PEOPLE v. MERRIMAN

Respondent’s Additional Authorities Letter

Cal.May 12, 2014

SUPREMECOURT COPY. ow KAMALA D. HARRIS State of California Attorney General DEPARTMENTOFJUSTICE 300 SOUTH SPRING STREET, SUITE 1702 LOS ANGELES, CA 90013 Public: (213) 897-2000 Telephone: (213) 897-2354 Facsimile: (213) 897-6496 E-Mail: Jaime.Fuster@doj.ca.gov May7, 2014 Frank A. McGuire SUPREME COURT Clerk of the Supreme Court F | L E D California Supreme Court . 350 McAllister Street San Francisco, CA 94102 MAY 12 2014 RE: People v. Justin Merriman (Death Penalty) Frank A. McGuire Cierk Supreme Court of the State of California, Case No. S097363 Deputy Notice of Supplemental Authorities Dear Mr. McGuire: At oral argument on May 29, 2014, respondent may discuss the following decisions, all of which were issued after the respondent’s brief was filed in this case. The following cases are relevant to appellant’s claim ofjuror bias (ArgumentIJ of AOB). In Jn re Boyette (2013) 56 Cal.4th 866, 889-890, this Court found no substantial likelihood of actual bias where a juror did not intentionally and deliberately fail to disclose at voir dire information abouthis criminal record and alcohol problemsas well as the criminal record of a distant relative and his son’s drug addiction. This Court clarified the test for prejudice “asks not whether the juror would have been stricken by one of.the parties, but whether the juror’s concealment (or nondisclosure) evidences bias.” (/d. at p. 890.) In Smith v. Swarthout(9th Cir. 2014) 742 F.3d 885, 892-893, the Ninth Circuit held that, in order to obtain a newtrial based on a juror’s failure to disclose information during voir dire, a defendant must show the juror failed to answer honestly a material question and a correct response would have provided a valid basis for a challenge for cause. In People v. Linton (2013) 56 Cal.4th 1146, this Court pointed out jurors “are allowed to reflect about the case during thetrial and at home .... In fact,it is unrealistic to expect them not to do so.” This Court found that a juror’s commentto her husband aboutthe case did not indicate she was unwilling to fairly deliberate whenit came time to do so and did not show she had prejudged case. (/d. at p. 1195.) In People v. Allen and Johnson (2011) 53 Cal.4th 60, 72-76, this Court found no prejudgmentor misconduct where a juror held a preliminary viewofthe case before deliberations but his mind remained opento fair consideration of the evidence andinstructions during deliberations. DEATH PENALTY Frank A. McGuire May 7, 2014 Page 2 The following cases are relevant to appellant’s claim that potential jurors were improperly excluded for cause (Argument XJ of AOB). In People v. Whalen (2013) 56 Cal.4th 1, 25-26, this Court reaffirmed thata trial court’s ruling as to a juror’s biasis reviewed for abuse of discretion and that deference must be given to thetrial court’s evaluation of a juror’s actual state of mind whenthe juror supplies conflicting or- equivocal responses. (See also People v. Manibusan (2013) 58 Cal.4th 40, 60 [trial court has broad discretion in determining whether there is a reasonable possibility that prospective juror could consider imposing death].) In People v. McKinzie (2012) 54 Cal.4th 1302, 1331-1332, 1334-1336, this Court deferred to the trial court’s excusal of prospective jurors who were equivocal about their ability to impose the death penalty in single-murder cases. In People v. Fuiava (2012) 53 Cal.4th 622, 660-661, this Court found the trial court could reasonably view a prospective juror’s remarks that she could not be fair in assessing penalty and that it would be “very unlikely” she ever vote for death, as establishing her ability to follow the law would be substantially impaired. Respectfully submitted, KAMALAD. HARRIS Attorney General of the State of California DANER. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General KEITH H. BORJON Supervising .) Attorney General (halleH a Deputy Aitorney General State Bar No. 137582 JLFjlf:In LA2001XS0004 61244320.doc DECLARATION OF SERVICE Case Name: People v. Merriman - No.: $097363 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the Bar of this Court at which member's direction this service is made. I am 18 years of age or older and not a party to the within entitled cause; I am familiar with the business practice 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, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On May 8, 2014, I placed the attached LETTER DATED May 7, 2014 TO FRANK A. MCGUIRE RE PEOPLE V. MERRIMAN, S097363 in the internal mail collection system at the Office of the Attorney General, 300 S. Spring Street, Los Angeles, California 90013, for deposit in the United States Postal Service that same day in the ordinary course of business, in a sealed envelope, postage thereon fully prepaid, addressed as follows: Susan Garvey, Helen Struck, Glen Niemy Lily Harvey " Attorney at Law Attorneys at Law P.O. Box 764 Habeas Corpus Resource Center | Bridgton, ME 04009 303 Second Street, Suite 400 South San Francisco, CA 94107 : I declare under penalty of perjury the foregoing is true and correct and that this declaration was executed on May 8, 2014, at Los Angeles, California. L. Luna 2. oS tengb_ Signature JLF:11 LA2013609301 61266880.DOC