Opposition Brief — ShisInday v. Quarterman, (2007) (No. 1383)

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JUL 7 - 2008

No. 07-1383 | OFFICE OF THE Er |

In The

Supreme Court of the Anited States

SHOZDIJIJI SHISINDAY, a.k.a. Danny Dean Thomas,

Petitioner,

v.

NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

GREG ABBOTT EDWARD L. MARSHALL

Attorney General of Texas Chief, Postconviction

Litigation Division

KENT C. SULLIVAN

First Assistant *W. ERICH DRYDEN

Attorney General Assistant Attorney General

ERIC J.R. NICHOLS P.O: Box 12548,

Deputy Attorney General Capitol Station

For Criminal Justice Austin, Texas 78711-2548

(512) 936-1400

*Counsel of Record

ATTORNEYS FOR RESPONDENT

we

This is a capital case.

QUESTIONS PRESENTED

ShisInday’s first conviction was overturned

pursuant to Aiggins v. Nevada, 504 U.S. 127

(1992), because the trial court failed to submit

findings of fact to justify forcibly medicating

ShisInday. During ShisInday’s second trial

sixteen years later, the State read into the record

testimony from Ernest Gilliam, who testified at the

first trial but subsequently passed away. Gilliam

had merely testified that he sold the murder

weapon to ShisInday. Assuming arguendo that

this combination of circumstances resulted in a

violation of ShisInday’s right to confrontation, is

this violation subject to a harmless error analysis?

If so, was the admission of Gilliam’s testimony

harmless considering that it was cumulative of

other evidence provirg ShisInday was in

possession of the gun and that ShisInday confessed

to committing murder?

The trial court refused to instruct the jury

regarding the consequences of a deadlock, over

ShisInday’s objections. Texas law forbids the trial

court from doing so. For the first time in federal

court, ShisInday challenges the Texas statutory

sentencing scheme. Does this Court lack

jurisdiction to consider ShisInday’s claim that the

statute is unconstitutional for containing this

prohibition? If not, is ShisInday’s claim barred

pursuant to Teague v. Lane, 489 U.S. 288 (1989),

and foreclosed under Jones v. United States, 527

U.S. 373 (1999)?

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QUESTIONS PRESENTED

TABLE OF AUTHORITIES

JURISDICTION

STATEMENT OF THE CASE

I.

II.

REASONS FOR DENYING THE WRIT

I,

TABLE OF CONTENTS

NN Sa es Pe ed

The District Court’s Denial of ShisInday’s

Confrontation Clause Claim Ie Not

Debatable. Even If The Trial Court

Erroneously Admitted Ernest Gilliam’s

Testimony During ShisInday’s Second

Trial, That Ruling Is Subject To A

Harmless Error Analysis. And Given The

Substantial Evidence Of ShisInday’s Guilt,

Any Error Was Clearly Harmless.

Therefore, Certiorari Review Is Not

a aia lie RIE tn aE yA I

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A. ShisInday is actually claiming that

a Confrontation Clause violation

occurred, not Riggins error. In fact,

Riggins has no application to

ShisInday’s second trial because the

Riggins error was cured when

ShisInday received a new trial.

Thus, any error pertaining to retrial

must be assessed for harmlessness. .. .

B. The harmless error doctrine applies

to ShisInday’s claim; Crawford v.

Washington does not alter that

C. Any error was unquestionably

harmless given the substantial

evidence of ShisInday’s guilt. .......

This Court Does Not Have Jurisdiction To

Consider ShisInday’s Claim That The

Texas Statutory Sentencing Scheme Is

Unconstitutional Because He Failed To

Present That Claim To The Fifth Circuit.

Regardless, His Allegation Is Teague

Barred And Foreclosed Under Jones v.

SS re ian Gb peace eres

A. This Court lacks jurisdiction to

consider the instant claim. .........

11

23

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B. Regardless, ShisInday is requesting

a new rule of constitutional law

striking down the Texas statutory

scheme for not requiring courts to | |

instruct jurors on the consequences a

of a deadlock, although this Court a

has held that such a rule is not 4

relevant to a jury's role in

RR IER Se ac A eee re 25

C. ShisInday’s argument that Jones is

factually distinct from his case and, a

thus, should not apply is ineffectual. 4

Jones did not hold that an

instruction regarding the

consequences of a deadlock must be

given in certain cases. And even if it

did, this would not be one of those

cases because the Texas statutory

scheme does not mislead jurors. ..... 28

ci aa irate ae Sh EOS a ip ates ara . 34

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; TABLE OF AUTHORITIES

| Cases Page

Allen v. United States, 164 U.S. 492 (1896) ....... 27

Arizona v. Fulminante, 499 U.S. 279 (1991) ....... 17

Barfield v. Harris, 540 F.Supp. 451

Ce ME 32

Brecht v. Abrahamson, 507 U.S. 619 (1993) ... Passim

Caldwell v. Mississippi, 472 U.S. 320 (1985) ...... 29

Chapman v. California, 386 U.S. 18 (1967).......... 16

Clingman v. Beaver, 544 U.S. 581 NE sn ces 25

Coy v. Iowa, 487 U.S. 1012 (1988) ............ 14,17

Crawtord v. Washington, 541 U.S. 36 (2004) .. Passim

Davis v. State, 782 S.W.2d 211

ee |) rir 26, 32

Delaware v. Van Arsdall,

Te ROE fo, Re an 14, 18, 22

Draughon v. State, 831 S.W.2d 331

(Tex. Crim. App. 1902) ............... 30, 32

Dugger v. Adams, 489 U.S. 401 (1989) ........... 29

Franklin v. Lynaugh,:487 U.S. 164 (1988) ........ 26

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-vi-

TABLE OF AUTHORITIES, continued

F Cases Page

Fry v. Pliler, 127 S. Ct. 2321 (2007) ............- 22

Heath v. Alabama, 474 U.S. 82 (1985) ........... 25

Hughes v. State, 897 S.W.2d 285

Chast: Cries Bae BOGE oc ee eee 26

Johnson v. Texas, 509 U.S. 350 (1993) ........... 26

Jones v. United States, 527 U.S. 373 (1999) ... Passim

Jurek v. Texas, 428 U.S. 262 (1976) ran epee Oe | 26

Justus v. Virginia, 266 S.E.2d 87 (1980) .......... 28

Kotteakos v. United States,

328 U.S. 750 (1946) ........ Sarg h tees vbr 15, 22

eee

Lawton v. State, 913 S.W.2d 542

ee ke. a 29, 30

Lilly v. Virginia, 527 U.S. 116 (1999) SCR 14, 16

Lowenfield v. Phelps, 484 U.S. 231 (1988) ........ 27

Neder v. United States, 527 U.S.1(1999) ........ 14

Nobles v. State, 843 S.W.2d 503

CIN BI Sk Ce eeen ee scesens 32

Olden v. Kentucky, 488 U.S. 227 (1988) .......... 14

PPS AIAN eek Pgh state Pea aE) sO yarn QUEL RTC EY oe URL WARS eS ER MS RENE SMe VEL ee Se Te ROE PRET Aer Ee a aie ee ae Oe

