PEOPLE v. WILLIAMS (GEORGE BRETT)

Supplemental Appellant’s Brief

Cal.January 30, 2013

SUPREME COURTCOPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) No. 8030553 ) Vv. ) (Los Angeles County ) Superior Court ) TA 006961) ) GEORGE BRETT WILLIAMS, ) ) Defendant and Appellant. ) ) SUPPLEMENTAL APPELLANT’S BRIEF DANIEL N. ABRAHAMSON Bar No. 158668 918 Parker St., Bldg A21 Berkeley, CA 94710 Telephone: (510) 229-5212 Attorneyfor Appellant DEATH PEMALIY ° TABLE OF CONTENTS INTRODUCTION ou... cccceccescesceceeeecneeceeeeeenressaeesensescsaseaneeseaessesessneesieeennecsaneresensaseatenans 1 ARGUMENT. uui.ccccccccccsssessscecssesseeeeeeesaeeeeceeeesnecesesssaseesesaseaeeessssesseeeesssesaeeteaesenesenanensensgtey 3 I. THE RECORD CONTRADICTS THE PROSECUTOR’S POST-HOC RATIONALIZATIONSFOR HIS STRIKES OF AFRICAN-AMERICAN FEMALE JURORS. w.ccccccscsscssessecceseescsesecescessasesenseseeesereneeneecaeeseeeeesesaeeaneees 3 A. Family History ofLaw Enforcement Contacts. ........:seeeseeeeeeeeees 3 B. Alleged Uncertainty about Death Penalty. .......cecessesesereeeeeee 4 C. Volunteer Work at Hospital. 0.0... ccceccsesescceeesssesteeeereneeeeseeeeeeeens 6 D. The Prosecutor Mischaracterized Juror Cooksie’s Written Answer to - Claim She Believed Something She Clearly Did Not.......daeveceeeeeess 6 IL. NEW ARGUMENTXV-E: APPELLANT’S COUNSEL FOR HIS MOTION FORNEW TRIAL RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE BY FAILING TO CORRECT THE PROSECUTOR’S ERRORS AT MOTION FORNEW TRIAL PROCEEDINGS AND REBUTTING THE PROSECUTOR’S BELATED JUSTIFICATIONS FOR HIS PEREMPTORYSTRIKES. ou...eset 8 CONCLUSION uoeeececccecccccescecsssssseeceeeeseesessesesesasensseeseneaeeseesesauessaceeeescessneessaesegesenssnenensges 10 TABLE OF AUTHORITIES Cases People v. Lopez (2008) 42 Cal. 4th 960 ......cccccceeseeseseeessneterensssssssesssenesssereceneeerenensnrsaas 9 Miller-El v. Dretke (2005) 545 U.S. 231 .ccccscsssssseesseserensesceeteeeneererseracssenssenseensseenenes 5-7 People v. Mendoza Tello (1997) 15 Cal. 4th 264 oo... eeeeeesesserererenetesesesesssnrereetensereneretens 9 Constitutional Provisions US. Const., 6th AMend. ....cccccceescceseereesssseseasssseeseeseecseeeasenecsecseeceenessesssesasensessenseseaeswee D 13 INTRODUCTION In December 1992 at Mr. Williams’s motion for new trial proceeding, the prosecutoroffered additional reasonsto justify his excusal — 15 monthsearlier in September 1991 — of five African-American women from appellant’s venire. Neither appellantin his openingorreply briefs, nor the State in its responsebrief, referred to or relied on the prosecutor’s 1992 justifications in addressing the Batson/Wheeler issue on direct appeal. And for good reason: the prosecutor’s post-hoc rationalizationsfor his strikes, fifteen months after he exercised them, offered without the opportunity for rebuttal by defense counsel, and unremarked uponbythetrial court, shed no light on the prosecutor’s reasonsatthe time ofjury selection for his strikes. They were thus wholly irrelevant to the proper determination of appellant’s Wheelerissue. The prosecutor’s 1992 justifications did not becomeanissue until January 11, 2013, when the Court asked the parties to examine a mistake that the prosecutor made while he tried to backfill his justifications for his peremptory challenges. The Court’s January 2013 request for additionalbriefing, and the State’s letter brief of January 23, 2013, now cast a new spotlight on the prosecutor’s 1992 justifications for his 1991 strikes. Indeed, the thrust of the State’s letter brief on January 23, 2013, suggests, for the first time, that the justifications offered by the prosecutor in 1992are a natural continuation of the Wheeler hearings in 1991 and that the prosecutor’s justifications providedat the motion for newtrial hearing can simply be transferred back fifteen months in time to shedlight on the reasonsfor his peremptory challenges atthe time ofjury selection — the only relevant time-period for assessing Wheeler error. (See Respondent’s Letter brief at pp. 8-9 (arguing that the prosecutor simply read into the motion for new trial record “his recollection from his notes” on which his peremptory challenges had been based).) In light of the new focus by the Court and Respondent on the motion for newtrial with respect to appellant’s Wheeler issue, appellant submits this supplemental brief in orderto: 1) Bring to the Court’s attention the