# Petition — Clanon v. Gibson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1297%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 1035 ## Text . o~ Pewee: T 89- Office-Supreme Court U.S Nos. 1339 PILE DS In the Supreme Court FEB 5 1961 OF THE CLERK ALEXANDER L. STEVAS, United States OcrosBer Term, 1980 Tomas L. Cuanon, Superintendent of the California Medical Facility at Vacaville, Petitioner, vs. Earu B. Grsson, Respondent. Grorce SuMNER, Superintendent of the Correctional Training Facility at Soledad, Petitioner, VS. LAWRENCE JUSTICE, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JERRY R. HERMAN District Attorney, Marin County COUNSEL OF RECORD JosHua THOMAS Deputy District Attorney, Marin County Civic Center 155 Hall of Justice San Rafael, CA 94903 (415) 499-6450 Attorneys for Petitioners “ QUESTIONS PRESENTED Whether, in a state criminal trial, the attempt by certain jurors to gather iso- lated data of marginal relevance requires the setting aside of the convictions, despite overwhelming evidence of guilt. otis TOPICAL INDEX Page QUESTIONS PRESENTED i TOPICAL INDEX ii TABLE OF CASES iv TEXTS, STATUTES AND AUTHORITIES iv OPINIONS BELOW 2 JURISDICTION 2 CONSTITUTIONAL PROVISION INVOLVED 3 “STATEMENT OF THE CASE 3 A. State Court Proceedings 3 STATEMENT OF THE FACTS A. The Crimes 6 B. Facts relevant to respondents' contentions on federal habeas corpus 19 Ll. Juror Grist: Type AB blood and its rarity 19 Be Juror Gauger: Morphine dosage and perception 22 Fe The evidentiary importance of the matters raised 26 (a) The rarity of type AB blood 26 (b) The morphine dosage and perception 30 REASONS FOR GRANTING THE WRIT 32 2 ARGUMENT CONCLUSION -iii- TOPICAL INDEX (Continued) Page 35 43 -iv- TABLE OF CASES Chapman v. California 386 U.S. 18 (1967) Harrington v. California 395 u.S. 250 (1969) People v. Hutchinson 71 Cal.2d 342 (1969) Sumner v. Mata 49 U.S.L.W. 4133 (1981) TEXTS, STATUTES AND AUTHORITIES United States Constitution Amendment XIV, Section l United States Code Title 28, Section 1254(1) Penal Code § 187 § 4500 § 4501 34, 35 Ww WwW IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1980 THOMAS L. CLANON, SUPERINTENDENT OF THE CALIFORNIA MEDICAL FACILITY AT VACAVILLE Petitioner, Vs. EARL B. GIBSON, Respondent. GEORGE SUMNER, SUPERINTENDENT OF THE CORRECTIONAL TRAINING FACILITY AT SOLEDAD, Petitioner, Vs. LAWRENCE JUSTICE, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The petitioners, Thomas Clanon and George Sumner, superintendents of correc- tional facilities in California, respectfully pray that a writ of certiorari issue in this | o2- case to review the judgment of the United States Court of Appeals for the Ninth Circuit, which judgment was entered on December 8, 1980. OPINIONS BELOW The opinion of the Court of Appeals for the Ninth Circuit appears as Appendix A to this petition and may be found at 633 F.2d 851. The opinion of the United States District Court for the Northern District of California appears as Appendix B. The opin- ion of the California Court of Appeal, First Appellate District, Division One, appears as Appendix C. JURISDICTION Jurisidiction is conferred upon this Court by Title 28, United States Code, sec- tion 1254(1). This petition is filed within 60 days of the rendition of judgment by the court of appeals. es, CONSTITUTIONAL PROVISION INVOLVED United States Constitution, Amend- ment XIV, section 1: "[NJor shall any state deprive any person cf life, liberty, or prop- erty, without due process Of law. . « «” STATEMENT OF THE CASE A. State Court Proceedings On November 16, 1971, the Marin County Grand Jury indicted respondents Earl - B. Gibson and Lawrence Justice for the fol- lowing violations of the applicable provi- sions of the California Penal Code: (1) murder, in violation of section 187 (both appellants); (2) assault upon a non-inmate by one serving a life sentence, in violation of section 4500 (Gibson); (3) assault by one serving less than a life sentence, in viola- tion of section 4501 (Justice); (4) a second violation of section 4500 by Gibson; (5) a second violation of section 4501 by Justice. The indictment further alleged that Gibson whe had suffered one prior felony conviction and that Justice had suffered three prior felony convictions (CT 1-4) ./ After numerous pretrial motions (CT 6-300), the cause came on for trial by jury on December 12, 1972 (CT 309). On April 18, 1973, the jury found respondents guilty of all charges against them (CT 464-465, 466, 467). On June 22, 1973, respondent's motion for probation was denied and they were sentenced to state prison for one count of murder of the first degree. Sentence was stayed on the other counts (CT 579-580). The California Court of Appeal, First Aprellate District, Division One, affirmed the judgments of conviction on November 14, 1975 (Exh. C). The California Supreme Court denied respondent's petition 1. "CT" refers to the Clerk's Transcript of the trial in state court. <= for hearing on January 21, 1976. This Court denied a petition for writ of certiorari on June 7, 1976 (No. 75-6608). B. Federal Court Proceedings Respondents filed a petition for writ of habeas corpus on June 2, 1976 (R 1-6) ./ After full briefing and argument, the petition for writ of habeas corpus was denied on February 15, 1977 (R 151-168). Appeal to the Ninth Circuit followed. On December 8, 1989, the Ninth Circuit reversed the order denying the writ of habeas corpus, and ordered that the writ be granted unless the State of California elects to grant a new trial within 60 days. 633 F.2d at 855. 2. "R" refers to the Record which has been designated and prepared in the federal proceedings in this case. wie STATEMENT OF THE FACTS A. The crimes The opinion of the California Court of Appeal provides a full and fair statement of the relevant facts. We quote from the court's opinion (App. C, pp. 2-12). “Herman Johnson, an inmate in San Quentin Prison, testified that Gibson had accused him of being a witness in a case involving the murder of a correctional officer at Soledad Prison. Johnson denied the accusation, but notwithstanding his denial Gibson told him on two occa- sions that he was going to ‘get hit.' "On July 19, 1971, Johnson encountered Gibson and Justice at the foot of a flight of stairs. Johnson was stabbed in the neck by Gibson and was taken to the prison hospital. On the following day 7% -% aVe Gibson went to football practice. He complained of an injury to his back and was taken to the prison hospital. Gibson was examined the next morning by a doctor who deter- mined that there was no external evidence of injury and authorized his release from the hospital. "Johnson had been assigned to room 202 on the second floor of the prison hospital. For security pur- poses Officer Leo Davis was placed in front of the door to Johnson's room. Johnson testified that on July 21, 1971, at around noon, he heard a 'scuffling' sound outside his door. The door to his room, which was locked, had a small window and a food tray ‘porthole.’ Johnson observed Gibson, Justice and a third person whom he described as a tail black man who wore his hair ina large natural. The three men were dressed in jail blues, and Gibson wore a blue wool cap. Johnson observed the unidentified man holding Officer Davis around the neck while Gibson and Justice struck him. Johnson stated that at one point he saw Justice pass a knife to the unidentified man who then hit the officer. Johnson heard a whistle blow softly and then heard someone say, "He don't have the key.' "Ivan Kranzelic, an inmate on the fcurth floor of the prison hospital, testified to certain events which he claimed to have observed immediately preceding and following the attack on Officer Davis. Although he acknowledged aSe that he had received morphine for pain, he denied sleeping. He stated that on the day of the attack, at about 8:30 a.m., a man known as 'Choice' brought Gibson a pair of pajamas. ‘Choice’ left and returned about 20 minutes later at which time Ricardo Cooper, 'Monky D' Palmer and an unidentified tall black man were present. At about 10:00 a.m., Dr. Erickson examined Gibson and when he left Gibson inquired of Palmer, ‘"Monky D," did you brought that things in?' When Palmer stated that he had Gibson said, 'We have to do it today, doctor might put me ina cast.' Gibson, 'Choice,' Cooper and the tall black man went into the washroom. When they came out Kranzelic observed Gibson changing into a blue shirt and blue pants and 10» observed Palmer hand a 'shank' to Gibson, which ‘Choice’ then placed between a bunch of pajamas. Gibson asked Cooper how he could pass by Miss Baldwin and Cooper said he would take care of that. Cooper took Kranzelic's crutches, telling him they were for Gibson. Cooper, Gibson and ‘Choice’ ieft the room. A few minutes later Palmer left. "About 20 minutes later, Cooper, Gibson and 'Choice' returned. They were walking rapidly. They went into the kitchen and Kranzelic heard water running. The three men and Palmer, who had been in the kitchen, came out of the kitchen and went to Gibson's bed. Gibson asked 'Mike', who was stand- ing in front of the kitchen, if the cops were coming. Gibson was o} Ls wearing a T-shirt. It had a blood spot on the side. Gibson took his clothes off and put them in his night locker, which he pushed to the end of the room near the last bed. Gibson brought the locke. from that bed to his bed. He took something wrapped in paper from under the blanket of his bed and handed it to ‘Robert’ telling him to get rid of it. Robert threw it out of the win- dow. Gibson handed his T-shirt to Cooper who went in the washroom. Kranzelic heard a tearing sound and a flushing of the toilet. "Kranzelic testified further that 'Choice' came out of the kitchen area holding his hand and some paper. He went to Gibson's bed and threw the paper in a garbage can. Palmer threw a roll of toilet ,> oi 9e paper with blood spots on it in the Same garbage can. Cooper wore a lab coat under which he hid an object that looked like a screw driver. Gibson put on a new pair of pajamas. A few minutes later an officer came in and arrested Gibson. "Kranzelic described 'Choice' as being five feet four inches tall, between 22 and 24 years of age, with long messy hair. He stated that 'Choice' was a weight lifter and that he walked with a limp. Ata pretrial hearing Kranzelic iden- tified a photograph of defendant Justice as the person he knew as "Choice.' At the grand jury hearing Kranzelic could not identify a photograh of Justice. "Wayne Clark, a correctional officer, searched the fourth floor -13- of the prison hospital for evidence. He found a ell of toilet paper with red stains on it in a trash can. "Charles Johnson, an inmate, testified for the prosecution. He stated that on July 21, 1971, at about 11:45 a.m., he went to visit a patient in the room next to that occupied by Herman Johnson on the second floor of the prison hospital. Officer Davis, who was guarding Herman Johnson's room, asked Charles Johnson to summon an attendant. As Charles Johnson went around the corner he saw Gibson, Justice and Reginald Muldrew in the shower room, Charles Johnson summoned inmate Kajor, a hospital attendant, from the nurse's station and accompanied him back to Herman Johnson's room. He noticed that Gibson, Justice and ye Muldrew were still in the shower room. "Charles Johnson visited the patient in the room next to that of Herman Johnson and then went down to the first floor. While there he heard the panic buzzer and upon hearing the officers say ‘second floor’ he went upstairs to the second floor where he observed Justice and Muldrew. Justice asked Charles Johnson what had happened and Johnson replied that he didn't know. A nurse told Charles Johnson to proceed downstairs. While on the first floor Charles Johnson observed that both Justice and Muldrew were there. Justice was permitted to go through the center grille gate. "Officer George Randolph escorted Justice out of the clinic -% =} Se door. Officer Randolph noticed that Justice had something in his right hand. When he asked Justice to open his hand Justice glared at him but complied, revealing blood-stained tissue paper and a deep cut between the thumb and forefinder. Officer Ayres also observed that one of Justice's hands was closed around some paper. "Justice's hand was examined by Arthur Simon, a medical technical assistant, at about 2:25 p.m. ‘Ye observed three incise wounds on the palm, which he described as super- ficial and of the type resulting from a cut by a knife, razor or piece of glass. Simon testified that in his opinion the wounds were fresh, possibly two or three hours old, but that it was possible that they were a few days old. aiga "A white-over-brown rubber shower thong was found near room 202, occupied by Herman Johnson. A similar thong was found in room 224. The first was a left thong and the second a right thong. Officer Ayres ‘testified that Justice customarily wore a pair of rubber shower thongs while in the hospital and that these were white on the top and brown on the bottom. When Justice was taken from the hopsital about 30 to 45 minutes after the attack on Officer Davis, he was wearing green and ’ white thongs of a different shape than the ones he customarily wore. "Ellis Baker, an employee of the Department of Corrections who participated in the search of the second floor of the hospital, observed a knife on the roofwell oi Fo from the window in room 226. When retrieved, the knife, which had a wooden handle and some tape next to the handle and the blade, had red faded stains on the tape and blade. In room 224 bloodstains were dis- covered on the bedsheets. A blue shirt, blue pants and a pile of freshly laundered pajamas were found under the bed in room 224. A rubber shower thong was found in the pile of pajamas. Some of the pajamas had bloodstains, as did the blue shirt and the blue pants. There were bloodstains on the sink by the door and on the bed. The bloodstains on the sink appeared to be fresh. There were smudged fingerprints oa the window panes. Fingerprints were also found on the knife, but they could not be identified. r% =} $< "It was stipultted that Officer Davis died of knife wounds. Davis received nine wounds, all of which were consistent with having been inflicted by a single weapon. "Records of the Alameda-Contra Costa Medical Association Blood Bank were introduced into evidence. These disclosed that Officer Davis' blood type was '0.' Blood samples were taken from Gibson and Justice pursuant to search warrants and the results were admitted into evidence. Gibson's blood type is 'O' and that of Justice is