-Vii-

TABLE OF AUTHORITIES, continued

Cases Page

; O'Neal v. McAninch, 513 U.S. 432 (1995) ......... 22

4 Padgett v. State, 717 S.W.2d 55

Cee Gc PT AE ook a oe ee ee 31

Riggins v. Nevada, 504 U.S. 127 (1992) ...... Passim

: Romano v. Oklahoma, 512 US. EtHGO@) 00.6 28, 29

’ State v. Crawford, 54 P.3d 656 (Wash. 2002) ...... 16

| _ Sterling v. State, 830 S.W.2d 114

a OPOm ONIN, BUN. POPE ws... eee ete ee ee 26

q Teague v. Lane, 489 U.S. 288 (1989) ......... Passim

Texas v. Cobb, 582 U.S. 162 (2001) .......... 0. 16

United States v. Gonzalez-Lopez,

BOE. CE BOOT IG oc ccc cee eae 18

United States v. Wells, 519 U.S. 482 (1997) .. 3, 16, 25

United States v. Williams, 504 U.S. 36 (1992) ... 3, 16

Webb v. Collins, 2 F.3d 93 (5th Cir. 1993) ........ 25

Whorton v. Bockting, 127 S. Ct. 1173 (2007) ...... 17

TABLE OF AUTHORITIES, continued

Statutes and Rules Page

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H.B. 9, § 15, 72nd Leg., 2nd Sess. (Tex. 1991) .. 32-33

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Petitioner Shozdijiji ShisInday, a.k.a. Danny Dean

Thomas,’ resides on Texas’s death row for the brutal

murder of Sylvia Harrison. He now challenges his

conviction pursuant to 28 U.S.C. §§ 2241 and 2254,

arguing that (1) the admission of testimony from a

deceased witness during his second trial violated his

constitutional rights, and (2) the Texas statutory

punishment scheme is unconstitutional because it

precludes a jury from being informed of the consequences

of a deadlock. However, certiorari review is

unwarranted.

ShisInday’s original 1982 conviction was reversed

pursuant to Riggins v. Nevada, 504 U.S. 127 (1992),

because the trial court failed to submit any findings to

support the forced medication of ShisInday, who was

suffering from psychosis at the time. At ShisInday’s

second trial sixteen years later, the testimony from

Ernest Gilliam, who was a witness at the first trial but

died during the interim, was read into the record.

ShisInday claims that the admission of this evidence

violated his right to confrontation under Riggins because

he was unable to adequately cross-examine Gilliam at his

first trial due to his medicated state. ShisInday further

argues that a harmless-error standard does not apply

under Figgins. But Riggins is now irrelevant. The

Riggins error was cured when ShisInday received a new

trial, and ShisInday was not medicated during his second

trial. Therefore, if any error occurred from the reading of

Gilliam’s testimony, it is subject to a harmless-error

analysis, as are all Confrontation Clause allegations.

And, as the lower courts determined, any error was

! Respondent Nathaniel Quarterman is referred to as

“the Director.”

A 3

certainly harmless. Gilliam’s testimony merely

established that ShisInday purchased the murder

weapon. This was cumulative evidence because several

other witnesses testified that ShisInday was in

possession of the firearm shortly before he murdered

Harrison. Further, the gun was found in ShisInday’s car

covered in Harrison’s blood, and he confessed to the

murder. Thus, the Fifth Circuit’s conclusion — that the

district court’s resolution of this claim is not subject to

debate — is appropriate.

ShisInday also argued in the lower courts that the

trial court violated his due-process rights during

punishment by instructing the jury to continue

deliberating after the jury informed the court that it was

deadlocked. ShisInday claimed that the court’s

instructions were coercive in light of the fact that the

court failed to instruct the jurors that a deadlock would

result in a life sentence. However, ShisInday now argues

that the Texas statutory sentencing scheme is

unconstitutional because it prohibits a court from

informing the jury of the consequences of the failure to

agree on the special issues. ShisInday did not challenge

the statute in his application for a certificate of

appealability (“‘COA”) in the Fifth Circuit; therefore, this

Court lacks jurisdiction to consider the allegation.

However, even if this Court could review the claim, this

Court has never held that the statute is unconstitutional.

ShisInday is asking this Court to apply retroactively a

new rule of ccnstitutional law, which would be barred

pursuant to Teague v. Lane, 489 U.S. 288 (1989).

Moreover, in Jones v. United States, 527 U.S. 373 (1999),

this Court determined that a trial court is not required to

instruct the jury on the consequences of a deadlock

because that information has no bearing on a jury’s role

8

in the sentencing process. Therefore, ShisInday’s claim

lacks any merit, and this Court should deny certiorari

review.

JURISDICTION

Under 28 U.S.C. § 1254(1), the Court lacks

jurisdiction to consider ShisInday’s constitutional

challenge to the Texas statutory sentencing scheme

because it was not “pressed [in] or passed on’ by the

Court of Appeals.” United States v. Wells, 519 U.S. 482,

488 (1997) (quoting United States v. Williams, 504 U.S.

36, 41 (1992) (brackets in Wells)). ShisInday also

presents ep new argument that, under Crawford v.

Washington, 541 U.S. 36 (2004), Confrontation Clause

error is structural and, thus, not subject to a harmless

error analysis. Because the Fifth Circuit did not have an

opportunity to address that issue, this Court lacks

jurisdiction to consider it. The remainder of ShisInday’s

allegations are properly before the Court.

% STATEMENT OF THE CASE

I. Facts of the Crime

The United States Court of Appeals for the Fifth

Circuit summarized the relevant facts of the case as

follows:”

The evidence at the guilt/innocence

phase of trial revealed that in July of 1981,

ShisInday and his girlfriend, Phoebe, were

2 The summary is taken from the Texas Court of

Criminal Appeals’s and federal district court’s opinions.

-4.

staying at the home of James Peels, his two

sons, fifteen-year old Doyle Peels and

seventeen-year-old Zendal Peels, and

Mertha Ann Tarver. On July 17, ShisInday

gave Doyle a ride in his 1969 black-and-

white Cadillac to pick up Doyle’s work

schedule at K-Mart. ShisInday entered the

store with Doyle and purchased some

ammunition in the sporting goods

department. Later that evening, ShisInday,

accompanied by Zendal, drove Doyle and

Ronald McHenry to the skating rink.

According to ShisInday’s July 9th

transcribed statement and testimony from

other witnesses, ShisInday and Zendal went

shopping at a Safeway store after dropping

the boys off at the rink. As they were

leaving the store, they spotted nineteen-

year’old Sylvia Harrison who was kaving

car trouble. They stopped to help her, and

ShisInday determined that she needed a

new fan belt. They drove her across the

street to an auto parts store, purchased the

belt, and put it on her car. Harrison asked

ShisInday and Zendal to follow her down

the street to her house to make sure her car

did not overheat again. Once they arrived,

ShisInday fixed a leak in her car’s “heater

hose.” She offered them a beer and invited

them into the house. They sat in her living

room, drank beer, and smoked some

marijuana.

a

According to ShisInday’s statement to

the police, Zendal unexpectedly hit Harrison

in the side of the head with ShisInday’s gun,

which Zendal had concealed in a paper bag.

They carried Harrison, unconscious, out to

the car and shoved her down on the

passenger’side floorboard. They also took

several items from her house including her

telephone and eye glasses. ShisInday drove

away with Zendal sitting in the passenger

seat. Harrison regained consciousness,

kicked the steering wheel, and bit

ShisInday’s hand. ShisInday told Zendal to

grab her, and Zendal hit her in the head

again with the gun, knocking her out. She

regained consciousness again, and Zendal

repeatedly hit her in the head with his knife

until she passed out. She came to once more

and began repeating, “God help me.”

