THE PEOPLE, Plaintiff and Respondent, v. DENNIS HAROLD LAWLEY, Defendant and Appellant.
No. S014497
Supreme Court of California
Jan. 24, 2002.
27 Cal. 4th 102
Scott F. Kauffman, under appointment by the Supreme Court, for Defendant and Appellant.
Bill Lockyer, Attorney General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, Stephen G. Herndon, Ward A. Campbell, Shirley A. Nelson, Laura I. Heidt and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WERDEGAR, J.—Following a trial at which he represented himself with the assistance of advisory counsel, a Stanislaus County jury convicted Dennis Harold Lawley of single counts of murder (
We shall vacate as unauthorized the special circumstance finding and sentence of death on the conspiracy count; modify the judgment to direct the trial court to amend the abstract of judgment to provide for a sentence of imprisonment for 25 years to life, stayed pursuant to
FACTS
Guilt phase
1. Prosecution evidence
On January 22, 1989, George Silva, Jr., was living on the southeast corner of Keyes and Jennings Roads in Stanislaus County. That evening, Silva, who was familiar with firearms and the sound of gunfire, heard what sounded like three large-caliber pistol shots. After each shot, Silva heard a “thud,” as if an object were being struck by the shots. Shortly after the shots were fired,
Between 7:30 and 7:45 p.m. that same evening, Kay Spencer was driving in the vicinity of Keyes and Jennings Roads. As she turned north onto Jennings Road from West Main, she saw the taillights of a vehicle about one-quarter to one-half mile in the distance ahead of her. As the other car negotiated a curve, its taillights disappeared from view. When Spencer turned east on Keyes Road, she saw what appeared to be the same distinctive taillights on a car stopped about a quarter-mile from the intersection. The car was an older-model full-size sedan, dark green or brown in color. Although she was not positive, she believed the brake lights were on. Spencer testified she thought she saw three people around the car: at the open trunk, a dark-haired man of medium height, apparently in his mid-20‘s; on the right-hand side of the vehicle, a slighter, sandy-haired man walking toward the back of the car; and a third person Spencer could not describe.
About 8:00 p.m. that evening, while driving eastbound with his girlfriend on Keyes Road toward Crows Landing, Hubert Blake observed a pair of legs protruding onto the road. Looking closer, he saw a man lying facedown, his body half on the road and half on the adjacent dirt. Blake drove back down the road to a trailer occupied by Phil Silva, whom he had been visiting earlier that evening, had his girlfriend direct the occupants to call 911, and drove back to the scene. After determining the man was dead, Blake covered him with a towel.
The victim, later identified as Kenneth Lawton Stewart, had suffered two gunshot wounds to the back of the head. Abrasions on his face were consistent with his being shot in the back of the head while lying facedown. A fragment of a bullet jacket or casing was found entangled in Stewart‘s hair; another fragment was discovered approximately four to six feet north of his head. Underneath the body was blood and brain matter; blood was also present on the dirt and asphalt. Police also found two moist oil stains on the roadway near the body.
After learning, the next day, that a body had been found on Keyes Road, Kay Spencer contacted the Stanislaus County Sheriff‘s Department. When Spencer showed Sheriff‘s Detective Gary Deckard where she had seen the stopped vehicle, he told her it was the same general area where the body was found.
Stewart had been released from the Deuel Vocational Institute at Tracy four days before his death. Stewart had a reputation for robbing drug dealers
Ricky Black was one of several people charged with Stewart‘s murder and was technically facing the death penalty. Black had also been charged with kidnapping Stewart. Black testified for the prosecution at defendant‘s trial under a grant of immunity and on the assumption the charges concerning Stewart, as well as drug sale charges pending against him, would be dismissed. He acknowledged that if his role in Stewart‘s murder was greater than he had previously admitted, his deal with the prosecution was off. Black admitted he was a heroin addict with prior felony convictions for grand theft, petty theft with a prior, and being a felon in possession of a firearm.
Black testified he knew both defendant and Stewart and had purchased drugs at defendant‘s cabin, usually from someone other than defendant. On the night of Stewart‘s murder, Black had been with Stewart in Butler‘s Camp in the cabin of Lawrence Woodcock. Black had just left Woodcock‘s cabin and was walking down a back street about half a block from defendant‘s cabin when Brian Seabourn, who Black indicated had some mental problems, drove up in a brown car. Black had previously seen Seabourn with guns, although he did not observe a gun on this occasion. Seabourn asked Black if he knew Stewart and knew where he was. Seabourn told Black he wanted to kill Stewart and needed his help. Knowing Stewart was still in Woodcock‘s cabin, Black offered to lure him out by telling him Seabourn wanted to do a drug robbery. Black went to Woodcock‘s cabin and returned to Seabourn‘s car with Stewart. He introduced the two men and got into Seabourn‘s car along with Stewart. Seabourn drove a short distance to a small store, where Black got out despite Seabourn‘s asking him to stay. That was the last time Black saw Stewart.
Black learned of Stewart‘s death the next day. When he talked with Seabourn after the crime, Seabourn told him he had killed Stewart and buried the murder weapon. Black testified he did not know of anyone who “had anything else to do with this.” After Stewart‘s murder, Black was in possession of a knife Stewart had stolen from Freddie Salas; Black testified Stewart had given him the knife.
A few days before the murder, probably on Thursday, January 19, 1989, Black had entered defendant‘s cabin just as Stewart was finishing robbing and assaulting defendant. He observed the two men fighting and Stewart
Treva Coonce testified for the prosecution at defendant‘s May 12, 1989, preliminary hearing and at his trial, under a grant of immunity. She also testified at Brian Seabourn‘s preliminary hearing and gave several interviews, on April 14, 1989, and subsequently, to Stanislaus County Sheriff‘s Detective Gary Deckard. Coonce‘s various statements often contradicted each other, and she repudiated her prior statements and testimony on a number of occasions. Coonce was a heroin addict who was in jail and going through withdrawal at the time she made her April 14 statement to Detective Deckard. Despite her grant of immunity, at defendant‘s trial Coonce continued to repudiate her earlier statements implicating defendant and Seabourn. Consequently, most of the incriminating evidence elicited from Coonce during defendant‘s trial came in the form of readings from her May 12 preliminary hearing testimony and statements made to Deckard on April 14 and subsequently. The following account is derived from Coonce‘s trial and preliminary hearing testimony and from the testimony of Detective Deckard.
For a week to 10 days in early January 1989, Treva Coonce stayed in defendant‘s cabin at Butler‘s Camp. She left after an argument with defendant, eventually moving into the trailer next door. Coonce was the girlfriend of Steven Mendonca, who was also charged with Stewart‘s murder and ultimately pleaded guilty to second degree murder.2 Coonce had also known Stewart for several years. About a week before Stewart‘s murder, while in her trailer next to defendant‘s cabin, Coonce overheard a fight between defendant and Ricky Black. Afterward, defendant and Black sat down on the porch together. Coonce did not see Stewart at defendant‘s cabin and did not recall seeing defendant bruised or cut after the fight.
Coonce told Detective Deckard, and testified at defendant‘s May 12 preliminary hearing, that a few days after the robbery and assault on defendant she was present in defendant‘s cabin with Mendonca, Seabourn, defendant, Tom Bourchier and other people she could no longer recall. Defendant was “fuming” over the robbery and said he would “do anything to have [Stewart] taken care of.” Defendant said he “would pay to have that
On the night of January 22, 1989, Coonce was in her trailer when Seabourn and Mendonca returned from killing Stewart. Coonce went outside and saw defendant direct Bourchier to give Seabourn $2,000. About 5:00 a.m. on the morning after the murder, Mendonca returned to Coonce‘s trailer and spoke with her. He had an “eight-ball” of heroin that he said he had found between the trailer and defendant‘s cabin. Mendonca told Coonce that after the murder he and Seabourn had taken the car used in the murder to a car wash to clean out blood and other matter.
Some weeks after the killing, Mendonca told Coonce the gun used to kill Stewart had been buried or thrown into water. Bourchier also told Coonce the gun had been buried.
At defendant‘s trial, Coonce repudiated her prior statements and testimony incriminating defendant and others. She denied being present in defendant‘s cabin and overhearing a discussion regarding killing Stewart. She denied seeing any exchange of money between defendant and Seabourn or Bourchier and Seabourn. At Seabourn‘s preliminary hearing, Coonce repudiated most of her statements to Detective Deckard, saying she had made the statements in order to get out of jail. She also repudiated the testimony she gave at defendant‘s May 12 preliminary hearing. At the present trial, Coonce testified she had lied at defendant‘s preliminary hearing and that anything she previously had told police or testified to was based on hearsay. She denied telling Sharon Tripp, another Butler‘s Camp associate, before Seabourn‘s preliminary hearing, that she would lie at that proceeding.
Following Seabourn‘s preliminary hearing, Coonce suffered endocarditis and a stroke brought on by injecting heroin mixed with river water. She was interviewed in the hospital by Detective Deckard and told him she had lied at Seabourn‘s preliminary hearing out of loyalty.
Sharon Tripp testified she was staying at defendant‘s cabin off and on around the time of the murder. She was acquainted with defendant, Seabourn, Mendonca, Coonce and Stewart. She had no felony convictions, but was using heroin in January 1989. On a Sunday morning in that month, she entered the cabin and saw defendant lying on a couch with scrapes on his hand and blood on his jacket. Defendant told her that the night before he had been robbed by Kenny Stewart and he would “like to kill the mother fucker.” He had a gun tucked into the front of his pants.
At the time of Brian Seabourn‘s arrest for the Stewart murder, a brown two-door Buick sedan was impounded from in front of Seabourn‘s parents’ house. Upon starting the vehicle and letting the engine run for approximately 10 minutes, Detective Deckard ascertained it had an oil leak. Deckard submitted samples of the fluid leaking from Seabourn‘s car and of the oil found at the scene of the murder to the California Department of Justice for analysis, but examiners were unable to determine whether the two substances came from the same source. Deckard had Kay Spencer view the vehicle, including the illuminated brake lights and taillights; Spencer testified the vehicle was consistent in all respects with the one she had seen on Keyes Road on the night of January 22.
A search of defendant‘s cabin on January 24, 1989, yielded, among other items, a loaded Ruger .357 magnum pistol, a camouflage holster, and unexpended .357 magnum Federal Grant cartridges. Criminalist William Jerry Chisum of the California Department of Justice compared bullet fragments found in, on, or near Stewart with bullets fired from the .357 magnum pistol found in defendant‘s cabin, concluding that the gun had fired the shot that killed Stewart.
When shown the .357 magnum pistol found in defendant‘s cabin in the course of the January 24 search, witness Charles Anderson identified it as the same weapon he had purchased from his son, also named Charles Anderson, in October or November 1988. Charles Anderson, Sr., had subsequently sold the gun to his son David in either November or December 1988. At the time he sold the gun to David, it had the same camouflage holster later found in defendant‘s cabin.
David Anderson (Anderson) testified he visited defendant‘s cabin approximately six to eight times in mid-January 1989. Defendant was then in
Anderson testified that, on his second visit to defendant‘s cabin, his gun was stolen. He had parked his Dodge truck near the cabin, placed the gun under the front seat, and entered the cabin. The place was filled with people buying and using drugs. Thomas Bourchier walked up to Anderson and asked him what he wanted. Anderson replied he didn‘t know yet. A prostitute then approached Anderson and tried to make a “date” with him. Thereafter, Anderson discovered that the gun, some tools and a box of shells were missing; he surmised the woman had purposely distracted him so someone could steal his gun. He reported the theft of the gun to Detective Jack Smith of the Modesto Police Department.
