Reply Brief — Delaware v. Van Arsdall

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) JAN 10 1986

JOSEPH F. SPANIOL, JR.

No. 84-1279

panman.e 4

In The

Supreme Court of the United States

October Term, 1984

STATE OF DELAWARE,

Petitioner,

v.

ROBERT E. VAN ARSDALL,

Respondent.

—O

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF DELAWARE

ray

Vv

REPLY BRIEF FOR PETITIONER

4)

Vv

Cnarues M. Oserty, III

Attorney General of the

State of Delaware

Ricwuarp E. Farrpanks, JR.

Chief of Appeals Division

Gary A. Myers

Deputy Attorney General

Counsel of Record

LoreN C. Meyers

Deputy Attorney General

Department of Justice

1 South Race Street

P.O. Box 508

Georgetown, DE 19947

(302) 856-5353

January 10, 1986

PETITION FOR WRIT OF CERTIORARI FILED FEBRUARY 7, 1985

CERTIORARI GRANTED JULY 2, 1985

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

TABLE OF CONTENTS

Page

Argument:

A. The automatic reversal rule adopted by the

court below is not supported by either con-

stitutional policy or prior precedent. .................. 1

B. Fleetwood’s testimony did not materially

contribute to the jury’s guilty verdicts. ............. 6

C. The judgment below was based on federal,

not independent state law, grounds. ...................... 8

Conclusion. .................. a) 11

il

TABLE OF AUTHORITIES

CasEs _ Page

Alford v. United States, 282 U.S. 687 (1931) ...... ssinatehal 4,5

Brookhart v. Janis, 384 U.S. 1 (1966) 0D

Caldwell v. Mississippi, 105 S.Ct. 2633 (1985) 0. 9

California v. Carney, 105 S.Ct. 2066 (1985) 0. 10

California v. Green, 399 U.S. 149 (1970) 0D

Chapman v. California, 386 U.S. 18 (1967) 00. 3, 8,9

Connecticut v. Johnson, 460 U.S. 73 (1983) 2000. 9

Davis v. Alaska, 415 U.S. 308 (1974) 2 5, 9.11

Delaware v. Prouse, 440 U.S. 648 (1979) oo. 10

Gideon v. Waimwright, 372 U.S. 335 (1963) 0. 3

Harrington v. California, 395 U.S. 250 (1969) 0. 5,8

Michigan v. Long, 463 U.S. 1032 (1983) 20000000. = 10

Milton v. Wainwright, 407 U.S. 371 (1972) 0. S88

Moore v. Illimots, 434 U.S. 220 (1977) pancninees 3

Ohio v. Johnson, 104 S.Ct. 2536 (1984) 2000... 10

Oregon v. Hass, 420 U.S. 714 (1975) 0. oa 9

Rushen v. Spain, 464 U.S. 114 (1983) 0. 3

Schneble v. Florida, 405 U.S. 427 (1972) 00. pone 8

Umited States v. Bagley, 105 S.Ct. 3375 (1985) 0. 3

United States v. Cardillo, 316 F.2d 606 (2nd Cir.),

cert. demted, 375 U.S. S22 (19GB) nance cccceceecseecceseeene 5

United States v. Monks, 774 F.2d 945 (9th Cir. 1985) .. 2

Van Arsdall v. State, 486 A.2d 1 (Del. 1984) 000... 11

Ward v. State, 395 A.2d 367 (Del. 1978) 0000 10

Weber v. State, 457 A.2d 674 (Del. 1983) dissed 10

ili

TABLE OF AUTHORITIES—Continued

Page

CoNSsTITUTIONAL Provisions, RULES, AND TREATISES

Del. Const. Art. I, § 7 (1897) . 9

Del. Super. Ct. Crim. R. 52(a) ....... . 10

E. Cleary, McCormick on Evidence (3rd ed. 1984) ......... 5

No. 84-1279

sy.

Vw

In The

Supreme Court of the United States

October Term, 1984

ray

Vv

STATE OF DELAWARE,

Petitioner,

v.

ROBERT E. VAN ARSDALL,

Respondent.

fay

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF DELAWARE

‘a=

REPLY BRIEF FOR PETITIONER

ARGUMENT

A. The automatic reversal rule adopted by the court

court below is not supported by either constitu-

tional policy or prior precedent.

