Opposition Brief — Kelly v. Harper

ORIGINAL OPH bs

No. 90-1130

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

WALTER R. KELLY, Superintendent,

Attica Correctional Facility,

Petitioner,

-V.-

ELMER HARPER, JR.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

DAVID L. LEWIS

THE LEGAL AID SOCIETY

FEDERAL DEFENDER SERVICES

52 Duane Street

10th Floor

New York, New York 10007

Tel. No.: (212) 285-2842

Attorney for Respondent

HARPER.

—-

199]

ee

TABLE OF CONTENTS

Page

TABLE OF CASES AND STATUTUES) ...c cece cceescrccvecesvese i

QUESTIONS PRESENTED ..ncccccccccccssesccccsesecscevesere 1

OPINIONS BELOW .nccccccccvcccvvcccevccccececsccvccecese 2

STATEMENT OF THE CASE .nccccccescvcsescesvcesevesesccebe 2

-; EM BCC RPPPEEEEORETE CTT TE eT CeCe Te ae ee eS 3

Lester’s Failure to Identify Harper as the Robber ..... 4

The Photographic Display and Lineup ......cwceeeeeseees 5

The Cross Examination of Small at Trial .........2eeee- 6

THO SGUMMMACLONS 2c cccreceecsrdseecrevcdesereress esos baw 7

Charge, Deliberations, Verdict, and Sentence .......... 8

The State Appeals and the Habeas Petition ..........2.0-. 9

The Court OF Appeals OPINION ascssevsesrnseseesacessaces 10

ptt) eee eee eee eee eee ee ee ee ee ee ee ee Pe a a a ee 2 12

ee ow A oe ee eee ee ee er ee ee ee es ee 21

TABLE OF CASES AND OTHER AUTHORITIES

Davis v. Alaska, 415 U.S. 308 (1974) wncccvescvcccccceces 13

Delaware v. Van Arsdall, 475 U.S. at 679 .....ceeees 11, 14, 16, 20

Dickerson v. Fogg, 526 F. Supp. 1299 (S.D.N.Y.

1901), e£k°@, 692 F.2d 238 (26 Cie. 1962) ..scavess 13

Hall v. Wainwright, 805 F.2d 945 (lith Cir.

1986), cert. denied, 484 U.S. 905 (1967) ...ccocses 21

Hanrahan v. Greer, 896 F.2d 241 (7th Cir. 1990) ........ 21

Holland v. Attorney General, 777 F.2d 150 (3d

COE se EPSS) cabo ees nee cee ree e the CenseeNeeens eK aes € 4 21

Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990) ......... 21

Manson v. Brathwaite, 432 U.S. 98 (1977) ....eeeeeenvees 13

Maryland v. Craig, 110 S. Ct. 3157 (1990) ......-..-40.-, 10

McKenzie v. Risley, 842 F.2d 1525 (9th Cir.) (en banc),

cert. denied, 488 U.S. 901 (1988) .....---eeeeeeeee 21

Olden v. Kentucky, 109 S. Ct. 480 (1988) .....ceccceveee ivy 18, av

People v. Harper, 123 A.D.2d 528 (lst Dept. 1986) ...... a

People v. Harper, 68 N.Y.2d 1001 (1986) .......-.+5255.- a, 3

Rushen v. Spain, 464 U.S. 114 (1983) .....-- ee ewer ennees 20

United States v. Owens, 108 S. Ct. 838 (1988) .......... 13

United States v. Smith, 563 F.2d 1361 (9th Cir.

1977), cert. denied, 434 U.S. 1021 (1978) ......... 13

il

QUESTIONS PRESENTED

1. Whether preclusion of cross-examination of the prose-

cution’s crucial eyewitness concerning his mental and emo-

tional state during a thirty-second gunpoint robbery -- an

issue directly relevant to the reliability of his eyewitness

identification testimony -- violated the Confrontation

Clause?