ShisInday got his gun, put it to the side of

her head, and shot her one time. They

drove her to a bridge near the river and

picked up some cinder blocks. They then

drove to a more secluded bridge and parked

under one of the support pillars. ShisInday

looked around to see if anyone was nearby.

Zendal removed Harrison’s clothes and cut

off her bra. After tying cinder blocks to

Harrison's feet and neck with a rope, they

dumped her in the San Jacinto River.

ShisInday broke off a willow branch and

brushed away their footprints as they

returned to the car. They drove to a grocery

store parking lot where they threw

Harrison’s clothes and other personal items

-6-

in a dumpster. Then they went to a car

wash and washed the outside and inside of

the car, particularly the floorboard, which

was covered in blood.

After disposing of Ms. Harrison’s

body, Zendal and ShisInday returned to the

Peels’ home between four and five a.m.

Zendal Peels’ father accused ShisInday and

Zendal of being late because they were

smoking pot. ShisInday explained that they

had car trouble. ShisInday then went to

sleep in a back bedroom with his girlfriend.

The Peels family soon discovered

blood on the outside and inside of

ShisInday’s vehicle. ShisInday’s girlfriend

woke him up in the morning and confronted

him about the blood. ShisInday claimed

that he ran over a dog, put it in his car, and

mercifully killed the dog to end its suffering.

ShisInday told the same story to the Peels

family. When the Peels and ShisInday’s

girlfriend did not believe his story,

ShisInday decided to leave. Before going,

ShisInday threatened Zendal “[ilfI go down,

you are going down with me because you are

in this with me.”

ShisInday, who had a long history of

mental problems, soon sought treatment at

a psychiatric hospital claiming that others

accused him of killing a person when he

actually killed a dog. After talking to

Zendal Peels, and going to Ms. Harrison’s

if st

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residence and finding that there had been a

fire, the police arrested ShisInday at around

1:00 a.m. at the hospital. ShisInday

initially repeated his dog story to the police,

but he later confessed to killing Ms.

Harrison.

ShisInday v. Quarterman, 511 F.3d 514, 517-19 (5th Cir.

2007); Petition, Appendix A at 2-5

II. Trial, Direct Appeal, and Postconviction

Proceedings

ShisInday was twice convicted and assessed the

death penalty for the July 1981 capital murder of

nineteen-year-old Sylvia Harrison. His first conviction

was reversed and vacated by a federal district court in

1997 under Riggins v. Nevada. See Thomas v. Johnson,

No. H-95-5236 (S.D. Tex. July 2, 1997); Petition,

Appendix E.

In his 1998 retrial, a second jury found ShisInday

guilty of capital murder, CR 409,* and answered the

punishment-phase special issues that resulted in

ShisInday’s second death sentence. Jd. at 426-29, 441.

The Texas Court of Criminal Appeals affirmed the

* “CR” refers to the clerk’s record of pleadings and

documents filed with the court during trial, followed by page

number(s). “RR” refers to the reporter's record of the evidence

and testimony presented at trial, preceded by volume number

and followed by page number(s). “SX” refers to the State’s

Exhibits admitted at trial, followed by exhibit number(s)

“SHCR” refers to the state habeas record, followed by page

number(s).

-8-

conviction and sentence on direct appeal in an

unpublished opinion. SAisInd:; » State, No. 73,351

(Tex. Crim. App. Sept. 12, 2001); Petition, Appendix D.

On state habeas review, the trial court entered

findings of fact and conclusions of law recommending

denial, SHCR 2113-91, which the Court of Criminal

Appeals adopted in an unpublished, per curiam order. Ex

No. 15,153-07 (Tex. Crim. App. March 9, 2005); Petition,

Appendix F.

ShisInday timely initiated federal habeas corpus

proceedings. Following review, the federal district court

denied habeas relief and denied a COA. ShisInday v.

Quarterman, No. H-06-814, 2007 WL 776680 (S.D. Tex.

March 9, 2007); Petition, Appendix C. ShisInday filed an

application for a COA in the Fifth Circuit on July 12,

2007. The appellate court denied ShisInday a COA ina

published opinion on December 20, 2007. Petition,

Appendix A. The instant petition for writ of certiorari

followed.

-9.

REASONS FOR DENYING THE WRIT

I. The District Court’s Denial Of ShisInday’s

Confrontation Clause Claim Is Not Debatable.

Even If The Trial Court Erroneously Admitted

Ernest Gilliam’s Testimony During ShisInday’s

Second Trial, That Ruling Is Subject To A

Harmless Error Analysis. And Given The

Substantial Evidence Of ShisInday’s Guilt, Any

Error Was Clearly Harmless. Therefore,

Certiorari Review Is Not Warranted.

ShisInday argues that the lower courts improperly

applied a harmless-error analysis to reject his underlying

Confrontation Clause claim. ShisInday points to the

reversal of his first trial under Riggins v. Nevada and

alleges that because he was unable to confront witness

Ernest Gilliam at the first trial due to the effects of forced

medication, the admission of Gilliam’s testimony in his

second trial was constitutionally deficient for the same

reason. Petition at 12-27.

On July 2, 1997, the federal district court ordered

ShisInday’s 1982 conviction set aside under Riggins

based on the lack of trial-court findings in the record to

justify that ShisInday’s prescribed treatment with

antipsychotic drugs was medically appropriate and

necessary for the sake of ShisInday’s safety or the safety

of others. Petition, Appendix E. Prior to granting relief,

the district court addressed and found meritless

ShisInday’s other twenty-seven grounds for federal

habeas relief, including a competency allegation. See

Thomas v. Johnson, No. H-95-5236. In denying that

claim, the district court noted: “[ShisInday] was found

competent to stand trial. He was found to have the

-10-

ability to consult with his lawyer with a reasonable

degree of rational understanding, and was found to have

a rational as well as factual understanding of the

proceedings against him.” /d., slip op. at 31-32; see also

SHCR 1309-10 (State’s Exhibit “B”).

During ShisInday’s retrial in 1998, the State

offered the 1982 testimony of Ernest Gilliam, along with

a death certificate showing that Gilliam had passed

away. Petition, Appendices N & O. ShisInday objected

to the admission of the testimony on the ground that he

lacked the ability to cross-examine Gilliam during the

first trial due to his medicated state. Jd. at Appendix O.

The trial court overruled the objection, and the State read

Gilliam’s testimony to the jury. /d. The testimony was

brief: in short, Gilliam stated that he knew ShisInday

and that he recognized State’s Exhibit 10 as the .25

automatic pistol he owned and later sold to ShisInday for

fifty dollars in July 1981. Jd. at Appendix N. Gilliam

testified on cross-examination that the gun had one clip

when he sold it to ShisInday. Jd. Neither party asked

Gilliam any further questions.

ShisInday now offers a three-part argument

pertaining to his underlying Confrontation Clause

allegation: (1) the Riggins violation that affected his first

trial essentially carried over to his second when Gilliam’s

testimony was admitted; (2) Confrontation Clause

violations should not be subject to a harmless-error

analysis under Crawford v. Washington: and (3) the

admission of Gilliam’s testimony was not harmless.

Petition at 14-27. These arguments are meritless.

of}.

A. ShisInday is actually claiming that

a Confrontation Clause violation

occurred, not Riggins error. In fact,

Riggins has no application to

ShisInday’s second trial because the

Riggins error was cured when

ShisInday received a new trial.

