Opposition Brief — Charles Chitat Ng, Petitioner v. California

Supreme Court briefDec 22, 2022

Ask Donna

What actually matters in this document.

Text

No. 22-5926

In the Supreme Court of the United States

CHARLES CHITAT NG,

Petitioner,

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

BRIEF IN OPPOSITION

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

JAMES WILLIAM BILDERBACK II

Senior Assistant Attorney General

JOSHUA A. KLEIN

Deputy Solicitor General

DANA MUHAMMAD ALI

KENNETH N. SOKOLER

Supervising Deputy Attorneys General

RYAN B. MCCARROLL*

Deputy Attorney General

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

(916) 210-7668

Ryan.McCarroll@doj.ca.gov

*Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether the record supported the trial court’s decision to terminate

petitioner’s self-representation.

2. Whether the record supported the trial court’s decision to restrain

petitioner by using a stun belt that was not visible to the jury.

3. Whether the Confrontation Clause was violated by the admission of

prior testimony from an unavailable witness who had been subject to extensive

cross-examination by petitioner’s counsel at petitioner’s contested extradition

hearing in Canada.

DIRECTLY RELATED PROCEEDINGS

California Supreme Court:

In re Ng, No. S275330 (pending).

People v. Ng, No. S080276 (judgment entered July 28, 2022) (this case

below).

Ng v. Superior Court, No. S073475 (review denied Oct. 2, 1998).

People v. Superior Court, No. S068695 (review denied April 15, 1998).

People v. Superior Court, No. S068702 (review denied April 15, 1998).

Ng v. Superior Court, No. S068054 (review denied April 15, 1998).

Ng v. Superior Court, No. S063023 (review denied Aug. 27, 1997).

Ng v. Superior Court, No. S055680 (review granted and transferred to

California Court of Appeal Sept. 18, 1996).

Ng v. Superior Court, No. S046615 (review denied July 20, 1995).

Ng v. Superior Court, No. S042283 (review denied Sept. 29, 1994).

Ng v. Superior Court, No. S040193 (review denied Aug. 18, 1994).

Gomez v. Superior Court, No. S031963 (review denied April 2, 1993).

California Court of Appeal, Third District:

Ng v. Superior Court, No. C019185 (petition denied Sept. 9, 1994).

Ng v. Superior Court, No. C018325 (petition denied May 19, 1994).

Gomez v. Superior Court, No. C015515 (petition denied March 30, 1993).

California Court of Appeal, Fourth District

Ng v. Superior Court, No. G025613 (petition denied July 13, 1999).

McClatchy Newspapers, Inc. v. Superior Court, No. G025158 (petition

denied May 4, 1999).

iii

Ng v. Superior Court, No. G024185 (petition denied Oct. 13, 1998).

Ng v. Superior Court, No. G024025 (petition denied Sept. 9, 1998).

People v. Superior Court, No. G023004 (petition denied March 5, 1998).

People v. Superior Court, No. G023003 (petition denied March 5, 1998).

Ng v. Superior Court, No. G022900 (petition denied Feb. 10, 1998).

Ng v. Superior Court, No. G021785 (petition denied July 14, 1997).

Ng v. Superior Court, No. G021677 (petition denied July 14, 1997).

Ng v. Superior Court, No. G020239 (petition granted Feb. 14, 1997).

Ng v. Superior Court, No. G019953 (petition denied June 27, 1996).

Ng v. Superior Court, No. G018019 (petition denied July 27, 1995).

Ng v. Superior Court, No. G017743 (petition denied May 11, 1995).

Orange County Superior Court:

People v. Ng, No. 94ZF0195 (judgment entered June 30, 1999) (this case

below).

Calaveras County Superior Court:

People v. Ng, No. 3124 (transferred April 8, 1994).