type ‘AB.' "Louis Maucieri, a criminalist employed by the Department of Justice, was permitted to testify as an expert, over defense objections as to his qualifications. He testified that '‘AB' type blood was = {= found on the knife, on a pair of denim pants found in room 224, on a roll of toilet paper found in a fourth floor trash can, on a white jacket found in the fourth floor soiled linen hamper, and on Gibson's bedding.” B. Facts relevant to respondents' conten- tions on federal habeas corpus he Juror Grist: Type AB blood and its rarity. This description is taken from those affidavits filed by various jury members (RT 492-493, 540-560, 563-564) 2/ and admitted into evidence at the hearing on respondent's motion for new trial. Necessarily, the description is limited to whatever evidence of "statements made, or conduct, conditions, Or events occurring either within or without 3. "RT" refers to the Reporter's Transcript of the trial in state court. -20- the jury room, of such a character as is likely to have influenced the verdict improp- erly .. ." appears in them. People v. Hutchinson, 71 Cal.2d 342, 349-350 (1969). By the same token, "evidence of the jurors’ subjective attitudes or reactions to state- ments or conduct or the mental processes by which the verdict was reached" is excluded. Id. Juror Grist admitted researching in an enclyclopedia the fact that AB was a rare blood type. No other jurors made statements about the subject to him. He believed he may have mentioned the fact of rarity to another juror. Most importlantly, he believed the research was done after the jury had finished balloting as to appellant Justice (CT 543- 544) .4/ Juror Chapman confirmed that juror 4. Juror Cox, who did not recall the identity of the juror making the statement, thought the statement had been made before balloting began (CT 552). s*% =21@ Grist had made the statement in an offhand manner and while other conversations were in progress (CT 542). Foreman Lubersky did not recall the comment (CT 548) .2/ Juror Taylor did not hear the statement (RT 551). Juror Storey did not remember such a statement (RT 555). In any event, she was already aware of the rarity (CT 555). Juror Michael did not recall such a statement (CT 558). Nor did juror O'Brien (CT 558). She also took it to be common knowledge that AB was a rare blood type (CT 559-560). Juror Mraz did not remem- ber the statement. Although she had donated 5. Juror Cox's recollection was that Lubersky had immediately voiced a warning against considering the evidence (CT 553). Juror Gauger's recollection paralleled that of juror Cox as to foreman Lubersky's action (CT 546). A similar caution was given by juror Storey, aS an accompaniment to her own state- ment that AB blood was rare (CT 555). This Statement was heard by juror Michael, who later remarked she would reach her verdict independent of such knowledge (CT 558). Another admonition was apparently given by juror Bradford, who was not other- wise heard from (CT 546). ; -22- blood and knew AB was a rare blood type, she refrained from consulting her donor's card (CT 564). Of the nine juror polled, then, only four recalled the precise statement of which appellants complained. Two were aware of an immediate admonition from the foreman that such evidence shouid not be considered. The comment is best described as a momentary one. 2. Juror Gauger: Morphine dosage and perception. In her original affidavit, submitted with the defense motion for new trial, juror Gauger said she consulted a medical encyclo- pedia at the request of her fellow jurors, and therein confirmed what she had previously thought to be true, that the dosage of morphine received by Ivan Kranzelic was not heavy enough to have affected his perception. She related same to the jury during delibera- tions (CT 492-493). In her subsequent - affidavit, attached to the prosecution opposi- tion, she made several qualifying statements. It turned out she had raised the point during deliberations, and speculated as to its effect. Other jurors offhandedly said she should be sure, an admonition which she took as a request to look up the matter. She remembered also that someone commented the jury should not consider the effect of the dosage, in that there had been no evidence presented on the point. Juror Chapman did not recall gen- erally what Gauger had said. He recalled that he and possibly another juror had immediately remarked the matter should not be considered. Other jurors nodded assent, and the issue was thereafter dropped (CT 54l- 542). Juror Grist agreed that no one had requested the information. He did not remem- ber the substance of juror Gauger's comment, which had been in the nature of a passing atin remark (CT 543). Foreman Lubersky recalled the substance of Gauger's remark. He further recalled the statement was of momentary dura- tion, and was not thereafter discussed. No one requested the information. Lubersky did not recall subsequent deliberations concern- ing Ivan Kranzelic's ability to perceive (CT 548). The foreman might have admonished the jury, at the time juror Gauger made her remark, not to consider that about which no evidence had been presented (CT 549). Juror Taylor heard the unsolicited remark, then heard two jurors (one of them juror Chapman) say the matter should not be considered. The matter was dropped (CT 550-551). Juror Cox recalled the statement being made, but her version is neutral, however, as she attri- buted to juror Gauger the assertion that Kranzelic's perception could have been sharpened or dulled (CT 552). Juror Storey said the comments were unsolicited. They — = were neutral in import, a fact she her- self immediately commented upon. Fore- man Lubersky commented that they could not consider the issue. The comment was made to a small group of the jurors, including Storey and Lubersky. No more was heard of the matter (CY 554-555). Juror Michael characterized the state- ment as a passing remark. She was not even sure everyone heard the remark, as it had been made in the foreman's vicin- ity. He had delivered a prompt admoni- tion (CT 557). Juror O'Brien, seated at the other end of the table, did not recall any discussion (RT 559). Juror Mraz, seated near Gauger, had recollec- tion similar to those of juror Michael (CT 563-564). The offhand statement thus was made only to a small segment of the jury. Prompt admonitions that the ite in it being dropped. The "research" had not been requested by other jury members. : The evidentiary importance of the matters raised. (a) The rarity of type AB blood Evidence of the incidence of type AB blood was a type of evidence whose reliability is unquestionable. It is simply not open to doubt that AB is a rare blood type. o/ That a jury should receive evidence of a common and well- accepted point is surely a different matter than that they should consider a more obscure point. 6. Respondents attempted to argue they were deprived of the right to cross- examine on the issue of exactly how rare the blood type was. But juror Grist only remarked that the type was rare. It would not matter whether the source consulted was within one percentage point, or two or three either way of another source; in any event, the type would be classed as "rare." That source of cross-examination or rebuttal simply was not available. oe Respondents asserted that evi- evidence of rarity was at the heart of the prosecution case, the prosecutor going sc far as to label it respondent Justice's "calling card" (RT 6589-6590, 6592, 6627-6628). They also contend it pro- vided physical corroboration of respond- ent Justice's presence, hence of Herman Johnson's testimony. Each source of importance is subject to doubt upon Closer scrutiny. As to the prosecutor's language, that argument depends on the willingness of the jury to infer that the AB blood on the knife and Justice's AB blood were the same. The argument can be advanced without the rarity aspect. Rarity, in effect, only pro- vides an even greater reason why respond- ent Justice could not be excluded as the killer. Similarly, blood on the knife did little to corroborate Herman atin Johnson's account of the killing. The knowledge that respondent Justice's blood and the knife blood were of the same type would have corroborative effect only when several intervening inferences were made - that the knife was the murder weapon, for example. It is dif- ficult to see what added corroboration would result from knowing the blood type was rare. That assertion loses sight of the truly damning corroborative factors - the recovered thongs and later wearing of new ones, the cuts only on appellant Justice's hands, the obvious limp. The upshot is that evidence of rarity was not at the logical heart of the case as presented. It would simply have made the inferences the prosecution asked the jury to draw more attractive, hence the prosecutor's preference for it. One source of cross-examination deprivation claimed by respondents has @29@ been considered [fn. 6, ante]. The other cited by them is that they could have cross-examined to show the prison hospital population had a different incidence of type AB blood than did the general population. That assertion overlooks the evidence that only respond- ent Justice was seen to have a cut on the hand. All the others, when checked, had no wounds. Hence, the relative incidence of type AB blood in the prison hospital was of secondary importance, not a subject for proper cross-examina- tion Or rebuttal. To recapitulate: the sources of cross-examination deprivation are of niggardly import; the evidence of rarity of type AB blood was not evidence at the logical heart of the prosecution case; and the evidence learned by the jury was not open to serious doubt as to its «30< correctness. These evidentiary factors, each and together, suggest an innocuous- ness to the first jury “misconduct” incident above that already apparent from the jurors' descriptions of what occurred. Because the evidence was so commonly accepted as to its correctness, there is not the danger of the jury ren- dering a decision predicated on a false- hood. Because the evidence was not cru- cial, there is no reason to suspect it influenced the deliberations. And because there were no true avenues of cross-examination or rebuttal fore- closed, there is no reason to suspect any denial of confrontation in fact occurred. (b) The Morphine Dosage and Perception The most telling evidentiary consideration concerning the morphine wti~ and perception is the context in which it arose at trial. Ivan Kranzelic, admittedly a prosecution witness,_/ was never cross-examined about possible inability to perceive due to morphine doses. The defense never offered evi- dence about the possible effect on his perception of morphine (AOB 62:7-9). It offerered evidence that a dosage had been received (RT 3449, 5688, 5692), then argued inferences in final argument. The strategy is easy enough to describe-- 7. But not, as respondent Gibson contended, the only source of evidence besides Herman Johnson tying him to the murder. Whatever happened to the view Charles Johnson had of respondents and Reginald Muldrew in the shower room? (RT 3023). Even though Kranzelic was a vital witness, the morphine went cnly to a minor part of his testimony. Evi- dence of it could only exert an effect during cross-examination of Kranzelic. Once that spot for introducing the evi- dence was lost, in effect, all of Kranzelic's testimony was in evidence in strength. Later evidence of diminished perception would have necessarily diminished impact. e at 2e the defense felt it sufficient to plant a seed of possible doubt, leaving the jury to speculate on the effect. That strategy succeeded with juror Gauger's unauthorized trip to the library. To now reward it further by reversal of the state court judgment would border on the perverse. The perversity is more glaring when it is remembered that the issue of perception changes due to morphine usage was but a minor aspect of Kranzelic's testimony [see fn. 7, ante]. REASONS FOR GRANTING THE WRIT Almost eight years ago respon- dents were found guilty of the murder of a prison guard. Their conviction was unanimously upheld by the California Court of Appeals. The California Supreme Court unanimously refused to grant review. This Court unanimously denied certiorari. A federal district a33~ court denied a writ of habeas corpus. Finally, in the fifth court in which they sought review, respondents were rewarded for their diligence by the granting of a writ of habeas corpus. The tragedy occasioned by this case is not necessarily that an inter- mediate court of appeals is able to second-guess and overrule the state judiciary. Federal habeas corpus, which permits a single federal judge to over- rule a state supreme court, occasionally Produces such unpalatable results. The real tragedy of this case is that the result is totally without support in the record. The Court of Appeals for the Ninth Circuit concluded that it was federal constitutional error for the jurors to gather evidence on their own. That is strictly a question of law which -34- we do not presently challenge. But the court also concluded that the error was not harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). We emphatically disagree with that conclusion and maintain that a read- ing of the record establishes beyond ques- tion the error identified by the court was totally harmless. It could not have possibly contributed to the verdicts and it was a gross abuse of the lower court's power to have held otherwise. We submit that the lower court's reading of the trial record was so distorted that this Court should exercise its supervisory powers by Granting the writ of certiorari, reversing the court of appeals, and reinstating the convictions of two men who were proven guilty by overwhelming evidence. Cf. Sumner v. Mata, 49 U.S.L.W. 4133 (1981) ° =33e ARGUMENT ' THE ISOLATED INCIDENTS OF JURY MISCONDUCT DID NOT DEPRIVE APPELLANTS OF THEIR DUE PROCESS RIGHT TO A FAIR TRIAL. In Chapman v. California, 386 U.S. 18 (1967), this court concluded that some constitutional errors are so "unimportant and insignificant" that they do not require reversal of the con- viction. Id. at 22. Thus, federal courts of appeal are forbidden to reverse a state criminal conviction if the record establishes that the error was harmless beyond a reasonable doubt. Id. at 24. We submit that the record does establish beyond doubt that the jury misconduct did not contribute to the verdict and we adopt the district court's well-reasoned analysis of the evidence. aSG~ "TYPE ‘'AB' BLOOD "The properly admitted evidence showed that Justice had type ‘AB' blood and that type 'AB' blood was found on the murder weapon, on clothing and on toilet paper used in the attack on Officer Davis. Whether ‘AB‘ blood was rare would be irrelevant to show that Justice was one of the assailants unless other evi- dence placed Justice at the scene. And if Justice were at the scene, had ‘AB' blood, sus- tained a wound which was bleed- ing, then the ‘AB’ blood would be his ‘calling card' regard- less of its rarity. "Justice was placed at the scene of the attack by the Te testimony of Herman Johnson, the apparent intended victim, by Charles Johnson, the clerk- typist, and to some extent by Ivan Kranzelic, the inmate on the fourth floor of the hospi- tal. The fact that Justice was the only known suspect to have "AB' blood type is merely fur- ther evidence from which the jury could conclude that he was Present at the scene of the murder. This is so without any regard for the rarity of his blood type, since his was the Only blood which matched that found on the weapon, on the Clothing and elsewhere. It was not the rarity but the match up that placed him there. The court is convinced beyond a o380 reasonable doubt that the evi- dence of the rarity of the blood type did not contribute to the verdict against Justice. "Whether Gibson was guilty of murder could not in any way depend upon whether Justice's blood type, 'AB,' was rare. Any consideration by the jury of such a fact, if it did so, did not, beyond a reasonable doubt, contribute to Gibson's conviction. "KRANZELIC'S MORPHINE DOSAGE "The eyewitness testimony of Kranzelic has been termed by the petitioners here as crucial to the prosecution. But his testimony only placed the assailants on the fourth floor of the hospital before and o39e immediately after the attack which took place on the second floor. The intended victim and Charles Johnson placed the assailants on the second floor. Herman Johnson was the only eyewitness to the murder itself. "While Kranzelic's testi- mony might have cumulatively added to an overwhelming moun- tain of testimony surrounding the events of July 21, it is not the testimony which is being complained of here. The jury knew that Kranzelic was taking morphine. However, they were told he had not been Sleeping. No testimony was introduced by the defense of any adverse effect that dosage might have had on Kranzelic's -40- ability to perceive the events he described at trial. While the defense did suggest, in an argument lasting less than a minute, that Kranzelic might have been asleep, the testimony was to the contrary and uncon- tradicted. The defense did attack, for more than a day of argument, Kranzelic's motive for testifying and reasons for lying. The subsequent discov- ery by one juror that the amount of morphine was minimal, and the prompt admonition against considering such a fact, negate any contribution such evidence might have had to the verdict. In view of the Overwhelming untainted evi-< dence, this Court is convinced o4l< beyond a reasonable doubt that the research into the effect of the morphine dosage on Kranzelic did not contribute to the verdict." (Appendix B, pp. 26-30). The Ninth Circuit's arguments in sup- port of its position that the error was not Clearly harmless are totally unpersuasive. It is pointed out that the jury deliberated two and one-half days (683 F.2d at 833), as if that indicated confusion or lack of deci- siveness on the part of the jury. But the trial took four months. It is surprising that the jury digested the mountain of evi- dence in as little time as two and one-half i days. The Ninth Circuit also relied on the fact that two jurors felt a need tc gather more evidence, an indication of some "lingering hestitation or uncertainty" Ibid. But this argument is based upon the wholly unproved o42@ premise that juror curiosity about some minor aspect of the evidence establishes reasonable doubt about the guilt of the accused. The court's focus was misplaced, for the only relevant question is "the probable impact of the [error] on the minds of an average jury." Harrington v. California, 395 U.S. 250, 254 (1969). We submit that the evidence gathered is a result of juror misconduct was so insig- nificant that the error was harmless beyond doubt and that the lower court's holding to the contrary constitutes a gross miscarriage of justice. We ask this Court to redress this egregious wrong. a ee, ee ee. ~\= CONCLUSION For the foregoing reasons, it is respectfully submitted that the petition for writ of certiorari should be granted. DATED: February 2, 1981. JERRY R. HERMAN District Attorney Marin County JOSHUA THOMAS Deputy District Attorney Marin County APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EARL B. GIBSON, Appellant, v. THOMAS L. CLANON, No. 79-2680 Superintendent, Vacaville Medical Facility, Vacaville, California, D.C. #76-1125 SW - Appellee. LAWRENCE JUSTICE, OPINION Appellant, ar GEORGE SUMNER, Superintendent, Correctional Training Facility, Soledad, California, Appellee. eee 8 “SS 8S SS “SS SS “SS SS Se” Appeal from the United States District Court for the Northern District of California Spencer M. Williams, District Judge, Argued and submitted September 10, 1980 Before: MERRILL, Circuit Judge, MARKEY*, Chief Judge, and BOOCHEVER, Circuit Judge. *Honorable Howard T. Markey, Chief Judge, U.S. Court of Customs and Patent Appeals, sitting by designation. aze BOOCHEVER, Circuit Judge: This is an appeal from the judgment of the District Court for the Northern District of California denying petitioners' writ of habeas corpus. The two petitioners, Gibson and Justice, are presently serving life sentences in California state prisons for the 1973 murder conviction of a prison guard at San Quentin. Gibson and Justice allege that the trial jury that convicted them impermissibly relied upon facts that were not in evidence. In doing so they claim they were denied their constitutional right to a fair trial. The district court, which reviewed the state court record, but did not take additional evidence, concluded that any error that may have occurred was harmless beyond a reasonable doubt. Our review of the historical facts in this case convinces us that there is-a reasonable possibility that the jury's consideration of facts not introduced into evidence contributed to the jury's verdict. Accordingly, we reverse the judgment. =3~ On July 21, 1971, Leo Davis, an unarmed guard at the San Quentin prison hospital, was stabbed to death. The state's case linking Gibson and Justice to the crime was based prin- cipally upon the testimony of three witnesses and the introduction of certain physical evidence. The state's chief witness was Herman Johnson who testified that he was an eyewitness to the killing. On July 19, 1971, Johnson claimed he was stabbed in the neck by Gibson and Justice shortly after he had been transferred to San Quentin from Soledad. The attack was allegedly provoked by Johnson's willingness to give a statement implicating other inmates ina crime committed at Soledad. After the attack, Johnson was taken to the prison hospital where he was placed in a room on the second floor. David was stattioned in the hallway outside his door. According to Johnson, at around noon on July 21 he caught a glimpse of Gibson through a window in the door to his room and heard scuffling. -4. He testified that upon going to the door he was able to see Gibson and Justice stab Davis while a third man held hin. The defendants impeached Johnson's testimony with the testimony of other inmates who stated that they had witnessed the July 19 attack on Johnson, and Gibson and Justice were not among the attackers. The defense implied that there was a possibility that Johnson's testimony was biased because a decision on a parole violation committed by Johnson was allegedly held in abeyance until after his testimony at the trial. The defense also introduced evidence indicating that Johnson had a poor reputation for veracity. Johnson's eyewitness account was corroborated by two other prosecution witnesses. Another inmate with the last name of Johnson, Charles Johnson, testified that he had seen Gibson, JUstice and a third man in a shower room on the second floor of the hospital within a short time of when the murder occurred. a5 There was also testimony from Ivan Kranzelic who shared a hospital ward on the fourth floor with Gibson. Gibson had gained admittance to the hospital after allegedly suffering an injury in football practice the day before the murder. Kranzelic testified that on the morning of July 21 he had seen an inmate give a prison-made knife bg Gibson, who in turn gave it to Justice. Kranzelic overheard Gibson make various statements such as they would have to do "it" that day. Around noon Gibson, Justice, and a third inmate left the ward and returned about twenty minutes later. Kranzelic testified that Justice's hand was bleeding when he returned and, as he sat on Gibson's bed, he used a roil of toilet paper to try to stop the bleeding. At the time these events were alleged to occur Kranzelic was recovering from foot surgery and had been given several doses of morphine. At trial the state introduced evidence showing that the murder victim had blood type "0." Justice had blood type "AB." It was further shown -6- that the blood stains found on the murder weapon, on Gibson's bed where Justice had sat, and on the roll of toilet paper, which was also recovered, all were of blood type "AB." The trial lasted from December 1972 until April 1973. The jury deliberated for two and a half days before returning a guilty verdict on April 18, 1973. A month later, on May 17, 1973, Gibson and Justice made a motion for a new trial on the grounds that the jury had impermissibly relied upon evidence not produced in court. Affidavits submitted by the jurors reveal two incidents of misconduct. At one point during the deliberations, Juror Colin Grist went to an encyclopedia to confirm his belief that blood type "AB" was rare. He reported his findings back to other members of the jury. Jurors Chapman, Gauger and Cox remembered some comment by Grist. Grist was unsure whether he made the comment before or after the balloting on Justice. Another juror, Mona Gauger, stated that ae while the jury was considering Kranzelic's testimony she had commented on the dosage of morphine. Other jurors were unsure what effect the morphine may have had on Kranzelic, which Gauger interpreted as a request for more in- formation. She then consulted a medical encyclopedia from which she apparently concluded that the morphine dosage was too small to have affected Kranzelic's perceptions. At least eight other jurors remembered some comment by Gauger, but there was some disagreement as to exactly what she had said. In both cases there were apparently - some comments in the jury room to the effect that the jury should not consider this evidence. The trial judge denied the motion for a new trial. In his oral ruling the judge considered the applicable test to be that of People v. Watson, 299 P.2d 243, 254 (Cal. 1956), cert. denied 355 U.S. 846 (1957), which, in the courts of California, requires reversal for an error when it is "reasonably probable that a aSe result more favorable to the appealing party would have been reached in the absence of the error." (Emphasis added.) The judge specifically declined to apply the stricter test of Chapman v. California, 386 U.S. 18, 24 (1967), which re- quires, in the case of federal constitutional errors, that the error be harmless "beyond a reasonable doubt." In his ruling, the judge twice in- dicated that were he to apply the Chapman standard, he would have granted the motion: I will state for the record that I cannot say that it [the jury mis- conduct] was harmless beyond a reasonable doubt. ‘ . I don't think the Chapman case applies to this situation. If it does and I were to apply it, I would feel, I think, compelled to reach a different result. The trial judge's decision was affirmed by an unpublished opinion of the California Court of Appeal. Petitions for certiorari to the California Supreme Court and the United States =Jo Supreme Court were denied. In denying the petitioners' subsequent writ of habeas corpus, the federal district court judge did not specifically decide whether the jury misconduct in this case amounted to constitutional error, but concluded that if there were constitutional error it was harmless beyond a reasonable doubt. We first must decide whether the California trial judge applied the appropriate test in determining the effect of the impermissibly considered evidence. In United States v. Vasquez, 597 F.2d (9th Cir. 1979), we defined the test to be applied when a jury acquires evidence that has not been introduced into the record. [T]he appellant is entitled to a new trial if there existed a reasonable ossibility that the extrinsic mate- rial could have affected the verdict. 597 F.2d at 193 (emphasis added). The "reasonable possibility" test of Vasquez is equivalent in severity to the harmless error rule applicable to constitutional errors under Chapman. Vasquez involved a direct appeal from a 1 0< trial in a federal district court. Therefore, although it is intimated by the opinion, there was no need to decide whether the "reasonable possibility" test is compelled by constitutional considerations that would make it applicable to m the collateral review of a state court judgment. We now conclude that the Vasquez test is compelled by constitutional considerations. In Turner v. Louisiana, 379 U.S. 466 (1965), the Court refers to sixth amendment rights in considering the impact of outside influence on a jury: In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the "evidence developed" against a defend- and shall come from the witness in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross- examination, and of counsel. 