The next day, Anderson returned to Butler‘s Camp to gather information for Detective Smith, who was paying him in gas money and for whom he had provided information in the past. Anderson entered defendant‘s cabin and there encountered defendant, who was selling drugs, Bourchier, Seabourn and several other people. Coonce and Mendonca soon arrived. Defendant had been badly beaten—he had a black eye, a cut on his lower lip, and a cut across his right knuckle, and he walked with a limp. When Anderson asked what had happened, defendant said he had been beaten up and robbed, that his assailant had taken all his money and drugs, and he was almost out of business. When Anderson asked defendant if he knew who had done it, defendant did not speak directly to him, but mentioned the name “Stewart.” Defendant stated he had things taken care of and that “[i]f the son of a bitch comes back he‘s a dead mother-fucker.”
Bourchier, at defendant‘s direction, cleared the cabin of everyone but people doing business. Bourchier asked Anderson what he wanted. Anderson told him he wanted “a dime of white” (cocaine) and “a dime of black” (heroin). Bourchier told him to sit at the kitchen table and wait. Anderson complied. Sitting at the table, Anderson faced the bathroom. Defendant, who had Anderson‘s gun holster down the front of his pants, containing a chrome gun that Anderson believed was his, went into the bathroom with Coonce and Mendonca. The bathroom door was open about an inch and a half. Anderson could see Coonce, but not defendant or Mendonca. Anderson heard the three talk of a man having been beaten up for drugs and having lost
2. Defense evidence3
Alice Seabourn, Brian Seabourn‘s mother, testified to the effect that Seabourn was at her house at the time Stewart was murdered. Her friend, Martha Pearson, and Brian‘s sister, Charlotte Navarro, testified similarly. Criminalist Sara Yoshida testified she had examined Alice Seabourn‘s car for bloodstains and found no evidence relating to Stewart‘s murder.
As noted above (ante, at p. 113), defendant waived his right to the assistance of counsel and represented himself at trial. Defendant called Clinical Psychologist Philip Trompetter in order, as he said in open court in the presence of the jury, “to establish that there is a motive for somebody placing that bullet jacket on the head of Kenny Stewart.4 And that motive is that, that while, that I wish the future to decide that there was in the past a Beast in Revelations5 and thereby in this time of, in modern times in this time of mechanizations, not lose their faith.” Defendant further explained: “[M]y theory is that, that someone who would try to do this could make
The parties stipulated that John Maurer, M.D., examined defendant on February 3, 1978, and Robert Slater, M.D., examined defendant on July 22, 1982. Dr. Maurer and Dr. Slater, both licensed psychiatrists, found defendant legally sane “notwithstanding that [defendant] discussed with [them] the subject of the Beast in Revelations” and that defendant “stated that he was actively trying to be known as the Beast in Revelations.”
Penalty phase
1. Prosecution evidence
The prosecution presented evidence that defendant previously had suffered felony convictions for assault by means likely to cause great bodily injury, escape, possession of a completed check with the intent to defraud, burglary, being a felon in possession of a firearm, possession of a controlled substance, and perjury.
Additionally, the prosecution presented evidence of four instances in which defendant had engaged in assaultive conduct or had threatened violence.
Tracy Smith testified that, on the evening of August 19, 1986, he went to Gary‘s Drive-In to visit his then wife, who was working there. After she told
him about a man who had been “hanging around” the restaurant, Smith went outside to approach the man, later identified as defendant, who was sitting in a car. Smith asked him what he was doing there. Defendant told him to “Get away,” showed him a knife, and said, “I‘ll cut you.” The knife appeared to be a kitchen knife approximately 10 inches long. Smith returned to the restaurant, told his wife and her coworkers that defendant had threatened him, and phoned the police. Smith went back outside and again asked defendant what he was doing there; defendant threatened him again with the knife. Deputy Sheriff Allen Wayne Barcelona was called to the scene to investigate. Defendant, who was wearing towels tied onto his arms and around his crotch, explained he was waiting near the pay phone for a call about a job and that the knife and towels were for protection inasmuch as, a few days earlier, he had been attacked by persons wielding baseball bats.
On September 12, 1986, at a Savemart store on Paradise Road in Modesto, defendant refused store employees’ requests to leave. Defendant had previously been warned not to enter the store because he had misused food stamps by buying small items, such as candy, and collecting the change. Savemart employee Robert Bowling warned defendant the police would be called if he did not depart. When defendant refused to leave, Bowling handcuffed him, called the police, and escorted defendant to an office. Defendant attempted to escape, trying to kick Bowling in the groin and ultimately kicking him in the face. When police arrived, Savemart employees turned defendant over to them.
On September 15, 1987, defendant was living at 1346 Harris in Stanislaus County. Michael Harris lived at 1347 Harris, two duplexes down from defendant. On that date, Harris was working on the fence separating his backyard from defendant‘s. A 10-foot section of the fence was down, allowing access to both yards. Harris‘s three-year-old son was playing with a little girl who lived next door to defendant; the children played back and forth in both yards. Defendant came out of his house and kicked the little boy in the side and the leg. The child fell down and cried. When Harris and his friend, Danny Wisner, went to the front of defendant‘s house to discuss the matter with him, defendant told Harris to keep his son out of his yard or he would do it again, and made a comment to the effect that he wanted the child to come in and “suck his dick” or asking whether Harris was teaching his son to “go around sucking guys’ penises.” During the conversation, defendant became angry and hit Wisner in the left eye with his fist. Harris and Wisner reported the incident to the sheriff‘s department and pressed charges against defendant. About a week later, after defendant had been released from custody, he threatened Harris and Wisner with a gun over the fence between the yards, saying they should not have done what they did to
On March 23, 1989, defendant was in custody in the Stanislaus County Jail in cell No. X-12 on X-tier, which housed inmates charged with murder or other assaultive conduct. At that time, Brian Seabourn was housed at the other end of the same tier. Around 10:00 a.m. that day, Deputy Sheriff Daniel Chichester, who was assigned to the jail as a custodial officer, was working on X-tier doing the weekly cell search. On X-tier, an inmate whose cell was about to be searched would be removed and secured in the shower area, while two officers would search the cell, issue the inmate new bedding and clothing, and remove any contraband and weapons. When the search of Seabourn‘s cell was completed on that date, he was directed to come out of the shower and return to his cell. Instead of complying, Seabourn proceeded down the hallway to where Chichester was standing, approximately in front of defendant‘s cell, and hit Chichester under the jaw. Defendant was inside his cell. As Seabourn and Chichester exchanged blows, someone reached out and grabbed Chichester‘s rib cage and pulled him backward against the X-12 cell bars, striking his head. Chichester blacked out and was taken by ambulance to Scenic General Hospital, where he spent seven to eight days, two and a half to three of them in the intensive care unit. He had suffered a skull fracture and received 13 stitches to close head wounds. As of the time of trial, seven months after the incident, Chichester had not yet returned to work. He continued to suffer pain, dizziness, blurred vision, and ringing in his ears, and he faced possible neck surgery.
2. Defense evidence
Defendant called several Stanislaus County Sheriff‘s deputies to testify regarding their observations during the assault on Chichester in an effort to show that he had not been involved. Stanislaus County Sheriff‘s Officer Richard Wagner was working on X-tier at the time the fight erupted between Chichester and Seabourn. Wagner immediately went to Chichester‘s aid. As Wagner attempted to pull Seabourn off Chichester, Seabourn punched Wagner in the right eye, causing an injury that later required surgical repair. Stanislaus County Sheriff‘s Officer Darren Gharat served as liaison officer with Chichester and Wagner that morning on X-tier. When Gharat saw Seabourn strike the first blow at Chichester, he radioed for help, secured the crash gate and finally secured the floor. Neither Wagner nor Gharat saw defendant reach out of his cell to grab Chichester.
Stanislaus County Sheriff‘s Deputy Myron Larson investigated Seabourn‘s assault on Chichester. Larson found blood in front of and on the bars
Defendant presented the testimony of another Stanislaus County Sheriff‘s deputy to the effect that investigation had shown that defendant could not have made threatening phone calls, as reported by Michael Harris. Defendant called Michael Harris and Danny Wisner to testify further regarding the incident involving Harris‘s son, suggesting at various points that his kicking the boy was an appropriate response to the boy‘s having “felt [his] dick.” Defendant also asked Harris and Wisner whether they were homosexuals and whether they lived together.
Defendant‘s father, Clyde Merle Lawley, testified on his behalf. Mr. Lawley was an inventor and the proprietor of a cattle food manufacturing business in Modesto. The Lawley family had moved to California from Oklahoma in 1950, when defendant was seven years old. Defendant was very intelligent but, in his father‘s view, extremely sick mentally, believing people were out to get him. He had never been able to hold a job for more than a few months. The family had tried to provide defendant appropriate guidance and financial assistance, including on one occasion buying him a car that he drove to Florida and abandoned in a swamp. Clyde Lawley had had many conversations over the years with defendant on such subjects as the colonization of outer space, cryogenics, history, religion, military science, and technology. Defendant and his father had an ongoing difference of opinion concerning defendant‘s attempt to go down in history as the Beast in Revelations; Clyde Lawley viewed this ambition as “absolutely” crazy. He wished defendant could begin facing reality rather than living in his imagination and fantasies.
Paul S. D. Berg, Ph.D., a licensed psychologist, testified he met with defendant on three occasions for a total of approximately eight to 10 hours. He conducted a number of standard psychological tests on defendant during these meetings, including the Raven Standard Progressive Matrices, the Bender-Gestalt and the Minnesota Multiphasic Personality Inventory. Defendant‘s intelligence quotient was 128, in the 97th percentile. Dr. Berg also reviewed correspondence from defendant‘s family, records from Atascadero State Hospital, a report by Dr. Philip Trompetter, the testimony of defendant‘s father, and other matters.
Dr. Berg testified defendant had been committed to Atascadero State Hospital from 1978 to 1982 as a result of an incident in which he pointed a shotgun at a deputy sheriff in Sonora. Defendant was evaluated at that time by Drs. Maurer and Powelson, both of whom diagnosed him as paranoid schizophrenic. (Dr. Powelson had found defendant legally insane, while Dr. Maurer disagreed.) Defendant was treated briefly with Haldol, an antipsychotic medication, while at Atascadero. He seemed to benefit from the programs in which he participated, at least to the extent he no longer discussed his stranger ideas, but he remained a loner with no close relationships to others. Dr. Berg diagnosed defendant as suffering from paranoid disorder, also known as delusional disorder, and antisocial personality disorder. He defined delusional disorder as “an illness of which the main quality is that [the affected person] develop[s] either one idea or a set of ideas . . . that are based on delusions and that those delusions influence how they think about everything, what they do, how they live.” A delusion is a fixed, false idea. Defendant‘s delusion was his “idea about being or possibly being the Beast of Revelations.” Defendant also had “very strong convictions about homosexuality, and homosexuals” and about Black people. Illustrative of defendant‘s antisocial personality disorder, Dr. Berg testified, were his extensive drug use and his long history of criminal behavior and convictions. Dr. Berg opined that defendant understood it is criminally wrong to shoot someone, but he was not always capable of conforming his conduct to the requirements of the law.
ANALYSIS
I. Competency to stand trial
A. Factual background
Defendant contends a variety of errors in the proceedings deprived him of a meaningful hearing on his competency to stand trial and thus of his state and federal constitutional rights to due process and a fair trial. The factual background necessary for an understanding of defendant‘s appellate claims follows.
