*1 No. 21456. Nov. 1984.] [Crim. PEOPLE,
THE Plaintiff and Respondent, TURNER,
RICHARD DEAN Defendant Appellant.
Counsel Baker, Fred Court, under for Defendant and appointment by Supreme Appellant.
John K. Van General, de Robert Kamp George Deukmejian, Attorneys White, H. General, Philibosian and Steve Chief Assistant Daniel Attorneys General, J. Kremer and Harley D. Assistant A. Wells Mayfield, Attorneys Petersen, Keith M. Bloom and Steven H. Motley, Jay Zeigen, Deputy General, Attorneys for Plaintiff and Respondent.
Opinion
KAUS, J. Defendant Richard Dean Turner was convicted under the 1978 Code, (Pen. law et on two counts of first seq.)1 degree § murder. Special circumstance that the were allegations murders committed 190.2, during (§ (a)(17)) commission of burglary subd. and that Turner was convicted 190.2, of more than (§ (a)(3)) one offense of murder subd. were found to be true. The fixed the death. punishment appeal (Cal. Const., VI, automatic. §11; (b).) art. subd. Codefendant § Souza, convicted, William similarly charged was sentenced to life im without prisonment possibility parole.
I. Facts 1. Prosecution Case Claxton, Merle and Freda 78 and 77 old were killed years respectively, on March date, 1979. About 9:45 on that the San Bernardino Sher- p.m. iff’s two cars were Department investigated citizen’s report being bushes. Sheriff’s found a Pinto station stripped nearby wagon deputies Comet, vehicles, and a both with on and lights doors On open. top television, saw a they Two rifles were found shotgun, a radio. portable vehicles, bushes,2 in one of the and the found another rifle in the deputies *7 cabinet, as well as a etc.), file cans of household paint, goods (pots, pans, and frozen food. The cars were to Merle Claxton. The registered deputies found two wallets on the floorboard of the Comet: one had cards belonging Claxton, to Merle contained the other identification for a Richard Turner. indicated, 1Except statutory all as otherwise references are the Penal Code. semi-automatic, 2The a Sears Ted rifles were identified as Williams .22 caliber a Marlin ,22 semi-automatic, caliber and a Winchester 30-30 caliber lever action rifle. all the Jecusco arrived at the Claxton about Deputy p.m.; lights house on, to the were the front and doors were and the window den garage open, entered, As he bullet hole in the front door smashed. Jecusco noted a and a .22 on the had been cartridge threshold. The ransacked. Jecusco house saw a in a in the Finally, of blood on the of the den. dog lying pool floor kitchen, he found the bodies of man and a woman. Hurst, a in and outside the
Deputy expert, prints footprints preserved house and cabin backtracked from the Claxton residence to a small about a half mile The distant. found at the cabin and those found near the footprints two vehicles were were for 12 into the desert They identical. followed miles where the came behind a Turner and Souza bush. deputies upon hiding Hurst handcuffed he
Deputy Souza and asked if had Souza any weapons. time, replied, “We left them behind At about the same Deputy cars.” Trumbull asked Turner “We where the Turner don’t guns responded, were. have any. were all left The worn They there when we left.” shoes suspects made which earlier at the prints conformed with those observed Claxton residence. In found a .22 caliber cartridge, Souza’s Hurst pockets, FMC, wallet with the and initials inscribed “Freda and Merle lighter 50th anniversary, 1918-1968.”
Bryan Lay, years Claxtons, old recognized and of the neighbor newspaper and a friend pictures Turner Souza as two men he and had met and talked with at the cabin near the of the Claxton residence. One men William; had identified himself as told used other had he to live Bryan Creek Deep Road. An revealed autopsy that Merle had gunshot Claxton suffered two wounds, heart, one to the chest that went the other to the through right side of his face near his mouth. The that the wound in the doctor concluded heart was inflicted first. Freda Claxton one wound had suffered gunshot the back of the head. The wounds to both victims were consistent with been having caused aby .22 caliber bullets retrieved from the weapon; victims were consistent with been fired from the Marlin rifle. having
2. Defense Turner did no testify not evidence his defense. presented Souza at a testified: He met Turner house in halfway Stockton the month murders, homicides; two, before the day on the in the company (“more of other beer swam and drank than a in people, six-pack”) Deep area; purchased “Sherman,” Creek each he Turner smoked a de- *8 and PCP”; “like on the very hungry scribed as the Sherman made them the to they back to cabin in which were decided way they staying, burglarize food; it looked as if a the house because house decided on Claxton they were from the road. easily home and because it was not seen nobody rifle, Turner, with waited around the corner Souza knocked while armed house; barked, Souza became dog when the came on and lights ran; he as “cra- frightened he ran Turner whom described past looking head”; 50 yards when about from zy” eyeballs with out of his “punching trouble, house, in he he friend was heard three his gunshots; thinking into house through returned time to see Turner’s foot just going window; door, him to “get let then ordered broken Turner him in front stuff, here”; the victims the hell out of he Souza saw get as complied, Merle floor; nearest to on the he a rifle on the floor lying picked up lying Claxton, but not reach.3 within his arm’s was he Turner
Souza testified further that he did as was ordered because were still eyes at him and “His pointing gun behaving strangely: very wide, head, out of more His were real real eyes open, his or less. popped Looked like know. I don’t It look like it was Richard. you just know. didn’t he testified that was that PCP we smoked.” Souza also on that tripping attacks,” those wack looked as Turner had into though “one gone something.” described behavior as “hallucinating “he he because While Turner told that Merle Claxton jail, Souza shot Turner; by had Freda Claxton was shot was about gun” to shoot to was accident—she in front her husband as Turner attempting jumped shoot him the second time. take that, Turner to responsi-
Souza admitted while in he asked custody, that Turner told Detective for both Souza also aware bility killings. was Turner, both he, killings the blame for was take Malmberg going take off Souza the hook. rebuttal, he when by Malmberg during
This conversation was confirmed him he which Turner told testified to an at the county jail encounter hook. Turner to both murders to his off get partner going “cop” did he ever nor that he was of the murders Malmberg guilty no time told say that he shot the Claxtons. surrebuttal, and, was also recalled Turner by
Detective Malmberg where, ac- were seen the side the house testified that no footprints Souza, rifle, Ted the Sears Williams .22 caliber was later identified 3The rifle taken kept who it in his bedroom. belonging to Merle Claxton *9 cording to Souza’s to be as Souza testimony, waiting Turner was said knocked on the door of the Claxton residence.
