*1 Chesser A.L.R. McCOMB, I judgment affirm J. I dissent. would expressed by opinion the reasons Justice Lillie pre- pared Appeal, Appellate her for Court Second Dis- (People Redmond, trict, Division One Crim. filed 3,1968, nonpublication). December certified for Aug. 20, 1969.] No. 9855. In Bank.
[Crim. PEOPLE, THE Respondent, Plaintiff and v. HARRY W.
SCHADER, Appellant. Defendant and *6 Supreme appointment Sobiloff, Elfriede F. under Court, Appellant. and for Defendant Attorney Maier, Lynch, General, Thomas C. Doris H. As- Jr., Attorney General, Edward W. Hinz,
sistant A. Edsel Warner, Deputy Attorneys General, and for' Haws Charles G. Respondent. and Plaintiff
TOBRINER, J. The convicted defendant of first jury robbery degree degree and of the first murder of Police Officer McKnight Eugene July 23, fixed in Sacramento on and appeal (Pen. Code, His at death. is automatic. penalty §1239, presents manifold (b).) subd. Defendant contentions relating prejudicial guilt trial, to his but we do not find error guilt judg in the conduct of the We must reverse the trial. penalty, however,
ment as to
the trial court
because
excluded
principles
panel
veniremen from the
in
violation
Witherspoon
v. Illinois
Defendant shot parking at 7 p.m., lot of a Market about moments Lucky registers after eodefendant Turner1 robbed the market’s cash in the gunpoint. general'vicinity at he had been Although during robbery, displayed the checkstands defendant no played weapon no active role. He followed Turner out and regis- emptied the market a few seconds after Turner the last prosecution sought prove that defendant ter. The premeditated both during killing struggle the moments of and killing during escape phase that the occurred of the rob- prosecution that Turner and contended defendant bery. jointly planned committed the defend- robbery lookout, ant was to serve as to assist Turner ease of ready own emergency. Schader testified his defense that had he planned to commit a with Turner and indeed was robbery, casing anticipated the market for an later but that he had no Turner would commit asserted particular idea that ther actually robbery at the it occurred. Defendant time pistol struggle, cocking during admitted but claimed that the shooting was accidental. presence explanation
After offered for his defendant at permitted prosecu- trial scene of the robbery, *7 tion, over defendant’s objection, to in engage two lines of cross-examination which assigns defendant as reversible error. prosecutor The upon cross-examined defendant the details of robbery a for which defendant was in convicted 1957. He offered testimony the “to show scheme, common plan, or and design; most to show intent at the time particularly, of the charged.” offense permitted trial prose- The the inquire cutor to into similarities in the two in offenses: each ease, supermarket the robbers chose a target; the single partner, defendant worked relative; perpe- trators used partner a stolen car for one escape; cash robbed registers, displaying pistol a loaded which was subsequently concealed; partner, standing the other unobtrusively, but. armed pistol, with a loaded was participate available to in prosecutor case of trouble. The used the testimony thus in vigorous obtained argument jury to the that defendant robbery the instant the same role that “played Uncle Gil- bert Angeles, down Los an identical robbery played guilty murder, guilty 1The found Turner not of and of armed robbery. put through somebody couple celling . if . . ready ’’ panicked. prosecution evidence, The also introduced into a conditional sales for a contract red Cadillac convertible which showed payment days that defendant faced a of several $900 after the robbery. cross-examined defendant this about closing argument prosecutor document. In his to the jury, urged impending that the formed motive payment robbery. heavily emphasized question, He the rhetorical put justice big “What did red he the scales of Cadillac —a side, McKnight, one human being, life of a Officer ’’ on the other 1 Defendant attacks both lines of cross-examination as beyond scope objects examination; of direct he to the of admission contract, the conditional sales and the concomittant cross- examination on the dis- ground further the contract was covered as the fruit interrogation of an held previously this court to have been conducted in of violation (People constitutional rights Schader 665]). of of view his admission general argues intention robbery, to commit defendant upon prior cross-examination the details of the any exception general pro-
could not fall under to the rule scribing inquiry prior explain close into convictions. We why uphold we prior the cross-examination the details of the robbery; we find the admission of the sales contract erroneous prejudicial. but Alleged improper general scope cross-examination of
Setting special per aside for the moment the rules taining admissibility improper to the fruits of evidence of interrogation prior convictions, find that we felony general principles delimiting scope permissible cross- justified prosecutor’s examination inquiry. We are not principle unmindful of a basic criminal
justice provision makes which of former Penal Code sec (now Code, limiting tion 1323 see §773, (a)), Evid. subd. cross-examination of a defendant to “those matters about chief,” indispensable which he examined in ally *8 rights guaranteeing the federal state and constitutional that a person compelled shall not “be case a criminal to be I, against (Cal. Const., §13; witness himself.” art. S. U.
Const., People Arrighini Amend.; (1898) 5th see v. 122 Cal. People (1958) Cal.App.2d 126 v. Sims 165 121, 591]; P. [54 770 course,
108, reeognize, of 113 We [331 Supreme the American Court, “that the United States accusatorial, prosecution inquisi is not system of criminal its privilege Amendment essential torial, and that the Fifth federal, are mainstay. Governments, state and thus con . . . evidence inde compelled guilt to establish by stitutionally prove coercion freely secured, not pendently may ’’ (Malloy of mouth. against out his own the accused charge 653, 658-659, 84 1, 7-8 L.Ed.2d Hogan (1964) 378 v. U.S. [12 entire of People must “shoulder the load” 1489].) The S.Ct. chief, assistance proof in their case in without their burden compelled from his silence or from either 406, (1966) 382 415 testimony. (Tehan v. U.S. Shott [15 (1965) 459, 459]; v. 86 S.Ct. L.Ed.2d California Griffin ; Murphy v. 106, 85 S.Ct. 609 L.Ed.2d 1229] 380 U.S. [14 L.Ed.2d 84 (1964) U.S. Com. Waterfront 1961) p. rev. (McNaughton Wigmore, Evidence 1594]; S.Ct. 317.) Even when defendant testimony chooses to offer behalf, privilege against his own self-incrimination serves prevent prosecution from questioning “to the defendant upon the case and in making effect him its own generally, (People Gallagher (1893) witness.” 100 Cal. 475 [35 People 80]; 695]; P. v. O’Brien Cal. P. Sims, People supra, Cal.App.2d 108, Such 113.) general compelled post only cross-examination would not the same self-accusation, contempt” perjury or trilemma “cruel recognized supra, in Murphy Com., 378 U.S. Waterfront 678, 681, penal L.Ed.2d 84 S.Ct. it would also 1594]; right his ize and deter a defendant’s assertion of thereby particular explain take witness stand to or contradict aspect the case him.2 however,
