*1 In Bаnk. Nov. 1969.] No. 10838. [Crim. PEOPLE, Plaintiff and Respondent, THE BAKER, ANDREW and LARRY LLOYD BRAWLEY
KENNETH Defendants Appellants.
Counsel Baker, Andrew Larry Frank G. Prantil pro. per., and Hubert C. Cavanagh, under Court, appointments Supreme for Defendants and Appellants. General,
Thomas C. Lynch, James, Attorney William E. Assistant Attorney General, Moore, and S. Clark General, Deputy Attorney for Plaintiff and Respondent.
Opinion BURKE, An indictment filed J. was Kenneth Brawley Larry charging Baker with the murder and robbery of Edwin Brewer. A jury found both defendants of first murder and first guilty degree degree robbery fixed their at death penalty for the murder. The also found but Brawley not Baker was armed with a at the deadly time of the weapon robbery. Motions for new trial and for reduction of the death denied, were penalty and defendants’ (Pen. automatic Code, is now before us appeal § (b)). subd.
Defendants attack the judgments on various grounds hereafter discussed.
We have concluded that the judgments as to
should be
guilt
affirmed but that
Illinois,
under the
Witherspoon
compulsion
About of Edwin a 35-year-old body *7 cabdriver, was discovered near his cab by behind an police apartment house in National The were called a City. resident of the police by house, found the cab in his who about 12:30 a.m. apartment parking space and the cab still there a little over an hour later looked inside it seeing upon and a knife and blood. saw cab and a company 3:30 shift for to a.m. Decedent a 5 p.m. worked friend, His Mrs. 22. Friday, July time on at his usual for work
reported July 8:45 p.m. him about last saw Floridi, that she Concetta testified introduced prior was a few Evidence groceries. her brought when he hour later. him around she last saw the time statements her by placing at two he passengers that picked up showed sheet” The in his entry last “trip was blank. trip for the time completion and p.m., space that cause of the death was testified victim’s surgeon autopsy chest, heart, and and thoracic hemor- lungs stab wounds multiple lacerations, back; of which were in the and that were 18 many there rhages; have been inflicted knife found in “could” that all of lacerations that was examination revealed blood on knife blade A'chemical cab: blood, the decedent. O human that of same type type cab were identified as those a on the and Fingerprints print palm area” “in the of one of the and was blood Brawley, fingerprint there A the victim’s was made a body a few inches from fingerprints. footprint a heel аs that of shoe and of sole and length shoe the same shape having wearing that was such Brawley and witness testified to belonging Brawley, on the afternoon of 22. shoes July were confined in the
Brawley and Baker barracks of the disciplinary San United States Station in Diego Naval immediately before time decedent was killed. morning July During Brawley asked Stephen Glaze, barracks, sailor confined at the if he where knew wire some and (This be be to as gloves statement.) could found. will referred the first Glaze he but that same replied that did not later morning some wire finding upon what he it gave it to and asked wanted for. Brawley Brawley answered that were to choke kill a cabdriver take and and his “they” going money; and to other men “AWOL” the Brawley go following two planned Saturday (cid:127)but after decided to the 4:45 muster because “they” go Friday did “they” one not want member were downtown “they” go аlong; going go and, after catch a cab driver east killing taking go money, during home. Glaze first testified that this conversation Brawley’s Brawley were, did he not him who other men then testified that did inform name, Baker’s remember whether mentioned and thereafter stated Brawley that he recalled it was the conversation mentioned Baker’s during Brawley name At the same going in connection with “AWOL.” conversation consider if “taking along told Glaze he would Brawley [Glaze] [Glaze] (The statements at the conversa- wanted to with them.” second go AWOL statement.) Glaze to as the second When wire gave tion will referred two he had obtained. Brawley, Brawley gloves displayed pairs take a Glaze saw knife from the day Brawley the afternoon of the same In *8 better than the wire. and heard him “This would be We say, commissary him, (This will be to as the third could stab slit his throat.” referred statement.) Glaze, knife took was the one later Brawley According cab, a at the testified that the knife found in the and meat cutter commissary he found cab was one that was from the missing commissary—that in the the knife it was and its character- recognized general way sharpened istics. seen talking together
On the and Baker were Brawley evening July the knife at the before 4:45 on took July Brawley barracks. Shortly p.m. Baker, stated, and and Baker wire from his locker and handed wire to locker, and he won’t need now.” also took from his gloves “We this Brawley and under his and Baker were seen clothing. Brawley Baker each aput pair after the 4:45 muster on together July toward a bus at the base heading stop 22.