Regardless of where one chooses to place the joint be-

tween error and remedy, the Confrontation Clause does

not compel an appellate court to reverse a defendant’s

conviction for an erroneous preclusion of impeachment

cross-examination unless, in a two-step inquiry, the court

concludes: (1) that there is a reasonable likelihood that

the precluded impeachment could have affected the jury’s

evaluation of the witness’ credibility; and (2) if so, that

there is a reasonable possibility that the not fully im-

peached testimony of the witness could have contributed

to the guilty verdict. Pet. Br. at 29. In contrast, the court

1

bo

below held that the Sixth Amendment not only enjoins an

appellate court from undertaking the second step, but di-

rects reversal without consideration of the prejudicial ef-

fect of the error. The issue in this case is which of these

conflicting views accurately reflects the command of the

Confrontation Clause.'

Except for arguing that the considerable harshness

of the remedy adopted below is mitigated to some degree

by its purportedly narrow applicability (Resp. Br. at 20-

25), Van Arsdall offers little foundation, in either policy

or precedent, to support the Delaware court’s automatic

reversal rule.2 First, it is hard to discern any policy ra-

tionale for the rule. As in this ease, if the error involves

a restriction or limitation on the cross-examination of an

in-court witness, the core value of the Confrontation Clause

—a prohibition against prosecutions based on ex parte

affidavits, procured from anonymous or available, but ab-

sent, accusers—* has not been seriously implicated. Ad-

mittedly, a trial court’s procedural ruling that precludes

all eross-examination of every prosecution witness, see,

e.g., Brookhart v. Janis, 384 U.S. 1 (1966), may call forth

an automatic reversal rule either because such a trial close-

1Although the Ninth Circuit had previously expressed some

support for a rule of automatic reversal (Brief for the United

States as Amicus at 14 n.15), it has recently found a Confronta-

tion Clause cross-examination error harmless, utilizing an an-

alysis mirroring the appropriate two-level inquiry. United States

v. Monks, 774 F.2d 945, 953-54 (9th Cir. 1985).

2Indeed, he concedes that the rule is overly broad since he

agrees that there are situations where a trial court's total pro-

hibition of a particular line of impeachment evidence may be

considered harmless. Resp. Br. at 28, 31.

3California v. Green, 399 U.S. 149, 156-57 (1970); id. at 179

(Harlan, J., concurring).

3

ly parallels prosecution by ex parte affidavit or because the

magnitude of the error makes its effect “inherently inde-

terminate.” Chapman v. California, 386 U.S. 18, 52 n.7

(1967) (Harlan, J., dissenting). Those concerns simply are

not present when, as here, the error involves not a struc-

tural a'teration of the trial process, but a mistaken restrie-

tion on the extent of cross-examination of one otherwise

cross-examined witness. In that case, the error is evidenti-

ary, not structural; its effect can be isolated and traced. It

is that type of error—relating to how evidence was pre-

sented to the fact-finder—that the courts have traditionally

found amenable to case specific analysis for harmlessness

or prejudicial impact.* No policy reason supports the Dela-

ware court’s conclusion that the federal constitution man-

dates reversal jor an isolated evidentiary error.°

‘This dichotomy is reflected in the decisions of this Court

identifying the appropriate remedy for errors involving the right

to counsel. Where the government has committed the struc-

tural error of failing to provide counsel at trial, automatic re-

versal is appropriate. Chapman, 386 U.S. at 23 & n.8 (citing

Gideon v. Wainwright, 372 U.S. 335 (1963)). However, where

the error manifests itself in the admission of evidence pro-

cured by the prosecution, prior to trial in the absence of

constitutionally required counsel, the evidentiary error has

been held subject to case-specific scrutiny for harmlessness.

See, e.g., Moore v. Illinois, 434 U.S. 220, 222 (1977); Milton v.

Wainwright, 407 U.S. 371, 372 (1972). See generally Rushen v.

Spain, 464 U.S. 114, 128 n.8 (1983) (Stevens, J., concurring) (rec-

ognizing structural/evidentiary distinction in determining ap-

propriate remedy for constitutional error).

‘Respondents also suggest that the automatic reversal rule

is mandated because palin courts are functionally incapable

of meaningfully measuring the extent and impact of excluded

impeachment evidence. Resp. Br. at 31. But this Court has

expressly rejected such a suggestion, United States v. Bagley,

105 S.Ct. 3375 (1985), and even the court below refused to em-

brace it. See Pet. App. A-6 (if sufficient cross-examination per-

mitted, appellate court must determine the harmlessness of any

oo ig impeachment evidence which the trial court ex-

cluded).

+

Moreover, Van Arsdall’s efforts to pull support for

the lower court’s rule from the precedents of this Court

are unavailing. Initially, this Court’s decision in Alford v.