None of principles, imply these fundamental a defendant testifies in his own that when defense voluntarily amplify fully inquiring testimony by surrounding assertions, into the facts and circumstances through introducing or cross-examination which explains or his statements or the inferences refutes which may necessarily provision be drawn them. ‘‘ Penal not mean that the cross- former Code section does categorial a to mere review of examination must be confined Borehard, deterrence, 2For this Convict instances the effect of see Guilty ing 138, 232, 365-366; Brant, (1932) pp. Not the Innocent pp. 106-107. *9 matters, dates or times mentioned in the direct examina eliciting ... It any be directed to the matter may tion- qualify which overcome tend to or the effect of the testi may given by (People him on direct examination.” Pike mony 70, (1962) Cal.Rptr. 664, ; 58 Cal.2d 372 P.2d 656] People 223].)3 v. Zerillo (1950) 222, 36 Cal.2d People’s Defendant took the stand to meet the evi present dence which showed that he was and armed during robbery, immediately thereafter, that he fled and that he McKnight. shot His Officer covered events and testimony beginning conspiracy circumstances with his to a rob commit easing Turner, through eodefendant his activities in bery market, surprise alleged his when he discovered that Turner had decided himself then to commit robbery by there, apprehension parking and and his in the lot Officer McKnight, beyond killing police and his struggle and complete testimony placed officer. Such direct issue his motives, during robbery. intent and state of mind Cross- motives, examination which intent and state of revealed those prohibited general mind was therefore under strictures not (See limiting scope People v. Perez of cross-examination. 909, Cal.Rptr. 597], 422 P.2d Cal.2d 621 [55 granted 1131, 88
cert. L.Ed.2d S.Ct. U.S. 1055]; Ing (1967) 611 [55 422 P.2d Defendant contends that other, specific more alternatively impermissible rules render upon cross-examination the details prior of his upon conviction and the conditional sales con- tract. We deal first with the prior details of the conviction. Alleged improper admission prior details robbery. point We out that since the cross-examination prior robbery possessed
details of the probative sufficient outweigh prejudicial value to its obviously effect, the trial admitted it. We prosecution, show that the properly order to overcome claim defendant’s partici- he did not pate occurred, presented in the that actually operandi prove of a common modus guilty knowledge, intent, during state of mind the killing McKnight. of Officer attempted encompasses 3Defendant’s distinction of Pike and Zerillo arguments, relating general scope
two one to the limitation on cross-examination, here, with which we are concerned and the other relat ing policy to the extrinsic of exclusion of evidence of other crimes because prejudicial effect. We deal with the latter issue at footnote of its infra 13, page accompanying text. premise that, save certain begin with the basic
We offenses not be recognized exceptions, evidence of other Obviously prosecution. such evi introduced a criminal if it sub be excuded does not conduct should dence of other the criminal prove fact other than stantially tend “ defendant can be accused. character of the [T]he which he is than that offense tried for no other [with] 550, 576.) Albertson, supra, 23 (People charged.” proof of other attempted confronted with He should prove a criminal interjected only propensity offenses of other crimes.5 him the commission led might have *10 a criminal has become . . . not bad character yet “General (1948) v. States (Michelson United scheme.” in our offense 180, (Eutledge, 168, 69 S.Ct. 469, 489 L.Ed. 213] 335 U.S. [93 of other crimes not evidence exclude such dissenting).) We J., prejudicial because its value but probative it lacks because have reached value.6 We thus probative outweighs its effect 419, Cal.Rptr. (1968) 233, 444 People 69 243 v. Haston Cal.2d [70 4 Cal.Rptr. 230, 126, 91]; (1967) People 129 [60 P.2d v. Cramer 67 Cal.2d ; Kelley 232, People (1967) 65 238 [57 429 P.2d v. Cal.2d 582] 550, (1944) 363, ; People v. 23 576 [145 424 Albertson Cal.2d P.2d 947] 583-585; C.J.S., ; Cal.Jur.2d, Evidence, §136, pp. 22A Crimi P.2d 18 7] Alarcon, Law, p. 682, seq.; § & Cal. Criminal Evidence nal 729 et Fricke (7th (2d 1966) 1966) pp. 313, 320; Witkin, §§ 340- Cal. Evidence ed. ed. 345, pp. 299-306. may exclude evidence The basic rule that. “The court its discretion substantially outweighed by probability probative if its its the that is value prejudice (b) danger admission will . . . create substantial undue (Evid. Code, §352; A.L.I., Evidence, 303) § . . .” Code of Model admissibility. point special governing underlies of trial Prom the of view rules objection procedure, after has the the defendant raised offense, proffered People burden is on the evidence shows another the admissibility. Finally, law, establish other as substantive rule of evidence presumed place recog within a offenses is inadmissible unless its exception “clearly perceived.” (People supra, Albertson, nized v. 23 Haston, supra, 233, 244.) 550, 557; People 69 v. Cal.2d Cal.2d Evidence of other also “tend” to establish a material offenses fact to the admissible circumstantial same extent other evidence exploded revealing yet the for the commission of a crime and extrinsic outweighed policy probative of such reason “the value evidence is prejudicial (People p. 238; Kelley, supra, its effect.” v. 66 Cal.2d at McCaughan People People (1957) 409, 974]; v. 49 Cal.2d 421 P.2d [317 dissenting); Sykes (1955) 166, (Traynor, J., v. 44 [280 Cal.2d 175 P.2d 769] (1948) ple 469, .) v. Westek 31 476 Cal.2d P.2d [190 9] Peo Albertson, People supra, 550, ly ; People (1965) v. 23 Cal.2d 576 v. B ever 5 702, Cal.Rptr. 743] ; Cal.App.2d People (1955) 233 720 v. Musumeci 354, 168], Cal.App.2d also, 133 362 P.2d See 7 Cal. Law Revision Rep.: Comments, 1205-1206; pp. Com. Witkin, Code with Evidence Official (2d 299; 1966) §340, p. Fricke, Cal. Evidence ed. Cal. Criminal (6th 1964) p. generally, (1964) Evidence ed. 290. See Note 78 Harv. 420; L.Rev. Note 35 Cal.L.Rev. 131. policy overriding excluding evidence, despite 6“The such its ad that, probative value, practical experience mitted is the its disallowance convicting risk of the conclusion innocent other; sufficiently of evidence of offenses is imminent admission forego slight marginal punishing us to gain guilty.7 recognize, exceptions
