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Court of appeals again blurs harmless error test

State v. Julius Alfonso Coleman, 2013AP2100-CR, 3/21/2017, District 1 (not recommended for publication); case activity (including briefs)

Julius Coleman was set up by a confidential informant to participate in an armed robbery of a nonexistent drug dealer named “Poncho.” He challenges the admission of various statements at trial on the ground that they were taken in violation of Miranda. The court of appeals concludes that any error in their admission was harmless beyond a reasonable doubt, but along the way (and not for the first time) seems to confuse the test for harmless error with that for sufficiency of the evidence.

Coleman was interrogated twice at the police station after his arrest. The state concedes that the initial interrogation violated Miranda (Coleman was not given the warnings). Coleman argues that his statements during the second, warned interrogation were also inadmissible under Missouri v. Seibert, 542 U.S. 600 (2004), because that second interrogation was tainted by the first, but the court declines to decide the question.

Instead, it assumes that all the statements should have been excluded, but finds their admission harmless. First, Coleman’s charge of conspiring to commit the robbery was dismissed after the jury could not reach a verdict on it, so his admission to that offense during the interrogation made no difference. (¶15).

Regarding the count of which he was convicted, felon in possession of a firearm, the court notes that Coleman denied possessing the gun during his interrogation, and his denial was relayed to the jury. (¶16).

So far so good. But then things go off course. The jury also heard that Coleman inquired, during the interrogation, about becoming a confidential informant himself, and also answered a question about the gun in a way that suggested he would not deny it was his because he wanted to be honest with his interrogator. No matter, though, because

there was other evidence unrelated to the interrogations from which a rational jury could conclude that Coleman possessed a firearm. The informant testified that he saw Coleman raise the hood of his (Coleman’s) car and pull a gun from the engine compartment. Cefalu testified that while he was conducting surveillance of the staged robbery, he witnessed Coleman retrieve something from under the hood of Coleman’s car. Schumacher corroborated Cefalu’s testimony, stating that she also witnessed Coleman retrieve something from under the hood of his (Coleman’s) car and hand it to one of his accomplices prior to getting in the informant’s van. Moldenhauer testified that a gun was found in the van. Coleman admitted in his recorded conversations that he had several guns and was willing to use them during the robbery. Consequently, it was reasonable for the jury to conclude that the item three witnesses saw Coleman retrieve from under the hood of his car was indeed a firearm. In short, proof of Coleman’s possession of a firearm was not established by the interviews, but by the unrelated observations of multiple witnesses and the recorded conversations.

(¶16).

“[I]t was reasonable for a jury to conclude” that Coleman was guilty based on other evidence? As the court of appeals has been reminded, this is not the test for harmless error, but the test for sufficiency of the evidence. Though the court earlier notes the state’s burden to show, beyond a reasonable doubt, that a rational jury would have found Coleman guilty absent the error, its discussion certainly does not seem to apply this standard. (¶14).

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