United States, 282 U.S. 687 (1931), relied upon by the Re-

spondent (Resp. Br. at 21-22), is consistent with the two-

step inquiry Petitioner believes the Confrontation Clause

requires before a conviction may be reversed. In Alford,

the trial court had abruptly precluded any cross-examina-

tion concerning a witness’ address and business and had

refused to alter its ruling, even after the defendant prof-

fered that the purpose of the inquiry was to suggest bias

by showing that the witness was being held in federal cus-

tody. When this Court concluded that the trial court erred

when it “eut off in limine all inquiry on a subject to which

the defense was entitled to a reasonable cross-examination,”

id. at 694, it did no more than rule that given the rudi-

mentary nature of the inquiry and because the trial court’s

ruling had prevented the development of a record, it

would presume that there was a reasonable likelihood that

the excluded impeachment would have affected the jury’s

assessment of the witness’ credibility.®

But this Court’s ultimate conclusion that the error

was prejudicial, so as to mandate reversal, came only after

it performed the other inquiry of assaying the material

significance of the witness’ direct, and not fully impeached,

*Because the heart of this dispute centers on whether the

Delaware court was correct in its conclusion that the Confron-

tation Clause prohibits any inquiry into the harmlessness of the

witness’ unimpeached direct testimony, this Court need not

decide whether this same presumption would be applied in

Respondent's case, where the trial judge, out of the presence of

the jury, allowed the defense to explore the subject and develop

a record for appellate review.

testimony. 7d. at 688, 692 (witness gave “damaging testi-

mony with respect to various transactions of the accused”

including “uncorroborated conversations of the defendant

of a damaging character”). Alford does not support tlie

action of the court below.

Nor, as Respondent urges, can Farrington v. Cali-

fornia, 395 U.S. 250 (1969) be so easily dispatched on the

basis that it involved the erroneous admission of testimony

while cross-examination errors, as in Davis v. ‘aska, 415

U.S. 308 (1974) and here, involve the exclusion of evidence.

Resp. Br. at 27-30. In both situations, the constitutional

violation is identical: a witness offering testimony fav-

orable to the prosecution has been rendered unavailable

for cross-examination. In Harrington, the unavailability

was caused by the prosecutor’s judicially sanctioned deci-

sion to join, in the interest of judicial economy, the prose-

cution of co-defendants; in Davis and here, the unavail-

ability was caused by the trial judge’s decision sustaining

an evidentiary objection lodged by the prosecutor. In both

eases, the result of the unavailability is the same: the

trier of fact was exposed te evidence from a witness where

the defendant has not been able to show its potential un-

reliability.’ In either ease, if that evidence, erroneously

immunized from challenge, played no significant role in

7Harrington’s focus on the impact of the witness’ unim-

peached testimony was nothing more than an application of the

historical procedural principle that if further cross-examination

of an in-court witness is precluded by his death, incapacity, or

assertion of a valid testimonial privilege, the appropriate pro-

cedure is to strike his direct testimony. United States v. Cardillo,

316 F.2d 606, 613 (2nd Cir.), cert. denied, 375 U.S. 822 (1963).

See generally E. Cleary, McCormick on Evidence §19 at 48

(3rd ed. 1984).

6

the jury’s determination of guilt, the appellate court is

not compelled to reverse.

B. Fleetwood’s testimony did not materially con-

tribute to the jury’s guilty verdicis.

Thongh not denying that almost every detail observed

by Fleetwood during his momentary glimpse into Pre-

gent’s apartment dovetailed with his own recitation of the

events prior to midnight (see Pet. Br. at App. 1-2), Van

Arsdall argues that Fleetwood’s testimony was signifi-

cant. According to him, the prosecutor used Fleetwood’s

testimony during his cross-examination of Van Arsdal!

to suggest that Van Arsdall’s appearance in Fleetwood’s

apartment after the murder was for the purpose of killing

a witness who had seen him in Pregent’s apartment prior

to the murder. Resp. Br. at 4-5 & n.8. Then, the prosecu-

tor supposedly offered to the jury that inference to rebut

the defense argument that Van Arsdall’s decision to go

to Fleetwood’s apartment, instead of fleeing from the

scene of the crime, showed his innocence. Resp. Br. at

16-17, 44-45. Thus, the argument seems to run, even if the

Delaware court wrongly applied a remedy of automatic

reversal, this Court should affirm the decision because

the restriction on cross-examination was harmful. The

record makes his theory a mirage.