3 379 U.S. at 472-73. Turner involved the possibility of prejudice created where the prosecution's leading witnesses were the same two deputy sheriffs who watched over the jury during the time it was alt= sequestered for Turner's trial. Although the case did not involve the introduction of extra- record facts, the implication of the statement is that it would apply in such a rea A year after Turner, the court reversed a state court decision where a court bailiff made various prejudicial statements about a defendant to jurors. The court noted the applicability of the confrontation clause: | [T]he statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment. Parker v. Gladden, 385 U.S. 363, 364, (1966): The Second Circuit has granted habeas corpus relief in two cases where extrinsic material may have influenced a state court Beuieak ? Opinions from other circuits have also cited sixth amendment violations when a jury has considered facts outside of those which have been introduced at as” These decisions have noted that when a jury considers facts that have not been in- troduced in evidence, a defendant has effectively ai 2a lost the rights of confrontation, cross-examination; and the assistance of counsel with regard to jury consideration of the extraneous evidence. In one sense the violation may be nove serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered. It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument to the jury, or to take other tactical steps that might ameliorate its Pie We believe that the California trial judge erred in applying a reasonable probability P standard and that the proper standard to be applied is whether it can be concluded beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict. We must next review the record to determine the effect, if any, of the extrinsic evidence considered by the jury in this case. The state's case against Gibson and Justice is a strong one. Nevertheless, if the -13- jury had readily accepted Johnson's eyewitness testimony it seems unlikely that they would have deliberated for so long to reach a verdict. Furthermore, the fact that at least two jurors believed that it was necessary to obtain more evidence is, by itself, an indication that there may have been a need to resolve some lingering hesitation or uncertainty. The extra-record evidence in this case is of some import in bolstering Johnson's testimony. Evidence that blood type "AB" is rare would logically strengthen the inference that it had been Justice who had possessed the murder weapon and not some unknown assailant with the same type of blood. The trial judge had ruled that evidence concerning the rarity of "AB" blood was inadmissible. The prosecution took an immediate appeal from this ruling, which is some indication of the importance the state attached to this ales.” As to Kranzelic's testimony, if the jury concluded that his perceptions were not affected by morphine this ai Re would certainly strengthen his credibility. The trial judge candidly acknowledged that were he to apply the test for constitutional error that we have concluded is required in this case, he would have granted the motion for a new trial. Although we are not bound by this evaluation of the historical facts, see e@.g., Brown v. Allen, 344 U.S. 443, 456 (1953); Developments in the Law - Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1113 (1970), we nevertheless believe that under the circumstances the state trial judge's conclusion should be given a great deal of weight. The state judge presided over Gibson and Justice's four-month trial and observed the demeanor of the witnesses. At the time of his ruling he was in a far better position to evaluate the credibility of the witnesses than we are now, reviewing a cold record eight years after the trial. We conclude that there is a reasonable possibility that the extrinsic evidence affected the verdict. Accordingly, the petitioners’ writ «i Se of habeas corpus must be granted unless the State of California elects to grant a new trial within sixty days. REVERSED. 1. The court noted in Chapman: There is little, if any dif- ference between .. . ‘whether there is a reasonable possi- bility that the evidence com- plained of might have contri- buted to the conviction" and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error compl- ained of did not contribute to the verdict obtained." 386 U.S. at 24 (emphasis added). 2. Such a test might conceivably be based upon the supervisory powers of the court. See Murphy v. Florida, 421 U.S 794, 797-98 (1975). 3. The sixth amendment to the consti- tution provides in part that an "accused shall enjoy the right .. . to be confront- ed with the witnesses against him... and to have the Assistance of Counsel for his defense." 4. In several cases the court has reversed state court convictions without a showing that specific extra-record facts reached a jury during its deliberations. The cases have involved situations where there has been such peruasive pre-trial publicity that it could be presumed that the jury's verdice was based on either pre- judgement of the defendant or consideration of extraneous facts. See Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965); Irvin v. Dowd, 366 U.S. 717 (1961). 5. Bulger v. McClay, 575 F.2d 407, 411 (2d Cir. 1978), cert. denied 439 U.S. 915 (1978); Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied 402 U.S. 906 (1971). See also Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971). 6. Government of Virgin Islands v. Gereau, 523 F.2d 140, 150 (3rd Cir. 1975) cert. denied 424 U.S. 917 (1976) (""con- Sideration by the jury of extra-record facts about the case .. . [is] prima facie incompatible with the Sixth Amend- ment.'); United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir. 1972); Farese v. United States, 428 F.2d 178, 179 (5th Cir. 1970). 7. The Fifth Circuit has referred metaphorically to extraneous evidence as "the dagger of hidden evidence." United States v. Howard, 506 F.2d 865, 866 (5th Cir. i97ap. 8. The length of jury deliberations has been cited as a factor of some import- ance in Parker v. Gladden, 385 U.S. 363, 365 (1966) (26 hours) and Dallago v. United States, 427 F.2d 546, 559 (D.C. Cir. 1969) (5 days). In opposing petitioner's motion for a new trial the prosecution stated that the jury actually only deliberated for "possibly nine hours." Presumably the prosecution meant that this nine hour period was spread over two and one half days. Even accepting the prosecution's version, however, it does not seem pos- sible that the jury would have deliberated nine hours over several days if the jurors did not have serious questions as to the credibility of the eyewitnesses. 9. The fact that a jury has acquired inadmissible evidence has been cited in United States v. Vasquez, 597 F.2d 192, 194 (9th Cir. 1979), and Dallago v. United States, 427 F.2d 546, 558 (D. C. Cir. 1969). m* IN THE UNITED STATES DISTRICT COURT FOR THE NOTHERN DISTRICT OF CALIFORNIA EARL B. GIBSON, NO. C761125SW Petitioner, Vv. THOMAS L. CLANON, SUPERIN- TENDENT, VACAVILLE MEDICAL FACILITY, VACAVILLE, CALIFORNIA, Respondent, LAWRENCE JUSTICE, Petitioner, ee ee reer Vv. GEORGE SUMNER, SUPERINTEN- DENT, CORRECTIONAL TRAINING FACILITY, SOLEDAD, CALIFORNIA, Respondent. Ne ee a a a he ee MEMORANDUM OPINION AND ORDER Petitioners Gibson and Justice, who by this petition seek Habeas Corpus re- lief, were tried and convicted for the murder of Leo Davis, a guard at San Quentin prison. They attack the verdict of the jury, alleging that there were o@s two incidents of juror misconduct which con- stituted prejudicial error under Chapman v. California, 386 U.S. 18 (1967). At the time of the alleged murder, Gibsoi was confined at San Quentin, serv- ing a sentence for first degree burglary and Clanon was confined, serving a sent- ence for assault with a deadly weapon. They do not contest the validity of their confinement on those convictions. FACTS On July 19, 1971, Herman Johnson, an inmate at San Quentin, was wounded during a fight. Several inmates were present during the fight, and there vas testi- mony at trial that petitioners Justice and Gibson were his assailants. In any case, Johnson was placed in Room 202 on. the second floor of the prison hospital, a room with a door capable of being locked for his protection. An unarmed guard, Leo Davis, was assigned to protect Johnson. The next day, petitioner Gibson was able to gain entrance into the prison hospital for an alleged injury suffered in a football game. The injury was pur- portedly to his back. Although the prison doctor was of the opinion that Gibson had not been injured and knew it, Gibson was allowed to stay in bed on the fourth floor. Ivan Kranzelic, an inmate hospital- ized on the fourth floor while recovering from foot surgery, claimed to be a wit- ness to certain events surrounding the death of Officer Davis. Kranzelic was receiving pain medication, including thrice daily dosages of morphine, but he denied he was sleeping. Kranzelic testi- fied that at about 8:30 a.m. on the day of the attack, Justice brought Gibson a pair of pajamas, left and returned about 20 minutes later at a time when Ricardo wien Cooper, ‘Monky D" Palmer and an unidenti- fied tall black man were also present. Subsequently Dr. Erickson, a prison doctor, examined Gibson and when he left Gibson asked Palmer if he had brought the "things'' in. When Palmer answered that he had, Gibson said that they had to do "it" that day, as the doctor might want to put him into a cast. The conferees then went into a washroom. When they came out, Kranzelic watched Gibson change into a blue shirt and blue pants. Palmer gave Gibson a seven or eight inch prison- made knife. Justice took the weapon and put it into soiled pajamas he was carry- ing. Cooper took Kranzelic's crutches, telling him they were for Gibson, and left the room with Gibson and Justice. Palmer followed shortly thereafter. Charles Johnson, a clerk-typist on the second floor of the hospital, testi- **% ?% «Se fied that he went to the room next to Room 202 (Herman Johnson's room), to speak with an inmate named Pierce. Guard Leo Davis asked Charles Johnson to get an attendant for Herman Johnson. He left to do so, and as he rounded the corner, at 11:45 a.m., he saw petitioners and an- other inmate in the shower room. Charles Johnson brought inmate Kajar from the nurses' station to attend Herman Johnson. While Kajar did so, Charles Johnson returned to his work station, again passing the shower room. He noticed that the trio was still in the shower. A few minutes thereafter he heard the panic buzzer. The door to Herman Johnson's room was locked but contained a small window and food tray porthole, out of which the occupant could look. Johnson testified that at about noon her heard a "scuffling" af sound outside the door. He observed Gib- son, Justice and a third person, dressed in jail blues. Johnson observed the un- identified man holding Officer Davis around the neck while Gibson and Justice stabbed him. At one point Justice passed the knife to the unidentified man who also struck Davis. Although the assailants were holding Davis, Davis managed to blow his whistle. One of the attackers said that Davis did not have the key, and they vanished. Kranzelic, still in his bed, observ- ed the trio return about twenty minutes after they had left. Justice limped but still moved quickly; one hand was bleeding. Both petitioners went into the kitchen, and Kranzelic heard running water. Justice's hand was still bleeding later when the trio were seated on Gibson's bed, and Justice used toilet paper to blot the blood, which he then threw into a trash 4% can. One of the three threw something wrapped in paper out the window when Gibson said to get rid of "it". A few minutes later an officer came in and arrested Gibson. Officer Davis died from his wounds. Evidence presented at trial showed that Justice had superficial cuts on his hand July 21; Gibson's and Davis' blood type was "0" and Justice's was "AB". Fur- ther evidence was introduced to show type "AB" blood was found on a prison-made knife which was found outside a hospital window and conceded by the parties to be the murder weapon. "AB" blood was found on a pair of pants found in Room 224, on Gibson's bedding, on a smock found in the linen room, and on a toilet paper roll found in a trash can on the fourth floor. Evidence of the rarity of type "AB" blood was excluded from the trial but the prosecution argued that the ‘'AB" 7% ofc blood in the case was Justice's "calling card". Evidence was introduced that Kranzelic received three morphine doses on the day of the attack, but no testi- mony was given as to whether this amount was minimal or would have any effect on his powers of perception. The defense made no serious argument that the dosage affected Kranzelic's perceptions. The jury convicted petitioners of the murder of Officer Davis. JUROR MISCONDUCT Two jurors researched two areas of the case and reported the results of their research to their fellow saalieie O Juror Colin F. Grist admitted that he consulted an encyclopedia in order to discover how rare AB type blood is in the general population and obtained the in- formation that it was a rare blood type. He believed but was not certain that this was done after the jury had finished -9- ballotting on defendant Justice. He had some recollection, but was not certain, that he might have mentioned to another juror that AB blood was rare. Jurors Chapman, Gauger and Cox recal- led the statement. Of the nine jurors pol- led, four recalled the statements, and the affidavits of these jurors indicate that the comment was a brief one and that it prompted an admonition from other jurors that evi- dence of the rarity of AB type blood was not properly in evidence. Nothing in the affi- davits indicated that any juror ~elied on this information in the reaching their verdict. In her original affidavit juror Mona Gauger stated that during deliberations she consulted a medical encyclopedia at the re- quest of her fellow jurors to determine the effect on perception of the amount of mor- phine given to prosecution witness Ivan Kranzelic. Her research confirmed her belief that the dosage was relatively small and -10- would not have rendered him stuperous or completely unable to perceive events taking place around him. She related this infor- mation to the other members of the jury. In her second affidavit Gauger further explained that during the deliberations concerning Kranzelic's testimony she com- mented on the dosage of morphine given Kran- zelic and some members of the jury said that she "should be sure."' She interpreted this as a request to look up the information. She recalled that at some point a juror com- mented that since no evidence had been pro- duced as to the effect of morphine that they could not consider it. Juror Chapman recalled Gauger's state- ment and recalled that he and possibly an- other juror stated that this information was not evidence produced in court and that there- fore it could not be considered by them. The subject was then dropped. Juror Grist re- called Gauger's comment about a morphine dose i wit< but had no recollection of the specific nature of the comment. Foreman Lubersky recalled that Gauger had stated that she had