Opposition Brief — Milligan v. Nevada (No. 85-2027)

Supreme Court, u.s,

») FILE D

od)

No. 85-2027 AUC 2 1999

JOSEPH F. SPANIOL, Jp

IN THE CLERK E

Supreme Court of the United States

OCTOBER TERM, 1985

-

RONNIE G. MILLIGAN,

Petitioner,

v.

THE STATE OF NEVADA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

BRIEF OF THE RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

BRIAN McKAY

Attorney General of

the State of Nevada

WILLIAM E. ISAEFF*

Chief Deputy

Attorney General

BRIAN RANDALL HUTCHINS

Deputy Attorney General

Capitol Complex

Carson City, Nevada 89710

Telephone: (702) 885-4170

Counsel for Respondent

*Attorney of Record

Moa (See eee

ee le

QUESTIONS PRESENTED

Whether this Court should decline

discretionary review in this matter in

accordance with Rule 17.1 of the rules of

the Supreme Court.

A. Whether the determination of the

Nevada Supreme Court that it was error for

the trial court to refuse inquiry on voir

dire regarding belief in the addage of "an

eye for an eye" was a Constitutional error

Or error based upon state law and whether

such determination was correct.

B. Whether, assuming the Nevada

Supreme Court determination that the error

was of federal constitutional magnitude,

the Nevada Supreme Court could properiy

apply a harmless error analysis.

TOPICAL INDEX

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS AND JUDGMENTS

DELIVERED BELOW

JURISDICTIONAL STATEMENT

AND CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT

A. The Claim of Error

During Jury Selection.

B. The Application of the

Harmless Error Test.

CONCLUSION

APPENDIX A

ii

21

la

TABLE OF

AUTHORITIES

Cases Page

Chambers v. Maroney,

399 U.S. 42 (1970). 19

Chapman v. State of California,

386 U.S. 18 (1967). 17-18,20

Conners v. United States,

158 U.S. 408 (1895). 12

Delaware v. Van Arsdall,

475 U.S. , 106 S.Ct.

1431 (1986). 19

Ham v. South Carolina,

409 U.S. 524 (1973). 14

Hamling v. United States,

418 U.S. 87 (1974). 15-16

Milligan v. State,

101 Nev. 627, 708 P.2d 289

(Adv.Op. 129, filed Oct. 28,

1985). 1,10-11

Milton v. Wainwright,

407 U.S. 371 (i572). ig

Moore v. Illinois,

434 U.S. 220 (1977). 20

Ristaino v. Ross,

424 U.S. 589 (1976) 12,13-14

Rose v. Clark,

a ae , 106 S.Ct. ___,

54 U.S.L.W. 5023 (July 2,

(1985). 18-19

TABLE OF AUTHORITIES CONTINUED

Rushen v. Spain,

464 U.S. 114 (1983). 19

Turner v. Murray,

U.S. , 406 S.Ct.

1683 (1986). 16

United States v. Barnes,

604 F.2d 121 (2d Cir. 1979),

cert. denied, 446 U.S. 907

(1980). i6

United States v. Hasting,

461 U.S. 499 (1983). ig

Witherspoon v. Illinois,

391 U.S. 510 (1968). 14

Constitutional Law

U.S. Const. amend. VI 2

U.S. Const. amend. XIV 2

Statutory Provisions

28 U.S.C. § 1257 1

Nev. Rev. Stat. § 175.031 (1985) ae oe DP

la

Nev. Rev. Stat. § 175.051 (1985) Zedvse

Nev. Rev. Stat. § 177.255 (1985) 2,i7,ia

Rules of the Court

Sup.Ct.R. 17.1(A)-(C) 9

iv

TABLE OF AUTHORITIES CONTINUED

Other

Exodus 21: 21-25

Matthew 5: 38-39

Matthew 7: 1-2

Romans 1: 1-7

Romans 14: 13

15

15

15

15

15

No. 85-2027

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

RONNIE G. MILLIGAN,

Petitioner,

Vs.

THE STATE OF NEVADA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

BRIEF OF THE RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

OPINIONS AND

JUDGMENTS DELIVERED BELOW

The petitioner, Ronnie G. Milligan,

seeks certiorari from this Court to review

the decision of the Supreme Court of

Nevada reported in Milligan v. State, 101

Nev. 627, 708 P.2d 289 (Adv.Op. 129, filed

Oct. 28, 1985) (reprinted in Appendix A in

the Petition for Writ of Certiorari). The

state supreme court affirmed the judgments

of conviction for murder and robbery and

the sentence of death. The Supreme Court

of Nevada denied rehearing without comment

in an unreported decision on April 3,

1986.