2. Whether the preclusion of cross-examination of the

crucial witness in the case on a matter relevant to the

crucial issue in the case was harmless where the prosecu-

tion’s case was based entirely on eyewitness identification

testimony, where the victims lacked substantial opportunity

to view the robber, where one victim initially failed to

identify Harper as the robber because Harper "looked differ-

ent" than the robber did, and where the first jury to hear

the case deadlocked eleven-to-one for acquittal?

3. Whether the court of appeals violated Rule 52(a) of

the Federal Rules of Civil Procedure where it "set aside" no

factual finding of the district court, and whether this Court

should grant certiorari on this issue, which petitioner did

not raise in the court of appeals?

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

WALTER R. KELLY, Superintendent,

Attica Correctional Facility,

Petitioner,

—-V.-

ELMER HARPER, JR.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-7a) 1s

published at 916 F.2d 54. The opinion of the district court

(Pet. App. 8a-17a) is reported at 704 F. Supp. 375. On

Harper’s direct appeal in state court, the New York State

Supreme Court, Appellate Division, First Department, affirmed

his conviction without opinion in a disposition reported at

123 A.D.2d 528 (lst Dept. 1986). The New York State Court of

Appeals denied his application for leave to appeal at 68

N.Y¥.2d 1001 (1986).

STATEMENT OF THE CASE

Elmer Harper, Jr., was indicted in Bronx County, New

York, by indictment number 2873/84, and charged with the

gunpoint robbery of Jack Small, which took place on May 9,

1984. Harper was tried twice for this crime. The principal,

indeed the only, issue at both trials was whether Harper was

accurately identified as the robber. The first trial lasted

one lay. The jury deliberated for a day and a half, but a

mistrial was declared with the jury hung eleven to one for

acquittal. Pet. App. at 10a. At the second trial, before

the Hon. George D. Covington and a jury, the testimony took

but a morning, and the jury deliberated nearly until midnight

before being sequestered. The next day it deliberated into

the afternoon before finding petitioner guilty of one count

of robbery in the first degree.

The Crime

At about 8:00 p.m. on May 9, 1984, Jack Small, the

service manager of a Sears Auto Center in the Bronx, put the

day’s cash receipts in his vest and carried them across a

parking iot to the main Sears store. He was accompanied by

security supervisor Frank Lester. It was dusk, and the

lights in the parking lot were not yet on. As Small and

Lester crossed the lot, a man wearing sunglasses, a black

rain hat pulied down over his hair and black clothing, came

from behind a van. The man put a gun in Small’s waist and

demanded the money. Lester told Small not to give it up, but

the man threatened to "blow [Small’s] fuckin’ head off" and

Small gave him the vest containing $4000. 28-30, 65, 78-

79.* The whole incident lasted only about 30 seconds, and

Small acknowledged that during this brief period had been

looking at the gun the man was holding as well as at the man

himself.

No one was identified or apprehended as a suspect in

this crime until long after it occurred.

Lester’s Failure to Identify Harper as the Robber

Three weeks after the crime, Harper was arrested for

shoplifting by Mr. Ducaran, a Sears employee, just outside

the Sears store. Lester, who was Sears’s security supervi-

sor, went out and assisted with the arrest. He and Ducaran

escorted Harper to the Sears security office where Lester

spent the next hour with Harper, while Ducaran photographed

him and completed paperwork. Lester did not identify Harper

as the man who had robbed him three weeks before.

At trial, Lester said he did not recognize Harper as the

robber because he "looked different" (82), and he explained:

I didn’t know I was going to apprehend

him with Mr. Ducaran. Looking at him the

way he looked then and looking at him

when he robbed us he looked different.

Nothing crossed my mind, sir whether that

was him or not, whether it was the robber

Numerical citations are to the trial transcript.

2

or not.

92. Initially, however, at the Wade hearing in the case,

Lester had said he did not recognize Harper at the time of

the shoplifting arrest because "[a]t the time that he was

arrested we didn’t know who -- we didn’t know he was that

person." Transcript of Wade hearing at 52.

