Lead Opinion
Opinion
Defendant Larry Douglas Lucas appeals from the judgment of the Los Angeles County Superior Court imposing the death penalty following his conviction by jury of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated) and burglary (§ 459), as well as two special-circumstance findings-multiple murder (§ 190.2, subd. (a)(3)) and burglary murder (id., subd. (a) (17)(vii)). After the jury’s death penalty verdict, the trial court denied defendant’s motion for new trial and the automatic motion to modify penalty. (§ 190.4, subd. (e).) Appeal to this court is automatic. (§ 1239, subd. (b) .)
I. Facts
On October 15, 1986, a letter carrier saw victim Edwin Marriott alive and well. The next day when she tried to deliver mail, the screen door of his house covered the mail slot and no one came to the door to answer her ring, both unusual circumstances. The letter carrier became concerned when the Marriotts failed to come to the door to receive their mail for several days thereafter. She contacted a neighbor, who called the victims’ daughter. Inspection of the home disclosed the bodies of the victims, Edwin and Mary Marriott, aged respectively 85 and 75. They had suffered multiple stab wounds and blunt force traumas.
Mary Marriott was found in her nightgown in the south bedroom. There was blood along the east wall of the bedroom and four bloody finger marks on her bedroom door. A bloody folding knife with a bent tip was found under a pile of bedding and debris. Edwin Marriott was found in the doorway of the north bedroom. There was a bloodstain in the center of the door and bloodstains on a drawer found on the floor of the bedroom. A lamp base and shade on the bedroom floor had bloodstains on them, as did clothing found in the closet. There was a bloody residue in the sink in the sole bathroom of the house and there was also a bloody footprint on the floor.
The Marriott home, usually kept in impeccable order, was strewn with upturned drawers and blood-smeared objects. In the hallway between the
A kitchen drawer was pulled out and stained with blood, as were some of the kitchen cabinets. There were bloody footprints in the kitchen. A small tack hammer with a broken head was found in the kitchen. A key ring with keys was found in a planter outside the kitchen door. The back door of the home, leading into the kitchen, was open and glass from the door was broken out. The back door had a deadbolt requiring a key to open it from either side. There was broken glass both inside the kitchen and outside on the porch area and lawn. The screen door on the back porch was tom above the lock and handle. Blood drops led from the kitchen to the driveway of defendant’s residence next door. There were blood drops on the sidewalk, a smear of blood on the wall of defendant’s garage and some blood on the gate latch leading toward the backyard of defendant’s home.
A search of defendant’s home produced a pair of jeans and boxer shorts with blood on them. Defendant’s fingerprints matched those on the jewelry box and another small cardboard box found inside the Marriott home. Blood found on various items in the Marriott home was consistent with defendant’s blood but not with that of the victims. Blood on the jeans found in defendant’s home was consistent with defendant’s blood, while the blood on the boxer shorts found inside the jeans was consistent with Edwin Marriott’s blood but not with defendant’s.
Defendant produced evidence that he was arrested for being under the influence of drugs on the day the bodies were discovered. At that time he had multiple puncture marks on his arm, some fresh, some older. Defendant also produced the testimony of his employer, who saw him around 10 p.m. on October 15, 1986, the date of the murders. The employer, Mr. Perez, testified he saw defendant with two unfamiliar men, clearly “under the influence of something.” Defendant’s hands were shaking as if he were dribbling a basketball and he seemed “hyperactive.”
Defendant testified that he had lived next door to the Marriotts for many years. He stated that on October 15, 1986, having received a cash payment from his employer, he spent the day with two men, Croffoot and Sandoval, injecting crystal methamphetamine, cocaine and finally heroin in large quantities. Ultimately defendant passed out, and could only recall standing in a dark hall, with faces like “waxy fright masks” coming at him. He tried to push them away and struck at them. He ran, looking over his shoulder. He remembered driving, but could not recall where. He woke up at the beach.
In rebuttal, officers who interrogated defendant after his arrest testified that defendant identified the bloody folding knife found at the Marriotts’ home as his own. He also attempted to hide his wounded hand during the interview. When asked how the Marriotts’ back door window was broken, defendant told the officers he broke the window and took the glass out of the panel. He admitted cutting himself inside the Marriott home, but did not admit killing the victims.
In surrebuttal, defendant said he kept his hands in his pockets during the jail interview in compliance with jail rules. He stated that the officers’ questioning focused on a man named Randy Norris, and that one officer threatened him with the death penalty when he requested an attorney. He merely stated the knife found at the scene was similar to one of his own. He did not admit breaking the window of the back door of the Marriott house and cutting his hand there. He was sick during the interview because he was withdrawing from drugs and had a kidney infection.
In further rebuttal, the interrogating officers denied threatening defendant with the death penalty and said the interview stopped when defendant asked for an attorney. Defendant told them “they" (apparently referring to himself and an accomplice) had used a key to unlock the deadbolt on the Marriotts’ back door.
At the penalty trial, the People offered evidence that when a babysitter defendant had employed approached him about being paid, defendant accused her of stealing his marijuana, punched her, and knocked her off his porch. He also threatened to hire someone to kill her. This conduct resulted in a conviction for assault with a deadly weapon.
Defendant offered no evidence at the penalty trial, having called only his wife, who invoked the marital privilege. The trial court expressed great concern over this development, and caused defendant and counsel to present their tactical reasons for the decision to present no evidence at an ex parte hearing before another judge, the transcript of which was ordered sealed.
The jury returned a verdict of death.
II. Guilt Trial Issues
A. Ineffective assistant of counsel.
Defendant claims he was deprived of the right to effective assistance of counsel, as guaranteed by the Sixth Amendment to the federal Constitution and by article I, section 15 of the California Constitution. He cites several instances of alleged incompetence.
The law governing defendant’s claim is settled. “A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) ‘Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.’ ” (People v. Wharton (1991)
Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel (see People v. Wright
With these rules in mind, we examine defendant’s claims of ineffective assistance.
1. Motion to exclude defendant’s statements.
Defendant claims counsel performed incompetently because, although they moved to exclude his statements to the police on the ground those statements were taken in violation of Miranda v. Arizona (1966)
The record discloses the following factual basis for defendant’s claim. Los Angeles County Deputy Sheriff Kushner testified that at the time of defendant’s confinement at the Santa Ana County jail, defendant admitted he broke the rear door window of the Marriott house and cut his hand inside the home. He also said a photograph of the murder weapon depicted his own knife. Defendant moved, pursuant to section 402 of the Evidence Code, to exclude these statements. As discussed below, the court denied the motion, and the statements were introduced in rebuttal after defendant testified that he had no recollection of being in the Marriott home.
Defendant’s written motion to exclude the statements asserted he was questioned in violation of Miranda, supra,
The trial court’s discussion of the issue is somewhat obscure. At one point the court overruled defendant’s objection and threatened to strike defendant’s testimony unless he answered the questions. Alternatively, the court suggested it would force counsel to withdraw the exclusion motion. Defense counsel responded that the issue of defendant’s drug use before the interrogation had nothing to do with the question whether the officers advised him of his rights or heeded his request to cease the questioning until counsel could be appointed. Rather, counsel asserted the prosecutor’s questions were intended to provide discovery regarding defendant’s drug use. Counsel suggested the issue be limited to the question of the asserted Miranda violation, and that counsel would abandon any voluntariness claim rather than require defendant to answer questions regarding his drug use. Although defense counsel disagreed with the court’s ruling on the scope of questioning open to the prosecutor, counsel said they would abide by the ruling, but “suggested to your honor that any testimony that he gave or any consideration of the issue of whether or not his sickness prevented him from making a valid waiver, that that not be considered or that that be deemed withdrawn.”
The court suggested defendant’s entire testimony should be stricken because defendant could not insulate himself from questioning about his state of mind and ability to recall once he put those matters in issue. By asserting that he recalled that the deputies did not advise him of his rights under Miranda before interrogating him, defendant opened the door to the prosecutor’s questioning. The court accepted the prosecutor’s suggestion that an expert in the field of narcotics addiction be called to testify-whether it would be necessary to know the pattern of defendant’s drug use for some period before the interrogation in order to know whether his drug withdrawal during the interrogation deprived him of the ability to voluntarily waive his Miranda rights. The court also vacated its earlier rulings.
The court heard the testimony of such an expert regarding the effects of drug withdrawal. Because the expert testified that drug withdrawal would have no effect on a person’s ability to perceive and recollect, the court
Nonetheless, the prosecutor suggested, without making a particular motion, that he thought there was authority that would allow him to ask defendant about his drug use in order to explore defendant’s memory of the interrogation. The court apparently was still troubled by defendant’s refusal to testify on the question of his drug use, for a little later in the proceedings, referring to the motion pursuant to Evidence Code section 402, the court noted it had asked counsel to review the case law regarding a witness’s refusal to answer questions on cross-examination. “Mr. Lucas has refused to answer certain questions regarding substance abuse, the question becomes whether the court strikes any of his testimony, part of his testimony, or all of his testimony.” Referring to cases in which courts refused to strike the witness’s testimony when the questions the witness failed or refused to answer on cross-examination were not material, the court decided to strike a limited portion of defendant’s direct examination for the purpose of ruling on the motion to exclude the statements. “It would be the court’s intended ruling to strike from any consideration of the free and voluntariness of the confession anything relating to alleged illness, under the influence of any kind of controlled substance, any nausea, anything whatsoever that would be related to or affected by the use of controlled substances and that in fact subject to either counsel arguing would be the court’s ruling, leave the balance of the testimony going to whether or not the defendant was properly advised at a certain stage of the proceedings. ... In other words, anything relating to his state of mind because of the alleged use of narcotics is stricken because the defense—Mr. Lucas is refusing to answer those questions. . . .” The court concluded it “did what [defense counsel] asked”— apparently referring to counsel’s decision to waive the voluntariness claim rather than direct defendant to answer questions regarding his drug use in the period before his interrogation.
On appeal, defendant concedes defense counsel waived his claim that the statements to the police were involuntary, but he argues that the decision to waive the claim was incompetent. He maintains that counsel should not have objected to the prosecutor’s questions regarding his earlier drug use, and that counsel should have pursued the claim that defendant’s statements were involuntary as the product of drug withdrawal. He argues there could be no rational tactical basis for counsel’s waiver of the voluntariness claim, as any evidence produced regarding defendant’s earlier drug use could only have supported defendant’s defense at trial that he killed in a drug-induced stupor.