The of murder was mur- only theory felony advanced by prosecution der and the instructed was instructed only theory. jury that malice is when kill there is manifested an intent to and that express when the a direct causal result of the or implied killing perpetration It “the attempt was also instructed that unlawful perpetrate burglary. intentional, unintentional, accidental, of a human whether or killing being, which occurs as a result of the or the crime commission commit attempt and burglary, where there was in the mind of the the specific perpetrator crime, intent to commit such is murder first degree.” The jury found both Turner and Souza of two counts first guilty degree murder. The also found circumstances to be true— charged special one, and, two, murders multiple murder committed commission during burglary.
II. Guilt Phase Issues Turner raises numerous claims of error to the guilt with and respect spe- cial circumstances of the phase trial. We treat the in chronological issues order: first the pretrial issues of the for consolidation cases trial relating and the selection second, of the and other jury; motions evidentiary rulings trial; errors; during third, course of and finally, instructional alleged validity special circumstances.
1. Motion to Consolidate Turner contends that the trial court erred in his trial with consolidating that of Souza. Turner Originally, and Souza were com- jointly charged plaint municipal court. Illness counsel resulted separate preliminary hearings Thereafter, separate accusatory technically pleadings. though severed, the cases proceeded the courts through together. Eventually, defendants, motion of the the objection over of both they were formally consolidated for trial.
Penal Code section 1098 states the general preference joint trials: offense, “When two or more are jointly defendants with charged any public misdemeanor, whether or felony must tried they jointly, unless the court trials, order In separate ordering trials. separate court in its discretion defendants, one may order a trial as to or more separate and a joint trial as others, to the or order number of the may any defendants to be tried at one trial, trials, number of others at different any order a may sepa- defendant; two or more can *10 persons
rate trial for each that where provided, tried, were filed shall the fact that jointly accusatory pleadings separate not their trial.” prevent joint
The
nevertheless remains largely
matter of
trials
granting separate
(1969) 71 Cal.2d
within the
of the
court
v. Graham
(People
discretion
trial
303,
217,
153]),
by
330
the
set
guided
principles
455 P.2d
Cal.Rptr.
[78
733, 428
(1967)
P.2d
out
v. Massie
Turner contends that the what, to him in that it defense was gravely prejudicial “supplemented” evi but on circumstantial merely for Souza’s a case based testimony, was the dence. what at trial determines transpires prejudicial Although trials, “[wjhether effect of an erroneous for ruling separate on motion denial of a defendant from that of codefendant of motion sever trial an the facts as they appear constitutes abuse of discretion must be decided on rather than on what subsequently at the time on the motion hearing 324, (1971) Cal.Rptr. v. 334 Cal.App.3d Isenor develops.” (People [94 746]; (1969) 1 Cal.Rptr. see also v. People Brawley [82 P.2d 361]; (1954) 43 Cal.2d 461 P.2d Santo People note, 249].) ruling. On that we examine the trial court’s when the prose- Potential trials was justification separate dissipated confes- not intend use extrajudicial cution assured the court that it did statements, incrimi- sions, in which one defendant or filmed reenactments 518, 530-531 (See nated the other. Aranda trial on joint then 407 P.2d Turner’s counsel opposed Cal.Rptr. “con- counts” “likely multiple basis confusion from evidence defenses,” Cal.App.2d People v. Chambers flicting citing 551], separate concerned consolidation Chambers of- and unconnected involving different defendants distinct charges against contrast, for joint the classic situation In instant case provided fenses. crimes common victims. with common against trial—defendants charged defenses, could no for separate counsel articulate reason As to conflicting case, would on its prosecution simply out put trials except point defense Of counsel became the real adversaries. then back watch sit course, merit, if that has would to be point mandatory trials separate appear in almost every case. sum, consolidate,
In at the time of the motion to the court was faced with two men with murders under circumstances in which all charged the events surrounding the crimes and ultimate arrests involved them jointly. We conclude that the trial not court did abuse its discretion in ordering based consolidation made upon showing time motion. *11 trial, course,
After of court reverse may nevertheless a con reviewing v/here, viction consolidation, because of unfairness has occurred gross as to such deprive defendant of a fair trial or due of law. (People process (1970) 299, 1].) v. Simms 10 308-309 Cal.App.3d Cal.Rptr. [89 Simms supports that no denial of a fair trial results from the proposition mere fact that two defendants who are tried have defen jointly antagonistic ses and one defendant that is to the other gives testimony damaging thus 314; to the helpful prosecution. also v. People Terry see (1970) 2 362, Cal.3d 409, 390 466 P.2d Cal.Rptr. [85 Jury
2. Selection of Turner raises two issues the voir dire and selection of the regarding jury.
He contends that (1) the exclusion People’s by peremptory challenge of all persons with reservations about denied him capital punishment his constitutional to a right jury chosen from a representative cross-section of the community, (2) the trial court erred in to order in camera failing examination of jurors.
a. Exclusion by Jurors Peremptory Challenge of In People 258, (1978) 890, Wheeler 583 [148 748], P.2d relies, which Turner we held that the not prosecution may systematically use for the sole peremptory challenges purpose excluding racial, members of an ethnic, identifiable group religious, distinguished or similar grounds. The prosecutor Wheeler peremptorily challenged every juror black in the trial of a black defendant., Reversing judgment conviction, we concluded that “the use of to re- peremptory challenges move prospective jurors on the sole bias ground of violates the group right to trial aby drawn from a representative cross-section commu- I, 16, nity under article section (22 California Constitution.” 276-277.) pp. cross-sectional Representational analysis aas developed response per nicious practices eliminating identifiable from the thus groups jury pool, their consideration preventing petit jurors. Duren v. Missouri (E.g., 314 579, 586-589, 357, 99 S.Ct.
