Russell Coleman v. Arthur Calderon, Warden

BRUNETTI, Circuit Judge, concurring in part, dissenting in part:

I agree with the majority’s conclusions that Coleman was not prejudiced by the concealment of the Hemastix and bloody print evidence and that the commutation instruction was constitutionally deficient under Boyde v. California, 494 U.S. 370, *1054380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). I dissent, however, from the majority’s determination that the commutation instruction had a “substantial and injurious effect” on the jury’s deliberations and thus was not harmless. See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). I dissent because the majority’s analysis does not follow the Supreme Court’s pronouncements in Brecht and its progeny and because the record indicates that Coleman did not suffer any actual prejudice from the application of the Briggs instruction.

I.

Almost two decades ago, the United States Supreme Court approved California’s use of a Briggs instruction, an instruction that permits juries to consider the governor’s power to commute a life sentence without the possibility of parole to a life sentence with the possibility of parole. See California v. Ramos, 463 U.S. 992, 1004 n. 19, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). The Supreme Court never reached the harmless error issue in Ramos because it found that a Briggs instruction is compatible with the Eighth and Fourteenth Amendments and thus does not suffer from any constitutional infirmity. See id. at 1014, 103 S.Ct. 3446. The Supreme Court expressly recognized in Ramos that even though a Briggs instruction allows a jury to focus on the danger a defendant poses to society, it nevertheless held that considering future dangerousness is legitimate and “ ‘is simply one of the countless considerations weighed by thé jury in seeking to judge the punishment appropriate to the individual defendant.’” Id. at 1008, 103 S.Ct. 3446 (quoting Zant v. Stephens, 462 U.S. 862, 900, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)). In upholding the instruction, the Supreme Court declared that “[Consideration of the commutation power does not undermine the jury’s statutory responsibility to weigh aggravating factors against mitigating factors and impose death only if the former outweighs the latter.” Id. at 1008 n. 22, 103 S.Ct. 3446.

Despite the Supreme Court’s definitive pronouncement in Ramos, the majority opinion concludes not only that the Briggs instruction in this case violates the Constitution, but that the error prejudiced Coleman irrespective of the admonitory instruction specifically advising the jury to disregard the governor’s commutation power. The majority’s position rests solely upon the difference between the two-sentence instruction in Ramos and the challenged jury instruction in this case. The majority correctly recognizes that the Briggs instruction applied in this case omits “the additional hurdles to be overcome to obtain such a commutation” with a twice-convicted felon. The instruction is incomplete because the governor’s commutation power is wholly dependent on meeting several other statutory requirements. Specifically, the governor must confer with the Board of Prison Terms and obtain the written approval of a majority of the California Supreme Court before commuting a sentence. See Cal. Const., Art. 5 § 8; CaLPenal Code §§ 4802, 4813, 4852. While I agree that this omission rises to the level of constitutional error, the error was harmless under prevailing Supreme Court precedent.

A.

Under the Brecht test, an error is harmless unless it has a “substantial and injurious effect on the jury’s verdict.” See Brecht, 507 U.S. at 637, 113 S.Ct. 1710. The Supreme Court advised us on remand that Brecht requires “the court [to] find that the defendant was actually prejudiced by the error” before overturning Coleman’s sentence. Calderon v. Coleman, 525 U.S. 141, 119 S.Ct. 500, 503, — L.Ed.2d - (1998). In remanding the case, the Supreme Court discussed the differences between the Boyde test for constitutional error and Brecht harmless error analysis. The Court stated:

Although the Boyde test for constitutional error, like the Brecht harmless-error test, furthers the “strong policy against retrials years after the first trial *1055where the claimed error amounts to no more than speculation,” it is not a substitute for the Brecht harmless error test. The Boyde analysis does not inquire into the actual effect of the error on the jury’s verdict; it merely asks whether constitutional error has occurred.

Coleman, 119 S.Ct. at 503 (citations omitted).

The instructional error in this case is harmless because there is no evidence that the instruction actually prejudiced Coleman. The Supreme Court has stated that a challenged jury instruction “ ‘may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’” Boyde, 494 U.S. at 378, 110 S.Ct. 1190. The only error was the incomplete information contained in the Briggs instruction. The trial court did not omit or misrepresent any of the mitigating and aggravating factors. In addition, the trial court correctly instructed the jury that it should weigh the mitigating and aggravating factors in reaching its sentencing decision. Furthermore, the Briggs instruction itself proclaimed to only “generally” inform the jurors about the governor’s commutation power. Contrary to the majority’s analysis, it did not purport to be a definitive and conclusive statement about that power.