We however, to the basic If rule. testify, People may defendant impeach chooses to by showing previously that he has been convicted credibility felony. however, here, impeachment of a Even evidence of prior convictions must be limited to identification of felony conviction, will “the courts be zealous to insure that prosecuting permitted is not to delve into the attorney prior (People details and circumstances crime v. David ...)....” 639, (People Cal.2d v. Smith (1966) 63 779, Cal.Rptr. 382, Cal.2d prosecutor case, the instant by inquiring into the prior robbery, sought details of the advantage of to take exception broader to the basic rule exclusion. Gen erally permits stated, exception People this to adduce proof charged as circumstantial of the crime encom passing the commission similar of a or related offense when probative outweighs prejudicial value of such evidence its (People Haston, supra, People v. effect. 243; Cal.2d Cramer, supra, 129; Kelley, supra, Cal.2d 232, 238; People McCaughan, supra, prevent issues, surprise preju tends to unfair confusion of undue J., (Jackson, States, supra, *11 v. dice.” Michelson United 335 U.S. 168, 174, People Sykes, also, supra, L.Ed. 69 [93 476 S.Ct. See v. 213]. 166, (Traynor, J., dissenting); People 44 Cal.2d v. Baskett 174-175 (1965) 712, 274]; Cal.App.2d People Cal.Rptr. 237 v. Lind [47 715-716 (1964) say Cal.App.2d 482, 755].) Wigmore Cal.Rptr. 227 503 Dean almost [38 explains for “It reasons exclusion as follows: be said Relevancy it is because of this of such it indubitable objectionable, appreciable proba is excluded. It is tive tendency weight not because it has no value, but because it too has much. The natural and inevitable judge jury give of the tribunal —whether or excessive is exhibited, to the vicious record of crime thus and either to allow strongly present charge, proof it to bear too on the or to take of it . " justifying irrespective guilt present charge a condemnation of the (1 (3d Wigmore, 1940) p. 646.) Evidence ed. 7 exclusionary addition, subsidiary purposes rule serves the promoting judicial efficiency by restricting proof of extraneous crimes {People Kelley, supra,, 232, 238-239), avoiding discourage v. 66 Gal.2d saddling ment of reformation which would be caused forever (Note, supra, 426, ex-felon his criminal record 78 Harv. L.Rev. 436), and, in the ease of other offenses for which defendant had not tried, providing protecting been fair notice and the reasonable doubt proof by preventing upon nothing standard of than the cumulative son, supra, convictions based more suspicion (People of a number of crimes. v. Albert 550, 579; People (1939) 403, Cal.2d v. Lisenba 14 Cal.2d 429-432 P.2d [94 (Traynor, J., supra, 166,
421; People Sykes, v. Cal.2d 469, 476; Westek, supra, 31 Cal.2d People v. dissenting); particu balancing is Code, 352.) This test necessarily Evid. § rules, mechanically automatic upon laristic, depending unique facts of the consideration but the trial court’s , we guidelines which according to the and issues of each case summarize below. depends “not on whether merely the evidence Admissibility categories comes within exceptions certain which constitute 367, (State (1950)
the rule of exclusion” v. Goebel 36 Wn.2d 300]; see also Adkins v. Brett (1920) 184 Cal. 252, 255-256 251]) many P. because most of the kinds of traits common operandi, peculiar between offenses-—modus behavior, victim, plan, scheme, design, time, and geographical proximity, example, may be used different cases to — prove identity, one number of issues: commission of an act, intent, motive, knowledge, premeditation, (1 Wig- etc. (3d more, Evidence 1940) §§215-217, pp. ed. “If 710-719.) justice predictability both served, of decision are to be exclusion, tests of admission and opinion, our is rigidity not the answer. We believe that quarrel
whenever the is relevancy protect between and the of the law to policy against prejudice engendered accused bias and to be likely evidence, process the admission of relevant a balancing place weighing probative must take value of the —a likely evidence offered the harm it is to cause. probative value, When its addressed to the crime charged, great prove compared a vital issue as with the lesser that a will be likelihood led and convict an astray record, innocent man because of his bad the evidence should v. (People (1967) Cal.App.2d be admitted.” Sheets ] People Sykes, 764-765 see supra, also v. 777 166, 174-175(Traynor, J., dissenting).) Cal.2d prejudice value and Probative are not commodi- obviously subject quantitative Nonetheless, ties measurement. we may identify guidelines per- some of the which courts follow balancing process forming described above. The generally probative relevance, chief elements value are materiality necessity.8 People Kelley, supra, People v. Wade 66 Cal.2d 232, 238-239; 8See People 348 P.2d [1 Cal.Rptr. 116]; 330-331 Albertson, supra, 576-578; Rosenfield *12 Proposed A 243 67-68 Cal.App.2d 60, [52 Cal.Rptr. 101]; Comment, Analytical Admissibility the Determination the Method Evidence of of (1960) Other 7 U.C.L.A. L.Rev. 465-468, Offenses California 463, of
775
permitting
Before
the
to hear evidence of other
(a)
offenses the court must ascertain that the evidence
“tends
logically, naturally
prove
and
reasonable inference”'
upon
offered;9 (b)
the issue
which it is
is offered
ultimately, prove
issue which will
to be material
to the Peo
ple’s case;10
(e)
respect
is not
'cumulative with
merely
People
prove
other evidence which
use to
same
determining
relevance,
issue.11
trial
court
describing
must look behind the
kind
similarity
label
or
charged
relation between the other offense and the
it
offense;-
precise
similarity
must examine the
elements of
between the
respect
offenses with
the issue for which the
is
evidence
proffered
satisfy itself that each link of
the chain of
inference
the former and
latter
between
reasonably
strong.12
In order
assess
materiality,
merely
offense,
must consider not
elements
but
also
admissions.13 Some
defendant’s testimonial
commentators
480-482; Note, supra,
426,
78
449-451. We
term
Harv. L.Eev.
use the
merely
weight
strength
“probative value” in a sense
than
or
broader
logical
(1961)
(Compare
of the inference or
connection.
Comment
70
763,
Wigmore, Principles
(2d
Yale L.J.
771 with
Proof
of Judicial
ed.
1931)
II.)
ch.
9People Haston,
246;
supra,
233,
People Kelley, supra,
v.
69 Cal.2d
v.
239;
232,
Pike,
People
supra,
70, 89; People
66 Cal.2d
v.
58 Cal.2d
v.
566,
(1956)
1];
McMonigle
People
Riser
47 Cal.2d
578
P.2d
v.
[305
(1947)
730,
745]; People
(1946)
29 Cal.2d
742
P.2d
v. Peete
[177
28
306,
Cal.2d
P.2d
[369
924].
9, supra.
Comment, supra,
cases
10See
cited in footnote
See also
463, 466,
U.C.L.A. L.Rev.
and authorities cited therein.
U.C.L.A,
Goebel, supra,
367, 379; Comment, supra,
11State v.
36 Wn.2d
463, 481-482;
Lacy, Admissibility
L.Rev.
see also
Evidence
Other
Charged
(1952)
Not
Crimes
in the Indictment
31 Ore. L.Rev.
Con
267.
People
(1948)
trast
v.
1];
Dabb
People
Cal.2d
v.
