Respondents Brief — McCarthy v. Bruno

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ORIGINAL

THE SUPREME COURT

OF THE

UNITED STATES

RECEIVED

> JUN 8 1984

OFFICE OF THe

SUPREME cour nt

OCTOBER TERM, 1983

NO. 83-1571

DANIEL J. McCARTHY, Director

California Department of Corrections,

and PAUL J. MORRIS, Warden,

California State Prison at Folsom,

Petitioners,

v.

DANIEL L. BRUNO,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

FRANK O. BELL, JR.

State Public Defender

CLIFTON R. JEFFERS

Chief Assistant,

State Public Defender

MICHAEL S. McCORMICK

Acting Deputy State Public Defender

1390 Market Street, Suite 425

San Francisco, CA 94102

Telephone: (415) 557-1600

Attorneys for Appellant

TOPICAL INDEX

INTRODUCTION

STATEMENT OF THE FACTS AT TRIAL

SUMMARY OF ARGUMENT

ARGUMENT

CONCLUSION

12

TABLE OF AUTHORITIES CITED

Cases

Bradford v. Stone

(9th Cir. 1979) 594 F.2d 1994

Chapman v. California

(1967) 386 U.S. 18

Harrington v. California

(1965) 395 U.S. }50

Hinman v. McCarthy

(9th Cir. 1982) 676 F.2d 343

Jenkins v. Anderson

(1980) 447 U.S. 231

Marshall v. Lonberger

(1983) |S

[74 L.Ed.2d 646, 657. 103 S.Ct. 843]

People v. Ozene

(1972) 27 Cal.App.3a 905, 914,

(104 Cal. Retr. 170)

Rushen v. Spain

(1983) uss.

[78 L.Ed.2d 267, 274, 104 S.Ct. 453]

Sumner v. Mata

(1981) 449 U.S. 539

Sumner v. Mata

(1962). 485 0.8. °° 591

United States v. Hasting

(1983) U.S.

{76 L.Ed.2d 96, 106, 103 S.Ct. 1974}

United States v. Valle-Valdez

(9th Cig. 1977) $54 F.2d 911

Statute

Cal. Evid. Code

§ 1150(a)

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Pages

10

10

10,11

10

10

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IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

NO. 84-1571

ANIEL J. tMcCARTKY, Director

California Department of Corrections,

and PAUL ¢. MORRIS, Waréen,

California State Prison at Folsom,

Petitioners,

¥.

DANIEL L. BRUNO,

Respondent.

BRIE IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

INTRODUCTION

For purposes of this brief, respondent adopts

the recitations in the petition for writ of certiorari res-

pecting the opinion below, the jurisciction of this Court,

the constitutional and statutory provisions involved, the

statement of the case, and the abbreviations designating

the record.

STATEMENT OF THE FACTS AT TRIAL

The opinion of the California Court of Appeal con-

tains a detailed statement of facts (Petition for Certiorari,

Avpendix C, pp. 2-19). For purposes of this brief respondent

adopts that statement except to the extent, as demonstrated

1.

below, that it omits some facts and misstates others which

strengtneneda the defense vm

The opinion implies that the only witnesses called

by the defense to impeach William Gray were Walter Easley

and Steve Farros (Appendix C, pp. 10-11). However, the de-

fense also called Dennis Holmes, one of the Milpitas police

officers to whom Karin King reported the conversation between

Gray and respondent (RT 387-390; see also RT 352-57.) Officer

Holmes got the impression from Ms. King that Gray had told

her that he had been kidnapped at gunpoint by a Latin male, i.e.

respondent, and a Latin female, i.e. Lupe. (RT 389-390, 396,

399.) Holmes was not made aware that the suspects were friends

of Gray. (RT 397-398.) Thus, Holmes’ testimony contradicted

Gray's testimony that Gray was friends with respondent and

Lupe Velasguez and that he had offered them the ride to San

Jose. (RT 98-99, s04-208.1""

The opinion also implies that the only reason that

respondent and Lupe fled was to avoid arrest by the police,

whom they assumed would not believe them (Appendix C, pp.

