Lead Opinion
Opinion
Following the guilt phase of a jury trial, defendant Mitchell Carlton Sims was found guilty of one count of first degree murder (Pen. Code, §§ 187, 189
Facts
I. Guilt Phase Evidence.
A. The prosecution’s case.
1. The crimes.
On December 8,1985, in Glendale, California, defendant and codefendant Ruby Padgett
On the afternoon of the following day, a man and a woman entered a Sears store in Glendale and purchased a package of socks, underwear, a
On the evening of December 9, Kory Spiroff was working at the Domino’s Pizza parlor with delivery drivers Edward Sicam and John Harrigan. The three men wore Domino’s Pizza uniforms, consisting of short-sleeved shirts bearing a Domino’s badge and a name tag above the badge. At 11:03 p.m., they received a telephone order for pizza from a male who spoke with a southern accent. The order was to be delivered to room 205 of the Regalodge Motel, located a three-minute drive from the parlor.
At 11:26 p.m., Harrigan, who was 21 years of age, left the parlor in his Toyota truck to deliver the pizza. He had sufficient money to make change for a $20 bill.
Approximately 11:45 p.m., defendant and Padgett entered the Domino’s Pizza parlor. Defendant approached the front counter, pointed a gun at Sicam, and ordered Sicam and Spiroff into a back office. Spiroff warned defendant that a delivery driver was expected to return shortly. Defendant removed his sweater to reveal a Domino’s Pizza shirt bearing Harrigan’s name tag and chuckled, “No, I don’t think so.”
Defendant found a bank deposit bag, which he gave to Padgett, who began to remove the cash (approximately $2,000) from the cash drawers. Defendant told Padgett to watch for fingerprints and began wiping the tables and cash drawers.
At this point, Richard Wagner, an off-duty coworker and friend of Spiroff, arrived at the store in a truck, accompanied by his wife. After Wagner parked in front of the store and entered the premises, defendant ordered Spiroff to approach the front counter. Spiroff acknowledged the Wagners as customers, rather than acquaintances, and asked them to stand on the other side of the front counter. Mr. Wagner was puzzled and suspected a robbery was in progress.
Defendant, wearing a Domino’s shirt bearing Harrigan’s name tag, walked to the front counter. Mr. Wagner, impersonating a customer, ordered a pizza. Defendant told him to wait outside the store in his truck and that defendant would bring the pizza to him as soon as it was prepared. He then returned to the back office with Spiroff, where Padgett was holding Sicam at gunpoint. Padgett, commenting to defendant that he had “always wanted a watch,” took Spiroff s watch from a windowsill and handed it to defendant.
Defendant reentered the store premises, began to pace the floor, and asked Spiroff where defendant could lock up the two men. Defendant then announced he had decided to take both men one at a time into the walk-in cooler. The cooler was 8 feet by 12 feet, with a 3-tier rack against the left wall, and was maintained at a temperature between 32 and 40 degrees Fahrenheit. Defendant first forced Spiroff into the cooler, proceeding to tie his hands tightly behind his back with one end of a rope. He then looped the other end of the rope over the rack and pulled it downward, raising Spiroff s arms to a painful position behind his back, which in turn forced Spiroff to stand on his tiptoes to lessen the tension of the rope. When Spiroff complained, defendant told him, “Shut up. At least you live.” Defendant then tied the end of the rope around Spiroff s neck with a knot in back of the neck, pulling the rope so tautly that—if Spiroff lowered himself from his tiptoes—the tension of the rope would cause him to strangle. When defendant asked him at what time the cooler would be opened the following day, Spiroff said that ordinarily the door would be opened at 11 a.m. Defendant stated that by that time, he and Padgett would be in San Francisco. When Spiroff asked defendant about the whereabouts of Harrigan, defendant told him that Harrigan had been tied up at the motel and would be found after Spiroff was found.
At that point, Spiroff felt extreme pain in his legs, neck, wrists, arms, and shoulders, and his hands and wrists were numb. Because of the low temperature and his stance on his tiptoes, Spiroff’s calves began to tighten. But when he failed to maintain that stance, the rope tightened around his neck, beginning to strangle him.
Defendant next brought Sicam into the cooler and bound him in a similar manner. When Sicam moaned that defendant was choking him, defendant responded, “You are alive.” Defendant then closed the cooler door, leaving the establishment at 12:15 a.m. with Padgett.
While standing on the toes of one foot, Spiroff attempted to knock over cartons stacked on the ground next to him so that he could stand on them and thereby alleviate the pressure of the rope around his neck. As he moved from side to side, however, the rope tightened around his neck. Eventually he was able to knock over a box so that he and Sicam could stand on it.
After proceeding to the Regalodge, the officers obtained from the motel manager the key and the registration card to room 205. The room was registered under defendant’s name. Upon entering the room, the officers heard the sound of running water from inside the bathroom. Opening the bathroom door, an officer found the dead body of Harrigan in the bathtub. The bathtub was full of water, and Harrigan’s body was submerged under the water with his back parallel to the side of the tub. His head was located immediately under the water spout, submerged approximately one inch under the water line, with cold water running onto the back of his neck. His wrists were bound behind his back; his ankles were bound, and his feet and hands were “hogtied” together behind his back. Harrigan’s head was covered with a pillowcase bound tightly around his neck with a rope. A folded washcloth had been placed inside his mouth, secured by a sock tied around his head. No money, wallet, or car keys of the decedent were found on the premises. The telephone cord inside the room had been severed.
Dr. Joseph Cogan, the forensic pathologist who performed the autopsy on Harrigan’s body, determined that the cause of death was ligature strangulation. His opinion was based upon (1) the depth of the ligature furrow around the decedent’s neck, indicating the extreme pressure of the ligature around the neck; and (2) the numerous hemorrhages on the inner eyelids, indicating that Harrigan was alive when the neck ligature was applied, because it obstructed the flow of blood to the head and the brain. Dr. Cogan opined that the decedent lived for no more than 10 minutes after the neck ligature was applied and that the use of this ligature was sufficient in and of itself to kill Harrigan. Dr. Cogan further testified he could not rule out drowning as a possible concurrent cause of death, based upon Harrigan’s having been found fully submerged in a bathtub of water with a gag in his mouth, and the presence of frothy pulmonary edema in his trachea and bronchi.
Investigative technicians testing for fingerprints in the motel room were for the most part unsuccessful, because all surfaces appeared to have been wiped with a wet towel. One fingerprint which positively matched defendant’s left thumb print was found on the inside of the cardboard toilet tissue roll. Defendant’s latent fingerprint also was found inside one of the telephone books in the motel room, on the page listing pizza establishments.
The prosecution introduced evidence of defendant’s motive to commit the crimes. In March 1984, defendant was hired by Domino’s Pizza in South Carolina. In June 1984, he enrolled in its management training program and, in January 1985, became a manager of a Domino’s Pizza parlor located in West Columbia, South Carolina. Defendant resigned from Domino’s on May 12, 1985. He believed that his boss, Mr. David Littman, was responsible for defendant’s losing a portion of a bonus to which defendant thought he was entitled. Defendant was furious with Littman and sent his letter of resignation, complaining about Littman, to the Domino’s Pizza headquarters in Michigan. Upon receiving no response to his resignation letter, defendant sought revenge, relating to his then-current girlfriend his desire to use explosives to kill Littman. Defendant also purchased a gun. On November 15, 1985, defendant was hired as a delivery driver by another Domino’s Pizza establishment, located in Hanahan, South Carolina.
2. Defendant’s arrest.
On December 25, 1985, after verifying an anonymous tip that defendant and Padgett were residing in a motel room in Las Vegas, and having been informed that defendant was believed to be armed with a handgun and a machine gun, Detective August Knudsen, accompanied by other officers of the Las Vegas Police Department, proceeded to the motel room. Defendant allowed them to enter. After defendant identified himself, he and Padgett were placed under arrest, handcuffed, and searched. Knudsen recited to defendant the Miranda warnings (Miranda v. Arizona (1966)
Other items subsequently found in the motel room included ammunition, a bank deposit bag, a knife, a pair of socks, a section of a December 11, 1985, Los Angeles Times opened to an article entitled, “Delivery Man Slain While Making Run,” and a page torn from the yellow pages of a Las Vegas telephone book listing pizza establishments (including the local Domino’s Pizza parlors).
Harrigan’s Toyota truck also was recovered in Las Vegas, approximately 20 miles from the motel. Found inside the truck was the Domino’s Pizza shirt bearing Harrigan’s name tag.
On the following day, December 26, defendant notified the jailhouse authorities that he again wished to speak with the Glendale police officers. The officers returned to the interview room and, while waiting for defendant, Officer Perkins activated a small tape recorder that was concealed from view. When defendant arrived, he initially complained about the conditions of his confinement and then made further statements tending to incriminate himself with regard to the Glendale murder. When Officer Perkins readvised defendant of his Miranda rights, defendant expressly waived those rights. He then related that he had worked for Domino’s Pizza in South Carolina and that he and Padgett had travelled by bus from that state to Glendale, then renting room 205 at the Regalodge Motel. Defendant further stated that they thereafter went to the Glendale Domino’s Pizza and asked for directions to a drugstore, subsequently proceeding to a Sears store, where they purchased a knife, among other items. The following day they returned to the Domino’s Pizza and ordered a pizza. At that point in the interview, defendant indicated he did not wish to speak further without having an attorney present, and the interview was terminated. An edited version of the tape-recorded statement was admitted into evidence and was played for the jury at the guilt phase of the proceedings.
