Wednesday, April 1, 2009
April Fool's: California Court Of Appeal Finds Harmless Error In Horribly Misguided April Fool's Day Appeal
Last December, I posted an entry about a horribly misguided opinion of the Court of Appeals of Texas. In that opinion, the court found that the erroneous admission of the defendant's confession was harmless error because the alleged victim identified him twice. There was no forensic evidence linking the defendant to the crime, no eyewitnesses, no other confessions by the defendant. Instead, the Court of Appeals reached the indefensible conclusion that the defendant's confession was no more damaging that the victim's identifications. This was probably the worst harmless error ruling I had ever seen until I read the recent opinion of the California Court of Appeal, First District in People v. Cooper, 2009 WL 792355 (Cal.App. 1 Dist. 2009). In my mind, Cooper almost seems like an April Fool's Day joke of circular logic.
In Cooper, according to San Francisco Police Officer Shaughn Ryan, on April 1, 2007, Tyrone Cooper made eye contact with him and asked if he wanted some "cream," which is slang for cocaine. Ryan said that he did, and Cooper pulled out a Tic Taccontainer with an off-white rock substance inside that Ryan believed, based on his training and experience, to be crack cocaine. After the two negotiated a price of $10, Ryan told Cooper that he was a police officer and that defendant was under arrest. Cooper then
took a "combative stance," bending his knees and bringing his fists in front of his body, and stated, "'Oh, no, I'm not going to jail today.'" Ryan stated again that he was a police officer, that [Cooper] was under arrest, and that Ryan did not want to fight with him. Ryan radioed for assistance and also began to pull his police badge out from under his shirt to reinforce the fact that he was really a police officer. [Cooper] started to run. He took about two or three steps before Ryan tackled him to the ground. Ryan testified that he tackled [Cooper] "by putting my arms around him and, hmm, using my momentum to trip him up and force him to the ground kind of like a football tackle." They "rolled around on the ground for a little bit," and Ryan again told [Cooper] that he was a police officer and to stop resisting. Another officer testified that when he came to assist Ryan, Ryan "was more or less on top of" [Cooper], and they were "in a struggle, and not a fist fight struggle, but more or less as Mr. Cooper was trying to, ah, kind of push himself up trying to get away from Officer Ryan's grasps." After two other officers arrived and [Cooper] was handcuffed, [Cooper] stopped struggling. Ryan noticed that [Cooper] had a big gash on the top of his forehead, and that [Cooper] "was bleeding pretty well."[Cooper] was taken to the hospital, where he received stitches.
Cooper's version of events differed. For insrance, "[h]e admitted that he had previously carried crack cocaine in the Tic Taccontainer, but [claimed] that he smoked it all and refilled the container with "bunk," or "fake dope," that someone had given to him as an April Fool's Day joke." This claim, however, was not very compelling because "[s]ubsequent tests of the suspected narcotics revealed it was cocaine base totaling .13 grams, which Officer Ryan testified was a usable amount of cocaine base."
More compelling was Cooper's account of his arrest. According to Cooper, before Ryan identified himself as a police officer, Ryan
grabbed him by the throat and held his neck. [Cooper] at first did not believe that Ryan was a police officer and so "grabbed him back" to prevent Ryan from choking him. He then realized that Ryan could be a police officer, and he reached into his pocket and threw the Tic Taccontainer on the ground. According to [Cooper], Ryan "kept on pushing [him]," then pushed him to the ground and "busted [his] head." [Cooper] claimed he did not try to run, and that he was just trying to loosen Ryan's grip on his neck. He testified, "I mean, when he grabbed me a little tight, when he first grabbed me, I didn't think he was a police, but when he started grabbing me, he put a lot of pressure on there and then I said, yes, this must be the police here."
Nonetheless, the trial court refused to instruct the jury on the effect of Officer Ryan's use of allegedly excessive force when he arrested Cooper, and Cooper was subsequently convicted of offering to sell cocaine base, possession for sale of cocaine base, and resisting, obstructing, or delaying a peace officer. Cooper thereafter appealed, claiming, inter alia, that the failure to instruct the jury on the effect of Officer Ryan's use of allegedly excessive force was reversible error because the lawfulness of an arrest is an essential element of the crime of resisting, obstructing, or delaying a peace officer, and the prosecution must prove beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed.
The Court of Appeals agreed that the failure to instruct was error, noting that "although the evidence regarding Officer Ryan's use of allegedly excessive force was weak, it was sufficient to justify a jury instruction on the issue." The court, however, found that this error was harmless because
[a]lthough [Cooper] testified that Ryan grabbed his throat..., jurors clearly rejected this testimony. Had jurors accepted [Cooper]'s version of events, they would have acquitted him of resisting a peace officer, because he also testified that he did not run from Ryan or resist arrest (other than raising his hands to his throat to prevent Ryan from choking him). Any error in refusing the requested instructions was harmless beyond a reasonable doubt.
What? Cooper's whole point was that the jurors might have accepted his version of events but didn't undestand the consequence of finding that Officer Ryan used excessive force because they were not given a jury instruction. To focus on what the jury found without the jury instruction completely ignores the point of Cooper's appeal. The court's opinion would be akin to a court saying that a trial court committed harmless error by failing to instruct the jury on self-defense because the jurors clearly rejected the defendant's self-defense testimony. In other words, its is circular logic of the worst kind.