(1979) U.S. 364-368 L.Ed.2d 664] [58 690, 522, 530 L.Ed.2d [women]; (1975) U.S. Taylor v. Louisiana [42 493, 503-504 698, 692]; (1972) 407 U.S. [33 95 S.Ct. Peters v. Kiff 94, (1946) 83, [blacks]; United States Ballard v. 92 S.Ct. 2163] 185-186, 187, 181, [women]; 67 S.Ct. 329 U.S. L.Ed 261] 193-194 [91 1181, 217, L.Ed. Co. 328 U.S. Thiel Southern Pacific earners]; Glasser v. United [wage S.Ct. 166 A.L.R. 1412] 680, 706-707, 62 S.Ct. (1942) 315 States U.S. 84-85 L.Ed. 457] Voters]; v. White not members of Women League [women workers].) 2d Petit selected juries Cal. P.2d [blue-collar 9] of attitudes of the spectrum from these were at the outset pools deprived Their unrepresen members of the excluded groups. beliefs shared ad state interests countervailing tative nature and the was preordained, vanced were insubstantial. generally Wheeler, we could sometimes
In that a recognized “representative” *12 Thus, systematic be jury composed. denied even the though pool fairly to tended process exclusion of black selection during persons petit from developed experi- eliminate the entire had they attitudes spectrum 258, 276.) no le- (22 Manifestly, ences members of Cal.3d that group. at- government’s be state interest could served gitimate by permitting to a racism in the conduct of trial. torney employ a hand, pro
On are historic right, the other peremptory challenges “to before who not jurors vided insure that criminal trials are conducted be evenhanded is not but whose to ability their only proclaim impartiality, Williams (People v. seriously by parties. ...” questioned added.) 392, 317, 869], italics For 401-407 628 P.2d Cal.3d Cal.Rptr. [174 that voir dire reason, doctrine we overruled recently longstanding challenges discover be calculated to must limited to questions reasonably (1912) 163 (Id., 407, Edwards Cal. for cause. at overruling may be 752, 58].) P. their impartiality” If who jurors “proclaim eliminated a juror on basis contrary of counsel’s suspicions, fortiori issue who or on an openly professes leaning opinion presented strong be trial excluded. may pending that a “the law recognizes Wheeler that view. It affirmed that supports of evidence spectrum on a broad may predicated peremptory challenge “trivial” “speculative,” however or suggestive juror partiality,” “ ...” if impressions prejudices’ even based on ‘sudden and unaccountable Blackstone, *353). 275, For ex- (22 258, Cal.3d Commentaries quoting excluded, Wheeler, of his bemay regardless said a prospective juror ample, identification, an ex- if he or or counsel believes she her group “evince[s] cessive respect for or law and order.” authority” strongly “believe[s] (Id., 275-276.) pp.
Thus Wheeler use merely condemned the of peremptory challenges indulge so-called are bias”—the biased “group presumption persons racial, “because are members of an on they identifiable group distinguished ethnic, religious, or 276, similar added.) ...” italics grounds. But it affirmed eliminate that the remained right bias “specific . . . relating trial,” case even if it does not warrant a particular challenge cause.
Moreover, we see no other constitutional infirmity permitting peremp- tory challenges by both sides basis of on the juror attitudes specific death While a penalty. statute exclusion of all with requiring jurors any feeling the death against biased in favor of penalty produces (Witherspoon v. Illinois (1968) 391 U.S. 520-521 784, 88 1770]), S.Ct. arises, we have no that a similar bias on either proof issues, guilt when both parties are allowed to exercise their limited equal, numbers of peremptory this challenges—26 apiece capital (§ 1070, case subd. (a))—against jurors attitudes harboring specific they reasonably believe (Cf. unfavorable. Hovey Court Superior 26 et seq. P.2d
We recognize that a jury shorn significant community viewpoints an issue in the case is not ideally suited to the and “purpose functioning in a (Ballew criminal trial.” v. 435 Georgia U.S. 239 234, 246, L.Ed.2d That, however, S.Ct. is a result inherent in the parties’ historic and important right exclude a limited number of jurors for fear of conclude, therefore, bias. We that Turner’s objection to the use of peremptory challenges this case must fail.
b. Examination Prospective Jurors In Camera Turner that argues the trial court should have ordered in camera exami- nation of jurors the throughout selection Counsel for Souza process. moved for such sequestered examination of Turner’s jurors. counsel op- motion; the posed the trial court denied it. After some of the examining jurors in other, the presence each the court concern expressed they that seemed views; reluctant to their express it then reexamined some of them in camera. After the of 12 jurors, the selection of empaneling during alter- nate jurors, the court agreed to the question remaining prospective jurors in camera. Both defense then counsel moved for a mistrial based on denial of Souza’s original motion for a sequestered examination. The motion was denied. Court, Hovey Superior
This case was tried before our decision voir dire on cases” capital that “in future requiring “individually and sequestration.” should be done death qualification announced in of the rule The clear of prospectivity expression Hovey controlling.4 Evidentiary Rulings
3. the time of made at error in admission of statements Turner assigns Malmberg with Detective his conversation during arrest and statements were four photographs improperly while in He also jail. complains to the presented jury. Arrest Made at Time Statements
a. noted, and Souza some As discovered Turner tracking party the stolen vehicles. the location of distance from the scene of the crime and During to lie face down. to “freeze” and ordered were told suspects if he had any asked Souza was handcuffing pat-down weapons, was asked Turner left them back at the car.” replied, “We weapons were any. They “We have where don’t were and weapons responded, all we left.” left there when Miranda grounds, his
Turner moved
statements
suppress
pretrial
have
i.e.,
and should
that the officers’
were custodial
inquiries
interrogation
(Miranda
(1966) 384
U.S.
Miranda
Arizona
warnings.
been
preceded
974].) The trial court
A.L.R.3d
S.Ct.
statements,
that the testi
concluding
denied the motion and admitted the
incident,
officers,
surrounding
as well
the circumstances
mony
safety
asked to insure
deputies’
established
was
question
statements.”
incriminating
to elicit
designed
not.“interrogation
*14
that the questioning
Miranda decision contains
no limitation requiring
The Miranda test
statements.”
incriminating
“elicit
designed
stated;
statements, whether
not use
may
was
“.
.
clearly
.
prosecution
[T]he
of the
interrogation
from custodial
or
exculpatory
inculpatory,
stemming
effective
safeguards
defendant unless it
the use of procedural
demonstrates
interrogation,
By custodial
to secure the
self-incrimination.
against
privilege
has
a person
initiated
law
after
questioning
by
we mean
enforcement officers
in
of action
of his freedom
been taken into
or otherwise
custody
deprived
706],
italics
at p.
444
L.Ed.2d
(384 U.S. at
way.”
any significant
[16
added.)
Superior
Co. v.
Press-Enterprise
effect,
any,
if
4We need not decide what
the decision
Hovey.
629,
on
will have
Cal.
(1984)
L.Ed.2d
Court of
In ruling admissible, the statements were court the trial relied People (1970) v. Superior (Mahle) Court Cal.App.3d Cal.Rptr. Mahle, 771], In officers arrived at the scene of a de- asked stabbing fendant, “What said, Defendant “I did it and I’m happened?” sorry.” When the handcuffed, asked, defendant was arrested and officer “Where an is the knife?” Defendant “Over on the kitchen sink.” The replied, Court of Appeal found no violation of Miranda and ruled the knife admissible. The court reasoned that the first “What was inquiry, purely happened?” investigatory and that the second the first inquiry, immediately following inquiry defendant, arrest of to be “appears investigatory part process initiated first question, rather than the of a undertaking pro- cess of interrogation for its having purpose eliciting incriminating statements. ...” atp.