Thus, any error pertaining to retrial

must be assessed for harmlessness.

ShisInday’s Riggins argument is as follows: a

harmless-error analysis does not apply to a Riggins

violation; therefore, because Aiggins error occurred

during his first trial, the admission of any evidence

during his second trial that was taken from his first

cannot be harmless. Petition at 14-17. In other words,

ShisInday is attempting to bootstrap Aiggins to his

second trial. His claim is flawed on several fronts.

In Riggins, the defendant, who was on trial for

robbery and murder, suffered from psychosis. 504 U.S. at

129-31. Riggins was involuntarily medicated throughout

trial without explanation from the trial court why

medication was necessary. /d. at 131. Riggins moved to

terminate medication, but the court denied that request.

Id. At trial, Riggins pleaded insanity and testified on his

own behalf. /d. This Court ultimately reversed, holding

that the trial court failed to acknowledge Riggins’s liberty

interest in being free from unwanted antipsychotic drugs.

Id. at 137. Considering reports from various doctors, the

Court determined that the side effects of this medication

might have altered Riggins’s appearance, the content of

his testimony, his ability to follow the trial proceedings,

or his ability to consult with counsel. Jd. The Court also

rejected the argument that Riggins needed to show how

-1]2-

he was harmed by the forced medication. “Efforts to

prove or disprove actual prejudice from the record before

us would be futile, and guesses whether the outcome of

the trial might have been different if Riggins’ motion had

been granted would be purely speculative.” Jd. The

Court concluded that because the record was devoid of

findings “that might support a conclusion that

administration of antipsychotic medication was necessary

to accomplish an essential state policy ... we have no basis

for saying that the substantial probability of trial

prejudice in this case was justified.” Jd. at 138.

Therefore, a harmless-error analysis did not apply

to Riggins because the Court had no way of determining,

even at the very least, the nature of the error that might

have occurred. Indeed, Riggins did not allege specific

constitutional violations; he generically claimed that

forced administration of antipsychotics denied him the

ability to assist in his defense and “prejudicially affected

his attitude, appearance, and demeanor at trial.” Jd. at

131.

But that is not the case here. ShisInday has made

it clear that he is alleging a Confrontation Clause

violation pertaining to the admission of Gilliam’s

testimony. This is a claim that can be assessed for

harmless error. For example, the record does not contain

any evidence that ShisInday was actually unable to assist

in the cross-examination of Gilliam due to being

medicated at his 1982 trial. The district court correctly

noted that “ShisInday offers no compelling area in which

he could have cross-examined Mr. Gilliam differently

than his attorneys did in the first trial. ShisInday makes

no showing that deeper cross-examination of Mr. Gilliam

in the second trial would have lessened the incriminating

«ite

nature of his testimony.” Petition, Appendix C at 46.

Moreover, the federal district court’s original reversal

under Riggins was based solely on the trial court’s failure

to make the factual findings necessary te justify

ShisInday’s medication, not that ShisInday was

incompetent to confront Gilliam. Jd., Appendix E. In

fact, as shown above, the federal district court found that

ShisInday was competent to stand trial and that he was

capable of assisting his attorneys in cross-examining the

witnesses.

Be that as it may, even if Gilliam’s 1982 testimony

was tainted under Figgins, this does not save ShisInday.

The fatal flaw in ShisInday’s argument is that he is

focused on the wrong trial. In other words, the issue is

not whether ShisInday’s confrontation rights were

impeded during his first trial when he was on

antipsychotics, but whether the reading of Gilliam’s

testimony at ShisInday’s second trial transgressed those

rights. ShisInday was not medicated the second time

around, so Arggins is no longer relevant. Therefore, this

is strictly a Confrontation Clause claim pertaining to the

admission of evidence during retrial. Consequently, as

discussed below, a harmless-error analysis absolutely

applies.*

4 Although, the Director is assuming arguendo that

error occurred, he is not conceding this point. Gilliam’s

testimony was debatably admissible under the Texas Rules of

Evidence, Rule 804(b)(1), former testimony from an

unavailable declarant whom the defendant had an opportunity

to cross-examine. As shown above, the record indicates that

ShisInday was not denied an opportunity to develop Gilliam’s

1982 testimony through cross-examination, despite

ShisInday’s medicated state. Nonetheless, because this case

-14-

ShisInday offers the novel argument that his

second trial was, in essence, a continuation of the first

and, consequently, that Riggins affects both. Petition at

16. ShisInday disregards that the Aiggins error was

cured when he received a second trial and that the two

trials were sixteen years apart. Moreover, this Court has

never held that Aiggins error, nor any error for that

matter, carries over from one trial to another. And

ShisInday cites to no precedent holding that a second

trial constitutes a continuation of the first. The adoption

of ShisInday’s argument would require the creation of a

new rule constitutional law barred under Teague v. Lane,

489 U.S. at 310. It would also lead to the absurd result

of never-ending trials and render meaningless the states’s

interest in finality. In short, this is not a legitimate

reason for granting certiorari review.

B. The harmless error doctrine applies

to ShisInday’s claim; Crawford v.

Washington does not alter that rule.

Assuming that the trial court erroneously admitted

Gilliam’s testimony at ShisInday’s second trial, ShisInday

must establish harm to obtain federal habeas corpus

relief. This Court has repeatedly held that Confrontation

Clause violations are subject toa harmless-error analysis.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); O/den

v. Kentucky, 488 U.S. 227, 232-33 (1988); Coy v. Iowa,

487 U.S. 1012, 1021-22 (1988); Neder v. United States,

527 U.S. 1, 18 (1999); Lilly v. Virginia, 527 U.S. 116, 139-

40 (1999). Moreover, under Brecht v. Abrahamson,

federal habeas relief may not be granted for trial error

can be more easily resolved on the harmless-error issue, the

Director will not brief this matter any further.

a

gs

o] §-

that, although of constitutional magnitude, did not have

a “substantial and injurious effect or influence in

determining the jury’s verdict.” 507 U.S. 619, 637-38

(1993) (quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946)).

ShisInday argues that the Court’s holding in

Crawford“requires reconsideration of the use of harmless

error analysis in relation to the Confrontation Clause.”

Petition at 18. In Crawford, this Court held that the

admission of a wife’s out-of-court statements to police

officers, regarding an incident in which the defendant,

her husband, allegedly stabbed the victim, violated the

Confrontation Clause. The Court held that it was

irrelevant whether the wife’s statements were deemed

reliable by the trial court because the statements were

testimonial and the defendant was not given prior

opportunity to cross-examine his wife. 541 U.S. at 66°68.

ShisInday now contends that Crawford distinguishes

Confrontation Clause allegations from other trial errors

because this Court stated that the lack of opportunity to

cross-examine “alone is sufficient to make out a violation

of the Sixth Amendment.” Jd. at 68. ShisInday also

argues that violations of the Confrontation Clause are

different because “[t]here is no way to reliably quantify or

predict what would have happened” had he been able to

cross-examine Gilliam. Petition at 19. Although Gilliam

was cross-examined at ShisInday’s first trial, ShisInday’s

argument fails for five additional reasons.

First, the Court lacks jurisdiction to even consider

this claim. ShisInday did not claim in his application for

a COA that Crawford altered the settled rule that

Confrontation Clause allegations are subject to a

harmless:error analysis. Petition, Appendix A at 15-17.