The admonitory instruction provides further evidence that the instruction, taken as a whole, was harmless. The trial judge carefully instructed the jury that it “may not speculate as to if or when a governor would commute the sentence to a lesser one which includes the possibility of parole.” The plain language of this instruction clearly reflects an effort by the trial judge to avoid any prejudice toward Coleman. The general rule is that jurors are presumed to follow admonitory instructions given by the court. See Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). There is no reason to make an exception in this case.

The majority opinion’s conclusion is tenuous because it gives effect to only part of the Briggs instruction. On the one hand, the majority opinion places such great weight on the incomplete Briggs instruction that it infers that the instruction infected sentencing by damaging the jury’s ability to consider all the mitigating evidence. At the same time, it gives little or no effect to the admonitory instruction and implicitly assumes that the jury was incapable of following the court’s command to ignore the commutation power in reaching its sentencing determination. Rather than assume that the jury embraced only part of the challenged instruction, the reasoned approach of the California Supreme Court presumed that the jury considered all parts of the Briggs instruction equally in sentencing Coleman.1 See People v. Coleman, 46 Cal.3d 749, 782, 251 Cal.Rptr. 83, 759 P.2d 1260 (Cal.1988). Under such an analysis, and as the California Supreme Court held, the admonitory instruction eliminated any prejudice because it plainly advised the jury to ignore the governor’s commutation power altogether in its sentencing decision.2

*1056The harmlessness of the error is supported by recent Supreme Court and out-of-circuit case law. For instance, in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), a case decided during the same Term as Coleman, the Supreme Court held that omitting an element of a crime in a jury instruction is harmless if the reviewing court can conclude that the evidence proves the omitted element beyond a reasonable doubt. See id. at 1838-39. This result is compelling because the Supreme Court found the instructional error harmless even though it was subject to the more onerous Chapman harmless error standard applied on direct review. See California v. Roy, 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996). Harmless error review under Chapman requires a reviewing court to overturn a verdict or sentence unless an error is “harmless beyond a reasonable doubt.” See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). By holding that even an instruction omitting an element is harmless under Chapman, the Supreme Court expressed its view that harmless error analysis is more than a mere formality and that a reviewing court should engage in a probing inquiry in order to determine whether an error results in actual prejudice.

Furthermore, in two recent cases, the Fifth and Eleventh Circuits found that misstating the mitigating or aggravating factors in a jury instruction was harmless. See Sims v. Singletary, 155 F.3d 1297, 1315 (11th Cir.1998) (holding that a trial court’s vague reference to non-statutory mitigating factors was harmless even if it did constitute error); Billiot v. Puckett, 135 F.3d 311, 315 (5th Cir.1998) (declaring that even an unconstitutionally vague instruction on an aggravating factor is harmless). In Sims for example, the trial court made only a vague reference to non-statutory mitigating factors by instructing the jury that it could consider the statutory factors “among others” without providing any further elaboration. See Sims, 155 F.3d at 1315. Despite this error, the court held that the defendant’s “sentencer was not precluded from considering all relevant mitigating evidence” even though the instruction failed to provide any guidance about what non-statutory factors the jury could consider during the sentencing phase. Id.

Based on Neder, Sims, and Billiot, the challenged jury instruction in this case should not have failed the Brecht harmless error test. If the erroneous instruction in Sims was deemed harmless despite the incomplete information it provided about the mitigating factors, it is certainly a stretch to infer that a jury’s ability to consider mitigating evidence was inhibited by an erroneous Briggs instruction omitting only the technical details about the governor’s commutation power. Rather, the majority opinion’s conclusion that the instructional error prejudiced Coleman is premised on pure speculation, a basis that is inappropriate under Brecht. See Coleman, 119 S.Ct. at 503 (declaring that an error cannot fail the Brecht test based on pure speculation).

B.

The majority’s other ground for finding that the instructional error was prejudicial is similarly unpersuasive. The majority opinion concludes that the actual use of a Briggs instruction in this case was prejudicial because the prosecutor repeatedly emphasized the threat Coleman posed to the general public. To support that proposition, the majority refers to several isolated statements made by the prosecutor during closing arguments. Because the Supreme Court has held that it is proper for the jury to consider a defendant’s future dangerousness and because the record shows that Coleman did not suffer actual prejudice, I respectfully disagree.