B. The defense case.
Defendant did not testify. Dr. Robert Bucklin, a forensic pathologist, testified that he disagreed with the prosecution’s expert testimony that indicated ligature strangulation was a cause of death. He opined that the cause of death was drowning. According to his theory, Harrigan still was alive when placed in the bathtub and, while attempting to maneuver himself, struck his head, lost consciousness, and drowned. Dr. Bucklin listed the factors supporting his conclusion, including the heavy accumulation of
Dr. Cogan (the forensic pathologist who had testified during the prosecution’s case-in-chief) also was called by the defense and testified that the defense expert’s theory as to the cause of death was a possibility.
A criminalist testified that a piece of rope tied around a person’s neck, under conditions approximating those involving the ligature tied around the decedent’s neck, would not cause loss of consciousness.
The defense presented was that the evidence supported the inference Harrigan was alive when placed in the bathtub and left by defendant and Padgett, and that the prosecution had failed to prove beyond a reasonable doubt that defendant had possessed the intent to kill Harrigan, Spiroff, or Sicam.
As previously noted, at the conclusion of the guilt phase of the proceedings, the jury found defendant guilty of one count of first degree murder, with two special-circumstance findings (that defendant committed the murder while lying in wait and during the commission of a robbery), two counts of attempted murder, and three counts of robbery. The jury also found that defendant used a firearm during the commission of each offense.
II. Penalty Phase Evidence.
A. The prosecution’s case.
The prosecution introduced evidence that defendant robbed and murdered two Domino’s Pizza employees in South Carolina less than one week prior to the commission of the crimes charged in the present case. On the evening of December 3,1985, approximately two weeks after defendant was hired as a delivery driver at the Domino’s Pizza parlor in Hanahan, South Carolina, Gary Melkie, the assistant manager, and Chris Zerr, a delivery driver, were working at the establishment. On December 4, shortly after 2 a.m., Melkie appeared in the lobby of the Hanahan Police Department, located approximately three blocks from the Domino’s Pizza. Melkie, dressed in his Domino’s Pizza uniform, apparently had driven a truck from the restaurant to the police station. A telephone cord was dangling from one of his wrists. He was
Melkie was transported to the hospital and was conscious upon arrival. While physicians attended to Mm in the emergency room, the paramedic asked Melkie who had shot Mm. Melkie responded, “Sims. Mitch Sims.” Melkie related how defendant had tied up Melkie and then shot Zerr. As a police officer entered the emergency room, Melkie screamed that he was in pain. The officer asked Melkie several times whether he knew who had shot Mm. Melkie responded, “Mitch Sims,” and described various features of defendant, including the color of Ms hair. The officer further inquired whether Mitch Sims had been a friend. Melkie responded that defendant worked for Domino’s Pizza. Melkie later died, following surgery.
Melkie’s autopsy established that he suffered four gunshot wounds to the head and neck. Three bullets were removed from Ms head, a bullet casing was removed from Ms tongue, and a fifth bullet, wMch had exited from Ms head, was recovered from a wall at the Domino’s Pizza parlor.
The unedited version of the tape recording of the statement made by defendant on December 26,1985, was admitted into evidence and played for the jury. In Ms statement, defendant related that he had robbed a Domino’s Pizza parlor in South Carolina before travelling with Padgett to California.
B. The defense case.
The defense presented as mitigating evidence numerous witnesses who related defendant’s family background of brutal physical, sexual, and emotional abuse. Defendant’s mother, Mildred, testified that she married defendant’s father in 1951 when she was 15 years of age and that defendant, the youngest of their 3 cMldren, was born when she was 24 years of age. Defendant’s parents divorced when defendant was six months of age, after Ms father impregnated a young girl. Mildred married Arnold Cranford in
Defendant’s stepfather Arnold had a drinking problem and became violent and sexually abusive when intoxicated. Mildred testified that when defendant was seven years of age, Arnold “raped” him. Thereafter, on numerous occasions, Arnold forced defendant to engage in oral sex with him. When defendant was 16 years of age, Arnold forced him to have sexual intercourse with his mother and, on another occasion, with his older sister Merlon. Arnold repeatedly told defendant that he (defendant) was “no good” and a bad person. Defendant began drinking heavily at the age of 14 years and attempted suicide by drowning when he was an adolescent.
Merlon testified to repeated incidents of physical and sexual abuse she and the other children had suffered at the hands of Arnold. Frequently Arnold would drag Merlon out of bed, force her to strip, and then beat her, tie her to a bed, fondle her, and occasionally have sexual intercourse with her. Following one such incident, Merlon suffered a broken nose and black eyes. After other incidents she was hospitalized. Merlon ultimately left the household but returned at 16 years of age, pregnant. One evening Arnold threatened Merlon at knifepoint that he was going “to cut that baby out of her stomach,” and then sliced her breast, necessitating that she be hospitalized. Merlon attempted suicide on numerous occasions, once by a drug overdose and on another occasion by shooting herself in the chest.
When defendant was 16 years of age, Arnold came home drunk and forced defendant’s younger stepsister, Margaret, to undress and lie beside him on the bed. He began to fondle her and told her he was going to have sex with her. After defendant called the police, Arnold was arrested and ultimately was convicted and placed on probation.
Defendant’s wife testified concerning defendant’s employment history, indicating that defendant would become withdrawn and depressed whenever he was promoted or otherwise received an advancement, and that he suffered a sense of worthlessness and guilt resulting from the incestuous act he committed with his mother. His mother, sister, and stepbrother each testified that defendant was sensitive and a good father to his three children.
A psychiatrist testified that defendant suffered chronic depression in addition to mental impairment, which resulted from alcohol and substance abuse.
A prosecutor from South Carolina testified that murder charges were pending against defendant in South Carolina and that in the event defendant
C. Rebuttal.
A South Carolina law enforcement officer testified that defendant’s wife had told him that defendant, while incarcerated, had watched the video movie “The Executioner’s Song” and had told her that “he was going to go out just like Gary Gilmore in a blaze of glory and not tied to a chair.”
At the conclusion of the penalty phase of the proceedings, the jury fixed the punishment at death.
Discussion
I. Guilt Phase Issues.
A. Claim of Wheeler error.
Following voir dire on the qualifications of the prospective jurors to serve on a capital case, the prosecutor exercised eight of his first twelve peremptory challenges to remove four Black prospective jurors—Ms. Weaver, Ms. Henry, Ms. Gaines, and Mr. Chambers—and four Hispanic-surnamed prospective jurors, leaving no Blacks and only one Hispanic-surnamed person among the prospective jurors then seated in the jury box. Defense counsel objected pursuant to People v. Wheeler (1978)
The trial court recessed the proceedings to review the questionnaires and the transcript of the death-qualifying voir dire of the four persons in question. Upon resumption of the proceedings, the trial court permitted the prosecutor again to explain his peremptory challenges and defense counsel to respond. Defense counsel then, for the first time, raised an objection to the prosecutor’s exercise of peremptory challenges to four Hispanic-surnamed persons—Mr. Mandujano, Ms. Cerda, Ms. Vasconcellos, and Mr. Estevez. The prosecutor, without prompting from the trial court, immediately offered an explanation for having removed these persons.
The trial court determined that the prosecution’s reasons for peremptorily challenging the four Black prospective jurors as well as the four Hispanicsurnamed prospective jurors were not predicated on group bias and that the
On appeal, defendant contends the trial court erred in denying his Wheeler motion. As we shall explain, defendant’s contention lacks merit.
Under the principles articulated in Wheeler, supra,
1. Prima facie case.
With respect to the prosecutor’s exercise of peremptory challenges to the four Black prospective jurors, the trial court, having made no specific finding that defendant had established a prima facie showing, allowed the prosecutor to explain his exercise of peremptory challenges. We consistently have held, however, that, in general, when the trial court inquires as to the prosecutor’s justifications, the court has made “ ‘at least an implied finding’ ” of a prima facie showing. (Fuentes, supra,
With respect to defense counsel’s Wheeler objection to the prosecutor’s peremptory challenges of the four Hispanic-surnamed persons, the question of a prima facie showing became moot. Before the trial court made any finding as to whether a prima facie showing of group bias had been made as to the removal of these four prospective jurors, the prosecutor immediately offered justifications for his peremptory challenges, and the trial court considered those justifications before denying the Wheeler motion. Because the trial court had no occasion to make a finding on the threshold question, the issue on review is the adequacy of those justifications, and “ ‘the preliminary issue of whether the defendant had made a prima facie showing becomes moot.’ ” (Fuentes, supra,
Accordingly, we proceed to review the prosecutor’s justifications for his peremptory challenges of the four Black and four Hispanic-surnamed prospective jurors, and the trial court’s evaluation of those justifications.
2. The prosecutor’s justifications.
The prosecutor offered the following justifications for his exercise M peremptory challenges to remove the eight prospective jurors in question. As to the four Black prospective jurors, the prosecutor explained that during the death-qualifying voir dire, Ms. Weaver had expressed hostility toward the death penalty, Mr. Chambers had expressed ambivalent feelings concerning the death penalty, Ms. Henry had indicated an inability to distinguish between proof beyond a reasonable doubt and proof beyond any possible doubt, and Ms. Gaines, 27 years of age, appeared too young and to lack sufficient experience in exercising responsibility. The prosecutor also maintained there was no tactical or other reason that would cause him to seek exclusion of all Blacks from the jury, stating: “We have a southern white defendant and we have white victims. Why would I not want blacks on the jury?”