Defendant also argues trial counsel should have pursued a claim that defendant’s statements were involuntary because they were induced by a threat of the death penalty, pointing to defendant’s testimony regarding such threats, and Detective Kushner’s testimony that he might have told defendant it was a death penalty case and that it was conceivable, though doubtful, that he told defendant he was going to the gas chamber. Our reading of the record indicates that although counsel initially did seek to exclude the statements on the ground they were involuntary because they occurred during drug withdrawal, counsel never made the argument that they should be suppressed because they were the product of a threat of the death penalty.
The question remains whether counsel’s failure to make the argument was incompetent representation. A statement extracted by official coercion or threat is involuntary and inadmissible under the due process clauses
The record is silent as to counsel’s reasons for failing to challenge the statements on the ground they were induced by threat of the death penalty. Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions. (People v. Zapien, supra, 4 Cal.4th at p. 980.) Here, the record does not demonstrate there could be no rational tactical reason for the omission. Counsel may have concluded there was little or no basis for the claim because it did not appear from defendant’s testimony that defendant made any statements to the police after the alleged references to the death penalty, other than asking to go to the bathroom.
Further, in the context of the hearing, counsel were faced with the court’s threat to strike defendant’s entire testimony unless counsel abandoned the voluntariness claim. As we have noted above, counsel could reasonably decide it was more important to preserve the Miranda claim than it was to pursue the voluntariness claim on either ground asserted here. On the basis of the appellate record, we cannot say that counsel’s decision not to pursue the voluntariness claim on this basis was an incompetent one.
Defendant next claims that the failure of the deputies who questioned him to make a contemporaneous record of the interrogation, along with the
The police, however, had no obligation to make a tape recording of the Miranda advisements or the rest of the interrogation, or to take notes of the interrogation, and their failure to do so did not deprive the People of the ability to establish the voluntariness of any statements. (See People v. Marshall (1990)
More significantly, we disagree with defendant’s premise that an attorney is necessarily incompetent for failing to raise the issue of voluntariness if the appellate record fails to establish the voluntariness of a statement by a preponderance of the evidence. The sparseness of the record on appeal reflects not the merits of defendant’s voluntariness claim but the reality that the issue was not fully litigated below and that the People were not put to their burden of proof. On appeal, we do not examine the existing record to attempt to divine whether the People could have carried their burden of proof had they been put to the test. Defendant fails to recognize that the silence of the record works against him when the claim we review on appeal is not whether the statement was involuntary, but whether counsel was incompetent for failing to claim it was involuntary. Our decisions recognize counsel’s omission legitimately may have been based in part on considerations that do not appear on the record, including confidential communications from the client. (People v. Jenkins (1975)
Defendant next argues his counsel were incompetent in deciding to call him as a witness at trial. Because the prosecutor chose not to introduce
We disagree. Defense counsel have no power to prevent their clients from testifying. (People v. Lucky (1988)
2. Boxer shorts.
Defendant contends trial counsel were incompetent in failing to move to exclude from evidence a pair of bloody boxer shorts found inside some blue jeans that were seized from defendant’s residence pursuant to a search warrant. Defendant claims counsel should have moved to exclude the evidence on the ground an inadequate chain of custody had been established.
The rules for establishing chain of custody are as follows: “ ‘The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [H The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.’ ” (People v. Diaz (1992)
The decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent. (People v. Rodrigues (1994)
The record shows that at trial, Detective Kushner testified that he personally recovered the blue jeans and boxer shorts from defendant’s house when he executed the search warrant. He noted that he only listed the jeans in the return to the search warrant, and that when he examined the jeans at the crime laboratory, he discovered the boxer shorts inside them. As defendant points out, however, at the preliminary hearing, Kushner testified that he did not personally seize the jeans during the search of defendant’s residence. Rather, Kushner testified that during the search of defendant’s home, another deputy handed him a paper bag containing the jeans found in defendant’s residence, and Kushner found the boxer shorts inside the jeans when he and Detective Morck delivered the paper bag to the crime laboratory. A written sheriff’s department report stated that Detective Morck submitted to the crime laboratory a bag containing the jeans and boxer shorts, and the receipt number given these items matched the receipt on the jeans and boxer shorts. A criminalist testified that the blood on the boxer shorts was consistent with the blood of victim Edwin Marriott, but not with defendant’s blood.
We do not see a strong claim that counsel would have prevailed in excluding the shorts on chain of custody grounds. Although the identity of the deputy who actually seized the blue jeans from defendant’s home is somewhat uncertain on this record, there does not appear to be much question that the sheriff’s deputies seized the jeans from defendant’s home dining the search and that thereafter Detective Kushner found the bloodstained boxer shorts inside the jeans when he turned the evidence over to the crime laboratory. Defendant identified the jeans as his.
Even if we concluded defendant is correct that there was a flaw in the chain of custody, the record does not establish that counsel were incompetent in failing to object on this ground to the admission of the evidence. “[T]he mere fact that counsel, had he [or she] chosen another path, ‘might’ have convinced the court to issue a favorable evidentiary ruling, is not enough to carry defendant’s burden of demonstrating [incompetence]. . . .” (People v. Jennings (1991)
As we observed in People v. Diaz, supra,
Defendant also faults counsel for failing to argue to the jury that the evidence of the boxer shorts was unreliable. We reject the claim. Counsel did seek to undermine the impact of the boxer shorts evidence during cross-examination of prosecution witnesses by establishing that the shorts were actually discovered in the crime laboratory, not in defendant’s home, and by eliciting testimony that the blood on the shorts was consistent with the blood of four million residents of Los Angeles County. The impeachment value of these points was relatively slight, however. We cannot fault defense counsel for failing to argue the matter in closing, when the primary defense was that defendant committed the homicides but lacked the mental state necessary to establish murder because of gross excess in ingesting drugs. (See People v. Freeman, supra,
3. Closing argument.
Defendant claims counsel’s closing argument at the guilt trial was incompetent, because counsel conceded that circumstantial evidence was as good as direct evidence, and because counsel admitted there was no other evidence available to support the defense, admitted defendant was at the crime scene and probably committed the murders, and admitted the jury’s revulsion against defendant was justified. He claims counsel could not concede defendant’s guilt without defendant’s express waiver of rights.
Defense counsel must not argue against his or her client (People v. Lang (1974)
Given this evidence, “‘[i]t is entirely understandable that trial counsel . . . made no sweeping declarations of his client’s innocence but instead adopted a more realistic approach .... As stated in a recent case, “good trial tactics demanded complete candor” with the jury. [Citations.] Under the circumstances we cannot equate such candor with incompetence.’ ” (People v. Wright, supra,
Defendant claims counsel argued against him by admitting there was no “mitigating” evidence other than that presented at trial, as follows: “Do you believe for a minute if there wasn’t [sz'c] something very favorable to defendant that I wouldn’t have presented it to you?” The statement does not seem to be an argument against defendant, and in any case, defendant takes the statement out of context. Counsel was arguing that both defense counsel’s and the prosecutor’s arguments were only their own views based on the same evidence available to the jury. Counsel pointed out that neither the prosecutor nor defense counsel had additional evidence, or they would have presented it. In this context, the challenged statement is innocuous.
Defendant also claims counsel argued against him by admitting that the photographs of the victims were gruesome and that the jury would not be human if these photographs did not cause them to feel “revulsion for what happened or an anger toward [defendant]." Again, defendant takes the statement out of context. Counsel made two legitimate points: that the jury should not allow itself to be swayed by its emotion upon viewing the photographs, and that the frenzied attack depicted in the photographs supported the mental defense counsel had offered.
In sum, the record does not support the claim that counsel’s closing argument was incompetent.
Accordingly, we reject all the above claims of ineffective assistance of counsel.
B. Admission of photographs.
Defendant claims the trial court erred in admitting 21 photographs of the victims’ bodies, over defense objection, without adequately performing the weighing process required by Evidence Code section 352. He also argues the court erred in admitting the photographs, taken at the scene of the crime and at the morgue, because they were of little probative value, but were highly inflammatory. He argues finally that admission of the photographs was a violation of his right to a fair trial under the Fourteenth Amendment to the federal Constitution.
Defendant claims that the trial court responded to his motion to exclude the photographs by focusing only on the question whether the photographs were material evidence. He argues that Evidence Code section 352, under which he made the motion to exclude, requires the court to balance, on the record, the probative value of challenged evidence against its prejudicial impact. He also claims the record shows the court gave undue deference to the testimony of a prosecution expert regarding the relevance of the evidence to the prosecution case.
Defendant is mistaken. As we have stated, “the trial [court] need not expressly weigh prejudice against probative value—or even expressly state that [it] has done so.” (People v. Mickey (1991)
The record does not disclose that the court unduly deferred to the opinion of the expert. The expert, the coroner who performed the autopsies on the victims, testified outside the presence of the jury that photographs in which the images were obscured by blood would be less useful to “illustrate” his trial testimony than images in which the blood had been wiped away. He indicated that each photograph would be valuable to demonstrate what injuries had been inflicted and how much blood was lost over what period of time. Thus, the expert offered testimony tending to show the probative value of the photographs. The court did not err in relying on the expert’s testimony for the purpose of fact finding, and it is clear from the record that the court drew its own conclusions on the ultimate question of law presented to it.
Defendant argues the evidence should have been excluded because it was cumulative to the testimony of the coroner. He adds that the evidence must have been unnecessary to illustrate the coroner’s testimony because it was admitted and submitted to the jury eight days after the coroner’s testimony. He also urges the photographs were irrelevant to the charged torture-murder special circumstance because they “merely depicted the [victims’] bodies at the crime scene.” Finally, he argues that the photographs were gruesome, graphic and inflammatory.