record evidence that undercuts each of the late-comingjustifications offered by the prosecution at the motion for new trial for his culling ofAfrican-American female jurors; and 2) Present a new argument, XV- E,that of Ineffective Assistance of Motion for New Trial Counsel — an argumentthat washeretofore not reasonably considered by the parties to be part of the direct appeal, but is now apparently at issue. Forthese reasons, discussed more fully below, Wheéler error must be found. ARGUMENT IL THE RECORD CONTRADICTS THE PROSECUTOR’S POST-HOC RATIONALIZATIONS FOR HIS STRIKES OF AFRICAN- AMERICAN FEMALE JURORS. A. Family History of Law Enforcement Contacts. At the 1992 motionfor newtrial hearing, the prosecutor, after referring to his jury selection files, supplemented his justification for previously striking Retha Payton, Paula Cooper-Lewis, and Harriett Reed by noting, without explanation, that these African- American female jurors variously had family members who had run-ins with law enforcementor the criminaljustice system, or who were victims of crime, or who visited personsin custody. See 54 RT 4167 (Payton’s son arrested by LAPD and Long Beach Police, but never charged); 54 RT 4166 (Cooper-Lewis’ brothersentto prison for drugs), id. (Cooper-Lewisvisited relatives in custody); 54 RT 4165 (Reed had a brotherin jail); id. (Reed had a brother who wasshot). These proffered explanationsforstrikes, however, are at stark odds with the situations of nine seated jurors, two alternate jurors and two jurors who were seated on jury panels accepted by the prosecutor.’ This comparative juror analysis, sanctioned by | See, e.g., 4 CT-Supp. 1, 944 (seated juror Richard Coonarrested three times in Los Angeles, found guilty); id. (Coonvisited juvenile correctional facility); 23 CT-Supp. 1, 5628 (seated juror Vernon Wordenarrested and found guilty and spent time in custody); id. (Worden’s mothera victim of mugging); 23 CT-Supp1. 5593 (seated juror Bonnie Bean had two family members arrested); 22 CT-Supp 1, 5453 (seated juror Billy Haley had son who wasarrested, convicted, and sent to juvenile camp); id. (Haley’s mother a victim of crime); 23 CT Supp-1, 5803 (seated juror Willie Jackson arrested and 3 this Court in People v. Lenix (2008) 44 Cal.4th 602, 612 discloses that the prosecution’s proffered reasons werepretextual. B. Alleged Uncertainty about Death Penalty. At the motion for newtrial proceeding, the prosecutor belatedly justified his strike of Ms. Cooper-Lewis on the groundthat she had not decided if California should havethe death penalty. 54 RT 4166. But this proffered rationale is also belied by the record, whichreflects that identical or similar answers were provided by a juror seated on a panel accepted by the prosecutor(before being struck by the defense), and an alternate juror.’ jailed for DUD); 12-13 CT-Supp 1, 3042 (seated juror Lyle Stoltenberg visited correctionalfacility to see friend); 2 CT Supp-1, 279 (seated juror Will Collins a victim of crime); 19 CT Supp-1, 4649 (seated juror Charles Smith temporarily held in custody pending paymentoffine); id. (Smith and spouse werevictimsof crime); 13 CT-Supp1, 3146 (seated juror Lela Bohnvisited L.A. County Jail to see neighbor’s son);id. (Bohn victim of crime); 12 CT-Supp. 1, 2971 (alternate juror Joe Acosta had a half-brother arrested and incarcerated for narcotics); 2 CT-Supp. 1, 314 (alternate juror Gloria Earnshaw had a son arrested but not charged for DUI); 4 CT-Supp 1, 839 Guror panelist Argle Eldridge arrested for and convicted of a crime of violence for which he served 180 daysin jail); 12 CT-Supp 1, 2796 (juror panelist Wanda Muncey had a son who was arrested but against whom no charges werefiled.) 2 See 12 CT-Supp.1, 2796 (panelist Wanda Muncey,stating “I don’t know”if California should have the death penalty); 4 CT-Supp 1, 804 (alternate juror Daniel Villareal, stating “I am neither for [the death penalty] or againstit,” and declaring that California should not have the death penalty.) Theprosecutor belatedly justified his strike of Harriett Reed on the ground that she wrote “no comment” on her juror questionnaire about the purpose of the death penalty. 54 RT 4165. But this proffered rationale cannot be squared with the prosecutor’s acceptanceof a juror seated on a panel passed on by the prosecutor (before being struck by the defense) who provided similar or more provocative responses.’ Norcanit be reconciled with the prosecutor’s failure to question Ms. Reed about her response during either Hovey voir dire,see 7 RT 390-392, or general voir dire, indicating that it was not of particular concern to him at the time. See Miller-El v. Dretke (2005) 545 U.S. 231, 246. The prosecutor belatedly justified his strike of Harriett Reed also on the groundthat she felt the death penalty was appropriate for “hardcore murderers” who mutilated victims’ bodies. 54 RT 4165. But this proffered rationale cannot be squared with the prosecutor’s acceptance ofa seated juror and analternate juror who providedstrikingly similar responses.’ Norcanit be reconciled with the response she gave when questioned at voir dire.° 312 CT-Supp 1, 2830 (panelist John Hoover, stating “When would I think about the death penalty?”in responseto a question about whether his views aboutcapital punishment have changedovertime.) 4 12-13 CT-Supp.1, 3042 (seated juror Lyle Stoltenberg, stating that the death penalty should be used to “eliminate those who have committed heinous crimes, e.g., serial killers” (emphases added)); 2 CT-Supp 1, 314 (alternate juror Gloria Earnshaw,stating that the death penalty may be warranted “if the crime committed was proven to be done in absolute malice” (emphasis added).) 5 7 RT 390-91 (responding that crimes with mutilated victims “are the first onesthat really come to mind whenI think of the death penalty,” not limiting herself to only those types of crimes and stating she could impose the death penalty on Mr. Williamsif 5 OF Volunteer Workat Hospital. At the motion for new trial proceeding, the prosecutor belatedly justified his strike of Ms. Cooper-Lewis on the groundsthat she “volunteered at a psychiatric hospital.” 54 RT 4166. Butthis proffered rationale is at odds with the prosecutor’s acceptance of a full-time nurse as a seated juror.® Norcan it be reconciled with the prosecutor’s failure to question Ms. Cooper-Lewis about her volunteer work on Hoveyor generalvoir dire, see 6 RT 359-365, suggesting that the prosecutor’s concern about her hospital-experience was insincere or not deeply felt. See Miller-El, 545 US.at 246. D. The Prosecutor Mischaracterized Juror Cooksie’s Written Answerto Claim She Believed Something She Clearly Did Not. Question 88 of the juror questionnaire asked: “In your opinion, what are the most important causes of crime?” In response to this question, juror Theresa Cooksie wrote: “Kids see others do wrongorselling cocaine. They think that’s fine so they also doit also [sic].”” At the motion for newtrial, the prosecutor belatedly justified his strike ofjuror Cooksie on the groundthat her explanation for the causes of crime, quoted above, aggravating circumstances substantially outweighed mitigating ones.) 6 22-23, CT-SUPP 1, 5558 (seated juror D. Hubbard, identifying vocation as hospital nurse with three years’ experience, delivering “total patient care.”) 721 CT-Supp 1, 5138. reflected Ms. Cooksie’s personal view about crimethat “you know,if everybodyelseis doingit and it’s okay in your neighborhoodthenit’s not that big of a deal.” 54 RT 4166. The prosecutor’s explanationis a blatant mischaracterization ofjuror Cooksie’s words and intent. No reasonable interpretation of Ms. Cooksie’s considered response to the question about the causes of crime could concludethat Ms. Cooksie herselffelt that crimeis not “that big of a deal.” Indeed, responding to the very next question, question 89, Ms. Cooksie said she believed crime had become more serious in recent years, and in responseto question 90, she attributed the increase to “gang violence,’® — a view that dovetailed nicely with the prosecutor’s plan to call expert witnessesat appellant’s trial who would try to tie appellant to major gang activity. The prosecutor’s distortion ofjuror Cooksie’s written response to justify his strike of her 15 monthsafter the fact is further, persuasive evidencethat the prosecutor had no valid race-neutral grounds for excusing her. See Miller-El, 545 U.S. at 545 U.S. 243-44. For the above reasons,the prosecutor’s belated justifications offered at the motion for new trial were pretextual and donot undercut appellant’s claim of Wheeler error. Not only do the reasons “reek[] of afterthought,” id. at 246, but a comparison to other jurors whom the prosecutor did notstrike renders those reasons implausible. 