As to the four Hispanic-surnamed prospective jurors, the prosecutor offered that Ms. Vasconcellos, born in Equador, had obvious difficulty communicating with counsel in English; Mr. Estevez demonstrated a cynical attitude toward the adoption of the death penalty law (the prosecutor paraphrased the juror’s attitude as “the reason [Chief Justice] Rose Bird was defeated was because the people didn’t have a head on a platter”); Mr.
As the above summary indicates, the prosecutor’s stated justifications were facially race-neutral, based upon a perception of a “specific” or individual bias of each juror rather than a group bias, and thus afforded a constitutionally permissible basis for the exercise of the peremptory challenges in question. (Wheeler, supra,
The record demonstrates the trial court properly performed its duty under Wheeler by making “ ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known,’ ” before determining that the justifications were bona fide. (Fuentes, supra,
As to the Hispanic-surnamed prospective jurors, the trial court expressly found that Mr. Mandujano “appeared quite young to the court.”
Focusing on the trial court’s sole reference, in denying the Wheeler motion, to the prosecution’s justifications relating to the four Black prospective jurors and “prospective jurors Vasconcellos, and Mandujano . . . ,” omitting any reference to the justifications relating to Mr. Estevez and Ms. Cerda, defendant argues the trial court failed properly to evaluate whether these latter justifications were bona fide.
Preferably, in ruling on a Wheeler motion, the trial court should state expressly its determination as to the adequacy of the justification proffered with respect to each peremptory challenge. In the present case, however, where the trial court permitted argument by both the prosecution and the defense relating to the stated justifications for the challenges of Mr. Estevez and Ms. Cerda, and the record of the voir dire of these jurors amply supports those justifications, the trial court’s apparent oversight reasonably cannot be construed as demonstrating a failure to exercise its responsibilities in ruling upon the Wheeler motion.
Defendant also maintains the age of Ms. Gaines, Mr. Mandujano, and Ms. Cerda did not justify their excusal, because the record reflects the prosecution did not challenge two young Caucasian jurors less than 30 years of age (Karlberg and Blakely). Defendant overlooks, however, the full explanation given by the prosecutor for his challenges of the three jurors—not their numerical age but rather their apparent immaturity and inexperience with assuming weighty decisions and responsibilities. Additionally, the prosecutor did challenge one prospective Caucasian juror because of her youth. Finally, as stated, the record of the voir dire of Ms. Cerda fully supports the justification proffered for her excusal, and the trial court expressly found that Mr. Mandujano, a college student, appeared quite young, and further found a justification unrelated to age for the challenge of Ms. Gaines. Thus, the circumstance that two youthful Caucasian jurors remained on the panel does not render discriminatory the prosecution’s challenge of the three youthful, minority prospective jurors.
We conclude the record reflects a conscientious determination by the trial court that the prosecutor predicated his peremptory challenges of each of the
B. Lying-in-wait special-circumstance finding.
The jury found true the special circumstance allegation that defendant committed the murder while lying in wait (§ 190.2, subd. (a)(15)). Defendant challenges this finding on three grounds, contending that this assertedly erroneous finding was prejudicial to his defense at the penalty phase of the proceedings.
1. Sufficiency of the evidence.
Defendant contends the evidence was insufficient to sustain the special circumstance finding. We disagree. Our prior cases establish that the factual matrix that justifies treatment of lying in wait as a special circumstance is “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage[.]” (People v. Morales (1989)
We agree with the Court of Appeal that the present case presents a “textbook example” of lying in wait under the foregoing definition. (See, ante, p. 432, fn. 4.) There was substantial evidence that defendant and Padgett purchased a clothesline and knife, then rented a motel room, telephoned tiie Domino’s Pizza parlor, and lured Harrigan to the motel room on the pretext of ordering a pizza, concealing their true intent to rob and murder him. They waited for Harrigan in the motel room, overpowered him upon his arrival, carefully bound him with the clothesline, gagged him, and left him either dead or to drown in a bathtub full of water. Contrary to defendant’s assertion, the circumstance that defendant did not conceal his presence in the motel room from Harrigan does not negate the element of concealment. (People v. Edwards, supra,
Defendant contends that although the evidence supported a finding that he and Padgett waited for Harrigan in the motel room, there was no evidence they were “watching” him during the period of waiting. Defendant maintains that mere concealment of purpose, followed by a period of waiting, is a characteristic of numerous categories of murders that are not classified as special circumstance offenses.
Again, we disagree. Although the evidence does not suggest that defendant, hidden from view, was watching Harrigan as he left the Domino’s Pizza parlor and drove to the motel, there was substantial evidence that defendant, after placing the pizza order by telephone, was waiting in his motel room and was “watchfhl,” i.e., alert and vigilant in anticipation of Hanigan’s arrival so that defendant could take him by surprise. The special circumstance element of “watchful” waiting therefore was satisfied.
2. Jury instruction.
The jury was instructed in part, in accordance with former CALJIC No. 8.81.15 (1983 rev.), that the term “while lying in wait” signifies “a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. The lying in wait need not continue for any particular period of
We disagree. The reference to premeditation and deliberation related solely to the duration of the period of lying in wait and did not dispense with the other elements peculiar to the special circumstance—namely, watchful waiting and a surprise attack upon an unsuspecting victim, either by ambush or by taking the person unaware. (People v. Morales, supra,
3. Constitutional challenge.
In order to avoid the United States Constitution’s Eighth Amendment proscription against cruel and unusual punishment, a death penalty law must provide a “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” (Furman v. Georgia (1972)
Defendant contends the trial court erred in allowing the prosecutor to pose to the prosecution’s expert witness, Dr. Cogan, a hypothetical question relating to the circumstances of Harrigan’s death, specifically whether the autopsy evidence was consistent with a finding that defendant had placed the victim in the bathtub while still alive and had held the victim’s head underwater until he drowned. Defendant maintains this hypothesis improperly was based upon a pretrial hearsay statement made by Padgett to the police which was neither offered nor admitted into evidence at trial, and which the trial court ruled could not form the basis of any portion of Dr. Cogan’s expert testimony admitted at trial.
We review the testimony of Dr. Cogan and the prosecutorial argument that form the basis of defendant’s contentions. As stated previously, Dr. Cogan testified on direct examination that following the autopsy, he formed the opinion that the victim had died of strangulation, but that he could not exclude drowning as a possible cause of death. During cross-examination of Dr. Cogan, defense counsel elicited testimony supporting the theory that the immediate cause of death was drowning, and that the victim had been placed in the bathtub while alive and then had lost consciousness and drowned. On redirect examination, the prosecutor, seeking to use to his advantage the evidence that drowning was the cause of death, asked Dr. Cogan whether his autopsy findings were consistent with the hypothesis that the victim was bound and placed in the bathtub while still alive, and that “some water was
Defendant contends the hypothetical question posed by the prosecutor to Dr. Cogan, as well as the prosecutor’s closing arguments based upon that witness’s response, were unsupported by any evidence.
Defendant’s claim is devoid of merit. Our examination of the record of the in limine hearing preceding Dr. Cogan’s testimony establishes that the trial court properly determined that Dr. Cogan’s expert opinion—that drowning was a possible concurrent cause of death—was supported by adequate foundational material, independent of Padgett’s hearsay statement. Defendant’s claim there was insufficient evidence to support such a theory is directly contradicted by the testimony elicited by his own attorney on cross-examination of Dr. Cogan (that the autopsy results were consistent with the conclusion that the cause of death was drowning), and also is inconsistent with the defense theory, presented through the testimony of Dr. Bucklin, that the cause of death was drowning. Thus, contrary to defendant’s assertion, the prosecutor’s hypothetical scenario as to the specific manner in which the victim was killed was supported by evidence, properly received at trial, indicating that the cause of death was drowning and that the victim was
For this same reason, the prosecutor’s guilt phase and penalty phase arguments to the jury based upon this opinion testimony did not constitute misconduct. Finally, the prosecutor’s specific argument that defendant, rather than Padgett, held the victim’s head underwater was supported by evidence establishing defendant’s motive to commit the crimes and his lead role in incapacitating the two other victims at the Domino’s Pizza parlor. The prosecutor’s argument to the jury therefore was proper.
D. Claim of Miranda violation.
Defendant contends the trial court erred in denying his motion to suppress the three incriminating statements (amounting to a confession) that he made on December 25,1985, to Glendale Police Officers Perkins and Montecuollo at the Las Vegas jail following his arrest, and the statements (some amounting to a confession, and others to admissions) that he made on December 26, both prior to and following readvisement of his Miranda rights. Defendant asserts these statements improperly were elicited from him during police-initiated interrogation after he had invoked his rights pursuant to Miranda v. Arizona, supra,
The trial court’s ruling admitting these statements was based upon the following evidence adduced at the hearing held on defendant’s motion to suppress. Officer Perkins testified that he and Officer Montecuollo met with defendant on December 25 in a jailhouse interview room. Officer Perkins introduced himself and told defendant the officers were investigating a murder committed in Glendale, California. Officer Perkins advised defendant of his Miranda rights by reading them from a standard admonition form. Defendant stated he would not waive his rights and signed the admonition form so indicating.
As the officers stood up, gathered their papers, and prepared to leave, defendant asked Officer Perkins “what was going to happen from this point on” and referred to the matter of extradition. Officer Perkins explained to him that proceedings would commence for his extradition from Nevada. Defendant asked whether he would be extradited to California or to South
Officer Perkins continued describing the crime scene, including the condition of the victim, bound, gagged, and submerged in the bathtub, and said to defendant that the victim “did not have to die in this manner and could have been left there tied and gagged in the manner in which he was found.” Defendant replied, “The boy would have identified me.”
