Monday, November 4, 2013

Harmless Injustice


Facts:

Rice and Rivers were apprehended in a car driven by River's boyfriend Manafov half an hour after the robbery of a nearby Chevron station.  A security video showed Manafov holding up the cashier before making off in a car.  At trial, Rivers testified that earlier in the day Rice had told her that he and Manafov were going to “hit a lick” (i.e. rob some place).   She testified that she did not know how to drive and that  she had been asleep in the car at the time of the Chevron robbery.   A blurry outside security video showed a vehicle driven by an indistinguishable person pulling away from the station.  Summers, the case detective, was allowed to testify that, in his opinion, the video depicted Rice.   At the time of his arrest, Rice, who is black, was wearing a white tank-top and blue shirt.  Paperwork belonging to appellant was found in the car, along with a fleece-lined jacket, red and white caps in the trunk, a gun hidden under the hood and money stashed under the rear seat.   Other witnesses testified that a short while before the Chevron robbery, Manafov's car was spotted pulling up to another gas-station convenience store.  The driver of the car, who was wearing a fleece-lined coat, stalled a couple of times when backing up and did not appear to know how to drive.    Based on this evidence a jury found Manafov and Rice guilty of the Chevron robbery.


On appeal, Rice contended that the detective's opinion as to what the video showed was prejudicially improper evidence and that, once his opinion was removed from the balance, there was insufficient evidence to support the jury's verdict of guilt.    Rice also contended that the trial court had failed to instruct the jury that the testimony of an accomplice required some independent corroboration before it could be relied upon to establish guilt.

Issue:

Was it error for the trial judge to allow the detective to state his personal opinion that the driver depicted in the video was Rice?

Argument:

Yes.     “One of the fundamental theories of the law of evidence is that witnesses must ordinarily testify to facts, not opinions." (People v Melton (1988) 44 Cal.3d 713, 744.)  Expert opinion is allowed on a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); People v. Harvey (1991) 122 Cal.App.3d 1206, 1227); however, it is is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Valdez (1997) 58 cal.app.4th 494,  506.)  Detective Summers had no more "expertise" watching a video than any juror. It was therefore error to allow him to instruct the jury as to what the evidence showed.

Also by law, a defendant cannot be convicted on the testimony of an accomplice unless it is corroborated in some substantial way that connects the defendant to the crime.   (Pen. Code, §  1111.) The corroborating evidence must tend directly and immediately to connect the defendant with the commission of the offense (People v. Shaw (1941) 17 Cal.2d 778, 802) and must do so without any aid, interpretation or direction from the testimony of the accomplice People v. Lewis (2004) 120 Cal.App.4th 837, 848.)  As a matter of law, without corroboration, accomplice testimony  is never  sufficiently trustworthy to establish guilt beyond a reasonable doubt.  (People v. Gonzales & Soliz (2011) 52 Cal.4th 254, 303.) 

Rivers' had an obvious motive to exculpate herself by pointing the finger at at Rice.  The only possible corroboration of  Rivers' testimony was the blurry video.   What the video showed, and if it put Rice in the driver's seat, was up to the jury to decide.  However, that decision was "tilted" in favour of the prosecution by the detective's opinion testimony.   To make matters worse, the jury had not been instructed on the requirement that an accomplice's testimony needed to be independently corroborated.   The ultimate result was that Rice had been denied a fair trial by virtue of a conviction based on  biasing opinion of the prosecution's own team.

Court of Appeal Opinion:

The appellate court affirmed the judgement.  It agreed that the assigned errors had occurred but ruled that they were "harmless" because they did not affect the ultimate result.   

With respect to the erroneous admission of Detective Summers' opinion,  the court explained,  "The video was admitted into evidence and the jury was able to evaluate what it showed as to the driver.  ....  While the People could certainly argue the video showed Rice was the driver, it was improper for a law enforcement officer to testify to his observations and opinion of the very same evidence the jury was  charged with evaluating. This is because the jurors may have deferred to Summers observations as to what the video showed over their own observations, due to his status as a law enforcement officer. Indeed, in closing argument the prosecutor argued the jury heard the description of the driver based on the video "from a veteran detective" ....who "has been working crimes against persons for decades."

With respect to the trial court's failure to instruct on accomplice testimony, the court of appeal noted that "Rivers was arrested with Manafov and Rice, and only was forthcoming with the police when she realized she could be charged with robbery. She was originally charged with robbery, but the charges were dismissed."  In other words, as with most accomplices, her credibility was highly suspect.

