeachment on the basis of a defendant’s
silence,” it does not “apply to cross-examination that merely
inquires into prior inconsistent statements.” Id. at 407-08. The
Court explained that “a defendant who voluntarily speaks
after receiving Miranda warnings has not been induced to
remain silent. As to the subject matter of his statements, the
defendant has not remained silent at all.” Id. at 408.
Recently, the Supreme Court decided Berghuis v. Thomp-
kins, a case in which a criminal defendant was arrested on
suspicion of having committed a shooting. 130 S. Ct. 2250,
2256 (2010). Upon the defendant’s arrest, police officers
informed him of his rights and interrogated him for three
hours. Id. Though the defendant remained “largely silent”
during the interrogation, he offered intermittent answers to the
officers’ questions. Id. at 2256-57. The defendant ultimately
made an inculpatory statement about 2 hours and 45 minutes
into his interrogation. Id. at 2257. The Supreme Court held
that this inculpatory statement was made voluntarily and
could be admitted as evidence. Id. at 2263. The defendant’s
silence in response to the majority of the police officers’ ques-
tions, however, was not admitted at his trial, nor was it
deemed admissible by the Supreme Court. See id. at 2257-58.
[3] Here, the California Court of Appeal held, “A defen-
dant has no right to remain silent selectively. Once a defen-
12638 HURD v. TERHUNE
dant elects to speak after receiving a Miranda warning, his or
her refusal to answer questions may be used for impeachment
purposes absent any indication that the refusal was an invoca-
tion of Miranda rights.”3 People v. Hurd, 73 Cal. Rptr. 2d
203, 209 (Cal. Ct. App. 1998). The court explained that
because Hurd “talked freely and voluntarily” about how the
shooting occurred, he could not invoke Miranda solely as to
the officers’ request that he perform a demonstration. Id. The
court interpreted Doyle as allowing a prosecutor to comment
on “[Hurd’s] refusal to provide critical details, when he had
voluntarily waived his right to remain silent.” Id. It then con-
cluded that “there was no evidence that [Hurd’s] refusal to
demonstrate the shooting or take a polygraph was based upon
an invocation of his Miranda rights.” Id.
[4] The California Court of Appeal’s Miranda and Doyle
analysis is incorrect.4 The Supreme Court has clearly estab-
lished that, after receiving Miranda warnings, a suspect may
invoke his right to silence at any time during questioning and
that his silence cannot be used against him at trial, even for
impeachment. See Doyle, 426 U.S. at 618-19; Miranda, 384
U.S. at 473-74. Miranda does not apply only to specific sub-
jects or crimes. It applies to every question investigators pose.
See Miranda, 384 U.S. at 445 (“The mere fact that [a criminal
defendant] may have answered some questions . . . does not
deprive him of the right to refrain from answering any further
inquiries.”). The Court’s opinion in Anderson does not alter
its holdings in Miranda or Doyle. Anderson applies in cases
where a defendant waives his Miranda rights and answers an
officer’s questions only to offer conflicting testimony at trial.
See Anderson, 447 U.S. at 407-08. In these cases, the prosecu-
3
The court did not address the fact that this case deals not only with the
prosecution’s use of Hurd’s silence for impeachment purposes, but also
with the prosecution’s use of Hurd’s silence in its opening and throughout
its case-in-chief.
4
Because the state court correctly identified the governing law, we rely
on “unreasonable application” analysis. See Bell, 535 U.S. at 694.
HURD v. TERHUNE 12639
tion may impeach that testimony with the defendant’s prior
inconsistent statement. See id. Anderson explains that a prior
inconsistent statement is much different from silence and does
not enjoy the same protections under the Fifth Amendment.
See id. Anderson cannot be read to allow the use of a defen-
dant’s silence at trial as evidence of guilt. See id.
The Court’s opinion in Michigan v. Mosley, decided before
Doyle, also does not change our analysis. In Mosley, the Court
held that police may question a suspect about a crime after
that suspect has indicated his unwillingness to answer ques-
tions about a different, unrelated crime. 423 U.S. 96, 105-06
(1975). This holding does not alter the basic principle that a
suspect may invoke his right to silence “at any time.”