During his cross-examination of the respondent, the

prosecutor never referred to Fleetwood’s testimony.® Tr.

8Fleetwood had testified that his momentary and limited

observation of Van Arsdall, Pregent, and the victim occurred

when he, without any exchange of conversation, merely poked

his head into Pregent’s open doorway. Tr. 1149-52 (Fleetwood)

a 82-85). He never testified that anyone in the apartment saw

im.

7

X70-89 (Van Arsdall). When he asked Van Arsdall why he

went across the hall to Fleetwood’s apartment, that inquiry

was precipitated, not by any recall of Fleetwood’s testi-

mony, but by Van Arsdall’s own response a few seconds

earlier that ‘‘[a]ll I know, Fleetwood was across there.’’

Tr. X78-79 (Van Arsdall) (JA166-67). During the entire

cross-examination, the prosecutor never mentioned that

Van Arsdall had sought to kill Fleetwood because he was

a witness. If anything, his short inquiry of Van Arsdall,

particularly as he pressed him concerning whether others

were in Fleetwood’s apartment, Tr. X78 (Van Arsdall)

(JA166-67), was intended to suggest not that Van Arsdall

sought to silence Fleetwood, but that he may have been on

a homicidal rampage, bent on killing all the occupants.’

In addition, the prosecutor never offered to the jury

an explanation of Van Arsdall’s conduct based on Fleet-

wood’s testimony. When in rebuttal summation, he re-

sponded to Van Arsdall’s argument that the post-murder

conduct suggested innocence, the prosecutor never men-

tioned Fleetwood or his testimony. Moreover, he never in-

timated that Van Arsdall’s purpose was to kill a potential

eyewitness. Rather, his only rejoinder was that, like the

killing of Epps, Van Arsdall’s subsequent actions were

senseless and beyond explanation. Tr. XI115-16 (Reed)

(JA 201-02).

Distilled to its essence, Van Arsdall’s proffer of

prejudice is nothing more than speculation that, unaided

%ronically, while stating that he knew Fleetwood was in his

apartment, based on an earlier visit to the party, Van Arsdall

during cross-examination denied that he was aware of the

presence of others. However, during his direct examination,

he had testified that he saw numerous other people there dur-

ing his early evening visit. Tr. X33-35 (Van Arsdall).

8

by anything voiced by the prosecutor, the jury may have

forged and utilized the tenuous inference he has now con-

structed from a single question. But the federal harmless

error standard announced in Chapman v. California, 386

U.S. 18, 24 (1967), dictates reversal only where there is

a reasonable possibility, not just any possibility, that the

error affected the judgment. Chapman’s test is not

whether one can imagine any scenario where the error

may have affected a juror; rather, harmlessness must be

judged by what seems to be the probable impact of the

error on the minds of the average jury. Harrington v.

California, 395 U.S. 250, 254 (1969). See also Schneble v.

Florida, 405 U.S. 427, 432 (1972). Van Arsdall’s theory

does not meet that standard.

Given the nature of Van Arsdall’s defense and his

own testimonial concessions, Fleetwood’s testimony quick-

ly faded into insignificance. Pet. Br. at 7-15, 35-39. Unless

this Court is now willing to require harmlessness to be

shown to a degree of certainty not required of even the

trier of fact, Respondent’s attempts, however valiant, to

counter that conclusion are unavailing.’®

C. The judgment below was based on federal, not in-

dependent state law grounds.

Resurrecting an argument relegated to a footnote in

his brief opposing the petition for writ of certiorari, Resp.

1%n this case, Respondent suggests that given the unre-

solved question about the propriety of excluding evidence con-

cerning the Blake homicide, any finding of harmlessness may

only be advisory. Resp. Br. at 10 n.17. However, Fleetwood’s

testimony was insignificant because it offered nothing beyond

what Van Arsdall himself had conceded. That conclusion would

survive even if the court below on remand would find that the

wena about the Blake homicide was also erroneously pro-

ibited.

9

Br. Opp. at 18 n. 23, Van Arsdall asserts that this Court

should dismiss this case because the automatic reversal

rule is based on an independent state law ground. He

argues that it was adopted, not as an interpretation of

federal constitutional law under Davis v. Alaska, 415 U.S.

308 (1974), but as a prophylactic device, announced under

the state appellate court’s ‘‘superintending’’ authority, to

coerce supposedly unmindful and intransigent trial judges

to permit liberal cross-examination. Resp. Br. at 37-44."

