PEOPLE v. GRIMESRespondent’s Letter BriefCal.July 24, 2014 SUPREME COURT COPY KAMALA D. HARRIS State of California Attorney General DEPARTMENTOFJUSTICE 1300 I STREET, SUITE 125 P.O. BOX 944255 SACRAMENTO, CA 94244-2550 Public: (916) 445-9555 Telephone: (916) 324-9951 Facsimile; (916) 324-2960 E-Mail: Sean.McCoy@doj.ca.gov July 23, 2014 SUPREME COURT FILED Supreme Court ofthe State of California San Francisco Branch JUL 2 4 2014 ©. 350 McAllister Street San Francisco, CA 94102-4797 Frank A. McGuire Clerk ‘RE: People v. Grimes: Deputy “Case No. S076339 Dear Honorable Chief Justice Tani Cantil-Sakauye and Honorable Associate Justices: This is respondent’s supplementalreply to the three questions posed in this Court’s June 28, 2014, order. Appellant concedes that any failure by respondent to include a harmless error argumentin the respondent’s brief does not forfeit the issue under state law. Appellant, . however, argues that respondent forfeited a harmless error argument underfederal law, and any error in the exclusion of John Morris’s additional statements to Misty Abbott and Albert Lawson wasprejudicial in the guilt and penalty phases. Respondent disagrees. Appellant’s convictions and death sentence should beaffirmed. 1. Does the Attorney General’s failure to argue in the answerbrief that an alleged error is harmless constitute forfeiture of any harmless error argument regarding either state law errors or federal constitutional errors? Appellant concedesthat respondent’s failure to argue harmlesserror doesnotforfeit the question of whether an error is harmless understate law. But he argues that respondent does forfeit the issue as to errors under the federal Constitution. Appellant contendsthat the state’s alleged failure to brief whetherhis alleged error was harmless'as a matter of constitutional law meansthat the state concedesthat reversal is required if this Court doesfind that error occurred. (Appellant’s Supplemental Letter Brief at p. 4 (hereafter, ASLB).) Appellant misapprehends the law and purpose of harmlesserror. “{B]efore a federal constitutional error can be held harmless, the court must be ableto declare a beliefthat it was harmless beyond a reasonable doubt.” (Chapmanv. California (1967) 386 U.S. 18, 24 (Chapman), italics added.) “Constitutional error alone does notentitle a defendant to automatic reversal. Instead, most constitutional errors can be harmless.” (Washington y. Recuenco (2006) 548 U.S. 212, 218-219 (Recuenco), italics added.) COPY DEATH PENALTY Supreme Court of the State of California July 23,.2014 Page 2 AS this Court has observed: “(T]he harmless-error doctrine recognizes the principle that the central purposeof a criminaltrial is to decide the factual question of the defendant’s guilt or innocence[citation], and promotes public respect for the criminal process by focusing on the underlying fairness ofthe trial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (“Reversal for error, regardless of its effect on the judgment, encourageslitigants to abuse the - judicial process and bestirs the public to ridicule it”).” (Rosev. Clark, supra, 478 U.S. at p. 577, 106 S.Ct. 3101, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) (People-v, Flood (1998) 18 Cal.4th 470, 507.) Thus, “a state court, without violating the federal Constitution, [may] affirm a conviction ‘despite the erroneous admission of an involuntary confession, whenthetrial record establishes that the admission of the confession was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 482, discussing Arizona v. Fulminante (1991) 499 U.S. 279, 295-296.) That is, “reversal of a judgment is unwarranted whenthe record on appealis devoid of evidence that” the error had any adverse effect. (People v. Jackson (2014) 58 Cal.4th 724, 740.) To hold that federal constitutional error can be found over opposition from the People and result in reversal without any consideration of whether that error was harmless merely because of an omission in briefing would result in “an absolutist approach to the adversary system [in which] courts must never address unargued issues, no matter how obvioustheir proper resolution may be.” (United States v. Pryce (D.C. Cir. 1991) 938 F.2d 1343, 1348 (lead opn. of William, J.).) Appellant’s confusion appearsto rest in the language from Chapman regarding which party carries the burden of proving any error was harmless. Yet this Court