8 Td. I. NEW ARGUMENT XV-E: APPELLANT’S COUNSEL FORHIS MOTION FOR NEW TRIAL RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE BY FAILING TO CORRECT THE PROSECUTOR’S ERRORS AT MOTION FOR NEW TRIAL PROCEEDINGS AND REBUTTING THE PROSECUTOR’S BELATED JUSTIFICATIONS FOR HIS PEREMPTORY STRIKES. Whenthetrial court asked the prosecutor at the motion for new trial proceeding to supplement the record with additionaljustifications for his peremptory challenges, neither the attorney who represented appellant at jury selection (but not attrial), nor the attorney whorepresented appellantat trial (but who absented himself from jury selection) were present in the courtroom. The only attorney present on appellant’s behalf during this portion ofthe newtrial proceeding was the one appointed bythetrial court to represent appellant at his motion for newtrial. Asthe record reflects, 54 RT, appellant’s counsel for the motion for newtrial remained silent whenthe trial court asked the prosecutor to supplementthe record by adding to his reasons for the peremptory challenges he exercised against African- American womenfifteen months earlier. Appellant’s counsel did not object to the court’s questionable invitation to the prosecutor to backfill his Wheelerjustifications. Nor did appellant's counsel make any effort whatsoever at comparative juror analysis, as appellant has now done(see ante, pp. 3-7) to point out the many waysin which the record belied the prosecutor’s belated rationales and exposed those reasonsas pretextual. Nor did appellant’s counsel correct the prosecutor’s error when the prosecutor at motion for new trial twice misidentified the subject of the third Wheeler motion as “Denise” Jordan, a “39-year-old black female.” 54 RT 4165, 4167. There is no conceivable tactical or strategic reason for these failures. See Peoplev. Lopez (2008) 42 Cal. 4th 960, 972 (a claim ofineffective assistance of counsel may be brought on direct appealif “there is no conceivable tactical purpose for counsel’s actions”); People v. Mendoza Tello (1997) 15 Cal. 4th 264, 266-267. Appellant’s jury had already been selected (and dismissed), so counsel’s silence cannot be chalked up to a desire for a certain jury composition. Moreover, the purpose of counsel’s special appointment to represent appellant on his motion for new trial was to obtain a new trial. Persuadingthetrial court that Wheeler error had occurred was an effective way to accomplish exactly that. This supplemental brief and appellant’s letter brief filed on January 22, 2013, underscore the prejudice suffered by appellant because of counsel’s deficient performance. Had motion for newtrial counsel brought to light the wealth of record evidence discussed in appellant’s supplemental and letter briefs, the trial court would undoubtedly have been persuaded that Wheeler error occurred and granted Mr. Williams’s motion for new trial. Accordingly, appellant’s motion for new trial counsel rendered constitutionally deficient performancein violation of the Sixth Amendment. Strickland v. Washington (1984) 466 U.S. 668. CONCLUSION Asdiscussed in the appellant’s briefs and expanded uponhere, appellant’s conviction and sentence should be set aside on grounds of the Wheelererror. Dated: January 29, 2013 Respectfully submitted, DANIEL N. ABRAHAMSON By ( _ Aba Counsel for appellant George B. Williams 10 CERTIFICATE OF COMPLIANCE I certify that the attached Supplemental Appellant’s Brief uses a 13 point Times New Roman font and contains 2326 words, excludingthe tables and certificates. Dated: January 29, 2013 DANIEL N. ABRAHAMSON CASE: DECLARATION OF SERVICE BY MAIL People vs. (George Brett) Williams CASE NO: California State Supreme Court Case No. $030553 Los Angeles County Superior Court Case No. TA006961 I am employedin the City ofBerkeley and County of Alameda, California. I am overthe age of eighteen years and not a party to the within action; my business addressis 918 Parker St., Bldg A21, Berkeley, California 94710. On January 29, 2013, I served the following document(s): - MOTION FOR LEAVE TO FILE SUPPLEMENTAL APPELLANT’S BRIEF AND REQUEST FOR RELIEF FROM DEFAULT (AND DECLARATION THERETO); SUPPLEMENTAL APPELLANT’S BRIEF MODIFICATION OF DESIGNATION OF FOCUS FOR ORAL ARGUMENT LETTER TO CALIFORNIA STATE SUPREME COURT on each ofthe following, by placing true copies thereof in sealed envelopes addressed as shown below for service as designated below: (A) (B) By