TABLE OF CONTENTS

Page

Statement ........................................................................................................1

Argument .........................................................................................................8

Conclusion...................................................................................................... 16

TABLE OF AUTHORITIES

Page

CASES

California v. Green

399 U.S. 149 (1970) ...................................................................................... 13

Crawford v. Washington

541 U.S. 36 (2004) ........................................................................................ 13

Deck v. Missouri

544 U.S. 622 (2005) ...................................................................................... 10

Faretta v. California

422 U.S. 806 (1975) ........................................................................................ 8

Gonzalez v. Pliler

341 F.3d 897 (9th Cir. 2003) .................................................................. 11, 12

Holbrook v. Flynn

475 U.S. 560 (1986) ...................................................................................... 10

Martinez v. Court of Appeal

528 U.S. 152 (2000) ........................................................................................ 8

Reference Re Ng Extradition

[1991] 2 SCR 858 (Can.)................................................................................. 6

Stephenson v. Neal

865 F.3d 956 (7th Cir. 2017) ........................................................................ 12

United States v. Durham

287 F.3d 1297 (11th Cir. 2002) .................................................................... 12

CONSTITUTIONAL PROVISIONS

Confrontation Clause ........................................................................................ 13

STATEMENT

1. During 1984 and 1985, petitioner Charles Ng, together with Leonard

Lake, murdered at least nine adults and two children in Northern California.

Pet. App. 1-2. The spree came to an end when a police officer found Lake in

possession of property belonging to some of the victims, leading Lake to commit

suicide and petitioner to flee to Canada. Id. at 2-3.

Officers later discovered additional items belonging to the victims at

Lake’s property in rural Wilseyville, California. Pet. App. 3-4. They also

discovered a bunker with two hidden rooms, one of which was behind a door

that could not be opened from the inside. Id. at 4. Officers unearthed human

remains and a videotape recording of petitioner and Lake threatening to

sexually abuse two of the victims. Id. at 4, 11-14. A search of petitioner’s

apartment uncovered more property belonging to the victims, plus

photographs of the bunker while it was under construction. Id. at 4. In July

1985, petitioner was arrested in Canada for shoplifting and shooting a security

guard. Id. at 5, 85. Following a contested evidentiary hearing, the Canadian

government extradited petitioner to the United States in 1991. Id. at 2, 15, 24,

2. A jury convicted petitioner of 11 counts of special circumstance

murder, and set the penalty at death. Pet. App. 1, 26. His petition concerns

three aspects of his trial.

a. Petitioner’s first question presented concerns the trial court’s decision

to revoke petitioner’s self-representation. After petitioner was extradited, he

expressed a desire to be represented by two particular attorneys from the San

Francisco Bay Area. Pet. App. 24. Because of those attorneys’ scheduling

conflicts, however, the court appointed other experienced attorneys who

practiced elsewhere in Northern California instead. Id. Petitioner responded

over the next few months by filing 14 motions seeking appointment of his

preferred attorneys; he then sued his appointed attorneys, causing them to

seek to withdraw due to conflicts of interest. Id. at 26-27. After petitioner

moved for a change of venue due to pretrial publicity, the case was transferred

to the Orange County Superior Court, and the Orange County Public Defender

was appointed to represent him. Id. at 27. Petitioner moved for the public

defender to be removed as counsel and replaced. Id. After that motion was

granted, petitioner sought the public defender’s reinstatement but his request

was denied. Id. After an appellate court (at petitioner’s urging) directed the

trial court to grant petitioner’s motion for reinstatement, petitioner sought to

have the public defender removed again. Id. This time, petitioner asked for

the public defender to be replaced by one of his original preferred Bay Area

attorneys. Id. The court agreed, and set a September 1, 1998, trial date in

deference to that lawyer’s schedule—but the attorney refused to accept the

appointment due to a disagreement about compensation. Id.

On March 31, 1998, petitioner filed a motion for self-representation. Pet.

App. 27. The court denied it, finding that petitioner did not actually wish to

represent himself and that his real purpose was to obstruct justice and delay

the proceeding. Id. When petitioner again moved for self-representation, the

court denied the motion on the same ground. Id. When petitioner filed a third

motion on May 15, however, he promised to try his best to be ready on the

scheduled trial date, and stated that he would accept any attorney as

“advisory” counsel. Id. at 27-28, 38. His motion was granted, and the public

defender was appointed as both advisory and “standby” counsel. Id. On May

26, however, petitioner filed a motion to remove the public defender from those

roles, which the court denied. Id.

Finally, on August 5, with the September 1 trial-date fast approaching,

petitioner moved to continue the trial to March 1999. Pet. App. 28.

identified certain tasks that he wanted to complete, but he did not explain why

he needed six months to complete them. Id. at 39. For example, when the

court asked how long it would take him to complete pretrial motions, petitioner

said he did not know. Id. The court found that petitioner was not actively

preparing for trial and was in fact “doing everything to avoid trial in the near

future,” describing petitioner as playing “‘games within games within games.’”