1. Events leading to institution of competency proceedings
Defendant‘s case was set for trial before Judge Charles V. Stone on July 17, 1989. That morning, defendant‘s retained counsel, Ernest Kinney, reported that a disagreement had arisen concerning defendant‘s desire to waive a jury trial. Judge Stone advised defendant that he did not have a constitutional right to a nonjury trial, that counsel had the right to control the tactics
Mr. Kinney said that, although he had agreed to take the case on a no-time-waiver basis, the issue of waiving a jury had come up only recently. Based on the facts of defendant‘s case, Kinney concluded he would not waive a jury. Defendant retorted that Kinney was lying and that he had told Kinney at their first meeting that he wanted a court trial. Defendant noted he had been “slandering” women who wear pants for many years and hoped they knew it, and thus felt a female jury would be prejudicial to his case. Defendant subsequently clarified that women “are terrific jurors” and he had a problem only with transvestites.
Judge Stone again advised defendant he could not waive a jury over counsel‘s objection. Defendant then said: “So that leaves me in a case, I can fire my attorney and not have adequate representation or take a chance that I may not be getting adequate representation at this moment because I‘ve told him that I don‘t feel that he will get me a fair trial—I fear that he won‘t get me a fair trial by [a] jury of my peers.” Judge Stone asked defendant what he wished to do. Defendant reiterated he wanted to waive the jury. Judge Stone asked, “Is there something else you want to say as far as being represented by Mr. Kinney is concerned?” Defendant responded: “I want a quick and speedy trial. I just got through telling you. I certainly cannot be prepared to handle this myself at the moment or I would certainly be willing to get rid of him. But I have zero preparation. I guess I have to go potluck then, but I object to my counsel, yes, sir.” Judge Stone then ordered that a panel of 75 jurors be brought to the courtroom for jury selection.
That afternoon, outside the presence of the prospective jurors but with the prosecutor present, Kinney advised the court of another strategic dispute with defendant. Defendant wanted Kinney to subpoena “all the records” of California Department of Justice Criminalist William Jerry Chisum to determine whether Chisum had ever seen a bullet jacket separating from a bullet and remaining outside the wound. Defendant expressed disbelief that Chisum had ever seen a bullet separate from its casing and sought to impeach his testimony in that regard. When Kinney, who believed the effort would be a waste of time, refused to comply with defendant‘s request, defendant became upset, called him a liar, and stated he had no recourse but to represent himself. Without resolving the latter question, the court continued to conduct voir dire for the rest of the day.
The following morning, Kinney informed the court that defendant wished to represent himself, adding: “Because of the past mental situation of my client, being in Atascadero, because of his desire to have a court trial versus a jury trial, there has been a split in our theory and in our thinking and he does desire to go forward and represent himself. I would indicate to the court that based on his past record and some indications I have from Dr. Berg, there is a question in my mind whether he is competent to proceed to trial, and in particular, whether he is competent to stand as his own attorney. [¶] I would urge the court under
After another outburst by defendant, Judge Stone declared he entertained a doubt as to defendant‘s competency to proceed to trial, suspended criminal proceedings, and appointed Clinical Psychologist Philip Trompetter to examine defendant.
2. Experts’ reports regarding defendant‘s competency
Dr. Trompetter interviewed defendant at the Stanislaus County Jail for a total of two and one-half hours on July 21 and 23, 1989. He also reviewed the records of the Stanislaus County Sheriff‘s Department, defendant‘s records from the Stanislaus County Mental Health Department, and defendant‘s discharge summary from Atascadero State Hospital, and briefly contacted Detective Deckard of the Stanislaus County Sheriff‘s Department. Based on information gathered from these sources, Dr. Trompetter wrote and submitted a report in which he concluded defendant was competent to stand trial. Dr. Trompetter noted defendant had reported two prior psychiatric hospitalizations: a March 1978 commitment to Atascadero State Hospital, following a finding of not guilty by reason of insanity on a charge of assault with a deadly weapon on a peace officer, from which defendant was discharged in 1982; and, in January 1985, a 72-hour involuntary hospitalization at the Stanislaus County Department of Mental Health Psychiatric Health Facility. Both institutions reported a diagnosis of schizophrenia, paranoid type, but Dr. Trompetter noted that the reports he reviewed did not clearly specify the basis for the diagnosis and that some of the information he received actually undermined such a diagnosis.6
“Seemingly connected to [defendant‘s] views regarding women,” Dr. Trompetter found, “are some of his religious beliefs. He claims to have decided as a youngster to emulate the beast from Revelation in an attempt to assist him in deciding whether there was truly a God.” Dr. Trompetter found it difficult to determine the extent to which defendant‘s religious beliefs reflected delusional thinking, as opposed to some fundamentalist religious faith.
In evaluating defendant‘s understanding of the proceedings against him, Dr. Trompetter found “a very sophisticated awareness of the charges and their seriousness. He can accurately define the role of the judge, jury, district attorney, and defense attorney. He knows and can describe the purpose of a
Dr. Trompetter found less comprehensible defendant‘s preference for a court trial over a jury trial, informed as it appeared to be both by his possibly delusional beliefs regarding women and by his rationally articulated, albeit possibly incorrect, belief that the prosecution‘s evidence was unraveling and that a judge might more accurately than a jury assess a weak prosecution case. Dr. Trompetter stated: “The degree to which these findings compromise his competency to assist in his own defense is returned to the Court.”
At defense counsel‘s request, licensed Psychologist Paul S. D. Berg, Ph.D., interviewed defendant for a substantial part of two days, on July 12 and 15, 1989, and evaluated records provided by counsel. Dr. Berg‘s letter-report to counsel diagnosed defendant as paranoid schizophrenic and concluded he was incompetent to stand trial. Dr. Berg found defendant‘s initial presentation to be that of a “somewhat phlegmatic, almost philosophical man, simply wrongfully accused but cynically and intellectually dealing with his feelings about that. [¶] An examination of his life, however, very quickly reveals that there is more than meets the eye, as seen, for example, in his earliest childhood experiences in which he developed as an alienated and schizoid-appearing individual and the onset of a specific delusional system by the time he was 12 years old, consistent with the rest of his life as a peripherally functioning and very marginal individual.” Dr. Berg found defendant to be “so preoccupied with his mission against homosexuals that it totally distorts his own considerations and judgments about the existence or selection of a jury trial and his ability to cooperate with any counsel that would try to even advise him on such matters.” Dr. Berg believed that “on some very real level [defendant] may also wish to be executed,” although he did not directly admit it. Dr. Berg also believed “there is an underlying program in his life or script, so to speak, in which he has fantasied himself to be a soldier, and that he believes that if he were to be executed, he would
In addition to the diagnosis of schizophrenia, paranoid type, Dr. Berg noted the possibility of some secondary factors associated with an organic brain syndrome, which could not be confirmed due to defendant‘s resistance to the necessary examinations.
3. Trial on competency
On August 8, 1989, the competency hearing was held before Judge Frank S. Pierson. Dr. Trompetter‘s report and Dr. Berg‘s letter-report, summarized above, were received into evidence. Counsel waived the experts’ presence and the right to cross-examination, and proceeded to argument.
Defense counsel argued Dr. Trompetter had not spent sufficient time with defendant to assemble a complete picture of him. Counsel argued further that defendant‘s concerns regarding transvestites and lesbians prevented him from either assisting counsel or representing himself, urging the court to find him incompetent.
The prosecutor argued, to the contrary, that Dr. Trompetter‘s report demonstrated that defendant possessed a sophisticated understanding of the nature of the proceedings and had some rational basis for preferring a court trial. Defendant‘s irrational beliefs concerning women and homosexuals, the prosecutor further argued, did not interfere with his understanding of the criminal process. The prosecutor pointed out that defendant was not an ignorant person and had often suggested lines of cross-examination to defense counsel and demonstrated knowledge of such subjects as ballistics. The prosecutor characterized the parties’ differences as centering on tactical choices, such as self-representation or representation by counsel and trial by jury or trial by the court, and argued in conclusion that defendant was capable of making “rational, albeit maybe somewhat distorted” tactical decisions.
At the conclusion of the hearing, Judge Pierson found defendant “capable of understanding the nature and object of the proceedings against him and . . . capable of assisting counsel in his defense.”
B. Denial of due process resulting from lack of meaningful hearing on competency
Defendant urges that his competency trial suffered from so many procedural flaws as to have deprived him of his state and federal due process
A person cannot be tried or adjudged to punishment while mentally incompetent. (
Although it arises in the context of a criminal trial, a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings. (People v. Skeirik (1991) 229 Cal.App.3d 444, 455 [280 Cal.Rptr. 175].) The right to a jury determination of competency is statutory, however, not constitutional; thus, counsel may effectively waive it without a personal waiver from the defendant. (People v. Masterson (1994) 8 Cal.4th 965, 969, 972 [35 Cal.Rptr.2d 679, 884 P.2d 136]; see
Defendant contends the procedure followed in this case, i.e., submission of two written reports reaching opposite conclusions, did not constitute the full evidentiary hearing demanded by due process. Instead, he urges, the testimony of Dr. Trompetter and Dr. Berg should have been presented, subject to cross-examination by opposing counsel, along with documentary evidence of his past admissions to psychiatric facilities. A third expert‘s opinion also should have been presented as a “tie-breaker,” defendant argues.
We disagree. In People v. McPeters (1992) 2 Cal.4th 1148 [9 Cal.Rptr.2d 834, 832 P.2d 146] (McPeters), rejecting a similar claim where the trial court
Defendant attempts to distinguish McPeters on the basis that the trial court in that case appointed a third expert when the two previously appointed did not agree. (McPeters, supra, 2 Cal.4th at p. 1168.) In McPeters, however, one of the experts apparently was unable to reach a conclusion as to the defendant‘s competency. (Ibid. [“Dr. Davis observed defendant was hostile and uncooperative and expressed the view he was either feigning mental illness or suffering from a psychosis of undetermined etiology“].) Here, in contrast, both Dr. Trompetter and Dr. Berg made findings and reached conclusions, albeit opposing ones, concerning defendant‘s competency.8 Contrary to defendant‘s argument, the trial court properly could assess the weight and persuasiveness of those findings and conclusions without having to resort to a third expert. “‘The chief value of an expert‘s testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; . . . it does not lie in his mere expression of conclusion.’ (Italics added.) [Citation.] In short, ‘Expert evidence is really an argument of an expert to the court, and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions.’ (Italics added.) [Citations.]” (People v. Bassett (1968) 69 Cal.2d 122, 141 [70 Cal.Rptr. 193, 443 P.2d 777].)