Defendant also made several comments about how he and Padgett had watched the television news coverage of the crimes prior to their arrest. Officer Perkins told defendant that because he had refused to waive his Miranda rights, the officers could not discuss the facts of the case with him further, and that in the event defendant wished to discuss the investigation, defendant would have to initiate further contact with them. Before the officers left, defendant asked whether he could speak with Padgett and said he wanted to have some cigarettes.
The next day, December 26, defendant advised the jailhouse authorities that he wished to speak again with the Glendale police officers. Officer Perkins, carrying a concealed tape recorder which he had activated to record the conversation, and Officer Montecuollo met with defendant in an interview room. Defendant spoke to the officers about his attempt to obtain cigarettes and his desire to communicate with Padgett. He then complained that the Nevada police perceived him as suicidal, and the following conversation ensued: “[Defendant]: . . . I’m going crazy. . . . See everyone down there . . . they think I’m going to kill myself. I’ve done nothing since I’ve
Following this remark, Officer Perkins immediately changed the subject and returned to a discussion about obtaining cigarettes. Defendant mentioned having signed some papers relating to extradition, and a discussion ensued regarding extradition proceedings. At one point, defendant said he did not understand why he could not return to South Carolina, because there were “2 murders in South Carolina.” Officer Perkins reminded defendant that the officers could not discuss the facts of the case with him because defendant had not waived his rights. The transcript of the tape recorded statement reflects that at another point defendant remarked, “You know they won’t even let me see a lawyer, they have charges against me in Nevada, huh . . . lawyer.” (Ellipsis in original.) Eventually, defendant indicated he desired to exonerate Padgett of any liability for the crimes committed in South Carolina. At that point, Officer Perkins displayed the previously concealed tape recorder and made a pretense of activating it for the first time. He then readvised defendant of his Miranda rights, including the right to have an attorney present during questioning, and to have one appointed free of charge if defendant could not afford one. Defendant expressly waived his rights. He then proceeded to admit having robbed a Domino’s Pizza parlor in South Carolina and described the events preceding the commission of the crimes in the present case. Defendant related that after he and Padgett arrived in Glendale, they checked into room 205 of the Regalodge motel, purchased a knife and other items at a Sears store, and then went to the Domino’s Pizza parlor to ask for directions to a drugstore. At this point in the interview, defendant indicated he would not speak further without having an attorney present. The interview thereupon terminated.
With regard to the December 25 interview, the trial court found that defendant’s initial statement, “I had to kill that boy,” was a spontaneous utterance and not the product of police interrogation, that the officer’s request that defendant repeat the statement simply was a permissible attempt by the officer to clarify what defendant unexpectedly had uttered, and that defendant’s third statement, “The boy would have identified me,” also was spontaneous, voluntary, and not the product of interrogation.
The trial court concluded with regard to the December 26 interview that defendant’s incriminating remarks had not been elicited in violation of Miranda because defendant had initiated that meeting.
Finally, interrogation (as well as reinterrogation following an invocation of rights) that requires a preceding admonition and waiver of Miranda rights encompasses both express questioning and its “functional equivalent.” (Rhode Island v. Innis (1980)
Statements obtained in violation of Miranda are inadmissible to establish guilt. (People v. Boyer, supra,
We apply federal standards in reviewing defendant’s claim that his December 25 and December 26 statements were elicited from him in violation of Miranda. (See People v. Markham (1989)
1. Admissibility of December 25 confession.
On the basis of our independent review of the uncontradicted evidence (People v. Mattson (1990)
By his offhand question as to “what was going to happen from this point on” (coupled with a reference to extradition), which he posed to the police officers as they prepared to leave, defendant did not open the door to interrogation after previously having invoked his Miranda rights. (See Oregon v. Bradshaw, supra,
As with the suspect’s initial question in Bradshaw, defendant’s remark in the present case—asking the police officers what was going to happen to him with reference to extradition—cannot, in itself, properly be construed as constituting a waiver of previously invoked rights. And here, unlike the case in Bradshaw, the Glendale officers did not reiterate the Miranda admonition or procure from defendant a waiver of his rights.
Contrary to the finding of the trial court, the record establishes defendant’s subsequent confessional statement (“I had to kill that boy”) was not spontaneous or volunteered, but rather the product of the “functional equivalent” of interrogation. In reply to defendant’s inquiry, Officer Perkins pursued a line of conversation far exceeding the scope of any answer legitimately responsive to a question concerning extradition. The record reflects that at the time he met with defendant, Officer Perkins was aware defendant already had been advised by the Nevada authorities that they were arresting him for a murder committed in Glendale. Under such circumstances, and viewed from an objective perspective, Officer Perkins’s conduct in describing the motel-room crime scene, and asserting that defendant had occupied that motel room and that the victim had delivered a pizza to the room before his death, would not reasonably have been understood as simply informing defendant of the charges pending against him or of the next step in the extradition proceedings. (See Rhode Island v. Innis, supra,
In United States v. Montgomery, supra,
On appeal following the defendant’s conviction, the court reversed, holding that the admission of defendant’s incriminating statements violated Miranda. (714 F.2d at pp. 205-206.) The court explained that although the defendant had initiated the conversation, the federal agent had extended it improperly by providing the defendant with an answer that was unresponsive to his initial inquiry: “The question asked by [defendant], ‘Am I being charged with each gun?’, was a natural, if not inevitable, query which would occur to one in his situation, who had been present seven months earlier when several guns had been seized. The answer (‘You will probably be charged with two counts’) was unresponsive', it obviously referred to the two qualitatively different offenses described in the indictment and conveyed no information as to the number of guns with which [defendant] was being charged. Either because of this nonresponsiveness or because [defendant] knew enough about the law to know that violation of the firearms law involved the possession of a firearm that was operable, he asked his second question (‘Did all of the guns fire?’).” (Id., at pp. 203-204, italics added.) The court then summarized the entirety of the colloquy as establishing a violation of Miranda: “Here, the ‘totality of circumstances’ reveals: (1) a suspect who, after checking the Advice of Rights form, refused to take the last step and waive those rights until he had seen his lawyer; (2) within a short time of his asking the agent a question in an effort to understand the extent of the charges against him; (3) a nonresponsive answer by the agent; (4) a second question by the suspect apparently addressed to the same end; (5) the initiation of questioning by the agent serving no legitimate purpose, and without being preceded by any renewed warning. We have found no appellate case that, under a similar combination of circumstances, has found or upheld a finding of waiver.” (Id., at pp. 205-206.)
Here, defendant’s questions relating to extradition were “natural, if not inevitable” in light of his having been arrested in Nevada after committing murders in two other states. The reply of Officer Perkins, focusing upon the investigation, and confronting defendant with the evidence linking him to the crimes, was nonresponsive to this inquiry and served no legitimate purpose incident to defendant’s arrest or custody. Instead, the officer’s conduct amounted to the application of a “technique of persuasion” viewed by United States Supreme Court decisions as likely to induce defendant to
If, after a suspect has refused to waive his or her right to have counsel present during questioning, a limited inquiry such as that made by defendant regarding extradition were deemed to open the door to interrogation, the opportunities for officers to avoid the constraint of the Miranda rules would be great. The present case illustrates the ease with which the bar imposed by the suspect’s invocation of rights could be dissipated if that invocation is not scrupulously honored. Following defendant’s confession that he “had to kill that boy,” Officer Perkins challenged the merit of that statement, thereby eliciting a further incriminating response from defendant—that the victim would have identified him.
We conclude defendant’s statement that he “had to kill that boy,” his repetition of that statement, and his third statement that the victim would have identified him, were elicited in contravention of Miranda. All three statements should have been excluded from evidence. The trial court’s denial of defendant’s motion to suppress these statements therefore constituted error.
The three statements constituted a confession, i.e., a declaration of defendant’s intentional participation in the murder. (See People v. McClary (1977)
2. Admissibility of December 26 confession and admissions.
On the basis of the uncontradicted evidence, we conclude the record establishes that defendant’s confessional statements made during his December 26 meeting with the police officers (“I’m not a murderer either . . . I just got drunk, and I didn’t know what the fuck I was, I knew I was doing it, but I shouldn’t of done it . . .”), and the admissions he made following readvisement of his Miranda rights, were not the tainted product of the December 25 confession.
Previous decisions have acknowledged that where—as a result of improper police conduct—an accused confesses, and subsequently makes
A subsequent confession is not the tainted product of the first merely because, “but for” the improper police conduct, the subsequent confession would not have been obtained. (Johnson, supra, 70 Cal.2d. at p. 549.) As the United States Supreme Court has explained: “[N]ot... all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (Wong Sun v. United States (1963)
In the present case, we conclude defendant’s December 26 confessional statements, as well as his admissions made subsequent to readvisement of his Miranda rights, were obtained by means sufficiently attenuated from Officer Perkins’s conduct of the previous day so as to be free of the taint of that impropriety. The December 25 confession was elicited by the relatively brief comments of Officer Perkins regarding the investigation and the evidence connecting defendant to the crimes, and not by a prolonged,
Furthermore, prior to the commencement of any interrogation on December 26, defendant volunteered that he wished to exculpate Padgett with regard to the South Carolina crimes; Officer Perkins readvised defendant of his Miranda rights, and defendant expressly waived those rights, thereby further dissipating any taint of the improper police conduct that had occurred the preceding day. (See Oregon v. Elstad (1985)
Defendant asserts that even if the Pecember 26 confessional statements were not the tainted fruit of the December 25 confession, these confessional statements—made prior to the readvisement of defendant’s Miranda rights— were elicited by the Glendale officers in violation of Miranda,
Assuming, without deciding, however, that defendant’s December 26 confessional statements—made prior to the readvisement of his Miranda rights—were elicited in violation of Miranda, we conclude that any error in the admission of these statements was not prejudicial. (See pt. I.D.3, post.)