One week after the deceased’s was found body and Baker were Brawley arrested together Illinois. After the arrest an officer took an wallet empty from Baker. Mrs. Floridi identified the wallet as оne the decedent carried on of his death. She further testified that she night had given the wallet to decedent a that it was one she gift, had inexpensive a purchased at drugstore, that the distinctive about the things wallet which enabled her to it were that it was black and had identify and that specified pockets, she was “positive” wallet taken from Baker was the one she gave decedent. The words calf” “buffalo were on the wallet taken from Baker. Mrs. Floridi told an officer decedent had a wallet. pigskin
No wallet found was on the decedent’s were body nor there coins on any a silver that was dollar of a belt. body except $12 There was part in bills in Mrs. Floridi testified that he had $30 over in his pocket. wallet after for their dinner between and paying 7:15 8:15 22. She further p.m. July testified that carried he in which he changer small and that a change kept changer found in a a few blocks from cab on yard morning July was decedent’s. No was near the changer decedent. officer, defense witness at the only guilt was who was police questioned statements of regarding witnesses. The defense prior prosecution arguments at the trial concerned whether the had guilt prosecution proved a reasonable guilt beyond doubt.
The court motion that evidence received at the granted prosecution’s trial, admitted at the trial be evidence was additional penalty guilt introduced prosecution Brawley. Made on the Asserted Error Motion Severance (1) Denying Brawley’s the Prosecution Would Introduce Evidence
Ground that *9 286 Glaze, Evidence,
Statements to (2) Admitting and (3) Failing Give on the Court’s Own Motion an Relating Instruction Thereto
Before the trial Baker made a motion for severance on the ground prosecution would introduce Glaze by testimony regarding extrajudicial statements of Baker. The motion was Brawley by implicated opposed who indicated that the statements were admissible prosecutor, against both defendants under the to the rule. exception hearsay coconspirators’ motion, The court denied the at the recited previously statements of were testified to Glaze to Glaze over Brawley objection Baker.
Baker
that the court erred in
motion
denying
contends
severance and
statements without
the evidence of
admitting
extrajudicial
because,
deleting all
there was insufficient
him
parts
assertedly,
implicating
the evidence of
proof
existence of a
from
conspiracy apart
Aranda,
518
extrajudicial
People v.
statements and the rules in
265],
Un
[47
were therefore
Cal.Rptr.
407
applicable.
der
alternative
the Aranda
one of three
rules the court must adopt
statement
procedures
delete
(namely, effectively
extrajudicial
parts
declarant,
severance
implicating
grant
codefendant without
prejudice
exclude
statement) when the
extrajudicial
proposes
prosecution
defendant
introduce
statement of one
into evidence an extrajudicial
to obviate
Those rules were
implicates
codefendant.
adopted
to disregard
risk that the
be
instructions
following
would
incapable
of his
or innocence
guilt
statement of a defendant in determining
however,
held
rules,
have been
inappli
codefendant.
The Aranda
cable if
excep
statements come within
coconspirators’
extrajudicial
Morales,
374
tion to the
Cal.App.2d
[69
rule.
hearsay
den.
Under California аt the time authorities was that trial the rule where there is facie of the existence of a prima proof testimony conspiracy, regarding a statements made and in coconspirator’s during conspiracy furtherance thereof is admissible as an against conspirators exception (former Proc.;1 rule subd. Code hearsay Civ. § provided: conformity provisions, Former preceding section 1870 “In with the evi given dence conspiracy, following upon a trial of the ... 6. After facts: against co-conspirator, the act or of a conspirator declaration relating section, to the conspiracy.” repealed by chapter This which was Statutes operative trial, section January governed began which defendants’ *10 Robinson, Steccone, 865]; 132, People 43 137 P.2d v. 36 Cal.2d [271 Ferlin, 587, 234, v. 17]; People 238-240 P.2d 203 Cal. 599 [223 Oldham, 648, 312]; Witkin, 230]; v. 111 Cal. 652 P. see People P. [44 [265 492-493), and the order (1966) Cal. Evidence of is within the proof pp. Robinson, 137; (People supra, sound trial court v. at discretion p. Ferlin, People 599). supra, at evidence received virtue of the Any v. p. rule is received for in the final foregoing “necessarily conditionally, on the as to whether the analysis, must first pass judgment question Steccone, 238; supra, v. asserted has been at conspiracy proved.” p. Talbott, 654, 317]; People v. 663 P.2d v. People see 65 Cal.App.2d [151 643, 649.) “If the satisfaction of the Geiger, Cal. jury, 49 proved circumstances, of a such evidence the acts or declarations in conspirator, Talbott, supra, (See People be v. 65 may considered.” at Cal.App.2d p. 663.)