The trial court in this case also relied People Sanchez Cal.2d 822-824 Cal.Rptr. 800], 423 P.2d vacated and reit- erated in relevant part Sanchez 74], P.2d in which at the scene another an stabbing, asked,
officer arrived defendant, “Who did this?” When bloodied and hand, out, with knife in asked, was the officer did do pointed “Why you it?” We held admissible, defendant’s response concluding that episode embraced “an almost immediately miniscule time after period,” occurring arrived, sole, officer and that the if concern” not “primary, appre- hension rather than interrogation. *15 Sanchez, however, in Miranda; trial occurred before the applicable
standard was (1964) Escobedo v. 478 provided Illinois 378 U.S. [12 977, L.Ed.2d 84 (1965) S.Ct. and v. 62 338 People Dorado Cal.2d 1758] 169, 398 P.2d An Cal.Rptr. extrajudicial [42 statement was inadmis 361]: 318 into an no “(1) inquiry when was longer general
sible the investigation (2) the suspect, unsolved crime but had to focus on particular begun of carried out (3) process in the authorities had custody, was suspect statements, (4) incriminating that lent itself to interrogations eliciting to counsel or right of his authorities had not informed defendant effectively he silent, establishes that his to and no evidence of absolute remain right 353-354.) Until (Dorado, 62 waived these supra, pp. had rights.” Miranda, kinds it was—that “certain the decision in could be argued—and a chance to explain him giving for the questioning suspect purpose interrogations to be ‘a circumstances were said not incriminating process ’ ” Woodberry v. (People that lent itself to statements. eliciting incriminating 165]; 351, see also v. People (1968) Cal.Rptr. 265 Cal.App.2d [71 97]; 201, People 571, 400 P.2d Cal.Rptr. Stewart 62 Cal.2d 578 [43 862], 405 P.2d v. Cotter 63 Cal.2d 395 [46 (1967) 386 U.S. vacated on other Cotter grounds sub nom. v. California 1967; 1035], consent June dism. by S.Ct. app. Sanchez, 814, 824.) v. supra, Miranda, the offi however, can be made as to no fine After distinction As stated subjected express questioning. cer’s intention when a is suspect Innis, L.Ed.2d at page 446 U.S. at in Rhode Island supra, page in 308], custody to vest a suspect “. . Miranda were safeguards designed . with with added coercive against police practices, an measure of protection Under intent police.” out regard objective underlying proof Miranda, you didWhy in the dictates of officer’s question Sanchez—" statement. have resulted in an inadmissible do it?”—would Mahle, the crime onto the scene of In both came and officers Sanchez Therefore crime or its perpetrators. with no information concerning was investigatory. initial each instance true that the quite question directed to all and “Who did this?” were questions “What happened?” were still investigations way, who Stated another were present. persons (People suspect not focused on a and had “general inquiries” particular Dorado, yet were not 353-354) the suspects Cal.2d at supra, pp. 706]). L.Ed.2d at p. (Miranda, “in 384 U.S. custody” at p. did “Why the knife?” At the time of the second questions—“Where Mahle had it?”—however, in both you do the investigation Sanchez case, free and, the suspect neither focused on a individual particular Mahle and interrogation have Warnings preceded leave. should herein, it is views expressed as that with the insofar is inconsistent opinion disapproved.5 above, pre-Miranda standards. was decided under
5As noted Sanchez *16 come We then to this case. When the officers came Souza and upon desert, crimes, in the Turner had of the they they discovered victims had found evidence to incriminate whose conformed persons shoeprints vehicles, to residence, those at the Claxton at the location of the and for 12 miles into the desert. officers in no about engaged “general inquiry” the murders. With drawn guns, the two hand they suspects, apprehended cuffed, and otherwise immobilized them. There to be no question appears they were “in custody” when the officers them. questioned
While the trial court
in
erred
Turner’s
to the
admitting
statements
arrest-
officer, their
ing
admission could not have affected the verdict. What proved
to be the
found,
murder
had
been
as well as
in
weapon
already
guns
other
the possession of Turner and
Souza
before and after
period just
crime. Turner’s
that he
admission
and his
had left the
companion
weapons
at the
murder,
location
the stolen vehicles
to
him with
served
connect
other,
but
overwhelming circumstantial evidence—even aside from Souza’s
testimony—also connected him with the
of the Claxtons. The
deaths
pros-
ecution introduced
and ballistic evidence as to the
them-
fingerprint
guns
selves, Turner’s identification
were found at the
papers
location
weap-
ons, footprints which
Turner’s and
proved
Souza’s
at the Claxton
presence
home, testimony
youth
of a
who
Turner and Souza at the cabin
placed
and,
the crucial time
finally, the possession
Turner and Souza of the
personal items of the
officer,
Claxtons. Turner’s
to the
statements
arresting
which tended to establish guilt
when
only
considered with
remaining
case,
evidence in the
pale
significance when so considered. We can say
with confidence that the introduction of the statements was harmless beyond
a reasonable doubt. (Chapman
b. Statement to Detective in Jail Malmberg In September while Detective was the jail on an un- Malmberg matter, related he was Turner approached by who started a conversation he during which stated that he was going charges both order “cop” his get off the partner hook. advised Turner on the Malmberg applicable law and told him to discuss the matter with his at no counsel. Turner time told that he Malmberg guilty both the murders or that he anyone. shot Malmberg’s on the testimony conversation was not introduced until the re- buttal phase trial.