Id. at 29, 39, 42. The court noted that every time petitioner received an adverse

ruling he made “‘unfavorable comments’”, and that the court had the power to

revoke pro se status for failure to follow the court’s rules. Id. at 39. The court

revoked petitioner’s pro se status, but ordered that petitioner be allowed to

retain his pro-se preparation materials at the jail. Id. The court explained

that if petitioner was ready to proceed on the scheduled trial date and made a

good faith motion to renew self-representation at or after the beginning of trial,

the court was willing to revisit the issue. Id. Petitioner did not make such a

motion, and he was represented by the public defender throughout the trial.

Id. at 33.

b. Petitioner’s second issue concerns the court’s use of a stun belt to

restrain him during trial. When petitioner first appeared in Orange County

Superior Court, he was wearing a stun belt, waist chain, and ankle chain. Pet.

App. 83. The court ordered the ankle chain removed, and at a subsequent

proceeding the stun belt was absent also, leaving petitioner restrained only by

the waist chain. Id. Defense counsel asked for the waist chain’s removal,

saying that it was uncomfortable. Id. The prosecution argued that petitioner

had been found on multiple occasions with items that could be used as handcuff

keys, and that he had been so desperate to avoid his original arrest in Canada

that he had pulled a gun on security guards there. Id. The court ordered the

use of the stun belt, finding that there was a “‘manifest need’” for some

restraint and that the stun belt would be “‘effective’” and “‘not visible to

anybody.’” Id.

During jury selection, petitioner renewed his objection to the stun belt.

Pet. App. 83-85. The court denied the objection in a written ruling. The court

noted that petitioner had previously escaped from custody when he was

arrested during military service in Hawaii, and following that escape he had

remained at-large for five months. Id. at 85-86. More recently, to evade

capture for the murders that he was now charged with, petitioner had fled to

Canada after Lake’s arrest; and he had not only fought with Canadian security

guards who tried to arrest him for shoplifting, but had shot one of them. Id. at

85. In addition, when petitioner was imprisoned in Canada, he had discussed

escaping with another inmate, and had mentioned an intent to “bust[] another

inmate out” as well. Id. While in custody in California on the murder charges,

he had been found with a metal object that could be used to pick handcuff locks

Id. And those who guarded him in Canada and California noted his attempts

to brush up against them to determine if they were armed, and his surveillance

of and attempts to manipulate his guards. Id. Moreover, there was reason to

be concerned about petitioner’s ability to escape because he appeared to be

proficient in martial arts, and a coworker had once seen him climb an elevator

shaft at work. Id. The court therefore ordered the use of the stun belt as an

alternative to other restraints.

c. Last, petitioner challenges the admission at his criminal trial of

certain testimony from his Canadian extradition hearing. While serving a

term in Canadian prison, petitioner befriended fellow inmate Maurice

Laberge. Pet. App. 14-15. Petitioner discussed his crimes with Laberge and

drew for him four cartoons. Id. at 14, 89-90. The cartoons showed the disposal

of a body, depicted petitioner videotaping the whipping of one of his victims

while she was nude, and made various references to other identified victims.

Id. at 88-90. Laberge testified against petitioner at petitioner’s contested

extradition hearing, where petitioner cross-examined him at length. Id. at 15,

88, 96 (noting 165-page cross-examination transcript). The Supreme Court of

Canada ultimately upheld the Minister of Justice’s decision to surrender

petitioner. Reference Re Ng Extradition, [1991] 2 SCR 858 (Can.).

By the time of petitioner’s California trial, however, Laberge had died.

Pet. App. 88-89. The prosecution sought to introduce the extradition hearing

testimony. Id. The court noted that petitioner’s incriminating cartoons would

have been admissible even without Laberge’s testimony. See id. at 97-98

(observing that petitioner’s writing on the cartoons had been authenticated by

a handwriting expert). But the court also ruled that Laberge’s testimony was

admissible since the extradition hearing “appeared very similar to a

preliminary hearing” and petitioner’s extradition counsel had subjected

Laberge to “‘very extensive’” cross-examination. Id. at 89.