The Photographic Display and Lineup

Lester apparently first came to "know [Harper] was that

person" as the result of a photographic identification held

on June 7, 1984, about a week after he had met Harper at the

shoplifting episode. Officer James Sullivan showed him and

Small an array of photographs. Neither Lester nor Small

could remember what photographs they had been shown, except

those of Harper. Officer Sullivan produced at the Wade

hearing six photographs he had shown the two men. Of these

Six, two were of Harper. In one of these two, Harper was

wearing sunglasses, as had the robber, and in the other he

was without glasses. The remaining four photographs were of

other men not wearing sunglasses. This selection of six

photographs by itself was clearly highly suggestive, tor

Harper was represented twice and was wearing garb like that

of the robber in one photograph.

Officer Sullivan testified, however, that, in addition

to the six photographs he was able to produce, he had shown

Small and Lester four other photographs and that these four

happened to have been two additional pairs of photographs of

men with and without sunglasses. Sullivan claimed that these

two additional pairs had been kept in the same file with the

other six pictures, but had disappeared. He could not ex-

plain what had happened to them. It was from this array of

ten, rather than six, photographs, Sullivan testified, that

Small and Lester picked Harper’s picture. Even the ten-

photograph array tended to suggest, however, that the police

suspected one of the three men, including Harper, who were

pictured in sunglasses.

Nearly three months after the crime, on July 31, 1984,

Small and Lester identified Harper in a police lineup as the

robber.

The Cross Examination of Small at Trial

On cross-examination at trial, defense counsel sought to

elicit information from Small about his mental and emotional

state during the crime. He asked several questions along

this line, all of which were thwarted by objections from the

prosecutor that were sustained by the court:

Q. So, the very first time you had an

idea there was going to be any kind of a

problem here was when somebody bumps into

you and telis you to give him the vest,

is that correct.

A. Yes, sir.

Q. How did you feel when those words

were said?

[Prosecutor]: Objection.

THE COURT: Objection sustained.

Q. Did you have a reaction when those

words were said to you?

[Prosecutor]: Objection.

THE COURT: Objection sus-

tained.

Q. Were you scared?

{Prosecutor}: Objection.

THE COURT: Objection sus-

tained.

Q. Had you ever been the victim of a

robbery before?

[Prosecutor]: Objection.

THE COURT: Objection sus-

tained.

[Defense counsel]: May I ap-

proach?

THE COURT: No, you may not.

[Defense counsel]: May I ap-

proach?

THE COURT: No, you may not.

46-47. The trial court then instructed the jury that its

rulings were on issues of law, and were not the jury’s con-

cern, and directed counsel to proceed. Defense counsel was

allowed no other cross-examination of Small concerning his

emotions or mental state while he was being robbed, a gun was

pointed at him, and his life was threatened.

The Summations

Defense counsel argued in summation that both Small and

Lester were "honestly mistaken" in their identifications of

Harper as the robber. Counsel noted that neither man got a

good look at the perpetrator and argued that Lester’s lack of

recogition of Harper just three weeks after the crime showed

that the identifications were unreliable. Counsel argued in

addition that "I’m sure that both Mr. Lester and Mr. Small

were very much afraid as any person would be with a gun stuck

in your stomach, especially, I’m sure, one that must appear

to be twelve feet long." 158-59.

In the course of the summations, the judge instructed

the jury that "[w]hat Counsel on either side of this case

says is not evidence," but only “argument." 172.

Charge, Deliberations, Verdict, and Sentence

The court submitted only one count to the jury, robbery

in the first degree, and instructed the jury, inter alia,

that the People had to prove Harper’s identity as the perpe-

trator beyond a reasonable doubt. In the course of its

charge, the court noted that in assessing the identification

testimony, the jury could consider "[w]hat was the mental and

emotional state of the witness. 204. And the court further

charged that the "jury’s sworn duty" was to decide the case

"solely on the evidence admitted during the trial." 182-83.

