THE PEOPLE, Plaintiff and Respondent, v. ELBERT LEE EASLEY, Defendant and Appellant.
Crim. No. 21117
Supreme Court of California
Nov. 7, 1983.
34 Cal.3d 858
Roger S. Hanson for Defendant and Appellant.
Quin Denvir, State Public Defender, Joseph Levine, Michael G. Millman, Eric S. Multhaup and Steven W. Parnes, Deputy State Public Defenders, as Amici Curiae on behalf of Defendant and Appellant.
John K. Van de Kamp and George Deukmejian, Attorneys General, Daniel J. Kremer and Robert H. Philibosian, Chief Assistant Attorneys General, William D. Stein and Edward P. O‘Brien, Assistant Attorneys General, Herbert F. Wilkinson, W. Eric Collins, Eugene W. Kaster and John B. Moy, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher N. Heard as Amicus Curiae on behalf of Plaintiff and Respondent.
OPINION
KAUS, J.-This is an automatic appeal from a judgment imposing a penalty of death. (
When our initial decision was filed, the court was unanimous in concluding that the judgment of guilt should be affirmed. Inasmuch as the newly raised issues relate solely to the penalty phase of the trial, the present opinion simply adopts, in parts I and II, the discussion of the facts of the case and the guilt phase issues contained in Justice Richardson‘s initial opinion for the court. Thereafter, in part III, we address the penalty phase issues, and conclude that at that phase a number of substantial errors occurred which require a remand for a new penalty trial.
I. FACTUAL BACKGROUND
Defendant Elbert Lee Easley was convicted by a jury of the first degree murders of Reiner and Sigrid Junghans. (
We describe the evidentiary web revealed at trial. Reiner and Sigrid Junghans were killed in Modesto on the evening of October 14, 1978. Each was stabbed repeatedly in the head and chest, during which time Sigrid had a rubber ball in her mouth. The pathologist testified that Reiner died from the stab wounds, while Sigrid died from a combination of stab wounds and suffocation caused by the rubber ball.
The prosecution‘s case rested on the theory that a corporate power struggle had developed between Reiner Junghans and codefendant, Joseph Penka. Two former employees, Raymond Smith (Smith) and Donald Davis (Davis), testified that Penka contracted with them to arrange Reiner‘s death and that they then contacted Westmoreland, defendant‘s brother-in-law. Westmoreland testified that he hired defendant to kill Reiner.
Penka‘s business associate testified at length about the dispute between Penka and Reiner, which stemmed from a power struggle among three corporations in which Penka owned stock. He and Reiner were the principal shareholders in one of those corporations, IMMCO, and Penka was repeat-
Smith and Davis worked for IMMCO until February 1978, when Reiner fired them. One month later, they were arrested and charged with the theft of scrap metal from IMMCO. While departing from a hearing on the theft charge, Penka said to Davis and Smith, “Reiner is going to get his one way or the other.” Smith said “The other?” and Penka responded with a threatening gesture.
About two months later, at Davis’ urging, Smith called Penka to ask about Reiner. Penka said he was still interested in “taking care of the other,” and asked Smith to see what he could do. Smith negotiated with Penka, eventually arriving at a price of $12,500. Penka paid him a down payment of $4,000. Smith made arrangements to have Reiner killed, but the plans fell through.
In late September, Smith and Davis contacted Westmoreland, who agreed to arrange the killing. He went to Fresno to talk to defendant, who said he would kill Reiner for $4,000.
Westmoreland told Davis that he did not have time to do it himself, but would “get Elbert to do it.” Smith and Davis located the Junghans’ home, and pointed it out to Westmoreland, who showed it to defendant in early October. They agreed that Reiner would be killed by October 15.
On October 13, Penka asked Davis to delay the killing until February. Davis told him it might be too late. Also on October 13, defendant went with his girlfriend, Lorrie Ross, to a farm near Fresno where he obtained baling wire, cutting it with a tool resembling a pair of pliers. At some point during that day, he pawned a carpentry tool, an air nailer, for $30. He used the money to purchase gasoline for his car and drove to Modesto, arriving at Westmoreland‘s house late that night. Westmoreland testified that he saw baling wire in defendant‘s bag.
Defendant told Westmoreland he needed a gun. Westmoreland went to see Davis early the next morning, October 14, and Davis gave him a sawed-off shotgun which Davis had bought from his brother Kenneth earlier that morning. Davis himself had sawed off the gun, telling his brother that he was going to sell it to “a couple of guys from Texas.”
Westmoreland delivered the gun, wrapped in a sweater, to defendant who told him that he would hide the gun in the sweater until the door was
That same morning, Westmoreland and defendant purchased an icepick and two rubber balls. At approximately noon, defendant left Westmoreland‘s home with baling wire in his belt loops, carrying the shotgun and icepick. He returned in half an hour, saying that Reiner was not home.
Defendant left again about 5:30 or 6 p.m. He called Westmoreland between 8 and 8:30 p.m. and said it was over. Westmoreland met him at a store, where defendant said he had killed Reiner and Sigrid, and gave Westmoreland Reiner‘s wallet. Westmoreland directed defendant to wait for him at a diner and drove to Davis’ house. He told Davis the Junghans were dead and “Elbert wants his money.” Davis called Penka‘s house several times, but received no answer. He eventually left a message with a woman at the house. About 10 p.m. Penka returned Davis’ call and arranged to meet him. Within 10 minutes Penka arrived with $5,000. Davis gave the money to Westmoreland, who kept $1,000 and gave the remainder to defendant.