We review the trial court’s order denying defendant’s motion to exclude the photographs pursuant to Evidence Code section 352 for abuse of discretion. (People v. Ashmus (1991)
We see no abuse of discretion here. We have viewed the photographs. The photographs admitted at trial are small. They are rather clinical in appearance, and are not unduly gruesome. Both the prosecutor and defense counsel cautioned the jury against being swayed by passion upon viewing the photographs. We do not believe that their number, though relatively large, created such a cumulatively prejudicial impact that it was an abuse of discretion to admit them. The photographs were relevant to corroborate and illustrate the testimony of the coroner concerning the number and nature of
C. Preclusion of defense evidence.
Defendant claims a combination of incompetence of counsel, judicial error and prosecutorial misconduct deprived him of crucial defense evidence in violation of his right to due process, a fair trial and a reliable verdict under the Sixth, Eighth and Fourteenth Amendments of the federal Constitution and parallel provisions of the California Constitution. Specifically, he claims that defense witnesses Croffoot and Sandoval would have testified and presented evidence of his intoxication and unconsciousness at the time of the crimes had not incompetence of counsel and prosecutorial intimidation caused them to invoke their privilege against self-incrimination. Once the witnesses invoked the privilege, he claims, the court should have extended judicial immunity to assure defendant a fair trial. Finally, defense counsel should have offered the witnesses’ out-of-court statements to a defense investigator, statements defendant claims were admissible under the hearsay exception for statements against penal interest. Defendant also claims that as a matter of due process, the evidence should have been admitted even if it was hearsay. He alleges his defense was severely compromised by the loss of independent evidence of his intoxication, evidence he claims was needed to show he lacked the specific intent necessary to establish first degree murder and burglary felony murder.
Outside the presence of the jury, defense counsel stated the witness had been advised by the public defender, and the court asked that the public defender be present. The prosecutor added, “Your honor, it’s also my information, hearsay but my information nonetheless that Mr. Sandoval was convicted on January the 20th of this year of sale of PCP and sentenced to four years in state prison, [f] I don’t know if that’s true or not. I notice he came in the public door rather than the private door. I don’t know if that case is back—” Defense counsel interjected: “You know those early parole problems.” The prosecutor continued: “I also have a copy of the police report [in] which he is one of the named suspects in a conspiracy to defraud by means of bad checks. At one point it was our belief there was a warrant for his arrest on that and I don’t know if there is a warrant in the system now or not.”
The court noted that the witness’s counsel was unavailable until the following week. The prosecutor suggested: “Why don’t we excuse ourselves, you and Mr. Sandoval have a little chat. It may be that Mr. Sandoval voluntarily can convince you there’s no danger of him implicating himself . . . .” The court accepted the suggestion and spoke with the witness in an in camera session the transcript of which was sealed. After this discussion, the court ordered the witness to consult with an attorney in the public defender’s office and return the following day.
Sandoval failed to appear the following day and therefore the court issued a bench warrant for his arrest. The prosecutor asked for a copy of the warrant to enable local police to try to secure Sandoval’s appearance in court. Defense counsel accepted the prosecutor’s offer of police assistance. Apparently Sandoval failed to appear because he was arrested on an outstanding warrant (not the bench warrant) the day he was to appear.
Next, defense counsel proposed to call Croffoot to testify about being with defendant for part of the evening of the crime and either using narcotics or
The following colloquy ensued:
“The Court: [Mr. Ayers has volunteered to advise Mr. Croffoot] regarding his constitutional rights as he is the next intended witness and he was going to testify as I kind of surmise that he was with Mr. Lucas part of the evening in question and was either using narcotics or saw narcotics being used or something to that nature, without going into it in detail, [f] Have you had a chance to interview him?
“Mr. Ayers: Yes.
“Mr. Watson [the prosecutor]: Can I interrupt the court and counsel, and I apologize. I think the record should further reflect I had a chance to talk to Mr. Ayers in the presence of both defense attorneys to impart to him some information about the status of our case, where we are, what’s going on. I told him a little about [Sandoval] and then the defense attorneys had a chance to consult with him without me being present, and I didn’t tell them one thing that I should tell him, and he may already know it, I don’t know.”
The prosecutor then informed Croffoot’s counsel that evidence received at trial indicated Croffoot may have been with defendant up to half an hour before the crimes. He added: “[T]here is no evidence more than one person did it, but, you know, that’s obviously open to speculation.”
The court asked Ayers whether he had consulted with Croffoot, and Ayers responded: “I have talked to Mr. [Croffoot]. From things he has told me about his personal situation I have advised him to invoke [the privilege against self-incrimination].”
Croffoot was called to the stand, and outside the presence of the jury, defense counsel asked him whether he had seen Sandoval and defendant on the date of the crime. He refused to answer. He also invoked the privilege as to questions about what he did all that day, and about the use of controlled substances on that day with defendant and Sandoval. He also invoked the privilege as to questions regarding his activities with Sandoval and defendant up to 10 or 11 o’clock on the night of the crime. The court sustained the exercise of the privilege.
The prosecutor responded that the witnesses might incriminate themselves, not for drug charges, but for being accomplices, since an independent witness saw them with defendant near the time of the crime.
The court found both witnesses had exercised their Fifth Amendment right to remain silent, Sandoval partly by “footwork.” The court denied the motion for mistrial, saying defendant would not benefit from any delay because no competent attorney would advise these witnesses to testify, as they apparently were with defendant up until moments before the crime.
Then Sandoval appeared, and outside the presence of the jury, responded to defense counsel’s question whether he could answer a series of questions relating to his activities on October 15, 1986, in the company of Croffoot and defendant, and about the use of drugs and “various other activities” that day. Sandoval announced that he would refuse to answer on the ground the answers would tend to incriminate him.
1. Defense counsel’s questioning.
Defendant claims his counsel were incompetent because they failed to secure the admission of the testimony of witnesses Sandoval and Croffoot regarding defendant’s drug use in the hours before the crime. As noted above, these defense witnesses asserted the Fifth Amendment privilege against self-incrimination. Defendant faults counsel for failing to demonstrate to the trial court that the defense could propound specific questions regarding the witnesses’ observation of defendant’s drug and alcohol use on the day of the crimes that would not have focused on the witness’s activities and hence would not have implicated the witnesses’ Fifth Amendment rights. Through such a course, he claims, counsel could have secured essential evidence in support of defendant’s claim of intoxication and unconsciousness.
Defendant’s claim depends on the assumption the court would have required the witnesses to answer questions regarding their observation of
Defendant’s claim depends upon an unduly restrictive view of the privilege against self-incrimination. Witnesses may refuse to answer questions calling for a potential link in a chain of evidence of guilt, as well as questions calling for clear admissions against penal interest. (People v. Cudjo (1993)
Further, as we have noted, “our Evidence Code provides that when a witness grounds refusal to testify on the privilege against self-incrimination, a trial court may compel the witness to answer only if it ‘clearly appears to the court’ that the proposed testimony ‘cannot possibly have a tendency to incriminate the person claiming the privilege.’ (Evid. Code, § 404.)” (People v. Cudjo, supra,
Here, defendant proposed to ask the witnesses a series of questions regarding their activities with him on the date of the crime, including their use of controlled substances, their observations regarding his use of controlled substances, and their other activities together with defendant that day. Even if counsel had limited the questions to the witnesses’ observations
Moreover, the prosecutor made it clear that independent witnesses placed Sandoval and Croffoot with defendant at a time close to the time of the crimes, and placed Croffoot with defendant as little as half an hour before the murders. The prosecutor also explained that the physical evidence did not rule out the possibility that more than one person perpetrated the murders. Thus, not only could any question about the witnesses’ observations regarding defendant’s drug ingestion provide a link in the chain of evidence establishing their own illegal use of drugs, but, as the prosecutor chillingly pointed out, any testimony useful to establish defendant’s state of intoxication near the time of the crime could provide a link in the chain of evidence tending to incriminate the witnesses as accomplices or accessories in a double murder. (See People v. Ford, supra,
Defendant’s reliance on Brown v. United States (1958)
The People argue defense counsel had no obligation to ask specific questions and require the witnesses to invoke the privilege as to each, citing People v. Cornejo (1979)
2. Prosecutorial misconduct.
The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. (Crane v. Kentucky (1986)
Defendant claims that through intimidation and threats, the prosecutor transformed Sandoval from a willing witness into one who refused to testify. He points out that when the court first raised the question whether Sandoval should be represented by independent counsel, the prosecutor interjected the assertedly irrelevant information, in Sandoval’s presence, that Sandoval had a recent conviction for narcotics violations and was a suspect in another matter involving bad checks and might be subject to an arrest warrant. Defendant claims this amounted to a threat that if the witness should testify for the defense, “the full force of the People’s prosecutorial mechanism” would be used against him. Defendant also refers to Sandoval’s arrest by the Whittier police, without, however, pointing to anything in the record suggesting that the prosecutor had anything to do with the arrest.
The People counter that defendant waived the issue when he failed to object on the same basis below. (See People v. Benson, supra,
Defendant is unable to carry the first part of his burden, that is, to show that the prosecutor acted improperly. Contrary to defendant’s argument, it is
Similarly, with respect to witness Croffoot, it was the court that initiated inquiry into his exercise of the privilege against self-incrimination and insisted that he consult independent counsel on the point. The prosecutor did not address the witness or threaten prosecution, but merely pointed out to the witness’s counsel the rather obvious point that although there was no evidence that more than one person was involved in the crime, a witness who testified he was with the defendant up to half an hour before the crime could not be ruled out absolutely as an accomplice. As the court later said, no competent attorney would have advised either witness to testify. Again, we see no evidence the prosecutor acted improperly.
In any event, whether or not it was proper for the prosecutor to point out in front of the witness that the latter could not be ruled out as an accomplice under the facts of the case, it is clear that the prosecutor’s comment was not a substantial cause of the witness’s decision to refuse to testify. Rather, the record demonstrates that before the prosecutor made the allegedly coercive statement, Croffoot’s counsel had already advised Croffoot to invoke his privilege against self-incrimination because of information Croffoot related about his “personal situation.”