Westek, supra,
776 People propose introduce evi- suggested that if the to
have chief, in its ease in the should of another offense court dence stipulate to the truth of the issue which permit the defendant prove.14 People the seek to ease, prosecuting attorney stated
In the instant the the defendant’s purposes the of his into details of inquiry scheme, or prior plan, as follows: “to show common robbery particularly, time show intent at the of and most to design; that the evidence could charged.” the offense We conclude modus proof a common been admitted as of have properly participation operandi defendant’s offered to show the fact of join- knowledge of, subsequent in and the instant his robbery; his in, codefendant; his and aware der a initiated police officer and hence apprehension by ness of a mitting proof to the instant ease. underlying ing stances Pike, in the facts crimes evidence.” would A.C. exclusion of “a to cover commentator criticizes stipulate prior constitute Wigmore, discusses the examination. A. barring in evidence credit the accused with some 976]. fn. therein; Comment, supra, Criminal [governing (Note, supra, 14In We “The Yale L.J. issue 649]; McCormick, 11, highly of “two 221, 232; 654, crimes which the supra, held that defendant’s offer point on the issue and the rohhery at all of is mere of other the Trials some p. with damning Evidence mechanical attitude toward not the facts evidence that falls other admissibility require out “general only complex evidence element crucial The rationale theory fact relevant 78 Harv. L.Rev. enough crime, see People (1962) People helow did not render inadmissible crimes evidence offered because Burkhart offenses Compare He also State piece of intent fn. probative (3d of variables —the relative Evidence as did of suggests some courts’ refusal fancy denial” for that while v. Sindici 53 defendant 58.) were entitled necessity of ed. of other-offenses other crimes 7 U.C.L.A. J.Crim.L., to this People of Pike prejudice.” plea to the offense defences degree 1940) §§ v. that of kill the technically “general fact of purpose (1954 ed.) he Gilligan (1918) 426, 439-440.) of not to (1921) defendant’s direct any guilt v. introduced]. permitting 211 Cal. “Arguably involved in other-offenses evidence stipulate concede the issue Barnes in C. to L.Rev. defendant stipulation police the 2588-2597; tending prejudicial order [of denial” & P.S. guilty (Thompson attempt within one § administration rebuttal.” evidence], to charged 157, p. 331.) 'raising the certainty involvement officer constituted material Cal.App. 463, (1947) to rehut them permit the truth of some cross-examination puts 15, evidence the 92 Conn. Ceniceros of was to Another simpler approach 466. See prove Lacy, 18-23 and cases cited impact v. The active everything prior overcome 30 Cal.2d prosecution the defendant testimony not broad automatically of other available (Comment (1961) 193, exchange as a issue’ on whieh of in the circum op. of these rules 526, offense. participation of the other commentator King exceptions.” at the outset as a condition defendant’s generally, P. cit. People fact” on 532 [103 524 material 11], did balanc enough applies [1918] cannot the of the supra, cross- [183 . . One “to the- ad P. 9 . premeditation committing It is killing. immaterial that ruling, the court’s at the time it made, rested on an basis, prosecuting insufficient attorney since the did not explain, inquire into, court did not nature of the similarity prior precise offense and the issue for which it was offered. It is also immaterial that the court erred in permitting prosecutor explain purpose of the evi ruling hearing dence within the before its admissibility. “The having properly been received defendant], ground ruling court’s [the (Wilcox immaterial.” Berry P.2d 414].)
The cross-examination revealed that defendant had played partner the role of the prior supermarket active in a robbery with uncle, committed his uncle. like The defendant in the offense, instant remained general in the area of unobtrusively checkstands, the prepared armed pistol, presumably with a to partner assist the difficulty. active in ease of The evidence presented probative thus inference (1) that defendant had previously participated (2) in a he aware of this was robbery, committing method of therefore, (3) since robbery, instant offense by circumstances, was characterized the same either his (4) involvement in these circumstances was not claimed, innocent he but that of an active accomplice, or previous experience his caused him to know that a rob- in progress joined was and he in the bery commission of the crime, “covering” the role of played that his uncle playing previously. presented probative The evidence another infer- since supermarket previous ence: at the time left the he his experience caused him know that had been' com- mitted, stopped he knew that when he parking was lot apprehended, suspected accomplice he had been and as a he premeditation killed deliberation and in order to effectu- escape. ate his impeaching testimony, could
properly have adduced the fact defendant had been con- prior robbery. prejudice victed of a The caused addi- by tional into the details' the robbery of inquiry outweighed by probative testimony denying its value. Defendant’s active participation robbery, in the and his killing assertion that the accidentally, deprive occurred did not the evidence of its merely was not The evidence cumulative of other materiality.
proof issues, necessary People’s on the same but to the case. properly therefore conclude that the trial We admitted the cross-examination. sales contract Alleged improper admission conditional of through interrogation
obtained unlawful police learned of the condi record reveals The interrogation of defendant during the sales contract tional rights and to remain to counsel we violated held ). Schader, supra, (People v. silent. interrogation are conducted fruits of illegally during the trial of the declarant no less inadmissible than element Although lack the they themselves. statements confession, in the words of a inherent potential unreliability must statements byproducts illegally obtained physical right protect similar reasons. To excluded for otherwise “ speak in unless he chooses to remain silent ‘to of an accused ’ will[,] maintain a his own ... exercise of the unfettered government require balance,’ to ‘to ‘fair state-individual inviolability respect the load,’ entire ... shoulder of criminal our personality, accusatory system the human seeking pjmish an government justice demands that him its own inde produce the individual cruel, expedient simple labors, rather than pendent (Miranda v. Arizona mouth” from his own compelling it 694, 715, 436, 460 L.Ed.2d 86 S.Ct. 384 U.S. [16 exclusionary applied to the rule is 974]). The 10 A.L.R.3d illegally obtained confession. as the words of an fruits as well rights to counsel and to undermine the contrary rule would A simple expedient of con police the remain silent by.providing purpose obtaining for the ducting interrogations illegal foregoing trial of guilt the use at while evidence of physical *15 the accused. the statements of 880, 887 People (1966) v. 63 Cal.2d Cal. Buchanan [48 that, ‘‘It obvious since 733, 957], we stated: is
Rptr.
409 P.2d
police
a result of the
gun
secured
statement
was
People Dorado, supra,
v.
rule of
violation
obtained
169,
361],
Cal.Rptr.
P.2d
it too should
398
Cal.2d 338
62
[42
‘poisonous
illegal
fruit’
of the
excluded as
have been
(1965)
(Cf. People
757,
v. Bilderbach
statement.
People
313,
;
401
v. Ditson
Cal.Rptr.
767-768
921]
[44
165,
415,
(1962)
714];
369 P.2d
57
439
Cal.2d
[20
(1963)
471,
Wong
United States
485
Sun v.
U.S.
S.Ct.