At no time did trial counsel object to the introduction of the evidence. Indeed, at the trials, pretrial hearing question joint when Aranda Aranda, (People 518) were discussed problems being *17 statement, trial counsel use the the indicated she intended to prosecutor statement” which it was “a spontaneous he had no because objection stated stand, when Later, Souza the before took just was not elicited the by police. in- Turner again call counsel for Malmberg, it that Souza might appeared he it statement.” “voluntary dicated that considered a rela “exploited” Malmberg Turner for the first time that argues Now an interrogation as the result of which existed between them tionship of in the assertion is devoid support had occurred six months earlier.6 The the state which, under which it reveals the circumstances record insofar as uninfluenced made, entirely voluntary ment was establishes that was Mi nor Neither Fioritto of months before. six by interrogation a defendant voluntarily by of uttered randa use statements preclude discussion initiated him. by Besides, of the reasons, the introduction
For the above we find no error. statement was harmless. undoubtedly Photographs Admission
c. of four photographs in admitting Turner court erred contends trial It and the scene, dog.7 the Claxtons crime the bodies of of the depicting usual inflammatory—the or not that the are urged gruesome photographs because they than probative are more complaint—but they prejudicial case. are unnecessary any part prosecution’s prove de- Another of the bodies. the relative position One photograph depicts wound; resting her head There visible Mrs. Claxton alone. is no picts A third base of the skull. shot at the of blood—she was pool drying large in his bleeding with wounds face up Mr. Claxton lying photograph depicts and one in cheek. right chest his Cal.Rptr. (1979) 95 Cal.App.3d
Relying Boyd because these 293], photographs it was error to admit Turner asserts that such, issue only As murder.8 felony its case on based prosecution arrest, Malmberg which following made certain statements 6In March his Turner (People v. Fioritto Fioritto hearing on Miranda and suppressed preliminary were 625]) grounds. 441 P.2d 719 [68 earlier, year taken a the Claxtons photographs 7He challenges also the admission two objection at trial. but made no to their admission little, value any, probative if the victim had Boyd, photographs 8In the court held that intent, malice, prosecution was degree since the offense on the or the .issues were argued photographs that the theory. The had felony-murder prosecution pursuing by beating inflicted someone of a died as a result on the issue of whether the victim relevant light no photographs could shed court held that because other than the defendant. The whom, by the outweighed value beating probative their when the occurred jury. effect on the prejudicial i.e., was whether Turner committed whether he entered the house burglary, with felonious it is urged, intent. value of probative photographs, *18 kill, could to the intent We go only agree. nonissue. stated the was to prosecution’s submitting photographs purpose
show the relative of the bodies. The trial court ruled that one of position was how photographs admissible that basis while two others showed the wounds were inflicted.9 Neither the court nor articulated prosecution the relevance of the of the of the infliction of position bodies or the manner wounds the issues of Nor can admission presented. photo- on the graphs supported Attorney General’s for the first theory—raised time on serve to rebut a of self-defense. appeal—that they Though claim later hinted at in Souza’s testimony, that defense was never in issue.
Although the of in the discretion admissibility lies photographs primarily of the trial court 142, (People v. Frierson 25 Cal.3d 171 [158 281, 587]; Cal.Rptr. 264, 599 P.2d v. Jackson 302-303 149]), 618 P.2d no discretion to admit has irrelevant (Evid. Code, evidence. 350.) Nevertheless, as the photographs § are not gruesome and the evidence of error in guilt overwhelming, any them was admitting harmless.
4. Motion Recess and Appointment Experts for of Turner asserts that the trial court abused its discretion in denying a motion for a recess and of An appointment an of understanding expert. the time and circumstances in which these made is motions were crucial: Turner no presented evidence his defense and rested. Souza took the stand testified, December alia, inter during afternoon which preceded the he and Turner killings had each smoked laced cigarette with PCP. He also testified that after the Turner to be killings appeared attack,” suffering “wack to be on the PCP stuff we “tripping smoked.” On the day following Souza’s of testimony, during a discussion instruc- tions on diminished capacity,10 counsel for Souza indicated that he had known from the time of the preliminary that his client had hearing ingested “some had, of type but hallucinogenic” as a matter of trial strategy, rejected 9The court stated: . . They gruesome They very “. are far from in the usual sense. are course, They, mild. show blood and goes wounds on the part Mr. Claxton same dog. for the I shows, ... think each significance. has a different Photograph No. without showing any nature, anything details wounds or of that the relative position shows quite the bodies well. The other two adequate positions are not to show the relative bodies but do show how the or to wounds some extent how the wounds were inflicted.”
10Both they counsel indicated that intended capacity to seek diminished instructions. (i.e., pursued in favor of the defense diminished defense
a possible capacity which he viewed as inconsistent heart before burglary attempted), change with diminished capacity. he too that, testimony, Souza’s hearing for Turner indicated after
Counsel that, in any felt instructions and to offer diminished capacity prepared event, evidence, them give would have in view of the court probably ever, can whether defense counsel sua The court then sponte. speculated Frierson, not investigate defense and under select one *19 to one, himself another, charges without subjecting inconsistent possibly in the own The court as to its responsibility also incompetency. speculated for Turner It in those that counsel matter. was comments response fully mistrial, recess “so that moved for a and moved [he could] of dimin- the defense and have an investigate expert appointed explore When the of the Shermans.” ished as it relates to the smoking capacity testimony any out that counsel for Turner had not pointed put prosecution responded, counsel testimony, and was off” Souza’s merely “spinning he testified.” when testimony true. I became of Mr. Souza’s “That’s aware examina- available for The then moved to have the defendants prosecution by tion a prosecution expert. motion, the court to Turner’s
The trial court denied all the motions. As hallucin- some . that if Mr. Turner had consumed reasoned: “. .1 perceive he candor he would have told substance all ogenic [defense counsel] the influence some- didn’t know what he that he was under was doing, Shermans, would strategy quite probably called and trial thing [counsel’s] from the until Mr. Souza announced have been different. It wasn’t very had heard Mr. Shermans that stand that Turner had consumed [counsel] with in his candid discussions It Mr. Turner was not defense that concept. ” . had available . . . made to [him] [counsel] misun- based an understandable court’s ruling obviously upon Souza’s testi- concerning counsel of the remarks of Turner’s derstanding PCP his use of client’s Counsel did not state that he was unaware mony. to the testify would crime, he unaware that Souza to the that was only prior fact, doctors, later, during penalty phase, of whom use. In two both drug had examined usage, area of PCP described themselves experts The record Turner, before Souza testified.11 at defense counsel’s request, counsel. disclose, however, findings their when they reported does not to the crime Thus, PCP counsel been aware that Turner used prior have may tactics, dimin- but, forego had decided to as a of trial strategy matter obligation to some was not under question 11We aside the whether defense counsel leave of fact. on a mistake ruling advise the court that its was based that the ished on the capacity People’s defense to rest his case prospect case, evidence, would based fail reasonable entirely circumstantial doubt test. client, however,
Under the dictates of and in of his Frierson the interest entitled, change counsel was not but to reassess and only obligated, trial, frustra- strategy tactics and in some circumstances the during tion of counsel’s an abuse of discre- regard efforts this could constitute tion.