Here the recited evidence it is that there was from apparent prima a from the facie of the existence of testimony conspiracy apart statements to Glaze. Baker’s contention to the regarding contrary Brawley’s thus lacks merit. that,
No of a claim even if there was conspiracy, is made adequate proof made, were and the in existence when the statements was not conspiracy recited evidence it is sufficient to show existed at that time.
Nor is claim made that statements were Brawley’s not made any furtherance The code section in effect at the time of conspiracy. defendants’ trial did not that the statement be made “in require expressly 6, (see 1870, furtherance former subd. Code Civ. § conspiracy” Proc.) and of the has been criticized and propriety requirement 300; (see McBaine, (2d questioned 1960) Cal. Evidence Manual ed. p. Levie, 1159, 1168-1172). Conspiracy, 52 Hearsay and Mich. L.Rev. However, that cases have declared the statement must be in furtherance long be admissible other than in order to against consрirator conspiracy Smith, People 511]; see declarant 151 Cal. P. (e.g. v. Court, Irwin, 56]; Superior Callan 204 Cal. 504 P. v. People Busby, Cal.App.2d Cal.App.2d 531]), it be Code section noted Evidence 198 [104 trial, (a), became effective after defendants’ subdivision which codified that limitation. Code, (b).) (Evid. 1223 restates the § subd. Evidence Code section
in 1966.
(See
formerly
6.
exception
hearsay
to the
rule
contained in section
subdivision
disregard
Code,
(c)
pertaining
§
also Evid.
conditionally
subd.
to instructions
pre-
persuaded
unless it is
of the existence of “the
admissible evidence
fact.”)
liminary
were in
first
warrant
determination
they
two statements
Brawley’s
he
since in
first statement
furtherance
inquired
conspiracy
be used
and the second
robbery
killing,
in the
regarding items
might
recruit
as a member of
statement
as an
Glaze
could
viewed
attempt
(cf.
(5th
1967)
F.2d
417-
Myers
States
Cir.
v. United
conspiracy
859]]).
S.Ct.
Whether
den.
Baker further federal constitutional right contends of Brawley’s confrontation was of the evidence violated by receipt States, U.S. to Glaze. Baker relies Bruton v. United 391 statements upon a 476, 1620], 123 L.Ed.2d held admission at S.Ct. which 88 [20 joint trial a confession a codefend of defendant’s extrajudicial implicating ant violated the secured by codefendant’s of cross-examination right confrontation limiting clause of Sixth Amendment giving despite instructions.2 Bruton juries viewed assumption unaccеptable 128, (at could follow such Bruton instructions. also declared p. specifically fn. 480]), 3 L.Ed.2d at “There is not before us . . . any recognized p. [20 we to the is concerned and exception rule insofar as hearsay petitioner .intimate raise necessarily no view whatever such exceptions questions under the Confrontation Clause. [Citations.]”
Bruton thus did not decide whether the of statements receipt under the coconspirators’ rule exception hearsay violates the right of confronta- tion of another asserted conspirator, that is the here question presented since, have seen, as we least at first two Brawley’s statements to Glaze came within that exception. States,
Delaney
586,
v. United
263
462, 465,
U.S.
590
L.Ed.
44
[68
206],
S.Ct.
rejected a contention that the right of confrontation was violated
by
at a federal
receipt
of testimony regarding extrajudiciаl
statements
aby
deceased coconspirator
made in
apparently
furtherance of
Russell,
applied
(Roberts
2Bruton must be
retroactively
v.
392
293
U.S.
L.Ed.2d
[20
1100,
1921]), and, although
88 S.Ct.
Bruton involved
right
a
prosecution,
federal
by
is,
cross-examination secured
clause
confrontation
of the Sixth Amendment
course,
applicable
made
states
(Roberts
the Fourteenth
v.
Amendment.
Russell, supra,
p.
at
.1102];
294
Texas,
p.
L.Ed.2d at
[20
Pointer v.