3. On direct appeal, the California Supreme Court affirmed. Pet. App. 1133. With respect to petitioner’s claims here, the court first upheld the decision

to terminate petitioner’s self-representation. Id. at 37-43. Recounting the

proceedings at length, the court concluded that the record supported the trial

court’s conclusion that petitioner was engaging in “dilatory tactics with the

intent to delay trial.” Id. at 40; see id. at 40-42 (noting that by the time of the

self-representation ruling petitioner’s repetitive motions had already delayed

trial for seven years after his extradition; that petitioner had been overheard

telling a fellow prisoner that a good way to delay trial was by filing repetitive

challenges to one’s attorneys; and that on multiple issues, petitioner had a

pattern of first filing a motion and then, after the court issued an order

granting the motion, seeking the order’s reversal).

The court also upheld the trial court’s use of the stun belt as a restraint.

Pet. App. 83-88. “Ample evidence showed that [petitioner] had a history of

escape or attempted escape.” Id. at 86; see id. (describing petitioner’s escape

from military custody and extended evasion while facing military justice

charges, his attempt to access a handcuff key while in Canadian custody, his

interrupted effort to escape his shackles, and his being found with a metal

clasp that could unlock his handcuffs while in custody in California). The court

reasoned that the trial judge, after noticing petitioner’s discomfort wearing

chains, did not abuse his discretion in resorting to the stun belt as an

alternative. Id. at 88.

Finally, the court concluded that there was no error in the admission of

Laberge’s testimony from the extradition hearing because petitioner’s counsel

at the extradition hearing had an adequate motive and opportunity to crossexamine. Pet. App. 87-98. Petitioner’s counsel cross-examined Laberge at

length, attempting to impeach his credibility as part of an effort to challenge

the evidence implicating petitioner in the murders. Id. at 96. In any event,

the court continued, any error in the admission of the prior testimony would

be harmless beyond a reasonable doubt, since the cartoons would have been

admissible even without the testimony and there was “overwhelming evidence

of guilt.” Id. at 97-98.

ARGUMENT

Petitioner seeks this Court’s review on three issues. As to each, however,

the California Supreme Court’s decision was correct under this Court’s

precedents, and petitioner points to no disagreement among lower court

authorities or any other consideration that would justify further review.

1. Petitioner first seeks review of the trial court’s decision to terminate

his self-representation under Faretta v. California, 422 U.S. 806 (1975). Pet.

4-7. Under Faretta, a defendant “has a constitutional right to proceed without

counsel when he voluntarily and intelligently elects to do so.” 422 U.S. at 807.

But “the right to self-representation is not absolute.” Martinez v. Court of

Appeal, 528 U.S. 152, 161 (2000). “[T]he government’s interest in ensuring the

integrity and efficiency of the trial at times outweighs the defendant’s interest

in acting as his own lawyer.” Id. A court may terminate self-representation

“if necessary,” id.—for instance, if the defendant “deliberately engages in

serious and obstructionist misconduct,” Faretta, 422 U.S. at 834 n.46. And selfrepresentation is not ““a license to abuse the dignity of the courtroom” or to

disregard “relevant rules of procedural and substantive law.” Id.

The standard for termination was satisfied here.

The record amply

supports the trial court’s finding that petitioner was engaging in dilatory

tactics with the intent to delay trial. Pet. App. 40. Even before requesting selfrepresentation, petitioner had filed “dozens of motions”—including 37 requests

for substitute counsel—contributing to the significant delay between his 1991

extradition and his 1998 scheduled trial date. Id. at 40. Indeed, petitioner had

been overheard advising another inmate to use such motions as a tool for delay.

Id. at 41.

And in some instances petitioner had reversed his positions

repeatedly: When the trial court granted petitioner’s motion and replaced the

public defender with substitute counsel, petitioner sought to have the public

defender reappointed. Id. at 43. A few months later, he filed another motion

to have them relieved. Id. The trial court later granted self-representation

based in part on petitioner’s assurance that “he would accept [the public

defender] as advisory counsel.” Id. at 41. But three weeks later, petitioner

moved to discharge the public defender as advisory counsel, “knowing that it

would take new counsel several months to get caught up on his case.” Id.