has noted, “the ‘state- burden’ language in Chapman doesnotliterally mean that an appellate court must reverse the judgmentbecausethe prosecution has failed to place evidence in the record showingthat the error was harmless.” (People v. Whitt (1990) 51 Cal.3d 620, 649; cf. Recuenco, supra, 548 U.S. at pp. 218-219 [Constitutional errorat trial alone does not entitle a defendant to automatic reversal.”].) Chapman harmlesserroranalysis, rather, is consistent with the principles of appellate review. (Whitt, at p. 649.) “[T]he question ... the reviewing court [must] consideris not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks... to the basis on which ‘the jury actually rested its verdict. (Sullivan vy. Louisiana (1993) 508 U.S. 275, 279.) Harmless-error analysis asks “whatis to be done abouta trial error that, in theory, may have altered the basis on whichthe jury decided the case, but in practice clearly had no effect on the outcome[.]” (Rose v. Clark (1986) 478 U.S. 570, 582, fn. 11; Neder v. United States (1999) 527 U.S. 1, 20.) 999 SupremeCourt of the State of California July 23, 2014 Page 3 i “The terms ‘burden ofproof’ and ‘burdenofpersuasion’ are synonymous.” (California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 436,fn. 17, citing (1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions,§ 3, p. 157; see also United States v. Olano (1993) 507 U.S. 725-734-735 [“In a harmlesserror inquiry, the government bears the burden of persuasion with respect to showingthat the error was harmless.”].) Yet to say that the People bear the “burden” to prove constitutional error is .. harmless beyond a reasonable doubtis not the same thing as saying that the People bear the - burden ofarguing that point. To state that the People bear the burden of proof or persuasionis to ~ mean that it is the people wholose if the court finds the matter equally balanced. (Schafferv. _. Weast (2005) 546 U.S. 49, 56 (quoting 2 J. Strong, McCormick on Evidence § 342, p. 433 (Sth _ed.1999).) In other words, the party benefiting from the error must lose if the court findsitself “in virtual equipoise as to the harmlessness ofan error.” (O’Neal v. MacAninch (1995) 513 USS. - 432, 435.) Although the term “proof” is used in connection with the People’s burden to show that federal constitutionalerror is harmless beyond a reasonable doubt, this is merely a recognition that“the risk of doubt “ as to the effect ofsuch error is on the People regardless of any argument made. (Seeid. at p. 439.) Just as does state harmless error review, “Chapman mandates consideration ofthe entire recordprior to reversing a conviction for constitutional errors that may be harmless.” (United States v. Hasting (1983) 461 U.S. 499, 509, fn. 7.) “Ifthe defendant had counsel and wastried by an impartial adjudicator,there.is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. The thrust of the many constitutional rules governing the conductofcriminaltrials is to ensure that thosetrials lead to fair and correct judgments. Where a reviewing court can find that the record developed attrial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” (Rose v. Clark, supra, 478 U.S.at p. 579.) . Harmless error is not merely an alternative argument offered in the event that the reviewing court accepts the appellant’s contention error occurred. Rather, harmless error is part of the evaluation of the impact of that error on the overall reliability of the truth-finding process. (Cf. Flood, supra, 18 Cal.4th at p. 507.) Thus, on appeal where an appellant has alleged constitutional error, the question is not whether the respondent offered an alternative argument that, if such error is found, it was harmless. The question is whether the record of the conviction, proved to the jury beyond a reasonable doubt, is such that the court can affirmatively declare that any constitutional error found was also harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at 24.) Logically, regardless of any proof or persuasion the party benefiting from the error may offer or fail to offer, if the court finds itself “in virtual equipoise as to the harmlessness of an error,”such error cannot be said to be harmless beyond a reasonable doubt. (O'Neal vy. MacAninch, supra, 513 U.S.at p. 435.) Appellant notes the general rule that the federal courts impose forfeiture where the governmentfails to argue harmless error. (See