JURISDICTIONAL STATEMENT

AND CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The jurisdiction of this Court is

invoked under section 1257(3) of Title 28

of the United States Code. The Petition

for Writ of Certiorari has set forth the

pertinent text of the constitutional

ale

provisions which may be implicated in this

case. See U.S. Const., amend. VI; id.,

amend. XIV. Additionally, pertinent state

statutes regarding voir dire and harmless

error may be involved in this case. See

Nev. Rev. Stat. §§ 175.031, 175.051,

177.255 (1985) (reprinted herein as

Appendix A).

STATEMENT OF THE CASE

For the purposes of consideration of

the petition for writ of certiorari only,

respondent adopts the statement of the

case set forth in the petition for writ of

certiorari. Nevertheless, in order for

this Court to make a proper assessment of

the propriety of certiorari in this

action, respondent believes that a some-

what more detailed review of some of the

facts concerning voir dire is necessary.

The facts stated herein are supported by

the record which was before the Nevada

Supreme Court and citation will be made to

ate

the transcript of jury selection which was

before the state supreme court as volume 3

of the Record on Appeal.

In his direct appeal to the Nevada

Supreme Court, petitioner claimed that the

trial judge improperly restricted the

scope of voir dire by refusing to allow

defense counsel to examine one juror, an

Edyth Hascall, regarding her belief of the

"eye for an eye theory" of punishment.

This juror was the twelfth of thirty-three

potential jurors examined individually by

the court and by counsel. See Nev. Rev.

Stat. §§ 175.031, 175.051 (1985) (Appendix

A). Petitioner was represented by three

attorneys during voir dire.

Before the questioning of prospective

juror Hascall, eleven other prospective

jurors were questioned. Questions regard-

ing religious affiliation and religious or

moral objections regarding the death

penalty were discussed with four of these

a3a

first eleven prospective jurors. Tran-

script of Jury Selection at 73, 84, 122,

183-84, 209-01. In addition to these

questions, all jurors were asked questions

on such varied topics as media influence,

views on alcoholism aand_ psychiatric

testimony, and beliefs regarding the death

penalty. The separate questioning of

prospective juror Hascall contained

similar topics of discussion. Id. at

217-43. At one point, defense counsel

asked the prospective juror whether she

had “any particular, specific religious

convictions?" Id. at 221, lns. 6-7. She

replied, "Definitely. I'm a Baptist. I'm

a Clerk in the Baptist Church and I attend

regularly." Id., lns. 8-9. The inquiry

immediately switched to other topics until

a short time later when the following

colloquy occurred:

Q: Do you know whether the

Baptist Church has a particular

stand on the death penalty?

a

[Prosecutor]: I object to

that.

The Court: Yes or no.

[Prosecutor]: It's not rele-

vant. It's whether or not she

has an objection to it.

The Court: I think that's

better, if she has a view of it.

[Defense Counsel]: Your

honor, I think she told us that

she does a lot of work in the

church and I would like to know

if this would influence --

The Court: You can ask her

what her stand is and what the

[Defense Counsel]: Sak aok

that a little later, Mrs.

Hascall.

Id. at 222, Ins. 12-26. The inquiry again

switched to such other topics as knowledge

of prospective witnesses, dealings with

the district attorney's office, whether

the prospective juror had been a victim of

a crime, the prospective juror's views of

alcoholism, and the prospective juror's

views regarding the death penalty. Id. at

223-29.

The inquiry then reached the point

relative to petitioner's claim before this

Court with the defense counsel making a

a

statement regarding history:

Q: The way that the jury

system has been set up is one

thing and the way the court

operates is another thing, but

way back many years ago, people

used to be punished under the

theory of an eye for an eye~-

[Prosecutor]: Go ahead. I

will --

[Defense Counsel]:

Q. Do you believe in an eye

for an eye theory?

[Prosecutor] : 2° See «6S

object to that question. I

don't think it is relevant to

this procedure.

The Court: I will sustain the

objection. I'll not be giving

any such instruction.

Id. at 229, lns. 1-11. Defense counsel

did not respond to the objection or the

court's ruling and immediately moved to

other areas of inquiry. Before the

objection of the State regarding the "eye

for an eye theory," defense counsel was

informed by the juror that she would not

automatically vote for the death penalty

upon a conviction of first-degree murder.