Even if one accepts as plausible the conclusion that

three appellate reversals over a five year period would

trigger such a response, the language of the opinion below

belies any finding that the court was acting on such an

independent state law ground.” Though sprinkled liberal-

ly with references to the Confrontation Clause and Davis,

the opinion is devoid of any clear statement indicating that

the court was foreclosing federal review by looking to

Delaware law as the basis for its decision. Caldwell v. Mis-

Respondent also seems to suggest the decision is unre-

viewable because the appropriate remedy for federal consti-

tutional error occurring during a state criminal trial is ‘‘inher-

ently” a question of state, rather than federal, law. Resp. Br. at

43. In Chapman v. California, 386 U.S. 18, 20-21 (1967), this

Court rejected that hypothesis, recognizing that the duty to

decide whether a right guaranteed by the federal constitution

has been denied necessarily encompasses the responsibility

to determine, as a matter of federal law, the consequences which

flow from a denial of that right. See also Connecticut v. John-

son, 460 U.S. 73, 90-91 (1983) (Powell, J., dissenting); Oregon

v. Hass, 420 U.S. 714, 719 & n.4 (1975).

2While the decision below refers to the parallel state

Confrontation guarantee, Del. Const. Art. |, § 7 (1897) (Pet. App.

at A-4), Van Arsdall does not contend that the automatic re-

versal rule was seen by the Delaware court as a remedy man-

dated by the state constitution. Indeed, that court has construed

(Continued on following page)

10

sissippt, 105 S.Ct. 2633, 2638-39 (1985); Caltfornia v. Car-

ney, 105 S.Ct. 2066, 2068 n.1 (1985); Ohio v. Johnson, 104

S.Ct. 2536, 2540 n.7 (1984); Michigan v. Long, 463 U.S.

1032, 1040-41 (1983). Indeed, state law is barely mentioned.

One searches in vain for a single reference to either the

state harmless error rule, Del. Super. Ct. Crim. R. 52(a),

or the invocation of any ‘‘superintending’’ authority. Not

a single word chastises the trial judge personally, or the

trial courts generally, for supposed continued errors which

in Van Arsdall’s view compelled the state court to impose

the drastic remedy of automatic reversal. Instead, after

emphasizing that ‘‘ ‘the standards used to determine if

there is a violation of the confrontation clause in the first

instance are similar, if not identical, to those used in de-

ciding if the error was harmless,’’’ Pet. App. at A-6

(quoting Weber v. State, 457 A.2d 674, 683 (Del. 1983)),

the court looks to a federal jurisdiction, the District of

Columbia, for a test of harmless error ‘‘consistent with

Davis.’’ Pet. App. at A-6 to A-7. Any fair reading indi-

cates that the Delaware court was attempting to divine

federal law.

Finally, it is now somewhat disingenuous for the Re-

spordent to urge a non-federal foundation for the decision

below. The portion of the opinion below articulating the

rule of automatic reversal (Pet. App. at A-6 to A-7) re-

peats, almost verbatim, a portion of his brief to the Dela-

ware Supreme Court. Reply Brief for Appellant (Van

(Continued from previous page)

the state constitutional provision as mandating the same require-

ment of an opportunity for cross-examination as the Sixth Amend-

ment. Ward v. State, 395 A.2d 367, 368-69 (Del. 1978). Cf.

Delaware v. Prouse, 440 U.S. 648, 652-53 (1979) (state search

and seizure provision interpreted consistent with Fourth Amend-

ment).

11

Arsdall) at 17-18, Van Arsdall v. State, 486 A.2d 1 (Del.

1984). There, he specifically argued that Davis utilized

and mandated a per se error test because a denial of the

federally secured right of confrontation was an error af-

fecting a fundamental right which always required re-

versal. Zd. at 10-11. Having convinced the court below

that automatic reversal was the remedy compelled by the

federal constitution, he cannot now insulate that rule

from scrutiny by invoking a jurisdictional objection

created out of whole cloth.

r, =

Vv

CONCLUSION

For the reasons stated in Petitioner’s opening brief

and here, the judgment of the Delaware Supreme Court

should be reversed.

Respectfully submitted,

Cuar.es M. Oserty, ITI

Attorney General of the

State of Delaware

Ricuarp EK. Farrsanks, Jr.

Chief of Appeals Division

Gary A. Myers

Deputy Attorney General

Counsel of Record

Loren C. Meyers

Deputy Attorney General

Department of Justice

1S. Race Street

P.O. Box 508

Georgetown, DE 19947

(302) 856-5353

January 10, 1986