                        Cite as: 562 U. S. ____ (2010)                              1

                         Statement of SOTOMAYOR, J.

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash
     ington, D. C. 20543, of any typographical or other formal errors, in order
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SUPREME COURT OF THE UNITED STATES
   RICHARD CAMERON GAMACHE v. CALIFORNIA
  ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

                 COURT OF CALIFORNIA

               No. 10–5196. Decided November 29, 2010 


    The petition for a writ of certiorari is denied.
    Statement of JUSTICE SOTOMAYOR, with whom JUSTICE
GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join,
respecting the denial of the petition for writ of certiorari.
    After a jury convicted Richard Gamache of first-degree
murder and sentenced him to death, Gamache’s counsel
and the trial court learned that during deliberations, court
personnel inadvertently gave the jury a videotape that had
not been admitted into evidence. During its deliberations,
the jury watched the video twice in full and a third time in
part before reaching its verdict. The video showed a police
interview of Gamache and his codefendants on the day of
the murder in which Gamache confessed to the crime in
graphic terms. The video showed Gamache explaining, for
example, that given the opportunity, he would have shot
police officers. 48 Cal. 4th 347, 402, 227 P. 3d 342, 390
(2010) (quoting Gamache on the video as stating, “ ‘ If I
figured, if I had any idea I was about to be arrested, I’d
have started shooting. . . . See, I figure if I’m going to die,
. . . I’m going to take one or two with me’ ”).
    On appeal, the California Supreme Court held that the
jury’s access to the tape was indisputably error, citing our
opinion in Turner v. Louisiana, 379 U. S. 466 (1965). 48
Cal. 4th, at 396, 227 P. 3d, at 386 (“ ‘ The requirement that
a jury’s verdict “must be based upon the evidence devel
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                  Statement of SOTOMAYOR, J.

oped at the trial” goes to the fundamental integrity of all
that is embraced in the constitutional concept of trial by
jury’ ” (quoting Turner, 379 U. S., at 472)); see also id., at
472–473 (“In the constitutional sense, trial by jury in a
criminal case necessarily implies at the very least that the
‘evidence developed’ against a defendant shall come from
the witness stand in a public courtroom where there is full
judicial protection of the defendant’s right of confronta
tion, of cross-examination, and of counsel”). The Califor
nia Supreme Court found that the error was trial error
and not the result of any juror misconduct. Accordingly,
it did not apply a presumption of prejudice, 48 Cal. 4th,
at 399, 227 P. 3d, at 388, and proceeded to conduct a
harmless-error analysis.
   Under our decision in Chapman v. California, 386 U. S.
18, 24 (1967), the prosecution must carry the burden of
showing that a constitutional trial error is harmless be
yond a reasonable doubt. See also Deck v. Missouri, 544
U. S. 622, 635 (2005) (“[W]here a court, without adequate
justification, orders the defendant to wear shackles that
will be seen by the jury . . . [t]he State must prove ‘beyond
a reasonable doubt that the [shackling] error complained
of did not contribute to the verdict obtained’ ” (quoting
Chapman, 386 U. S., at 24)); United States v. Dominguez
Benitez, 542 U. S. 74, 81, n. 7 (2004) (“When the Govern
ment has the burden of addressing prejudice, as in excus
ing preserved error as harmless on direct review of the
criminal conviction, it is not enough to negate an effect on
the outcome of the case” (citing Chapman, 386 U. S., at
24)); Arizona v. Fulminante, 499 U. S. 279, 295–296 (1991)
(“The Court has the power to review the record de novo in
order to determine an error’s harmlessness. In so doing, it
must be determined whether the State has met its burden
of demonstrating that the” error “did not contribute to
[defendant’s] conviction” (citations omitted)).
   The California Supreme Court, however, stated, “[I]n
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                  Statement of SOTOMAYOR, J.

the absence of misconduct, the burden remains with the
defendant to demonstrate prejudice under the usual stan
dard for ordinary trial error.” 48 Cal. 4th, at 397, 227
P. 3d, at 387 (emphasis added). It is not clear what the
court intended in allocating the burden to the defendant to
demonstrate prejudice, but if it meant to convey that the
defendant bore the burden of persuasion, that would
contravene Chapman. See 386 U. S., at 24 (noting that
the “original common-law harmless-error rule put the
burden on the beneficiary of the error either to prove that
there was no injury or to suffer a reversal of his errone
ously obtained judgment”); cf. O’Neal v. McAninch, 513
U. S. 432, 438–439 (1995) (describing Chapman as “plac
ing the risk of doubt” about harmlessness on the State).
   However, it appears from the court’s recitation of the
evidence and its analysis that the court found that the
error at issue was harmless, regardless of the burden
allocation. See 48 Cal. 4th, at 399, 227 P. 3d, at 388
(“[T]here is no reasonable possibility the outcome would
have been different absent the error”). I therefore do not
disagree with the denial of certiorari.
   I nonetheless write respecting the denial of certiorari
because the allocation of the burden of proving harmless
ness can be outcome determinative in some cases. See
Fulminante, 499 U. S., at 296 (“Five of us are of the view
that the State has not carried its burden and accordingly
affirm the judgment of the court below reversing respon
dent’s conviction”); see, e.g., State v. Ball, 2004 SD 9, 675
N. W. 2d 192 (holding that the State had not met its bur
den of showing that prosecutor’s improper references in
closing argument to defendant’s silence were harmless
beyond a reasonable doubt); State v. Jorgensen, 2008 WI
60, 310 Wis. 2d 138, 754 N. W. 2d 77 (holding that the
State had not met its burden of showing that Confronta
tion Clause violation was harmless beyond a reasonable
doubt). With all that is at stake in capital cases, cf. Kyles
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                  Statement of SOTOMAYOR, J.

v. Whitley, 514 U. S. 419, 422 (1995) (“ ‘[O]ur duty to
search for constitutional error with painstaking care is
never more exacting than it is in a capital case’ ” (quoting
Burger v. Kemp, 483 U. S. 776, 785 (1987)), in future cases
the California courts should take care to ensure that their
burden allocation conforms to the commands of Chapman.
In this case, however, because it seems that the burden
allocation would not have altered the court’s prejudice
analysis, I do not disagree with the denial of certiorari.