14-15). However, resvondent testified that he was also eluding

the killers of Arnie Lualhati. (RT 612; see Appendix C,

p. OL, fn. 2.)

as Each of the facts recited below was stated in the

opening brief (pp. 10-18) and in the petition for rehearing

(pp. 2-3) filed in the California Court of Appeal, the petition

for hearing (pp. 2-3) filed in the California Supreme Court

and in the petition for writ of habeas corpus (pp. 39-41)

filed in the United States District Court. (ER, Tabs 1, C.)

es The opinion states that Steve Farros saw Gray

"almost daily between 1965 to 1968". This apparently is a

typographical error. Farros testified that he saw Gray on

almost a daily basis while he was living with Gray's sister,

which was from 1965 to April 1978. (RT 415-417.)

2.

The ovinion also does not mention the defense's

affirmative denial or explanation of some of the physical

evidence against petitioner. Neither respondent nor Lupe

recognized the rifle found in the Cougar. (RT 594, 551.)

Respondent did not recognize the rifle case found in his home,

but acknowledged the possibility that it was left behind by

the intruders on New Year's Eve and then inadvertently placed

in a closet Dy him when he and Lupe cleaned up afterward. (RT

635.) The sock used to gag Arnie Lualhati and the sock tied

around the rifle case both are black and therefore appear to

match, but the designs inside them do not match. (RT 595.)

Finally the opinion implies that the reason Mrs.

Lupe Roldan contacted the defense attorneys was that her

daughter Lupe Velasquez was upset after the interview

(Appendix C, p. 18). However Mrs. Roldan testified that she

called the defense actorneys because she was concerned that

her signed statement indicated her daughter as the source of

her information. (RT 668-669, aes”

SUMMARY OF ARGUMENT

A determination by a state trial or appellate

court that prosecutorial misconduct was cured by admonitions

and instructions to the jury is a conclusion of law and there-

fore not to be presumed correct by a federal court on habeas

corpus review under 28 USC 2254(d).

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3. Mrs. Roldan also testified that she did not think

of Ron Leonard when asked about Ron Leonardo because of the

difference in pronunciation between the Anglicized and Spanisn

versions of his last name. (RT 672-675.)

3.

ARCUMENT

During closing argument at the state ccurt trial in

the instant case, the prosecutor attacked the integrity of

defense counsel in two ways. First, he accused counsel of

tampering with witness Mrs. Lupe Roldan. The state trial

court overruled the objection to the attack. (Appendix C,

pp. 37-39.) The state Court of Appeal found the attack to

be without basis in fact and thus misconduct. (Appendix C,

p. 39.) The state appellate court did not conclude that the

miscondu7t was cured by any admonition or instruction to the

jury. Rather, it simply determined that the unwarranted

attack was harmless beyond a reasonable doubt. (Appendix C,

pp. 42-43.) It offered no specific reasons for that conclusion.

The second attack was an accusation that defense

counsel fabricated the defense for profit. The state trial

court sustained an objection and admonished the jury to dis-

regard the remark. (Apvendix C, pp. 39-40.) The next

morning, counsel for respondent moved for a mistrial on the

ground that the harm from the misconduct was incurable.

(RT jie The trial court took no evidence on the

motion, but rather denied it on the ground "the comments

on fees, et cetera, .. . in [the court's] judgment

resulted in no prejudice." (RT 754.) Later that morning, the

court read the jury a set of formula instructions. (RT 762-

787.) Included among them was a general instruction not to

treat statements of counsel as evidence; the instruction did

not refer to any particular statement of either counsel. (RT

4. In relevant part, counsel for respondent argued for

a mistrial as follows: “" .. . because of his continual...

accusation of me contriving a defense, I relieve that a mistrial

is the only cure, that is, there is no way that the damage done

by such an argument can ever be effaced." (RT 754.)

4.

government has not established that these

comments are harmless beyond a reasonable

doubt." (Appendix B, p. 29.)

Earlier, the district court stated fron:

"a review of the record . .. the case

was a close one. Petitioner was not

identified by either of the witnesses to the

shooting. The defense impeached the cred-

ibility of the chief government witness

linking petitioner to the crime, Willian

Gray, as well as having an explanation

for most of the government's circumstantial

evidence." (Appendix B, p. 19.)