Defendant may be understood to argue the prosecutor’s refusal to grant Sandoval or Croffoot immunity for murder charges was also misconduct, as it was allegedly unconscionable and interfered with defendant’s right to present a defense. As we have observed, the defendant has no power to force the prosecution to grant immunity to defense witnesses. (In re Williams, supra,
3. Failure to grant judicial immunity.
Defendant argues the trial court should have extended judicial immunity to Croffoot and Sandoval for any potential drug offenses in order to vindicate defendant’s right to present a defense. He argues the issue was
Here, defendant did not request judicial immunity in the trial court. He failed to direct the court’s attention to any authority in support of such immunity, and he did not attempt to meet the standards expressed in the one federal case recognizing such judicial power. (Government of Virgin Islands v. Smith (3d Cir. 1980)
Further, even if the issue were preserved for appeal, we have pointed out that “the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has ‘inherent power’ to confer immunity on a witness called by the defense.” (In re Williams, supra, 1 Cal.4th at p. 610.) The one jurisdiction that recognizes such a power, we have observed, also recognizes that “ ‘the opportunities for judicial use of this immunity power must be clearly limited; ... the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity ....[<][] [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendant’s case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the government’s witnesses.’” (People v. Hunter (1989)
In several recent cases in which this claim has been raised, we have found the defendant failed to meet the stringent offer of proof requirements of the Smith case, even assuming arguendo the doubtful proposition that the trial court has inherent authority to grant immunity. (See, e.g., In re Williams, supra,
Further, defendant cannot meet another element of the Smith standard, that is, “there must be no strong governmental interests which countervail against a grant of immunity.” (Smith, supra,
4. Exclusion of defense investigator’s testimony.
Defense counsel asked to call Lupori, the defense investigator, to testify as to what Sandoval and Croffoot told Lupori about their activities with defendant on the day of the crimes, claiming the constitutional guarantee of due process required the application of an exception to the hearsay rule. Defendant’s offer of proof was that the investigator would testify that Croffoot and Sandoval stated they were continuously with defendant on the day of the crimes, ingesting drugs. The court sustained the prosecutor’s hearsay objection to Lupori’s testimony, also rejecting defendant’s claim that the evidence was admissible despite the hearsay rule as a matter of due process. After trial, defendant moved for a new trial in part on the ground that Lupori’s testimony was admissible because Croffoot and Sandoval’s statements to Lupori were admissible as statements against penal interest under Evidence Code section 1230.
On appeal, defendant argues Lupori’s testimony was admissible because Croffoot and Sandoval’s statements were admissible under Evidence Code
Evidence Code section 1230 provides that the out-of-court declaration of an unavailable witness may be admitted for its truth if the statement, when made, was against the declarant’s penal interest. The proponent of such evidence must show “that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Cudjo, supra,
We conclude the claim of error under Evidence Code section 1230 was waived. Defense counsel’s failure to proffer the evidence under that section deprived the trial court of the opportunity to perform this determination. The claim that the evidence must be admitted as a matter of due process is distinct, and did not serve to preserve the issue. (Cf. People v. Fauber (1992)
With respect to the claim of ineffective assistance of counsel, we cannot say on the appellate record that defendant would or should have prevailed
Defendant now claims Croffoot and Sandoval’s statements to Lupori would have shown the vast amount of drugs defendant absorbed in the day before the crime, and would also have shown how extremely impaired defendant was by this overindulgence. Defendant did not include in his offer of proof to the court, either when the evidence was offered or when the motion for new trial was made, the material he cites now. This material, consisting of an unsworn memorandum by defense counsel, apparently addressed to the prosecutor, and relating what the defense investigator told counsel that Sandoval and Croffoot had told the investigator, was presented to the court during an unrelated hearing after the end of the guilt phase, after this issue was litigated. We cannot rely on unverified double hearsay as an appropriate or reliable basis for evaluating on direct appeal whether
We also reject defendant’s argument that the trial court erred in refusing to permit Lupori’s testimony regarding statements made to him by Croffoot and Sandoval under the authority of Chambers v. Mississippi, supra,
Defendant asks us to hold that the application of the general rule excluding hearsay evidence amounted to a denial of due process in his case. We have observed that: “ ‘[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.’ ” (People v. Hawthorne, supra,
D. Admission of evidence of condition of defendant’s car.
Defendant contends the trial court erred in permitting the prosecutor to cross-examine defendant on an irrelevant matter, namely the condition of his car before and after his arrest.
Defendant testified that as he was somewhat estranged from his wife and family because of his drug abuse, he lived periodically in his car. He testified that on the night of the crimes, he passed out and recalled being in a hall where he was pursued by long faces he thought looked like “fright masks.” He struck out at the faces, then ran off. He next vaguely remembered driving, then woke up in his car which was then parked at the beach. His hand was stuck to the seat with blood, but there was no other blood on his person.
On cross-examination, defendant testified his car was messy. He explained he believed his car had been impounded, but that it had been found far from the beach. He had no idea how it got there. He had heard that when the car was recovered, it was completely clean, and had nothing in it. When the prosecutor asked how this occurred, defense counsel objected on the ground of lack of foundation. The court did not rule on the objection but asked defendant if he knew how the car got moved and cleaned, and defendant said he had no idea. Defendant identified photographs of the car. Defense counsel objected at the bench “to this entire line of questioning, particularly the photographs, and apparently there is in [the prosecutor’s] mind some way of laying a foundation for it, but apparently this is the car that was taken after he was arrested and found some miles away some days away [sic], and his cross-examination is seeking to hold him responsible for it in some fashion. [^Q I object to this whole line of questioning and the photographs.” The court asked the prosecutor: “Without any further foundation how is it relevant? . . . You have basically a car that’s being introduced that’s been cleaned by somebody.” The prosecutor explained that although the car looked lived in when defendant was arrested, “It’s my opinion out of guilty knowledge of what he did he called from the Orange County Jail to somebody, told them where the car was, told them to go get
The People contend defendant cannot now claim the court erroneously admitted irrelevant evidence because defendant objected to the line of questioning on the ground of lack of foundation, not irrelevance. As we have noted, however, the trial court evidently understood the objection as encompassing a relevancy claim, so we will reach the merits.
Of course, only relevant evidence is admissible. (Evid. Code, § 350.) Sometimes the relevance of evidence depends on the existence of a preliminary fact. (Evid. Code § 403, subd. (a); 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1718, p. 1677; see, e.g., People v. Collins (1975)
The trial court has the preliminary, but not the final, authority to determine the question of the existence of the preliminary fact. Unlike in other situations (see, e.g., People v. Alcala (1992)
In the present case, the prosecutor was entitled to show, if he could, that defendant’s testimony at trial that he was unconscious and had no recollection of the crimes was not credible. Accordingly, if the prosecutor had evidence that defendant actually had some guilty knowledge or recollection of the crimes, he would be entitled to present it. Evidence that defendant arranged to have his car, which the trial evidence indicated could well contain bloody evidence of the crimes, moved and cleaned before the police could inspect it, would tend to prove such guilty knowledge. The prosecutor had several potentially incriminating facts: defendant periodically lived in his car and it was messy when he was arrested; by defendant’s testimony he left the scene of his “fright mask” nightmare in his car; the crime was a bloody one; and the car disappeared after defendant’s arrest and was very clean when it was discovered. In order for the first and last of these facts to be relevant to show defendant’s guilty knowledge, the prosecutor needed to present some evidence of a preliminary fact, that is, that defendant was responsible for the removal and cleaning of the car. Thus, as long as he had a good faith belief in the existence of the preliminary fact (see People v. Warren (1988)
Defendant denied causing the car to be moved and cleaned, however, and no other evidence was forthcoming to establish the preliminary fact of his involvement. Unless the court concluded the jury could find it was more likely that defendant, who presumably had the keys, was responsible for having the car moved and cleaned, than that a car thief did so, the court probably should have instructed the jury to disregard the proffered evidence regarding the condition of defendant’s car. (Evid. Code, § 403, subd. (c)(2)
E. Claims of instructional error.
1. Unconsciousness.
Defendant claims the trial court erred prejudicially by misstating the unconsciousness instruction. (CALJIC No. 4.30.) The pattern instruction states in relevant part: “Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged offense for which he is here on trial. If, after a consideration of all the evidence you have a reasonable doubt that the defendant was conscious at the time the crime was committed, he must be found to be unconscious.”
Defendant points out that the original reporter’s transcript of the court’s delivery of the jury instructions reflects that the court interjected the word “No” at the beginning of the instruction, so that it appeared the jury was instructed that no evidence of unconsciousness had been presented. An instruction that no evidence of unconsciousness had been presented would be in error, of course, given defendant’s testimony.
Defendant contends that the People’s motion to correct the record was untimely, that the trial court based its ruling on a misunderstanding of the court reporter’s testimony and that we should remand the matter for a full evidentiary hearing.
It is true that the People’s motion was untimely under rules 39.5(d) and 35(c) of the California Rules of Court, governing motions to correct the record on appeal. Sufficient justification for relief from default existed, however, as the error consisted of the omission of a single word in a transcript of thousands of pages, and would only be noticed by the People after the defendant raised the matter in his opening brief. Further, defendant does not show how this tardy application to correct the record prejudices him or denies him the right to an effective appeal. Contrary to defendant’s contention, the court reporter was confident, despite the passage of time, simply from a review of the physical appearance of her original notes, that her finger had mistakenly brushed the key on her machine for the word “no” during the giving of the relevant instruction. She was certain that the computer that transcribed her notes mistakenly entered the word, although it was obvious she had not intentionally stricken the key. She explained that her notes, and indeed, any reporter’s notes, were filled with these “shadow” keystrokes, which usually but not always are corrected when the reporter proofreads the computer transcription. The reporter was absolutely confident there was an error in the transcription, and that the court did not utter the word “no.”
We see no abuse of discretion in denying the request for a further continuance. The court continued the matter once to give defendant an opportunity to gather evidence. He failed to do so, and though he asked for a full hearing, failed to explain what further evidence was needed or why it would be forthcoming only after a further continuance.
We conclude the record demonstrates that the court did not misinstruct the jury with respect to the defense of unconsciousness.
2. Flight instruction.
Defendant claims the court erred in instructing on flight pursuant to CALJIC No. 2.52. In addition, he claims the prosecutor induced the court to commit this error by mischaracterizing the evidence of defendant’s flight.