consulted a medical reference book and that the amount of the drug administered was a minimal dosage and that effect was to increase perception and imagination for a couple of hours and give the patient a feeling of well-being. Gauger's remarks lasted no more than a minute. Juror Taylor recalled that Gauger had said that she looked something up in a book and said: i . something to the effect that de- pending on a man's weight that the dose given wouldn't hurt his ability to see or hear.'' He recalled that two jurors, one being Chapman, commented that this was not in evidence and that they should not be concerned with it. Juror Cox recalled either that Gauger said that the dosage of morphine could have either dulled or sharpened Kranzelic's powers of observa- o12« tion a little. Juror Storey stated that Gauger had said that in some cases percep- tion would be heightened while in others the recipient would be made drowsy. She recalled that foreman Lubersky commented that this should not be considered as it was not in evidence and that she herself commented that this information had no value or validity. Juror Michael re- called a statement by Gauger that morphine hinders the imagination and further re- called that’ Lubersky stated that they could not consider this as evidence. Juror O'Brien did not recall Gauger's com- ment. Juror Mraz recalled that Gauger stated that morphine might make a person more alert and recalled Lubersky's admoni- tion. Here again, there is no indication that the jurors used this information in any way in reaching their verdict. To the contrary, in both instances, the jurors apparently rejected any consideration of a] 9s these matters. Petitioners seek a new trial claim- ing the above-described conduct of the jurors resulted in a denial of their rights under the Constitution of the United States, including the Sixth Amendment's right of confrontation and cross examination made applicable to state criminal proceedings by Poindexter v. Texas, 380 U.S. 400 (1965); the Sixth Amendment's right to trial by jury which determines guilt solely on evi- dence taken in court (Turner v. Louisiana, 379 U.S. 466, 472 (1965); Irwin v. Doud, 366 U.S. 717, 722 (1961); Patterson v. Colorado, 205 U.S. 454, 462 (1907)); the due process right to counsel in present- ing the case (Geders v. United States, 425 U.S. 80 (1976); Brooks v. Tennessee, 406 U.S. 605, 613-614 (1972); the right to have counsel vigorously argue the case (Herring v. New York, 422 U.S. 853 (1975)); and the right to have the prosecution prove -14- its case beyond a reasonable doubt (Cool v. United States, 409 U.S. 100, 105 (1972); . In re Winship, 397 U.S. 358 (1970)). TRIAL JUDGE'S RULING ON JUROR MISCONDUCT wl At a hearing on the motion of def- endants' for a new trial, the trial judge in this case orally denied the motions with a lengthy statement of his reasoning. Inter alia, the judge decided to follow the California state constitutional test, as laid down in People v. Watson, 46 Cal. 2d 818, 836 (1956), cert. denied, 355 U.S. 846 (1957), and not the test of Chapman v. California, 386 U.S. 18 (1967). The judge was clear in his reasoning: the conduct of the jurors in this case in taking the testi- mony with regard to morphine and the AB blood would not affect the result [the verdict] in [the Watson] sense. **¥* _215- I will state for the record that I cannot say that it was harmless beyond a reasonable doubt. Now I think these are judgments that basically that an appellate court has to make. I think they are entitled to make their own independent judgments as to the more probable cause test and the harmless beyond a reasonable doubt, kk * Which to apply? The Chapman (sic) test, which I don't think applies and the reason I don't think it applies, it is not every denial of confrontation and it is not every interfer- ence by misconduct on the part of the jury that rises to Constitu- tional dimension. Any erroneous admission of hearsay evidence olte is a denial of confrontation in a sense, and I don't think the Chapman case applies to this situation. If it does and I were to apply it, I would feel, I think, compelled to reach a different result. (Reporter's Transcript, June 22, 1973, pages 659-660.) On that basis, the claim of misconduct was found to be insufficient to warrant a new trial. CALIFORNIA APPELLATE COURT RULING The California Court of Appeals, which considered the affidavits and related the content as stated above, then found that: [t]he jurors did not request that Gauger research the subject. Furthermore, the jurors received prompt admonitions that the matter should not be considered as it was not presented in evidence °S nite and the discussion was very brief, lasting perhaps only a minute. DISCUSSION Two legal tests by which to measure the impairment, if any, of the defendant's rights by juror misconduct have left this criminal action in an unsettled posture. The Watson test, applied under California's State constitution, and the Federal test may not be the sea People v. Watson, 46 Cal.2d 818, 836 (1956), cert. denied, 355 Y.S. 846 (1957), created a "reasonably probable" test for measuring harmless error. Evidence which the state supreme court found to have been "undoubtedly collateral and irrelevant to any issue in the case" (Id. at 834) was admitted by the trial court, and was attacked by appellants on appeal. In re- viewing the result of this error, the supreme court found that there had been + «iSs harmless error within the meaning of California Constitution article VI, section 4-1/2, which read "No judgment shall be set aside . .. unless, after an examin- ation of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. The exact nature of the phrase "miscarriage of jus- tice’ has been interpreted on many occasions, and the court concluded that the result of any trial should only be declared a "miscarriage of justice" when the court, "after an exam- ination of the entire cause, including the evidence," is of the "opinion" that it is reason- ably probable that a result more favorable to the appeal- ing party would have been reached in the absence of the error. (46 Cal.2d at 836.) 019 This test was applied by the trial judge at the conclusion of Gibson's and Jus- tice's motions for a new trial and the misconduct of the jury was found to have been harmless error. If this test is to be applied by this federal district court, the opinion of the trial judge should be given great weight, since the opinion is based upon an interpretation of a state constitutional provision and the state court trial judge has infinitely more experience and ex- pertise in making such an interpretation ° than this court would have. The standard under the federal consti- tutional provisions, may however, differ from this test. In Chapman v. California, 386 U.S. 18 (1967), the state prosecuting attorney commented, as he was permitted to do under California's constitution, on the failure of the defendants to testi- fy. After trial and before the California =O superme court decided the appeal, the Supreme Court decided Griffin v. Californie a 380 U.S. 609 (1965) which found the prac- tice of commenting on a failure to testi- fy violative of the Fifth Amendment to the Constitution of the United States. The question in Chapman then was which test to apply in ruling on the issue of a con- stitutional error by a trial wee 386 U.S. at 21-23. The Court noted that all 50 states have harmless error rules or statutes, and the Congress had long before established such a statutory rule for federal pro- ceedings. See 28 U.S.C. § 2111. The federal rule provided that judgments should not be reversed for "errors or defects which do not affect the substantial rights of the parties.” Id. None of these rules on its face distinguished between federal constitutional errors and errors «22 « of state law or federal statutes and rules. All of these, state or federal, serve a very useful purpose insofar as they block setting aside con- victions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. (Id.) The Court then addressed the problem of in- significant constitutional errors which would not have changed the result of the trial: ‘We conclude that there may be some constitutional errors which in the set- ting of a particular case are so unimport- ant and insignificant that they may, con- sistent with the Federal Cuiigcteukion. be deemed harmless, not requiring the auto- matic reversal of the conviction." Id. The Chapman court in fashioning a harmless-constitutional error rule, began by pointing out the emphasis on "sub- > ?% ~-22< 3/ stantial rights"' in the federal statute. The Court then claimed to adopt the ap- proach taken in Fahy v. Conneticut, 375 U.S. 85, 86-87 (1963): We prefer the approach of this Court in deciding what was harm- less error in our recent case of Fahy ... . There we said: "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." . . . Although our prior cases have indicated that there are some constitu- tional rights so basic to a fair trial that their infraction can never be treated as harmless error, this statement in Fahy itself belies any belief that all trial errors which violate the Constitution automatically oi%n call for reversal. At the same time, however, like the federal harmless error statute, it emphasizes an intention not to treat as harmless those constitutional errors that "affect substantial rights" of a party. An error in admit- ting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be con- ceived of as harmless. (Chapman v. California, 386 U.S. 18, 23-24 (1967). The Court restated the harmless error rule while asserting that the rule adhered to meaning of the Fahy case: "we hold . that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harm- less beyond a reasonable doubt." Id. -24- The error in Chapman was then measured in terms of the constitutional test and held to have been harmless. The harmless constitutional error test was subsequently discussed by the Supreme Court in Harrington v. California, 395 U.S. 250 (1968). In that case, Justice Douglas speaking for a divided court stated "We do not depart from Chapman; nor do we dilute it by inference. We re- affirm it." 395 U.S. at 254. However, in reaching his decision to affirm appel- lant Harrington's conviction, Douglas said: (T)he case against Harrington was so overwhelming that we con- clude that this violation of Bruton was harmless beyond a reasonable doubt, unless we adopt the minority view in Chapman (386 U.S., at 42-45) that a departure from constitutional procedures should result in an =23a automatic reversal, regardless of the weight of the evidence. (Id. at 254.) And again: The case against Harrington . is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this state con- viction undisturbed. (Id.) The dissent (by Mr. Justice Brennan, with whom the Chief Justice and Mr. Justice Marshall joined) lamented: The Court today overrules Chapman v. California .. . the very case it purports to apply .. . The Court today by shifting the inquiry from whether the consti- tutional error contributed to the conviction to whether the un- tainted evidence provided "over- whelming" support for the con- -26< viction puts aside the firm re- solve of Chapman. . .” (395 U.S. 250, 255 (1969) (Brennan, J., concurring). ) We have found no subsequent Supreme Court case which dilutes the impact of Harrington. In the present case, the trial judge found that the Watson test, which he ap- plied, exonerated the misconduct of the jurors: the erroneous admission of evi- dence which the jury considered did not result in the reasonable probability of a different verdict. The trial court dis- cussed but declined to apply the Chapman case. For the reasons stated below, this court is of the opinion that the error was harmless under either Chapman or Harrington. ° TYPE "AB'' BLOOD The properly admitted evidence showed that Justice had type "AB" blood and that o'Fu type "AB" blood was found on the murder weapon, on clothing and on toilet paper used in the attack on Officer Davis. Whether "AB" blood was rare would be ir- relevant to show that Justice was one of the assailants unless other evidence placed Justice at the scene. And if Justice were at the scene, had "AB" blood, sustained a wound which was bleeding, then the “_ blood would be his "calling card" regard- less of its rarity. Justice was placed at the scene of the attack by the testimony of Herman Johnson, the apparent intended victim, by Charles Johnson, the clerk-typist, and to some extent by Ivan Kranzelic, the inmate on the fourth floor of the hospital. The fact that Justice was the only known sus- pect to have "AB" blood type is merely further evidence from which the jury could conclude that he was present at the scene Xt of the murder. This is so without any re- gard for the rarity of his blood type, since his was the only blood which matched that found on the weapon, on the clothing and elsewhere. It was not the rarity but the match up that placed him there. The court is convinced beyond a reasonable doubt that the evidence of the rarity of the blood type did not contribute to the verdict against Justice. Whether Gibson was guilty of murder could not in any way depend upon whether Justice's blood type, "AB'', was rare. Any consideration by the jury of such a fact, if it did so, did not, beyond a reasonable doubt, contribute to Gibson's conviction. KRANZELIC'S MORPHINE DOSAGE The eyewitness testimony of Kranzelic has been termed by the petitioners here as crucial to the prosecution. But his testi- mony only placed the assailants on the >" 7% -29- fourth floor of the hospital before and immediately after the attack which took place on the second floor. The intended victim and Charles Johnson placed the assailants on the second floor. Herman Johnson was the only eyewitness to the murder itself. While Kranzelic's testimony might have cumulatively added to an overwhelm- ing mountain of testimony surrounding the events July 21, it is not the testimony which is being complained of here. The jury knew that Kranzelic was taking mor- phine. However, they were told he had not been sleeping. No testimony was intro- duced by the defense of any adverse effect that dosage might have had on Kranzelic's ability to perceive the events he described at trial. While the defense did suggest, in an argument lasting less than a minute, that Kranzelic might have «30 been asleep, the testimony was to the con- . trary and uncontradicted. The defense did attack, for more than a day of argument, Kranzelic's motive for testifying and reasons for lying. The subsequent dis- covery by one juror that the amount of morphine was minimal, and the prompt ad- monition against considering such a fact, negate any contribution such evidence might have had to the verdict. In view of the overwhelming untainted evidence, this Court is convinced beyond a reasonable doubt that the research into the effect F of the morphine dosage on Kranzelic did not contribute to the verdict. CONCLUSION There is no question that this jury's misconduct was error. Under the Watson test, applied pursuant to California cons- titutional law, the court concludes there is no reasonable probability that the evidence admitted by juror misconduct \ would have altered the verdict. Under the Chapman-Harrington test, the court finds beyond a reasonable doubt that this evidence, erroneously admitted, did not contribute to the verdict. Therefore, IT IS ORDERED that the petition for habeas corpus relief, filed by petitioners Gibson and’ Justice, be and the same is denied. DATED: February 11, 1977 /s/ apencer Williams FOOTNOTES = Earl Gibson and Lawrence Justice v. Page 18 Page 17 Page 17 Thomas Clanon, srbethigeteene, See. et al., No. SW 1/ This conduct was established by affidavits filed to impeach the ver- dict on the basis that the jury's verdict was improperly influenced by conduct censisting of overt acts which are objectively ascertainable, i.e., influence open to sight, hearing and Other senses and thus subject to corroboration. Calif. Evid. Code § 1159; see People v. Hutchinson, 71 Cal. 2a-342> 452350 =350 (1969). The summary of the content of the affi- davits is taken from the opinion of the California Court of Appeals, l Crim. 12598, November 14, 1975. 