The Ninth Circuit Court of Appeals began its

opinion by noting that respondent's conviction had been

“affirmed by the California courts." (Appendix A, p. 2.)

It expressly agreed with the district court that both

attacks on defense counsel "were improper and not harmless

beyond a reasonable doubt." (Appendix A, pp. 2-3.) The

Court of Appeals did make passing reference to the state

trial record. (Appendix A, p. 5.) And, its conclusion

that the improper comments were calculated to impute guilt

to respondent echoed similar determinations of the California

6/

Court of Appeal (Appendix C, p. 40) and the district court

(Appendix B, p. 28).

In sum, the state trial court concluded the

second, but not the first, attack on the integrity of defense

counsel was misconduct. Thereafter, the California Court of

Appeal, the United States District Court, and the Ninth Circuit

6. The California Court of Appeal held:

"There can be no doubt that the prosecutor's

insinuation that defense counsel was participatir

in deception for profit was misconduct. Appendix

C, p. 40; emphasis added.) In context, the person witn

whom defense counsel was being accused of conspiracy

was obviously his client.

6.

Court of Appeals each independently determined that both

attacks were misconduct. The only disagreement among the

reviewing courts has been about the prejudice from the errors.

Petitioners do not have the temerity to argue to

this court that the prosecutor was justified in his vicious

attacks on defense counsel. Rather, they argue now for the

first time that 28 U.S.C. 2254(d) required the federal courts

to presume the correctness of the state appellate court rulings

that some of the misconduct was cured by admonitions and

instructions to the jury.

On its face, 28 U.S.C. 2254(d) accords a presumption

of correctness of state court findings only to "the merits

of a factual issue." Thus, the statute contemplates deference

to the state court only when the federal court has "any dis-

agreement as to the facts" or concludes that the state court

"factual determinations were not supported by the record."

(Sumner v. Mata (1982) 455 U.S. 591, 597; Sumner v. Mata

(1981) 449 U.S. 539, 549.)

The statute does not govern a pure question of

law or a mixed question of law and fact. (Marshall v. Lonberger

(1983) U.S. [74 L.Ed.2d 646, 657, 103 S.Ct. 843);

Sumner v. Mata, supra, 455 U.S. at p. 597.) Whether federal

constitutional error is harmless beyond a reasonable doubt

is a question of law to which the presumption of correctness

does not apply. (Rushen v. Spain (1983) _ U.S.

[78 L.Ed.2d 267, 274, 104 S.Ct. 453]; accord, Hinman v. ‘ticCarthy

(9th Cir. 1982) 676 F.2d 343, 359, fn. 3.)

In California, as in most jurisdictions, a juror

may not testify concerning the effect of an alleged error in

influencing him to assent or to dissent from the verdict or

concerning the mental processes by which the verdict was

7.

7/

determined. (Cal. Evidence Code § 1150(a); e.g., People

v. Ozene (1972 27 Cal.App.3d 905, 914 [104 Cal.Rptr. 170]

[juror may not testify to coercive effect of allegedly erron-

eous jury instruction]; see Rushen v. Spain, supra, 78 L.Ed.2d

at p. 274, fn. 5.)

Notwithstanding these authorities, petitioners

complain that neither federal court in the instant case gave

any deference to the state appellate court's conclusion that

admonitions by the trial judge obviated any harm from the

prosecutor's statements (i.e., the charae of fabrication for

profit). (Petition for Certiorari, p. 29.) In accordance

with California law, however, no evidentiary hearing was

held on the subjective effect of the misconduct or the

admonitions, given that they were directly related to the

specific issues of credibility before the jury. (Contrast

Rusnen v. Spain, supra.) Thus, the conclusion that the error

was cured required no findings of fact. Under state statute,

it was a question of law. Accordingly, that conclusion was

no different than a ruling that the error was harmless. Indeed,

petitioners themselves seem to equate the two in complaining

7. California Evidence Code section 1150(a) provides:

“Upon an inquiry as to the validity of a

verdict, any otherwise admissible evidence

may be received as to statements made, or

conduct, conditions, or events occurring,

either within or without the jury room, of such

a character as is likely to have influenced the

verdict improperly. No evidence is admissible

to show the effect of such statement, conduct,

condition, or event upon a juror either in

influencing him to assent to or dissent from

the verdict or concerning the mental process

by which it was determined.” (Emphasis added.)

that “a federal court should not be allowed to simply

reject cut of hand the state court's finding of harmless

error." (Petition for Certiorari, p. 27.)

