Reply Brief — Adam Miranda v. California

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wien ORIGINAL Api

MAY 1 6 1988 MAY 14 1988

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Supreme Court. U.S.

JOSEPH F. SPANIOL, JR.

CLERK

NUMBER 87-6746

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

ADAM MIRANDA,

Petitioner,

THE PEOPLE OF THE STATE OF CALIFORNIA,

*

Respondent.

REPLY TO BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ALBERT W. BRODIE

Attorney at Law

1525 Response Road, Suite 3

Sacramento, CA 95815

Tele: (916) 648-1525

Attorney for Petitioner

TABLE OF CONTENTS

TABLE OF . . . I

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1

THE USE OF UNADJUDICATED CRIMINAL

CONDUCT SHOULD BE PRECLUDED AT THE

PENALTY PHASE OF A CAPITAL PROCEE DINO. 1

11

THE CALIFORNIA COURTS HAVE FAILED TO PROVIDE ANY

STANDARD WITHIN WHICH TO WEIGH THE EVIDENCE OF

UNADJUDICATED OFFENSES AT THE PENALTY PHASE..........3

111

PETITIONER WAS DENIED BOTH DUE PROCESS

AND EQUAL PROTECTION OF THE LVM 6

.... . CCS CERO OOS OEE OOO OSCOET

TABLE OF AUTHORITIES

Furman v. Georgia

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ee Vv. 78 8 16

U.S. j TE) cocccceccceceeessesececcecococcoeceooeocoosede 2

Hill v. Lockhart

U.S. ( Bd cccccccccccccccecccccccececccocccecoeseeseseoeees

Hudson v. United States

U. * eee ee tenen ee eee ene

In xe Winship

U.S. 197% %% q % 66 66

Mullaney v. Wilbur

U.S. eee ee sees eee eee eee eee eee

North Carolina v. Alford

U.S. ( PFPYTTTTTTITITITITIT LITT.

a a * P. 2d 861 (1963) 6 0 66 %%% % 6 6 666666666600

47 85 v. phil tips

a * 7 P. 2d 423 CLOOS) . . . „ „ „%

Feopie v. Robertson

a o „ P. 2d 279 (1982) wcccccscccccccccscccccseds 4, 6, 7

poopie Ve Rodriguez

a . * p. 2d 113 619066) 6 6 6 6 „%% %%% % 666 0 6 66 66 6 6 „0

prof itt v. Florida

U. * eee ee eee eee ee eee tee eee eee

Pulley v. Hartis

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Woodson v. North Carolina

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11

ARGUMENT

I

THE USE OF UNADJUDICATED CRIMINAL

CONDUCT SHOULD BE PRECLUDED AT THE

PENALTY PHASE OF A CAPITAL PROCEEDING

Petitioner questions the claim that the use of unadjudicated

other crimes evidence has already been disposed of by this Court.

Respondent's Opposition (hereinafter “Resp.") 5.

Two of the cases cited for this proposition, i.e. Gregg v.

Georgia, 428 U.S. 153 (1976), and Proffitt v. Florida, 428 U.S. 242

(1976), addressed the constitutionality of the captioned states'

death penalty laws following Furman v. Georgia, 408 U.S. 238

(1972). These opinions, although dealing with statutes which

contained provisions permitting the use of uncharged offenses,

never specifically decided this issue. The third case, Pulley v.

Harris, 465 U.S. 37 (1984), dealt with California's 1977 death

penalty law, the immediate predecessor to the statute under which

petitioner was tried. Here the Court addressed the concept of

proportionality in application of the death penalty, and never

touched upon the question of uncharged offenses. An opinion cannot

stand as precedent on an issue not addressed.

Petitioner does not argue that this Court should establish a

"uniform and nationally compelled set of rules and procedures” in

capital proceedings on the question of unadjudicated offenses.

Resp. 6. What he does argue is that if a component part of any

death penalty scheme is constitutionally suspect, whether it be

contained in the statutes of one state or many states, that this

Court has the power to review such statutes and direct that the

offending provision be excised or modified to meet a minimum

constitutional standard. Furman v. Georgia, supra, 408 U.S. 238.

Petitioner's citation to the laws of our sister states was

presented to illustrate that questions surrounding the introduction

of unadjudicated offenses at the penalty phase of a capital

proceeding are a national concern that should be addressed and

clarified by this Court. He asks for no uniform set of rules. He

rather asks for a determination of whether the use of such evidence

is constitutionally permissible, after which the states will be

free to craft their respective statutes to conform to this

standard. Gregg v. Georgia, supra, 428 U.S. at 195 (opinion of

Stewart, Powell and Stevens, JJ.).

Petitioner also disputes the claim that “there is no doubt as

to petitioner's guilt concerning the murder of Robert Hosey.”