-16-

His claim pertained solely to Riggins. Therefore, under

28 U.S.C. § 1254(1), this Court cannot consider

ShisInday’s “structural error” allegation because it was

not “pressed [in] or passed on’ by the Court of Appeals.”

Wells, 519 U.S. at 488 (quoting Williams, 504 U.S. at 41).

Second, ShisInday is completely misreading

Crawford. The Crawford Court only concluded that an

indicia-of-reliability test does not apply to testimonial

statements. The Court did not reach the issue of

harmless error at all. Indeed, the Court did not reverse

Crawford’s conviction; it reversed the decision of the

Washington Supreme Court that the challenged

testimony was reliable and remanded the case to that

court “for further proceedings not inconsistent with this

opinion.” Crawford, 541 U.S. at 69. Also, the

Washington Supreme Court did not reach the issue of

harmless error when it previously reinstated Crawford’s

conviction. State v. Crawford, 54 P.3d 656 (Wash. 2002).

Implicit in the Court’s remand is that the Washington

Supreme Court determine whether the error was

harmless. For example, in Lilly v. Virginia, this Court

held that a defendant’s right to confrontation was

violated and concluded: “Adhering to our general custom

of allowing state courts initially to assess the effect of

erroneously admitted evidence in light of substantive

state criminal law, we leave it to the Virginia courts to

consider in the first instance whether this Sixth

Amendment error was ‘harmless beyond a reasonable

doubt.” 527 U.S. at 139-40 (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)). Then, asin Crawford,

the Court remanded the case for further proceedings. Jd.

at 140. ShisInday, therefore, cannot rely on Crawford to

overcome the harmless-error question. See Texas v.

Cobb, 532 U.S. 162, 169 (2001) (“Constitutional rights are

tt?

not defined by inferences from opinions which did not

address the question at issue.”).

Third, assuming for a moment that Crawford

announced a new rule beneficial to ShisInday, he still

could not rely on it. In Whorton v. Bockting, 127 S. Ct.

1173, 1183-84 (2007), this Court held that Crawford does

not apply retroactively to cases on collateral review.

Fourth, this Court has already addressed

ShisInday’s concern about the impact on a trial stemming

from a defendant’s inability to confront a witness. In Coy

v. Jowa, this Court recognized that an assessment of

harmlessness with regard to Confrontation Clause

violations requires a _ particular approach. The

assessment “cannot include consideration of whether the

witness’ testimony would have been unchanged, or the

jury’s assessment unaltered, had there been

confrontation” because that involves speculation. 487

U.S. at 1021-22. “{H]armlessness must therefore be

determined on the basis of the remaining evidence.” Jd.

at 1022. Consequently, Coy undermines ShisInday’s

belief that courts “cannot determine, without cross-

examination, what impact unconfronted testimony had on

a trial overall.” Petition at 20.

Fifth, in Arizona v. Fulminante, 499 U.S. 279

(1991), this Court divided constitutional error into two

classes: trial error and structural defects. Jd. at 307-08.

Trial errors are those that occur during the presentation

of the case to the jury and include most constitutional

errors. Jd. at 306-07. They may “be quantitatively

assessed in the context of other evidence presented in

order to determine whether [the admission of evidence]

was harmless beyond a reasonable doubt.” /d. at 307-08.

-18-

The error ShisInday alleges clearly falls into this category

because it pertains to his alleged inability to confront a

witness. Only a handful of errors amount to structural

defects. These include the denial of counsel, the denial of

counsel of choice, the denial of self-representation, the

denial of a right to a public trial, and the denial of the

right to trial by jury by the giving of a defective

reasonable-doubt instruction. United States v. Gonzalez-

Lopez, 126 S. Ct. 2557, 2564 (2006). This Court has

never held that Confrontation Clause errors are of this

ilk. ShisInday is arguing that Van Arsdall, et al., should

be overruled, which is a request for a new ruie of

constitutional law. Therefore, this claim, like the Riggins

allegation above, is barred under Teague v. Lane.

C. Any error was unquestionably

harmless given the substantial

evidence of ShisInday’s guilt.

Both the Fifth Circuit and federal district court

determined that any Confrontation Clause violation was

harmless under Brecht v. Abrahamson. Petition,

Appendix A at 16-17, Appendix C at 45-46. This is not a

debatable conclusion.

Indisputably, Gilliam’s testimony that he sold the

gun to ShisInday was not significant. The gun —

introduced as State’s Exhibit 10 — had already been

identified as ShisInday’s gun by Martha Tarver, Doyle

Peels, and Peels’ friend, Ronald McHenry. 15 RR 55-56,

97, 119-20. The gun was seen in ShisInday’s possession

shortly before Harrison’s murder, id., and it was

recovered from the driver's side floorboard of ShisInday’s

car covered in blood. /d. at 41; 17 RR 123; 18 RR 111.

The blood on the gun matched Harrison’s DNA profile. 18

«1d.

RR 223. Blood was also found on both the inside and

outside of the car. 15 RR 40-41; 17 RR 122; 18 RR 110.

When the police picked up ShisInday in Galveston, he

appeared to have blood stains on his shirt and pants. 17

RR 105. Further, a neighbor confirmed seeing

Shisinday’s car in Harrison’s driveway until

approximately midnight, when he noticed smoke and a

flash of orange coming from Harrison’s home, later

determined to have been an intentional fire set in the

living room and bedroom. 15 RR 162-64, 183-87.

The most significant evidence presented at trial

was, of course, ShisInday’s confession. SX 40; 17 RR 217-

39. ShisInday became visibly upset when the police

showed him a morgue photograph of Sylvia Harrison. 17

RR 109, 208. He asked officer Johnny Freeze if they

could talk for a moment, and then he volunteered that he

murdered Harrison. 17 RR 111. ShisInday’s written _

confession, which is extremely lengthy and took several

hours to compose, followed. Jd. at 112, 217-39; SX 40.

The details of his confession were confirmed when the

police found Sylvia Harrison’s nude body and conducted

their investigation. For example, the police discovered

her body submerged in the San Jacinto River. 17 RR 187-

97. Just as ShisInday stated, cinder blocks had been tied

to her ankles and neck. /d. at 196-97. She had been shot

in the head, and she sustained numerous contusions and

three stab wounds to the face, consistent with Peels

“hitting” Harrison in the head with his knife. 18 RR 144-

48. Further, Harrison’s clothes and personal items were

found in the dumpster ShisInday mentioned. Jd. at 65-

73. The condition of her clothes revealed that they had,

in fact, been cut off. Jd. When the police searched

ShisInday’s car, they found — aside from the gun - a

white and orange tinted rope, a knife, and a fan belt cover

-20-

in the trunk. /d. at 109-13; 17 RR 180. At Harrison's

home, the police noticed a new fan belt on hercar. 17 RR

84. Inside her purse was a receipt for a fan belt. Jd. at

85. The owner of an auto parts store testified that

Harrison came into the store with two men and

purchased the belt. Jd. at 180. Finally, ShisInday hada

noticeable human bite mark on his finger, which he

initially claimed was a dog bite. 15 RR 37-38.

In short, the evidence of ShisInday’s guilt is

substantial. Nonetheless, ShisInday contends that

Gilliam’s testimony was harmful because the other

testimony linking him to the gun was tainted by the

personal connections of the witnesses to Peels. Petition

at 24. However, this is merely supposition; ShisInday

has provided nothing to show that this testimony was

unreliable simply because some of the witnesses are

related to Zendal Peels. Regardless, as the district court

noted, Ronald McHenry is not related to the Peels family.