CALJIC No. 2.52 informed the jury that “[t]he flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”
We have observed that “[a] flight instruction is proper whenever evidence of the circumstances of defendant’s departure from the crime scene or his usual environs, . . . logically permits an inference that his movement was motivated by guilty knowledge.” (People v. Turner (1990)
Defendant’s claim that his departure belonged to a pattern of drug binges and was not occasioned by guilty knowledge merely suggests an alternative interpretation of the evidence. There was sufficient evidence, nonetheless, from which a jury could infer he fled out of guilty knowledge. The instruction properly left it to the jury to determine which inference was more reasonable.
Defendant claims the prosecutor misled the trial court on the question whether it should deliver the flight instruction by claiming the instruction should be given because defendant’s employer testified that defendant was “home every night all the time but didn’t come home the night of the killings and wasn’t there the following morning.” The claim of prosecutorial misconduct was not raised below and was therefore waived. (People v. Rowland, supra, 4 Cal.4th at pp. 274-275.) Defendant claims counsel’s failure to object was ineffective assistance of counsel. We disagree. The court was quite capable of considering the evidence in support of the instruction itself, and in fact, was not convinced by the prosecutor’s allegation, but reserved its ruling on the propriety of the instruction. When the matter came up again, the prosecutor claimed the instruction was appropriate, relying on evidence of the bloody pants in defendant’s home, and on the testimony of employer Perez that defendant was regularly employed on October 15 but did not check in for work on the 16th, that when Perez called defendant’s home, he found defendant had not spent the night at home and that defendant did not reappear for work. This was not a mischaracterization of the record.
F. Alleged prosecutorial misconduct in closing argument.
Defendant claims the prosecutor committed misconduct in mischaracterizing the serological evidence in closing argument. We first review the factual background of the claim.
The prosecutor’s criminalist analyzed the genetic make up of enzymes and proteins in blood samples he received from Edwin and Mary Marriott and from defendant. He testified that only .000099 percent of the population have genetic markers like Edwin Marriott, while .00042 have genetic markers consistent with Mary Marriott’s. He testified that .000047 percent of the
On cross-examination, the expert testified that not all the relevant genetic markers were present in the bloodstains on the jeans and boxer shorts. Accordingly, he could only say that the blood on the jeans could have been contributed by 900,000 persons out of the Los Angeles population of 8,000,000—including defendant. Similarly, because some of the genetic markers could not be ascertained as to the blood on the boxer shorts, the expert could only say that the blood could have been left by anyone in half the population of Los Angeles—including Edwin Marriott. He could not testify that the blood on the jeans belonged to defendant.
On redirect, the expert said in none of his analyses of the items found at the crime scene did he find any indication there was a fourth donor of blood. If it were assumed that only Edwin and Mary Marriott and defendant bled on the items analyzed, he testified that only defendant could have bled on the jeans and only Edwin Marriott could have bled on the boxer shorts. On recross-examination, the expert said that he had no basis for assuming only three people contributed the blood “specimens,” and that he did not collect the jeans and boxer shorts from the scene.
Defendant complains the prosecutor mischaracterized the evidence by asserting in closing argument that it was certain who bled on the articles recovered from the Marriott and Lucas homes and who bled in certain places within the Marriott home. He claims the prosecutor misled the jury about the statistical significance of the serological evidence, mischaracterizing his own expert’s testimony. Specifically, he points to the prosecutor’s argument that the serological evidence proved that the “paper towel had Mr. Lucas [’s] blood on it, for sure a hundred percent” and that “the blood on the plaid shirt hanging in the closet is the defendant’s” and “[t]he blood in the bathroom where he washed his hands . . . and the blood in the kitchen . . . Larry Lucas’[s] blood.” Defendant also complains that the prosecutor said: “[t]he blood on the blue jeans, Larry Lucas’[s] blood; the blood on the underwear,
Defendant also complains that the prosecutor based the above arguments on the erroneous assumption that only three persons were present and contributed the bloodstains, arguing that the jury was “bound by the evidence, and the only evidence you’ve heard is that blood came from Edwin Marriott, blood came from Mary Marriott, and blood came from the defendant when he cut his hands. That’s it. There’s no evidence first of all that anybody else was even present, but if there was anybody else present there’s no evidence that anybody else bled. The serologist said he saw no blood samples suggesting that there was a fourth type of blood, so you only have three to pick from.”
Defendant acknowledges that he failed to object to the prosecutor’s argument at trial (see People v. Hardy (1992)
We see no reason why a prompt objection and admonition could not have cured the asserted harm of these remarks. (See People v. Wharton, supra,
In any event, we see no misconduct. Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Kaurish, supra,
Whether the inferences drawn by the prosecutor were reasonable was a question for the jury to decide. (People v. Edwards, supra,
Defendant also claims the prosecutor committed misconduct during argument by inviting the jury to disregard the law of unconsciousness. He refers to the following two statements: “Intoxication can come into effect in one more area and that is it can make you unconscious. I don’t know what your reaction is when you hear that there’s a rule that says that if you’re so intoxicated that you’re unconscious, that you’re not guilty of these crimes.” Further, ”[a]n unconscious man would probably stumble through the front door, assuming unconscious people even commit burglaries. I think the whole notion is silly . . . .”
When we examine the statements in context, it appears that the prosecutor was making a permissible argument that defendant’s claim of unconsciousness was implausible in light of the physical evidence that whoever broke into the Marriott home did so methodically. That is, the first statement to which defendant now objects appeared in the context of the following argument: “When you sit and think about what was done, how the house was entered, glass was broken, defendant climbed in, murdered these people, searched their house, tore it apart, when you look at all that went on—I think sometimes you have to think you’re in a dream world if somebody says to you an unconscious person did this, you’ve got to ask yourself what are they talking about, unconscious? You hear these words, to me you almost have got to think you’re in the wrong courtroom.” As for the second statement to which defendant objects, it was extracted from the following statement: “The first thing we have is the theft. He’s sitting there in his car making up his mind, T want more money or more dope, I’m going to steal.’ There’s circumstantial evidence of that; he’s using his head, [f] The door he picks. Would an unconscious man go around to the back where he couldn’t be seen in a secret location? No, that’s a conscious man. An unconscious man would probably stumble through the front door, assuming unconscious people even commit burglaries. I think the whole notion is silly, but he picks the best door, the smart door where he’s out of sight.”
Viewing the statements in the context of the argument as a whole (see People v. Gonzalez (1990)
G. Cumulative error.
Defendant claims the cumulative prejudice of the asserted judicial error, prosecutorial misconduct, and ineffective assistance of counsel requires
III. Penalty Trial Issues
A. Capital charging decision.
At trial, defendant sought discovery pursuant to Murgia v. Municipal Court (1975)
On appeal, defendant does not claim invidious discrimination or vindictive prosecution. Rather, relying on the state and federal Constitutions, he now claims he was “deprived of procedural due process in the charging decision because the factors deemed by the [district attorney] to be essential in determining [whether to charge special circumstances and seek the death penalty] were not properly applied in his case.” Specifically, he claims the trial prosecutor committed misconduct in providing his supervisors in the district attorney’s office with misleading or erroneous information that may have influenced the charging decision under the office’s internal charging standards. For example, defendant claims the prosecutor told his supervisor one of the victims was killed with her sleeping mask on, although neither the crime reports nor the trial evidence contained any evidence she was wearing a sleeping mask. Without such misleading or false information, defendant claims, the district attorney’s office might not have elected to charge special circumstances and seek the death penalty in this case. He relies on Hicks v. Oklahoma (1980)
Defendant did not allege prosecutorial misconduct in this connection at the trial court. Accordingly, the claim of misconduct was waived. (See
In any event, even if we were to reach the merits, we find no legal support for defendant’s claim that he had a right to have the charging decision based upon all the evidence reasonably available to the district attorney’s office and upon an accurate presentation of the evidence. Prosecutors have broad discretion to decide whom to charge, and for what crime. As we have observed, “[i]t is well established, of course, that a district attorney’s enforcement authority includes the discretion either to prosecute or to decline to prosecute an individual when there is probable cause to believe he has committed a crime.” (Davis v. Municipal Court (1988)
Defendant seems to argue that the guaranty of due process assures his right to have the prosecutor make the initial capital charging decision according to certain standards, and that the alleged misconduct of the trial
Although defendant does not explain his citation to Hicks, we surmise that he wishes to draw a parallel between the function of the jury in that case and that of the prosecutor vested with the charging decision in his case. In Hicks, the defendant had a right to a jury that properly exercised its sentencing discretion, and presumably defendant is claiming he has a due process right to have the prosecutor properly exercise his charging discretion in this case.
Defendant’s claim that he has a right to have the prosecutor make the initial charging decision according to certain nonarbitrary standards has been rejected. (People v. Keenan, supra,