In ruling on a motion for a recess—or the midst continuance—in trial, the judge “must consider not the benefit which the only moving result, party but also the likelihood that benefit will anticipates such witnesses, and, burden on all, other and the court above whether jurors substantial justice will be defeated accomplished granting *20 In motion. the lack aof of an abuse of discretion or of showing prejudice defendant, to the a denial of motion for cannot his continuance result a reversal of a of judgment conviction.” Laursen (People v. 501 P.2d
Whether error any with to the for a recess warrants respect motion a reversal of the therefore, assessment of the judgment, requires preju an dice to Turner from noted, the court’s As two doctors had ruling. already been appointed Turner; for the defense and had did examined if counsel not have yet their reports, a minimum of report effort would have secured a of their of evaluation Turner’s mental state at the of We must time the crime. that, assume a upon the trial would have proper showing, court permitted of reopening Turner’s case to the defense of diminished present capac ity. reveals, however,
The record that the doctors’ conclusions as to the effect on drug Turner did not defense. capacity viable diminished portend They testified at the that Turner PCP before penalty phase using told them the crime. Both described Turner as Dr. having “schizoid personality”; that, Chapman, stated have psychiatrist, although Turner been may par- tially PCP, intoxicated from his he was in contact with had usage reality, the mental to commit and and capacity burglary, had planned burglary Conrad, committed it with intent. knowing Dr. psychologist, engaged Turner, conduct a battery on no tests made psychological attempt determine crime, his mental state at the time of the but testified that Turner the Claxton when he approached
told him he intended to commit burglary residence.12 that their testi- to the of two testimony experts;
Counsel thus had access did not entitle favorable to the defense would or be less than mony might the entire third, Based on counsel to seek a more favorable opinion. perhaps record, therefore, revealed as to what the phase considering defense, conclusion we reach the obvious of a diminished viability capacity to recess the of the motion that Turner suffered no in the denial prejudice trial. Errors
5. Instructional at the guilt to the jury Turner three errors the instructions assigns (2) that capacity; to instruct on diminished that the court failed phase: law; (3) that murder as a matter the court instructed first degree murder. felony the court instructed Diminished Capacity
a. Instructions on re in refusing give the trial court erred Turner contends that (CALJIC Nos. 8.77 instructions on diminished capacity. quested from 8.79.)13 have might prevented He that such instructions argues doctrine, i.e., him under the felony-murder murder finding guilty to commit intent not form the specific have found that he could jury might *21 burglary. whenever on diminished capacity
The trial court must instruct crim- the requisite that would negate there is substantial evidence presented asked, with you they approached 12Dr. Conrad was “Did he tell that the house [Turner] prosecutor burglary?” responded, the intent to commit the “Yes.” When the crime of they’d “predetermined plan that talked inquired whether Turner told him that it was a don’t plan. I predetermined it was a responded, impression about?” Conrad “I had the that words, but, impression.” yes-, I have telling remember him me in the exact illness, “Furthermore, of mental a result you if find that as 13CALJIC No. 8.77 reads: intoxication, extent that he defect, diminished to the capacity was mental or his mental alleged crime the time the to kill at aforethought neither harbored malice nor had an intent manslaughter.” committed, voluntary or you guilty find him of either murder was cannot of the unlawful may guilty be found CALJIC No. reads: “Before the defendant 8.79 the crime of attempt to commit commission or killing being of a human as a result there- _, and determine into consideration you must take all the evidence crime, was if, the defendant such attempt or to commit from at the time of the commission caused, condition, pre- which however suffering physical or from some abnormal mental [([] If from all such crime. forming specific him intent to commit vented from forming such capable you whether the defendant evidence have a reasonable doubt that he did not intent, doubt and find benefit of that specific you give must the defendant the specific have such intent.” inal (People Cal.Rptr. intent. v. Harris 28 Cal.3d 240]; 684-685 P.2d v. Flannel People Frierson, 155- 84, 1]; P.2d at the At the as to Turner’s mental state guilt phase testimony only time of the crime was We reexamine that by codefendant Souza. presented Turner went in more detail: on of the murders and Souza testimony day swam, beer, Creek where and smoked two drank a Deep they six-pack Afterwards, PCP) they Shermans laced with between them. (cigarettes “floated” about 6 they around awhile on had stolen. At motorcycle aban- p.m. had broken down and was they got hungry. motorcycle cabin, doned. Sher- started walk to their that the They speculated back mans had made them food. to talk about off” hungry, began “ripping At about that time that were the Claxton house and decided they passing Souza would knock on the while Turner outside with rifle. door waited When the ran. As he Turn- occupant Souza responded, panicked passed er, he also, him to urged leave that Turner’s “seemed noting eyes punching shots, out of his head.” After Souza returned to the house. hearing He wide, described Turner’s real “His were real appearance: eyes open, you know ... he just didn’t look like it was Richard. Looked like was PCP on that that tripping we smoked.”
On cross-examination, Souza testified that were “sort of they high” they walked toward Creek, their cabin from but he did not notice Deep look in Turner’s eyes until after the “I he into like thought went shootings: one of those wack attacks I heard It he about .... seemed like was hallucinating it that admitted Turner something, Souza put way.” seemed not at all unusual on the walk from Creek before reached they Deep the Claxton house—“I he was old Turner.” thought just regular noted,
As discussions of diminished concerning capacity propriety *22 instructions were for a with discussions on counsel’s motion interspersed recess. At that time the court made it clear it found the evidence insuf- that ficient for diminished instructions: Souza was capacity explicit “Mr. Mr. Turner showed no had seen of wack attack until after Mr. Souza sign evidence, bodies in to Mr. kitchen. That was the first according Souza, that in any Mr. Turner or possession had lost of his faculties was other disabled in way his cognitive ability.”
Later, the court denied the diminished in- summarily requested capacity structions, theory entry—the that at the time crucial obviously for period assessment criminal intent for burglary—Turner requisite Turner,” old with no evident effects from the “just regular ingestion
of PCP.
We found no to merit the con- jury’s substantial evidence of intoxication Flannel, sideration in where the defendant People supra, had consumed over a long period small amounts of alcohol relatively a.m.; (a time of whiskey shot or two of at 10 of beers and a shot gin couple in- between 2:30 recalled nothing where the officer p.m.), arresting influence, about testimony defendant was under the and defendant’s dicating his intoxication was equivocal.
In Frierson found the evidence of defendant’s diminished capacity, we to the intent was too insubstantial robbery, pertained specific required “no evidence to warrant sua on the There was sponte subject: instructions whatever, effect, otherwise, if intoxicating any, expert regarding Quaalude may which his use of dust angel undetermined amounts ” (Frier or kill. have had his to form the intent to rob upon ability necessary son, 156.) supra, Cal.3d at p.
We
was insubstantial
also concluded the evidence of diminished capacity
Harris,
that, while
An officer testified
Comparing drug with the cases in which we held the evidence too insubstantial sup have is inescapable instructions on diminished the conclusion port capacity, re We must here too the evidence did not merit the consideration. jury’s deliberate, or harbor member that it is not Turner’s premeditate capacity malice that of mind concerning issue: for our his state precise purposes, the time he in whether at is irrelevant. We are interested killings only entered the he to intend to steal. residence had capacity less, more or
The amount of use stated: the codefendants drug split, *23 described Turner’s of beer and each smoked a “Sherman.” Souza six-pack if of the demeanor at the into the residence. Even some time of entry Turner en- Souza before Turner’s demeanor were changes apparent
327 house,14 tered the capacity none of the evidence diminished suggests harbor the Turner and intent to enter a residence to commit theft. simple food rationally Souza their hunger stealing discussed the possibility and made a because it conscious decision to choose the Claxton residence set was back from the road.