Defendant further contends that section 1369, subdivision (a) compelled the appointment of a second expert. In pertinent part, that statute provides: “In any case where the defendant or the defendant‘s counsel informs the
Defendant further contends the competency hearing should have been held before Judge Stone, who had observed defendant in court, heard his explanation of why he did not want lesbians and transvestites on his jury, and declared a doubt regarding his competency. Defendant acknowledges we have held that a competency hearing need not be held before the judge who initiated the proceeding by declaring a doubt. (People v. Hill (1967) 67 Cal.2d 105, 113, fn. 2 [60 Cal.Rptr. 234, 429 P.2d 586].) Nevertheless, he urges that, under the totality of the circumstances of the present case, holding the competency hearing before Judge Pierson denied him due process because only Judge Stone had the “experiential perspective” to appreciate the findings of Dr. Trompetter and Dr. Berg. We disagree. Competency proceedings commonly are assigned for hearing to a judge different from the one who initiated them by declaring a doubt (see Waldon v. Superior Court (1987) 196 Cal.App.3d 809, 813 [241 Cal.Rptr. 123]), and we are confident in the ability of our state‘s trial judges to preside over such
Defendant also contends he had a liberty interest, under the
Defendant contends Judge Pierson‘s reliance on Dr. Trompetter‘s report, in finding defendant competent, violated due process in that the report was “ambiguous” on the question whether defendant could rationally assist defense counsel. Defendant further asserts Dr. Trompetter‘s conclusion that he was competent was inconsistent with findings from his examination and thus required inquiry and clarification from the court. Because defendant‘s contentions, at bottom, read certain remarks contained in Dr. Trompetter‘s report out of context, we disagree. As the Attorney General observes, Dr. Trompetter‘s reservation concerning defendant‘s ability to assist defense counsel rationally was limited to the matter of defendant‘s preference for a court trial over a jury trial, which Dr. Trompetter found derived from a mixture of rational tactical reasons and paranoid beliefs regarding lesbians and transvestites. The latter, Dr. Trompetter found, “interfer[ed]” with defendant‘s ability rationally to choose the better alternative, but Dr. Trompetter
C. Claimed error in trial court‘s finding of competency
Defendant contends, based on the claims of error urged in the preceding part, that Judge Pierson‘s finding of competency was not founded on substantial evidence. In the preceding part, we rejected those claims of error, as well as defendant‘s assertion that Dr. Trompetter‘s opinion was fatally ambiguous and entitled to little weight; to rehearse the substance of that opinion is unnecessary. We therefore reject defendant‘s claim that Judge Pierson erred in finding him competent.
D. Denial of effective assistance of counsel at competency hearing
Defendant argues trial counsel Kinney rendered ineffective assistance, in violation of state and federal constitutional guarantees (
Even assuming for argument‘s sake that a competent attorney would have taken the actions defendant suggests, he fails to meet his burden of establishing, as a demonstrable reality, the prejudice requisite to a meritorious claim of ineffective assistance of counsel. (See People v. Williams (1988) 44 Cal.3d 883, 937 [245 Cal.Rptr. 336, 751 P.2d 395].) “[A] court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland v. Washington, supra, 466 U.S. at p. 697.) On this record, which amply supports the determination defendant was competent to stand trial, we cannot say a more favorable outcome was reasonably probable had counsel sought the appointment of a second expert, insisted on a jury trial, moved to have Judge Stone preside over the competency hearing, demanded a fuller evidentiary hearing, or moved to dismiss the information.
E. Trial court‘s subsequent failure during guilt and penalty phases to declare a doubt regarding defendant‘s competency
When, at any time prior to judgment, a trial court is presented with substantial evidence of a defendant‘s incompetence to stand trial, due process requires a full competency hearing. (People v. Danielson, supra, 3 Cal.4th at p. 726.) “‘When a competency hearing has already been held and defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it “is presented with a substantial change of circumstances or with new evidence” casting a serious doubt on the validity of that finding.‘” (People v. Kelly (1992) 1 Cal.4th 495, 542 [3 Cal.Rptr.2d 677, 822 P.2d 385].) A trial court may appropriately take into account its own observations in determining whether the defendant‘s mental state has significantly changed during the course of trial. (People v. Jones (1991) 53 Cal.3d 1115, 1153 [282 Cal.Rptr. 465, 811 P.2d 757].)
Defendant contends that, despite Judge Pierson‘s ruling that he was competent to stand trial, Judge Eugene M. Azevedo, who presided at trial, was required to conduct a second competency hearing as a result of the accumulation of evidence during the guilt and penalty phases of trial casting serious doubt on the validity of the prior finding of competency. In support, defendant recites in great detail instances of his alleged incompetence. On examination, however, each such instance appears either to manifest the same arguably delusional beliefs reported by Dr. Berg and Dr. Trompetter in
II. Self-representation and related issues
A. Defendant‘s competency to act as his own attorney
After resolution of the proceedings under
The requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion. (Godinez v. Moran (1993) 509 U.S. 389, 400-401 & fn.12 [113 S.Ct. 2680, 2687, 125 L.Ed.2d 321]; People v. Robinson (1997) 56 Cal.App.4th 363, 372 [65 Cal.Rptr.2d 406].)
First, the record does not substantiate defendant‘s contention that he in fact wished to be represented by counsel but was coerced into self-representation. Defendant emphatically and repeatedly sought to dismiss his retained counsel and represent himself. As the Attorney General observes, the circumstance that defendant offered to accept advisory counsel in lieu of appointed counsel so that he would not have to waive time undermines his claim of coercion.
With regard to defendant‘s second contention, we agree that as well as determining that a defendant who seeks to waive counsel is competent, the trial court, by making the defendant aware of the risks of self-representation, must satisfy itself that the waiver is knowing and voluntary. (Godinez v. Moran, supra, 509 U.S. at p. 400; People v. Bloom (1989) 48 Cal.3d 1194, 1224 [259 Cal.Rptr. 669, 774 P.2d 698].) No particular form of words, however, is required in admonishing a defendant who seeks to forgo the right to counsel and engage in self-representation. “‘The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.‘” (People v. Stansbury (1993) 4 Cal.4th 1017, 1048 [17 Cal.Rptr.2d 174, 846 P.2d 756], revd. on other grounds sub nom. Stansbury v. California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293], quoting People v. Bloom, supra, at p. 1225.) Defendant complains Judge Rose did not sufficiently explore whether defendant “truly appreciated the enormity of the charges facing him and the task he faced in representing himself.” Specifically, defendant complains Judge Rose made no effort to explain in any detail what “rules” and “procedures” he expected defendant to follow; did not mention that defendant was facing the death penalty until after granting the Faretta motion; did not explain that defendant might face a second, penalty phase of trial; and did not identify
Review of the record reveals the following colloquy: “THE COURT: Do you understand that if you are representing yourself that you will receive no special treatment by the Court, that you must follow all the technical rules of evidence and procedure and the substantive law in making objections and motions, and so forth, the same rules will apply to you as will apply if you had a lawyer represent you? Do you understand that? [¶] THE DEFENDANT: Yes, I am aware of that, Your Honor. [¶] THE COURT: Do you understand that the prosecution is being run by a very skilled attorney who has many years of experience in the practice of the law and that you will be not given any further consideration because of the fact that you don‘t have his skill and training in the representation of criminal defendants? [¶] THE DEFENDANT: I am aware of that, Your Honor. [¶] THE COURT: You are not going to receive any greater library privileges than any other pro per defendant and you will receive no extra time for preparation, you will have no staff of investigators at your beck and call. Do you understand that?” It was then noted for the record that a defense investigator had already been retained and defendant would be provided with the investigator‘s findings. The court continued: “You can read and write, I assume? [¶] THE DEFENDANT: Yes, sir. [¶] THE COURT: If there is any kind of disruption or misbehavior at the time of trial your right of self-representation could be vacated at that point. [¶] THE DEFENDANT: I wasn‘t aware of that, but I accept that as true. [¶] THE COURT: And if you, in spite of your best—or worst—efforts in representing yourself, if you were at some point convicted, you can‘t claim later on that you were inadequately represented by counsel. [¶] THE DEFENDANT: I read that in the law, Your Honor. [¶] THE COURT: Mr. Brazelton [the prosecutor], do you have any further comments? [¶] MR. BRAZELTON: No, Your Honor. [¶] THE COURT: Mr. Kinney, we‘ll relieve you. Thank you, sir.”
Three days later, when the matter was next on calendar, with defendant and the prosecutor present before the court, the following colloquy transpired: “THE COURT: Mr. Lawley, Mr. Winston and the Court and my administrator have had some discussion about his representation of you in this matter as at least associate counsel or assistant counsel in this matter. What is your desire in this matter, Mr. Lawley? [¶] THE DEFENDANT: I would be happy to have him as assistant counsel, Your Honor. [¶] MR. BRAZELTON: Excuse me, Your Honor. Is—I believe the proper— [¶] THE COURT: Advisory. [¶] MR. BRAZELTON: —term is ‘advisory.’ [¶] THE COURT: Advisory counsel. You don‘t want him to represent you formally? [¶] THE DEFENDANT: No. [¶] THE COURT: You still want to represent yourself? [¶] THE DEFENDANT: Yes, I am. [¶] THE COURT: You‘re still
Defendant complains that Judge Rose failed to explain in any detail what rules and procedures he expected him to follow, failed to mention that defendant was facing the death penalty until after he granted the Faretta motion, and failed to tell him there might be a second phase of trial to determine penalty. We disagree. Judge Rose‘s remarks, taken together, adequately admonished defendant of the risks of self-representation. (People v. Lopez (1977) 71 Cal.App.3d 568, 572-574 [138 Cal.Rptr. 36] [recommending virtually identical set of admonitions].) The record suggests no confusion on defendant‘s part regarding the meaning of the admonitions, risks of self-representation, or the complexities of his case, much less that his election to represent himself was other than voluntary. Defendant, moreover, was found by Dr. Trompetter to possess “a very sophisticated awareness of the charges and their seriousness” and himself acknowledged he had “been through about six trials” and had “an understanding of trials.” On this record, his claim of inadequate admonishment must fail.
With respect to defendant‘s contention that the unavailability of necessary legal materials vitiated his waiver of counsel, we reject (post, at p. 146) his related claim that the trial court erred in failing to inquire into the adequacy of the resources available to him as a self-represented defendant. Because defendant fails to establish the underlying premise of these claims, i.e., the actual inadequacy of available resources, the contention fails to cast doubt on the validity of his waiver.
Finally, we reject defendant‘s contention that Advisory Counsel Winston‘s alleged unreadiness to assume appointed counsel status at the penalty phase vitiated his waiver of counsel. In granting defendant‘s motion for self-representation, Judge Rose admonished him he was “in the driver‘s seat,” that Winston had no power to address the jury, make objections on defendant‘s behalf, or speak to the court, and would only be permitted to give defendant advice. Having been advised of and having accepted these restrictions on advisory counsel‘s role, defendant cannot now complain that his waiver of counsel and concomitant assumption of responsibility for his own defense were involuntary. As the Attorney General suggests, defendant was not entitled both to represent himself and to receive the benefit of professional representation. (People v. Bradford (1997) 15 Cal.4th 1229, 1368 [65 Cal.Rptr.2d 145, 939 P.2d 259].)
Defendant contends his advisory counsel, Robert Winston, labored under a conflict of interest stemming from his representation of prosecution witness Treva Coonce; defendant never waived the conflict, he further contends, but was coerced into accepting Winston as advisory counsel by virtue of the trial court‘s professed inability to find other advisory counsel for him under the circumstance that defendant refused to waive time. The conflict, defendant asserts, denied him due process, his
Resolution of this issue requires a fairly extended recitation of the factual circumstances. Attorney Winston represented defendant on a charge of murdering Kenneth Stewart, with a kidnapping special-circumstance allegation, from February 8, 1989, to the dismissal of the charges in April 1989. When the case was refiled, on May 1, 1989, defendant was represented by Ernest Kinney. On August 14, 1989, following the trial court‘s finding him competent to stand trial, defendant moved to dismiss Kinney and represent himself with the help of advisory counsel. At the same time, he told the court he did not want his trial postponed further and would not waive time. After warning defendant of the slim chance of finding an attorney to assist him without a waiver of time, and admonishing him of the dangers of self-representation, the court granted his request to proceed in propria persona and relieved Kinney as counsel. On August 17, 1989, the court appointed Winston as advisory counsel.