The jury commenced its deliberations at noon on Septem-

ber 11, 1985. It deliberated all the rest of that day and

into the night, until, at 11:00 p.m., it was sequestered.

The following morning, September 12, 1985, the jury asked for

and received a reading of the direct testimony of Small and

Lester, and re-instruction on the criteria to use in deciding

whether to accept a witness’s testimony. The jury returned

with its verdict that afternoon, finding Harper guilty of

robbery in the first degree.

On October 4, 1985, Harper was sentenced as a second

violent felony offender to ten to twenty years in prison.

The State Appeals and the Habeas Petition

Harper appealed his conviction claiming that the trial

court’s restrictions on his cross-examination of Small had

violated his rights to confront the witnesses against him.

Cn September 30, 1986, the New York State Supreme Court,

Appellate Division, First Department, affirmed his conviction

without opinion. People v. Harper, 123 A.D.2d 528 (lst Dept.

1986). On November 24, 1986, the New York State Court of

Appeals denied his application for leave to appeal. People

v. Harper, 68 N.Y.2d 1001 (1986).

Harper filed a petition for a writ of habeas corpus

again raising his confrontation claim. The district court

correctly characterized Harper’s argument as being that the

"right to confront witnesses gives a defendant a right to

cross examine an identification witness on the circumstances

under which he or she saw the perpetrator," Pet. App. at

14a, and the court noted that Harper cited cases indicating

that "the emotional reaction of a robbery victim can have a

bearing upon his or her identification." Pet. App. at 14a.

Althought the court stated that these principles were "not

applicable" in Harper’s case, it did not reach the consitu-

tional issue but instead determined that any error committed

was harmless. Pet. App. at i4a. This was so, the court

held, because Harper had been able to cross-examine Small and

Lester on other subjects, because Lester’s testimony, al]-

though weak, corroborated Small’s, because defense counsel

hypothesized in summation that Small and Lester had been

afraid, and because the trial court had instructed that jury

that it could consider "the mental and emotional state of the

witness." Pet. App. at 15a.

The Court of Appeals Opinion

The court of appeals held that the preclusion of all

inquiry into the victim’s emotional state during his observa-

tion of the robber, which formed the basis for identification

of the defendant, violated the defendant’s Sixth Amendment

right to confront his accusers and was not harmless in this

case. Pet. App. at la-2a. The court noted that the "central

concern" of the Confrontation Clause was to "ensure the

reliability of the evidence against a criminal defendant by

subjecting it to rigorous testing in the context of an adver-

sary proceeding before the trier of fact." Pet. App. at 4a,

citing Maryland v. Craig, 110 S. Ct. 3157, 3163 (1990), a

concern that was "especially critical when the only evidence

against an accused is eyewitness identification." Pet. App.

» 36 «

at 5a. In such cases, "the defendant must be afforded a

meaningful opportunity to probe the reliability of that

testimony," and "one of the most significant means to probe

such testimony can be to question the witness about his

thoughts and fears at the time of the crime." Pet. App. at

5a. Because the trial court had denied the defendant a

"meaningful opportunity" to impeach the witness on this

basis, the court held that Harper’s rights under the Confron-

tation Clause had been violated. Pet. App. at 6a.

The court of appeals also held that the error was not

harmless under the standard set out by this Court in Delaware

v. Van Arsdall, 475 U.S. at 684. The court noted that the

case was "based solely on eyewitness identification" and that

Small’s testimony was the "key (and perhaps the only) evi-

dence that the jury considered in convicting Harper." The

court found that, because Lester had initially not identified

Harper as the gunman, his testimony could not have carried

much weight with the jury, and Small’s testimony, which had

not been subject to full cross-examination, was crucial.