This history supported the trial court’s conclusion that petitioner was

using self-representation as a way to delay his trial, and demonstrated the

unacceptability of his proposal to continue the trial for six months and

reconsider self-representation at that time: based on the number of times that

petitioner had changed positions in the past, it was “reasonable for the trial

court to believe that defendant would refuse to have [the public defender]

appointed six months later and demand new attorneys, further delaying his

trial.” Id. at 43. The California Supreme Court’s decision not to reverse on

this issue was correct, and further review is not warranted.

2. Petitioner next asserts that he was deprived of due process because he

was wearing a stun belt during trial. Pet. 7-11. This Court has established

that the use of visible shackles is an “inherently prejudicial practice that . . .

should be permitted only where justified by an essential state interest specific

to each trial.” Holbrook v. Flynn, 475 U.S. 560, 568 (1986). Examples of

essential state interests have included “physical security, escape prevention,

or courtroom decorum.” Deck v. Missouri, 544 U.S. 622, 628 (2005). Whether

an essential state interest justifies visible restraints in a particular case

requires “a trial court determination, in the exercise of its discretion.” Id. at

629. This Court has not determined whether a similar analysis applies to the

use of non-visible restraints such as the stun belt in this case. But the trial

court’s decision here would be correct under any test.

“Ample evidence showed that defendant had a history of escape or

attempted escape.” Pet. App. 86. For example, he had previously escaped from

military custody in Hawaii. Id. He tried to escape from law enforcement

officers in Canada by retrieving a handcuff key from his pocket. Id. While he

was in a holding facility awaiting the extradition hearing, security personnel

saw him manipulating his shackles. Id. “They discovered that he had spread

the side of the handcuffs, and with more time, he would have been able to free

the locking device and break out of his handcuffs.”

Id.

Following his

extradition, he concealed a metal envelope clasp that could be used to unlock a

pair of standard-issue handcuffs. Id.

Similarly, while he was in Canada “he would ‘always brush up next to his

plain clothes handlers to determine whether or not they were armed.’” Pet.

App. 86. And following his extradition, he “maintained ‘a constant vigil as to

what’s going on around him’ and would ‘always observe and take in where

security personnel are, what they are armed with, and distances between

himself and them.’” Id. at 86-87.

Moreover, the trial court did not abuse its discretion in weighing the

choice of a stun belt against traditional restraints.

When petitioner was

subject to traditional restraints prior to trial, he “complained of pain from the

chains, marks they left on his waist, and his inability to write notes while

wearing them.” Pet. App. 88. Although a psychiatrist testified that petitioner

was “very preoccupied” with the stun belt, the psychiatrist “had not had the

opportunity to observe defendant in court.” Id. at 84. The trial court also noted

that the psychiatrist’s opinion was inconsistent with its own observations of

petitioner and “failed to distinguish between restraint by chains and restraint

by a hidden stun belt.” Id. at 85.

Petitioner alleges that “federal appellate courts” have “reached

conclusions incompatible with” California Supreme Court precedent on the use

of stun belts. Pet. 11. But the case he discusses fails to support that assertion.

Pet. 11. Petitioner argues that, in Gonzalez v. Pliler, 341 F.3d 897 (9th Cir.

2003), the Ninth Circuit disapproved of the use of stun belts where “the record

contained no evidence of any serious disturbance by the defendant.” Pet. 11.

But Gonzalez stated that “California’s and the Ninth Circuit’s respective

physical restraint doctrines are, despite some linguistic distinctions, largely

coextensive.” Gonzalez, 341 F.3d at 901 n.1. And the facts that led the Ninth

Circuit to hold a termination of self-representation improper in Gonzalez are

not remotely comparable to those in this case. In Gonzalez, a defendant was

forced to stand trial wearing a stun belt because he had “three strike”

convictions, he had been “‘a little uncooperative,’” and “‘he had a little

attitude.’” 341 F.3d at 901-902. That defendant had no history of escape, and

the trial court “did not even hold an evidentiary hearing.”

Id. at 902.