With respect to the admissions made by defendant following the readvisement of his Miranda rights, the transcript of the tape recording establishes that a careful and thorough explanation of the Miranda warnings was given, and that defendant’s waiver of his rights was not the tainted product of any earlier Miranda violation. (See Oregon v. Elstad, supra, 470 U.S. at pp. 310-311 [84 L.Ed.2d at pp. 233-234].) As explained previously, interrogation recommenced only after defendant volunteered that he wished to exculpate Padgett with regard to the South Carolina crimes.
Defendant contends his remark that the Nevada authorities had not permitted him to see an attorney required the officers to bring the interview to
3. Effect of erroneous admission of December 25 and December 26 confessional statements.
Prior to the decision in Arizona v. Fulminante (1991)
Because, for the reasons set forth in Cahill, post, 478, the erroneous admission of an involuntary confession is not per se reversible error, a fortiori a confession held inadmissible by reason of having been obtained in violation of the prophylactic Miranda requirements also must be subject to a harmless-error standard of review.
Under the Chapman standard, we conclude the admission of defendant’s December 25 and December 26 confessions was not prejudicial. The
E. Submission of transcript to jury.
An edited version of the December 26 tape-recorded interview was played to the jury at the guilt phase of the trial. Defendant contends the trial court erred in permitting the prosecution to provide the jury with a written transcript of the tape recording, because the transcript was not properly authenticated (Evid. Code, § 1400) as an accurate rendition of the tape recording.
Following the testimony of Officer Perkins during the prosecution’s casein-chief, the prosecutor proposed to play the tape recording to the jury. Defense counsel suggested the jury should be informed that portions of the tape recording were unintelligible. When the trial court observed that a transcript of the tape recording would be submitted to the jury, defense counsel voiced concern that the jury would follow the transcript rather than independently consider the tape recording. The trial court indicated it would listen to the tape recording and, in the event the court determined that the transcript would assist the jury in its understanding of the interview, a copy of the transcript would be provided to the jury at the time of its deliberations. Defense counsel did not object at this time that the transcript had not been authenticated and did not object on this or any other ground when the transcript was submitted to the jury at the time it commenced its deliberations. The trial court instructed the jury that in the event there was any discrepancy between the jury’s understanding of the tape recording and the typed transcript, the jury’s understanding of the recording should control.
Although defense counsel had the opportunity to review the transcript prior to its submission to the jury, he failed at that time to raise the objection of lack of authentication. Defendant may not raise his objection for the first time on appeal, and therefore it is deemed waived.
Defendant contends the trial court erred in denying his motion (under § 1538.5) to suppress evidence consisting of a handgun and a bank deposit bag found in the Las Vegas motel room occupied by defendant and Padgett at the time of their arrest. Defendant contends these two items were the tainted fruit of improper custodial interrogation violative of his rights under Miranda. We find no error.
At trial, during the in limine hearing on the defense motion to suppress, Officer Knudsen of the Las Vegas Police Department testified that at the time of defendant’s arrest, the police had been informed that defendant was armed with a handgun and possibly a Uzi machine gun. After placing defendant and Padgett under arrest, the officers handcuffed and searched them, and Officer Knudsen advised defendant of his Miranda rights. Defendant acknowledged he understood his rights but did not indicate he waived those rights, and the officer did not inquire whether defendant sought to do so. Instead, the officer immediately asked defendant to tell him “where the gun or guns were.” Defendant replied there was a gun under the mattress of the bed, which was located approximately two feet from where he was standing. Upon lifting the mattress, the officer discovered the gun. He then asked defendant about a Uzi machine gun, but defendant said he had no such weapon.
The police, while photographing the handgun beneath the mattress, discovered in that same location a bank deposit bag marked “Domino’s.”
Defendant argued the discovery of the handgun and the bank bag was the product of police interrogation violative of his rights under Miranda, because defendant had not waived those rights prior to the officer’s inquiry concerning firearms. The trial court concluded that defendant’s response to the officer’s question had been obtained in violation of the requisite Miranda procedures and, accordingly, excluded from evidence defendant’s response to the officer’s question. With regard to the handgun itself and the bank bag, however, the court denied the motion to suppress, concluding these items were admissible under the inevitable discovery doctrine (because the police ultimately obtained a search warrant authorizing a search of the motel room) or as the fruit of a lawful search incident to defendant’s arrest.
Defendant maintains that the discovery of the handgun and the bank deposit bag was not sufficiently attenuated from the taint of the asserted Miranda violation to justify their admission on the independent grounds relied upon by the trial court.
On appeal, the United States Supreme Court reversed, holding that the rationale of Miranda does not require its application in circumstances where police officers must ask questions reasonably prompted by public safety. The court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination” (New York v. Quarles, supra,
In the present case, the circumstances of defendant’s arrest fall within the scope of the Quarles exception to the Miranda rule.
Having learned of the possible whereabouts of a firearm located within approximately two feet of defendant, the police officers properly conducted a search incident to defendant’s arrest in order to neutralize the risk posed by the presence of the weapon (see United States v. Miller (8th Cir. 1991)
G. Admission of videotape.
Over defense counsel’s objection, the trial court admitted into evidence a videotape of the Regalodge motel crime scene recorded by Officer Perkins. The videotape depicted the motel room, including the bathroom, the victim’s body in the bathtub (with the face submerged under the water), and a deputy coroner lifting the body from the bathtub, examining the pillowcase over the head, and cutting the pillowcase to reveal the face, the gag in the mouth, and the sock covering the mouth. The trial court ruled that the videotape was admissible as relevant to the issues of malice and intent to kill, and as corroboration of the testimony of Officer Perkins and other witnesses as to the appearance of the bathroom and the victim’s body. The videotape was played during the testimony of Officer Perkins, who described the matters being depicted.
Maintaining that the trial court erred in admitting the videotape, defendant contends it was more prejudicial than probative of any contested
The videotape was relevant in depicting the position of the victim’s body in the tub—gagged, a pillow case secured over the head, and arms and legs bound behind the back—supporting the prosecution’s theory that defendant, contrary to the defense presented at the trial, had acted with malice and the intent to kill, and that the killing was deliberate and premeditated. The videotape also corroborated Officer Perkins’s testimony describing the crime scene. That the videotape was in part cumulative of other photographic evidence did not mandate its exclusion. (See People v. Price (1991)
Defendant complains the videotape’s depiction of the laborious process of removing the soaking wet body from the bathtub was irrelevant to any of the issues at the trial. The videotape, however, supported the prosecution’s theory that the actions of defendant in handling the unwieldy body were laborious and therefore deliberate and purposeful. The circumstance that the body was less manageable when wet (or, as defendant asserts, after possible rigor mortis had set in) than at the time the victim was placed in the bathtub, was a matter that a reasonable juror would have recognized and considered in evaluating what was depicted in the videotape.
Thus, the videotape could have assisted the jurors in understanding and evaluating the testimony presented to them, and the trial court did not abuse its discretion in determining that this exhibit had sufficient probative value to warrant its admission. (See People v. Price, supra,
We observe, however, that in other circumstances, a videotape may present a far more graphic, gruesome, and potentially prejudicial depiction than static photographs and thus, under such circumstances, should be excluded from evidence.
H. Jury request for a reading back of defense closing summation.
During its deliberations at the guilt phase of the proceedings, the jury requested a reading back of defense counsel’s closing argument to the jury. The trial court denied the request, indicating to counsel that the court lacked authority to order closing summations read back to the jury, and instructing the jury that the closing remarks of counsel did not constitute evidence that could be read back to them. Maintaining that the trial court had the authority to accede to the jury’s request, defendant contends the trial court’s failure to do so was prejudicial error.
In the present case, the trial court erred in suggesting that it lacked authority to order the reading back of defense counsel’s closing summation. We conclude, however, that this error was not prejudicial. The theory argued by the defense—that the evidence established defendant intended to incapacitate but not kill his three victims—was not of such complexity that its repetition was necessary in order for defendant to receive the full benefit of the adversarial process. Moreover, the disputed issue of intent to kill was fully covered by the jury instructions, written copies of which were available at the jury’s request. (See § 1093, subd. (f).) Thus, it is not reasonably probable that, had the trial court read back the summation, the jury would have reached a different verdict. (People v. Watson (1956)
I. The trial court’s refusal to limit the scope of defendant’s cross-examination.
Shortly prior to the completion of the defense case, defense counsel moved for a ruling barring the prosecution, in the event defendant testified, from cross-examining him regarding the murders he committed in South Carolina. In support of this motion, defense counsel urged that such cross-examination “would lighten the burden of the prosecution in . . . [defendant’s] pending and subsequent capital proceeding in South Carolina.”
The trial court denied the motion for an advance ruling, observing that in the event defendant elected to testify, the relevance of the South Carolina
Defendant contends the trial court’s refusal to bar in advance the use of evidence of the unadjudicated South Carolina crimes during his cross-examination constituted an abuse of discretion under Evidence Code section 352, because the evidence was more prejudicial than probative of any disputed issue. In support of this contention, he relies upon the trial court’s ruling, pursuant to Evidence Code section 352, barring the prosecution from introducing evidence of these crimes in its case on rebuttal. (See, ante, pp. 453-454, fn. 10.)
The principles, and the resulting procedural rule, promulgated in People v. Collins (1986)
We conclude that our holding in Collins, supra,
Numerous federal court decisions similarly have applied the Luce rule, which we adopted in Collins, supra,
Defendant urges that even if we conclude Collins, supra,
In sum, because defendant elected not to testify at his trial, his objections to the trial court’s in limine ruling may not be raised on appeal.