The trial court instructions on diminished rejected properly requested capacity.
b. Instruction on First Murder as Matter Law Degree murder, The court instructed: “If find you should the defendant guilty are instructed you that it is On the evidence murder first degree.” court, before the instruction When the was warranted. entirely evidence points committed in the indisputedly a homicide course felony listed in Code, section 189 of the Penal the court justified advising the the defendant is either innocent or of first guilty degree murder. v. (People (1962) 447, 78, Lessard 58 452 Cal.2d Cal.Rptr. [25 375 46]; P.2d People (1959) 620, 678]; v. Turville 51 631 Cal.2d P.2d [335 v. People (1956) 566, 1]; Riser 47 Cal.2d 581 People P.2d see also [305 (1968) v. Beivelman 60, 521, 70 913]; Cal.2d 73-74 447 P.2d Cal.Rptr. [73 v. People Mabry (1969) 655, 71 Cal.2d Cal.Rptr. P.2d [78 759]; v. People (1973) Duren 236-237 Cal.Rptr. 1365]; 507 P.2d Day Cal.App.3d Cal.Rptr.
c. Instruction on Murder Felony Turner invites us to reexamine the rule in California. felony-murder
We did so in People Dillon 390, 668 P.2d the rule: “After its upheld reviewing legislative 697] history we find statute, that in California the rule is creature of hence cannot be judicially abrogated. We also various constitutional chal reject rule; to the lenges we hold that the rule does not due primarily deny process of law by malice, relieving of the burden of because prosecution proving malice is not (34 an element of the of felony crime murder.” Cal.3d at ante, (see testimony ambiguous 310). 14Souza’s Although was he first described Turner house, “looking crazy” entering before on cross-examination Souza stated that he “strange” eyes first noticed the look Turner’s in the It while two were house. was only after “went Souza into the house he and found the bodies” that noticed that Turner something”—“. “hallucinating thought . . I think I that he went into like one of ” wack those attacks I heard about. *24 Special
III. Circumstances Felony-Murder 1. Circumstances Special 190.2,
(§ (a)(17).) subd. alleged with of the Claxtons Both counts Turner murder charging he committed was as a circumstance that the murder was while special 190.2, (§ of or an in the commission engaged, burglary was accomplice, (1983) 35 (a)(17)). In Carlos Cal.3d Superior subd. Court 862], (17) of subdi 672 P.2d we concluded that Cal.Rptr. paragraph construed to (a)—the vision felony-murder circumstance—should special retro an kill or in a The Carlos is holding intent to to aid require killing. (See active here. v. Garcia applicable 547-549 684 P.2d
The was not that the circumstances special instructed felony-murder on guilt an kill or in a Neither verdict intent to to aid required killing. The nor the other on intent. finding prose- circumstance special implies during cution Claxtons occurred only killing to that the sought prove wheth- was immaterial that it burglary; closing argument emphasized Thus, or per- er Souza Turner did the actual the intentions killings. or were not petrator perpetrators explored. if the
We to have been cannot as what defenses speculate might presented intentions of had been relevant. killings at the time perpetrator self-defense, alluded to Souza’s Defenses diminished capacity no evidence to support were not There have been testimony, developed. may kill, but we or to these other defenses which of the intent mitigation go cannot assume on this record that none exists. (36
Under the in Garcia Cal.3d at error standard set forth prejudicial 554-557), it obvious in this the failure instruct case pp. circum- kill felony-murder element intent to The special prejudicial. must, therefore, stances be set aside. Circumstances Multiple Special
2. Murder 190.2, (§ (a)(3).) subd. had Turner
The third circumstance to be true—that jury found a special one of murder “in this been convicted of more than offense proceeding 190.2, (a)(3).) (§ question the first second subd. degree.” convictions, which neither of whether first felony-murder two degree of intent a finding alone can the death absent justify penalty imposition kill, can to a hearing. the door together open *25 of In the that to kill essential element reaching conclusion an intent is an on the the circumstance, the Carlos relied of history felony-murder special the its “The of a law to infliction of initiative and wording: adoption permit death would raising an accidental be a momentous penalty upon killing step, the moral in ballot that grave questions. suggested the Nothing arguments any framers intended to such a communicated certainly take step; nothing The (Carlos, 145.) such intention to the at supra, voters.” p. is valid where there are two victims. point equally (b) The best evidence in subdivision of of the framers’ intent was found section which or “[e]very 190.2 whether not the actual provides person killer found of ... in guilty intentionally the commission of murder aiding in the degree” first shall suffer death life without or imprisonment parole. The proponents initiative relied this subdivision for their claim that an if accomplice would face the he penalty only intentionally death aided a killing. Carlos, As out in pointed the subdivision to the is equally applicable
“ ‘actual killer.’” 145.) Neither is it to the felony-murder limited terms, special (subd. circumstance (a)(17)) at issue in its the By Carlos. subdivision has (3), mul- equal (a), to subdivision application paragraph murder tiple circumstance special here.15 issue Carlos is in other our of helpful in respects analysis interpretation murder multiple special circumstance. Carlos con- noted substantial stitutional questions are statute that posed penalty imposes for an unintentional “A killing: statute which threatens the death impose or life penalty, without of not a defendant who did possibility parole, upon kill, intend to while permitting some deliberate killers to with lesser escape punishment, might its face violate cruel or and unusual punishment (Carlos, equal protection clauses.” no Cal.3d at Again, different analysis because two of one were un- required persons instead intentionally killed. vacated,
Inasmuch as the three special circumstances must findings of punishment death cannot stand. We therefore not reach Turner’s need claims of error to the relating of the trial. phase 190.2, (b) 15Section provides: “Every killer person subdivision whether or not the actual guilty found of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, assisting any or in degree actor of first suffer commission murder in the shall death or confinement in prison possibility state for a term life parole, without the any (1), case in which one or special paragraphs more circumstances enumerated (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19) of (a) subdivision charged this section has been specially found under Section 190.4 be true.”
Disposition findings circumstances are set aside and the special judgment reversed insofar as it relates all other penalty; respects judgment is affirmed.
Broussard, J., Grodin, J., concurred. *26 BIRD, C. J. . ?