On August 25, 1989, the prosecution notified the court of a possible conflict of interest in Winston‘s service as advisory counsel, in that on July 25, 1989, Winston had undertaken the representation of prosecution witness Treva Coonce in several factually unrelated cases. According to the prosecution, the disposition of Coonce‘s cases depended on her truthful testimony in defendant‘s trial. After a private discussion with defendant, Winston explained on the record the circumstances of his representation of Coonce as follows: The municipal court had requested him to represent Coonce on two felony and three misdemeanor matters, all factually unrelated to defendant‘s case. Winston had accepted the appointment and met Coonce in court, introduced himself to her, and told her they would talk at a later time. Before they ever discussed her cases, Coonce became seriously ill, was admitted to
The prosecutor then represented to the court and the defense that Coonce in fact had recovered more fully than had been anticipated and likely would be able to take the stand by the time her testimony was needed. The prosecutor expressed concern that Coonce had not waived any conflict arising from the prior representation. Defendant then declared he was not waiving any conflict. He further insisted he was not waiving time in order to find new advisory counsel.
In view of the seriousness of the case and the potential conflict of interest, the trial court then discharged Winston as advisory counsel.
On August 29, 1989, Winston moved the trial court to reconsider its ruling. He reiterated he had never received confidential communications from Coonce, the cases on which he was appointed to represent her were factually unrelated to defendant‘s capital case, and the only documents he received in her cases—police reports—were available to any member of the public who cared to review the files. He explained: “I feel no compunction or influence that would keep me from being an aggressive advisory counsel to Mr. Lawley. I certainly wouldn‘t pull any punches and my relationship, such as it was with Ms. Coonce, would not affect my representation or advisory representation to Mr. Lawley in any manner whatsoever.” Winston
In response to inquiry by the trial court, defendant stated he could not judge whether Winston had a conflict, and was not waiving any conflict. The prosecutor opposed Winston‘s reappointment as advisory counsel, citing People v. Easley (1988) 46 Cal.3d 712 [250 Cal.Rptr. 855, 759 P.2d 490], in which a death sentence was reversed due to defense counsel‘s conflict of interest in simultaneously representing a prosecution witness in a civil lawsuit arising out of the same incident (an alleged arson) that formed the basis of the prosecution‘s penalty phase case.
Based on all the circumstances, the trial court concluded Winston had no conflict in representing defendant in an advisory capacity. Consequently, the court reappointed Winston as advisory counsel nunc pro tunc, and Winston served in that capacity for the remainder of the trial.17
Although, as the Attorney General notes, a self-represented defendant has no constitutional right to the appointment of advisory counsel (e.g., People v. Bradford, supra, 15 Cal.4th at p. 1368), when such counsel is appointed the defendant is entitled to expect professionally competent assistance within the narrow scope of advisory counsel‘s proper role (see People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14 [259 Cal.Rptr. 701, 774 P.2d 730]). Professionally competent assistance comprises assistance unaffected by conflict of interest. (Wood v. Georgia (1981) 450 U.S. 261, 271 [101 S.Ct. 1097, 1103, 67 L.Ed.2d 220]; see People v. Easley, supra, 46 Cal.3d at p. 724.) “When the trial court knows, or reasonably should know, of the possibility of a conflict of interest on the part of defense counsel, it is required to make inquiry into the matter.” (People v. Bonin (1989) 47 Cal.3d 808, 836 [254 Cal.Rptr. 298, 765 P.2d 460].) The court, upon inquiring, may
In the present case, the trial court found no conflict existed, presumably based on Winston‘s representation he had received no confidential information from Coonce. Defendant argues this finding was erroneous, pointing out that an attorney-client relationship exists from the moment counsel is appointed by the court (Smith v. Superior Court (1968) 68 Cal.2d 547, 562 [68 Cal.Rptr. 1, 440 P.2d 65] [dicta]), regardless of the absence of substantive communication between attorney and client (cf. Morris v. Slappy (1983) 461 U.S. 1, 14, fn. 6 [103 S.Ct. 1610, 1617, 75 L.Ed.2d 610] [no
C. Trial court‘s failure to inquire into adequacy of resources available to defendant
Defendant contends he was denied his rights under the
As the Attorney General points out, whenever defendant voiced complaints about his lack of access to the jail law library, the means to review tape recordings of interviews with prosecution witnesses, or access to witnesses, the trial court made an effort to address his concerns.
For example, on August 21, 23, and 29, 1989, prior to the commencement of trial, when defendant complained he had not been permitted to use the jail law library, the trial court entered orders that he be allowed access to the library at reasonable times consistent with the jail‘s security requirements.
On September 5, 1989, when defendant requested transcripts of all tapes of law enforcement interviews of potential witnesses in the case, the court noted for the record that defendant would be allowed to have a tape recorder in the jail; defendant acknowledged he wished to listen to the actual recordings, and the court implicitly indicated it would entertain a request for transcripts if defendant subsequently concluded he needed them. When defendant sought the court‘s authorization to interview witnesses adjacent to the courtroom every morning between 9:30 and 10:00, the trial court noted that time was impracticable due to the court‘s schedule, but offered defendant the opportunity to interview witnesses in the jury room between 4:00 and 5:00 p.m. each day. The court also asked the bailiff to inquire what facilities might be available at the jail. Thereafter, the court informed defendant there was a room available at the jail for such interviews; alternatively, in order to
When defendant complained that his investigator, Larry Cahill, was not meeting with him daily, the court corrected his misunderstanding of its earlier order (which had been that Cahill report “directly,” not daily, to defendant) and invited defendant to bring to the court‘s attention any matter defendant needed discovered. Defendant made no further complaints about his interaction with Cahill.
When defendant complained about the inadequacy of the jail law library, the court reminded him that Advisory Counsel Winston could be called on to find materials unavailable to defendant.
In sum, the record reflects that the trial court promptly addressed each complaint defendant raised. Defendant thus fails to demonstrate that the trial court should have inquired more fully into the resources available to him.
D. Trial court‘s failure to terminate defendant‘s in propria persona status at penalty phase
The jury returned its guilt phase verdicts on October 10, 1989. The trial court scheduled the commencement of the penalty phase for October 16, 1989. On the latter date, the court convened outside the presence of the jury, and Advisory Counsel Winston argued for continuance of the penalty phase “for a significant period of time, a few weeks at the minimum,” in order to prepare the defense case. Winston acknowledged defendant did not want a continuance of that length, and, after discussions concerning the prosecutor‘s upcoming trial obligations, including Seabourn‘s trial, the trial court scheduled the penalty phase to begin on October 23, 1989.
On that date, just after the jury was called into the courtroom for the trial on penalty, defendant asked to speak with the trial court outside the jury‘s presence. After the jury was excused, defendant advised the court: “I have at least a philosophical objection to begging these people for my life, and I am not going to do it, and as a result of that perhaps my attorney should, should do this phase of the trial. I am not going to. I am not going to do it.” Winston told the court he had no prior knowledge of defendant‘s request and was not at that time prepared to proceed as counsel. The trial court stated: “I look upon this request as nothing more than an attempt to delay the prosecution in
We conclude the trial court did not abuse its discretion in so ruling.
People v. Windham, supra, 19 Cal.3d 121 (Windham), on which the trial court relied, addressed the situation in which a defendant who is represented by counsel during the first part of a trial invokes his or her right to self-representation midtrial. We held that in order to invoke the constitutionally mandated right of self-representation, a defendant in a criminal trial must unequivocally assert that right within a reasonable time prior to the commencement of the trial. Once a defendant has chosen to proceed to trial represented by counsel, his or her demand to discharge counsel and assume the defense shall be addressed to the sound discretion of the court. (Id. at pp. 127-128.) Factors for the trial court to consider in assessing such a request made after the commencement of the trial include “the quality of counsel‘s representation of the defendant, the defendant‘s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay [that] might reasonably be expected to follow the granting of such a motion.” (Id. at p. 128.)
Defendant‘s case presents the reverse scenario, i.e., a self-represented defendant who, after commencement of the trial, seeks to relinquish responsibility for his own defense and obtain the appointment of counsel to represent him for the remainder of the trial. In this situation, we have indicated that the Windham factors apply and that the trial court must consider the totality of the circumstances in exercising its discretion. (People v. Gallego (1990) 52 Cal.3d 115, 164 [276 Cal.Rptr. 679, 802 P.2d 169].)
Defendant fails to persuade us the trial court abused its discretion. Examining the Windham factors (Windham, supra, 19 Cal.3d at p. 128), we first note that despite what defendant calls the mismatch between himself and the
Second, as to defendant‘s proclivity to substitute counsel, the Attorney General correctly observes that defendant had previously dismissed Ernest Kinney as his attorney over a disagreement concerning the conduct of the defense, and that he often did not follow Advisory Counsel Winston‘s suggestions. Defendant strenuously disagrees that these circumstances yield the inference he had such a proclivity to substitute counsel as to militate against Winston‘s appointment as counsel for the penalty phase. In our view, while the inference might not be compelling, this factor provides some support for the trial court‘s ruling.
Third, as to the reasons for the request, the Attorney General argues that defendant‘s primary reason was his “philosophical objection to begging [the jurors] for [his] life,” while defendant contends the request was made out of a recognition of his incapacity to perform the task. In our view, the record does not support a conclusion defendant was incapable of presenting a penalty phase defense.19
The final Windham factors—the length and stage of the proceedings, and the disruption or delay occasioned by the request—clearly support the trial court‘s ruling. Significantly, defendant allowed two weeks to elapse, from the jury‘s guilt phase verdict to the very day set for the commencement of the penalty phase, without making his request for appointment of counsel, or
III. Guilt phase evidentiary and disclosure issues
A. Exclusion of evidence regarding Aryan Brotherhood contract for murder of Stewart; related prosecutorial misconduct
Defendant contends he was denied his
Immediately after the prosecution rested its case, defendant called his first witness, Monty Ray Mullins. The prosecutor objected to the testimony of Mullins and another proposed defense witness, David Hager, on the ground that “absent an offer of proof, there is absolutely no basis for their testimony.” Declining to rule “in a vacuum,” the trial court permitted Mullins to take the stand. Mullins testified he had met Brian Seabourn in Folsom State Prison and that he had had a conversation with Seabourn about “a homicide.” The prosecutor objected on hearsay grounds to testimony regarding what Seabourn had told Mullins. Defendant asserted Seabourn‘s statement would be admissible as a declaration against penal interest. The prosecutor countered that there was no showing Seabourn was unavailable, to which defendant responded he expected Seabourn to “take the
Defendant‘s offer of proof was that Mullins would testify that Seabourn told him Seabourn had killed someone, an innocent person was incarcerated
The prosecutor contended the proffered testimony was inadmissible for several reasons: Seabourn‘s statements to Mullins and Hager were hearsay; because the statements to Mullins did not identify the victim, and Seabourn never identified the allegedly innocent person in jail, the statements might not even relate to defendant‘s case; in any event, whether someone was innocent was an opinion or legal conclusion; and any letter allegedly mentioning the Aryan Brotherhood was double hearsay.
The court ultimately ruled on the admissibility of the proffered testimony as follows: Seabourn was unavailable for purposes of
Defendant now contends the trial court abused its discretion in excluding the proffered testimony that Seabourn had admitted killing Stewart at the direction of the Aryan Brotherhood and that he had said an innocent person was charged with the crime. The error, defendant further contends, violated his federal constitutional rights as enumerated above.