Pet. App. at 7a. The court rejected the state’s claim that

the error was harmless because Harper was allowed to argue

that fear might have affected Small’s perceptions on the

basis that "as juries are admonished during every trial,

counsel’s arguments cannot substitute for actual evidence."

Pet. App. at 7a.

ARGUMENT

Petitioner contends that the court of appeals erred in

finding a violation of the Confrontation Clause of the Sixth

Amendment in a case where the state trial court precluded all

cross-examination into the mental and emotional state of the

crucial identification witness at the time he observed the

perpetrator of the crime. Petitioner also contends that if

there was a violation of the Confrontation Clause, it was

harmless and that the court of appeals erred in "setijting]

a ide" factual findings of the district court concerning

harmless error that were not "clearly erroneous.” Rule

52(a), Fed. R. Civ. Pro. The court of appeals, applying

well-settled principles of constitutional law, correctly

found a violation of the Confrontation Clause in this case,

however, and also correctly found that that violation was not

harmless. Petitioner’s argument that the court of appeals

violated Rule 52(a) was not presented below, and, in any

event, petitioner does not identify any factual findings of

the district court that the court of appeals actually ‘set

aside" in this case. This case presents no issue upon which

certiorari should be granted.

Petitioner first suggests that defense counsel’s inqui-

ries into the feelings and reactions of the witness at the

time of the crime were “irrelevant" or were not "germane" to

the case, see Pet. App. at 12-13, and were thus not proper

5 + a

subjects of cross-examination. But, as the court of appeals

recognized, such inquiries, which implicate the witness’s

ability to perceive and remember, are plainly proper. Pet.

App. at 5a ("the most significant means to probe [identifica-

tion] testimony can be to question the witness about his

thoughts and fears at the time of the crime"). Indeed,

petitioner’s argument is foreclosed by the state trial

court’s charge in this very case, for the trial court in-

structed the jury as a matter of New York law that the "men-

tal and emotional state of the witness" was relevant to their

decision.’

*“ This Court and others have also recognized the rele-

vance of emotional factors in assessing the reliability of an

identification. See, e.g., Manson v. Brathwaite, 432 U.S.

98, 111-12 (1977) (because of the "circumstances of emergency

or emotional stress" involved in a witness’s encounter with a

Criminal, "{t]jhe witness’ recollection of the stranger can be

distorted easily"); United States v. Smith, 563 F.2d 1361,

1363 (9th Cir. 1977), cert. denied, 434 U.S. 1021 (1978)

(emotions such as fright "might lessen the value of [the

witness’s] later selection of the accused"); Dickerson v.

Fogg, 526 F. Supp. 1299, 1307 (S.D.N.Y. 1981), aff'd 692

F.2d 238 (2d Cir. 1982) (that witness was "extremely shaken"

might have lowered degree of attention to robber’s face).

The inquiry into the witness’s mental or emotional state is,

indeed, no more than an inquiry into the witness’s ability to

perceive and to remember, and as such it is without doubt a

proper subject of cross-examination. See United States v.

Owens, 108 S. Ct. 838, 842 (1988) ("“attentiveness," "eye-

sight" and "memory" permissible subjects of cross-examina-

tion); Davis v. Alaska, 415 U.S. 308, 316 (1974) (cross-

examiner may "test the witness’ perceptions and memory").

=:

Petitioner further argues, however, that "the Confronta-

tion Clause does not prevent @2 trial judge from imposing

reasonable limits on cross-examination." Pet. at 10. This

principle is clearly true, of course, and the court of ap-

peals explicitly recognized it, stating that "trial judges

retain wide latitude, insofar as the Confrontation Clause is

concerned to impose reasonable limits on ... cross-examina-

uw

tion." Pet. App. at 6a, quoting Delaware v. Van Arsdall, 47

U.S. at 679. But the court of appeals correctly found that

the trial court’s rulings amounted to the “total preclusion

of cross-examination”" on an issue of "vital importance’ in

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the case, Pet. App. at 6a, and thus exceeded the permis