Id. at 228, Ilns. 25-31. Further inquiry

in the area was also not foreclosed. The

= oe

eo

prosecutor subsequently asked the juror if

she could set aside any "tenets of the

church" if she had any and follow the

instructions of the court. She said that

she could and affirmed the court's belief

that she had no religious conviction one

way or the other. Moreover, ‘the juror

stated, "The Bible says to follow the law

of the land. That takes care of it." Id.

at 238-39.

Again, in order to be satisfied

fully, defense counsel was allowed to

conduct a supplemental voir dire of the

juror and again passed for cause. Id. at

241-42. Defense counsel was now aware of

what would be allowed during a discussion

regarding religious scruples. In fact,

Gefense counsel inquired into the religion

of at least fourteen of the next and final

twenty-one prospective jurors. See id. at

248, 271-72, 322, 334, 351, 367, 420, 455,

469, 491, 522, 548, 588, 612. The

ate

prosecution inquired into this area with

one juror not so questioned by the de-

fense. Id. at 266, Ins. 11-14. Of the

eight peremptory challenges allowed, the

defense waived its last four. Id. at 539,

540, 543. As found by the Nevada Supreme

Court, petitioner was subsequently con-

victed of the sledge hammer murder of the

seventy-seven year old female victim and

robbery with a deadly weapon. Petitioner

was sentenced to death following a sepa-

rate penalty hearing. |

SUMMARY OF THE ARGUMENT

This Court should decline to review

the decision of the Supreme Court of

Nevada. In the first place, the State of

Nevada contends that the state supreme

court did not and could not have found

that the failure of the trial court to

allow questioning of a prospective juror

regarding the "eye for an eye theory” was

a federal constitutional error. The error

=

was, at most, that of state law. Second-

ly, even though the supreme court found

error, whether of state or federal consti-

tutional magnitude, such error was clearly

only technical and harmless in the context

of the entire jury selection process and

rial. In this regard, the decision of

the state supreme court is not in conflict

with the decision of other state courts of

last resort or federal courts of appeals.

Nor is the decision one which presents an

important question of federal law which

should be settled by this Court or which

is in conflict with the decisions of this

Court. See Sup.Ct.R. 17.1(A)-(C).

ARGUMENT

Respondent contends that a review of

the decision of the Nevada Supreme Court

would be an unnecessary expenditure of

this Court's resources. In these proceed-

ings, petitioner contends that the finding

by the state supreme court of error during

=

jury selection is not subject to a subse-

quent harmless error analysis. Respondent

contends that any review of the harmless

error analysis must be’ preceded _. by

determination of the magnitude of any

error at all.

A. The Claim of Error During Jury

Selection.

Petitioner has set out in full in the

appendix to his petition the decision of

the Nevada Supreme Court. That court

determined that the trial court erred when

it sustained an objection to the question

by defense counsel as to whether a pro-

spective juror believed in the Biblical

expression of "an eye for an eye." The

decision of the state supreme court

reviewed this issue briefly and concluded,

A defendant is entitled to

explore the prospective juror's

values and personal convictions,

including those reflected in or

reflective of religious beliefs.

We hold that the trial court

erred when it ruled that the

«10=

prospective juror's belief in

the adage of "an eye for an eye"

was irrelevant. Nevertheless,

we further hold that under the

guidelines of Chapman v. Cali-

fornia, 386 U.S. 18 (1967),

reh'g denied, 386 0.8. 987

(1967), such error was harmless

beyond a reasonable doubt as the

prospective juror involved

stated unequivocally that _ she

could put aside any personal

beliefs and follow the law as

instructed by the judge.

Milligan v. State, 101 at, 708 P.2d

at 293.

| The decision of the Nevada Supreme

Court finding error does not appear to

have been based upon federal constitu-

tional law. Nevada law states’ that

counsel is permitted to supplement the

voir dire "as the court deems proper. Any

supplemental examination must not _ be

unreasonably restricted." Nev. Rev. Stat.

§ 175.031 (1985). This Court has held,

"The Constitution does not always entitle

a defendant to have questions posed during

voir dire specifically directed to matters

“tia

that conceivably might prejudice veniremen

against him. .. . Voir dire ‘is conducted

under the supervision of the court, and a

great deal must, of necessity, be left to

its sound discretion.'" Ristaino v. Ross,

424 U.S. 589, 594 (1976), quoting Connors

v. United States, 158 U.S. 408, 413

(1895).