A bank official testified that she cashed two checks totalling $5,000 for Penka on October 6. She gave him bundles of $20 bills, fastened together with rubber bands.
Lorrie Ross testified that upon his arrival at her home in Fresno at 11 or 12 o‘clock on the night of October 14, defendant showed her an envelope containing $4,000 in $20 bills secured by rubber bands, and told her he had robbed a bar. The next day, they visited defendant‘s uncle and repaid him $600 that defendant had borrowed from him, paying it entirely in $20 bills. Defendant also rented an apartment, bought a headstone for his daughter‘s grave for $350, spent $100 at a department store, $75 for clothing and $100 for groceries, and gave $200 to Ross’ relatives. He and Ross spent two nights at a motel and ate at restaurants, and on October 17, purchased a car for $1,556, paying with $20 bills.
The bodies of Reiner and Sigrid were discovered on October 16. Baling wire was found wrapped loosely around one of Sigrid‘s wrists and the rubber ball was in her mouth. Reiner‘s hands and feet were tied with similar wire and a rubber ball was next to his body. Four loose pieces of baling wire were found outside the home. Newspapers dated October 15 and 16 were at the front door. A friend testified that she had talked to Junghans at about 7:15 p.m. on October 14, and that it was agreed that they would pick her up at her home at 7:30. When they did not arrive, she called their home repeatedly, beginning at 8 p.m., but received no answer. Based on this
The police found a small piece of paper on the floor near Sigrid‘s body, containing the name, “Dave Balch,” and two addresses. (Dave Balch was never identified at trial. Westmoreland testified that defendant had planned to obtain entry to the Junghans’ home by showing a note to the person who answered the door and asking for directions.) A fingerprint on this paper was identified as defendant‘s. The officers also discovered a shotgun, bearing Kenneth Davis’ fingerprint, on the kitchen table. They were unable to locate Reiner‘s wallet.
On November 2, 1978, the police executed a search warrant for defendant‘s apartment and his two cars. They seized a pair of wire cutters from one of the automobiles, and a state criminologist testified that the markings on the wire cutters matched those on the baling wire removed from the victims’ bodies, concluding that the wire cutters had been used to cut the baling wire.
Testifying in his own behalf defendant asserted his innocence. He denied having had any conversations with Smith, Davis or Westmoreland concerning any killing. He acknowledged visiting Westmoreland on October 13 and 14 and although Westmoreland borrowed his car, defendant did not leave the house. Defendant spent the evening of the 14th at Jalisco‘s restaurant in Fresno, and a witness Jose Hernandez testified that he remembered seeing defendant at Jalisco‘s on the evening of October 14.
Defendant was unable to explain telephone company records which revealed a call at 6 p.m. on October 14 from Westmoreland‘s residence in Modesto to the halfway house in Fresno where defendant then lived. Records at the halfway house indicated that defendant had called to check in about 6 p.m. on that evening.
Defendant testified that he had $2,880 in cash, mostly in $20 bills, on the weekend of October 14, a combination of loans and payment for his work as a carpenter. He said that he had pawned the air nailer because he had left his money at Ross’ house and needed cash to purchase gasoline.
He denied that he had purchased rubber balls or an icepick with Westmoreland, or had owned wire cutters such as those found in his car. He explained that he went with Ross to obtain baling wire in order to fix the muffler and license plate on his car. Kathy Ross, Lorrie‘s sister, confirmed that defendant had told her that he needed baling wire to fix his muffler.
At the penalty phase of the trial, the prosecution presented evidence of defendant‘s prior criminal activity (see former
The evidence included a telegram containing the message, “You have a job over here” sent to defendant by Bill Martin, together with a $50 money order. There was evidence tending to show that defendant had been in Nevada, staying with Bill Martin, in June 1978. Further evidence indicated that Martin, who owned a competitive brothel, was engaged in a conspiracy with others either to extort money from the owner of the Chicken Ranch or to close it.
An employee of the Chicken Ranch brothel testified that on the night of June 10, 1978, a man ran into the brothel and threw something inside. The building immediately burst into flames. She thereupon wakened the occupants, all of whom escaped safely. The employee first testified that she had not seen the man‘s face and could not identify him, but subsequently testified she remembered the man had a long nose and resembled defendant.
Ross testified that defendant left for Las Vegas in April or May of 1978. Meeting again with her in late May or June in a motel in Fresno, he showed her approximately $700, and said he had “burnt down a whorehouse” called “the Chicken Ranch.”
Defendant‘s mother, father and three children testified that he was a nonviolent and attentive son and father who was a faithful attendant at church.
The jury returned a verdict of death. This appeal follows automatically. (See
II. GUILT PHASE ISSUES
Four claims of error in the guilt phase of his trial are asserted.