Petition, Appendix C at 45. Although ShisInday argues

that McHenry is a friend of the family, Petition at 24 n.6,

ShisInday has not demonstrated that this somehow taints

McHenry’s testimony. Moreover, all of these witnesses

were cross-examined regarding their association to Peels.

15 RR 60-61, 106, 114, 127. Thus, the jury was not

oblivious to these facts.

More importantly, Gilliam’s testimony was trivial

because ShisInday’s ownership of the gun lacks direct

relevance to his conviction. The issue is not whether

ShisInday bought the gun from Gilliam, but whether

ShisInday shot and. killed Harrison. Considering

ShisInday’s confession, that the gun was found in his car

covered in Harrison’s blood, and the other evidence

discussed above, ShisInday’s guilt for committing capital

at.

murder is not in doubt. Therefore, Gilliam’s testimony

did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507

U.S. at 637-38.

ShisInday also claims that any error was harmful

because he “argued” before the jury that his confession

was not reliable. Petition at 25. This is a meritless point.

The trial court held a suppression hearing and concluded

that ShisInday’s confession was properly obtained and

admissible. 16 RR 1-101. Subsequently, the Court of

Criminal Appeals, federal district court, and Fifth Circuit

all determined that ShisInday’s confession was not

acquired through coercive state action. Petition,

Appendix A at 11-14, Appendix C at 63-68, Appendix D at

13-21.

Next, ShisInday contends that the Fifth Circuit

erred in placing the burden on him to establish harm.

Petition at 25. He is apparently referring to the following

language in the Fifth Circuit’s opinion: “ShisInday argues

that when a petitioner establishes a Riggins violation, he

need not prove prejudice or harm to obtain relief. We

disagree.”” Petition, Appendix A at 16. ShisInday is

misconstruing this statement, which was merely a brief

response to Ais allegation. The Fifth Circuit did not

explicitly assign a burden of proof to ShisInday. This is

demonstrated by the court’s conclusion: “Based on our

review of the record, we agree with the Court of Criminal

Appeals that the evidence was cumulative of other

° Because the Fifth Circuit resolved ShisInday’s claim

under a harmless-error analysis, it did not consider whether

a. Riggins violation occurred or whether ShisInday’s claim

could even be characterized as such.

BS

properly admitted evidence and thus its admission did

not have a substantial and injurious effect on the

verdict.” Jd. at 17 (emphasis added). The appellate

court's approach is entirely consistent with O'Neal v.

McAninch, 513 U.S. 432, 436-37 (1995), in which this

Court — addressing the role of a judge who applies a

harmless-error standard — asserted, “[Wle think it

conceptually clearer for the judge to ask directly, ‘Do I,

the judge, think that the error substantially influenced

the jury’s decision” than for the judge to try to put the

same question in terms of proof burdens (e.g., ‘Do I

believe the party has borne its burden of showing ...?’).”

Moreover, as in the instant case, “[nlormally a record

review will permit a judge to make up his or her mind

about the matter.” Jd. at 435. It is only when that review

leaves a judge in grave doubt about the likely effect of an

error on the jury’s verdict that the judge must treat the

error as if it did affect the verdict. /d. This is not one of

those cases, and the Fifth Circuit’s analysis was proper.

Finally, ShisInday argues that this Court should

grant certiorari review because lower courts have not

consistently reconciled the harmless-error standard

enunciated in Van Arsda// with that in Brecht. Petition

at 25-27. However, in Fry v. Pliler, 1278S. Ct. 2321, 2325

(2007), this Court explained that Brecht“clearly assumed

that the Kotteakos standard would apply in virtually all

§ 2254 cases.” The only exception is for an “unusual case”

where “a deliberate and especially egregious error of the

trial type, or one that is combined with a pattern of

prosecutorial misconduct ... infect[s] the integrity of the

proceeding.” /d. (quoting Brecht, 507 U.S. at 638 n.9).

This Court has never held, nor has ShisInday

demonstrated, that an alleged Confrontation Clause

violation falls into that category. Therefore, Brecht is

a.

clearly the applicable standard. Once again, implicit in

ShisInday’s claim is a request for a new rule of

constitutional law, which would be Teague barred.

For all of the above reasons, the lower court’s

decision is not debatable, and certiorari review is not

warranted.

II. This Court Does Not Have Jurisdiction To

Consider ShisInday’s Claim That The Texas

Statutory Sentencing Scheme Is Unconstitutional

Because He Failed To Present That Claim To The

Fifth Circuit. Regardless, His Allegation Is

Teague-Barred And Foreclosed Under Jones v.

United States.

ShisInday claims that the statute under which he

was sentenced to death, Article 37.0711 of the Texas Code

of Criminal Procedure, is unconstitutional on its face and

as applied to him. Petition at 27-37. To summarize

ShisInday’s claim, the statute provides that the jury is to

return a “yes” or “no” answer to the deliberateness,

future-dangerousness, and mitigation specialissues. The

jury may not answer “yes” to the deliberateness and

future-dangerousness issues unless all jurors agree and

may not answer “no” unless ten or more agree. With

regard to mitigating circumstances, the jury may not

answer that issue “no” unless all jurors agree and may

not answer “yes” unless ten or more agree. Tex. Code

Crim. Proc. art. 37.0711 § 3(b)-(f). The statute also states

that if the jury is unable to answer any of the special

issues, the court must sentence the defendant to life

imprisonment. Tex. Code Crim. Proc. art. 37.0711 § 3(g).

However, § 3(i) provides: “The court, the attorney for the

state, or the attorney for the defendant may not inform a

-24-

juror or prospective juror of the effect of failure of the jury

to agree on an issue submitted under this article.” Tex.

Code Crim. Proc. art. 37.0711 § 3(i).

ShisInday contends that “the prohibition of this

part, 3(i), operating in conjunction with part 3(g)” is

unconstitutional because it misleads jurors into believing

that “a concurrence of ten or more is needed to answer a

special issue in a way that will result in a life sentence,

when in fact any one juror who believes that the

prosecution has failed to meet its burden can effectively

cause the imposition of a life sentence.” Petition at 30.

The result, ShisInday claims, is that a holdout juror who

believes that life should be the appropriate sentence will

tend to yield to the majority because the juror does not

understand the impact his or her vote will have on the

sentencing decision. Petition at 31-32. ShisInday further

alleges that the statute worked to his detriment because

the jury was deadlocked for several days and was

instructed to continue deliberating. /d. For the following

reasons, ShisInday’s claim cannot succeed, and certiorari

review is not warranted.

A. This Court lacks jurisdiction to

consider the instant claim.

In the Fifth Circuit, ShisInday alleged that he was

deprived of due process because the trial court instructed

the jury to continue deliberating after receiving several

notes that the jury was deadlocked. Petition, Appendix

A at 14-15. ShisInday argued that the trial court’s failure

to instruct the jury that a deadlock would result in a life

sentence, combined with the instruction that ten votes

were needed for a life sentence and the instruction to

continue deliberating, resulted in a coerced death

eee x

-2..

sentence. /d.

Thus, ShisInday’s claim pertained to the trial

court’s instructions. He is now raising a specific

allegation that the statute governing his punishment

proceedings is unconstitutional. Petition at 27-37.

