Fontaine v. California

Petitioner was convicted on the basis of circumstantial evidence of selling marijuana to an informer, who disappeared during the period the State delayed bringing the case to trial. The District Court of Appeal (on the basis of Griffin v. California, 380 U.S. 609 (1965), decided after petitioner's trial) held that the prosecutor's comments on petitioner's failure to testify and the trial court's instruction that the jury could draw adverse inferences from petitioner's silence violated petitioner's privilege against self-incrimination but that the error was harmless. The State Supreme Court denied review. Following this Court's remand of the case in the light of Chapman v. California, 386 U.S. 18 (1967), the Court of Appeal reinstated its former opinion but recited that the constitutional error was harmless "beyond a reasonable doubt."

Held: In the absence of testimony of the informer supporting the State's version of disputed issues, the State has not met its burden of proving beyond a reasonable doubt that the erroneous comments of the prosecutor and the trial judge's instruction did not contribute to the petitioner's conviction. Chapman v. California, supra, at 24, 25-26.

Certiorari granted; 252 Cal. App. 2d 73, 60 Cal Rptr. 325, reversed.

Thomas C. Lynch, Attorney General of California, and Derald E. Granberg and Louise H. Renne, Deputy Attorneys General, for respondent.

PER CURIAM.