A. Exclusion of Jurors
Defendant argues that the exclusion for cause of prospective jurors who indicated that they would automatically vote against the death penalty deprived him of a fair and impartial jury on the issue of guilt. In Hovey v. Superior Court (1980) 28 Cal.3d 1, 68 [168 Cal. Rptr. 128, 616 P.2d 1301], we held that there was, as yet, insufficient evidence to demonstrate that a
B. Validity of Search Warrant
Defendant asserts the invalidity of the warrant authorizing a search of his residences and automobiles. He argues that two pieces of evidence seized pursuant to that search, the wire cutters and a receipt for the telegram from Bill Martin, should have been suppressed. The wire cutters, seized from defendant‘s automobile, were identified by an expert at trial as the tool used to cut the baling wire found on the victims’ bodies. The receipt for the telegram was discovered in defendant‘s home and introduced at the penalty phase.
His challenge to the search warrant was on the following grounds: (1) it was issued by a Stanislaus County judge authorizing a search in Fresno County; (2) the warrant authorized a search for the same items in four separate locations; (3) the affidavit supporting the warrant omitted material information that cast doubt on the reliability of two informants; and (4) the police seized objects outside the scope of the warrant.
Defendant acknowledges that these attacks on the search warrant were not raised in the trial court. We have recently held that “[q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citations.]” (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal. Rptr. 732, 579 P.2d 1048]; see
While acknowledging the foregoing principle, defendant urges us to reach the merits of his suppression claim on the ground that his trial counsel‘s failure to raise the issue in the trial court constituted a denial of the effective assistance of counsel. In order to establish such inadequacy, he must demonstrate that counsel‘s failure to object to the introduction of the evidence below constituted a failure to provide “reasonably competent representation.” (People v. Pope (1979) 23 Cal.3d 412, 424-425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Defendant has failed to meet this burden as to any of his challenges to the search warrant. Our review is limited to consideration of the facts established by the appellate record.
We recently held that a magistrate has jurisdiction to issue a warrant for an out-of-county search “when he has probable cause to believe that the evidence sought relates to a crime committed within his county and thus
Defendant‘s second argument, that the warrant was invalid because it authorized a search for the same property in four separate locations, is similarly without merit. The warrant authorized a search of two residences, the Ross house where defendant had lived part time before the weekend of the homicides, and the apartment which he and Lorrie Ross had rented four days after the killings. The warrant also authorized a search of defendant‘s two automobiles, a Chevrolet which he had owned for some time and a Buick purchased shortly after the homicides.
The only issue raised as to such a warrant is whether the supporting affidavit establishes probable cause to search each of the places listed. A search warrant designating more than one person or place to be searched must contain sufficient probable cause to justify its issuance as to each person or place named therein. (See People v. Nadell (1972) 23 Cal.App.3d 746, 752 [100 Cal. Rptr. 444]; see also 17 Cal.Jur.3d, Criminal Law, § 341, pp. 597-598.) The affidavit in question established that defendant had obtained baling wire one day before the killings; that he was in Modesto on the day of the murders; that his fingerprint had been found on a piece of paper which was lying next to one of the victims; and that he had purchased a car and rented an apartment, paying large sums of money in cash, within four days after the homicides. On the basis of this information, the magistrate properly concluded that there was probable cause to believe that evidence of the crime could be found at either of defendant‘s residences or in either of his cars.
In this connection, defendant‘s argument apparently rests on the erroneous theory that a warrant which authorizes the search of more than one location for the same property is per se invalid. He urges that the authorization to search four different places demonstrates that the affiant did not know where the sought-after property actually was located. However, “certainty is not required” to justify issuance of a search warrant. (People v. Watson (1979) 89 Cal.App.3d 376, 385 [152 Cal.Rptr. 471].) There is no logical inconsistency in the conclusion that an affidavit establishes probable cause to believe that evidence of a crime will be in any one of a suspect‘s homes or vehicles.
Defendant claims that two pieces of material information were omitted. First, the affidavit relied on information supplied by Lorrie Ross, to the effect that she went with defendant to obtain baling wire shortly before the date of the murders, and that he returned the night of the killings, told her that he and an accomplice had committed a robbery and tied people up with baling wire, and showed her $4,000 which he said was his share of the money from the robbery. The affidavit failed to note that two weeks before the homicides Lorrie Ross asked a relative where she and defendant could obtain baling wire.
Defendant now argues that this omitted information was material because it indicated that Ross was an accomplice in defendant‘s alleged crime, and therefore cast doubt on the reliability of the information which she supplied to the police. However, the omitted fact was merely cumulative. The affidavit contained information which implicated Ross in the trip to obtain baling wire. Thus, the magistrate knew that she was a possible accomplice. There is no “substantial possibility” that inclusion of the fact that Ross had inquired about baling wire could have altered the probable cause determination. (People v. Kurland, supra, 28 Cal.3d at p. 385.)
The second omitted fact was similarly immaterial. The affidavit quoted a business partner of Reiner‘s, who said that Reiner had told him that he was afraid of an unnamed cousin of Smith and Davis. The business partner also said that an IMMCO employee, Craig Brown, had told him that Smith and Davis had a cousin who had been in prison for murder. The affidavit stated that the affiant contacted Brown and asked him for the cousin‘s name. Brown said the cousin was Easley. The affidavit omitted the information that Brown was involved in collecting the payment Smith and Davis received when they stole scrap metal from Reiner‘s business.