[83
371
;
(1939)
407,
Nardone
United States
308
779 circumstances, upon Appeals that “under the it incumbent Attorney guns the District to show that location through untainted the admis discovered a source 296, (People v. sions:” Robinson 13 N.Y.2d [246 623, 261].) 196 N.E.2d N.Y.S.2d prosecutor
The failed show that the to conditional sales and its were contract contents “from an discovered independent discovery source” had or that the “become so (Wong dissipate, attenuated as to the taint.” Sun v. United supra, States, 441, 455, L.Ed.2d U.S. S.Ct. 407].) Attorney only speculates-that The regis General both, legal
tration on defendant’s ear “would show a owner and, owner,” equitable police, and an therefore, might have been to if able discover the contract had not they learned through purposes of it the interrogation. The preclude Dorado and Escobedo eradication of the taint upon the illegally obtained sales on the contract of such basis hypothesis. sheer hold, however,
We prejudice cannot that defendant suffered permitting from the error cross-examination the sales Facing, overwhelming contract. showing presence of his at the scene of the killing police and of his officer, defendant chose the defense participated that he had not the robbery actually although occurred planned he had to shooting commit a and that police of the. officer robbery, was accidental. In the context a defense, of such which established that defendant harbored motive to commit a robbery in payment order meet a due on a conditional merely sales contract confirmed defendant’s admission of the fact; nothing the-People’s same it added ease, nor did it detract from the defense. doubt, reasonable Beyond error did not to the guilt contribute on the verdict trial. (Chapman (1967) 386 U.S. L.Ed.2d California 705, 710, 87 S.Ct. 1065]; A.L.R.3d Modesto Cal.Rptr. 124, 427 P.2d Alleged improper admission articles seized from car
Defendant attacks the trial court’s admission into evidence of items seized from defendant’s car four hours sub sequent arrest, police after a officerhad car towed the impound garage. orange items included defendant’s shirt, pearl buttons from shirt, sunglasses, cap, makeup in a box. Defendant contends that because the evi *16 dence place was seized at time and arrest, it remote
780 product incident to of a search as the was not admissible (1964) v. States urges to follow Preston United us arrest. He 777, People 881], v. 84 and S.Ct. 364 L.Ed.2d 376 U.S. [11 Cal.Rptr. 531, 67], 394 P.2d 61 575 (1964) Burke Cal.2d [39 police conducted at a a vehicle search holding unlawful hours after an arrest. station in the the evidence however, whether decide, not
We need not since it could obtained unlawfully, case had been instant fails to case; indeed defendant prejudiced have prejudice. items have could any only source of suggest defendant, of issues admitted truth to establish the tended commit general intention to culprit and as the identity shot, robbery. that he fired the fatal admitted Defendant robbery they ‘needed planning the that in he testified features” and help up our objects that cover would some makeup, we not do caps, sunglasses, and- purchased prosecution’s into evidence introduction that believe adopt the to defendant’s decision items these contributed 158, Spencer (1967) 66 Cal.2d People v. position (Cf. taken. Cal.Rptr. was that 424 P.2d His defense 163, 168 [57 actually occurred participate in he did not Upon accidentally. these shot fired the fatal he and issues, bearing whatsoever. We had no the seized evidence a reasonable harmless beyond error was conclude 18, supra, 386 (Chapman California, U.S. v. doubt. People 824, 1065]; 710, 705, A.L.R.3d S.Ct. L.Ed.2d Modesto, supra, 695, 714.) 66 Cal.2d Alleged morgue photographs admission erroneous At the conclusion of the defendant’s case the court morgue photographs evidence two admitted into colored establishing purpose of the bullet and trajectory gun distance between the and the victim. We cannot accept photo defendant’s contention that introduction graphs prejudicial constituted error. People Schader, supra, 716, we stated: ,“The -pictures showed considerable amount of blood and value; view, unpleasant they
were but did have evidentiary question possible such outweighed whether value prejudicial effect rested within the sound discretion of (People Arguello trial court. Cal.2d ; v. Henderson 377] Cal.Rptr. 77, 677].)” 386 P.2d Although 495 automatically prior ruling, we bound our are since the *17 (see replay instant trial was a tbe first trial not mere (1967) 65 Cal.2d Hillery evaluating 208]), same we reach the conclusion. shooting that the occurred acciden contention tally, path weapon the the and the distance of bullet expert from the testi neck, victim’s addition to medical slight evidentiary mony, constituted facts of some value. Alleged errors in instructions involving raises
Defendant two contentions errors first, argues, instructions. He the failing court erred in to repeat upon instructions murder degree second and man complied request when it twice slaughter with the of the fore repeat conspiracy man to degree instructions on and first Second, origi defendant murder. contends that several of the erroneous, superfluous nal instructions were and prejudicially repetitive. point. We find no merit in either
We repetition find no error the court’s of instructions requested jury. the instance, In each the court read more than original one-fourth of all of the It instructions. jury fully upon
instructed the not those matters which it only specifically requested upon implied those but matters from a posed question the foreman and to hypothetical necessary jury’s comprehension Although the applicable the the law. repeat upon
court did not original its instructions the ele- degree ments manslaughter, of second murder and the jury felony-murder indicated theory that it was concerned with the premeditated and not murder. repeated instructions We the either cannot believe that con- jury subjected pressure fused the or it judge. to from the The court careful to disclaim scrupulously intention to learn of the emphasize content the deliberations or to one through another repetition. over instruction The instructions were framed in a manner, neutral rather properly than with as, emphasis undue on affirmative constructions such “it is duty your or, if” convict “defendant if.” We guilty know of no requires repeat rule which the court to all its original jury instructions whenever requests the additional particular point. procedure instructions Such would only time-consuming not exhausting extraordinarily court, jury, the parties, and the but also would deter jury requesting, giving, the court from additional single to elucidate a instructions issue.
Defendant contends that the trial court erred in instructing it could consider evidence of ques- bearing might have on the
prior robbery such as it “for or are innocent the defendants guilty tion whether charged The context of against them in this action.” crime properly limited instruction shows that “Such evidence was of the evidence: consideration jury’s received for purpose only: prove distinct a limited criminality, bearing, any, but for such or continual if offenses defendants are question whether the might it have on the charged against them in this of the crimes or innocent guilty relating any, of value, if such action. . . . robbery other than the alleged commission of tends depends whether or not it charged in indictment the mind of defendant existed Harry to show there *18 robbery alleged in the indictment a at the time of the Schader he the scheme, system design, entertained plan, or or that robbery. necessary of the crime which element intent added.) argument (Italics of defendant’s balance . .”. depends upon the impropriety of the instruction to the as prior conten- robbery, of the evidence inadmissibility rejected above. tion which we contention that the court raises the second Defendant degree its definition of second mur including within erred der, “Two, attending killing show' the when the circumstances malignant Several months after the or heart.” an abandoned explained in some detail instant trial we conclusion the metaphor mixed upon based this why instruction hoary “unnecessary and 188 is in Penal Code section embodied Phillips (People (1966) 64 undesirable.” disapproved 353].) we its Cal.Rptr. While use, in instructions hold that its inclusion we did not future Phil (People v. upon degree murder constituted error. second 588.) p. lips, supra, at
Third, argues repeated the defendant upon degree. unnecessarily murder of the instructions first report instructions, attempt or We shall to summarize the merely in view of note our conclusion the multi but prosecution pertaining of theories advanced to plicity, degree murder, the 'court’s instructions were as first succinct possible. had If the court omitted the instructions as any tendered, might argued appeal have defendant successfully adequately requirements define the court failed necessary degree first for conviction of murder.