J. Jury instruction on reasonable doubt.
By supplemental letter brief, defendant argues the jury instruction given at the guilt and penalty phases, defining reasonable doubt as that state
II. Penalty Phase Issues
A. Admission of evidence of the South Carolina crimes.
Defendant challenges on various grounds the admission of evidence of the unadjudicated South Carolina crimes.
1. Admission of Melkie’s dying declaration.
Defendant contends the trial court erred in admitting the statements of Gary Melkie, identifying defendant as his assailant, pursuant to the dying declaration exception to the hearsay rule. Evidence Code section 1242 provides that “[e]vidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.” Defendant contends the evidence was insufficient to establish the preliminary foundational fact of Melkie’s sense of immediately impending death.
At the hearing on the prosecution’s motion (Evid. Code, § 402) to admit Melkie’s statements, George Pledger testified that at the time of the events occurring on December 3, 1985 (see Facts, pt. II.A., ante), he was employed as a paramedic by the Hanahan Fire Department. When summoned to the lobby of the police station, he found Melkie leaning against a wall, actively bleeding from gunshot wounds, with a clotting of blood on the right side of his head. Blood was spewing from his mouth and from underneath his left eyeball and eyelid. Melkie looked at Pledger and pleaded repeatedly, “Please don’t let me die,” as Pledger attended to him. Pledger assured Melkie he would not let him die. Initially, Pledger could not detect Melkie’s pulse. In response to Pledger’s questions, Melkie identified himself, the date, and his
Officer Nadeau of the Hanahan Police Department testified she was known in the small community of Hanahan as the only female police officer, and was casually acquainted with Melkie. When she approached him in the emergency room, she asked whether he recognized her, and Melkie replied affirmatively. She then inquired who had shot him. Melkie responded, “Mitch Sims.” The officer repeated the question several times to be certain that Melkie understood her and that she understood him. Melkie responded with defendant’s name each time the question was asked. The officer did not recognize defendant’s name and asked Melkie to describe the color of the hair and the clothing of the person he had named. Melkie was able to do so. He then was taken to surgery, thereafter never regained consciousness, and died.
At the conclusion of the hearing, the trial court ruled, over objection by defense counsel, that the totality of the circumstances warranted the admission of Melkie’s statements as dying declarations.
The chief condition and characteristic of a “dying declaration" is the “sense of immediately impending death” (Evid. Code, § 1242), which may be shown by the declarant’s own statements to that effect, or inferred from circumstances such as the declarant’s physical condition, the extent of his injuries, his knowledge of his condition, and other types of statements made by the declarant. (1 Witkin, Cal. Evidence (3d ed. 1986) The Hearsay Rule, §§ 729-730, 710-712; see People v. Tahl (1967)
The evidence established that Melkie declared his own belief in his impending death when he stated, with reference to the paramedic’s encouraging remarks, that the paramedic was “full of shit” because Melkie felt he
Defendant claims that Melkie’s remark—“Please don’t let me die”— demonstrates he was not under a sense of immediately impending death but rather had not then abandoned hope, instead believing that if properly attended, he would survive. A similar argument was made and rejected in People v. Black (1979)
In the present case, not only did Melkie’s desperate plea that his life be saved indicate—as in Black—a sense of impending death, but Melkie thereafter expressly articulated his perception that death was imminent. We perceive no incompatibility between the belief of a mortally wounded victim that he is about to die and his desire to receive whatever benefit might be afforded by immediate medical treatment.
We conclude substantial evidence supports the trial court’s finding of the required foundational fact of the victim’s sense of impending death so as to warrant the admission of Melkie’s statements as dying declarations.
In a related argument, defendant asserts for the first time on appeal that Melkie’s statements identifying defendant as the murderer of Zerr, the other South Carolina victim, improperly were admitted as dying declarations because they did not concern the circumstances of Melkie’s own impending death. As we explain, however, that claim was not raised at trial and thus may not be raised on appeal.
At the conclusion of the evidentiary hearing, the trial court ruled that Melkie’s statements identifying defendant as his assailant were admissible
Defendant finally claims that his counsel’s failure to object deprived him of his constitutional right to the effective assistance of counsel. Assuming, without deciding, that counsel’s omission constituted deficient performance, such omission was nonprejudicial in light of the overwhelming evidence, independent of Melkie’s remark, that defendant murdered Zerr as well as Melkie. (See Strickland v. Washington (1984)
2. Claimed infringement of defendant’s privilege against self-incrimination.
Prior to trial, defense counsel moved to strike from the prosecution’s notice of aggravating circumstances all evidence relating to the alleged, unadjudicated South Carolina murders and robbery committed by defendant, on the ground the admission of this evidence would violate his privilege against self-incrimination under the federal and state Constitutions. Defendant maintained that the admission of this evidence would force him to choose between the right to defend himself at the penalty phase, and the privilege not to furnish incriminating evidence against himself for use at his then-forthcoming trial in South Carolina. He argued he would be compelled to surrender his right to testify at the penalty phase in order to preserve his state and federal constitutional privilege against self-incrimination as to the unadjudicated offenses. Defense counsel alternatively moved for the opportunity to make an in camera offer of proof of the substance of his testimony if he took the stand. The trial court denied the motions, and the prosecution presented (at the penalty phase) evidence of the unadjudicated South Carolina crimes.
The forced choice of which defendant complains was not violative of his privilege against self-incrimination under the Fifth Amendment of the federal Constitution. (People v. Bonin (1989)
3. Claim of other constitutional violations.
Defendant asserts in summary fashion that the admission of evidence of the unadjudicated crimes violated various constitutional rights under the federal and state Constitutions. We previously have rejected these identical contentions (see People v. Jackson (1989)
4. Admission of photographs.
Over the objection of defense counsel, the trial court admitted into evidence several photographs of the crime scene at the Hanahan Domino’s Pizza parlor and of the autopsies of Melkie and Zerr. The crime scene photographs depicted the bloodied body of Zerr lying on the floor, with his hands tied behind his back. The autopsy photographs depicted the gunshot entry wounds of the two victims. Defendant contends the photographs were cumulative of other evidence of the South Carolina crimes and served no purpose other than to call undue attention “to the bloody, gory nature of the crimes.” Defendant contends that the photographs therefore were more prejudicial than probative of any disputed factual issue for the jury’s determination, and that the trial court’s ruling admitting these exhibits constituted an abuse of discretion under Evidence Code section 352.
The photographs were probative of the circumstances of the South Carolina crimes, including the prosecutor’s theory as to the deliberate, calculated manner of the killings, and therefore were relevant in establishing the prosecution’s case in aggravation. Our independent review of the photographs persuades us they were not unduly shocking or inflammatory. We find no abuse of discretion.
The trial court instructed the jury it could consider the South Carolina killings as a circumstance in aggravation only if it was “satisfied beyond a reasonable doubt that the defendant did in fact commit” those crimes.
Defendant contends the trial court erred in failing to instruct further that the jury unanimously must find that he committed the South Carolina crimes before any of the jurors could consider them in aggravation.
We repeatedly have rejected such a contention. (People v. Gordon, supra,
B. Claim of prosecutorial misconduct in penalty phase summation.
Defendant raises several claims of prejudicial misconduct alleged to have been committed by the prosecutor during his penalty phase argument.
1. Argument that the victims were progressively incapacitated.
The prosecutor described defendant’s method of killing in both the South Carolina and California episodes as involving “progressive incapacitation” of the victims, whereby defendant lulled them into a false sense that they would not be killed, so they would not resist or attempt to escape. The prosecutor told the jury there was direct evidence of such incapacitation with respect to the attempted murders of Spiroff and Sicam (defendant told them they would be found by the time defendant was in San Francisco, but then left them to die), and urged that the jury reasonably could infer that defendant had engaged in similar conduct before murdering the other victims. He argued that before killing Harrigan, defendant must have assured him that, “ ‘Hey, we are just going to tie you up. I mean just we are going to—just calm down. We are going to tie you up and gag you.’ Incapacitated him to where he was helpless and could do nothing and couldn’t resist if he
We find no misconduct. The evidence pertaining to the circumstances of the two attempted murders and the three murders committed by defendant tended to prove that in each instance defendant gradually incapacitated his victims. Defendant asked Spiroff and Sicam whether there was a place he could lock them up, and, after surveying the scene, announced he would tie up each man separately in the cooler; he then led the men into the cooler, bound them in a deliberate manner while alluding to their being found, and left them to strangle. Defendant bound and gagged Harrigan, then submerged him in a bathtub with the water running over his head. Defendant tied up Melkie and Zerr with a telephone cord before shooting them. The argument by the prosecutor that defendant had deceived his murder victims to believe he did not intend to kill them, and then murdered them, constituted a permissible inference based upon the evidence of a pattern of gradual incapacitation. We repeatedly have stated that “[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom.” (People v. Mitcham (1992)