289
decisions,
And
federal
many
without
conspiracy.
mentioning
right
confrontation, have declared that statements
a
furtherance
conspirator
to its termination
be used
prior
conspiracy
against
States,
590,
Clune
(e.g.,
v. United
U.S.
coconspirator
159
593
L.Ed.
[40
Santos,
269, 270,
125];
43,
[cert,
16 S.Ct.
United States v.
385 F.2d
44
148,
den.
1048]];
457]).
only
(Carbo
facie
present
prima
case.
v. United
*12
States,
In Krulewitch
United
336 U.S.
United
declared, “There are
many logical
States
Court
Supreme
practical
could
advanced against
reasons that
rule that
evidentiary
special
be used
out-of-court statements
one
permits
conspirator
against
reasons, it
these
is
established that
cogent
another. But however
firmly
where
of a
such
going conspiracy,
made in furtherance
objectives
It
as
rule.”
is
in
hearsay
statements are admissible
exceptions
implicit
statement,
well as in countless
forth the
setting
decisions
quoted
under that
the admission
evidence
excep
exception,
coconspirators’
(Cf.
tion
federal constitutional
of confrontation.
right
does
violate the
Dutton,
defendant’s
[holding
right
Evans v.
400 F.2d
extrajudicial
confrontation was violated
by receipt
coconspirator’s
went
(which
to the
beyond
statement under
rule
Georgia
hearsay
exception
the traditional
because the denial
confronta
coconspirators’ exception)
Ct.].)
tion was without rational
U.S.
[appeal pending
Supreme
basis]
certain other
to the
It
been
recognized
exceptions
has similarly
the Sixth Amendment
of confrontation.
right
rule do not violate
hearsay
Beto,
(Tomlin
records];
McDaniel v. United
377 F.2d
277 [official
States,
L.Ed.2d
343 F.2d
den.
And even if it be assumed in the of cases such Bruton light v. United States, 123, supra, 391 U.S. that a bemay jury incapable following limiting statements, instructions an asserted regarding coconspirator’s California facie procedure (whereby of a upon prima proof conspiracy trial court admit evidence of may an asserted statements coconspirator’s during the and furtherance thereof but the conspiracy not jury may consider the another statements asserted against unless conspirator first makes certain does our findings) require holding receipt such statements violates of confrontation right of another asserted followed in an least some of the federal courts conspirator. procedure is
291
statements;
that the trial court alone determines
if
admissibility
the statements there is
facie
trial court finds that
prima
independent
were made
during
that the statements
conspiracy
conspiracy
statements,
admits the
need not be
furtherance thereof and
certain
before it
consider the
findings
instructed that
make
it also must
than the declarant. (E.g.,
asserted
other
against
evidence
an
conspirator
718,
1963) supra, 314 F.2d
735-738
(9th
v. United
Cir.
Carbo
States
498,
1625],
den.
L.Ed.2d
84 S.Ct.
reh.
377
den.
U.S.
377
953
[cert.
[12
Ragland
1058,
1903]];
States v.
S.Ct.
United
U.S. 1010
L.Ed.2d
84
L.Ed.2d
(2d
1967)
den.