As noted above, defense counsel was

allowed to inquire, and did inquire, into

numerous and extended aspects of the

beliefs and perceptions of prospective

jurors. The state supreme court itself

found that the particular prospective

juror involved here stated unequivocally

that she could put aside her personal

beliefs and follow the instructions of the

court on the law. The prosecutor had

specifically asked whether or not this

particular juror could set aside any

religious tenets she may have. Defense

counsel also asked other jurors what if

=i2=

wa oh PRIN al AE Gh ND Pred 1 wee

any religious affiliations they had and

were certainly aware that they could ask

whether or not any religious beliefs would

interfere with juror's duties. Rather

than asking whether this prospective juror

adhered to this Biblical expression taken

out of context, defense counsel alterna-

tively knew they could have znquired as to

whether or not a prospective juror felt

that a life should be forfeited for a life

taken or whether the death penalty should

be automatically imposed upon all those

killed. In fact, this was asked by

defense counsel of the specific juror

involved here. Record of Jury Selection

at 228, lns. 25-28.

There are numerous ways in which the

obligation of a state to the defendant to

impanel an impartial jury can be satisfied

without “an inquiry into a_—- specific

prejudice feared by the defendant."

Ristaino v. Ross, 424 U.S. at 595, citing

=} 3<

Ham v. South Carolina, 409 U.S. 524,

527-28 (1973). In Ham, the question was

whether or not the trial court properly

rejected proposed questions addressed to

the tact that petitioner wore a beard.

This Court held that the “refusal to

inquire as to particular bias against

beards, after his inquiries as to bi's in

general, does not reach the level of a

constitutional violation." Ham v. South

Carolina, 409 U.S. at 528.

In this particular case, the facts

show that there was an intensive inquiry

on numerous topics and defense counsel was

not precluded from examining veniremen

based upon their conscientious or reli-

gious scruples for or against the in-

fliction of the death penalty. See

Witherspoon v. Illinois, 391 U.S. 510, 522

& n. 21 (1968). In the overall context of

the jury selection in this case, the trial

judge may have been concerned that

alge

discussion of a _ prospective juror's

beliefs about one particular Biblical

expression might lead to an inquiry

regarding other similar questions. Jurors

could have been asked whether they agree

that the law of the land should be fol-

lowed, Romans 1: 1-7, that a person should

turn the other cheek, Matthew 5: 38-39, or

that we should not judge others, Matthew

7: 1-2; Romans 14: 13. Of course, the

true meaning of the “eye for an eye"

theory could have been discussed as well.

See Exodus 21: 22-25.

The facts indicate in this case that

a general inquiry inte the views of the

jurors regarding the effect of their

religious beliefs on following the law

could have been and was made by defense

counsel. As this Court has_ stated,

"Failure to ask specific questions as the

possible effect of educational, political,

and religious biases' did 'not reach the

alSe

level of a constitutional violation,'

oe @ Hamling v. United States, 418

U.S. 87, 140 (1974). This was not a case

involving an interracial crime where an

inguiry of racial bias should have been

made. See Turner v. Murray, U.S.

’ , 106 S.Ct. 1683, 1688 (1986).

Nor was this a situation in which religion

was involved or where there was an indica-

tion that a religious belief may inhibit a

juror from performing her lawful duty. In

fact, defense counsel was not precluded

from asking proper questions and had "the

same, or substantially the same, insights

into the prospective [jurors'] thoughts by

observing [their] demeanor, generally, and

by listening to the answers to questions

concerning family, education and other

matters ... ." United States v. Barnes,

604 F.2d 121, 142 (2d Cir. 1979), cert.

denied, 446 U.S. 907 (1980).

Based upon the above authority, it

#16<

appears that the finding of error by the

Supreme Court of Nevada was based upon

state law. As such, even an erroneous

application of the harmless error test

would have no bearing in this case where a

federal constitutional right was not

implicated.

B. The Application of The Harmless Error

Test.

In the State of Nevada, the state

supreme court may render a judgment

"without regard to technical error or

defect which does not affect the substan-

tial rights of the parties." Nev. Rev.

Stat. § 177.255 (1985) (Appendix A). Asa

matter of federal constitutional law,

"there may be some constitutional errors

which in the setting of a particular case

are so unimportant and insignificant that

they may, consistent with the Federal

Constitution, be deemed harmless, not

requiring the automatic reversal of the

= Po

conviction." Chapman v. State of Cali-

fornia, 386 U.S. 18, 22 (1967). In such a

case, a court "must be able to declare a

belief that it was harmless beyond a

reasonable doubt.” Id. at 24. The Nevada

Supreme Court stated exactly this in its

opinion.