2. Argument concerning evidence presented in mitigation.
Defendant contends that the prosecutor committed misconduct by “urging [the jury] not to consider constitutionally relevant mitigating evidence.” He refers to the prosecution’s argument that the evidence of defendant’s childhood history of physical, sexual, and emotional abuse, presented by the defense in mitigation, in fact had no mitigatory significance, because there was no “bridge” between defendant’s family background and the crimes committed in South Carolina and California. The prosecutor urged that criminals generally have a violent childhood (“If you go up to prison and find and talk to murderers and rapists and robbers, you are not going to find a lot of Harvard M.B.A.’s. You are going to find people who in turn were abused as children. . . .”), and that there was no connection between defendant’s subjugation to sexual abuse during his childhood and his deliberated crimes of murder, attempted murder, and robbery involving his prior
The prosecutor’s remarks, in general, fall within the bounds of proper argument. For the most part, he did not imply that the jury should disregard the evidence of defendant’s background, but rather that, in relation to the nature of the crimes committed, it had no mitigating effect. “A prosecutor does not mischaracterize such evidence [offered in mitigation] by arguing it should not carry any extenuating weight when evaluated in a broader factual context. We have consistently declined to criticize advocacy of this nature.” (People v. Cox (1991)
3. Comments on defendant’s lack of remorse.
While commenting on the “moral and sympathetic” value to be assigned by the jury to the circumstances in aggravation and mitigation, the prosecutor observed that defendant had not demonstrated any remorse for his crimes. In this regard, the prosecutor stated: “And I was waiting for those pieces of evidence to hear that Mitchell Sims was sorry. I was waiting to hear that Mitchell Sims felt bad about the years he had stolen. I was waiting for Mitchell Sims to express remorse, to apologize to somebody for what he had done and what he had taken, [f] What I heard was [at the time of defendant’s arrest] a preoccupation with getting cigarettes, seeing his girlfriend Ruby Padgett. I did not hear any of that remorse.” The prosecutor also urged the jury to listen to defendant’s voice, in the tape-recorded December 26 statement, reflecting an absence of feeling of guilt or remorse.
Defense counsel raised no objection to this argument. Therefore, his claim on appeal is deemed waived. (People v. Mitcham, supra,
Moreover, we find no misconduct. Although a defendant’s lack of remorse may not be considered by the jury as a factor in aggravation, defendant’s prosecutor did not describe the absence of remorse as an aggravating factor. (Cf. People v. Keenan (1988)
C. Miscellaneous claims.
Defendant asserts various claims that the 1978 death penalty law is unconstitutional and otherwise defective in several respects. We previously have rejected identical contentions (see, e.g., People v. Cox, supra,
By supplemental letter brief, defendant attacks the constitutionality of section 190.3 to the extent it permitted the jury in its penalty determination to consider, in aggravation, factors (a) (circumstances of the capital crime),
For the same reasons, we reject defendant’s claim challenging the validity of the trial court’s order denying modification of the death penalty verdict (§ 190.4, subd. (e)) based upon the trial court’s taking into account factors (a), (b), and (i) of section 190.3.
Defendant challenges the order denying modification of the verdict on the additional ground it was based upon an assertedly improper standard. Defendant refers to the following statement in the court’s minute order: “The court also finds that the totality of the defendant’s conduct in the commission of the crimes of which he was convicted before the court display a high degree of cruelty, callousness and viciousness.” (Italics added.) Defendant contends the order reflects the court’s improper reliance on a standard (italicized ante) not included in section 190.3. We disagree. The quoted portion of the minute order simply reflects the trial court’s evaluation of the circumstances of the capital crime, pursuant to factor (a) of section 190.3, as demonstrating particularly cruel, callous, and vicious conduct, rather than the court’s reliance on such conduct as an aggravating factor independent of section 190.3.
Defendant finally challenges the order denying modification of the verdict to the extent the order was premised upon the trial court’s perceived agreement with the jury as to the finding of certain factors in aggravation. Defendant refers to the minute order’s recitation that the court “finds and agrees with the jury” that defendant killed Melkie and Zerr, and was not acting under the influence of extreme mental or emotional disturbance. (Italics added.) Defendant maintains such reference reflects the court’s misconception—unsupported by the record—that the jury had made certain
Disposition
The judgment is affirmed in its entirety.
Lucas, C. J., Panelli, J., Arabian, J., and Baxter, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
Although defendant and codefendant Ruby Carolyn Padgett were charged jointly with the crimes, the trial court granted defendant’s motion for severance of his trial from the trial of Padgett.
Following the trial in the present case, defendant was tried and convicted in South Carolina of the murders of Melkie and Zerr during the commission of a robbery, and the death penalty was imposed. The convictions and sentence of death were affirmed by the Supreme Court of South Carolina. (State v. Sims (1991)
Prior to trial, defendant moved pursuant to section 995 to set aside the lying-in-wait special-circumstance allegation. The trial court granted the motion, concluding the evidence adduced at the preliminary hearing was insufficient to hold defendant and codefendant Padgett to answer on this allegation. The Court of Appeal subsequently granted the prosecution’s petition for a writ of mandate directing reinstatement of the lying-in-wait special-circumstance allegation, concluding the circumstances of the alleged murder offense constituted “a textbook case of lying in wait.” (People v. Superior Court (Sims) (1986)
Upon conclusion of the prosecution’s case-in-chief, defendant unsuccessfully renewed his motion to dismiss the lying-in-wait special-circumstance allegation.
There is no merit in the Attorney General’s contention that the doctrine of “law of the case” bars defendant’s current challenge to the lying-in-wait special-circumstance finding. As stated, in prior proceedings the Court of Appeal determined that the evidence presented at the preliminary hearing was sufficient to hold defendant to answer on the lying-in-wait special circumstance allegation. (Sims, supra,
Following her arrest on December 25, 1985, Padgett told Officer Perkins that defendant had placed Harrigan in the bathtub while still alive and forcibly bad held Harrigan’s head underwater until he drowned. Following the autopsy, the prosecution provided Padgett’s statement to Dr. Cogan. At trial, prior to Dr. Cogan’s testimony, the trial court conducted a hearing outside the presence of the jury on the motion of defendant to exclude or limit the scope of Dr. Cogan’s testimony (Evid. Code, § 402). Defense counsel argued that on the basis of the autopsy, Dr. Cogan had formed the opinion that strangulation alone was the cause of death, and then had changed his opinion to include drowning as a possible cause of death only after the prosecutor provided him with Padgett’s hearsay statement. Following questioning of Dr. Cogan by the trial court and counsel, the court concluded that Dr. Cogan’s proffered opinion that drowning was a possible concurrent cause of death was based upon substantial evidence independent of Padgett’s hearsay statement. The trial court therefore denied the motion to exclude Dr. Cogan’s testimony but ruled that any reference to Padgett’s statement should be excised from his testimony. (See Evid. Code, § 803 [trial court empowered to exclude any expert testimony based in whole or in part upon improper matters].)
Appellant’s counsel appears to argue that a hypothetical question posed by a prosecutor to his or her expert witness, and the witness’s opinion given in response to that question, must be based solely upon the evidence adduced by the prosecution during its case-in-chief on direct examination of the witness. A hypothetical question, however, may be “framed upon any theory which can be deduced” from any evidence properly admitted at trial, including the assumption of “any facts within the limits of the evidence,” and a prosecutor may elicit an expert opinion by employing a hypothetical based upon such evidence. (3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1848 at p. 1804.)
Defendant’s inquiry relating to extradition is clearly distinguishable from the ambiguous remarks of an accused relating to—but falling short of—a clear waiver or invocation of Miranda rights, which justify the police in asking further questions to clarify whether the accused understands or seeks to waive his or her rights. (See, e.g., People v. Carey (1986)
Although defendant asserts it was improper for Officer Perkins to fail to disclose prior to the interview that he was taping the conversation, and later to engage in the pretense of activating the tape recorder for the first time prior to interrogation, we conclude such conduct was not violative of any of the principles or requirements of Miranda. Nor was this conduct in any other way improper. (People v. Ketchel (1963)
At trial, in opposing the defense’s in limine motion, the prosecution did not rely upon the public safety exception to the Miranda requirements set forth in Quarles. The evidence supporting this theory was fully developed at the in limine hearing, however, and the defense had the opportunity to cross-examine Officer Knudsen regarding the facts pertinent to this theory. Because the record fully supports the public safety doctrine as a basis for affirming the trial court’s ruling and there does not appear to be any further evidence that could have been introduced to defeat the theory, we conclude the Attorney General is not precluded from relying upon this theory in seeking to uphold the trial court’s ruling. (Green v. Superior Court (1985)
The issue of the admissibility of evidence of the unadjudicated South Carolina crimes first arose prior to jury voir dire, when defense counsel moved for a ruling excluding any evidence relating to those offenses. Defense counsel requested the opportunity to make an in camera offer of proof of defendant’s testimony, were defendant to take the stand to rebut such evidence, in order to establish the prejudicial effect of such testimony with respect to his defense of the charges pending against him in South Carolina. The trial court denied both the request for an in camera hearing and the in limine motion insofar as it pertained to the
Prior to jury voir dire, in seeking exclusion of evidence of the South Carolina crimes (see fn. 9, ante), defense counsel recognized that “[w]e have the Collins type of situation,” but argued that Collins was not controlling. Counsel acknowledged, in requesting an in camera hearing for the purpose of making an offer of proof, the danger of preclusion of appellate review. Counsel argued, however, that, unlike Collins, in the present case, were defendant to make an offer of proof on the record of his prospective testimony, he would be furnishing incriminating evidence that could be used against him in the South Carolina prosecution. As we conclude, post, however, such forced choice was not violative of defendant’s privilege against self-incrimination under either the federal or state Constitutions. (See pt. II.A.2, post.)
Concurrence Opinion
I concur in the judgment and in the reasoning of the majority opinion, except on the points mentioned here.
I. Alleged Miranda Violations
A. The December 25 Confession
On December 25, 1985, while defendant was in custody in Las Vegas, Nevada, Glendale Police Officers Perkins and Montecuollo came to interview him at the jail. Perkins began the interview by stating that he and Montecuollo were investigating a murder committed in Glendale. Perkins then advised defendant of his rights as required by Miranda v. Arizona (1966)
“I had to kill that boy,” said defendant.