Finally, no contention that find merit in defendant’s we called attention instructions unnecessary court’s fact that the police victim was a appeared officer. The fact but original instructions, once in although it was included in portions upon jury’s re-read request. Other relating guilt contentions to the trial
Defendant raises a number of other contentions which lack merit. We shall briefly deal with each. (a) Sufficiency the evidence. Defendant contends
that the insufficient, evidence was law, sup- as a matter of port a degree conviction first murder. Yet the evidence sufficiently sustained the conviction one of three (i) theories: McKnight that defendant killed Officer deliber- premeditation; (ii) killing that the ately occurred during participated in which defendant as an accomplice pursuant agreed-upon ato plan; and previously (iii) that defendant became an aider and abettor in the rob- bery after he became aware of its existence and killed the officerwhile escape. effectuating theory, eyewitnesses to the first
As to the struggle between and the victim testified that for several seconds -defendant he before fired the fatal shot defendant had gain succeeded in ing advantage the officer moving around behind pistol. him as defendant drew his Defendant testified that he pistol brought up he This, cocked it to the officer’s neck. permitted the infer that defendant formed premeditation during strug moments of the 155, necessary Quicke gle. (People 158 [37 393]; 390 P.2d Cartier Cal.2d 300, Cal.Rptr. 573, 305-306 353 P.2d *19 theories, As to the second and third of the employees that
market testified defendant moved to within several feet area:of the checkstands at the of the time codefendant Turner perpetrating the and. left robbery, was a few seconds after participated fled with the loot. Defendant Turner had in' a robbery his in prior uncle which the uncle’s role was to' in a manner similar defendant to that of
“cover”
defendant
might
properly
in
instant offense.
have inferred
jury
such evidence either that defendant acted
from
as an
simply
executing
plan15
accomplice
a common
or that he became when
learned
robbery
and abettor
he
aider
was in
that
would,
theoiy
course,
of
be inconsistent with
15Such
eodefendant
acquittal
not,’however,
on the murder eount. We
Turner’s
need
decide
Sehader
raise a
of
whether defendant
contention
inconsistent ver
dicts,
theories.
support
upon
sufficient to
since
evidence was
the verdict
other
compelled
Nothing
jury to believe defendant’s
progress.
only
perpetration
of the
story
he learned of the
that
of direct
killing, even in the absence
contradictory
after
evidence.
his
was
that
arrest
Illegal arrest. Defendant contends
(b)
canse,
probable
and that all
upon less than
illegal,
based
as
sup-
arrest should
subsequent
to the
be
obtained
upheld the
of
“poisonous fruit.” We
pressed
legality
its
supra,
722-726,
Schader,
62 Cal.2d
in
the arrest
officer, soci-
as faced this
such circumstances
“Under
saying,
rather
suspects
are innocent
of
who
risk the arrest
ety must
effecting
the arrest
hazards
subject
to needless
than
officers
(Id.
p. 725.) We noted the
suspected
at
murderers.”
of
armed
dissent-
Mr. Justice Jackson
of the view of
pei’tinence
Brinegar
States
338 U.S.
v. United
opinion in
ing
1302],
that .standards
1879, 1894, 69 S.Ct.
L.Ed.
183 [93
gravity
depend somewhat
“should
probable cause
’’
evidence, adduced
that new
Defendant contends
offense.
trial, showed
the arrest-
the instant
the first
at
time
permits
suspicion only,” and
us to
“arrested on
ing officer
People Hillery, supra,
holding. (See
earlier
our
reexamine
find, however, that such
“new
We do
803.)
65 Cal.2d
previous deter-
rationale of our
falls without
evidence”
again that defendant’s arrest
once
mination,
conclude
proper.
(c)
fury panel
selection
Discrimination
accept
We cannot
contention
he
right
of his Sixth Amendment
tried
suffered
be
violation
peers
panel
in that the members of the
came
a jury
“high social,
predominantly
economic and educational
society.”
only
Not
did defendant
strata of
fail
properly
by objecting
composition
raise the issue
to the
of the jury
composition
panel,
panel
does not show that the
but he
systematic
“intentional,
resulted from
discrimination
persons
(People
. . .
.
of defendant’s
economic status .
. .”
Cal.Rptr. 645,
v. Carter
affecting the
8. Error
determination
penalty
relating
Defendant raises several
to the
contentions
phase.
penalty
judgment
as to
We conclude
penalty
must
reversed
errors
condemned in
because of
type
Witherspoon
Illinois, supra,
We set the footnote the relevant voir of Mrs. forth *20 Dawson.16 We are unable to find that she made it “unmis takably automatically clear that would vote against [she] imposition capital punishment of regard the without to any might developed evidence that be at the trial or (2) ... penalty prevent attitude toward the death would [her] [her] making impartial decision as to the defendant’s guilt.’’ (Witherspoon v. Illinois, supra, 391 U.S. 522-523, 784-785,
fn. L.Ed.2d S.Ct. Mrs. Dawson merely opposed stated that she penalty was to the death opinions prejudice that her on death penalty the would her.17 16“ Q: by [By this the time what the You have an awareness Court] problem you’ll be con ease is about and the the which nature you any why mind, you fronted. With that in know reason couldn’t do serve this case? very Honor, prejudiced. “A: Your I’m I would be I have afraid strong opinions penalty. on the death “Q: “A: ‘‘Q: "A: you penalty? opposed Are to the death I do. opinion? That is a conscientious Quite very something conscientious. It’s of that’s old. “Q: course, Then, law, up qualifica- the the law a that’s under sets that as you tion, permitted pos- would not in to serve this case where sible. “A: Yes.” The court then excused Mrs. Dawson. argument 17The in v. Varnum is raised that the test 553], compels us to review questions jurors previous asked the to examination of Mrs. Dawson Mrs. Dawson entirely and that “it that when reasonable assume ‘prejudiced’ anticipating stated she would be she was test the court’s question” guilt, penalty did not have mind trial. Yet premises collapses. even on its own this contention by court Mrs. stated to Dawson: ‘‘You have an awareness this problem what time of you’ll the case is about and the nature with which (Italics added.) be confronted.” The court then asked: ‘‘With you you why that in mind do case?” In questions know of reason couldn’t serve in this checking transcript although we note that the court’s as to other veniremen have been directed toward the find- ing guilt, prosecution examining jurors carefully counsel distinguished guilt penalty Typically, ques- between the and the trials. tioning early veniremen, Grady Epps, Jr., one of the counsel him advised jury degree if returned a verdict of first murder as to defendant ‘‘ penalty it then becomes involved in a trial to determine whether or not penalty death, shall be life or I then will [and] ask this on evi- anticipate presented I penalty dence to be to return the death prosecutor specifically this defendant.” The asked the venireman if he ‘‘ you . could . . return a verdict virtue of which could condemn this sitting penalty man here death” in such trial. The substance of this question constituting repeated practically every examined, venireman thereafter at least in number. When the court Mrs. directed Dawson to refer to the ‘‘nature of the problem” confronted, with which she would be and to ‘‘what the case is necessarily about” the court previous included examination of all Indeed, very, ‘‘you veniremen both many court and counsel. cases the specifically previous venireman, stated to the have heard the questions propounded by various (italics court and counsel ...” *21 Mrs. statements from distinguish Dawson’s cannot