Defendant has thus failed to demonstrate that material information was omitted from the affidavit. In addition, he has pointed to no evidence to support his claim that the information was omitted with the intent to mislead the magistrate or in reckless disregard of the accuracy of the warrant. (People v. Kurland, supra, 28 Cal.3d at pp. 387-388, 390.) On this record, which is admittedly incomplete because of the failure to litigate this claim in the trial court, it must be concluded that the omissions from the affidavit did not require the quashing of the search warrant.
Finally, defendant argues that the seizure of the wire clippers was improper because the clippers were not listed in the search warrant. However, items not named in a warrant may be seized if the police officer is “‘presently aware of some specific and articulable fact from which a rational link between the item seized and criminal behavior can be inferred. . . .‘” (People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 73-74 [157 Cal.Rptr. 716, 598 P.2d 877], quoting People v. Hill (1974) 12 Cal.3d 731, 763 [117 Cal.Rptr. 393, 528 P.2d 1].) The police officer in this case was authorized to search for baling wire. Defendant has pointed to no evidence to rebut the obvious inference that the officer knew that the wire clippers might have been used to cut the baling wire.
He has not met his burden of showing that the failure to challenge the search warrant on this or any other ground amounted to ineffective assistance of counsel.
C. Hearsay Testimony of Davis
Defendant objects to the admission into evidence of Davis’ testimony as to numerous statements made to him by Westmoreland that implicated defendant. Davis testified that when he and Smith first approached Westmoreland, Westmoreland told them, “I‘ll get Elbert to do it [the killing].” Later, when Davis told Westmoreland that Penka wanted to postpone the killing, Westmoreland replied that it was too late because “Elbert is already here.” After the homicides, Westmoreland told Davis, “Elbert is at the Snow White Drive-In eating a hamburger and he wants his money,” and also said, “Elbert took care of her [Sigrid Junghans] too.” He argues that two of the statements were inadmissible hearsay, outside the scope of
The Attorney General correctly notes that there was no objection to the introduction of the hearsay statements at trial. Issues relating to the admissibility of evidence will not be considered on appeal absent a timely objection in the trial court. (People v. Rogers, supra, 21 Cal.3d 542, 548.) In addition, defendant‘s claims are without merit.
First, defendant errs in assuming that the conspiracy ended with the deaths of Reiner and his wife. Where payment of money is a crucial objective of a conspiracy, and a coconspirator‘s statement is made shortly after the substantive crime is committed but before the money is paid, the coconspirator‘s statements may be admissible under the coconspirator exception to the hearsay rule. (People v. Saling (1972) 7 Cal.3d 844, 852 [103 Cal.Rptr. 698, 500 P.2d 610]; People v. Leach (1975) 15 Cal.3d 419, 428-432 [124 Cal.Rptr. 752, 541 P.2d 296].) Independent evidence of the continuing nature of the conspiracy is necessary. (Id., at p. 432.) Here, there was ample independent evidence that the conspiracy continued until defendant received his share of the payment for the homicides. Westmoreland‘s statements to Davis after the killings but before defendant was paid clearly were made in furtherance of the conspiracy and therefore fall within the coconspirator‘s exception.
Defendant‘s second claim equally lacks merit. Although the admission of some hearsay may violate the confrontation clause of the United States Constitution (Bruton v. United States (1968) 391 U.S. 123, 126 [20 L.Ed.2d 476, 479, 88 S.Ct. 1620]), the right to confrontation does not bar the use of all hearsay (Dutton v. Evans, supra, 400 U.S. at p. 80 [27 L.Ed.2d at p. 222]). The United States Supreme Court has expressly declared that the rule of Bruton and Dutton “is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for ‘full and effective’ cross-examination.” (Nelson v. O‘Neil (1971) 402 U.S. 622, 627 [29 L.Ed.2d 222, 227, 91 S.Ct. 1723], italics in original; see also People v. Steger (1976) 16 Cal.3d 539, 551 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206]; In re Rosoto (1974) 10 Cal.3d 939, 951-952 [42 L.Ed.2d 141, 95 S.Ct. 177]; People v. Brown (1978) 79 Cal.App.3d 649, 656-657 [145 Cal.Rptr. 130].) Here, Westmoreland testified at trial and was cross-examined at length about his statements. Defendant‘s right of confrontation was not violated.
The trial court instructed the jury that Davis, Smith and Westmoreland were accomplices as a matter of law. (
Both Kenneth and Donald Davis testified that Donald came to Kenneth‘s house on the morning of October 14 and offered to purchase a shotgun that Kenneth had for sale. Kenneth testified that his brother told him he planned to sell the gun “to a couple of guys from Texas.” While at Kenneth‘s house, Donald “sawed off” the shotgun. Kenneth testified that he learned two weeks later that the gun had been used in a murder.
We have held that an accomplice is “one who is liable to prosecution for the identical offense charged against the defendant. . . .” (
In this case, the question of whether Kenneth Davis was an accomplice was properly submitted to the jury. If the jury believed Kenneth‘s testimony, it reasonably could have found that he did not know that the shotgun would be used in the commission of murder and, therefore, was not an accomplice in the murders. This question of fact was for the jury to resolve.