Nevertheless, the court of appeal concluded that the failure to instruct the jury on the need to corroborate Rivers' testimony was harmless because her testimony was corroborated by the video which showed a driver matching her description; and the error in allowing Summers to testify as to what the video showed was rendered harmless by Rivers' accomplice testimony which implicated appellant.

 Critique.

The Court of Appeal was wrong.   Its reasoning was paradigmatic bootstrapping.  Moreover, it cured the error of allowing the case to be  decided by Detective Summers by becoming the 13th Juror and deciding the case for itself.    The court's opinion is an illustration of the misuse of the harmless error doctrine which has become flagrantly standard in the appellate courts.    The doctrine has been used to affirm judgements in cases literally riddled with error, on the grounds that the defendant was good for it anyway.  The abuse of the harmless error rule ultimately deprives a person of his right to be tried by a jury -- not by judges substituting their opinion for what they say the jury would have done in any case.
Background
In the 19th century,  there was a proclivity on the part of some appellate judges to reverse cases on proverbial "technicalities" some of which were pretty de minimis by any standard.   In response, legislatures and higher courts fashioned a harmless error doctrine, the general aim of which was to prevent judgements from being reversed on truly trivial grounds. 
The problem that immediately arose was how to define "trivial."   Not illogically, the courts concluded that to say something was "trivial" meant that it was unimportant in relation to everything else in the case.  A small error which might be insignificant in a large complex case could be the crux of the matter in a small, simpler one.   Thus, deciding whether any given error was trivial, and hence harmless, required looking at the evidence and judging its overall thrust and weight.  But this kind of assessment gave rise to yet another problem: the dilemma of the "Thirteenth Juror"
The entire premise of the judicial system is that juries and not judges decide guilt or innocence.   If judges end up deciding what evidence is important or not important, weighty or not weighty then they become  the ultimate jurors.   Thus, in order to avoid reducing jury verdicts to little more than a preliminary formality, the appellate courts adopted an indirect approach which focused not on the impact of the error on the case but on its impact on the jury's deliberations.
Accordingly in  Chapman v. California  (1961) 386 U.S. 18 the Supreme Court ruled that a reviewing court could not find an error harmlessness based simply upon its own "view of 'overwhelming evidence.' " (Chapman, supra, at p. 23.) Instead,
The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. .... An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot ... be conceived  of as harmless.” (Id, at pp. 23-24,
Thus, under Chapman, an error in the proceedings requires reversal "unless the reviewing court is satisfied beyond a reasonable doubt that the error “did not affect the jury's verdict.”
California came up with its own formulation of harmless error. In  People v. Watson  (1956) 46 Cal.2d 818, the California Supreme Court ruled that  an error is prejudicial “when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Id., at p. 836.)
In legaleze, the terms "reasonably probable" refers to a "preponderance" -- that is a 51% probability.   Thus, under the above formulation, an error is not harmful if a reviewing court thinks that the evidence preponderates in support of the guilt verdict.
The California high court appears to have had some doubts about the correctness of the Watson formula.  In  People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888,  it stated  that  "'probability’ for purposes of determining whether state law error affected the trial outcome does not mean ‘more likely than not,’ but merely a reasonable chance and more than an abstract possibility that it did."  (Id., at p. 918.)
There is no substantial difference between a test which focuses on whether there is more than a fanciful possibility of an affect of the error  on the verdict (Watson) and a test in which the reviewing court ask itself if it can conclude beyond a reasonable doubt (i.e. beyond a mere fanciful doubt) that the error did not affect the outcome (Chapman).   However,  apart from the Ghilotti case, the California Supreme Court has hewed to the traditional formula that  that error  “requires reversal [only]  if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” (People v. Richardson (2008) 43 Cal.4th 959, 1001-1002.)
Thus, Chapman and Watson set forth two different burdens of proof.  Under Chapman the reviewing court must conclude "beyond a reasonable doubt" that the error did not affect the jury's deliberations adversely to the defendant.  Under Watson the reviewing court must conclude only that, discounting the error, the evidence showed a reasonable probability of guilt. 
A further distinction between Chapman and Watson concerns whether the reviewing looks at the effect of error on the ultimate outcome as such (i.e. the verdict reached) or whether it assesses the error in terms of its impact on the jury's deliberations.   In Watson, the court's concluding holding was that, in the case before it,  "[i]t does not appear reasonably probable that the jury was influenced by such evidence to defendant's prejudice, or that the admission of such evidence affected the verdict.” (Watson, supra, 46 Cal.2d, at p. 837.)  This statement was indistinguishable from Chapman's formula.  
However, in its previous discussion of the various harmless error formulations that had been proposed, Watson repeatedly referred to the impact of an error on the "result" or "outcome" of the case; and this has been the focus which the California court's have followed.
Thus, as practiced, the federal rule of harmless error  looks at the effect of the error on the jury's deliberative process and requires a finding beyond any reasonable doubt that no critical effect took place (i.e. an effect which "might have" affected the result).   In contrast,  the California rule looks at the verdict itself and asks if it is reasonably probable that the error affected the result (or conversely) if, notwithstanding the error, the evidence is such as renders a guilty verdict reasonably probable.
Under the federal harmless error rule, there is no question that the error in allowing Detective Summers to state his opinion on the critical question of the driver's identity was prejudicial error.  Chapman's  precise holding is directly applicable.  In Chapman, a prosecutor (instead of a prosecution witness) volunteered his personal opinion on the question of guilt.  The Supreme Court held,