2/ Compare People v. Watson, 46 Cal.2d 818, 836 (1956), cert. denied, 355 U.S. 846 (1957), with Chapman v. California, 336 U.S. 18 ). But cf., Harrington v. California, 355 U.S. 250 (1563). 3/. Appellant wore an army uniform during his trial. The prosecution introduced a letter in which appel- lant intimated to army authorities tnat his height was more than the maximum accepted by the military at the time. This evidence was osten- sibly used to rebut the inference appellant attempted to draw of patri- otic fervor by showing tnat he really wanted to get out of the army. Page 20 Page 22 A The Court first found that the ifth Amendment right of the peti- tioners to remain silent made appli- cable to the state court proceedings through the Fourteenth Amendment was a federal right requiring the Court to fashion a federal rule. 386 U.S. at aks 5/ The Court noted the similarity with the California standard which prevents a miscarriage of justice, but also noted that the California courts have neutralized this to some extent by emphasis, perhaps over- emphasis, upon a view of overwhelming evidence. The state court in Chapman found no miscarriage of justice as to one appellant because it found from "other substantial evidence ... the proof of his guilt must be deemed Overwhelming.” Id. at 23 and 23 n.7, APPENDIX C 7% IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE PEOPLE OF THE STATE OF CALIFORNIA, 1 Crim. 12598 Plaintiff and Respondent, ) ) ) ) ) vs. ) Gua. Ce. ) No. 4150) EARL BILLY GIBSON and ) LAWRENCE JUSTICE, ) ) -) Defendants and Appellants Defendants Earl Billy Gibson ("Gibson") and Lawrence Justice ("Justice") appeal from the judgment upon convictions as follows: Both defendants for violation of Penal Code section 187 (murder); and Gibson, for two counts of violating Penal Code sec- tion 4500 (assault on a non-inmate by one serving less than a life sentence). Each defendant makes several assignments of error which he claims to be prejudicial. In order to place the respective contentions in proper ate perspective we set out the facts in pertinent detail. The Facts Herman Johnson, an inmate in San Quentin Prison, testified that Gibson had accused him of being a witness in a case involving the murder of a correctional officer at Soledad Prison. Johnson denied the accusation, but notwithstanding his denial Gibson told him on two occasions that he was going to "get hit." On July 19, 1971, Johnson encoun- tered Gibson and Justice at the foot of a flight of stairs. ‘Johnson was stabbed in the neck by Gibson and was taken to the prison hospital. On the following day Gibson went to football practice. He complained of an injury to his back and was taken to the pri- son hospital. Gibson was examined the next morning by a doctor who determined that there was no external evidence of injury and authorized his release from the hospital. «tn Johnson had been assigned to room 202 on the second floor of the prison hospi- tal. For security purposes Officer Leo Davis was placed in front of the door to Johnson's room. Johnson testified that on July 2l, 1971, at around noon, he heard a "scuffling" sound outside his door. The door to his room, which was locked, had a small window and a food tray "porthole." Johnson observed Gibson, Justice and a third person whom he described as a tall black man who wore his hair in a large natural. The three men were dressed in jail blues, and Gibson wore a blue wool cap. Johnson observed the unidentified man holding Officer Davis around the neck while Gibson and Justice struck him. Johnson Stated that at one point he saw Justice pass a knife to the unidentified man who then hit the officer. Johnson heard a whistle blow softly and then heard someone say, “He don't have the key." ale Ivan Kranzelic, an inmate on the fourth floor of the prison hospital, testi- fied to certain events which he claimed to ° have observed immediately preceding and following the attack on Officer Davis. Although he acknowledged that he had received morphine for pain, he denied sleeping. He ' stated that on the day of the attack, at about 8:30 a.m., & man known as "Choice" brought Gibson a pair of pajamas. "Choice" left and returned about 20 minutes later at which time Ricardo Cooper, "“Monky D" Palmer and an unidentified tall black man were present. At about 10:00 a.m., Dr. Erickson examined Gibson and when he left Gibson inquired of Palmer, "'Monky D,' did you brought that things in?" When Palmer stated that he had Gibson said, "We have to do it today, doctor might put me in a cast.” Gibson, "Choice," Cooper and the tall black man went into the washroom. When they came out Kranzelic observed Gibson changing into a ’% aie blue shirt and blue pants and observed Palmer hand a "shank" to Gibson, which "Choice" then Placed between a bunch of pajamas. Gibson asked Cooper how he could pass by Miss Baldwin and Cooper said he would take care of that. Cooper took Kranzelic's crutches, telling him they were for Gibson. Cooper, Gibson and "Choice" left the room. A few minutes later Palmer left. About 20 minutes later, Cooper, Gibson and "Choice" returned. They were walking rapidly. They went into the kitchen and Kranzelic heard water running. The three men and Palmer, who had been in the kitchen, came out of the kitchen and went to Gibson's bed. Gibson asked "Mike", who was standing in front of the kitchen, if the cops were coming. Gibson was wearing a T-shirt. [It had a blood spot on the side. Gibson took his clothes off and put them in his night locker, which he pushed to the end of the | wigio room near the last bed. Gibson brought the locker from that bed to his bed. He took something wrapped in paper from under the blanket of his bed and handed it to "Robert" telling him to get rid of it. Robert threw it out of the window. Gibson handed his T-shirt to Cooper who went in the washroom. Kranzelic heard a tearing sound and a flushing of the toilet. Kranzelic testified further that "Choice" came out of the kitchen area holding - his hand and some paper. He went to Gibson's bed and threw the paper in a garbage can. Palmer threw a roll of toilet paper with blood spots on it in the same garbage can. Cooper wore a lab coat under which he hid an object that looked like a screw driver. Gibson put on a new pair of pajamas. A few minutes later an officer came in and arrested Gibson. Kranzelic described "Choice" as being five feet four inches tall, between 22 '% ote and 24 years of age, with long messy hair. He stated that "Choice" was a weight lifter and that he walked with a limp. At a pre- trial hearing Kranzelic identified a photo- graph of defendant Justice as the person he knew as "Choice." At the grand jury hearing Kranzelic could not identify a photograh of Justice. Wayne Clark, a correctional officer, searched the fourth floor of the prison hospital for evidence. He found a roll of toilet paper with red stains on it in a trash can. Charles Johnson, an inmate, testi- fied for the prosecution. He stated that on July 21, 1971, at about 11:45 a.m., he went to visit a patient in the room next to that occupied by Herman Johnson on the second floor of the prison hospital. Officer Davis, who was guarding Herman Johnson's room, asked Charles Johnson to summon an attendant. As Charles Johnson went around the corner he saw Gibson, Justice and Reginald Muldrew in the shower room. Charles Johnson summoned inmate. Kajor, a hospital attendant, from the nurse's station and accompanied him back to Herman . Johnson's room. He noticed that Gibson, Justice and Muldrew were still in the shower room. Charles Johnson visited the patient in the room next to that of Herman Johnson and then went down to the first floor. While there he heard the panic buzzer and upon hear- ing the officers say “second floor" he went upstairs to the second floor where he observed Justice and Muldrew. Justice asked Charles Johnson what had happened and Johnson replied that he didn't know. A nurse told Charles Johnson to proceed downstairs. While on the first floor Charles Johnson observed that both Justice and Muldrew were there. Justice was permitted to go through the center grille gate. - atts Officer George Randolph escorted Justice out of the clinic door. Officer Randolph noticed that Justice had something in his right hand. When he asked Justice to open his hand Justice glared at him but com- plied, revealing blood-stained tissue paper and a deep cut between the thumb and fore- finder. Officer Ayres also observed that one of Justice's hands was closed around some paper. Justice's hand was examined by Arthur Cimon, a medical technical assistant, at about 2:25 p.m. He observed three incise wounds on the palm, which he described as superficial and of the type resulting from a cut Dy a knife, razor or piece of glass. Simon testified that in his opinion the wounds were fresh, possibly two or three hours old, but that it was possible that they were a few days old. A white-over-brown rubber shower thong was found near room 202, occupied by =lQe Herman Johnson. A similar thong was found in room 224. The first was a left thong and the second a right thong. Officer Ayres testi- fied that Justice customarily wore a pair of rubber shower thongs while in the hospital and that these were white on the top and brown on the bottom. When Justice was taken from the hopsital about 30 to 45 minutes after the attack on Officer Davis, he was wearing green and white thongs of a different shape than the one he customarily wore. Ellis Baker, an employee of the Department of Corrections who participated in the search of the second floor of the hospi- tal, observed a knife on the roofwell from the window in room 226. When retrieved, the knife, which had a wooden handle and some tape next to the handle and the blade, had red faded stains on the tape aiid blade. [In room 224 bloodstains were discovered on the bedsheets. A blue shirt, blue pants and a -li-e pile of.. freshly laundered pajamas were found under the bed in room 224. A rubber shower thong was found in the pile of pajamas. Some of the pajamas had bloodstains, as did the blue shirt and the blue pants. There were bloodstains on the sink by the door and on the bed. The bloodstains on the sink appeared to be fresh. There were smudged fingerprints on the window panes. Finger- prints were also found on the knife, but they could not be identified. It was stipulated that Officer Davis died of knife wounds. Davis received nine wounds, all of which were consistent with _ having been inflicted by a single weapon. Records of the Alameda-Contra Costa Medical Association Blood Bank were intro- duced into evidence. ‘These disclosed that Officer Davis' blood type was "0." Blood samples were taken from Gibson and Justice pursuant to search warrants and the results @12- were admitted into evidence. Gibson's blood type is "O" and that of Justice is type "AB." Louis Maucieri, a criminalist employed by the Department of Justice, was permitted to testify as an expert, over defense objections as to his qualifications. He testified that "AB" type blood was found on the kinife, on a pair of denim pants found in room 224, on a roll of toilet paper found in a fourth floor trash can, on a white jacket found in the fourth floor soiled Linen hamper, and on Gibson's bedding. Sufficiency of the Evidence Both defendants contend that the evidence was insufficient to sustain a ver- dict against them. In considering this con- tention we must take cognizance of the following basic rules applicable to appellate courts: (1) "The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not -~ ise whether guilt is established beyond a reason- able doubt." (People v. Redmond, 71 Cal.2d 745, 755; see also People v. Mulqueen, 9 Cal.App.3d 532, 540.); (2) The appellate court "must view the evidence in a light most favorable to respondent and presume in sup- port of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond, supra, 71 Cal.2d 745 at p. 755.); (3) Before the appel- late court may set aside a judgment of con- viction on the basis of insufficiency of the evidence, it must clearly appear that under no hypothesis whatever is there sufficient substantial evidence to support the conclu- sion reached in the court below. (People v. Spencer, 71 Cal.2d 933, 937; People v. Redmond, supra, 71 Cal.2d 745 at p. 755.) Gibson contends that the prosecu- tion's case against him was so thoroughly destroyed by the evidence adduced at the -14- ° trial that a reversal is compelled. With respect to the July 19 attack on Herman Johnson, reliance is placed on the testimony of several alibi witnesses who stated that either they saw the attack on Herman Johnson and that Gibson was not among the attackers or that Gibson was elsewhere at the time the incident occurred, and on the failure of Herman Johnson to identify Gibson when he was first interviewed by correction officers after the attack. Gibson's statement to the officers does not compel the inference that he could