III. PENALTY PHASE ISSUES
Defendant, adopting the arguments initially raised by the State Public Defender in an amicus brief urging a rehearing, maintains that the trial court made a number of serious errors in instructing the jury at the penalty phase of the trial. In particular, he suggests that the court erred (1) in informing the jury at the penalty phase that it must not be influenced by “pity” or “sympathy” for the defendant, and (2) in instructing the jury under the provisions of the 1978 death penalty law rather than under the 1977 death penalty law which was in effect at the time the crimes at issue
A. Instruction Not to Be Influenced by Sympathy
At the penalty phase, the trial court instructed the jury pursuant to CALJIC No. 1.00: “As jurors, you must not be influenced by pity for a defendant or by prejudice against him. You must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.”
Although this instruction is one of the general introductory instructions routinely given in noncapital cases and at the guilt phase of capital cases, over a decade ago, in People v. Bandhauer (1970) 1 Cal.3d 609, 618 [83 Cal.Rptr. 184, 463 P.2d 408], we explicitly condemned the giving of a virtually identical instruction4 at the penalty phase of a capital case, explaining that “[w]e have repeatedly held that it is error to instruct the jury at a penalty trial not to consider sympathy for the defendant in reaching its verdict. (People v. Polk (1965) 63 Cal.2d 443, 451 [47 Cal.Rptr. 1, 406 P.2d 641]; People v. Anderson (1966) 64 Cal.2d 633, 641-642 [51 Cal.Rptr. 238, 414 P.2d 366]; People v. Friend (1957) 47 Cal.2d 749, 767-768 [306 P.2d 463].)”
The Attorney General argues that Bandhauer and the cases on which it relies are no longer valid because the jury does not have “unlimited discre-
Attempting to distinguish this case from Robertson, the Attorney General points out that because the sympathy issue in Robertson arose in response to a prosecutor‘s argument rather than to a jury instruction, our court did not pass on the propriety of the particular instruction at issue here. He argues that because the instruction told the jury that it should not be swayed by “mere sentiment [or] sympathy” (italics added), the instruction could be interpreted to mean only that the jury should not be influenced by sympathy unrelated to any facts revealed by the evidence-“factually untethered sympathy.” He maintains that, as so interpreted, the instruction would be valid under Lockett, Eddings and Robertson.
The instruction that was given, however, was not by its terms limited to “factually untethered” sympathy, but simply told the jury that “you must not be influenced by pity for a defendant” and “you must not be swayed by mere sentiment [or] sympathy.” In light of the teaching of Lockett, Eddings, and Robertson, we have no doubt but that it was error for the trial court to give such an instruction at the penalty phase. Indeed, the drafters of the instruction in question have recognized as much, for the current “use note” accompanying this CALJIC instruction specifically states: “This instruction 1.00 should not be used in the penalty phase of a capital case as it admonishes the jury not to be influenced by pity for defendant. CALJIC 8.84.1 and 8.84.2 [which set forth the consideration of aggravating and mitigating factors from
Amicus contends, however, that CALJIC No. 8.84.1 not only failed to cure the trial court‘s erroneous no-sympathy instruction, but that it was itself constitutionally defective. Amicus points out that in Lockett and Eddings, the United States Supreme Court held that a sentencing jury may
Although there is some force to amicus’ argument that the wording of the instruction in question is potentially confusing,10 we need not determine whether instructing the jury pursuant to CALJIC No. 8.84.1 was in itself sufficiently misleading to require a retrial of the penalty phase. Here, of course, the trial court not only failed affirmatively to advise the jury that it could consider as a mitigating factor any aspect of the defendant‘s character or background, but it expressly—and inaccurately—informed the jury that it must not be influenced by sympathy or pity for the defendant. Whether or not CALJIC No. 8.84.1, taken alone, is inadequate or prejudicial, it certainly did not cure the error arising from the instruction
Finally, the Attorney General maintains that even if the no-sympathy instruction should not have been given, and even if the error was not cured by CALJIC No. 8.84.1, we should nonetheless find the error harmless. He argues that in view of the brutal nature of the murders in this case, there is no “reasonable possibility” that the jury would not have returned a death penalty sentence even if the instruction had not been given, and he urges the court to uphold the death penalty on that basis.
Although the aggravating factors in this case were substantial—the killings were unusually cold-blooded and Easley was a hired killer and arsonist—Easley did present considerable testimony at the penalty phase through which he attempted to demonstrate redeeming features of his character and background to evoke jury sympathy to spare his life. Both his mother and father testified that he was a loving and devoted son, who assisted them financially, with household repairs and in many other ways. His mother stated that “anytime we needed him or one of us got sick, he was the first one there.” His three children testified that he was a good father, treated them well, bought them toys and spent time with them. Several friends confirmed his loving relationships with his own as well as with his friends’ children. Three correctional officials who had had considerable contact with Easley—his parole officer and the director and assistant director of a halfway house at which he lived for several months in the year preceding the crimes—also testified on his behalf, stating that he was nonviolent, got along well with others and generally had a good employment record as a finish carpenter. In addition, all of the witnesses testified that in the six-month period preceding the killings in this case, Easley was extremely distraught over the murder of his 12-year-old daughter by a man in whose care he had left her.