 “Though the case in which this [error]  occurred presented a reasonably strong ‘circumstantial web of evidence’ against petitioners, ... it was also a case in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts.  Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners' convictions. “  (Id., at pp. 25-26.)   
Thus, under the Chapman standard, the Court of Appeal in this case could simply not say, as it did, that " the jurors may have deferred to Summes’ observations as to what the video showed over their own observations,"  and then conclude that the error had no undue influence on the jury's deliberations.   Such a conclusion did no more than state an oxymoron. 

However, under the Watson standard, as it has been applied, it appeared reasonable to say that notwithstanding the error, the evidence in the case was such that it is reasonably probable the jury would have voted guilty anyway.  The problem with the accepted Watson formulation is that it is indistinguishable from a sufficiency of the evidence test which is completely inappropriate in the context of given error.

Background.  The Constitution requires that criminal charges against the accused be proved beyond a reasonable doubt.  (In re Winship (1970) 397 U.S. 358.)   This requirement means that a verdict of guilt must be based on more than pale and bare evidence but rather that the evidence of guilt be "substantial --  that is  reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)

The federal and California sufficiency tests are identical; and once again it can be seen how the formula seeks to avoid placing the appellate court in the position of a Thirteenth Juror.  The question is whether there is evidence in the record which would have supported the verdict the jury did in fact reach.

The Jackson/Johnson rule is called "deferential" because the point of departure is the given fact that the jury did reach a guilty verdict.  In doing so, it must have believed and credited that evidence which pointed to guilt and, by the same token, it must have disbelieved or discounted evidence which pointed toward innocence.   Under "sufficiency analysis" the reviewing court does not re-weigh the evidence for itself.  But it does weigh the evidence the jury evidently relied on, and it does evaluate the reasonableness of any guilty inferences drawn from those evidentiary facts.

Classic examples of insufficiently substantial evidence would be claims of a deaf person to have heard the "thumps" abovestairs (Witness for the Prosecution) or to have seen the murder by the light of the moon (which did not shine that night).  The Sufficient Evidence Test aims to insure the right to not to be convicted on evidence which is too flimsy or improbable to prove the case beyond a reasonable doubt.

But the test presupposes a trial that is free of error.  That is the only reason the jury's verdict is deferred to as the point of departure.  Where legal error has been shown to exist then a sufficiency of the evidence analysis is inappropriate because it tacitly begs the question.

In upholding the verdicts in the present case, the Court of Appeal slid from harmless error analysis into a sufficiency of evidence assessment.  That was the only way it could conclude that the admission of Summers' testimony might have influences the jury but there was such sufficient evidence of guilt that the error probably did not affect the result.

The Court of Appeal's analysis flows from a  common misinterpretation of Watson.  As shown above, the Watson test actually states the same standard as used in Chapman.  The common place idea, among California courts, that it sets a "lesser" standard is just plain wrong, once one actually reads the  Watson opinion instead of mechanically repeating a short-hand rubric.
 
But the misinterpretation has constitutinal implications.  The Sixth Amendment's reference to a trial "by jury" is more than just a guarantee of twelve sitting equals.  Trial by jury -- constitutionally understood -- encompasses a cluster of inter-related rights:  the right to a local jury, comprised of a random but fairly selected cross-section of the population, uninfluenced by outside pressures or bribes, properly instructed in the law by the judge and not allowed to hear matters passing as evidence  that are irrelevant, improper or unduly inflammatory.   When all these conditions have been then, and only then, has a defendant be accorded his right to a "jury trial" as contemplated by the Constitution.
   
When error has been shown to exist for an appellate court to state that in its opinion a guilty verdict would probably have been reached anyways,  simply washes away a defendant's right to a "jury trial."


©JustinLaw, 2013

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