Resp. 9. In North Carolina v. Alford, 40@ U.S. 25, 36 (1978), this

Court found that there is no bar to imposition of sentence upon an

accused who is unwilling to admit his guilt, but who is willing to

waive trial and accept the sentence in light cf the alternatives.

See also Hill v. Lockhart, 474 U.S. 52, 56 (1985), Hudson v. United

States, 272 U.S. 451 (1926).

Both perties to this proceeding have noted that petitioner pled

guilty to the Hosey murder. Petn. 5 and fn. 2, Resp. 9. In

exchange for the plea and the sentence imposed, the bargain

precluded the People from using the evidence of this plea in any

retrial. See Pets. 5 fn. 2. Since, under California law, the only

sentence petitioner could receive for the murder of Gary Black and

the finding of special circumstances was death or life without

parole, the addition of 15 years to his previous sentence, and the

plea bargain itself, pales in its significance.

Turning to the final contention in this area, it may be true

that the penalty determination process is not presently part of the

adjudicatory mechanism to which the “full panoply of rights"

attaches. Resp. 10. However, in light of this Court's opinions

which hold that “death ‘s different,“ and that care must be

exercised to insure that death is the appropriate punishment, Gregg

v. Georgia, supra, 428 U.S. at 188, Woodson v. North Carolina, 428

U.S. 280, 3@5 (1976) (opinion of Stewart, Powell, and Stevens,

JJ.), the rights of an accused at the penalty phase of a capital

-2-

proceeding should be expanded to include the exclusion of

unadjudicated offenses.

11

THE CALIFORNIA COURTS HAVE FAILED TO PROVIDE ANY

STANDARD WITHIN WHICH TO WEIGH THE EVIDENCE OF

UNADJUDICATED OFFENSES AT THE PENALTY PHASE

Respondent initially claims that In re Winship, 397 U.S. 358

(1978), does not require application 6f the reasonable doubt

standard to the receipt of other crimes ewidence at the penalty

phase of a capital trial. Resp. 12. soch a claim is made without

reference to Mullaney v. Wilbur, 421 U.S. 684 (1975), which held

that the safeguards of — do not disappear simply because

@ verdict of guilty has been entered, 421 U.S. at 698, and that the

prosecution bears the burden of proving beyond a reasonable doubt

all factors which would increase the penalty imposed upon the

accused. 421 U.S. at 783-704; Petn. 11-13.

Petitioner agrees that, following conviction in a capital

proceeding, due process guarantees "that the state act in a

reasonable and fundamentally fair way in determining and executing

sentence." Resp. 13-14. The question is whether the failure to

give the reasonable doubt instruction in the instant case fulfilled

these due process requirements.

Respondent appears to argue that the reasonable doubt

instruction has only been a part of the capital sentencing scheme

in California since the opinion in People v. Robertson, 33 Cal.3d

21, 655 P. 2d 279 (1982). Resp. 14, 15. Such an argument ignores

the holding of Robertson itself, which, in rejecting claims by the

People that the reasonable doubt instruction had been repealed by

the adoption of California's 1977 death penalty statute,

recognized that this instruction had been required under California

caselaw for almost twenty ars. People v. Robertson, Supra, 33

Cal.3d at 53-54, 655 P. 2d at 298.

See — aw —

—_

Respondent next quotes from the opinion in the instant case,

and the finding by the California Supreme Court that the rule in

Robertson “merely serves a foundational Purpose requiring a higher

Standard of proof before evidence of other crimes may be considered

by a jury..." Resp. 14, Petn. Appendix A, 51-52.

Neither respondent nor the California Supreme Court have ever

explained how this higher standard of proof is to be applied if the

jury is never informed of the standard. Standards of proof do not

exist in a vacuum, and mean nothing if the trier of fact is never

instructed on the burdens that they must apply in a given

proceeding.

The purpose of the reasonable doubt instruction is to inform

the jury how they are to evaluate the evidence they have heard in

reaching the ultimate findings required of them in their

Geliberations. A jury cannot know of this standard, and cannot be

expected to apply it, if they are never told of its existence.

A fair reading of the California Supreme Court's analysis of

the reasonable doubt instruction in People v. Robertson, Supra, 33

Cal.3d at 53-55, 655 Pp. 2d at 298, shows that this standard was not

adopted as an evidentiary rule, but, prior to the instant opinion,

was always grounded on due process concerns.

In People v. Rodriguez, 42 Cal.3d 730, 791-792, 726 Pp. 2d 113,

153 (1986), in a prior analysis of Robertson, the California

Supreme Court found that "Implicit [in Robertson] is the notion

that the People may not obtain the death penalty on the basis of

uncharged criminal activity proved by a standard less stringent

than would be required to convict the defendant of an uncharged

crime." Although it is now claimed that the reasonable doubt

standard is based on evidentiary grounds, Rodriguez and other cases-

prior to the instant opinion raise questions as to the claim that

it is not mandated by due Process considerations. See People v.