In addition, by advising the jury at the outset of the instructions that it was not to be influenced by sympathy or pity, the court significantly misled the jury with respect to the fundamental nature of its sentencing task. As Justice Mosk explained in People v. Haskett, supra, 30 Cal.3d at page 863: “Although appeals to the sympathy or passions of the jury are inappropriate at the guilt phase [citation], at the penalty phase the jury decides a question the resolution of which turns not only on the facts, but on the jury‘s moral assessment of those facts as they reflect on whether defendant should be put to death. It is not only appropriate, but necessary, that the jury weigh the sympathetic elements of defendant‘s background against those that may offend the conscience. [Citations.]” (Italics added.) In view of the gravity of the instructional error, we conclude that it must be considered prejudicial.
The United States Supreme Court‘s decision in Eddings v. Oklahoma, supra, 455 U.S. 104, confirms this conclusion. In Eddings, the Supreme Court found that the trial court had committed reversible error when, in sentencing a defendant to death, the court “stated that ‘in following the law,’ [it] could not ‘consider the fact of this young man‘s violent background.‘” (455 U.S. at pp. 112-113 [71 L.Ed.2d at pp. 10-11].) The Eddings court reasoned: “Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer . . . may determine the weight to be given relevant mitigating evidence. But [it] may not give it no weight by excluding such evidence from [its] consideration.” (Italics omitted and added.) (Id. at pp. 113-115 [71 L.Ed.2d at pp. 10-11].) The case before us, of course, parallels the illustrative example given in Eddings, for here the court‘s instruction not to consider sympathy effectively required the jury to disregard much of the evidence which Easley had presented at the penalty phase. Thus, under Eddings and Lockett, Easley is entitled to a new penalty trial before a jury that is properly instructed that it may take sympathy into account in determining whether he should live or die.
The murders in this case occurred on October 14, 1978, about three weeks before the 1978 death penalty initiative was enacted at the November 1978 General Election. Therefore the death penalty statute passed by the Legislature in 1977 (Stats. 1977, ch. 316, §§ 1-26, pp. 1255-1266) was still in effect. Nevertheless, when the trial court instructed the jury at the penalty phase, it used—from all appearances, inadvertently12—a CALJIC instruction modeled upon a provision of the 1978 initiative which differed in two significant respects from that called for by the applicable 1977 provision. The instruction that was given (1) altered the scope of the jury‘s sentencing discretion and (2) added a new aggravating circumstance to be considered by the jury. Defendant contends that the error in instructing the jury pursuant to the wrong death penalty statute provides an additional and independent basis upon which a new penalty trial must be granted. The point is well taken.
1. Jury‘s Sentencing Discretion
The most significant difference between the 1977 provision—former
Defendant, again adopting the arguments first advanced by amicus, levels a two-pronged attack on the giving of the instruction in question. First, he contends that the trial court was not statutorily authorized to use the provisions of the 1978 law, and that a reversal is required because the 1978 provision reduced the latitude which the 1977 law afforded a jury to exercise discretion in favor of a sentence of life imprisonment without possibility of parole. Second, he contends that even if the giving of the 1978 instruction could be sustained as a statutory matter, the 1978 instruction is unconstitutional insofar as it requires a jury to return a judgment of death whenever aggravating circumstances “outweigh” mitigating circumstances, even if the jury does not believe that the “net” aggravation in a particular case is sufficient to make death the appropriate punishment. Because we conclude that the statutory contention has merit, we need not reach the constitutional question in this case.
The Attorney General does not contend that the 1978 provision was applicable here, but argues that the error did not prejudice Easley and may have even benefitted him. The argument relies on the fact that whereas under the 1977 law the jury could return a death penalty without regard to the relative weight of aggravating and mitigating circumstances, the 1978 law permits a death sentence only if the jury finds that aggravation outweighs mitigation.
Defendant responds, however, that an accused is nonetheless generally worse off under the 1978 law. He points out that while the 1977 law left the jury free to determine the proper interplay between aggravating and mitigating circumstances and to impose life imprisonment without possibility of parole whenever it believed that death was not called for, the 1978 provision mandates a death sentence whenever aggravating circumstances outweigh mitigating circumstances, even if the jury does not think that the net aggravation is sufficient to warrant death. To illustrate the detrimental effect of the 1978 formulation, defendant observes that in a case in which the prosecutor introduces no new evidence at the penalty phase—choosing to rely on the circumstances of the offense and the special circumstances that have been found to exist as aggravating circumstances—and the accused offers no evidence in mitigation, the 1978 provision would mandate a death sentence without regard to the relative egregiousness of the offense, because
Although the 1978 amendment of
2. Nonviolent Prior as Aggravating Factor
In addition to changing the standard governing the exercise of sentencing discretion, the 1978 initiative added a new factor to the list of aggravating
Because—as discussed above—the 1977, rather than the 1978, law applied in this case, the trial court clearly erred in instructing on this new aggravating factor. In asserting that he was prejudiced by this error, defendant points out that there was evidence that he had in fact suffered a prior conviction for a nonviolent felony—counterfeiting. Defendant maintains that by virtue of the erroneous instruction, one or more jurors may possibly have taken this conviction into consideration in finding that he had led a “life of crime” and thus deserved the death penalty.