ASLBat pp. 8-9.) But, in United States v. Giovanetti (7th Cir. 1991) 928 F.2d 225 (Giovanetti), the Seventh Circuit determined that an appellate court had discretion to overlook the government’s failure to argue harmlesserror. (Jd. Supreme Court of the State of California July 23, 2014 Page 4 at 227.) The court identified several factors to consider in exercising its discretion, particularly _ the state of the record and whether the argumentsthat the government does makeassist the court on the question of harmlessness. (Ibid.; United States v. Rose (1st Cir. 1997) 104 F.3d 1408, 1415:) The Giovanetti courtreasoned that reversal was an excessive sanction for the mere failure to argue harmlesserror, at least where the error was readily discernible. (Giovanetti, at p. 227.) Giovanetti’s reasoning has been followed or approvedofby every circuit that considered it.(United States v. Pryce (D.C. Cir. 1991) 938 F.2d 1343, 1348; United States v. Vontsteen (Sth ~ Cir. 1992) 950 F.2d 1086, 1091-1092; Lufkins v. Leapley (8th Cir. 1992) 965 F.2d 1477, 1481; '~ United States v. Rose, supra, 104 F.3d at p. 1415; United States v. Torrez-Ortega (10th Cir. 1999) 184 F.3d 1128, 1136; United States v. Gonzales-Flores (9th Cir. 2005) 418 F.3d 1093, 1100;! United States v. Rodriguez (Sth Cir. 2010) 602 F.3d 346, 360; Grover v. Perry (6th Cir. 2012) 698 F.3d 295, 300-301; United States v. Holness (4th Cir. 2013) 706 F.3d 579, 592 [citing Giovanetti approvingly and noting court’s ability to disregard parties’ inattention to an argument or issue]; cf., In re Detention ofBlaise (Iowa 2013), 830 N.W.2d 310, 319-321 [sua sponte harmlesserror analysis where People implicitly addressed prejudice].) Similarly, in People v. Braxton (2004) 34 Cal.4th 798, the defendant argued that the People had forfeited issues raised in the petition for review because those issues had not been raised in the court of appeal. (/d. at p. 809.) This Court observedthat the rule prohibiting new issues from being raised was not absolute and that the Court had the powerto decide issuesthat the case presented. (Ibid.; see Cal. Rules of Court, rules 8.500(c)(1), 8.516(b).) But, whatever the merits of the Giovanetti discretionary approach,it should not control here. Even if harmless error was an alternative argument, where the People dispute the existence of federal constitutional error, yet nevertheless fail to discuss whether the alleged error was ' Appellant quotes from Gonzalez-Florez, suggesting that the Ninth Circuit holds a contrary view. (ASLB at 9.) However, the sentence following appellant’s quotestates: “However, we recognize that no interest is served—and substantial time and resourcesare wasted—byreversal in those unusual cases in which the harmlessnessof anyerroris clear beyondserious debate and further proceedings are certain to replicate the original result. Fortunately, our precedents do not foreclose the position that an appellate court's sua sponte consideration of harmlesserror is appropriate on occasionsofthis type. . .We find the Seventh Circuit's analysis persuasive, and we agree that the government's failure to argue thatan erroris harmless does not categorically preclude our consideration of that question.” (Gonzalez-Flores, supra, 418 F.3d at pp. 1100-1101.) Just as significantly, Gonzalez-Flores notes if there is any question as to the harmlessnessoferror, “prudence and fairness to the defendant counsel against deeming that error harmless without the benefit of the parties’ debate.” (/d. at 1101.) In this case, of course, appellant has had the opportunity to debate respondent’s argumentin its briefing that Morris’s excluded statements were not “material,” at oral argument, and now throughthis supplemental briefing. (See also United States v. Vontsteen, supra, 950 F.2d at 1092 [“Moreover, Vontsteen cannot now claim prejudice, because we requested the parties to specifically brief the appropriate standard of review after we took this case en banc.”}.) Supreme Court ofthe State of California July 23, 2014 Page 5 harmless, no true forfeiture has occurred. Forfeiture isthe loss of a right through the failure to make a timely assertion. (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.) If the People have lost any “right” through forfeiture, at most it can only be the opportunity to argue the effect of the error. (United States v. Pryce, supra, 283 F.2d at 1351 (conc. opn. of Randolph,J. conc.). This is because as a matter of state law, no court can reverse a judgment without _. examining the entire cause and concluding that a miscarriage ofjustice occurred. (Cal. Const. - art. VI, §-13; People v. Watson (1956) 46 Cal.2d 818, 836.) The People’s failure to argue harmlesserror can never relieve a state court ofits obligation to considerthe effect.’ Appellant ‘concedes that respondenthas not forfeited the issue of harmlesserror as a matterofstate law. - Accordingly, regardless of any amountofbriefing by the parties on the issue of harmless error ' under state or federal law, a state court will necessarily have considered the entire record before me : passing. onthe effect of that error as a matter ofstate constitutional law. (Cal. Const., art VI, § - 13;.People v. Watson, supra, 46 Cal.2d at p. 836.) Under those circumstances,there is no reason for thecourt nottoalso consider harmless error under the federal Chapmanstandard. 2. Assuming the trial court erred in excluding the hearsay statements of John Morris to Misty Abbott and Albert Lawsonthat were proffered by defendant as statements against interest, does the error require reversal of the special circumstances or death sentence? Appellant claims that it does. Appellant’s argumentthat the jury’s special circumstance findings must be reversed focuses solely on the prosecution’s intent-to-kill theory and the testimony of Jonathan Howe. (ASLBat pp. 13-14.) As discussed in respondent’s supplemental letter brief, any error in excluding Morris’s additional hearsay statements is harmless under both the intent to kill and reckless indifference to human life theories. Respondenthas already explained the credibility issues inherent with any testimony from Abbott and Lawson regarding Morris’s hearsay statements, and the unlikelihood the jury would have credited this testimony. But assuming the jury would have given any consideration to the excluded evidence, Morris’s statements that appellant did not participate in the killing or did not participate in the actual killing is reasonably understood to mean that Morris alone killed Betty Bone. This is consistent with appellant’s statement to the detectives and Howe’stestimony that appellant ordered Wilsonto tie up and kill Bone. Morris’s statement that appellant and Wilson were “surprised”bythe killing does not prove that appellant did not orderthekilling. Instead, Morris’s statement is reasonably understood to mean that appellant was “surprised”by the brutal manner in which Morris killed 98-year-old Bone. * Thus, this Court’s constitutional duty already imposes the duty to examine the record for prejudice despite the lack of any guidance or argument from respondent. Just as does state harmless error review, “Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless.” (United States v. Hasting (1983) 461 ULS. 499, 509, fin. 7.) SupremeCourt of the State of California July 23, 2014 Page 6 Appellant claims that Morris’s statement to Lawson that appellant was in some other place inside the house whenthekilling occurred would have contradicted Howe’stestimony that appellant told Howe that he watched Boneget killed and “enjoyed”it. (ASLBat p. 13.) Howe testified that he could not rememberif appellant told him that he “enjoyed watching” Bone being killed, but appellant did tell Howethat he “enjoyed”the fact that she was killed. (31RT 8382.) Howe’s testimony was impeached with evidence that he previously told Detective O’Connorthat appellant told him he had watched Bonebeingkilled and “enjoyed watchingit.” (31RT 8500- 8501.) Whether appellant “enjoyed”the fact that Bone waskilled or “enjoyed watching” Morris kill Bone, appellant’s own statements describing the killing prove that he saw Morris kill Bone.? To reverse the jury’s penalty verdict, appellant argues that without evidence of Morris’s - additional hearsay statements the jury was left with testimony from Howethat appellant ordered Wilson and Morristo tie up and kill Bone, and appellant watched and enjoyed Bone’s killing. Accordingto appellant, this evidence “points unmistakably aand powerfully to death.” (ASLBat pp. 14- 15.) “As explained in respondent’s supplementalletter brief, the prosecutor urged the jury that death wasthe appropriate punishmentbased on the circumstances surrounding Bone’s murder, appellant’s prior crimes of violence and felony convictions, the impact Bone’s