Petitioner, in contrast, had a history of escaping from custody, had been

repeatedly caught attempting or preparing to remove his handcuffs, and had

demonstrated his extreme dangerousness in multiple ways. The trial court

considered this evidence, including the testimony of petitioner’s witness, and

explained the need for the stun belt in a reasoned order. 1

3. Finally, there is no reason for this Court to review petitioner’s claim

that the trial court violated his right to confrontation by admitting prior

testimony from Laberge, the Canadian witness who testified at the extradition

1 Nor do two cases which petitioner cites without discussion (Pet. 11) conflict

with the California Supreme Court’s reasoning here. In Stephenson v. Neal,

865 F.3d 956 (7th Cir. 2017), the Seventh Circuit sustained a claim of

ineffective assistance of counsel based on a defense lawyer’s failure to object to

the use of a stun belt during a capital penalty phase trial. But that decision

turned on circumstances that are not present here: the stun belt was “visible”

to the jurors and there was “no evidence” that the defendant might act up in

court. Id. at 958-959. Petitioner also cites United States v. Durham, 287 F.3d

1297 (11th Cir. 2002). But in Durham the defendant “was wearing leg shackles

in addition to the stun belt” and the court did not explore the possibility that

the shackles alone would be sufficient. Durham, 287 F.3d at 1308. Here, in

contrast, an alternative restraint—a waist-chain—was removed at petitioner’s

request based on his complaint that it was causing him discomfort. See supra

pp. 4, 11. The trial court employed the stun belt as a reasonable, more

comfortable, and necessary alternative.

hearing but died prior to trial. Pet. 11-14. Under Crawford v. Washington,

541 U.S. 36 (2004), the Confrontation Clause generally bars the admission of

testimonial hearsay; but Crawford explained that such hearsay is admissible

if the declarant is unavailable and the defendant had a prior opportunity for

cross-examination. Id. at 59. As an example, Crawford cited the decision in

California v. Green, 399 U.S. 149 (1970). Id. at 57. That case allowed the use

at trial of an unavailable witness’s prior preliminary hearing testimony, where

the witness in the preliminary hearing “was under oath,” the defendant “was

represented by counsel,” the defendant “had every opportunity to crossexamine [the witness] as to his statement,” and “the proceedings were

conducted before a judicial tribunal, equipped to provide a judicial record of

the hearings.” Green, 399 U.S. at 165.

Similar reasoning authorized the use of the extradition testimony here.

Petitioner alludes to the fact that the extradition hearing required the

Canadian government to make a prima facie showing rather than to prove his

guilt beyond a reasonable doubt. Pet. 12; see Pet. App. 96-97. But the probable

cause standard that governed the preliminary hearing in Green was also below

the beyond-a-reasonable-doubt standard. See Pet. App. 96-97; Green, 399 U.S.

at 197 (Brennan, J., dissenting).

In any event, the lesser burden of proof at the extradition hearing did not

discourage petitioner from “vigorous[ly] and extensive[ly]” cross-examining

Laberge.

Pet. App. 96.

“Cross-examination consumed approximately 165

pages of transcript,” and petitioner’s attorney impeached Laberge with his

criminal history and prior history as an informant. Id. Petitioner’s attorney

explored how Laberge came into contact with petitioner and Laberge’s notetaking of petitioner’s statements. Id. And he examined whether Laberge could

have fabricated details about petitioner’s statements by reading the charges

from petitioner’s documents and accounts in newspapers and periodicals. Id.

That cross-examination, moreover, disproved petitioner’s argument that his

attorney’s strategy at the extradition hearing was focused on showing the

likelihood of a death sentence rather than attacking the strength of the

prosecution’s case. Pet. 13. The “vigorous and extensive cross-examination of

Laberge . . . supports a finding that counsel’s motivation would have been to

challenge the evidence implicating defendant in the California murders (and

thus was not solely concerned with the fact that defendant would be subject to

the death penalty upon extradition).” Id.

Finally, the California Supreme Court also concluded that any error in

admitting Lebarge’s testimony was harmless beyond a reasonable doubt under

the circumstances of this case. Pet. App. 97-98. The court explained that

petitioner’s handwriting on the cartoons he gave Laberge had been

authenticated by a handwriting expert, and that the cartoons would have been

admissible even without Laberge’s testimony. Id. at 98. Moreover, the court

reasoned, “overwhelming evidence of guilt” from other sources, including a

videotape of petitioner and Lake telling one of their captives that they were

about to sexually abuse her, left no reasonable possibility that exclusion of the

Lebarge testimony would have made a difference.

Id.; see id. at 12, 14.

Because of this harmless error ruling—which petitioner does not challenge—

the question on which petitioner seeks review is irrelevant to the outcome of

his case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated:

December 22, 2022

Respectfully submitted,