With respect to the penal interest exception, the proponent of the evidence “must show that the declarant is unavailable, that the declaration was against the declarant‘s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Duarte (2000) 24 Cal.4th 603, 610-611 [101 Cal.Rptr.2d 701, 12 P.3d 1110]; People v. Lucas (1995) 12 Cal.4th 415, 462 [48 Cal.Rptr.2d 525, 907 P.2d 373].) A court may not, applying this hearsay exception, find a declarant‘s statement sufficiently reliable for admission “‘solely because it incorporates an admission of criminal culpability.‘” (People v. Duarte, supra, at p. 611, quoting People v. Campa (1984) 36 Cal.3d 870, 883 [206 Cal.Rptr. 114, 686 P.2d 634].) As the high court reasoned in interpreting the analogous exception to the federal hearsay rule, “[t]he fact that a person is making a broadly self-inculpatory confession does not make more credible the confession‘s non-self-inculpatory nature. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.” (Williamson v. United States (1994) 512 U.S. 594, 599-600 [114 S.Ct. 2431, 2435, 129 L.Ed.2d 476].) Whether a statement is self-inculpatory or not can only be determined by viewing the statement in context. (Id. at p. 603 [114 S.Ct. at p. 2436].)
In view of these concerns, this court “long ago determined that ‘the hearsay exception should not apply to collateral assertions within declarations against penal interest.’ [Citation.] . . . [W]e have declared [
We review a trial court‘s decision as to whether a statement is against a defendant‘s penal interest for abuse of discretion. (People v. Gordon (1990) 50 Cal.3d 1223, 1250-1253 [270 Cal.Rptr. 451, 792 P.2d 251].)
Defendant contends Seabourn‘s statement that he killed Stewart at the direction of the Aryan Brotherhood was sufficiently reliable and critical to the defense that it should have been admitted as a matter of due process. He relies on Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297], a murder prosecution in which the defense sought to establish the culpability of a third party, one McDonald, who had signed a confession to the crime for which the defendant was on trial and who had made similar inculpatory statements to others. The defense called McDonald as a witness, but he repudiated his earlier confession and denied any involvement. Mississippi evidentiary law precluded the defense from either cross-examining McDonald or presenting witnesses who might have discredited his repudiation and demonstrated his complicity. The high court held that, in the circumstances of that case, the combined effect of the state‘s evidentiary rules precluding impeaching a party‘s own witness and limiting admission of hearsay declarations against penal interest operated to foreclose presentation of potentially exculpatory evidence crucial to the defense and thus deprived the defendant of due process. (Id. at p. 302 [93 S.Ct. at p. 1049].)
As we observed in People v. Hawthorne (1992) 4 Cal.4th 43 [14 Cal.Rptr.2d 133, 841 P.2d 118], however, the court made clear that in reaching its judgment it established no new principles of constitutional law, nor did its holding “‘signal any diminution in the respect traditionally
We likewise find no merit in defendant‘s argument that the proffered evidence should have been admitted under the exception for a declaration against social interest. Defendant fails to persuade us that the excluded evidence possessed sufficient reliability to demand its admission. Moreover, as the Attorney General persuasively suggests, for a convicted felon like Seabourn, who, according to Mullins and Hager, was seeking full membership in the Aryan Brotherhood, to claim to be carrying out that organization‘s will in killing Stewart might have been an exercise designed to enhance its prestige or his own. Defendant, at least, fails to cite any evidence in the record suggesting Seabourn‘s statement created a risk of making him an object of hatred, ridicule, or social disgrace in the relevant community.
Defendant further contends the trial court was required to admit the entirety of Seabourn‘s statements to Mullins and Hager under
Because we have found no error in the trial court‘s rulings, we find it unnecessary to address defendant‘s contention that the Chapman standard of
In a related claim, defendant argues the prosecutor engaged in misconduct when, in closing argument, he asserted: “Defense case. What was the defense in this case? A total farce is what the defense was in this case.” Later in his argument, referring to defendant‘s attempts to impeach witnesses and to suggest he was framed because of his aspiration to be recognized as the Beast in Revelations, the prosecutor commented: “Now, take your pick, that‘s the defense. Now, I would submit to you that the defense is ludicrous in this case. There hasn‘t been a defense in this case.” Finally, defendant cites as misconduct the following remarks by the prosecutor in the course of closing argument: “And ask yourself this, what motive did Brian Seabourn or Steve Mendonca or anybody else in that group have to kill Kenneth Stewart? Did you hear anything in this case at all about anybody being mad at Kenneth Stewart for any reason and wanting to kill him? Did you hear that Brian Seabourn was mad at him? Did you hear that Steve Mendonca was mad at him? Anybody else was mad at him? No. You heard that Dennis Lawley was mad at him. Why? Because Dennis Lawley got ripped off with his dope and his money.” And: “Now, nobody else in this case had a reason to kill Kenneth Stewart.”
Anticipating the argument that his failure to object to these remarks and seek a curative admonition at trial resulted in forfeiture of any claim of error on appeal (People v. Cain (1995) 10 Cal.4th 1, 48 [40 Cal.Rptr.2d 481, 892 P.2d 1224]), defendant contends any objection would have been futile, as the state of the evidence before the jury, notwithstanding his effort to obtain admission of the Aryan Brotherhood testimony, supported the prosecutor‘s remarks. That it did so, however, refutes defendant‘s claim that the prosecutor engaged in misconduct, i.e., the use of deception or reprehensible methods to persuade the jury. (People v. Hill (1998) 17 Cal.4th 800, 819 [72 Cal.Rptr.2d 656, 952 P.2d 673].) Because the prosecutor‘s argument constituted fair comment on the evidence, following evidentiary rulings we have upheld, there was no misconduct and, contrary to defendant‘s claim, no miscarriage of justice. Thus, the cases on which defendant relies, People v. Daggett (1990) 225 Cal.App.3d 751 [275 Cal.Rptr. 287] and People v. Varona (1983) 143 Cal.App.3d 566 [192 Cal.Rptr. 44], are inapposite: each involved erroneous evidentiary rulings on which the prosecutor improperly capitalized during his closing argument.
B. Denial of view of defendant‘s cabin
Defendant contends reversal is required because the trial court prejudicially erred in denying his request for a jury view of his cabin pursuant to
As noted ante, at pages 118-120, Anderson testified to certain observations he had made while inside defendant‘s cabin. In particular, Anderson testified that he saw defendant, Coonce and Mendonca enter the cabin‘s bathroom and, through its partly open door, saw a gun change hands.
At trial, defendant requested that the jury be allowed to view the cabin and its interior, on the theory that Anderson could not have seen into the bathroom from where he was sitting and thus could not have seen a gun being passed from one person to another. The trial court asked for an offer of proof regarding whether the cabin had been changed since defendant resided there and whether defendant‘s investigator could go to the cabin, take measurements and prepare a diagram as a defense exhibit, comparable to the existing diagram, People‘s exhibit 33, thus obviating the need to take the jury there. Defendant used a photograph previously taken of the cabin in cross-examining Anderson.
The trial court later inquired whether the parties had any photographs that might clarify the position of the table where Anderson was sitting in relation to the bathroom. The parties agreed there were no photographs illustrating the view from the table toward the bathroom door. The court then directed the prosecution to take several measurements in the cabin to assist it in ruling on defendant‘s motion.
Later, having complied with the court‘s request, Detective Deckard testified he went to defendant‘s cabin and took certain photographs and measurements. The interior of the cabin had changed, in that a wall had been added to create a bedroom area and the furniture was different. Deckard took photographs from the new bedroom area looking toward the bathroom, one of which depicted the prosecutor standing in the bathroom with the door open approximately an inch and a half, as well as a photograph from the bathroom sink looking toward the bedroom. From the approximate location where Anderson had been sitting, Deckard testified he could see the prosecutor standing in the bathroom, and that this was depicted in two photographs he had taken.
Deckard further testified he took several measurements, establishing that the cabin‘s interior was 17 feet from east to west and 12 feet two inches from north to south; the width of the bathroom door was two feet six inches; from the west wall to the west opening of the door was four inches; the extension of the wall on the other side of the door was 12 inches; from the
The trial court denied defendant‘s motion to have the jury view the cabin, finding the jury had an adequate view of the scene from the photographs and diagram as marked with the measurements Deckard had taken. This ruling, defendant contends, was prejudicially erroneous and rendered the eventual verdict unreliable.
A court‘s ruling on a party‘s motion for a jury view is reviewed for abuse of discretion (People v. Kraft (2000) 23 Cal.4th 978, 1053 [99 Cal.Rptr.2d 1, 5 P.3d 68]), i.e., whether the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice (People v. Sanders (1995) 11 Cal.4th 475, 512 [46 Cal.Rptr.2d 751, 905 P.2d 420]). “When the purpose of the view is to test the veracity of a witness‘s testimony about observations the witness made, the trial court may properly consider whether the conditions for the jury view will be substantially the same as those under which the witness made the observations, whether there are other means of testing the veracity of the witness‘s testimony, and practical difficulties in conducting a jury view.” (People v. Price (1991) 1 Cal.4th 324, 422 [3 Cal.Rptr.2d 106, 821 P.2d 610].)
The trial court did not act absurdly or irrationally in denying defendant‘s motion in light of the other available means of testing the veracity of
C. Trial court‘s failure to order disclosure of identity of confidential informant
Two search warrants were issued for the search of defendant‘s cabin in Butler‘s Camp, one on January 20, 1989, requested by Detective Dwayne Hardenbrook of the Modesto Police Department and seeking evidence related to the possession and sale of illegal drugs, the other on January 24, 1989, requested by Detective Gary Deckard of the Stanislaus County Sheriff‘s Department and seeking evidence related to the murder of Kenneth Stewart. Both warrants were based in part on information from the same confidential informant.
Prior to trial, the defense moved for, and the prosecution opposed, disclosure of the informant‘s identity. (See
As defendant correctly argues, the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851 [83 Cal.Rptr. 586, 464 P.2d 421].) An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. (People v. Borunda (1974) 11 Cal.3d 523, 527 [113 Cal.Rptr. 825, 522 P.2d 1].) The defendant bears the burden of adducing “‘“some evidence“‘” on this score. (People v. Gordon, supra, 50
The parties join in requesting this court to review the sealed transcript of the in camera hearing to determine whether the trial court correctly applied the foregoing standard, and we have done so. Based on that review, we reject defendant‘s supposition that the in camera examination of the informant was conclusionary and superficial. To the contrary, the record demonstrates, based on a sufficiently searching inquiry, that the informant could not have provided any evidence that, to a reasonable possibility, might have exonerated defendant.