The application of a harmless error

analysis was entirely appropriate in the

context of a possible error during jury

selection. Defense counsel was not

precluded from inguiring into the area of

religious beliefs as they affected the

ability of jurors to render a fair and

just verdict and the situation did not

involve presentation of evidence or

arguments of counsel. In this case,

petitioner had three attorneys to repre-

sent him and was tried by an impartial

jucge. As such, "there is a_e strong

presumption that any other errors that may

have occurred are subject to harmless

“18-

error analysis." Rose v. Clark,

U.S. ’ ’ 106 S.Ct. ’ 7

54 U.S.L.W. 5023, 5026 (July 2, 1986).

The harmless error principie has_ been

applied to many constitutional errors as

noted by this Court in Rose v. Clark.

See, e.g., Delaware v. Van Arsdall, 475

U.S. , 106 S.Ct. 1431 (1986) (failure

to permit cross-examination concerning

witness bias); Rushen v. Spain, 464 U.S.

114 (1983) (per curiam) (denial of right

to be present at trial); United States v.

Hasting, 461 U.S. 499 (1983) (improper

comment on defendant's failure to testi-

fy); Moore v. Illinois, 434 U.S. 220

(1977) (admission of witness identification

obtained in violation of right to coun-

sel); Milton v. Wainwright, 407 U.S. 371

(1972) (admission cf confession obtained

in violation of right to counsel); Cham-

bers v. Maroney, 399 U.S. 42 #£2«(1970)

(admission of evidence obtained in

-19-

violation of the Fourth Amendment).

Petitioner has not cited any authority to

demonstrate that the decision of the

Nevada Supreme Court applying the harmless

error analysis was incorrect.

If this Court were to grant certio-

rari, an analysis might have to be made of

the entire scope of the jury selection as

well as a review of all of the evidence

presented at trial and during the penalty

phase to make a determination as_ to

whether or not a harmless error analysis

was appropriate. After all, error is

harmless if, beyond a reasonable doubt, it

"did not contribute to the verdict ob-

tained." Chapman v. California, 386 U.S.

at 24. Petitioner has failed to present a

substantial federal question in this case

or show that the decision of the Supreme

Court of the State of Nevada is in con-

flict with applicable decisions of this

Court or with federal law.

20a

CONCLUSION

As noted above, petitioner has

totally failed to demonstrate the exis-

tence of a conflict between the decision

of the Nevada Supreme Court and the

Gecision of any other state or federal

appellate court with regard to the appli-

cation of the harmless error analysis. In

fact, it appears that the Nevada Supreme

Court did not find any federal constitu-

tional error at all and that the harmless

error analysis must have been applied only

with regard to state law error. The

decision of the Nevada Supreme Court

applying the harmless error analysis was

in fact in accord with the decisions ot

this Court.

Because it is questionable as to

whether there was underlying federal

constitutional error upon which the

harmless error analysis was applied, this

Court should decline discretionary review

“

-2)-

of the judgment of the state supreme

court. Discretionary review should also

be declined as the application of the

harmless error analysiS was correct as

applied to the circumstances of this case.

Respectfully submitted,

BRIAN McKAY

Attorney General of

the State of Nevada

WILLIAM E. ISAEFF*

Chief Deputy Attorney General

BRIAN RANDALL HUTCHINS

Deputy Attorney General

Heroes' Memoriai Building

Capitol Complex

Carson City, Nevada 89710

Telephone: (702) 885-4170

Counsel for Respondent.

*Attorney of Record

~22-

APPENDIX A

Nevada Revised Statutes (1985)

£73.-031 Examination of trial jurors.

The court shall conduct the initial

examination of prospective jurors, and

defendant or his attorney and the district

attorney are entitled to supplement the

examination by such further inquiry as the

court deems proper. Any supplemental

examination must not be unreasonably

restricted.

37949591 Number of peremptory chal-

lenges.

1. If the offense charged is punishable

by death or by imprisonment for life, each

Side is entitled to eight peremptory

challenges.

2. If the offense charged is punishable

by imprisonment for any other term or by

fine or by both fine and imprisonment,

each side is entitled to four peremptory

challenges.

3. The state and the defendant shall

exercise their challenges alternately, in

that order. Any challenge not exercised

in its proper order is waived.

177.255 Court to give judgment without

regard to technical errors. After hearing

the appeal, the court shall give judgment

without regard to technical error or

Gefect which does not affect the substan-

tial rights of the parties.

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