Baker further contends an motion on its own give erred in failing statements to Glaze the court reads, evidence (Revised), “Any which instruction such as CALJIC 935 of the conspiracy in furtherance act declaration alleged conspirator’s alleged another be considered against made outside this trial shall not evi other independent determine from unless shall first you conspirator, existed at members dence both were of which persons conspiracy time of the act or declaration.” that the court had a CALJIC give
Even if it were assumed duty motion, that a result (Revised) on it is not more reasonably its own probable in the absence of the to Baker as would have been reached favorable to guilt *14 Watson, 13; VI, supra, (Cal. Const., People error. art. v. 46 Cal.2d § 836.)3 thаt of the recited it is independent From the facts apparent Watson, supra, People v. 46 Cal.2d apply prejudice 3We the test in of 705, 710], California, supra, Chapman v. U.S. rather than since, seen, admits we at least some authorities if the trial court have under federal alleged finding the conspirator independent the statements of after that of state prima the were made conspiracy ments there is facie and that statements thereof, during conspiracy jury furtherance need not be instructed and in findings against that it also must make certain before it consider the evidence ante, an asserted (See other than the declarant. conspirator authorities cited 291.) p. evidence of statements to Glaze there Brawley’s is evidence of strong existence of a between defendants. It is conspiracy also from those apparent that, facts although evidence of the independent existence of the at the time the statements is conspiracy less it is strong, sufficient to of that the then existed. Had instruction support finding conspiracy been given, it is would reasonably have so found even probable jury had find and failed to so in Baker’s had determining guilt Glaze, disregarded it is Brawley’s statements to not that reasonably probable have Baker in of would view the other recited acquitted previously evidence him. against Extrajudicial Admitting
Asserted Error in Baker’s Statement and in Failing to Relating Give an Instruction Thereto contends that the of the evidence that
Brawley when he handed receipt Baker the wire Baker stated “We won’t need this now” violated Brawley’s federal constitutional of and that right confrontation view of that extrajudicial statement an instruction statements concerning coсonspirators’ (Revised) such as have CALIIC should been on the own given court’s However, motion. did of evidence not violate Brawley’s right receipt for given confrontation reasons the similar previously rejecting Baker, contention and the failure to the instruction was not by give clearly error. prejudicial Relating
Other Claims Error Motion Denial Severance for Baker also for a trial moved separate ground prosecution would introduce a Brawley statement post-arrest by trial, and Baker. That statement was introduced at the implicated any Const., VI, 13; (Cal. error in the motion was not art. denying § prejudicial. Watson, supra, 818, 836.) 46 Cal.2d that a severance Baker further should have been argues granted because of misconduct alleged prosecutor Brawley’s attorney However, that occurred during trial. guilt of the denial of a propriety coursе, must, motion for trials tested as of the separate time Clark, (People submission of the motion Cal. 856]), 402 P.2d and the Rptr. error cannot be question determined Massie, in the context at the trial subsequent developments 698]). 428 P.2d Thus asserted misconduct affords no basis that the court concluding erred in denying the motion for severance.
The claimed misconduct involved statements made at the guilt *15 and the Brawley’s attorney relating whether the was decedent prosecutor ever of a The convicted court instructed the felony.4 jury matter “is here, not material to of the of this trial any purposes have so far been they revealed to us” and should not be even discussed the It must be jury. assumed the followed this Gould, instruction. jury Cal.2d 273, David, P.2d 811].) Denying Inspect
Asserted Motion to Error Prosecutor’s Records Prospective Regarding Jurors the selection a
During of the the defense jury made motion for insрection the of records prosecutor’s regarding In jurors. prospective of the the support motion defense an affidavit presented attorney stating that it has been and is the of the office at the end policy prosecutor’s a kept a of to make the that a and file was on report jurors regarding each juror served, other cases showing, among on which the things, juror nature of charges and the evaluation of the who tried case as deputy to whether the jury good was a one. Exhibits attached to the affidavit include venire for dates in the with of the 1950’s remarks after some juror’s names, in, verdict, case showing of sat juror and type previously evaluations district of The defense also made an offer by deputy attorneys.5 witnesses would give similar specified testimony concerning office practice prosecutor’s records оn jurors. keeping chambers, a discussion of the matter in the court asked During lengthy the prosecution if it had available to it information any respecting present the basis for matter that would furnish panel bearing any upon cause, for challenge and the “No.” prosecution replied, friend, guilt Floridi, 4 At the Mrs. trial on cross-examination of the decedent’s Brawley’s attorney felony. prose asked of a The if the ever convicted decedent was objected immaterial, cutor ground objection on the was was and the matter sustained. the prosecutor The that in further stated that record” and view “There’s no prior question attorney he “rap Baker’s would offer in evidence two sheets.” objected and stated he “rap would like court took to submit similar sheet.” The matter under submission. day jury’s presence Brawley’s attorney The next in the said that he “would offer сomplete rap showing felony into evidence the sheet of the decedent conviction.” stated, looking sheet, court The prosecutor, The denied offer. after at . a felony.” gave “. . this is not court then the instructions hereafter set forth above. following 5 The are examples statements contained in the exhibits: “Would juror], .; especially strong prosecution recommend for [name . . definitely good. is no She would juror] not instructions until court accept “[name defts, stories; read them 2nd in favor of fantastic argued strongly man time juror. This is a bad a car He’s been arrested theft juror] “[name police anti-prosecution Florida and will not believe He officers. is will fight hang up acquittal jury; lead should be used in book cases.” juror] making “[name
294 denied. did The court not
The
was
motion for inspection
subsequently
Darmiento,243
358, 368
(People v.
[52
thereby
Cal.App.2d
Cal.Rptr.
err.