not identify his attackers. He merely refused to identify his attackers and told the officers to wait and see it if hap- pened again. At the trial Hernan Johnson identified Gibson as his attacker. The cred- ibility of Herman Johnson and the alibi wit- nesses was a matter for the jury. With respect to the July 21 attack on Officer Davis, Herman Johnson's testimony o13< that he observed the attack and that Gibson was one of the attackers and the inferences that can be drawn from the testimony of Kranzelic and Charles Johnson with respect to Gibson's conduct at or about the time of the attack provide substantial evidence that Gibson participated in the attack. Gibson's criticism of the prosecution's theory that he faked an injury in order to obtain access to the hopsital in order to "finish the job” on Herman Johnson is a reasonable inference in view of the testimony of Dr. Erickson and that of Kranzelic. The fact that Gibson did receive a slight injury at football practice does not dissipate the prosecution's theory. Gibson's argument that the testimony of Kranzelic, Charles Johnson and Herman Johnson indicates that Palmer was Davis' assailant does not compel such an inference, but to the contrary, was such as to warrant an inference that Gibson was the assailant. =16< Justice contends that, except for the testimony of Herman Johnson, there is no evidence that he was in the area where the attack on Johnson took place. Although three witnesses testified that Justice was else- where at the time of the attack, Johnson's testimony, if believed by the jury, would suffice to supply substantial evidence of Justice's participation in the attack. With respect to the attack on Officer Davis, Herman Johnson testified that Justice was present during the attack and that he observed Justice pass a knife to a tall black man who hit the officer with the knife. Kranzelic's testimony as to Justice's conduct at or about the time of the attack, Charles Johnson's observations of Justice in the vicinity of the area of the attack and the circumstances surrounding the cuts on Justice's hand are susceptible of inferences that Justice participated in the attack on Davis. ol Fa Defendants' attack is directed pri- marily to the credibility of three prosecu- tion witnesses and is predicated on certain inconsistencies in their testimony. They allege that each of these witnesses testified falsely for the prosecution in expectation of a parole. These inconsistencies and alleged biases were fully developed at the trial. It was for the jury to weigh the credibility of these witnesses as well as the credibility of the defense witnesses. Grand Jury Organization We consider, first, defendants' con- tention that the jury which returned the indictments against them was not selected in a constitutionally premissible manner. In People v. Pinell, 43 Cal.App.3d 627, 635 (cert. den., 43 U.S.L.W. 3659] (U.S. June 16, 1975), the same grand jury which indicted defendants was held to have been selected in a constitutionally permissible manner. o18« The Search Warrant Search warrants authorizing the taking of blood samples from each of defen- dants was authorized. Defendants moved to suppress the blood samples taken pursuant to the warrants upon grounds of insufficient showing of probable cause. The petition was denied. The blood samples were analyzed for blood type and the results were admitted into evidence. These results provided a link in the prosecution's efforts to connect Justice to the killing by seeking to establish that his blood was on the knife alleged to be the murder weapon, The search warrant was issued on the basis of the affidavit of Correctional Sergeant William Hankins. Attached to the affidavit was a copy of the transcript of the testimony of Herman Johnson given before the Grand jury. Defendants contend that Johnson's grand jury testimony was not a1 Ga properly before the magistrate and therefore cannot form the basis of probable cause for issuance of the search warrants. Hankins' affidavit states, in part, that he had read a certified copy of the grand jury transcript attached as an exhibit to the affidavit and that the testimony therein of Herman Johnson indicated that defendants were two of the persons who stabbed and killed Officer Leo G. Davis. Hankins did not purport to swear to the truth of the matters contained in the*grand jury testimony. of Herman Johnson but merely stated that defendants had been indicted by the grand jury for Officer Davis’ murder and that a copy of the indictment and the grand jury transcript were attached to and incorporated in his affidavit. Hankins' allusion to Herman Johnson's testimony was for the pur- pose of stating the ground for the issuance of the search warrants. The factual basis -20< for the issuance of the search warrnat was the grand jury transcript itself, an official document which indicated that the matters therein testified to were given under oath by the witness giving the testimony. The incor- poration of the grand jury transcript in the affidavit was proper. (See People v. Sloss, 34 Cal.App.3d 74, 81-82; and see United States v. Ventresca, 380 U.S. 102, 108.) Defendants assert that the grand jury testimony of Herman Johnson does not meet the requirements of Aguilar v. Texas, 378 U.S. 108. Aguilar holds that an affi- davit for a search warrant may be based on hearsay information and need not reflect the direct personal sheacvations of the affiant, but that it must contain both the underlying circumstances from which the informant con- Cluded that a crime had been committed and some of the underlying circumstances from which the officer concluded that the infor- mation was credible or his information @2)le reliable. (At p. 114.) Accordingly, the affidavit must allege the informant's state- ment in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in the statement, and the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his infor- mation reliable. (Skelton v. Superior Court, 1 Cal.3d 144, 152; People v. Superior Court, 6 Cal.3d 704, 711.) In the present case, Herman Johnson's testimony before the grand jury was Clearly factual in nature and indicated that he had personal knowledge of the facts relatea.2/ His testimony under oath was as 1. Herman Johnson's testimony before the grand jury as to his observations was essen- tially as given at the trial, the substance of which is included in the narrative of the facts above set forth. =2Fe to matters and conduct personally observed by him. This testimony was also sufficient to supply the underlying factual information from which the magistrate could conclude that Herman Johnson was speaking truthfully and that the information was reliable. It was reasonable for both the magistrate and Hankins to conclude that Herman Johnson was both the victim of and a witness to a crime from the nature of the information given by him and the circumstances under which such information was given. The parties dispute at length whether Herman Johnson can be characterized as a “citizen-informer." The People contend that because Herman Johnson was a victim of and a witness to a crime his reliability is Presumed. Defendants argue that because Johnson was a prison inmate, a felon, and a prosecution witness he was not a "citizen- / 7% o33e informer .*2/ In the present case we need not determine whether Johnson can be character- ized as a “citizen-informer." Such a charac- terization is important only in determining whether the magistrate could reasonably rely upon the information supplied to him under the circumstances. Here the circumstances before the magistrate were quite different 2. Corroboration of information received from an informant is unnecessary for search warrant purposes where the informant's state- ments are made as the victim of a crime or on his personal observation of a crime. (People v. Hill, 12 Cal.3d 731, 761; People v. Paris, 48 Cal.App.3d 766, 772-773.) In such a case the informant is presumptively reliable as a "citizen-informant" even though his reliabil- ity has not been previously tested. (People v. Hill, supra; People v. Hogan, 71 Cal. 888, 890; People v. Paris, supra, at p. 773.) A "citizen-informant" is distinguished from a mere informer who gives a tip to law enforce- ment officers that a person is engaged in the course of criminal conduct. (Kraus v. Superior Court, 5 Cal.3d 418, 421-422; People v. Hogan, supra, 71 Cal.2d 888, 891.) Accordingly, experienced stool pigeons or persons criminally involved or disposed are not regarded as “citizen-informants" because they are generally motivated by something other than good citizenship. (People v. Scoma, 71 Cal.2d 332, 338, fn. 7; People v. Griffin, 250 Cal.App.2d 545, 551; People v. Lewis, 240 Cal.App.2d 546, 550.) atte from the ordinary situation where the affiant is relying upon information from an infor- mant, a victim of a crime or a witness to a crime. Here the affiant was relying upon information given by Herman Johnson through testimony under oath before a grand jury. Under these circumstances the magistrate could reasonably conclude that the informant was credible or that his information was reliable. In testifying before a grand jury a witness is exposing himself to charges of perjury as well as to an action for malicious prosecution if he makes unfounded charges. Such a person is more than a mere informer who gives a tip to law enforcement officers or who is criminally involved or disposed. The badge of reliability is impressed upon the informant because he is a witness under oath in a legal proceeding subject to the sanctions imposed by law if he testifies falsely. (See People v. Hogan, supra, 71 Cal.2d 888, 890-891.) ~ = Defendants next contend that the search warrant does not present particular- ized facts which demonstrate an evidentiary "nexus" between the property seized and the crime under investigation under the principle articulated in Warden v. Hayden, 387 U.S. 294, 307, that ". . . probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction." The thrust of defendants’ contention is that in the instant case a showing of the evidentiary value of the blood types of defendants would have to include (1) probable Cause to believe that the AB type blood found on the alleged murder knife was not that of the victim, and (2) probable cause to believe that one or both of defendants left their blood on the knife. The affidavit, they con- tend, fails on both counts. Although the affidavit does not State that the victim's blood type was not AB aZga or that either of the defendants had wounds on his body, it does state certain facts from which the magistrate could find probable cause that the AB type blood found on the knife was not that of the victim and that one or both of the defendants left their blood on the knife. The affidavit states that the affiant was advised by correctional officers that Officer Davis had been stabbed numerous times by assailants while he was on duty in front of room 202 of the hospital. From his personal knowledge, the affiant was aware that Officer Davis and others had been assigned to guard Herman Johnson, the patient in room 202. He had been advised that a knife had been found in a corner of as roof- well immediately adjacent to room 224 and he personally observed the knife in this posi- tion. He observed bloodstains on the knife. He also ". . . personally examined the hospi- tal corridor area adjacent to room 202 and atte observed several large splotches and droplets of fresh blood on the floor, leading away from room 202 and toward the center corridor where room 224 was located." The alleged fact that a trail of droplets of blood led from the area where the officer was stabbed to the room adjacent to the place where the murder knife was found reasonably suggests that the assailants fled to the area of room 224 leaving a bloody trail. The reasonable interpretation is that either the victim's blood was dripping from the knife or that one Or both of the assailants was injured and | bled while fleeing from the scene of the crime. We conclude that the affidavit does not fail as a matter of law to set forth com- petent evidence supportive of the magistrate's finding of probable cause. The facts stated are such as would lead a man of ordinary caution and prudence to believe and conscien- tiously entertain a strong suspicion of the ~28@ guilt of the accused in the light of the facts and circumstances presented. (See Skelton v. Superior Court, 1 Cal.3d 144, 150.) Probable cause does not need as strong evidence as is needed to convict, and it is the function of the magistrate, not the reviewing court, to appraise and weigh the evidence presented by the affidavit in sup- port of a search warrant. (Skelton v. Superior Court, supra; see United States v. Ventresca, supra, 380 U.S. 102, 107.) Defendants also contend that the affidavit is invalid because it does not identify the person to be searched or the things to be seized. They state that only the warrants contain such description. The federal constitutional mandate is that "no Warrants shall issue, but upon probable Cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be «3Qu seized." (U.S. Const., 14th Amend.). The California Constitution contains similar language. (Art I, § 13.) The mandate is also to be found in Penal Code section 1525, which provides that the warrant cannot be issued but upon probable cause supported by an affidavit naming or describing the person and particularly describing the property and place to be searched. In People v. Alvarado, 255 Cal.App. 2d 285, 291, the applicable test is described as follows: "It [the affidavit] must describe with reasonable particularity the place to be searched, and the property to be seized. ([Citation.] The test for the latter is ‘whether the warrant places a meaningful restriction on the objects to be seized.' [(Citation.]" (See Aday v. Superior Court, 55 Cal.zd 789, 796.) The affidavit in the instant case sets forth with particularity the affiant's @36- personal observations and verifications from prison records of defendants’ presence at the prison hospital at the time of the homicide; that he assisted in the investigation of the stabbing and the finding of a knife on the roofwell immediately adjacent to room 224 in the prison hospital; his examination of the knife and his observation of the bloodstains thereon; his receipt of the report from the Criminalist that the bloodstains on the knife were of group AB human blood; his observa- tions of fresh blood on the floor of the pri- son hospital leading from room 202, where Officer Davis had been guarding