We for in re basis exclusion In be an erroneous held to those we Cal.Rptr. 21, 447 P.2d 69 Cal.2d Anderson prospective juror trial one “. . Saterfield’s . . 117]. [A]t penalty,’ and was there- opposed to the death ‘I am stated, prospective Anderson’s trial one upon cause; for at excused question ‘Do know of reason response to the juror any you impartial juror in this case?’ a fair and be couldn’t you in capital punishment’ I I believe sir, do. don’t replied, ‘Yes, neither instance excused for cause. In and was immediately particular prospective to it clear that had court made the penalty or death conscientious juror opposition to the that by to insufficient itself scruples against penalty would be that juror . . serving. . such disqualify death “Witherspoon a sentence of can not held ‘that imposed was or recommended it jury if carried out the they simply excluding for because veniremen cause chosen expressed penalty objections or the death general voiced to ’ ’’ scruples its infliction. against religious conscientious or 617-618.) Anderson, supra, pp. (In re at Cal.2d in excusing error Mrs. committed court therefore trial Anderson, (In re requires reversal. Dawson, and this error need not con 619-620.) we supra, Accordingly type of the allegations of further errors sider defendant’s Illinois, supra, Witherspoon U.S. condemned the regarding claims of error urges Defendant additional majority of this penalty phase. of his contentions Some supra, Anderson, recently rejected in In re court has retrial. at the 613; penalty others not arise Cal.2d however, consider guidance court, For we of his of that evidence commission defendant’s contention tried, he introduced nine for which was never robberies, other result, (see, Wulff). added) example, of As the examination Jack for question the and stated she had. when Mrs. Dawson answered court’s “very strong opinions penalty’’ we the cannot tell whether she death penalty guilt light her or the trial. In of referred to attitude as the veniremen, prior questioning the of her answer have the could referred Indeed, questions trial. two to either asked of the veniremen imme- diately prior (Ladd Grimm) to Mrs. Dawson and did not even include question” of so-called “test the court as whether the venireman prejudiced guilt would be as trial. Thus the likelihood that Mrs. guilt any event, Dawson had her answer automatically penalty mind trial is all the more remote. surely “unmistakably does not make it clear that would [she] imposition capital punishment” vote in the (Witherspoon Illinois, supra, 510, 522-523, trial. 391 U.S. fn. 776, 784-785, 1770]; L.Ed.2d 88 S.Ct. see v. Osuna 768-769 at phase, 'unfair prejudicial, was penalty inherently in that the were particu- offenses not described with sufficient larity proof to time and plaee, as all of their elements was incomplete, and properly the court failed to instruct the upon proof required standard of its consideration robberies. The instructed the other follows: jipcy you may “You are instructed not consider such evidence respect alleged crime or in aggravation offense penalty, unless the commission proven of the offense was beyond presumed a reasonable doubt. The defendant is inno- presumption place cent those crimes. The effect of this is to proving the burden of him State thereof guilty beyond a proper reasonable doubt.” The instruction protected against any deficiency would have defendant other, People’s proof (People Polk *22 of the v. offenses. People 641];
63 Cal.2d 451 406 P.2d [47 Terry Cal.Rptr. 605, 137, 149, fn.
Defendant also contends that the evidence of six of prior the nine robberies' should have been excluded because it was obtained as the fruit of improper interrogation preced ing defendant’s conviction. The record before us support contention, fails to this and since defendant failed to object of to the admission the evidence at trial he urge its now inadmissibility. judgment imposing The the death is reversed penalty inso- other,
far it respects as relates to the In all penalty. judg- is affirmed. ment
Traynor, J., Peters, J., C. Sullivan, J., concurred. BURKE, Concurring J., and Dissenting.— I application dissent. In Our of the rule in announced Witherspoon (Witherspoon Illinois, U.S. L.Ed.2d 1770]) S.Ct. this court noted in its decision , in 492-493 Cal. Varnum Rptr. 161, 450 P.2d : requires “Our task us to assess the 553] responses of the venireman in the full of portion context that of and counsels’ voir dire examination of the entire panel during conducted time said venireman present the.
in the courtroom and until the time he or she was -excused juror cause. To ascertain what the meant said, what he we merely must consider not of words his answers but also questions of the words he was asked and all additionally of in colloquy the circumstances which the place. took juror individually a is not voir dire examination of conducted process part is directed to in a it but broader vacuum; designed to group of men and effectuate tbe an. entire women impartial jurors. Before his name is of fair and selection body in the individual venireman is drawn, the attendance subject process, of this courtroom, an involved panel by of the collectively with the other members addressed them,, observing and aware of the judge, and, along with first veniremen names are individual examination whose mind, juror’s short, probing of the state drawn. In our particular word or cannot fasten our attention we examina-, of the phrase of the entire context to the exclusion ’’ it setting tion and the full which was conducted. voir ease, Varnum a review of the to the instant Applying very outset the court indicates that at the dire examination as penálty phase decision panel in the instructed that (if guilty) suffer found should to whether the defendant imprisonment the discretion death or “is within life first jury.” explained questioning one of the He further ‘‘ proper case; is a jurors this suggesting was not he get that far.” determine, if we for the would-be respect The court stated. the test conscientious objections opinions concerning or the death as fol- penalty scruples “Do have such conscientious lows: you any imposition preclude you of the death would penalty (Italics returning guilty proper a verdict in a case?” added.) The this 40' court reiterated test over occasions. Thus, it a review of the entire record that each clear from prospective juror seeking was made aware that the court was scruples any to ascertain whether conscientious which juror preclude juror as to might such have were such such *23 returning guilty. from a verdict of Witherspoon, supra, and in In
Under this court’s decision Anderson, 21, re 447 P.2d 117], jurors proper to excuse for entirely it was cause whose penalty- prevent death them attitude toward the would from impartial guilt. making an decision as to the defendant’s In Fain, Cal.Rptr. 633, 65], juror held a this court whose views would preclude returning degree her from a first murder conviction Fain, properly hand, was for in excused cause. other On juror we held it be difficult for her that a who said would to as penalty improperly vote for the excused because death was Witherspoon juror it that such cannot assumed “could be never in favor of vote it or that he would not doing consider ” (Id. inso him. pp. case before at 515-516, 9.) fn. Thus, in Fain we noted the distinction between the effect juror’s scruples respect conscientious capital pun- to upon
ishment ability impose to penalty vote to the death itself as distinguished ability from his impartially to act the determination guilt. of defendant’s These prejudice two and the standards types different applied be to them were in Witherspoon, defined clearly
supra, pp. 522-523,footnote and reiterated this court in Anderson, supra, p. They quoted again are in the opinion in majority case, but, the instant I submit, are not followed. prospective Under those juror standards the must make it “unmistakably clear auto would [she] matically imposition capital vote punishment regard without might developed evidence that at the trial . . or (2) . attitude toward the death [her] penalty prevent would impartial from making as to [her] decision guilt.” (Italics Witherspoon added; v. Illi 784-785, nois, supra, 391 fn. 21 522-523, U.S. L.Ed.2d 776, S.Ct. 1770].) case, instant noted, judge’s as has been test question, repeat which he continued to time and time again, dealing category came under the second with the effect of a juror’s ability impartial attitude to make an deci- guilt sion as category to defendant’s under the first dealing ability penalty with his to vote the death itself. juror
The first asserted to have been excused improperly Ragsdale. was Mrs. At least had veniremen been examined questioned court before she was and each'one of the question had been asked the test referred to above. There were language in the some minor variations used exact but no substance; pertained change specifically whatever in each scruples upon juror’s ability the effect of conscientious guilt (and imposing return a verdict not with the death itself). penalty judge’s if Ragsdale
Mrs. was asked she heard the statement questions propounded of the case and the the court and hy counsel and nodded She then asked the test affirmatively. phrased
question, albeit different manner. The slightly questions and answers were as follows: you scruples
“The Do some Court: have conscientious prevent returning guilty a verdict would you penalty might imposed case wherein the death he ? *24 libe I should sit on the I don’t feel Well, your Honor,
“A. ease. opinion time, this Mrs. you an at have Do CouRT: “The opinion is. I me what the you to tell Ragsdale? I want don’t you ? know if one want to have opinion, Yes, I have an sir.