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13, that the preclusion of cross-examination was justified,

is frivolous. Petitioner argues that because defense coun-

sel’s questions were "vague," "potentially confusing’ or ‘'su-

perfluous,”" the trial court could properly preclude all of

them. Pet. at 12-13. Counsel’s questions were neither

"vague" nor "potentially confusing," however, but inquired

directly of the witness what his feelings were as he learned

he was being robbed, how he reacted to the demand for money,

whether he was scared, and whether he had previously been the

victim of a robbery. These were simple questions susceptible

U

of simple answers. Nor were these questions “superfluous.

in ©

That Small had admitted that he was surprised by the appear-

ance of a man before the robbery began did not make superflu-

ous further inquiry to determine what his subsequent emotions

or fears were as he first learned he was being robbed and as

the robber then threatened to "blow [his] fuckin’ head off."

The court of appeals was correct in finding that there was

"no evidentiary basis to completely preclude this line of

inquiry." Pet. App. at 6a.

Petitioner claims, however, that the Court cf Appeal’s

"ruling stands in opposition to every decision of this Court

on the subject of the Confrontation Clause and on the extent

of federal intervention on collateral review, and similarly

is in conflict with the other circuit courts." Pet. at 9

(emphasis supplied). But petitioner does not identify a

Single case decided by this Court with which the decision

below is in conflict. Nor does petitioner show the decision

below to be in conflict with the decision of any other cir-

cuit court of appeals. None of the cases cited by petition-

er, Pet. at 1l, n.4, involves limitations on cross-examina-

tion of the crucial eyewitness in a case resting solely on

eyewitness identification, and none of them conflicts with

the decision of the court of appeals below.

- Petitioner argues in the alternative that even if the

trial court’s rulings violated the Confrontation Clause, the

violation was harmless error. The court of appeals consid-

a 2 es

ered this question and correctly set out the legal standard

for determining whether such a confrontation violation is

harmless. Pet. App. at 6a-7a. To make such a determination,

a court must consider many factors, including:

the importance of the witness’ testimony

in the prosecution’s case, whether the

testimony was cumulative, the presence or

absence of evidence corroborating or

contradicting the testimony of the wit-

ness on material points, the extent of

cross-examination otherwise permitted,

and, of course, the overall strength of

the prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. at 684. Upon consideration

of the relevant factors among these, the court can find an

error harmless only if, “assuming that the damaging potential

of the cross-examination were fully realized, a reviewing

court might nonetheless say that the error was harmless

beyond a reasonable doubt." Id.

Here the error was plainly not harmless beyond a reason-

able doubt based upon the crucial importance of Small’s

identification, the absence of any real corroboretion for

Small’s identification, the overall weakness of the prosecu-

tion’s case, and the hung jury at Harper’s prior trial. As

the court of appeals noted, the case was one based solely on

eyewitness testimony, and Small gave the "key (and perhaps

the only) evidence that the jury considered in convicting

Harper." Pet. App. at 7a. Although Lester’s testimony

purported to corroborate that of Small’s, the jury would not

“oa

have been likely to rely on it, because Lester failed to

identify Harper as the gunman when given an admirab’e chance

to do so just three weeks after the crime. Pet. App. at 7a;

see Olden v. Kentucky, 109 S. Ct. at 484 (corroborating

testimony of witness Russell did not render error harmless

because it was "derivative" and had been "somewhat im-

pugned"). Thus, the prohibited cross-examination would have

attacked the crucial witness in the case concerning the cru-

cial, indeed the only, issue in the case -- the identifica-

tion of Harper as the robber -- an issue on which there was

but weak corroboration for the witness.

