Coleman v. Calderon

• Decision Date: 02 May 2000
• Docket Number: No. 97-99013,No. 97-99014,97-99014,97-99013
• Citation: 210 F.3d 1047
• Parties: (9th Cir. 2000) RUSSELL COLEMAN, Petitioner-Appellant, v. ARTHUR CALDERON, Warden, Respondent-Appellee. Re
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1047

210 F.3d 1047 (9th Cir. 2000)

RUSSELL COLEMAN, Petitioner-Appellant, v. ARTHUR CALDERON, Warden, Respondent-Appellee.

No. 97-99014 No. 97-99013

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Reargued and Submitted November 4, 1999

Filed May 2, 2000

COUNSEL: Cliff Gardner and Robert Derham, Gardner & Derham, San Francisco, California, for the petitioner-appellant-crossappellee.

Morris Beatus, Deputy Attorney General, San Francisco, California, for the respondent-appellee-cross-appellant.

On Remand from the United States Supreme Court

Before: Mary M. Schroeder, Melvin Brunetti, and David R. Thompson, Circuit Judges.

Opinion by Judge Thompson; Partial Concurrence and Partial Dissent by Judge Brunetti

THOMPSON, Circuit Judge:

We reconsider this appeal on remand from the Supreme Court, Calderon v. Coleman, 525 U.S. 141 (1998), to determine whether an erroneous jury instruction given by the trial court was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). After reconsideration, we conclude, under Brecht, that the instruction had a substantial and injurious effect on the jury's verdict. Accordingly we affirm the decision of the district court granting petitioner Russell Coleman's habeas petition as to his death sentence.

Coleman also asks us to reconsider whether he is entitled to habeas relief from his conviction. He contends that in our prior opinion we mistakenly relied on Gray v. Netherland, 518 U.S. 152 (1996), to conclude that the government's alleged affirmative concealment of inculpatory evidence could not violate due process. Although we agree that we erred by relying on Gray, we affirm the decision of the district court denying relief from the conviction.

FACTS

Because our prior opinion describes the facts of this case in detail, see Coleman v. Calderon, 150 F.3d 1105 (9th Cir. 1998), rev'd, Calderon v. Coleman, 525 U.S. 141 (1998), our description here will be brief. Coleman is a California prisoner under sentence of death. In 1981, a jury convicted him of raping and murdering Shirley Hill. The jury also found two special circumstances, which made Coleman eligible for the death penalty under California law. See People v. Coleman, 46 Cal.3d 749, 761 (1988). Coleman was sentenced to death. His conviction and sentence were upheld by the California Supreme Court.

Coleman then filed a habeas petition in the district court, challenging the constitutionality of his conviction and sentence. The district court denied Coleman relief from his conviction but granted relief from his sentence. The court held that the state trial court erred when, during the penalty phase of Coleman's trial, the court instructed the jury on the Governor's power to commute a sentence of life imprisonment without the possibility of parole to a lesser sentence that would include the possibility of parole. The district court also determined that the instructional error was not harmless because, after considering the prosecution's argument, the aggravating and mitigating evidence and the record as a whole, it was reasonably likely the commutation instruction prevented the jury from giving full effect to Coleman's mitigation evidence. We affirmed. See Coleman, 150 F.3d at 1105. Both Coleman and the respondent State of California filed petitions for writs of certiorari. The Supreme Court granted the State's petition, denied Coleman's petition, and reversed and remanded the case to this court for reconsideration. See Calderon, 525 U.S. at 147.

The Supreme Court determined that even if the state court's jury instruction was constitutionally deficient, we should have applied a harmless error analysis under Brecht . The Court explained that existing Ninth Circuit authority mistakenly conflated Brecht's harmless error test with the test for constitutional error set forth in Boyde v. California , 494 U.S. 370, 380 (1990). The Court clarified that Boyde merely establishes "the test for determining, in the first instance, whether constitutional error occurred." Calderon, 525 U.S. at 146. If it did, then a reviewing court must go further and determine whether, using a Brecht analysis, the Boyde error had a substantial and injurious effect or influence on the jury's verdict. Id. at 147.¹

We begin our analysis by considering whether the state trial court's jury instruction constituted a Boyde error. To determine whether a Boyde error occurred, we ask "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde , 494 U.S. at 380.