murder had on Bone’s daughter and granddaughters, appellant’s lack of remorse following the crimes, and rebutting appellant’s evidence in mitigation. The prosecutor did not remind the jury of Howe’s testimony, and she did not ask the jury to return a death verdict based on his testimony. Whether appellant “enjoyed watching” Bonebeing killed or whether he “enjoyed”the fact that she was killed, appellant’s own statementto detectives powerfully demonstrates that he watched Morris kill Bone. Morris’s excluded statements do not contradict this evidence. The excluded statements also do not contradict evidence that after Bone’s killing appellant and Wilson were laughing together and calling each other “down white boys.” (35RT 9231.) As discussed more fully in respondent’s supplementalletter brief, reversal of the jury’s _ special circumstance findings and penalty verdict is unwarranted undereitherthe state or federal harmlesserror standards. 3 There wasalso evidence that Shane Fernalld told detectives shortly after Bone’s killing © that appellant stated about Bone’s murder, “[T]he old bitch deserved it.” (30RT 8125-8126, 8173, 8176, 8205; see also 27RT 7478-7479.) Fernalld deniedattrial that he told this to the detectives. (27RT 7478.) He also started to question whether appellant had told him that Bone “deservedit” or “didn’t deserve it” after speaking to a defense investigator. (30RT 8177, 8179- 8180.) Supreme Court of the State of California July 23, 2014 Page 7 3. Assumingthat the trial court did not err in excluding Morris’s statement to Abbott that after Morris killed the victim, defendant looked at him asif he were surprised, but that the trial court did err in excluding Morris’s statement to Abbott and Lawsonthat defendantwasnot involvedin the actualkilling, does the error require reversal of the special circumstance findings or death sentence? _... Appellant again claimsthat it does. In doingso, appellant ignores the importance he has "previously placed on Morris’s excluded statement describing appellant’s and Wilson’s - -expressions after Bone’s killing. (ASLB at pp. 15-16.) Without this evidence, appellantis left with Morris’s hearsay statements that appellant did not participate in the killing or didnot participate in the actual killing. Neither of these statements is inconsistent with Howe’s testimonythat appellant told Morris and Wilsonto tie up and kill Bone. Neither of these - statements is inconsistent with evidence that appellant “‘enjoyed”the fact that Morris killed Bone orthat he “enjoyed watching” Morris kill Bone. As discussed morefully in respondent’s supplementalletter brief, reversal of the jury’s special circumstancefindings and penalty verdict is unwarranted undereither the state or federal harmlesserror standards. CONCLUSION For the foregoing reasons andall argumentsraised previously, respondent respectfully urges this Court to affirm appellant’s convictions and sentence to death. Dated: July 23, 2014 - Respectfully submitted, KAMALAD. HARRIS Attorney General of California MICHAELP. FARRELL Senior Assistant Attorney General WARD A. CAMPBELL Supervising Deputy Attorney General STEPHANIE A. MITCHELL eenttorney General Deputy.Attorney General Attorneysfor Respondent SA1999XKS0001 32043349.doc DECLARATION OF SERVICEBY U.S. MAIL ~ Case Name: People v. Grimes No.: S076339 I declare: I am employedin the Office of the Attorney General, whichis the office of amemberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older andnot a party to this matter. I am familiar with the businesspractice at the Office of the Attorney. General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedinthe internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business, On July 23, 2014,I served the attached: RESPONDENT’S SUPPLEMENTAL REPLY by placinga true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Cliff Gardner, Attorney at Law Clerk of the Superior Court 1448 San Pablo Avenue Shasta County Superior Court Berkeley, CA 94702 1500 Court Street, Room 219 (Attorney for Appellant Grimes- 2 copies) Redding, CA 96001 California Appellate Project (SF) Honorable Stephen Carlton 101 Second Street, Suite 600 - Shasta County District Attorney San Francisco, CA 94105-3672 1355 West Street OF Redding, CA 96001 I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on July 23, 2014, at Sacramento, California. Declarant SA1999XS0001 32043422.doc