Although there are similarities in the claims, ShisInday

did not give the Fifth Circuit an opportunity to address

the constitutionality of Article 37.0711. Moreover,

ShisInday challenges the statute on Eighth Amendment

grounds, not simply as a violation of due process.

Petition at 32-37. This is a separate issue the lower

courts did not resolve. Therefore, this Court lacks

jurisdiction to review this claim under 28 U.S.C. §

1254(1) because it was not presented to or considered by

the court of appeals. Wells, 519 U.S. at 488; see also

Clingman v. Beaver, 544 U.S. 581, 598 (2005) (“We

ordinarily do not consider claims neither raised nor

decided below.”); Heath v. Alabama, 474 U.S. 82, 87

(1985).

B. Regardless, ShisInday is requesting

a new rule of constitutional law

striking down the Texas statutory

scheme for not requiring courts to

instruct jurors on the consequences

of a deadlock, although this Court

has held that such a rule is not

relevant to a jury’s role in

sentencing.

Lack of jurisdiction notwithstanding, this Court

has never held that Article 37.0711 is unconstitutional for

containing the “objectionable” language of § 3(i). See

Webb v. Collins, 2 F.3d 93, 95-96 (5th Cir. 1993). Indeed,

a

this Court has repeatedly held that the Texas special

issues pass constitutional muster. Johnson v. Texas, 509

U.S. 350, 360-361 (1993); Franklin v. Lynaugh, 487 U.S.

164, 182 (1988); Jurek v. Texas, 428 U.S. 262, 279 (1976).

Moreover, the Texas Court of Criminal Appeals has

concluded that the statutory language prohibiting jurors

from being informed of the consequences of a deadlock is

not unconstitutional. Hughes v. State, 897 S.W.2d 285,

301 (Tex. Crim. App. 1994); Sterling v. State, 830 S.W.2d

114, 121-22 (Tex. Crim. App. 1992); Davis v. State, 782

S.W.2d 211, 221-22 (Tex. Crim. App. 1989). Therefore,

ShisInday’s argument, which would require this Court to

announce a new rule of constitutional law, is barred

under Teague v. Lane.

Moreover, this Court has rejected the theory that

a trial court’s failure to instruct the jury as to the

consequences of deadlock gives rise to an Eighth

Amendment violation. In Jones v. United States, the

capital defendant wished to inform the jury that the trial

judge would impose a life sentence without parole if the

jury could not reach a unanimous punishment verdict.

527 U.S. at 379. This Court noted that such issues do not

involve the failure to provide the jury with mitigating

evidence, but only whether the jury was misled as to its

role in the sentencing process. /d. at 381-82. In rejecting

this contention, the Court held:

The truth of the matter is that the

proposed instruction has no bearing on the

jury's role in the sentencing process.

Rather, it speaks to what happens in the

event that these jury is unable to fulfill its

role — when deliberations break down and

the jury is unable to produce a unanimous

x, 2

sentence recommendation. Petitioner's

argument, although less thanclear, appears

to be that a death sentence is arbitrary

within the meaning of the Eighth

Amendment if the jury is not given any bit

of information that might possibly influence

an individual juror’s voting behavior. That

contention has no merit. We have never

suggested, for example, that the Eighth

Amendment requires a jury be instructed as

to the consequences of a breakdown in the

deliberative process. On the contrary, we

have long been of the view that “[t)he very

object of the jury system is to secure

unanimity by a comparison of views, and by

arguments among the jurors themselves.”

Allen v. United States, 164 U.S. 492, 501 JJ

(1896).

Id. at 382. This Court also “recognized that in a capital

sentencing proceeding, the Government has ‘a strong

interest in having the jury express the conscience of the

community on the ultimate question of life or death.” Jd.

(quoting Lowenfield v. Phelps, 484 U.S. 231, 238 (1988)).

Thus, the instruction ShisInday desires “might well have

the effect of undermining this strong governmental

interest.” Jd.

Further, the Court declined to require that this

type of instruction be given in every capital case. The

Court held: “While this was a correct statement of law it

concerned a procedural matter and was not one which

should have been the subject of an instruction. It would

have been an open invitation for the jury to avoid its

responsibility and to disagree.” /d. at 383-84 (quoting

ee : : ee ‘ ; ‘ § « “yb ae ae

SOR Pe 1. eee. es Oe AeA eT CET ET ee oe a eR, ED CON eee ARTE DS OR Cote Lee We aD COE a RO EE OME TL OT Ie PRGA Ue ar ee eee MP Ee

-28-

Justus v. Virginia, 266 S.E.2d 87, 92 (1980)). Therefore,

despite ShisInday’s complaints, he has no constitutional

right to the instruction. Consequently, Jones forecloses

his challenge to the statute.

C. ShisInday’s argument that Jones is

factually distinct from his case and,

thus, should not apply is ineffectual.

Jones did not hold that an

instruction regarding the

consequences of a deadlock must be

given in certain cases. And even if it

did, this would not be one of those

cases because the Texas statutory

scheme does not mislead jurors.

Although ShisInday concedes that Jonesaddresses

the issue he is raising, he contends that his case differs in

several respects. First, he argues that Jones left open the

possibility that the failure to instruct the jury as to the

consequences of a deadlock could give rise to an Eighth

Amendment problem if the jury was “affirmatively misled

regarding its role in the sentencing process.” Jones, 527

U.S. at 381-82 (quoting Romano v. Oklahoma, 512 U.S. 1,

9 (1994)); Petition at 33. ShisInday then states that the

Texas statute is affirmatively misleading because, unlike

the federal statute at issue in Jones, it requires the trial

court to instruct the jury that a concurrence of ten jurors

is needed to sentence a defendant to life although “one

juror has the power to effect a life sentence.” Petition at

33.

ShisInday’s argument is wholly meritless. Jones

proclaimed that a court's failure to give this instruction

could lead to a constitutional dilemma in theory. Jones,

-29-

527 U.S. at 381. In practice, however, the refusal to do so

does not mislead because it has no bearing on the jury’s

role in sentencing; rather, it pertains to a procedural

matter in the event the jury cannot fulfill it’s role. Jd. at

382. Further, by quoting Romano, the Jones Court was,

in essence, referring to its holding in Caldwell v.

Mississippi, 472 U.S. 320 (1985).° In Caldwell, this Court

held that a prosecutor misled the jury about its role in

sentencing when he stated that the jury’s responsibility

for sentencing the defendant lay elsewhere. Jd. at 336-40.

But to establish a Ca/dwel// violation, a petitioner must

show that remarks to the jury improperly described the

jury’s role under state law. Dugger v. Adams, 489 U.S.

401, 407 (1989). That did not happen in ShisInday’s case

because the trial court’s instructions conformed precisely

with Texas law. ShisInday is complaining about what

the court did not say regarding a deadlock, which, as

Jones makes clear, is not required.

Importantly, the Court of Criminal Appeals has

repeatedly pointed out the flaws in arguments, like

ShisInday’s, that the Texas 12-10 rule is misleading. In

Lawton v. State, 913 S.W.2d 542, 559 (Tex. Crim. App.