Miranda, 384 U.S. at 473-74. Contrary to the conclusion of
the California Court of Appeal, the right to silence is not an
all or nothing proposition. A suspect may remain selectively
silent by answering some questions and then refusing to
answer others without taking the risk that his silence may be
used against him at trial.5 Id.
Furthermore, the Supreme Court’s decision in Thompkins
does not alter its holdings in Miranda or Doyle. Thompkins
makes clear that a criminal defendant must affirmatively and
unambiguously invoke his right to remain silent if he wishes
to cut off police interrogation. See 130 S. Ct. at 2260. When
a suspect remains “largely silent” in response to officers’
questions, the interrogation does not automatically have to
cease. Id. At the same time, when a defendant remains silent
or refuses to answer a question posed by police, that silence
or refusal is inadmissible. As the Court held in Doyle, a
defendant’s silence in response to a question is ambiguous
5
The state trial court concluded that Hurd’s refusal to demonstrate the
shooting of his wife was not protected by the Fifth Amendment because
Hurd claimed that he could not reenact the shooting instead of saying that
he could but would not reenact the shooting. The Constitution makes no
such distinction.
12640 HURD v. TERHUNE
because it may be no more than a reliance on the right to
silence. 426 U.S. at 618-19. That silence may not require
police to end their interrogation, but it also does not allow
prosecutors to use silence as affirmative evidence of guilt at
trial. Thompkins stands for the proposition that a voluntary
confession should not be suppressed just because a defendant
has refrained from answering other questions. See 130 S. Ct.
at 2262-63. It does not alter the fundamental principle that a
suspect’s silence in the face of questioning cannot be used as
evidence against him at trial, whether that silence would con-
stitute a valid invocation of the “right to cut off questioning”
or not. See id. (quoting Mosley, 423 U.S. at 103 (internal quo-
tation marks omitted)).
[5] The Court of Appeal’s opinion further conflicts with
circuit precedent, which we review as persuasive authority.
The Ninth Circuit holds that clearly established law allows a
suspect to refuse to be interviewed in a particular manner
even if he has already waived that right with respect to the
subject matter of the interrogation. See Arnold v. Runnels, 421
F.3d 859, 866 (9th Cir. 2005) (holding that a suspect may
refuse to be interviewed on tape when he had already waived
his right to silence). Other circuits agree. See, e.g., United
States v. Johnson, 816 F.2d 918, 922 n.4 (3d Cir. 1987) (dis-
cussing a suspect’s right to remain silent after submitting to
a polygraph); United States v. Amaro, 816 F.2d 284, 286 (7th
Cir. 1987) (discussing a suspect’s right to refuse to speak to
FBI agents while waiving his right and speaking to prison
officials). Other circuits also agree that clearly established law
allows a suspect to remain silent selectively. See United States
v. May, 52 F.3d 885, 890 (10th Cir. 1995) (holding that
clearly established law allows a defendant to remain “ ‘par-
tially silent’ by answering some questions and refusing to
answer others” (quoting United States v. Canterbury, 985
F.2d 483, 486 (10th Cir. 1993)); United States v. Scott, 47
F.3d 904, 907 (7th Cir. 1995) (holding that “a suspect may . . .
refuse to answer certain questions, and still be confident that
HURD v. TERHUNE 12641
Doyle will prevent the prosecution from using his silence
against him”).
[6] The state court therefore incorrectly read and applied
the law as clearly established by the Supreme Court in
Miranda and Doyle. Still, we may only grant habeas relief
under the “unreasonable application” test if the state court’s
application of law was not only incorrect, but also objectively
unreasonable. Williams, 529 U.S. at 409.