IV. Guilt phase instructional issues
A. Instruction regarding accomplice testimony
Two possible accomplices testified in this case: Ricky Black, who told the jury of his role in luring Kenneth Stewart into Brian Seabourn‘s car, and Treva Coonce, whose testimony was exculpatory, but who—other witnesses testified—had made out-of-court statements inculpating defendant. The trial court instructed the jury that Black was an accomplice as a matter of law, but that it was for the jury to determine whether Coonce was an accomplice. The trial court read the jury the standard instructions pertaining to accomplice testimony, including the corroboration rule (CALJIC Nos. 3.11, 3.12, 3.13) and the rule regarding distrust of accomplice testimony (CALJIC No. 3.18). Defendant now contends the trial court erred in failing to modify, sua sponte, the standard instructions (1) to make clear that the corroboration rule applies to both in-court testimony and out-of-court statements of accomplices (CALJIC No. 3.11), (2) to add the word “statement” to the instruction defining corroboration (CALJIC No. 3.12), and (3) to clarify that only the accomplice‘s inculpatory statements should be viewed with distrust (CALJIC No. 3.18). The errors, he asserts, violated his
On defendant‘s first point, we agree that People v. Andrews (1989) 49 Cal.3d 200, 214 [260 Cal.Rptr. 583, 776 P.2d 285] (Andrews) supports the application of the corroboration requirement to out-of-court statements as well as testimony.23 As in Andrews, however, the trial court here was not required to modify the standard instruction absent a request by defendant in view of the circumstance that neither the trial court nor the parties suggested
With respect to defendant‘s second point, addition of the word “statement” to the standard instruction would have been legally correct, but defendant cites no authority that would have imposed on the trial court the sua sponte duty so to modify CALJIC No. 3.12. (Andrews, supra, 49 Cal.3d at pp. 214-215; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1142-1143 [36 Cal.Rptr.2d 235, 885 P.2d 1] [the defendant bears the burden of seeking modification or clarification of a legally correct instruction].)
Finally, with respect to defendant‘s third point, in People v. Guiuan (1998) 18 Cal.4th 558, 568-569 [76 Cal.Rptr.2d 239, 957 P.2d 928], this court endorsed the type of instruction for which defendant argues, holding that “the instruction concerning accomplice testimony should henceforth refer only to testimony that tends to incriminate the defendant. . . . Accordingly, we conclude that the jury should be instructed to the following effect whenever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies: ‘To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case.‘” (Id. at p. 569, italics added, fn. omitted; CALJIC No. 3.18 (1999 rev.) (6th ed. 1996).) As indicated, however, we applied the new requirement prospectively only and found no error in the trial court‘s reading to the jury an instruction consistent with then existing law. (Guiuan, supra, at p. 570.) Likewise here, the trial court did not err in instructing the jury consistently with then existing law.
In any event, the jury was made keenly aware of the inconsistencies among Coonce‘s various in-court and out-of-court statements, as well as the prosecutor‘s acknowledgment that Coonce was not always truthful and that it was up to the jury to determine her credibility. Under these circumstances, it is not reasonably probable the jury would have reached a result more favorable to defendant had the trial court instructed it along the lines for which defendant argues. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
Cool v. United States (1972) 409 U.S. 100, 104 [93 S.Ct. 354, 357, 34 L.Ed.2d 335], on which defendant relies, is inapposite. There, in a case in which the defense rested almost entirely on accomplice testimony, the high
B. CALJIC No. 2.11.5
The jury was instructed in the language of CALJIC No. 2.11.5 as follows: “There has been evidence in this case indicating that persons other than the Defendant [were] or may have been involved in the crime for which the Defendant is on trial. Do not discuss or give any consideration to why the other persons are not being prosecuted in this trial or whether they have been or will be prosecuted.” Noting the jury was also informed that Ricky Black and Treva Coonce had received immunity in exchange for their testimony, defendant contends the effect of giving CALJIC No. 2.11.5 in this case was to direct the jury, in assessing the witnesses’ credibility, to disregard their expectations of leniency in testifying for the prosecution.
As we said in People v. Cain, supra, 10 Cal.4th at pages 34-35: “We previously rejected this specific claim under substantially similar circumstances. (People v. Price, supra, 1 Cal.4th at pp. 445-446.) In so doing, we explained: ‘The purpose of the challenged instruction is to discourage the jury from irrelevant speculation about the prosecution‘s reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators. (People v. Cox (1991) 53 Cal.3d 618, 668 [280 Cal.Rptr. 692, 809 P.2d 351].) When the instruction is given with the full panoply of witness credibility and accomplice instructions, as it was in this case, [jurors] will understand that although the separate prosecution or nonprosecution of coparticipants, and the reasons therefor, may not be considered on the issue of the charged defendant‘s guilt, a plea bargain or grant of immunity may be considered as evidence of interest or bias in assessing the credibility of prosecution witnesses. (People v. Sully [(1991)] 53 Cal.3d 1195, 1219 [283 Cal.Rptr. 144, 812 P.2d 163].) Although the instruction should have been clarified or omitted (see People v. Cox, supra, [53 Cal.3d] at p. 667; People v. Williams (1988) 45 Cal.3d 1268, 1313 [248 Cal.Rptr. 834, 756 P.2d 221]), we cannot agree that giving it amounted to error in this case.’ (People v. Price, supra, 1 Cal.4th at p. 446.) Here, as in Price, standard instructions on accomplice testimony were given; the Price analysis is thus dispositive of defendant‘s claim.”
V. Claimed collateral estoppel effect of Brian Seabourn‘s acquittal of first degree murder charge
Defendant argues that, under the collateral estoppel principles articulated in People v. Taylor (1974) 12 Cal.3d 686 [117 Cal.Rptr. 70, 527 P.2d 622], his conviction of first degree murder with special circumstances and conspiracy to commit murder must be reversed because his criminal liability was predicated on the actions of the actual killer, Brian Seabourn, who, after defendant‘s trial, was convicted of only second degree murder (and thus implicitly was acquitted of first degree murder).24
In People v. Taylor, we reiterated the rule that collateral estoppel bars relitigation of an issue decided at a previous trial “if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.” (Taylor, supra, at p. 691.) We identified the purposes of the collateral estoppel doctrine as promoting judicial economy by minimizing repetitive litigation, preventing inconsistent judgments that undermine the integrity of the judicial system, and providing repose by preventing a person from being harassed by vexatious litigation. (Id. at p. 695.) Taylor expressly limited the application of the doctrine to “the particular circumstances of the instant case where an accused‘s guilt must be predicated on his vicarious liability for the acts of a previously acquit[t]ed confederate.” (Id. at p. 698.)
Taylor does not support reversal of defendant‘s conviction in the present case. “‘[I]n cases where there are multiple defendants, or in multiple cases arising out of the same offense, the mere fact standing alone that verdicts are, or appear to be, inconsistent, does not give rise to collateral estoppel. Specific issues may be decided differently in different cases. [Citation.] Likewise, a judgment acquitting one defendant does not generally bar subsequent criminal liability of a codefendant.‘” (People v. Howard (1988) 44 Cal.3d 375, 412, fn. 13 [243 Cal.Rptr. 842, 749 P.2d 279], quoting
Defendant contends his liability for Stewart‘s murder is wholly derivative of that of Seabourn, the actual killer, and he argues he therefore cannot be guilty of a greater crime than Seabourn. First, we note that, as a factual matter, the prosecution argued defendant‘s guilt on the theories that he both conspired with and aided and abetted Brian Seabourn. Thus, relevant to defendant‘s liability were his own actions and state of mind, not solely those of Seabourn‘s, and it would be inaccurate to characterize defendant‘s liability as wholly derivative of Seabourn‘s. Second, we have recently rejected his contention as a matter of law. (People v. McCoy (2001) 25 Cal.4th 1111, 1122 [108 Cal.Rptr.2d 188, 24 P.3d 1210].)
Finally, defendant argues, “How can [defendant‘s] verdict be deemed reliable under the Eighth Amendment when the actual killer, represented by counsel and facing essentially the same evidentiary hurdles, is acquitted of the death qualifying counts for which [defendant] was previously convicted? Whether or not Taylor and the princip[le] of collateral estoppel literally apply to this case is not as critical as what the inconsistency shows about the arbitrariness and unfairness of [defendant‘s] sentence.” Contrary to defendant‘s argument, however, merely demonstrating that Seabourn was subsequently convicted of a lesser offense and therefore received a lesser sentence does not establish that defendant‘s sentence was either arbitrary or unfair. The respective juries in the two cases might have differently assessed the two men‘s culpability in light of defendant‘s role as instigator of the offense and as the person who furnished the weapon used and payment for the crime, and Seabourn‘s jury‘s failure to find the murder was for financial gain may simply reflect lenity. As the Attorney General argues, the different verdicts may reflect the belief that Seabourn would not have murdered Stewart but for defendant‘s desire, motive, weapon and payment. We cannot conclude that the different verdicts in the two cases render defendant‘s verdict constitutionally infirm.
A. Eliciting facts of 1978 brandishing incident of which defendant was acquitted by reason of insanity
Defendant complains the jury considered, as an improper aggravating factor, evidence that in 1978 he assaulted a police officer with a firearm, when in fact, unknown to the jury, he had been found not guilty by reason of insanity of that offense. Defendant suggests the error violated the Eighth Amendment to the United States Constitution and thus requires reversal.
First, we note it was defendant who elicited the facts of the incident during his examination of Dr. Berg, the prosecution having neither charged nor argued the incident in its case in aggravation. Thus, as the Attorney General argues, defendant invited any error that occurred. (People v. Memro (1995) 11 Cal.4th 786, 878 [47 Cal.Rptr.2d 219, 905 P.2d 1305].)
In any event, we reject defendant‘s premise that the jury was not informed of the finding of insanity in the earlier case. In the course of his examination concerning the incident, defendant asked Dr. Berg: “How did all this lead to my being found legally insane?” Dr. Berg summarized for the jury the findings of the psychiatrists who had examined defendant at the time of the trial on the 1978 assault: “Both of them diagnosed paranoid schizophrenia. Both of them said you were delusional. That you had loose associations. That you were not able to connect your ideas properly, and that you had a long history of mental disturbance.” Dr. Berg added that one of the psychiatrists had found defendant legally insane. Defendant further elicited from Dr. Berg that, as a result, he was committed to Atascadero State Hospital, where he spent four years before his release on a successful petition for restoration of sanity. Thus, although the jury was not informed in technical terms of the verdict of not guilty by reason of insanity in the 1978 case, it did learn defendant had been found legally insane and had spent four years in a mental hospital as a consequence.
Moreover, the trial court instructed the jury that “[i]n determining which penalty is to be imposed on Dennis Lawley, you should consider, take into account and be guided by all of the mitigating factors you deem to be applicable, including but not limited to any aspect of his mental condition. Any mental or psychiatric disability that you find is currently present in Mr. Lawley or you find was present at the time of the commission of the offenses charged in this case, may be considered by you as a circumstance in mitigation. [¶] Evidence of the existence of any such mental or psychiatric
In the circumstances, we find it not reasonably possible the jury improperly considered the 1978 brandishing incident in aggravation. (People v. Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135].)
B. Failure to instruct on lingering doubt
The trial court refused defendant‘s requested instruction defining the concept of lingering doubt and informing jurors that if any of them entertained a lingering or residual doubt concerning whether defendant had hired someone to kill Stewart, he or she must consider such doubt as a mitigating factor. Defendant contends the refusal violated his rights under article I, sections 7 and 17 of the California Constitution and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. We have previously held that “there is no requirement, under either state or federal law, that the court specifically instruct the jury to consider any residual doubt of defendant‘s guilt.” (People v. Sanchez (1995) 12 Cal.4th 1, 77 [47 Cal.Rptr.2d 843, 906 P.2d 1129], italics omitted, citing, inter alia, Franklin v. Lynaugh (1988) 487 U.S. 164, 173-174 [108 S.Ct. 2320, 2327, 101 L.Ed.2d 155].) While acknowledging cases so holding, defendant distinguishes them on the basis that defense counsel, in those cases, argued the concept of lingering doubt to the jury. Here, he asserts, he made no lingering doubt argument but instead gave a long summation extolling Brian Seabourn. Thus, the absence of the instruction, coupled with the absence of argument, meant the jury was never introduced to the concept of lingering doubt, resulting in prejudice.