1995), the court explained:

[While it is true that the jury is instructed

that they may not answer any of the special

issues in a manner that would result in a

life sentence unless ten jurors agree to that

answer, this instruction follows’ the

instruction that the jury may not answer

6

The petitioner in Romano argued that he should be

granted relief pursuant to Caldwell. Romano, 512 U.S. at 8-

10.

peat

-30-

any of the special issues in a manner

resulting in capital punishment unless the

verdict is unanimous. Under these facts,

appellant's argument that jurors will be

misled lacks merit; every juror knows that

capital punishment cannot be imposed

without the unanimous agreement of the

jury on all three special issues. The jury is

not informed of the consequences of a hung

jury, but each juror will know that without

his or her vote the death sentence cannot be

imposed.

Id. at 559 (emphasis added). And in Draughon v. State,

831 S.W.2d 331 (Tex. Crim. App. 1992), the court

correctly held that a defendant has no right for the jury

to be told of the consequences of their failure to agree

because “la]bstention is not a jury option. Rather ... it is

merely a consequence of the jury’s inability to exercise its

available options by reaching a verdict. It is not, nor

would it be appropriate to suggest that it is, a verdict

itself.” Jd. at 338. Thus, ShisInday’s argument that the

statute misinforms jurors about their role has no basis in

law or fact.

Second, ShisInday contends that Jones differs

because this Court held that lower courts are not required

in every capital case to give an instruction regarding the

consequences of a deadlock, whereas Texas law “prohibits

the trial court from ever instructing the jury” in that

manner. Petition at 33-34 (emphasis in original). This is

a frivolous argument. Obviously, if such an instruction is

not required, then a state can never run afoul of the

Constitution by repeatedly refusing to give it. The Jones

Court did not hold that a jury must, or even should,

<3}.

receive the instruction in certain cases.

Third, ShisInday argues that the Texas statute,

unlike the federal statute in Jones, appears to operate by

mistake and not design. Petition at 34. Prior to 1981, in

a capital case, a hung jury on punishment resulted in a

mistrial. See Padgett v. State, 717 S.W.2d 55, 58 (Tex.

Crim. App. 1986). In 1981, the Legislature amended the

statute to require the imposition of a life sentence in the

event ofa hungjury. Jd. The purpose of this change was

to prevent the lengthy delays and expense of retrying a

capital defendant. Jd. The Legislature also added the

provision banning the jury from receiving information

about the consequences of a deadlock. Jd. ShisInday

argues, in essence, that the Legislature put no

consideration into how the new amendments would

conflict with, or “render obsolete,” the 12-10

requirements. Petition at 35. ShisInday is incorrect

because there is no conflict. As stated above, a deadlock-

imposed life sentence is a procedural issue. It is not, and

never has been, a sentencing option for a jury under

Texas law. Moreover, there is no evidence that the

Legislature ever intended a non-answer on a special issue

to actually be an answer. See Padgett, 717 S.W.2d at 58.

Although that is now the procedural outcome, the

Legislature’s obvious goal via the two amendments was

to prevent retrials but not absolve the jury of its

responsibility to answer the special issues.

And that is one the primary problems with

ShisInday’s claim: he fails to comprehend why Texas has

the 12-10 rule and the prohibition against informing the

jury of the consequences of a deadlock. The 12-10 rule

was designed to stress juror unanimity and consensus

either for or against a death sentence. It is “likely to

tthe

stimulate in jurors a more serious approach to their task

by encouraging them to reach agreement through

continued deliberation rather than to abandon hope of

consensus prematurely.” Draughon, 831 S.W.2d at 337.

Moreover, “(t]he issues are framed in a manner which

permits them to be answered either affirmatively or

negatively, and it is the purpose of the deliberative

process to resolve juror vacillation.” Nobles v. State, 843

S.W.2d 503, 510 (Tex. Crim. App. 1992). This also

discourages a juror from skirting his or her responsibility

by failing to return a vote. /d. Additionally, although

ShisInday complains that the rule somehow “coerces” a

holdout juror into voting with the majority, the opposite

could happen if a juror is aware of the consequences of a

deadlock. In other words, “a juror convinced of the

appropriateness of a life sentence [might] refuse to

consider the evidence and the views of other jurors in

support of the death penalty, knowing that his blind

obstinance would preforce result in a life sentence.”

Davis, 782 S.W.2d at 221 (quoting Barfield v. Harris, 540

F.Supp. 451, 472 n.17 (E.D.N.C. 1982)). Thus, as the

Jones Court acknowledged, acceptance of ShisInday’s

argument would provide jurors an “open invitation” to

abdicate their responsibilities in order to reach a desired

outcome.

Fourth, and related to the above, ShisInday claims

that the statute operates in an arbitrary manner because

the ban of § 3(i) was lifted after 1991 but remains in place

for him. Petition at 35. This is an erroneous assertion.

In 1991, the Texas Legislature did not eliminate the

language prohibiting the trial court or the parties from

informing the jury of the consequences of the failure to

agree on the special issues; it simply moved that

language to the end of Article 37.071 § 2(a). H.B. 9, § 15,

mF

72nd Leg., 2nd Sess. (Tex. 1991). Therefore, the “ban” is

still in place.

Fifth, ShisInday claims that the facts of his case

are distinguishable from Jones because the petitioner in

Jones was unable to show that any confusion worked to

his detriment, whereas a few jurors in ShisInday’s case

held out for several days. Petition at 36. Thus, he argues

it is likely the jurors would have continued to hold out

had they known of the consequences of a deadlock. Jd.

However, Jones did not hinge on the duration of juror

deliberations; the Court simply stated that where the

effect of an alleged instruction error is so uncertain, a

defendant cannot show that his substantial rights were

violated. Jones, 527 U.S. at 394-95. And because

confusion over the consequences of a deadlock could lead

a jury in either direction, it’s potential effect is

speculative. Jd. Moreover, ShisInday’s claim is premised

on the faulty assumption that heated deliberations

equates to confusion. But the punishment phase of his

case lasted three days, eighteen witnesses were

presented, 120 exhibits were introduced, and the jury was

required to reconsider the evidence presented during

guilt-innocence. Petition, Exhibit C at 25. The

reasonable deduction is not that the jurors were confused,

but that they had significant disagreements about the

weight of the evidence. And despite those disagreements,

they did make slow progress in reaching a verdict, which

is why the trial court informed the jurors to continue

deliberating and did not declare a hung jury. /d. at 25-

37.

Last, ShisInday asks this Court to grant certiorari

review in order to clarify those circumstances in which an

instruction regarding a deadlock might be appropriate.

Bh.

Petition at 36. But, as stated, Jones did not delve into

this issue because that information has no relevance to

the jury’s role in sentencing and, thus, cannot mislead.

Jones, 527 U.S. at 382. Either there are no such

circumstances or they are so abstract that further

consideration of the matter would be futile. Regardless,

even if this Court did identify a scenario where a court

should give an instruction about the consequences of a

deadlock, (1) it would not be the instant case, and

(2) ShisInday would be barred from relying on the new

rule under Teague v. Lane.

Based on the foregoing, ShisInday’s complaints

about the Texas sentencing scheme are waived and

meritless. Consequently, certiorari review is not

warranted.

CONCLUSION

For the above reasons, the Director respectfully

requests that ShisInday’s petition for writ of certiorari be

denied.

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

KENT C. SULLIVAN

First Assistant Attorney General

ERIC J.R. NICHOLS

Deputy Attorney General

for Criminal Justice

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EDWARD L. MARSHALL

Chief, Postconviction

Litigation Division

*W. ERICH DRYDEN

Assistant Attorney General

State Bar No. 24008786

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

(512) 320-8132 (Fax)

ATTORNEYS FOR RESPONDENT