Davenport, 41 Cal.3d 247, 280-281, 710 P.24 861, 882 (1985), People

* Phillips, 41 Cal.3d 29, 83, 711 P. 20 423, 459 (1985), Petn. 16

and cases cited therein.

Petitioner does not understand the claim that the reasonable

doubt instruction “was in fact...applied in the instant case" and

that no action is necessary on the part of this Court “in order to

prevent future capital penalty determinations ‘under a

constitutionally defective standard.'* Resp. 15. The source of

this confusion stems from the fact that it has been conceded the

reasonable doubt instruction was never given at the penalty phase

of this proceeding. Resp. 18, 19. Furthermore, as was Previously

noted, this standard was in place at the time of petitioner's

trial.

Nor does petitioner understand how it can be maintained that

the failure to give the reasonable doubt instruction constituted

harmless error. The evidence at Petitioner's penalty phase trial

was not as clear or convincing as respondent supposes. As was

noted on page 12 of the petition for certiorari, the need to give

the reasonable doubt instruction "was Particularly acute here,

where the evidence of the Hosey murder was neither reliable nor

overwhelming, based as it was on the testimony of accomplice Joseph

Saucedo and the unconfronted hearsay statements of Patricia

Torres." In light of such suspect evidence, it cannot be said that

at least one juror would not have voted ag&éinst the death penalty

had the venire been informed of the reasonable doubt standard. -

Petitioner maintains that the Protections accorded by the

reasonable doubt instruction are as important at the penalty phase

of trial as at the guilt phase, and such instruction must be given

to the jury in order to guide them in their deliberations as to the

ultimate penalty. Failure to give such an instruction here, in

light of the state of the evidence presented at the penalty phase,

did not constitute harmless error. :

4//

4//

8

111

PETITIONER WAS DENIED BOTH DUE PROCESS

AND EQUAL PROTECTION OF THE LAW

Petitioner did not argue that "the California Supreme Court

violated his federal constitutional rights in holding that this

determination [the giving of the reasonable doubt instruction] is

predicated solely upon state law." Resp. 17. Rather, petitioner

maintains that he was denied federally protected rights to due

process and equal protection in not receiving the benefit of the

established laws of the State. Petn. 14-18.

Respondent's remaining arguments in this area border on

sophistry. He initially notes, in apparent contradiction to the

argument posited on pages 14, 15 and fn. 3 of his Opposition, that

the State of California “did in fact require the meeting of the

reasonable doubt standard witf respect to other crimes evidence at

the penalty phase and also instruction to the jury to that effect,”

at the time of petitioner's trial. Resp. 18. Yet he proceeds to

assert, despite the fact no such instruction was given during

petitioner's penalty phase proceedings, that "no deprivation of a

procedural right as a matter of state law ever occurred in the

instant case." Id,

It is then argued, as it was in Argument 11, Supra, that the

need to give the reasonable doubt standard has somehow become

aifferent as “numerous changes in state and federal capital case

law took place, as well as significant statutory changes within

California.” Resp. 18. Az was previously noted, a similar

argument was rejected by the California Supreme Court in People v.

Robertson, supra, 33 Cal.3d at 53-54, 655 P. 2d at 298. Petitioner

maintains that the reasonable doubt standard is the reasonable

doubt standard. Simply put, it is a due process requirement which

remains constant in the face of statutory changes.

Turning to petitioner's equal protection claim, respondent,’

although arguing that the reasonable doubt standard has never been

— in California, and that it was in effect at the time of

petitioner's trial, Resp. 19, concludes that "The fact that the

trial court erred in failing to anticipate the Robertson holding in

terms of the continued requirement does not change this result in

the slightest.”

Respondent does not explain how the deprivation of an

established right, which at the time of the instant proceeding

admittedly was and still is a part of California law, is not a

denial of equal protection. He additionally does not explain why

"There is simply no reason to assume, as petitioner does, that he

is similarly situated with respect to all other capital defendants

in this jurisdiction.” Resp. 20. There is in California a

cognizable class of individuals who, as capital defendants,

received the benefit of the reasonable doubt instruction at their

penalty trials. Petitioner was denied both equal protection and

due process of law in not being accorded similar treatment.

CONCLUSION

For these reasons, the petition for writ of certiorari should

be granted.

Respectfully submitted,

Arts Baue

ALBERT W. BRODIE

1525 Response Road, Suite 3

Sacramento, CA 95815

(916) 648-1525

Attorney for Petitioner

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