*1057In Ramos, the Supreme Court unquali-fiedly held that it is permissible for the jury to consider both a defendant’s future dangerousness and the governor’s commutation power in its sentencing determination. See Ramos, 463 U.S. at 1008 n. 22, 103 S.Ct. 3446. Ramos also declared that a Briggs instruction is proper even though it “focuses the jury’s attention on whether this particular defendant is one whose possible return to society is desirable.” Id. at 1005, 103 S.Ct. 3446. The challenged jury instruction in this case is not prejudicial merely because it “emphasiz[ed] the threat Coleman posed to the general public” and “focused the jurors’ fear on Coleman’s possible release” because Ramos clearly held that a jury may consider these factors in sentencing a defendant.

The record also suggests that Coleman was not prejudiced by the Briggs instruction. While the prosecutor stressed the danger Coleman posed to society during his closing arguments, he never mentioned the governor’s commutation power. In addition, the prosecutor repeatedly told the jurors that they must decide Coleman’s sentence based solely on the law and that the law required them to carefully balance the aggravating and mitigating factors. Finally, the prosecutor’s statements were focused on attacking Coleman’s mitigating factors and arguing that the weight of the evidence supported a death sentence, not on introducing improper factors into the jury’s analysis.

II.

The California Supreme Court opinion demonstrates that there was plenty of evidence in the record to support Coleman’s death sentence. See People v. Coleman, 46 Cal.3d 749, 761, 251 Cal.Rptr. 83, 759 P.2d 1260 (Cal.1988). This is not a case where the jury’s imposition of the death penalty was based upon questionable grounds. Rather, the aggravating factors clearly established that Coleman was a danger to society based upon his conduct both inside and outside of prison.

Russell Coleman was convicted of brutally murdering Shirley Hill while attempting to rape and sodomize her. See id. at 756, 251 Cal.Rptr. 83, 759 P.2d 1260. The jury also determined that Coleman used a deadly weapon in the course of committing this heinous crime. See id. Other aggravating factors included Coleman’s earlier convictions for falsely imprisoning a college student, carrying a concealed weapon, raping a thirteen-year-old girl, and engaging in lewd conduct involving a thirteen-year-old child. See id. at 761, 251 Cal.Rptr. 83, 759 P.2d 1260. Coleman was convicted of each of these crimes prior to his murder trial. See id. In addition, the prosecution presented evidence that prison officials had recovered a stabbing weapon in Coleman’s prison cell and that he was responsible for a series of assaults in prison. See id. Coleman assaulted inmates, guards, and medical personnel while he was incarcerated. See id. Finally, the prosecution presented testimony that Coleman had to be transferred to San Quentin because his behavior posed a threat to prison staff and other inmates. See id.

In sum, the evidence that the jury considered in sentencing Coleman was more than adequate to justify his death sentence.

III.

Based on the Supreme Court’s pronouncements in Ramos as well as a review of the record in this case, there is nothing that indicates Coleman was actually prejudiced by the use of the Briggs instruction.3 Therefore, I respectfully dissent from the majority’s conclusion that the Briggs in*1058struction in this case was not harmless. Rather, I would sustain the sentence imposed by the jury of Coleman’s peers.

. We are bound by case law in this Circuit holding that this Briggs instruction is constitutionally infirm because it tends to divert the jury's attention away from mitigating evidence. See McLain v. Calderon, 134 F.3d 1383, 1386 (9th Cir.1998); Hamilton v. Vasqnez, 17 F.3d 1149, 1160 (9th Cir.1994). However, because the connection is speculative, this rationale is unpersuasive under the Brecht analysis because an abstract link to the jury verdict does not show actual prejudice under Brecht. See Coleman, 119 S.Ct. at 503.

. This conclusion is especially germane because as Judge Trott pointed out in dissent in Hamilton v. Vasquez, 17 F.3d 1149, 1170 (9th Cir.1994), the jurors were probably instructed to ignore a factor they already knew about. See also Ramos, 463 U.S. at 1003 n. 18, 103 S.Ct. 3446 (arguing that the State of California may have established the Briggs instruction "to avoid any possible misconception conveyed by the description of the sentencing alternative.”). "The commutation power was the subject of great public debate in California during the late 1970s, a debate that culminated in a 1978 voter death penalty initiative properly known as the Briggs Initiative.” Hamilton, 17 F.3d at 1170. Therefore, rather than inviting the jury to speculate about com*1056mutation as the majority suggests, the trial judge was instead attempting to instruct the jury not to speculate about the governor’s commonly known commutation power.

. It is improper to speculate about whether the jury's short deliberative period is indicative of the jury’s belief that Coleman deserved the death penalty or rather that jurors were focused on the possibility that Coleman might be paroled if he didn’t receive a death sentence. A consideration of the length of the jury's deliberations invites speculation into the Brecht analysis, precisely what the Supreme Court advised us to avoid on remand. See Coleman, 119 S.Ct. at 503.