“A. do take evi- opinion is such it would “Q. you And feel that it ? dence to remove Yes,
“A. sir. ‘ ‘ juror-? excusing this Any objection to The Court : No, your Honor. “Mr. Davis: Puglia: No. “Mr. No,’.’ “Mr. Wells: had juror said was that she conscien- this In essence what opinion,” it which phrased “an would scruples, she tious returning opinion an verdict prevent from her guilty, “opin- her Whether take evidence remove. which would prosecution we do know but the defense or ion” favored impartial guilt issue juror was not clearly this properly was excused. jurors 18th in the list of exam- about the Juror Ross was repeat question test had heard court and thus he
ined questioned. he was He was asked: at 17 times before least ‘‘ any reason from what have heard Q. you know of you Do give to both sides and all you couldn’t here today why parties impartial trial ? fair, in,regard very strong feelings Yes, have some
“A. I punishment capital law. you telling at this time have “Q. Are the Court you you might preclude scruples which
some conscientious returning a where — verdict guilty do, yoiir I Yes.
“A. Honor. excused, then, you’ll sir. Thank Well, be “The Court: you.” properly
I submit he excused cause. had juror was examined she heard the By the time Dawson court, question, stressing to determine ask the test ability Also, questioning every in the of almost guilt, over 30 times. preceded her, at prospective juror who least actual juror would whether the counsel count, either the or ask had questions been asked of the had heard all of questions, jurors. identification Mrs. Daw- other After certain proceeded along son’s examination the same line: ‘‘ time Q. You this of what the case have awareness problems you’ll about and nature with which *25 you in mind, any confronted. With that do know reason on this ? couldn’t serve case why you Honor, prejudiced.
“A. Your afraid I’m I would be I have very strong opinions penalty. the on death ‘‘Q. opposed Are to the penalty death ? you “A. Ido. ‘‘Q. is opinion That ? conscientious ‘‘ Quite A. something conscientious. It’s that’s old. very ‘‘Q. Then, course, under law, up the the law sets as that you a qualification, permitted would not to be serve in this possible. case where that’s
“A. Yes. Again, : ladies and gentlemen, this Court is not'
“The Court suggesting, proper that is disposition. that the I’m merely stating legal principle you are which on confronted you this So issue. will be excused.
“Mrs. Thank you, DawsoN: sir.” I believe that it is to assume reasonable that when entirely Mrs. “prejudiced” Dawson stated she would be she was anticipating the sequence which question which, court’s .test the normal employed, immediately he had after followed general question juror as to the whether knew of any reason "whyhe couldn’t serve in case. the fact,
In- than a the more dozen instances identical sequence Referring was followed. back to the examination of juror questions Ross it is to noted the court asked the be sequence anticipated question and that Ross identical just to as am it is to asserting follow I reasonable assume juror Dawson did. juror prejudiced”
A who volunteers she be “would “strong opinions penalty” her because of the death .was properly judge determined the trial to be one whose “atti- prevent tude would from toward death penalty [her] impartial making an as to guilt.” decision (Italics added; Witherspoon, supra.) panel Mr. Slaff was the last of excused to cause
relating Witherspoon issue: “Q. sir, why you You know reason, couldn’t sit on particular this give to both sides a fair ? trial Well, sir, capital “A. I feelings punish- have fixed about ment.
“Q. Do I say that, you understand that are when you opposed imposition penalty of the death ? Yes, “A. sir. you .sit there- you hold, opinion which “Q. Would in a guilty returning verdict preclude you
today, case? Yes, sir. “A. ‘‘ circumstances, sir, you The Coukt : Under those ’’ That’s all. you So will be excused.
serve. properly excused under Here, again, he was the second'cate- relating guilt. gory prejudices they distinguish assert cannot
The majority Dawson from those which we held in answers of venireman cases, Cal.2d 613 Anderson-Saterfield compelling distinction, 117], as a reversal. The how 447 P.2d readily apparent. In ever, cases, the Anderson-Saterfield case, unlike the instant the trial court did not use the test question utilized instant judge case. Sater- field, companion Anderson, supra, 69 case to *26 emphasis questioning in court’s few very penalty where he referred to the death at all was on instances imposition penalty itself and hot on the of death bear ing prejudice of question guilt: on the of any question might put
“The Couet: One other that the Court you probability People in' people; in all will this matter penalty. Now, any you are seeking be the death there of with objections, otherwise, conscientious or that would cause you be request. biased for or such a any any already pre-con- have, “Do of have a you you something you ceived is notion this couldn’t deliberate- on impartial a fair and mind ? ‘‘ ’’ you Are way there that feel that ? any voir Likewise counsel in their dire examinations both Saterfield, supra, jurors they Anderson and asked the if prefer penalty tended to one the other, any over or had initial feelings more appropriate. to which In addition in instances if prospective juror counsel asked could many penalty degree vote for the death for first proper murder in a supra, In Anderson, case. the trial court did not ask the prospective jurors specifically with reference to their views capital punishment. asking identifying pre After and other liminary questions juror each you he would ask: “Do know you reason impartial juror couldn’t a fair and juror responded this case ?” If negative the court permitted inquire. juror then counsel to If the indicated that concerning he ha.d certain beliefs death which penalty prevent serving opposition him his- would or that to the permit fair penalty impartial, death would not him to be and thereupon questioning. he was excused with no further comparable This in no to the format utilized way instant ease.
Finding application Witherspoon error no under the I penalty. dissent from the reversal of I in the concur affirm- guilt. ance of
McComb, J., and Schauer, J.,* concurred. Aug. No. Bank. 20, 1969.]
[Crim. THE PEOPLE, Plaintiff Respondent, v. WILLIAM McCLELLAN,
WESTWOOD Appellant. Defendant *27 Supreme sitting assign- *Retired Associate Justice Court under ment the Chairman of the Judicial Council.