Upon analysis, the question petitioners present

already has been resolved by this court against them. The

question concerns only one of the two attacks on the integrity

of defense counsel. Petitioners give this court no reason

to believe that the Ninth Circuit's disposition would be any

different even if the question were resolved in their favor.

And, the state court findings to which petitioners would now

have the federal courts defer are conclusory in form. No

use“ul purpose would be served by granting the petition.

Petitioner's other complaints in passing about

the federal courts in this case are refuted on the face of

their decisions.

Neither court rejected "out of hand" the state

appellate court's determination that admonitions obviated

any harm from the charge of fabricating the defense (Petition

for Certiorari, p. 29). As noted above, the district court

reasoned that the error was fundamental in nature, and

Struck at the core of the defense in a close case. (Appendix

B, pp. 28-29, 19.) The Ninth Circuit expressed its agreement

with the district court and stressed the fundamental nature

of the error. (Appendix A, pp. 2-9.)

Neither federal court made a factual finding at

odds with that of a state court. Thus, neither was required

under 28 U.S C. 2254(d) to state it was deferring to state

findings of fact.

Both courts expressly determined that the mis-

conduct was not harmless beyond a reasonable doubt. Thus,

neither court relied on non-existent Supervisory powers

Over state courts to grant habeas corpus relief.

Both courts based their finding of orejudicial error

on a review of the whole record. The district court expressly

Stated that it had. (Appendix B, p. 18.) The Ninth Circuit

cited Chapman v. California (1967) 386 U.S. 18 and United

States v. Valle-Valdez (9th Cir. 1977) 554 F.24 911, 915, fn.

5-8. Since Chapman this Court has made clear that a court

reviewing constitutional error has the duty to consider the

record as a whole to determine whether it is harmless beyond

a reasonable doubt. (See United States v. Hasting (1983)

U.S. __—__—s« (76 «=LLEd.2d 96, 106, 103 S.Ct. 1974), citing

Harrington v. California (1969) 395 U.S. 250.) The Ninth

Circuit presunebly was aware of that duty anc faithfully

performed it. (See Sumner v. Mata, Supra, 449 U.S. at p. 549.)

Its citation to Valle-Valdez reinforces that conclusion, since

8. There is nothing distressing about the Ninth Circuit's

criticism of the comments in the prosecutor's opening argument.

Those comments had been assigned as misconduct in the opening

brief (p. filed in the Court of Appeal (ER; Tab C.) That

court reached the merits of the argument despite the lack of

the objection. (Appendix C, pp. 37-39.) There was thus no

ban to their consideration on federal habeas corpus review.

(Bradford v. Stone (9th Cir. 1979) 594 F.2d 1994, 1996, fn. 2.)

Petitioners did not raise any objection to assignment of those

comments as misconduct in the petition for writ of habeas

corpus. (ER, Tab 1, p. 34; ER, Tab 4.) They cannot now be

heard to make such an objection. (Jenkins v. Anderson

(1980) 447 U.S. 231, 234, fn. 1.) In any event, the comments

in the opening argument place in context those made in the

closing argument to which an objection was made.

10.

CONCLUSION

The prosecutor at respondent's trial resorted to

flagrant misconduct in order to obtain a conviction. The

state appellate court affirmed the conviction without articu-

lating reasons why the misconduct was harmless beyond a

reasonable doubt. Both federal courts, on the other hand,

articulated sound reasons for concluding the misconduct was

prejudicial.

For the first time in this court, petitioners

argue that the state court's determination of harmless error

was really a finding of fact, rather than law, to which the

federal courts should have deferred. The petition for writ

of certiorari thus presents no real issue for this Court

to resolve. The affirmance of the order granting habeas

corpus relief should remain undisturbed.

DATED: June 7, 1984

Respectfully submitted,

FRANK O. BELL, JR.

State Public Defender

i ————

State Public Defender

MICHAEL S. McCORMICK

MSM:j1lg Acting Deputy State Public Defender

Attorneys fer Appellant

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