In response, the Attorney General first contends that because it was defendant himself who—during the testimony of his parole officer as a favorable defense witness—brought the counterfeiting prior to the jury‘s attention, he should not be able to complain about potential prejudice flowing from that conviction. While it is not clear that defendant was the first to broach the subject,20 even if he was, he plainly did not “invite” the trial court‘s instruction which erroneously advised the jury that the prior conviction was a statutorily designated aggravating factor which should be considered in determining sentence. (See, e.g., People v. Graham, supra, 71 Cal.2d 303, 317-322.) Accordingly, he is entitled to object to the improper instruction here.
The Attorney General further argues that in light of the aggravated nature of the murders and the Nevada arson, the presence of the counterfeiting prior could not reasonably have affected defendant‘s sentence. While it does seem unlikely that the counterfeiting conviction played a major role in the jury‘s sentencing decision, the attempt to gauge prejudice at the penalty phase is always a hazardous task. In any event, we need not decide whether
IV. CONCLUSION
For the reasons discussed above, the judgment as to guilt is affirmed, the judgment as to penalty is reversed and the case is remanded for a new penalty trial before a properly instructed jury.
Bird, C. J., Broussard, J., Reynoso, J., and Grodin, J., concurred.
MOSK, J.—I concur in the judgment affirming as to guilt, and agree that the judgment must be reversed as to penalty because of the serious error of the trial court in instructing the jury under the 1978 death penalty law rather than the 1977 law.
However, I cannot join the majority in its criticism of the instruction barring the jury from being swayed by mere sympathy. On that issue I adhere to the views expressed in my dissenting opinion in People v. Bandhauer (1970) 1 Cal.3d 609, 619 [83 Cal.Rptr. 184, 463 P.2d 408]. In the current climate of public opinion, sympathy is more likely to be aroused for the victim and his family than for a defendant who has been found guilty of a brutal first degree murder. Thus cautioning a jury in the penalty phase of the trial not to be swayed by mere sympathy redounds to the benefit, not the detriment, of the defendant.
RICHARDSON, J.—I respectfully dissent.
The majority continues its trend, lamentable in my view, of reversing death penalty judgments for purported “errors” which reasonably could not have affected the jury‘s verdict. (See, e.g., People v. Robertson (1982) 33 Cal.3d 21, 63 [188 Cal.Rptr. 77, 655 P.2d 279] [dis opn]; People v. Arcega (1982) 32 Cal.3d 504, 531-534 [186 Cal.Rptr. 94, 651 P.2d 338] [dis. opn.]; People v. Hogan (1982) 31 Cal.3d 815, 864 [183 Cal.Rptr. 817, 647 P.2d 93] [dis. opn.]; People v. Haskett (1982) 30 Cal.3d 841, 868-869 [180 Cal.Rptr. 640, 640 P.2d 776] [dis. opn.]; People v. Ramos (1982) 30 Cal.3d 553, 605 [180 Cal.Rptr. 266, 639 P.2d 908] [dis. opn.], judgment vacated and cause remanded sub nom. California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446]; People v. Murtishaw (1981) 29 Cal.3d 733, 780 [175 Cal.Rptr. 738, 631 P.2d 446] [dis. opn.]; People v. Green (1980) 27 Cal.3d 1, 77-78 [164 Cal.Rptr. 1, 609 P.2d 468] [dis. opn.]; People v. Velasquez (1980) 26 Cal.3d 425, 447 [162 Cal.Rptr. 306,
Although California has had a valid constitutional death penalty law since 1977, and approximately 145 judgments of death have been filed with us since then, we have thus far decided fewer than 20 such appeals. Of those decided, we have reversed the penalty in 16 cases and have affirmed the judgment of death in only 2. (People v. Harris (1981) 28 Cal.3d 935 [171 Cal.Rptr. 679, 623 P.2d 240]; People v. Jackson (1980) 28 Cal.3d 264 [168 Cal.Rptr. 603, 618 P.2d 149].) The judgments in those two cases are presently subject to pending habeas corpus proceedings either in this court (Jackson) or in a federal court (Harris). As reflected in the majority‘s ruling in the present case, it is apparent that the majority is willing to reverse a judgment of death for the slightest procedural defect or omission.
Here, the majority reverses the death penalty verdict because of two claimed procedural “errors” which even defendant‘s own appellate counsel evidently deemed too insignificant to raise on appeal. As the majority acknowledges, these points were raised by an amicus curiae on rehearing following our original affirmance of the judgment of death.
1. “Sympathy” Instruction
The jury was instructed not to be influenced by “pity” for defendant or “mere sentiment, conjecture, sympathy, passion, prejudice. . . .” Can we reasonably conclude that this harmless admonition, buried in a mass of penalty phase instructions, induced the jury to vote the death penalty for the defendant, a convicted hired killer and arsonist? One thing is very clear—the instruction did not prevent defendant‘s introduction of, and the jury‘s consideration of, mitigating evidence regarding his background and character. Indeed, the jury was specifically instructed that it could consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” (Italics added,
Nonetheless, the majority reasons that, solely because of the trial court‘s “sympathy” instruction, “the court in effect told the jury not to give any weight to the bulk of the evidence proffered by the defendant.” (Ante, p. 879.) With due deference to my colleagues, I think such a suggestion is wholly unrealistic and mistakenly assumes that the jurors lacked ordinary intelligence and common sense. We can fairly assume that the jurors understood their proper function: to weigh all of the aggravating and mitigating circum-
This certainly was the assumption of counsel during the trial and the foregoing conclusion is reinforced by an examination of the closing arguments. The prosecutor told the jurors that “Another factor for you to consider is the background of the defendants.” (Italics added.) In similar fashion, defense counsel likewise explained to the jurors that “one of the things that you can consider in mitigation in this case is evidence of a defendant‘s background.” (Italics added.) Before the jury, defense counsel then reviewed at length the mitigating testimony regarding defendant‘s family life and his nonviolent history. Does the majority truly believe that the jurors ignored the “any other circumstance” instruction and the arguments of both counsel, and disregarded this mitigating testimony merely because they were instructed not to be influenced by such factors as “mere sentiment, conjecture, sympathy, passion, prejudice . . .“?