In addition, of course, the state’s case was "far from

overwhelming." Olden v. Kentucky, 109 S. Ct. 480, 484

(1988). Small’s identification had been made on the basis of

a thirty-second observation at dusk of a black man wearing

black clothing, sunglasses, and a black hat pulled down over

his hair. The lack of a substantial opportunity to observe

the criminal might alone have been grounds for finding rea-

sonable doubts of Harper’s guilt. In addition, however, when

Lester was by chance presented with a sterling opportunity

(untainted by any police identification procedures) to iden-

tify Harper as the man who robbed Small, he failed even to

suspect that Harper was the man. His explanation, that

Harper "looked different" than the robber, is perhaps the

best evidence that Harper was indeed innocent of this crime.

a SP ie

The weakness of the prosecution’s case is underlined by

the hung jury at Harper’s first trial. Not only was the jury

at that trial divided in its views, but it was divided eleven

to one in favor of acquitting Harper. Pet. App. at 10a. The

real doubts of real jurors who heard the case are a signifi-

cant factor in showing that a confrontation error was not

harmless. Cf. Olden v. Kentucky, 109 S. Ct. at 482, 484

(inconsistent jury verdicts show prosecution’s case was "far

from overwhelming").

Given the "crucial" nature of Small’s testimony on the

crucial issue in the case, the weakness of the corroboration

for his testimony, Lester’s testimony that when he first

viewed Harper, Harper "looked different" than the robber,

Small’s poor opportunity to view the robber, and the overall

weakness of the prosecution’s case, the error here was plain-

ly not harmless. See Olden v. Kentucky, 109 S. Ct. at 484

(on essentially these factors, confrontation error not harm-

less).

It does not alter this conclusion that defense counsel

stated in his summation that he was "sure" that Small was

"very much afraid" at the time of the crime. The trial court

explicitly instructed the jury that such arguments were not

evidence and that it was the jury’s sworn duty to decide the

case solely on the evidence admitted during the trial. As

the court of appeals noted, counsel’s argument did not render

« 28 «

the error harmless, for "as juries are admonished during

every trial, counsel’s arguments cannot substitute for actual

evidence." Pet. App. at 7a.

Petitioner argues, in addition, that the court of ap-

peals erred in failing to apply to the district court’s

factual findings concerning harmless error the clearly erro-

neous test of Rule 52(a), Fed. R. Civ. Pro. Petitioner did

not make this argument in the court below, and for this

reason alone, certiorari should be denied. Moreover, peti-

tioner has not shown that the court of appeals actually "set

aside" any "[f]Jactual finding" made by the district court.

Rule 52(a), Fed. R. Civ. Pro. Although petitioner lists a

number of what it characterizes as factual findings made by

the district court, see Pet. at 14, the court of appeals "set

aside" none of these. The court of appeals agreed with the

district court, for example, that defense counsel had been

allowed to argue to the jury that Small’s fear might have

affected his identification. It also agreed that the trial

court charged the jury to consider "the mental and emotional

state of the witness." Pet. App. at 7a. It nowhere disputed

the district court‘’s conclusions that Small had seen the

robber a moment before the robbery began or that Harper had

been allowed other cross-examination of Small. And it did

not deny that Lester corroborated Small; indeed it acknowl-

edged that like Small, Lester identified Harper as the rob-

ee

ber. Pet. App. at 7a. Because petitioner failed to raise

this issue below and has not shown that the court of appeals

"set aside" any factual finding of the district court, this

issue does not warrant the grant of a writ of certiorari.’

The court of appeals was not required to accord the same

significance to these undisputed facts that the district

court did, nor was it precluded from considering other facts

the district court ignored‘ or reaching a different legal

conclusion from that reached by the district court. The

ultimate decision whether a constitutional error is harmless

is not a question of fact, but "is one of federal law."

Rushen v. Spain, 464 U.S. 114, 120 (1983). Accordingly, the

> For these reasons, the court should deny certiorari

notwithstanding that this issue is before the Court in McCle-

skey v. Kemp, No. 89-7024. Petitioner has not shown that he

would be entitled to relief even if the outcome of McCleskey

were to be favorable to him.