1353]]; People v.
L.Ed.
87 S.Ct.
den.
Defendants also Powell of an 698], inspection P.2d Powell an application pretrial but involved whether the not concerned with and was confessions or admissions accused’s records regarding defense prospective has right prosecutor’s inspect jurors. Admitting Error in Certain Evidence
Asserted that the wallet Baker contends taken from him at the time of his an arrest “obtained as result of arrest.” was illegal He asserts Sesslin, arrest were People and warrant for his invalid under complaint 321], P.2d Cal.2d Cal.Rptr. the record does show there was cause for arrest. He admits that at trial no probable but wallet claims he is objection was made not barred from now trial matter because his Sesslin. raising preceded decision in He record requests augmented include the appeal complaint warrant, and arrest of which are attached to his copies request. court, and arrest warrant were not the trial before complaint
and it is rule that matters not elementary ordinarily presented court not a of the record on and hence will part not be proper appeal Merriam, considered on appeal. Reeves, 776 [51 *17 Arguello, 210, 691, 35]; People P.2d 415 v.
Cal.Rptr. 213 [37 601, P.2d on another 63 Cal.Rptr. 390 ground [vacated Cal.2d 566 377] 661]]; Witkin, 485, 407 P.2d see Cal. [47 Criminal Procedure Cal.Rptr. 666; Court.) 13 of Rules of (1963) see also rule Cal. The p. the record is denied. Since the record augment to does not request include warrant, the contents, and arrest or evidence of their the complaint record does not Baker’s were claim invalid under support they Sesslin.
Furthermore Baker the challenge the validity warrant for the first time on since the decision in Sesslin did not appeal “such a represent substantial the in former rule as to excuse change an objection anticipating Groves, that decision.” v. 71 Cal.2d 1196 458 (People Cal.Rptr. [80 985].) P.2d Four color of the decedent were admitted photographs over objection on the were ground that and would they gruesome serve primarily to inflame the of the passions jury. Defendants contend that the court erred and assert thereby color were not needed photographs white because black and the victim as he was found at photographs depicting the scene of the crime were admitted and the autopsy surgeon testified and number regarding of the description wounds.
When assertedly
are
gruesome
photographs
presented,
court
discretion
in
exercise
its
must decide whether their probative
value outweighs
their
effect.
possible prejudicial
Arguello,
v.
65
Mathis,
Cal.2d
423
People
v.
Cal.Rptr.
[56
Harrison,
Cal.2d
65]; People
406 P.2d
Cal.Rрtr.
[46
Cal.2d
665].)
627-628
381 P.2d
Cal.Rptr.
The
color
here in
were taken at the
photographs
coroner’s
question
officebefore
the wounds on
show
nude
autopsy
nearly
body
decedent.
The
more
in
wounds
the color
clearly
than
appear
photographs
in
black
ones,
and white
since in the latter the decedent is
The
fully dressed.
color
were used
surgeon to
out
photographs
autopsy
to
point
numerous
on the body.
lacerations
In addition to
illustrating
clarifying
surgeon’s
testimony,
constitute
autopsy
circumstantial
pictures
evidence of
were
at
They
malice.
also relevant
trial to show
penalty
facts
Talbot,
(See People
aggravation
penalty.
Cal.2d
417, 414 P.2d
another issue in
Cal.Rptr.