Because a death sentence is qualitatively different from other forms of punishment, there is a greater need for reliability in determining whether it is appropriate in a particular case. See Fetterly v. Paskett, 997 F.2d 1295, 1300-01 (9th Cir. 1993) (quoting Woodson v. North Carolina, 428 U.S. 280, 304-05 (1976)). We have therefore held that the Eighth and Fourteenth Amendments require that "the sentencing body's attention be directed to the specific circumstances of the crime and the characteristics of the defendant." See Hamilton v. Vasquez, 17 F.3d 1149, 1160 (9th Cir. 1994).

Here, the state trial court instructed the jury as follows:

You are instructed that under the State Constitution, a Governor is empowered to grant a reprieve, pardon or commutation of a sentence following conviction of the crime.

Under this power, a Governor may in the future commute or modify a sentence of life imprisonment without the possibility of parole to a lesser sentence that would include the possibility of parole.

So that you will have no misunderstandings relating to a sentence of life without the possibility of parole, you have been informed generally as to the Governor's commutation modification power. You are now instructed, however, that the matter of a Governor's commutation power is not to be considered by you in determining the punishment for this defendant.

You may not speculate as to if or when a governor would commute the sentence to a lesser one which includes the possibility of parole.

As we have previously explained, this instruction was misleading because it told the jury that the Governor had the power to commute Coleman's sentence but left out the additional hurdles to be overcome to obtain such a commutation. When a person has two prior felony convictions, as Coleman did, he must apply directly to the Governor to have his sentence commuted. See Cal. Penal Code S 4802. The Governor must then confer with the Board of Prison Terms, and may commute the defendant's sentence only upon the written recommendation of four justices (a majority) of the California Supreme Court. See Cal. Const., Art. 5 S 8; Cal. Penal Code SS 4802, 4813, 4852. The instruction given to Coleman's jury failed to include this additional information. It was, therefore, misleading. It suggested the Governor could, at his sole discretion, commute a sentence from life imprisonment without the possibility of parole to some lesser sentence that would include the possibility of parole.

Not only was the instruction misleading, it was constitutionally infirm because it discouraged the jury from giving due weight to Coleman's mitigating evidence. See McLain v. Calderon, 134 F.3d 1383, 1386 (9th Cir. 1998); Hamilton, 17 F.3d at 1162-63; cf. Boyde, 494 U.S. at 380; but see People v. Hart, 20 Cal. 4th 546, 656 (1999) (holding that although a similar instruction was incomplete it was not constitutionally deficient in view of the trial judge's other comments), cert. denied, _______ U.S. _______, 120 S. Ct. 811 (2000). By explaining that the Governor was entitled to commute the sentence and by directing the jury not to speculate about that fact, the instruction "invited the jury to assume that the question of [Coleman's] release would automatically come before" the Governor. Hamilton, 17 F.3d at 1161. We have previously held that this inference is unconstitutional because it invites the jury to speculate that the only way it can avoid a defendant's release is to sentence him to death. See id. at 1162; see also McLain, 134 F.3d at 1386. In this way, the jury was diverted from its task by having its attention focused on the Governor's ill-defined commutation power rather than the mitigation evidence introduced during the penalty phase. See Hamilton, 17 F.3d at 1162-63.

Having determined that the instruction was constitutionally infirm, we now consider whether the instruction was nonetheless harmless under Brecht. In this part of our analysis, we consider whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). If we are in grave doubt as to whether the error had such an effect, the petitioner is entitled to the writ. See O'Neal v. McAninch, 513 U.S. 432, 436 (1995).

We conclude the instruction did have a substantial and injurious effect or influence in determining the jury's verdict.We begin with the instruction itself. The instruction was not only unconstitutionally misleading, it undermined the very core of Coleman's plea for life. Although an accurate description of sentencing alternatives would have helped the jury focus on its task of evaluating whether the circumstances of this case and the characteristics of this defendant warranted a death sentence, the jury was invited to speculate that the only way it could be assured Coleman would not be released would be to sentence him to death.

The prosecutor's closing argument exacerbated the impact of the misleading instruction by emphasizing the threat Coleman posed to the general public. Cf. Hamilton, 17 F.3d at 1162. The prosecutor argued that not only would Coleman pose a continuing threat to prison personnel if he were sentenced to life in prison, he would remain a risk to "all of us" if a death sentence...