As the Attorney General reasons, however, defendant, having sought the instruction, was well aware of the concept of lingering doubt and could have argued it had he believed it beneficial to himself. That he failed to do so cannot convert the trial court‘s ruling into error. The jury was instructed, moreover, that it could consider the circumstances of the crime (
C. Alleged instructional errors and challenges to death penalty law
Defendant raises a variety of constitutional challenges to the death penalty law and related instructions, many of which, he acknowledges, we have previously rejected.
Defendant further argues that the instruction pertaining to prior criminal activity involving the express or implied threat to use force or violence (
Defendant further argues that the portion of CALJIC No. 8.85 directing the jury to consider all the evidence received during any part of the trial of the case, except as it was otherwise instructed, violated the Eighth and Fourteenth Amendments to the United States Constitution in permitting the jury to consider nonstatutory aggravating evidence. Defendant failed, however, to preserve his claim of error, in that he did not request a limiting instruction. (People v. Quartermain (1997) 16 Cal.4th 600, 630 [66 Cal.Rptr.2d 609, 941 P.2d 788].) In any event, immediately after hearing the instruction he challenges, the jury was told: “You shall consider, take into account and be guided by the following factors, if applicable,” followed by a listing of each of the sentencing factors,
Defendant next contends
Defendant further asserts that all the remaining sentencing factors contained in
Defendant further contends the instructions given in his case violated the Eighth and Fourteenth Amendments to the United States Constitution by failing to require the jury to find aggravating factors beyond a reasonable doubt, and to find that any such proven aggravating factors outweighed the mitigating factors beyond a reasonable doubt. We have previously rejected these contentions, and defendant cites no reason to depart from our prior decisions. (People v. Medina, supra, 11 Cal.4th at p. 782; People v. Hawthorne, supra, 4 Cal.4th at p. 79.) Nor do the Fifth, Sixth, Eighth and Fourteenth Amendments require that the jury base its sentencing decision on written findings specifying the aggravating factors on which it relied.
D. Unreliability of judgment due to defendant‘s insanity
Defendant urges reversal of the judgment as unreliable under the Eighth Amendment to the United States Constitution due to his insanity at the time of trial and at the time of the incident involving the young child, which was offered in aggravation.25 We have previously addressed defendant‘s claims concerning his competency to stand trial (ante, at pp. 125-139) and, because he fails to elaborate on the concept of insanity at the time of trial, we devote no further analysis to the latter point. We therefore focus on the contention that the judgment must be reversed because defendant was insane at the time of the aggravating incident.
The test of legal insanity in California is the rule in M‘Naghten‘s Case (1843) 10 Clark & Fin. 200, 210 [8 Eng.Rep. 718, 722],26 as adopted by the electorate in June 1982 with the passage of Proposition 8. That
With respect to the incident involving the young child, which was introduced in the penalty phase, defendant argues the evidence sufficiently demonstrated his insanity so as to render his sentence unreliable. For this proposition, defendant relies on the evidence that he accused Michael Harris, the father of the three-year-old boy, of teaching his son to “go around sucking guys’ penises.” We observe that defendant failed to object at trial to the admission of this evidence on the basis he now advances and thus has forfeited the claim. (People v. Zapien (1993) 4 Cal.4th 929, 979-980 [17 Cal.Rptr.2d 122, 846 P.2d 704].) Even were we to address the claim, moreover, it lacks merit. While defendant‘s bizarre accusation does dovetail with the homophobic views he aired repeatedly during the trial and suggests the operation of a paranoid or delusional mind, it does not fairly reflect the whole incident. When initially confronted about why he had kicked the boy, defendant told Michael Harris he did not like children and Harris should keep his son out of defendant‘s yard or he would kick him again. Then, while defendant, Michael Harris, Danny Wisner and Sammy Wisner were discussing the incident, defendant suddenly flew into a rage and hit Danny Wisner in the eye. A sheriff‘s officer arrived and took defendant to county jail. A week later, Michael Harris and Danny Wisner were in Harris‘s backyard when defendant, from over the fence, pointed a revolver at them and warned: “I‘m going to get you guys for what you‘ve done to me. I‘m going to get your family.” As the Attorney General observes, the evidence tended strongly to show that defendant acted out of anger and vengefulness rather than an insane delusion. Defendant fails to show that he was insane at the time of the incident and thus to cast doubt on the reliability of the judgment.
E. Disproportionality of sentence
Defendant contends his death sentence is grossly disproportionate to his offense and thus violates the prohibition against cruel or unusual
Although defendant‘s crime is not the most heinous ever to be subjected to the ultimate penalty, we cannot say as a matter of law that his punishment is grossly disproportionate to the gravity of his offense. The jury reasonably might have believed the sorry events in this case never would have occurred but for defendant‘s desire for vengeance, his furnishing of the murder weapon, and his provision of a material incentive to the killer. Defendant‘s contention that facts outside the record would cast doubt on this conclusion cannot be resolved on appeal but must await resolution in collateral proceedings.
F. Death sentence for conspiracy; effect of section 654
Defendant contends his sentence of death as to count II, conspiracy to commit murder, must be vacated as an unauthorized sentence for that crime. (See
DISPOSITION
Defendant‘s request for judicial notice is granted. The judgment is modified as follows: the special circumstance found true as to count II, conspiracy to commit murder, and the sentence of death imposed for the conspiracy conviction are vacated. The trial court is directed to send an amended abstract of judgment to the Department of Corrections reflecting a sentence of imprisonment for 25 years to life, stayed pursuant to
George, C. J., Kennard, J., Chin, J., and Moreno, J., concurred.
BAXTER, J., Concurring.—I agree the death sentence for first degree financial-gain murder should be affirmed, and otherwise concur in the judgment as modified on appeal. In so doing, I express no view on whether, as a matter of law, defendant‘s conviction for conspiracy to commit murder properly triggered its own special circumstance finding and death verdict below. Nor is it clear that the majority is deciding this significant issue on its merits. Nonetheless, I accept my colleagues’ decision to impose (and to stay) an indeterminate life term for the conspiracy count based solely on pragmatic considerations not fully disclosed by the majority opinion.
Providing no analysis of relevant statutory law, defendant claimed on the last page of his opening brief on appeal that special circumstance allegations
However, the punishment intended by the Legislature for conspiracy to commit murder seems to present a close and difficult question. (See
The Legislature may wish to clarify whether, and under what circumstances, the death penalty scheme appearing in
BROWN, J., Concurring.—I disagree with part of the majority‘s reasoning in affirming the trial court‘s exclusion of hearsay testimony concerning the Aryan Brotherhood‘s alleged role in the murder. According to the majority (maj. opn., ante, at pp. 153-154), Brian Seabourn‘s statement that the Aryan Brotherhood hired him to kill Kenneth Lawton Stewart did not meet the second prong of the penal interest exception to the hearsay rule because it
First, a declarant‘s statement may subject him to such a “risk of... criminal liability... that a reasonable man in his position would not have made the statement unless he believed it to be true” even if the statement does not satisfy an element of a crime. (
Second, hearsay statements identifying coconspirators constitute declarations against penal interest if the statements are “an integral part of the statement in which” the declarant “implicated himself” (People v. Greenberger (1997) 58 Cal.App.4th 298, 340 [68 Cal.Rptr.2d 61]), and do not shift blame or minimize the declarant‘s role in the crime (id. at p. 341). Here, Seabourn‘s identification of the Aryan Brotherhood as his hirer was integral to his inculpatory statements—that he performed a murder for hire. His statements did not shift blame or minimize his role in the murder. Thus, the excluded statements are declarations against penal interest. (See id. at pp. 336-341 [finding hearsay statements identifying coconspirators admissible under the penal interest exception].)
Nonetheless, this conclusion does not warrant reversal because defendant cannot meet the third prong of the penal interest exception: “that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Duarte, supra, 24 Cal.4th at p. 611.) At oral argument, defendant made a detailed presentation of the facts surrounding the excluded
Appellant‘s petition for a rehearing was denied March 13, 2002.
Notes
Another prominent theme in defendant‘s voir dire was his effort to be recognized as the Beast in Revelations. Thus, for example, defendant directed the following question to Prospective Juror Be.: “Testimony will be given during this trial during the defense for motive to frame me that I have tried for a number of years to go down in history as a Beast in Revelations. Not saying that I am. I have tried to go into history as the Beast in Revelations, would my having done so prejudice you against me in this case?” And defendant engaged in the following dialogue with Prospective Juror Bl.: “Mrs. [Bl.], the defense will produce witnesses that state that I have for a number of years attempted to go down in history as a Beast in Revelations. Would somebody who would try to go down in history as the Beast in Revelations, would you believe that they must be an evil person?” Prospective Juror Bl. answered: “I don‘t know. I don‘t know what you mean.” Defendant persisted: “If somebody were attempting to, not saying, I make no pretense and never have made pretense of being godsend [God sent] to doing anything. If somebody were trying to be recognized in history as a biblical character to have this part of history viewed as coming to pass, would you say that a person who would try to do that was evil? The Beast in Revelations, there are many conceptions of whether he is evil or not. Would you think he was evil?” The prospective juror did not know what defendant was talking about, but did not believe it would affect her decision on defendant‘s guilt.
Defendant further cites his calling Dr. Trompetter as a witness to establish “a motive for somebody placing that bullet jacket on the head of Kenny Stewart. And that motive is that,
Defendant also cites as evidence of incompetency his penalty phase closing argument, which largely concerned evidence presented at the guilt phase.
At the hearing on defendant‘s motion for new trial, Judge Azevedo remarked: “At no time thereafter [following Judge Pierson‘s finding of competency] was the issue of competency ever brought to the attention of the court, either by the defendant, his advisory counsel or—or anyone else. [¶] I should also note for the record and the record speaks for itself, really, but I personally saw Mr. Lawley every single day during the total—and more, actually, during the total seven weeks that this matter took to try, including the jury selection. And even more times than that because you have all the pretrial motions that we spent substantial time on. And there were matters that the jury did not hear in between the conclusion of the guilt phase and the beginning of the penalty phase. [¶] During all of this time I observed Mr. Lawley here in court, how he conducted himself. In my judgment, considering the evidence involved in the case, he did a very good job in representing himself and he certainly at no time in my opinion exhibited to me any kind of an indication that would have alerted the court to make [its] own individual determination that he was in [any way] unable to represent himself. He conducted himself with dignity. He conducted himself with a great deal of knowledge as to what he could and could not do. I think representing himself as far as this court is concerned he certainly didn‘t show me that he or in [any way] that he was suffering from any kind of a mental disease or mental condition that [a]ffected his ability to represent his own best interests. [¶] He may have made some—some bad judgments on some evidence that he wanted to present, but then that‘s—that‘s what the court‘s for is to rule on the admissibility of any evidence presented to the court. I granted a lot of—I mean I denied a lot of his requests or objections and I granted a fair amount of them. [¶] Certainly nothing that he did indicates to me that he was in [any way] suffering from any mental problem that prohibited in [any way] his representation of himself, which of course he chose personally to do.”
Thereafter, in denying defendant‘s motion for new trial, Judge Azevedo stated: “To my knowledge there never was any other suggestion by any court official in this case that the defendant during either the guilt phase or the penalty phase was unable to assist in his defense or was exhibiting any kind of mental conduct that would have justified an additional or new 1368 proceedings or in any way gave any indication to this court that the defendant was not competent to represent himself, despite counsel‘s affidavit to the contrary that he now feels, by that I mean Mr. Winston feels that at no time was Mr. Lawley competent to proceed with the case.”