633] [overruled
Ireland, 70
Sufficiency Evidеnce each defendant. the conviction The evidence is sufficient support Baker in an propria persona is contrary to the claim only briefs. attorney’s supplement *18 by the Prosecutor Suppression Evidence
Asserted evidence district attorney suppressed that the Baker claims also consists evidence apparently assertedly at trial. The suppressed the guilt trial. at the introduced penalty that was Forrest Patterson testimony by Brawley statements by extrajudicial concerned testimony Patterson’s lack taxicab driver” expressed “the that he stabbed he admitted which of remorse. favor material evidence The prosecution suppression the good irrespective due violates process request
able to an upon accused 83, 87 U.S. Maryland, 373 (Brady bad faith of the prosecutor. Lessard, 497, 508-509 1194]; In re 62 Cal.2d 218, S.Ct. Imbler, 554, 567-569 39]; In re P.2d Cal.Rptr. 6].) P.2d Cal.Rptr. however,
Here, not that the it does assertedly appear suppressed Baker at favorable-to the guilt evidence would have been trial. Brawley’s Luker, inadmissible as to Baker. hearsay admissions constitute Roberts, 407 P.2d Cal.2d 476 [47 Also, 501].) even had the evidence of 489 [254 trial and had the at the guilt jury ignored admissions been received the evidence the evidence to would not have Brawley, instruction limiting Baker since was on the law of jury tended exculpate instructed to in the commission of a crime. abetting and aiding conspiracy that the Furthermore, not show district attorney the record does sup- trial defense to the use At the counsel objected the evidence. penalty pressed district made an offer of attorney unless the proof Patterson’s testimony one before “the last motion for discovery that was unknown [i.e. the witness that he district stated attorney thereupon made December 1966].” at the after the retired guilt Patterson until [i.e. did not know of he he returned to his office at that time when December 1966]—that there with Patterson. found his investigator that the latter during part Patterson
Baker testimony to points discussed “about what sheriff he told [Patterson] November 1966 deputy was it “is that this information here,” asserts that obvious and Baker 5.” before December the District Attorney transmitted the office of transmitted, we cannot that it was so However, absence of in the assume that was. further from Patterson’s testimony it It appears he he to the gave information to the sheriff also district gave deputy investigator, and it be inferred from Patterson’s attorney’s testimony he the information was gave the date December investigator however, was district he 1966. Until the information to the given attorney, it could furnish to Baker. manifestly Excluding Opposed Capital Veniremen
Asserted Error Punish- ment
Defendants contend several veniremen were improperly excused for cause on the of their ground opposition capital punishment. Illinois, Witherspoon v. held supra, 391 U.S. that “a sentence of death cannot be carried out if the or recommended it was imposed chosen *19 by veniremen for cause because they voiced excluding simply general objections to death conscientious or expressed penalty religious its infliction.”6 scruples against
Here the record shows that the was chosen by excluding veniremen a Witherspoon. cause on basis that was not under For permissible asked, one venireman was settled “Do have conviction example, you any case?,” with the use and, to of death in a respect penalty proper upon “Yes, sir, I reply, don’t believe in capital punishment,” court excused him Witherspoon on its own motion. Under the of mandate the death be must reversed. penalties
Defendants further assert that the exclusion of veniremen on the ground of their toward opposition denied capital punishment defendants their an right to unbiased cross-section jury representing community guilt Eli, at However, their trial. we In re phase stated in recently 71 Cal.2d 454 P.2d and re 337], In Cal.Rptr. 71 Cal.2d Arguello, 921], “[I]n the absence of we documentation must with the persuasive United agree States conclude, Court that . . . ‘We cannot Supreme either on basis of the record before as a notice, now us or matter of judicial exclusion jurors results in an punishment opposed capital unrepresentative jury on the issue of guilt or increases the substantially risk conviction.’ Illinois, (Witherspoon supra, .; 391 U.S. . . see also Saterfield, 613, 617, Anderson and ... 69 Cal.2d 620-621 [73 Cal.Rptr. Gonzales, .)” 447 P.2d 498-499. . . Witherspoon decision, were tried before the 6Defendаnts but that' decision must Illinois, applied retroactively. (Witherspoon supra, U.S. fn. 776, 785].) (1) on the but evidentiary hearing Defendants matter request hearing are now for such do not state whether or not they prepared intend of the nature of the evidence (2) they no indication give is war hearing Under circumstances an evidentiary introduce. these Eli, (In ranted. re 218; 71 Cal.2d at re In supra, p. Arguello, supra, Cal.2d at 17.) p. Relating Penalty
