The Supreme Court ruled Tuesday that a conviction based on jury instructions containing more than one theory of guilt, with one of those theories invalid, is to be judged on whether that was harmless error. That is not to be treated as a “structural error” that undermines the verdict itself, the Court concluded in Hedgpeth v. Pulido (07-544). The Court was unanimous in that part of the ruling, but the decision to send the case back to the Ninth Circuit Court for harmless error analysis drew the dissents of three Justices.
The Court’s opinion was unsigned (that is, it was “Per Curiam,” or “by the Court”), and was announced by Chief Justice John G. Roberts, Jr. It was the only decision of the day.
The case involves Michael Robert Pulido of San Mateo, Calif., who was convicted of first degree murder, robbery, receiving stolen property and auto theft. The jury in his case also returned a special verdict, finding that the robbery was committed during the course of a felony murder. The jury deadlocked on whether Pulido personally did the shooting. He was sentenced to life in prison without possibility of parole for murder “with special circumstances.”
When the case was tried, it was submitted to the jury on three alternative theories: that Pulido personally shot the cashier at a gas station and convenience store in San Mateo in May 1992, that he aided and abetted in the robbery during the shooting, or that he aided in the robbery only after the shooting. During five days of deliberation, the jury sent out numerous questions about aiding-and-abetting liability under a felony murder theory — that is, a murder committed during a felony.Â
The California Supreme Court ruled in the case that the third theory — aiding in the robbery after the shooting had occurred — would not support a felony murder verdict, since the homicide would have been completed. The state court, however, ruled that, because the jury had found special circumstances, that was an indication that the murder occurred while Pulido was taking part in the robbery.
Pulido then sought to challenge his conviction in federal habeas court, leading to a Ninth Circuit ruling that found a structural error in the erroneous jury instruction. It overturned the jury verdict, because the instructions given had left open the possibility that Pulido had been convicted on an impermissible ground.
California officials appealed to the Supreme Court. As the case developed, both sides agreed that the Circuit Court was wrong in finding structural error. Pulido, however, argued that the Supreme Court should uphold the Ninth Circuit ruling nullifying his conviction because the Ninth Circuit had already engaged in the harmless error analysis, even though it had labeled the error as structural. That is the same position taken Tuesday by the three dissenting Justices: John Paul Stevens, joined by Ruth Bader Ginsburg and David H. Souter.
The Court majority said it would express no view on whether Pulido was entitled to relief. It thus said the Ninth Circuit should examine the harmless error issue directly.
Apparently joining in the opinion were the Chief Justice and Justices Samuel A. Alito, Jr., Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.
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