* The district court’s analysis, upon which petitioner

essentially relies, was flawed primarily by its failure to

consider the most important factors relevant to harmless

error in this case. The district court gave no consideration

at all to the fundamental weakness of the prosecution’s case,

the crucial nature of Small’s identification testimony, the

vital importance of exploring the bases for Small’s identifi-

cation, Lester’s testimony that just three weeks after the

crime Harper did not look like the robber, or the prior hung

jury in the case. See Delaware v. Van Arsdall, 475 U.S. at

684 (factors to consider include "the importance of the

witness’ testimony in the prosecution’s case ... and, of

course, the overall strength of the prosecution’s case"); see

also Olden v. Kentucky, 109 S. Ct. at 484 (error not harmless

because witness’s testimony "crucial," corroboration for it

was weak, it was contradicted by other witnesses, and state’s

case was "far from overwhelming").

=

circuit courts of appeal that have considered the question

have quite uniformly determined that the question is entitled

to de novo review on appeal. Larson v. Tansy, 911 F.2d 392,

394 (10th Cir. 1990); Hall v. Wainwright, 805 F.2d 945, 947

(llth Cir. 1986), cert. denied, 484 U.S. 905 (1987); McKenzie

v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert.

denied, 488 U.S. 901 (1988); Holland v. Attorney General, 777

F.2d 150, 156 (3d Cir. 1985); see also Hanrahan v. Greer, 896

F.2d 241, 244 (7th Cir. 1990) (question of correct standard

of review open). On the facts found by the district court,

the Court of Appeals correctly concluded that the error here

was not harmless.

CONCLUSION

The petitition for a writ of certiorari should be de-

nied.

Dated: New York, New York

February 26, 1991

Respectfully submitted,

DAVID A. LEWIS

THE LEGAL AID SOCIETY

FEDERAL DEFENDER SERVICES UNIT

52 Duane Street, 10th Floor

New York, New York 10007

Tel. No.: (212) 285-2842

Attorney for Respondent HARPER.

— =

THE LEGAL AID SOCIETY

CRIMINAL APPEALS BUREAU e FEDERAL DEFENDER SERVICES UNIT

52 Duane Street - 10th Floor, New York, N.Y. 10007 (212) 285-2842

February 26, 1991

"FRA rMIIeER |

*% & \ ‘ ww

The Honorable William K. Suter 97 399)

Clerk FEB 27 199 |

Supreme Court of the United States (

Supreme Court Building SUPREME ( \

Washington, DC 20543

Re: KELLEY v. HARPER, 90-1130

Dear Mr. Suter:

Enclosed are ten copies of a brief in opposition to the

grant of a writ of certiorari on behalf of respondent Elmer

Harper, Jr., an application for leave to proceed in forma

pauperis, and a certificate of service.

Three copies of the brief in opposition and one of the

application for in forma pauperis relief have been served by

first-class mail on ROBERT T. JOHNSON, Discrict Attorney of

Bronx County, Counsel of Record for petitioner.

Very truly yours,

/

s—"

DAVID A. LEWIS

Associate Appellate Counsel

DAL/hcs

Encl.

cc: Robert T. Johnson

District Attorney

Bronx County

No. 90-1130

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

No. 90-1130

WALTER R. KELLY, Superintendent,

Attica Correctional Facility,

Petitioner,

Ve

ELMER HARPER, JR.,

Respondent.

CERTIFICATE OF SERVICE

Counsel hereby certifies that three copies of the within

brief in opposition and one copy of the application for leave

to proceed in forma pauperis have been served by first class

mail on Robert T. Johnson, District Attorney, Bronx County,

Counsel of Record for petitioner.

Dated: New York, New York f

February 26, 1991

eee, eo ”

DAVID A. LEWIS

Pe

i-

THE LEGAL AID SOCIETY

FEDERAL DEFENDER SERVICES UNIT

52 Duane Street, 10th Floor

New York, New York 10007

Tel. No.: (212) 285-2842

Attorney for Petitioner Harper.