“What did you say?” asked Perkins.
“I had to kill that boy,” defendant repeated.
Perkins described how the victim had been found in a bathtub bound and gagged and said the victim “did not have to die in this manner and could have been left there tied and gagged.”
*468 “The boy would have identified me,” said defendant.
Perkins then terminated the interview and instructed defendant that he would have to initiate any further contact.
The controlling legal principles are not in doubt. When an accused invokes the right to counsel after a Miranda advisement, the police must immediately cease interrogation, which can resume in the absence of an attorney only if (1) the accused initiates the conversation, and (2) the circumstances indicate that the accused has made a knowing and intelligent waiver of the right to counsel. (Oregon v. Bradshaw (1983)
The leading case on the first requirement—that the suspect initiate the conversation—is Bradshaw, supra,
Here, defendant’s question (“what [is] going to happen from this point on[?]”) was almost identical to the statement in Bradshaw (“ ‘what is going to happen to me now?’ ”). Federal courts have found similar remarks to be sufficient to satisfy the initiation requirement. (See, e.g., Henderson v. Dugger (11th Cir. 1991)
To establish the second requirement—a waiver of the previously asserted right to counsel—it is not necessary that the suspect be readvised of the right or that the suspect waive it expressly. (See U.S. v. Montana (2d Cir. 1992)
Here, defendant had just been advised of his rights and had asserted his right to counsel, thereby indicating he understood his interrogation rights and how to invoke them. The officers, by immediately preparing to leave, had demonstrated that they would honor the invocation. Although it was the officer, not defendant, who directed the conversation to the facts of the offense after defendant had initiated further general conversation, this is “not the crucial question” under Bradshaw, supra,
Because the trial record establishes compliance with both requirements of Edwards, supra, 451 U.S. 477, defendant’s December 25 confession was properly received in evidence.
B. The December 26 Statements
On December 26, 1985, defendant asked to speak to Perkins and Montecuollo. They arrived at defendant’s cell with a tape recorder concealed in an accordion file. Defendant said he wanted cigarettes and wanted to talk to Padgett. He complained that the jail authorities treated him as suicidal. Perkins asked defendant if he was going to commit suicide. Defendant said no. Perkins remarked that defendant didn’t “seem like that kind of guy.”
“I’m not, I’m not a murderer either,” said defendant.
“What does that mean?” asked Perkins.
“That means that I just got drunk, and I didn’t know what the fuck I was, I knew I was doing it, but I shouldn’t of done it,” said defendant.
By requesting to meet with the officers, defendant initiated a generalized conversation, thus satisfying the first requirement of Edwards, supra,
The incriminating statements defendant made on December 26 were properly received in evidence.
II. Seizure of the Gun
Las Vegas police arrested defendant and Padgett in their motel room. After handcuffing and searching defendant, the police gave defendant a Miranda advisement, and defendant said he understood his rights. Without asking defendant whether he waived the rights, the police asked defendant where the guns were. (The police had information that defendant was armed with a handgun and possibly also a machine gun.) Defendant said there was a gun under the mattress. The police lifted the mattress and found a handgun and a bank deposit bag.
In my view, the case is indistinguishable from People v. Sully (1991)
The conclusion that defendant fully and effectively waived his rights makes it unnecessary to decide whether defendant’s statement could be held admissible under the “public safety” exception to the Miranda requirements articulated in New York v. Quarles (1984)
During the trial, defense counsel moved for an advance ruling that if defendant testified in his own behalf during the guilt phase, the prosecution would be barred from cross-examining him about two murders committed in South Carolina. The trial court refused to make such a ruling, remarking that defendant’s testimony on direct examination could conceivably make the South Carolina murders proper subjects of cross-examination. Defendant did not testify at the guilt phase. Defendant contends on this appeal that the trial court erred in failing to grant the request for an order barring cross-examination on the South Carolina crimes.
The majority concludes that defendant’s claim is not preserved for review because he did not testify at the guilt phase. The majority relies upon People v. Collins (1986)
The majority’s reasoning is unnecessarily cumbersome. Rather than holding that the issue is not preserved for review, I would hold that the trial court did not err. Although the propriety of impeachment with a prior felony conviction often may be determined in advance of a witness’s testimony, the trial court in the present case could not judge the relevance or probative value of questions about the South Carolina murders without knowing the content of defendant’s testimony on direct examination. Because an advance ruling simply was not feasible, the trial court properly declined to make one.
Conclusion
Finding no error or other defect warranting reversal, I concur in the affirmance of the judgment.
Justice Powell, the fifth member of the majority, did not believe it should make a difference who initiated the conversation, provided only that the circumstances showed that the accused had made a knowing and intelligent waiver of the previously asserted right to counsel. (Bradshaw, supra,
Dissenting Opinion
I dissent.
In People v. Cahill, post, at page 478 [
Similarly, in this matter the majority abrogate the derivative and broader rule to the effect that the “introduction of a confession obtained from a
I turn to the case at bar. On December 25 and 26, 1985, defendant confessed to the police that he had murdered John Harrigan. The confessions were subsequently admitted at trial. Erroneously so. Each was inadmissible under Miranda v. Arizona (1966)
Recall that in Miranda the United States Supreme Court laid down the following rule to implement the privilege against self-incrimination contained expressly in the Fifth Amendment and impliedly in the Fourteenth:
“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” (Miranda v. Arizona, supra,
The phrase “custodial interrogation” is crucial. The adjective encompasses any situation in which a “person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda v. Arizona, supra,
In Edwards v. Arizona (1981) 451 U.S. 477 [
In my view, defendant’s December 25 confession to the Harrigan murder was inadmissible under Miranda. Officer Jonathan Perkins advised defendant of his rights pursuant to that decision. Defendant declined to waive their protection, effectively requesting the assistance of counsel. Nevertheless, he was subjected to custodial interrogation in contravention of Miranda. He was, of course, actually in custody. He was also interrogated. Officer Perkins must surely have recognized that his comment on the investigation into the murder and the suspected involvement of defendant and his companion Ruby Padgett would induce an incriminating response. It did: “I had to kill that boy,” defendant replied; “I had to kill that boy,” he repeated; “He was going to identify me,” he explained.
Defendant’s December 26 confession to the Harrigan murder was also inadmissible under Miranda.
In conformity with the Edwards rule, defendant, “having expressed his desire to deal with the police only through counsel, [was] not subject to further interrogation by the authorities . . . .” (Edwards v. Arizona, supra,
Defendant simply did not “initiate[] further communication, exchanges, or conversations with the police” within the meaning of Edwards. (Edwards v. Arizona, supra,
Under Miranda and its progeny, the majority’s “fruit-of-the-poisonous-tree” discussion, which derives from the Fourth Amendment analysis in Wong Sun v. United States (1963)
What, then, is the consequence of the admission of defendant’s Mirandaviolative confessions? Reversal.
This result is determined by application of the rule that the introduction of any confession offensive to the United States Constitution is reversible per se.
The same result, however, is compelled even if—as the majority hold— harmless-error analysis under Chapman is attempted.
Chapman, it need not be emphasized, is intolerant and unforgiving of error.
As the Chapman court itself declared: “The California constitutional [harmless-error] rule emphasizes ‘a miscarriage of justice,’ but the California courts”—and the majority are in accord (see maj. opn., ante, at p. 447)—“have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court’s view of ‘overwhelming evidence.’ We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut,
In Yates v. Evatt (1991)
“The Chapman test is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (Yates v. Evatt, supra, 500 U.S. at p._[
The focus under Chapman is what the jury actually decided and whether the error may have tainted its decision. “[T]he issue ... is whether the jury actually rested its verdict on evidence [and instructions] . . . , independently of the” error. (Yates v. Evatt, supra, 500 U.S. at p__[
As a consequence, the focus under Chapman is not what a reviewing court might itself decide on a cold record. “[W]hen it does that, ‘the wrong entity judges the defendant guilty.’ ” (Sullivan v. Louisiana, supra,_U.S. at p__ [
Neither is the focus under Chapman what a reviewing court might conjecture the jury would have decided in the absence of the error. The “hypothetical inquiry” whether, if the jury had not been exposed to the error, it would have made the decision it did, “is inconsistent with the harmless-error standard announced in Chapman .... While such a hypothetical inquiry ensures that the State has, in fact, proved [its case] beyond a reasonable doubt, it does not ensure that it has proved [it] beyond a reasonable doubt to the satisfaction of a jury.” (Yates v. Evatt, supra, 500 U.S. at p._ [
Lastly, the focus under Chapman is not what a reviewing court might speculate concerning “what effect the . . . error might generally be expected to have upon a reasonable jury . . . .” (Sullivan v. Louisiana, supra,_U.S. at p._[
In this case, the error simply cannot be held harmless beyond a reasonable doubt under Chapman. In his Miranda-violative confessions, defendant personally declared his guilt. To be sure, other evidence was introduced to prove what he acknowledged. But that evidence did not, and could not, render his confessions “unimportant.” Any assertion to the contrary blinks reality. A “confession operates as a kind of evidentiary bombshell which shatters the defense.” (People v. Schader (1965)
In concluding to the contrary, the majority rely on what they deem “overwhelming” evidence of guilt apart from defendant’s confessions. (Maj.
For the foregoing reasons, I would reverse the judgment in its entirety.
Appellant’s petition for a rehearing was denied September 15, 1993. Mosk, J., was of the opinion that the petition should be granted.