2
[7] As clearly established federal law prohibits the use of
a criminal defendant’s post-Miranda silence against him in
court, a reasonable application of the law requires the govern-
ment to establish that Hurd either waived his right to remain
silent or never effectively invoked it. See Arnold, 421 F.3d at
866. Here, Hurd unambiguously invoked his right to silence
when the officers requested that he reenact the shooting. Hurd
responded to the officers’ requests by saying, among other
things, “I don’t want to do that,” “No,” “I can’t,” and “I don’t
want to act it out because that—it’s not that clear.”
The government first argues that the above statements can-
not be invocations of Miranda under clearly established fed-
eral law because they are not unambiguous. See Thompkins,
130 S. Ct. at 2260. Yet a suspect still need not utter a “talis-
manic phrase” to invoke his right to silence. Arnold, 421 F.3d
at 866. Instead, it is enough if the suspect says that he wants
to remain silent or that he does not want to answer that ques-
tion. See Thompkins, 130 S. Ct. at 2260. Here, Hurd’s
responses were objectively unambiguous in context—he
repeatedly refused to perform the demonstration in no uncer-
tain terms. Cf. Arnold, 421 F.3d at 867 n.9 (explaining that the
phrase “no comment” in context unambiguously demonstrated
the suspect’s unwillingness to be interviewed on tape). In fact,
“it is difficult to imagine how much more clearly a layperson
. . . could have expressed his desire to remain silent” than
12642 HURD v. TERHUNE
Hurd did in this case. Id. at 866. Furthermore, the interrogat-
ing officers’ comments show that they subjectively under-
stood Hurd’s responses as unambiguous refusals.
The government next argues that Doyle does not apply to
this case because the interrogating officers told Hurd that the
jury would not look favorably on his refusal to cooperate,
abrogating Miranda by suggesting that his refusals would be
used in court.6 Officers cannot make a suspect’s constitution-
ally protected silence admissible by issuing warnings or
threats. A suspect’s right to silence is based in the Fifth
Amendment, not in an individual officer’s promises or lack
thereof. Dickerson, 530 U.S. at 444; Miranda, 384 U.S. at 468
& n.37. And a suspect’s reliance on his right to silence simply
cannot be used against him in court—it is “fundamentally
unfair and a deprivation of due process” to allow a suspect’s
silence to be used against him at trial. Doyle, 426 U.S. at 618.
Furthermore, it is improper to speculate on the reasons for a
suspect’s post-Miranda silence. As explained in Doyle, a sus-
pect’s “post-arrest silence is insolubly ambiguous” as it may
be no more than the suspect’s reliance on his Miranda rights.
Id. at 617.
The government’s final argument is that Hurd’s refusals to
perform the demonstration were not actually refusals because
he offered explanations instead of simply saying “no.” This
argument fails. The Ninth Circuit has already held that clearly
established law allows a suspect to invoke his right to silence
through an explanatory refusal. See United States v. Bushy-
head, 270 F.3d 905, 912 (9th Cir. 2001) (holding that defen-
dant’s statement, “I have nothing to say, I’m going to get the
death penalty anyway” was a valid invocation of the right to
silence). Again, neither the Constitution nor Miranda require
a suspect to invoke his right to silence in a particular way.
6
Though the issue is not before the court and we do not decide it, the
coercive nature of these threats calls into serious question the voluntari-
ness of any of the suspect’s following statements.
HURD v. TERHUNE 12643
They simply mandate that once a suspect has invoked that
right, he cannot be punished for it. See Doyle, 426 U.S. at
618-19; Miranda, 384 U.S. at 473-74.
The California Court of Appeal incorrectly and unreason-
ably applied clearly established law. Still, Hurd is not entitled
to habeas relief if the error was harmless.
B
[8] Doyle error does not entitle a petitioner to habeas relief
unless the error “had substantial and injurious effect or influ-
ence in determining the jury’s verdict.” Brecht v. Abraham-
son, 507 U.S. 619, 622, 637-38 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). We conduct this
inquiry de novo, “without benefit of such aids as presump-
tions or allocated burdens of proof.” Mancuso v. Olivarez,
292 F.3d 939, 950 n.4 (9th Cir. 2002). If, reviewing the facts
as a whole, we are able to determine with fair assurance that
the judgment was not substantially swayed by the error, we
may conclude that the error was harmless. Kotteakos, 328
U.S. at 765. Otherwise, we must conclude that the petitioner’s
rights were substantially and injuriously affected. Id.