1. Denial of right to impartial jury—limitation on examination of Juror Bojorquez.
The court conducted sequestered voir dire of prospective jurors, limiting its initial examination to “death qualification,” that is, a determination whether each prospective juror had such conscientious or religious scruples about capital punishment that would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (Adams v. Texas (1980)
Defendant argues he was not afforded an adequate opportunity to examine Juror Bojorquez, in violation of the right secured by the Fourteenth Amendment to the federal Constitution to exercise his challenges for cause intelligently. (Morgan v. Illinois (1992)
In a capital case, of course, the court must permit counsel to ask each juror whether he or she believes the death penalty should be imposed automatically upon conviction of a capital offense. (Morgan v. Illinois, supra, 504 U.S. at pp. 735-736 [119 L.Ed.2d at pp. 506-507].) As a general matter, however, as we have recently declared, “ ‘[T]he scope of the inquiry permitted during voir dire is committed to the discretion of the court.’ ” (People v. Champion (1995)
In this case, contrary to defendant’s claim, the trial court did not prevent inquiry into the juror’s beliefs regarding automatic imposition of the death penalty for capital crimes. The question was posed more than once. Nor did the court abuse its discretion by unduly restricting voir dire of Juror Bojorquez. (See People v. Chapman (1993)
Defendant argues that even if the court did not improperly limit voir dire, it erred in refusing to grant his challenge for cause as to Juror Bojorquez. The People correctly argue defendant waived the claim because he failed to exhaust his peremptory challenges. Defendant’s right to a fair and impartial jury is not compromised as long has he could have secured the juror’s removal through the exercise of a peremptory challenge. “To preserve a claim of error in the denial of a challenge for cause, the defense must either exhaust its peremptory challenges and object to the jury as finally constituted or justify the failure to do so.” (People v. Kirkpatrick (1994)
Defendant claims in the alternative that any failure to exhaust peremptory challenges was ineffective assistance of counsel. The claim is meritless; the decision whether to accept a jury as constituted is obviously tactical, and nothing on the appellate record demonstrates counsel’s tactical choice here was either unreasonable or prejudicial. In fact, were we to reach the merits of the claim that the court should have granted defendant’s motion to exclude Juror Bojorquez for cause, we would reject it. Although at one point the juror stated she thought she “probably” would vote for the death penalty for any multiple murder, she also protested that she could not say she would impose the death penalty in every such case, that she would “have to listen to everything that went on,” that she realized jurors “have to listen to the circumstances,” and that she would be willing to listen to evidence regarding the defendant’s background and keep an open mind in making the penalty determination. She did not express views “indicative of an unalterable preference in favor of the death penalty” (People v. Crittenden (1994)
Defendant also argues in conclusory terms that the trial court should have excused eight other jurors for cause on its own motion. He claims these jurors were biased in favor of the death penalty, because they responded in the affirmative to a questionnaire asking whether they thought the state should execute anyone convicted of an intentional murder during a burglary. As we have noted above, however, defendant did not exhaust his peremptory challenges or express dissatisfaction with the jury, and his claim may be rejected because he fails to demonstrate the court’s inaction prejudiced him. (People v. Kirkpatrick, supra,
Assuming arguendo the issue was preserved, we reject the claim on the merits. Defendant’s claim of juror bias is so insubstantial that we need not determine the extent of the trial court’s power or obligation to excuse jurors on its own motion.
2. Request for new penalty jury.
After the guilty verdict was entered, defendant moved that a new jury be impaneled for the penalty trial, arguing that the court had conditioned the jury during voir dire to expect that defendant would present evidence in mitigation—an expectation the defense would disappoint, as it had determined to present no evidence. Defendant argues that the trial court’s refusal to impanel a new jury for the penalty trial was an abuse of discretion, particularly as it was the court’s error during voir dire that caused the potential for prejudice.
The record discloses that during sequestered voir dire of several panels of prospective jurors and of two individual prospective jurors, the court explained the procedure involved in a capital trial, including the penalty phase of trial, noting that the prosecution would present evidence in aggravation, the defense would offer evidence in mitigation, and the court would instruct the jury as to the rules that would guide their penalty determination. Seven of the jurors who sat on defendant’s jury heard this description. Defendant claims he objected to the court’s characterization directly, but points to a portion of the record in which defendant objected to the prosecutor’s use of questions that assumed defendant would present evidence in mitigation. The court explained, in response, that both counsel had a great deal of leeway in framing their questions. Defense counsel repeated he might or might not present evidence in mitigation, and the court directed him to prepare a typed statement signed by both counsel stating their reasons for not putting on any evidence in mitigation. Soon thereafter, defense counsel observed that the court had talked to two of the jurors about evidence in mitigation, and pointed out, “that may or may not be presented.” The trial court simply called the next juror. Defendant claims he repeatedly objected to the court’s repetition of his early explanation of penalty phase procedure but he offers no citations to the record in support, nor do we observe any further objections.
We review the trial court’s decision not to impanel a second jury for the penalty trial under an abuse of discretion standard. (People v.
Here, defendant claimed he needed a new jury to avoid the potential for prejudice caused by the trial court’s statements during voir dire that the defense would present evidence in mitigation at the penalty trial. He feared the jury would “hold it against defendant” that he presented no mitigating evidence. Defendant arguably could have avoided this potential by making a clearer contemporaneous objection to the court’s statements. In any event, the potential for prejudice arising from the court’s statements on voir dire is minimal.
As in other cases in which we have analyzed the harm of misstatements of law during voir dire, the statements on voir dire long preceded the penalty phase, when the jury’s attention would be focused on its sentencing responsibility. (See People v. DeSantis (1992)
C. Ineffective assistance of counsel.
1. Failure to challenge Juror Melba Thompson for cause.
Defendant contends trial counsel provided ineffective assistance because they failed to challenge Juror Melba Thompson for cause. Defendant claims that the juror’s views on capital punishment were so extreme that they would substantially impair her performance as an impartial juror. He also claims she disclosed she would be excessively deferential to the testimony of experts. He complains that instead of moving to excuse the juror, counsel “in effect rehabilitated Ms. Thompson by getting her to change some of her answers.”
Defendant was entitled to trial by an impartial jury, “made up of jurors who will not automatically vote for the death penalty, but who will consider the mitigating evidence presented.” (People v. Crittenden, supra, 9 Cal.4th at p.121; see Morgan v. Illinois, supra, 504 U.S. at pp. 729, 735-736 [119 L.Ed.2d at pp. 502-303, 506-507].) Those eligible to serve, however, include those who may favor the death penalty. (Lockhart v. McCree (1986)
As we have noted above, a juror is subject to challenge for cause because of his or her views on the death penalty “only if those views would ‘prevent or substantially impair’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.” (People v. Crittenden, supra, 9 Cal.4th at p.121, quoting Wainwright v. Witt, supra,
Considering these responses, counsel could competently conclude that the juror’s views on the death penalty would not “ ‘prevent or substantially impair’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.” (People v. Crittenden, supra,
Defendant also fails to show that the record “affirmatively discloses” there was no rational tactical purpose for accepting Ms. Thompson on the jury despite her favorable views on the death penalty and her deferential regard for expert opinion. (People v. Cox (1991)
Defendant also argues in summary terms that counsel were incompetent for failing to move to exclude eight other jurors for cause. We have already rejected the claim the court should have removed the jurors on its own motion, concluding there was little basis for concluding the jurors had expressed views that “would ‘prevent or substantially impair’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.” (People v. Crittenden, supra, 9 Cal.4th at p. 121, quoting Wainwright v. Witt, supra,
2. Failure to assert claim of jury misconduct.
Defendant asserts defense counsel should have moved to excuse Juror Thompson from the jury for misconduct. The record reflects that after the guilt verdict, just before the prosecutor presented evidence at the penalty trial, a person approached Juror Thompson in the hall outside the courtroom and started talking about a “boy" and said that he was a “bad boy” who had a violent temper. He said there had been a trail of blood around the house after the crime, and at this point, Ms. Thompson realized he was talking about the case in which she was a juror. She surmised that he was a neighbor of defendant’s. She told him she could not discuss the case, and terminated the conversation.
The court examined Thompson about this incident. She assured the court that she did not hear anything that would cause her to have an adverse reaction toward either side in this case, and that the conversation did not affect her thinking about the case. She told defense counsel she was bothered by the conversation because she knew it was against the rules. The court admonished her not to discuss the matter with any other juror. The court asked counsel if there was any challenge, and counsel said no, though counsel “might want to raise it later when we find out who this individual is.” No later challenge ensued.
It is true that a juror’s “inadvertent receipt of information outside the court proceedings is considered ‘misconduct’ and creates a presumption of prejudice, which, if not rebutted, requires a new trial.” (People v. Zapien, supra,
Defendant claims counsel also failed to act reasonably diligently because, ignoring the stage of trial and the aggravating evidence Ms. Thompson had just heard, defense counsel failed to probe the impact of the characterization of defendant as “bad” and “violent.” Our review of the record, however, indicates counsel did examine the juror on the impact of her conversation. That counsel did not use particular words in doing so does not establish incompetence.
D. Court’s discharge of Juror Noone.
Defendant argues the court abused its discretion in excusing Juror Noone before the commencement of the penalty trial. The record shows that after the guilt verdict the court announced the penalty trial would not start for two days. Juror Noone reminded the court she had a vacation planned, as she had mentioned during voir dire. It seemed likely the penalty trial would require the juror to cancel her vacation. Defense counsel said they could not stipulate to excusing the juror, as they did not know whether she had paid for tickets or whether she could change her reservations, but that if the court thought after questioning that she should be excused, “that would be your decision.” Upon questioning, the juror said she would forfeit some money if the vacation were canceled, though she could not say how much. She also said her vacation could not be rescheduled for many months because of her work and school schedule. She said she could be fair even if she had to cancel her vacation. The court “excused” the juror, explaining “clearly she meets the criteria that the court has used throughout excusing jurors. More importantly, in terms of financial loss and previous commitments, I am somewhat concerned about the fact that although she says it will not impact her deliberation, this is her only break in an otherwise rather full work/ school schedule, and it seems to me that it really can’t help but impact her
Defendant claims it was an abuse of discretion to excuse the juror so late in the proceedings for such a trivial cause.
The parties have framed the issue as one involving the court’s discretion to excuse a juror for personal hardship, a determination that is reviewed for abuse of discretion. (See Code Civ. Proc., § 204, subd. (b); People v. Mickey, supra,
As the People point out, defendant did not argue at trial that it was too late in the proceedings to discharge Ms. Noone for hardship. We have held that “[a] defendant may properly raise in this court a point involving an allegedly improper excusal for undue personal hardship only if he made the same point below. The requirement of a contemporaneous and specific objection
The court’s decision whether to discharge a juror under section 1089 is reviewed for abuse of discretion. (People v. Beeler (1995)
We find no abuse of discretion. Although the juror stated the cancellation of her vacation would not affect the discharge of her duties as a juror, her behavior and demeanor supplied substantial evidence to the contrary. She had repeatedly brought the problem of the vacation to the court’s attention, exhibiting concern and agitation over it. The court determined that the juror’s demeanor indicated her ability to deliberate fairly would be substantially impaired if the penalty trial caused her to cancel her vacation. (See People v. Beeler, supra, 9 Cal.4th at p. 989 [recognizing importance of court’s observation of juror’s demeanor in reviewing decision to discharge].) We also observe that the juror would have felt some pressure to bring the penalty deliberations to a speedy close in order to preserve her planned vacation. It was not an abuse of discretion to discharge her.