Additional to the Trial Asserted Errors consider several For the court at the retrial we guidance penalty their trial. defendants by penalty additional contentions regarding it was to admit Patterson testimony by Baker contends that error statements without by Brawley deleting certain concerning extrajudicial At trial the made an offer Baker. implicating penalty prosecution part discussions among things, would other testify, that Patterson Baker, inmates, and other Brawley including escape. Brawley plans name, be instructed to Baker’s Baker’s asked that the witness omit attorney that Brawley do Thereafter Patterson testified and the court declined to so. that, him, would kill a went he and others against stated in if the trial part Baker, free and the prosecutor the cell to get keys deputy, open had and Baker elicited Patterson that Brawley further from testimony court limited Patterson’s and did so. The together to talk opportunities *20 but to Brawley, statements extrajudicial testimony regarding Brawley’s been unable was, course, that the have jury might there a possibility evidence instruction, from the have drawn an inference follow this this considered matter and have Baker was a escape plan, party Baker’s determining penalty. States, supra, 123, Bruton v. United
Under U.S. the rationale 391 Aranda, 518, clear supra, 63 Cal.2d it is that if Patterson’s Peoрle v. retrial and be at the Baker askes that Patterson testimony is offered penalty court, Baker’s outside instructed to omit name presence jury, and Aranda should Bruton were concerned with with request. comply be unable to follow would instructions limiting the danger jury a defendant’s statements that codefend- regarding extrajudicial a implicate confession, ant, and, involved a those decisions the same although danger name be for statment here in Baker’s could effectively exists question. without Braw- deleted statements Brawley’s from extrajudicial prejudice ley. contend that at the trial the court
Defendants further penalty instruction that or give requested aggravating erred in refusing
299 be mitigating circumstances must reasonable doubt beyond before proved However, consider them.7 jury decisions have held that such may instructions erroneously limit absolute discretion in the selection jury’s Hines, 164, (People supra, v. 61 Cal.2d penalty. 173 Cal.Rptr. [37 Howk, 622, 398]; 687, People 390 P.2d v. 56 Cal.2d et seq. [16 Purvis, 370, 426]; 93, People 365 P.2d v. 56 Cal.2d Cal.Rptr. 95-96 [13 801, 713].) P.2d Cal.Rptr.
Here the was instructed that other crimes must correctly proved beyond a reasonable doubt before the jury may consider them. v. Polk, supra, 63 Cal.2d 450-451 406 P.2d Cal.Rptr. [47 People Terry, v. 61 Cal.2d fn. 8 P.2d Cal.Rptr. [37 381].) Terry Defendants rule Polk and be extended to urge all However, circumstances. aggravating or that rule was mitigating established as an to the normal standard of at the exception trial since penalty evidence of other crimes have a on the particularly damaging impact jury’s (See People determination whether the defendant should be executed. Polk, at supra, 450-451.) pp.
Defendants further assert that failure to instruct
regarding
to establish
quantum
aggravating
circum
proof necessary
mitigating
However,
stances violates
attacks
duе,process.
upon
constitutionality
Code
it
Penal
section
failed to
standards
ground
190.1 on
provide
guidance
(In
at the
re
have been
rejected
penalty
Anderson,
Hill,
613, 621-628;
supra,
supra,
66 Cal.2d
426 P.2d
den.
Defendants contend at trial the court erred penalty refusing to instruction the give requested that their informing decision, be determination must a rational that must not penalty they allow their be inflamed the by color of the victim passions or photographs blood, his and that exhibits this evidence was received showing for limited the manner in which the purpose showing decedent was killed’.8 “Although requested your 7The reads: it instruction is not essential decision that you mitigating aggravation, you may find circumstances circumstances before you consider such circumstances must satisfied that such circumstanсes are proved beyond reasonable as doubt above defined.” 8The instruction read: “The determination of the penalty in this case be a must consisting showing rational decision. Evidence of color photographs body showing as well other your victim exhibits the blood of the victim must not inflame you and passions your must not allow this evidence cloud reasoning. This evidence may be received for the limited purpose showing the manner in which the decedent error the instruction was not since court
Failure to give prejudicial “demand and conscienti- expect, instructed the both sides you [which, and the evidence weigh and consider ously dispassionately and the law of the case course, included the and photographs apply exhibits] and will reach a verdict.” that you just they trial were allowed to
Defendants also at penalty complain was allowed to make two. one whereas the make argument prosecution but Bandhauer, preceded 900], and retrial court penalty 426 P.2d upon Bandhauer. will with undoubtedly comply that comments by prosecutor during
Defendants further claim If is trial constituted misconduct. argument at the penalty prejudicial Witherspoon a reversal of to consider this claim since requires unnecessary not be the same arguments may repeated and death penalties retrial. in In re advanced arguments reference
Defendants also adopt Anderson, death supra, attacking constitutionality it. arguments, followed Those imposing penalty procedures however, our Anderson. are settled decision in to the are insofar as' relate they penalty reversed
The judgments murder; affirmed. in all other are respects they Sullivan, J., Tobriner, Mosk, J., J., J., Peters, J.,C.
Traynor, concurred. in their entirety. affirm the
McCOMB, J., I would Dissenting. judgments *22 however, killed, allow evidence to you again you must not this I caution was against defendant." your passions inflame