When the prosecutor’s impermissible argument comments
on a defendant’s post-Miranda silence, the court attempts to
determine not “whether the jury would have decided the same
way even in the absence of the error,” but “whether the error
influenced the jury.” Arnold, 421 F.3d at 869. In making this
determination, the court considers “(1) the extent of [the]
comments . . ., (2) whether an inference of guilt from silence
was stressed to the jury, and (3) the extent of other evidence
suggesting [the] defendant’s guilt.” United States v. Velarde-
Gomez, 269 F.3d 1023, 1034-05 (9th Cir. 2001) (en banc).
In Brecht, the Supreme Court held that Doyle error did not
influence the jury because the prosecution’s references to the
defendant’s post-Miranda silence were infrequent, comprising
12644 HURD v. TERHUNE
fewer than two pages of the 900-page trial transcript. See 507
U.S. at 639. The Court also concluded that the errors were
cumulative as part of the prosecution’s permissible and exten-
sive references to the defendant’s pre-Miranda silence. See id.
And the Court determined that the errors were immaterial in
the face of the otherwise “overwhelming” evidence of guilt.
See id.
[9] Here, the prosecutor’s comments on Hurd’s silence
were extensive and stressed an inference of guilt to the jury.
Unlike Brecht, the prosecutor specifically emphasized Hurd’s
post-Miranda silence in his opening statement and closing
argument. In his opening statement, the prosecutor said:
One thing—and I’m going to play the tape for this
in particular—you need to listen to on the tape is a
number of times Detective Carr asked [Hurd] to
demonstrate how the shooting occurred, to stand up
and to demonstrate it. And you will listen to the fact
that the defendant says, “I will not do a demonstra-
tion.” And you can count the times that he refuses.
The prosecutor again suggested that the jury make an infer-
ence of guilt based on Hurd’s silence in his closing argument:
Now, the one thing that I wanted to make reference
to, and I asked Mr. Hurd this question, and if you
want to count the times which I did, Carr and Straky
on nine separate occasions asked that—the defendant
to demonstrate how the shooting occurred . . . . And
on nine separate occasions the defendant refused to
do a demonstration, and the response was it wasn’t
crystal clear. And in court he’s told you that there is
a dream-like quality as to what occurred, and that he
still won’t or can’t—and I suggest won’t—do a dem-
onstration.
The government argues that the prosecution’s references to
Hurd’s silence were attempts to impeach Hurd’s credibility,
HURD v. TERHUNE 12645
but, as shown above, the prosecutor made particular reference
to Hurd’s silence to imply guilt. Because the prosecutor
repeatedly stressed Hurd’s silence to the jury as evidence of
his guilt, we cannot say with fair assurance that this evidence
did not substantially influence the jury. Cf. Arnold, 421 F.3d
at 869.
[10] Also, the other evidence suggesting Hurd’s guilt is not
extensive. Unlike in Brecht, the evidence suggesting Hurd’s
guilt consists entirely of testimonial evidence—expert testi-
mony suggested that the physical evidence was not inconsis-
tent with Hurd’s version of events. In contrast, the
defendant’s testimony in Brecht was directly contradicted by
the physical evidence. Brecht, 507 U.S. 639. Based on our
review of the record, we conclude that Hurd’s rights were
substantially and injuriously affected by the prosecutor’s mul-
tiple references to his post-Miranda silence at trial. The Cali-
fornia courts’ error is not harmless.
IV
[11] Because the California courts unreasonably applied
the law as clearly established by the Supreme Court, and we
conclude that the error was not harmless, we reverse the deci-
sion of the district court. We direct that a writ of habeas cor-
pus issue, requiring the State of California to release Hurd
from custody, unless the state elects to retry Hurd within a
reasonable period of time to be determined by the district
court.
REVERSED and REMANDED with directions.