E. Gruesome photographs.
Defendant claims the trial court erred in admitting at the penalty trial the same assertedly gruesome photographs of the victims’ bodies that were admitted at the guilt trial. He also claims the photographs were wholly irrelevant at the penalty trial, as the torture-murder special circumstance had been found not true. He claims the admission of this evidence was a violation of Evidence Code section 352 and a violation of his right to due process and to a reliable penalty determination under the Eighth and Fourteenth Amendments of the federal Constitution.
F. Assertion of marital privilege.
Defendant’s wife, Darlene Lucas, invoked the marital privilege and refused to testify at the penalty trial. Defendant argues (1) the court erred in permitting her to invoke the privilege, and (2) defense counsel provided ineffective assistance of counsel in failing to point out that the marital privilege only permits the spouse to refuse to give testimony against his or her spouse. His wife’s testimony, defendant claimed, would have supported his defense.
Although a person generally has no privilege to refuse to testify in favor of his or her spouse in a criminal proceeding, Evidence Code section 970 provides that a married person has a privilege not to testify against his or her spouse who is a party in any proceeding. The privilege belongs to the married person, not the spouse who is the party. (Cal. Law Revision Com. com., Deering’s Ann. Evid. Code (1986 ed.) foil. § 970, p. 139; see also People v. Chavez (1968)
Under Evidence Code section 973, subdivision (a), if a married person chooses to testify in a proceeding in which his or her spouse is a party, the person waives the privilege and must answer potentially damaging questions on cross-examination. “[A] married person cannot call his spouse as a witness to give favorable testimony and have that spouse invoke the privilege provided in Section 970 to keep from testifying on cross-examination to unfavorable matters . . . .” (Cal. Law Revision Com. com., Deering’s Ann. Evid. Code, supra, foil. § 973, p. 146; see also People v. Resendez (1993)
But even assuming judicial error, defendant is unable to demonstrate prejudice, because the record contains no offer of proof regarding the content of Darlene Lucas’s proposed testimony. As for the claim counsel were incompetent for conceding Mrs. Lucas had the right to invoke the privilege, the claim is based on the unsupported assumption that counsel must have made the concession under a mistake of law regarding the scope of the privilege. Further, as noted above, prejudice cannot be demonstrated on this silent record. It should be recalled that, depending on the nature of the proposed testimony, the witness’s favorable testimony might have opened her to damaging cross-examination which could not be fended off under a claim of marital privilege.
G. Asserted prosecutorial misconduct.
Defendant claims that various comments of the prosecutor in closing argument were misconduct, and that this misconduct violated his rights to a fair trial, a reliable verdict and due process under the Sixth, Eighth and Fourteenth Amendments to the federal Constitution and under article I, sections 7, 15, and 17 of the California Constitution. He also argues that to the extent his claims are barred for counsel’s failure to make timely objections, he was deprived of the right to effective assistance of counsel under the state and federal Constitutions.
1. Claimed Davenport error.
Section 190.3 sets out the factors in aggravation and mitigation that the jury may consider in determining the appropriate penalty. We have held that it is improper for a prosecutor to argue that the absence of evidence of a statutory factor in mitigation permits or requires that the factor be considered in aggravation. (People v. Davenport (1985)
In this post-Davenport trial, defendant failed to object to these statements, and the claim was waived. (People v. Champion, supra, 9 Cal.4th at p. 939;
We have said that “the transgression must be viewed in the context of both the prosecution and defense arguments and the court’s instructions to determine whether we can ‘be confident that the jury properly understood the nature of the weighing process and its relation to the appropriateness determination . . . .’” (People v. Cox, supra, 53 Cal.3d at pp. 683-684.)
In the present case, contrary to defendant’s claim that the prosecutor’s main argument in aggravation was the asserted absence of evidence of the factors in mitigation, the prosecutor stressed the aggravated nature of the charged crimes, relevant under section 190.3, factor (a), as the main basis for a determination that the verdict should be death. Given the evidence of the circumstances of the charged crime, as well as the other evidence of defendant’s prior violent conduct, relevant under section 190.3, factor (b), we cannot accept defendant’s claim that had the jury not been told to treat the absence of evidence in mitigation as evidence in aggravation, there would have been little evidence upon which to base a death judgment. Further, as in the similar case of People v. Gonzalez (1990)
2. Claimed Brown error.
In People v. Brown (1985)
Defendant argues the prosecutor misled the jury regarding its function in weighing the factors under section 190.3. Defendant points to the analogy the prosecutor drew between the jury’s function and that of an umpire in a baseball game who must follow the rules of the game, and claims the prosecutor thereby encouraged the jury to make its decision mechanically by counting up factors. He also complains the prosecutor referred to a chart upon which the statutory factors were written, reducing the jury’s weighing function to a mere outline.
Defendant also argues the prosecutor misled the jury by arguing that the only possible verdict was for death, that any other sentence was illogical and unreasonable. Defendant claims the reference to logic and rules in the prosecutor’s argument misinformed the jury regarding its inherently subjective decision whether to impose the death penalty, and indicated the existence of a mechanical formula requiring the imposition of a death sentence. Again, there was no objection and the point was waived. On the merits, we do not think it improper to refer to logic in connection with an argument that the only proper verdict was one for death. (See People v. Clark (1992)
3. Claimed Boyd error.
We have held that evidence of a defendant’s background and character is admissible under section 190.3, factor (k), only to mitigate the gravity of the crime, and that it is improper for the prosecutor to urge that such evidence should be considered in aggravation. (People v. Boyd (1985)
Defendant claims the prosecutor committed misconduct in arguing that the evidence of defendant’s intoxication, offered in mitigation, was actually a factor in aggravation. Again, however, there was no objection here, so the issue was waived. The failure to object was not ineffective assistance of counsel, as no prejudicial prosecutorial misconduct occurred. The prosecutor did not engage in the argument condemned in People v. Boyd, supra, 38
We have held that “[aggravating factors under the 1978 death penalty law are limited to those expressly set forth in the statute.” (People v. Keenan, supra,
Again, the claim was waived for lack of objection. (People v. Noguera (1992)
Defendant relies on People v. Noguera, supra, 4 Cal.4th 599, for the proposition that the prosecutor may never argue the defendant’s bad character unless the defendant’s character has been put in issue by the offer of good character evidence in mitigation. His reliance is misplaced. Noguera simply held that when the defendant has offered good character evidence in mitigation under section 190.3, factor (k), such evidence may be rebutted by further bad character evidence, and that the rebuttal evidence may be relied upon in argument. (
Finally, defendant argues the prosecutor relied upon nonstatutory aggravating factors in arguing that prison would be an inadequate punishment for defendant, as his brutality was such that he “would not even see the bars.” We disagree that such argument is inappropriate, as it was based on evidence relevant under section 190.3, factors (a) and (b) and was directed to the jury’s “ ‘ “individualized assessment of the crucial issue whether the death penalty is appropriate for the particular defendant on trial.” ’ ” (People v. Fudge, supra,
As we have found no instances of prejudicial misconduct, we reject defendant’s state law and constitutional claims.
H. Limitation on defense argument.
The prosecutor argued pursuant to section 190.3, factor (a), that the circumstances of the charged crimes warranted the imposition of the death penalty. In the course of this argument, he made statements such as: “If it’s not this case, then what case[?]”
Defendant asserts the trial court improperly limited the scope of his argument to the jury in violation of his state and federal constitutional right to due process and a reliable verdict. He argues he had a due process right to deny, rebut or explain the basis offered by the People for the imposition of the death penalty. Because the People opened up the issue of comparing the punishment for a crime such as defendant’s to the punishment in other cases, he claims he was entitled to rebut the People’s argument with comparisons of his own. In support, he cites Simmons v. South Carolina (1994)
In Simmons, supra,
Unlike in Simmons, in which the court stated future dangerousness may be a permissible consideration in determining penalty, the question of the
To the extent that defendant claims, on the basis of Simmons, supra,
I. Viewing San Quentin.
Before the penalty trial began, defendant moved to have the jury view the facilities at San Quentin prison, either in person or by film, including the gas chamber, death row and the cells where prisoners serving life terms are housed. The trial court denied the motion, regarding the method of incarceration or execution to be irrelevant under Woodson v. North Carolina, supra,
Defendant argues the prosecutor opened the door to such evidence by arguing defendant would not be adequately punished by imprisonment. This argument had not been made when the trial court ruled on the motion, and defendant did not renew the motion to view San Quentin after the prosecutor’s argument. Accordingly, he can not charge the court with an abuse of discretion for failing to protect his right to fair rebuttal. In any event, the prosecutor did not argue that the particulars of confinement at San Quentin prison made it an inadequate punishment for defendant, but that defendant was so coarsened and brutal that he would not be disturbed or adequately punished by incarceration. Accordingly, defendant’s claim that he was entitled to have the jury view San Quentin as a matter of fair rebuttal must fail.
Defendant concedes we have consistently held evidence regarding the facilities on death row and the manner of carrying out the death penalty to be irrelevant to our capital sentencing scheme. (See, e.g., People v. Fudge, supra, 7 Cal.4th at pp. 1123-1124 and cases cited; People v. Daniels (1991)
J. Cumulative error.
Defendant contends a combination of judicial error, prosecutorial misconduct and ineffective assistance of counsel requires reversal of the death
IV. Conclusion
Based on the foregoing, we conclude the judgment should be affirmed in its entirety.
Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.
Notes
In his testimony at the hearing, defendant stated the interview began with the deputies asking him when he had last seen Randy Norris. He responded that he didn’t recall. The interview continued: “[QQ Q: What is the next thing that was said? [QQ A: Something to do with my tow truck, I forgot about something, about he had stole it or where it was, if he stole the truck or something to that effect. [QQ Q: What is the next thing that was said? [QQ A: Anyway after the tow truck conversation was—well, he says I will show you a picture. [QQ Q: Did someone show you a picture? [1 A: Yes sir. [<]Q Q: Who showed you a picture? [QQ A: Deputy Kushner [QQ Q: What did he show you? [QQ A: He showed me a photograph of a body. [qQ Q: Did he say anything when he showed you the photograph? [QQ A: He says—He pulled it out. He showed it to his partner. First he says it is not as pretty as the tow truck but—you know—it will have to do and he threw that in front of me. [QQ Q: What did you say, if anything? [q[] A: I says well what the hell is this? [1 Q: What was said? [qQ A: He says you don’t recognize them? And I says no, am I supposed to? And he said something to the effect we believe something—we believe that you and Randy entered that house and killed those people. [QQ Q: What did you say? [QQ A: And I said no way, so he reaches into his little folder, looks a lot like that one there, and pulled out another photograph, showed it to his partner and threw that in front of me. It was a knife. It was a picture of a folding knife, black folding knife, approximately three and half inch blade. [QQ Q: Was something said about that knife? [QQ A: Yes. He says do you recognize that knife? [QQ Q: What did you say? [QQ A: I says it looks a lot like the one I have. [QQ Q: Up to that point, had anybody advised you of your rights? [QQ A: No, sir. [QQ Q: Had you up to that point asked anything about an attorney? [QQ A: At this point is when I said—well—They said well, we believe this is your knife. I says well fine, I want an attorney right there and then. [QQ Q: What was said? [QQ A: He says
See footnote 1, ante.