Justice Mosk touched upon this precise point in his dissenting opinion in People v. Bandhauer (1970) 1 Cal.3d 609, 619-620 [83 Cal.Rptr. 184, 463 P.2d 408]), wherein he stated: “Realistically viewed, the instruction [quoted above] is, on balance, favorable to the defendant. Of the various influences proscribed, ‘sentiment’ is vague and ‘conjecture’ is neutral, but ‘passion, prejudice, public opinion or public feeling’ are most often hostile to the defendant. I doubt, for example, that the majority would sanction an instruction which affirmatively authorized the jury to be governed by such ‘passion, prejudice, public opinion or public feeling.’ This leaves ‘sympathy’ as the majority‘s main concern. But even that emotion, I submit is more likely to be evoked in favor of the innocent victim and his family than of the criminal whom the jury has convicted of the offense.” (1 Cal.3d at p. 620.) Justice Mosk further observed that “the majority seize upon one word in one instruction to reverse as to penalty . . . I am persuaded there is wholly inadequate justification under the ‘miscarriage of justice’ clause of the Constitution (
With reference to the factor of “sympathy,” we will do well to recall what this case is about. Defendant was convicted of executing a husband and wife. After binding their hands and legs with baling wire, he inserted rubber balls in their mouths to muffle their screams of pain. Then, as they lay bound and helpless, he methodically stabbed both of his victims over 110 times (according to the autopsy report) with an ice pick, the tip of which finally broke off in Mrs. Junghans’ skull. For his actions he was paid $4,000 within hours after he had completed the two murders. Under such circumstances I find no reasonable basis for concluding, as do my colleagues, that the “sympathy” instruction prejudiced defendant or resulted in any “miscarriage of justice.”
The majority next holds that the trial court committed reversible error in inadvertently instructing the jury in the language of the 1978, rather than the 1977, death penalty law. In my view, any such error was patently harmless in this case.
Under the 1977 law, the jurors “shall consider, take into account and be guided by the aggravating and mitigating circumstances . . . and shall determine whether the penalty shall be death or life imprisonment without . . . parole.” (Former
We rejected a similar argument in People v. Frierson (1979) 25 Cal.3d 142, 180 [158 Cal.Rptr. 281, 599 P.2d 587], wherein it was urged that the 1977 law was deficient in failing to require the jury to weigh the aggravating and mitigating factors in making its decision. We interpreted the language of the 1977 law “as essentially equivalent to the provision in the valid Florida statute requiring the sentencing authority to ‘weigh’ those factors in reaching its decision.” (Italics added; accord People v. Jackson, supra, 28 Cal.3d 264, 315.) Thus, reasonably construed, both the 1977 and 1978 laws tell the penalty phase jurors the same thing: “Base your decision upon a weighing of the good with the bad.” It is true that, unlike the 1978 law, the 1977 law does not expressly tell the jury that its death penalty decision depends on whether or not the “bad” factors outweigh the “good” ones, but that is the obvious and only reasonable implication of requiring the jurors to “consider, take into account and be guided by” all these factors.
The majority suggests that the 1978 law contains a mandatory aspect not present in the 1977 law, namely, a requirement that the jury impose the death penalty if it finds the aggravating circumstances outweigh the mitigating ones. Yet as we have seen, the 1977 law likewise requires such a weighing process. It is simply inconceivable to me that a different result would have obtained had the jury been instructed under the 1977 law.
Finally, the majority observes that under the 1977 law, defendant‘s prior counterfeiting felony would have been inadmissible as an aggravating fac-
A personal aversion toward the death penalty is both understandable and widely shared, but the sovereign people have placed the law “on the books.” It is our responsibility to enforce it in the absence of reversible error. We face an overwhelming and constantly increasing backlog of automatic appeals which only can be aggravated by needless reversals, retrials and renewed appeals. I am fully sensitive to the awesome implications of our resolution of the issues in a death penalty case, and the great care with which we must examine those issues. Nonetheless, our role is to review the claims of procedural error with an eye toward identifying and resolving only those which reasonably can be said to have affected the verdict adversely. We should not transform the slightest procedural irregularity into reversible error merely because the death penalty is invoked.
Our close scrutiny of the appellate record, properly heightened because of the irrevocable consequences of our judgment, however, goes no further than to determine whether “after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (
Believing as I do that the defendant received a “fair trial” at the penalty phase, I would affirm the judgment.