First Class Mail: I am readily familiar with the practice of attorney Daniel N. Abrahamsonforthe collection and processing of correspondence for mailing with the United States Postal Service. I caused each such envelope, with first-class postage thereon fully prepaid, to be deposited in a recognized place of deposit of the U.S. Mail in Berkeley, California, for collection and mailing to the office of the addressee on the date shown herein. By Overnight Express Delivery: I am readily familiar with the practice of attorney Daniel N. Abrahamsonfor the collection and processing of correspondence using the following overnight / next-day delivery services: Express Mail with the United States Postal Service, Next-Day Air with United Parcel Service (UPS), and Overnight Express with FedEx. I caused each such envelope, with the proper postage orbilling information used by the service chosen (Circle Service Used), to be deposited in a recognized place of deposit in Berkeley, California, for collection and delivery to the office of the addressee on the date shownherein. Page li (C) By Personal Service: I caused each such envelopeto be personally delivered to the office of the addressee by a memberofthe staff of this law office within one week ofthe date last written below. TYPE OF SERVICE C ADDRESSEE Supreme Court of California Office of the Clerk 350 McAllister St. San Francisco, CA 94102 George Brett Williams H-61000 North Seg - 30N San Quentin, CA 94974 Stephanie Miyoshi Deputy Assistant Attorney General Office of the State Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA 90013 California Appellate Project Attn: Michael Millman 101 Second St., Suite 600 San Francisco, CA 94105 I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed this 29th day of January, 2013, in Berkeley, California. Wille & lad Page 2 Michelle Asato Declarant DECLARATION OF SERVICE BY MAIL CASE: People vs. (George Brett) Williams CASE NO: California State Supreme Court Case No. S030553 Los Angeles County Superior Court Case No. TA006961 I am employedin the City ofBerkeley and County of Alameda, California. I am over the age of eighteen years and not a party to the within action; my business address is 918 ParkerSt., Bldg A21, Berkeley, California 94710. On January 29, 2013, I served the following document(s): SUPPLEMENTAL APPELLANT’S BRIEF on each ofthe following, by placing true copies thereof in sealed envelopes addressed as shown below for service as designated below: (A) By First Class Mail: I am readily familiar with the practice of attorney Daniel N. Abrahamsonfor the collection and processing of correspondence for mailing with the United States Postal Service. I caused each such envelope, with first-class postage thereon fully prepaid, to be deposited in a recognized place of deposit of the U.S. Mail in Berkeley, California, for collection and mailing to the office of the addressee on the date shown herein. (B) By Overnight Express Delivery: I am readily familiar with the practice of attorney Daniel N. Abrahamsonforthe collection and processing of correspondenceusing the following overnight / next-day delivery services: Express Mail with the United States Postal Service, Next-Day Air with United Parcel Service (UPS), and Overnight Express with FedEx. J caused each such envelope, with the proper postage or billing information used by the service chosen (Circle Service Used), to be deposited in a recognized place of deposit in Berkeley, California, for collection and delivery to the office of the addressee on the date shown herein. (C) By Personal Service: I caused each such envelopeto be personally delivered to the office of the addressee by a memberofthe staff of this law office within one week ofthe date last written below. Page 1 TYPE OF SERVICE C ADDRESSEE Supreme Court of California Office of the Clerk 350 McAllister St. San Francisco, CA 94102 George Brett Williams H-61000 North Seg - 30N San Quentin, CA 94974 Stephanie Miyoshi Deputy Assistant Attorney General Office of the State Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA 90013 _ California Appellate Project Attn: Michael Millman 101 SecondSt., Suite 600 San Francisco, CA 94105 I declare under penalty of perjury underthe laws of the State of California that the foregoingis true and correct. Executed this 29th day of January, 2013, in Berkeley, California. Uddl,feb Page 2 Michelle Asato — Declarant