We also reject defendant’s related argument that counsel were incompetent for failing to move to suppress the statements pursuant to Evidence Code section 352, on the ground they were unreliable or untrustworthy as the result of the detectives’ threats and the defendant’s medical condition, even if the statements were not technically involuntary. As we have seen, the omission was a reasonable tactic, and the record does not establish that defendant gave the statement as the result of any threat or that his medical condition affected his ability to make a reliable statement.
In addition, counsel’s acquiescence in the admission into evidence of a card such as is used to prompt deputies giving Miranda warnings was not incompetent, though the card was not the one used in defendant’s interrogation. The record on appeal does not demonstrate or even suggest that the card used in defendant’s own interrogation would have provided any evidence in support of his motion to exclude his statements.
We reject defendant’s claim that counsel should not have conceded that the blood and fingerprint evidence was damning without consulting defense experts. Defendant points to no prejudice arising from this failure to contact defense experts, and he must do more than surmise that defense experts might have provided more favorable testimony. (People v. Kaurish (1990)
Defendant also claims the prosecutor’s misconduct deprived him of the right to a reliable determination of guilty and penalty under the “Sixth, Eighth and Fourteenth Amendments to the United States Constitution and their California analogs.” We need not reach the claim, as no argument or authority is offered in support. In any event, finding no misconduct, we reject it.
Defendant claims any failure to preserve the claim by making the appropriate motion below or by failing to make an adequate showing was ineffective assistance of counsel. Defendant cannot demonstrate prejudice on the appellate record, however. As we have noted, it is unlikely immunity for drug offenses would have procured the testimony of the witnesses, who faced some danger of liability as defendant’s accomplices, and defendant cannot show on this record there were no strong governmental interests against a grant of immunity for any accomplice liability.
Defendant argues any error in excluding Lupori’s testimony was federal constitutional error requiring reversal unless the jury’s verdict was “surely unattributable” to the error, citing Sullivan v. Louisiana (1993)
Defendant’s cursory claim he was also prejudiced at the penalty trial is rejected. The jury had the evidence alluded to above regarding defendant’s defense of unconsciousness. The offer of proof at trial did not indicate Croffoot or Sandoval could supply other general character or background evidence regarding defendant that would have been relevant to the jury’s penalty determination.
We note that defendant did not move to strike the evidence of the condition of the car once the prosecutor failed to establish the preliminary fact through defendant’s testimony.
Defendant claims the jury was prejudiced by the prosecutor’s argument to the court in favor of admission of the evidence, but we observe that the prosecutor’s argumentative statements regarding his entitlement to present the evidence were made at sidebar, and could have had no effect on the jury.
We reject the People’s claim the evidence was admissible under Evidence Code section 403, subdivision (a)(4) (proffered evidence is statement or conduct of particular person and preliminary fact is whether that person made the statement or so conducted himself). The proffered evidence was not conduct, but evidence of the condition of a car. This evidence was relevant only if the People could sufficiently establish the preliminary fact that defendant was responsible for the condition of the car.
See, e.g., Morgan v. Illinois, supra, 504 U.S. at pages 728-729 [119 L.Ed.2d at pages 502-503], We have observed that “[t]he duty to examine prospective jurors and to select a fair and impartial jury is a duty imposed on the court.... (Code Civ. Proc., § 223, subd. (a); former Pen. Code, § 1078.)” (People v. Mattson (1990)
We have stated that counsel must object to the trial court’s misstatements on voir dire in order to preserve the claim for appeal. (People v. Freeman, supra,
Defense counsel rejected the prosecutor’s suggestion that the court give a pinpoint instruction not to speculate about witnesses who did not testify.
Defendant claims that the court’s failure to impanel a new jury violated his rights under the Eighth and Fourteenth Amendments of the United States Constitution. He failed to make such an argument below and may not raise it for the first time here. In any event, we see no constitutional violation. (People v. Rowland, supra,
Nor can defendant establish any ineffective assistance in failing to challenge the juror was prejudicial, especially since counsel did not exhaust his peremptory challenges. Failure to challenge a juror for cause is not prejudicial if the juror could have been removed by peremptory challenge. (See People v. Kirkpatrick, supra,
Defendant also claims he was deprived of his “state law right to a unitary jury,” a claim he raised in his motion for new trial. He offers no authority or argument in support. In fact, defendant had a unitary trial before a single jury. To the extent he may be understood to claim he had a right to have the same jurors decide guilt and penalty, we have already rejected such a claim. (People v. Cain, supra, 10 Cal.4th at pp. 66-67 [excusal of juror for good cause between guilt verdict and penalty trial does not necessitate retrial of guilt phase]; People v. Fields (1983)
The prosecutor separately discussed section 190.3, factors (e) (victim participant), (f) (moral justification), (g) (extreme duress), (j) (defendant accomplice), and (k) (circumstances extenuate gravity of crime) and declared that the absence of evidence in mitigation under
The prosecutor argued: “You’re sitting in judgment of an uncaring, violent, compulsive, brutal remorseless killer. HQ That’s what you’re sitting in judgment of. And that must be evident from the facts.”
This statement occurred in the course of the following argument: “But I ask you, talking about [factor (a)], ladies and gentlemen, if the death penalty is not warranted in this crime, in what crime is it: What are you waiting for if you don’t vote for the death penalty in this case? It defies logic and reason to think that the murder of these two elderly people by their next door neighbor does not call for that punishment. [1 Now, nothing you do, very obviously, is going to give life back, to Edwin and Mary Marriott. But you can give them something. You can give them a just verdict. You can give them a verdict called for by the evidence, not because you’re mad at anybody, not because you want revenge, not for any base thing. You can just say that we’ve looked at what’s been presented to us and what’s warranted; what there is reasonable ground for is the punishment of death. [<¡0 And I repeat to you. If it’s not this case, then what case[?]”
Simmons, supra,
Concurrence Opinion
I concur in the judgment and in the majority opinion. I write separately to explain why the trial court erred in sustaining the assertion of the marital testimonial privilege by defendant’s wife when defendant attempted to call her as a witness at the penalty phase.
The marital testimonial privilege is codified in Evidence Code section 970, which provides: “Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding.” (Italics added.)
Evidence Code section 970 replaced other code provisions that had conferred a broader privilege. Under former section 1881 of the Code of Civil Procedure and former section 1322 of the Penal Code, a party to an action could prevent his or her spouse from testifying either for or against the spouse who was a party, and in criminal prosecutions a defendant’s spouse could decline to testify for or against the defendant. Evidence Code section 970 gives the testimonial privilege exclusively to the nonparty spouse and limits the privilege to testimony “against” the spouse who is a party. A Law Revision Commission comment explains the rationale for eliminating the testimonial privilege entirely as to testimony “for” a party spouse, as follows: “The Commission has concluded that the marital testimonial privilege provided by existing law as to testimony by one spouse for the other should be abolished in both civil and criminal actions. There would appear to be no need for this privilege, now given to a party to an action, not to call his spouse to testify in his favor. If a case can be imagined in which a party would wish to avail himself of this privilege, he could achieve the same result by simply not calling his spouse to the stand. Nor does it seem
Here, defendant called his wife as a witness to testify for him at the penalty phase of his capital trial. Because the proposed testimony was to be “for” rather than “against” the party spouse, defendant’s wife could not claim the testimonial privilege of Evidence Code section 970, and the trial court erred in sustaining her claim of privilege.
The majority states that the trial court “may have concluded” that defendant’s wife invoked the privilege to avoid “potentially damaging questions on cross-examination.” (Maj. opn., ante, at p. 490.) This may be true (although it is speculative on the present record), but it is irrelevant. When a defendant in a criminal proceeding calls his or her own spouse as a witness, the spouse is not testifying “against” the defendant within the meaning of Evidence Code section 970. Therefore, the testimonial privilege of that section is not available, regardless of the spouse’s reason for asserting the privilege and regardless of the opinion of the spouse or of the trial court that the testimony on both direct and cross-examination would, on balance, be unfavorable to the defendant. As a respected commentator on California law explains: “Our former law allowed a witness spouse to refuse to testify even though the party spouse sought the testimony for his own benefit. This aspect of the privilege was abolished by the Code for both civil and criminal actions.” (2 Witkin, Cal. Evidence (3d ed. 1986) Witnesses, § 1171, p. 1119.)
Although the trial court erred in sustaining defendant’s wife’s assertion of the marital testimonial privilege, the record fails to establish that defendant was prejudiced by the trial court’s error because defendant made no offer of proof as to his wife’s proposed testimony. (See maj. opn., ante, at p. 491.) Therefore, with the understanding that the majority is not holding that the marital testimony privilege may apply when one spouse calls the other spouse as a witness, I join the majority in affirming the judgment.
A companion provision, Evidence Code section 971, states: “Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.”
A third provision, Evidence Code section 972, lists situations in which the testimonial privileges of Evidence Code sections 970 and 971 are not available.
Concurrence Opinion
I concur in the judgment in all respects save one: I would vacate the sentence of death.
At the penalty phase, defendant’s jury, like all others, was instructed to weigh the aggravating and mitigating circumstances against each other and thereby determine whether death or life imprisonment without possibility of
Therefore, I would set aside the death sentence as unreliable under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. (See In re Ross (1995)
Appellant’s petition for a rehearing was denied February 21, 1996, and the opinion was modified to read as printed above.