Herman Johnson, toward room 224; his observations of a number of latent fingerprints having been lifted from the wall area around room 202; and his reference to the testimony given by Herman Johnson to the grand jury that defen- dants had stabbed Officer Davis. The affi- davit then concludes as follows: "Wherefore w 32a your affiant prays that an order of this court issue allowing the procurement of the above mentioned samples of evidence for the purpose of comparing the same with blood stained knife and fingerprints mentioned above on the grounds that said comparisons will tend to show that a felony has been committed." An examination of the search warrant indicates that the affidavit executed by Hankins was presented to a judge of the Superior court and that the search warrant was restricted to the blood samples and fingerprints of defendants sufficient for testing. It is apparent that the warrant restricts the things to be seized and that the magistrate understood from a reading of the affidavit, which specifically mentioned defendants by name as the persons who stabbed Officer Davis, that the purpose of the search Warrant was to obtain blood samples from o32e defendants in order to compare them with the | bloodstains on the knife and to obtain defen- dants' fingerprints in order to compare them with those taken from the wall area around room 202. In United States v. Ventresca, supra, 380 U.S. 102, 108-109, the Supreme Court observed that ". . . affidavits for search warrants .. . must be tested... in a commonsense and realistic fashion" and not by "[t]echnical requirements of elaborate specificity once enacted under common law pleadings . .." (See People v. Superior Court, 6 Cal.3d 704, 711.) Accordingly, we conclude that the affidavit in support of the search warrant in the present case met the constitutional, statutory and decisional requirements. -33- Blood Type Evidence The court overrruled defendants' objections to the admissibility of evidence that AB blood type was found on the knife retrieved from the roof well adjacent to room 224, on a pair of blue denim pants found in room 224, on a roll of toilet paper found in a trash can on the fourth floor of the prison hospital and on a white jacket taken from a linen hamper on the first floor of the hospi- tal, and that Justice's blood type was AB. Defendants contend that the court erred in admitting the evidence. The precise issue has not been pre- sented to a California appellate court. In several cases in which blood grouping tests were admitted, admissibility was apparently presumed. (See People v. Kemp, 55 Cal.2d 458 [cert. den., 368 U.S. 932]; People v. Jordan, 45 Cal.2d 697; and People v. Mummert, 57 Cal.App.2d 849 disapproved on other grounds in People v. Collins, 54 Cal.2d 57, 60]; -34- see also People v. Deriso, 222 Cal.App.2d 478.) | The weight of authority in this country holds that the results of blood grouping tests are admissible in evidence on the question of whether particular blood was the blood of a specified individual or whether particular bloodstains were made by a specified individual. (See cases collected and cited in 163. A.L.R. 939, 950-953; 46 A.L.R. 2d 1000, 1025-1027; 29 Am.Jur.2d 481, § 370.) The case of People v. Robinson, 27 N.Y.2d 864, 265 N.E.2d 543, relied upon by defendants and holding that such evidence is not admissible, is contrary to the weight of authority.2/ : The rationale of the cases upholding the admissibility of blood grouping tests in 3. Robinson involved type A blood. The evidence was held inadmissible because a large part of the population has blood of this type. This decision was criticized ina law review article by Jerome Price entitled "Evidence," 23 Syracuse L.Rev. 3l1l, 326-327. criminal cases is that such evidence is a link in the chain of circumstantial evidence tending to show guilt. (See 163 A.L.R. 939, 950.) We perceive such evidence to be admissible on the ground of relevancy as countenanced by the Evidence Code. Section 210 of the Evidence Code, in pertinent part, defines “relevant evidence" as "., .. evi- dence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Section 351 of the Evidence Code provides: "Except as otherwise provided by statute, all relevant evidence is ad- missible." There is no statute proscribing the admissibility of blood grouping tests. Defendants discuss at length cases involving the use of blood tests to prove or disprove paternity, contending that in such cases blood group evidence that excludes the possibility of parternity is admissible while that which only shows the possibility of 2. -36< paternity is inadmissible. In considering this contention we first observe that the determination of paternity and the relevancy of the evidence based on tests is governed by statute. California has enacted a specific chapter of the evidence code known as the "Uniform Act on Blood Tests to Determine Paternity." (Evid. Code, §§ 890-897.) The act authorized the court to order the mother, child and alleged father to submit to blood tests. (§ 892.) It does not make the results of the blood tests inadmissible in evidence. To the contrary, it specifically provides that the experts who make the tests shall be called as witnesses to testify as to their findings and shall be subject to cross-examination by the parties. (§ 893.) The act does not proscribe admissibility of the tests but deals with the court's deter- mination of paternity based on those tests. Section 895 provides: “If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings or conclu- sions, the question shall be submitted upon all the evidence." (See Hodge v. Gould, 274 Cal.App.2d 806, 808.) In essence, section 895 deals with the weight to be given to the admissibility of blood tests and not to their admissibility in evidence. (See A.L.R.2d, §§ 12 and 13 at p. 1027.) Defendants' contention that the admission of blood grouping tests contravenes the rule of People v. Collins, 68 Cal.2d 319, is without merit. Collins held it to be prej- udicial error where the prosecution offered, through an expert, a formula in statistical probability from which the jurors were invited to infer that the odds against defendant's innocence were one in 12,000,000. The court found that the testimony itself -! lacked an adequate foundation both in evi- dence and in statistical theory and that testimony and the manner in which the prose- cution used it distracted the jury from its proper function. (At p. 327.) The defi- ciency recognized in the evidence proferred in Collins is not present in the case of blood grouping tests. The scientific basis and accuracy of these tests have been recognized by the courts and it is upon this recognition that, when a proper foundation is laid, the results of such tests are admissible in evidence on such questions as identity and paternity. (See Annotations on blood grouping tests in 163 A.L.R. 939 and 46 A.L.R. 2d 1000.) Blood Donor Records Defendants contend that it was error to permit the admission into evidence of blood donor records from the Alameda-Contra Costa County Medical Association Blood Bank. These records were introduced to show that -39- Officer Davis' blood type was not AB and thus that it was not his blood which was found on the knife and other articles associated with the murder. Defendants argue that the records were not admissible under the “business records" exception to the hearsay rule and that introduction of these records was violative of their Sixth Amendment right to confront witnesses. The evidence was presented by Peter Rosendale, the technical director of the blood bank. He described the procedure employed by the blood bank in typing the blood of potential donors. Rosendale pro- duced donor history cards of a Leo G. Davis. He also produced the "lab notes" or worksheets of the technicians who typed the blood. A sample had been tested on or about December 1, 1969. The interpretation from the results was that Davis had type O blood. The court admitted the evidence. -40=- The business records exception to the hearsay rule is provided for in Evidence Code section 1271, which permits the intro- duction of evidence of a writing made as a record of an act, condition or event when offered to prove the act, condition or event if certain conditions are met. Defendants argue that this exception has no application to proof of a person's blood type. In People v. Utter, 24 Cal.App.3d 535, 552-553, haqspital records relating to the blood type of the victim were held to come within the business records exception. Similarly, in People v. Williams, 187 Cal.App.2d 355, 367-368, the report of the results of a blood test showing absence of alcohol in the decedent's system was admissible as a business record. The cases relied upon by defendants where records were held to be inadmissible are cases in which the writing sought to be admitted was a record of the conclusion of the declarant rather than the record of an act, condition or event.4/ Most of these cases involve the record of a medical diagnosis. In the instant case the evidence admitted was not a record of a conclusion or medical diagnosis. It was not based upon the "thought process" of the technician but rather upon the "mechanics of blood typing." (See People v. Utter, supra, 24 Cal.App.3d 535, 552-553.) The expert who testified stated that the results of a blood grouping 4. In Hutton v. Brookside Hospital, 213 Cal.App.2d 350, 354-355, the court held in- admissible the record of a registered nurse's conclusion that the patient "seemed too ill to be moved." In People v. Terrell, 138 Cal.App.2d 35, 57-58, the court held inad- missible the notation in a hospital record of a diagnosis of a probable criminal abortion upon the rationale that the diagnosis was the reasoning of the person making it arrived at from the consideration of many factors. The same rationale was applied in People v. Reyes, 12 Cal.3d 486, 503, a cases involving a medical diagnosis, wherein it was observed that there was no opportunity to cross- examine the person making the diagnosis for the purpose of determining what factors led him to his conclusion and where he was quali- fied to make it. examination case were considered to be an “interpretation.” We are persuaded that since the results of a blood grouping exami- nation are reached through mechanical pro- cedures from which interpretations can be made, the record of such results are more akin to evidence of a condition than to a "conclusion." Accordingly, we conclude that records of a blood grouping made under the conditions prescribed in Evidence Code sec- tion 1271 are admissible under the business records exception. Defendants argue that the Legisla- ture has expressly determined that blood grouping results should be subject to cross- examination and are not within the business records exemption to the hearsay rule. Their authority for this contention is Evidence Code section 893, which is concerned with court-ordered blood tests to determine pa- ternity. This statute directs that the court-appointed experts shall be subject to cross-examination. Section 893 is clearly applicable to a specific situation and does not reflect in any way upon the question whether results of blood tests are admis- sible under the business records exception to the hearsay rule. Adverting to the constitutional right of confrontation, we note that it has been recognized that certain exceptions to the hearsay rule do not violate the Sixth Amendment right to confrontation. (See People v. Brawley, 1 Cal.3d 277, 290 [cert. den., 400 U.S. 993] (extrajudicial statement of coconspirator); Tomlin v. Beto, 377 F.2d 276, 277 (official records of prior conviction); McDaniel v. United States, 343 F.2d 785, 789 [cert. den., 382 U.S. 826] (business records of a corporation) .) Defendants urge us to consider Kienlen v. United States, 437 F.2d 843, 848-849, and United States v. Partin, 493 F.2d 750, 763. These cases involved opinions aha and conclusions recorded in hospital records, the admission of which in each case involved the accused's constitutional right to be con- fronted with witnesses against him. It should be noted that Partin held that the portions of the hospital records showing statements of the patient-witness, notation of symptons, and treatment rendered were ad- missible as factual data. (At pp. 763-764.) Brawley, supra, has not been over- ruled by'California v. Green, 399 U.S. 149, Or Dutton v. Evans, 400 U.S. 74. Defendants take comfort in the statement in Green that ", . » we have more than once found a viola- tion of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception." (At pp. 155-156.) However, Green does not hold that the business records exception to the hearsay rule violates the confrontation Clause of the Sixth Amendment. Green was concerned with the Evidence Code section 1235 ~~ which permits an inconsistent statement of a witness to be used as substantive evidence if the statement of a witness to be used as substantive evidence if the statement is otherwise admissible. The statute provides that such a statement is not made inad- missible by the hearsay rule. The consti- tutionality of section 1235 was upheld in Green. Defendants’ reliance on Dutton is misplaced. That case held that a Georgia Statute allowing into evidence as an excep- tion to the hearsay rule a conconspirator's out-of-court statement made during the con- cealment phase of the conspiracy, was not unconstitutional or violative of the right to confrontation secured by the Sixth and Fourteenth Amendments. (400 U.S. at pp. 83, 87-88, 89.) Pretrial Photographic Identification A group of photographs was shown to both Herman Johnson and Charles Johnson. Herman Johnson was shown 18 photographs on ~46< the day of the murder. He picked out photo- graphs of defendants, but was unable to identify the third assailant. He was shown the same group of photographs twice more, with the same results. The same group of photographs was shown to Charles Johnson on July 23, 1971. He picked out defendants and Reginald Muldrew. Each of the photographs had imprinted on it the name of the person depicted. No attempt was made to mask the names when the photographs were displayed to the witnesses. | Defendants contend that the photo= graphic identification was impermissibly suggestive in that the names were on the front of the photographs and that therefore the subsequent in-court identifications were tainted. (See Simmons v. United States, 390 U.S. 377; and Stovall v. Denno, 388 U.S. 293.) The thrust of thi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1297%3A1. Public record. Not legal advice.