I concur in the reversal of the circumstance and findings special sentence, death but dissent from that respectfully portion plurality opinion permits to utilize to re prosecution challenges peremptory move from a all jury who mere about or persons doubts express opposition to the death Freed from the penalty. that shrouds discussion analytic fog issue, of this bottom-line the plurality’s is that the state is authorized holding to use is, peremptory to obtain a which as the challenges sentencing jury United held, State Court has a and “a Supreme explicitly “hanging jury” tribunal to return organized a verdict of death.” v. Illinois (Witherspoon (1968) 510, 521, 776, 784-785, 391 1770].) U.S. 523 88 L.Ed.2d S.Ct. [20
However, a is not the unfortunate of the hanging jury only consequence plurality’s resolution of this issue. Another foreseeable effect is to reduce substantially number of juries blacks and women serving capital A cases. in a the con- sentencing jury case is capital supposed “express (With- science of the on the ultimate of life or death.” community question Illinois, erspoon v. 783].) at L.Ed.2d at A supra, 391 U.S. 519 p. p. [20 jury systematically culled of cannot blacks women simply “speak id., on the community” (See as to whether death is warranted. question 520, at p. 783-784].) fn. omitted L.Ed.2d at The underrepresenta- pp. [20 tion of these undermines the important segments community legiti- macy reliability any verdict reached such a jury.
I.
1968,
Prior to
who
doubts about or con-
prospective jurors
any
expressed
scientious scruples against
were excluded for cause from
capital punishment
in death
serving
juries
cases.1 Under this
selected
penalty
system,
jury
(See
jurisdictions
1This was the law in
capital punishment.
most
which authorized
Melts-
ner,
also,
(1973)
(1960)
Cruel and
p.
e.g., People
Unusual
118. See
v. Duncan
53 Cal.2d
803,
351,
306,
103];
(1942)
816
Cal.Rptr.
People
Hoyt
350
[3
P.2d
v.
20 Cal.2d
318 [125
29];
(1967)
524,
332,
P.2d
cf.
Cal.Rptr.
v. Bandhauer
531
426 P.2d
[58
also,
Illinois,
See
e.g., Witherspoon
supra,
pp.
900].
v.
In the United that a sentencing States Court determined Supreme under “fell short of that jury woefully impartiality this empanelled system to which the Sixth and Fourteenth capital defendant entitled under [a is] Illinois, Amendments.” 391 U.S. at (Witherspoon p. 783].)
L.Ed.2d at Such a was found to be a “hanging jury,” “jury die,” a man and a “tribunal uncommonly willing organized condemn to return a (Id., verdict of L.Ed.2d at 784- pp. death.” pp. from the all conscientious or who swept expressed “[W]hen religious all who it in scruples against capital punishment opposed prin ciple, State crossed the line neutrality.”
at 784].) p. It “stacked the deck” the accused and against “necessarily undermined ‘the very . . . that decided fate integrity process’ [his] (Id., . . . .” at 785], 523 and 22 p. fn. L.Ed.2d at from p. quoting [20 614, Linkletter 618, 601, v. Walker 381 U.S. L.Ed.2d 85 639 [14 1731].) S.Ct. The result was a violation of the “basic of pro requirements (391 521, cedural 784].) fairness.” U.S. at fn. 20 L.Ed.2d at p. p. [20 The court based its on the conclusion role at jury capital played sentencing One of the most proceeding. functions of a important sentencing stated, jury, court is to “maintain a com- link between contemporary munity and the values which penal system—a link without the determination could punishment decency reflect ‘the standards of that hardly evolving ” mark the 519, of a 15 progress maturing (391 U.S. at fn. society.’ p. [20 783], L.Ed.2d at p. 356 101 quoting Trop Dulles U.S. [2 590].) Thus, 78 S.Ct. that must between “a choose jury life imprisonment can little more—and must do capital do punishment less—than nothing express conscience of the on the ultimate community of life or question (391 783], death.” U.S. at L.Ed.2d at fn. p. p. [20 omitted.)
However, the court held that a from all death jury which penalty skeptics3 have been excluded (Ibid. “cannot task demanded of it.” perform [20 2Indeed, penalty since death supporters vastly pro opinion outnumbered those with no con, jury empanelled to impose primarily determine whether to a death sentence consisted (See al., penalty supporters. Flanagan et of Criminal Sourcebook Justice Statistics— (U.S. Justice, Dept, 1982) [hereinafter, figure Bur. of Justice p. Statistics 2.12 Sourcebook].) 3I use the penalty term “death skeptics” qualified jurors to refer have res to those who capital punishment ervations about Witherspoon. who but cannot be excluded for cause under (See 522-523, includes, pp. 785].) 391 U.S. at p. fn. 21 The term [20 L.Ed.2d at example, persons all variously opposing punish- those who been capital have as described 519].)
L.Ed.2d at Culled p. of all who harbor about the doubts wisdom of capital punishment and of all who would be reluctant to pronounce extreme such penalty, a jury “cannot for the on the speak community” question the appropriateness of a death sentence. p. [20 L.Ed.2d at 783].) Instead, p. “deliberately toward death” tipped when id., compared (See 521-522, as a community whole. fn. pp. L.Ed.2d at 784-785].) pp.
Behind the that a culled of death Supreme Court’s recognition i.e., skeptics biased in favor of the state lies an important principle, constitutional It is worthwhile to examine requirement jury neutrality. this concept closely.
The issue to be decided aby in a case is sentencing jury whether capital the defendant should live or die. Clearly, requires discretionary judg- ment aby (391 juror. U.S. at 783].) L.Ed.2d at And just clearly, a juror’s attitudes toward preexisting the death penalty—whether favor or against—are to influence likely his or her resolution of that issue. As the Witherspoon stated, court “a juror’s views about general capital punishment an play inevitable role in (Ibid. any such decision.” L.Ed.2d at p.
A jury empanelled under the was drawn pre-Witherspoon system from a jury pool some, of, at least if containing not a of majority supporters capital ante, (See punishment. fn. and text.) Death accompanying penalty sup- porters obviously have preconceived attitudes to the directly issue relating decided, to be and these tend attitudes to favor one of the in the litigants case, i.e., the state. therefore, Arguably, under one view of the possible of a concept neutral jury, these death should be excluded penalty supporters from capital trials in order to render the neutral. jury
However, in holding that the pre-Witherspoon was biased in favor system state, of the court did high not find fault with the of death presence penalty in the supporters It did not rule that pool. juries sentencing cases capital must be rare composed solely those who neither persons favor nor Rather, death oppose the court held that a penalty. jury pool limited to death penalty and supporters abstainers violated due be- process cause such a was pool underinclusive. What rendered the pre-Witherspoon system illegal was the absence of certain community attitudes concerning ment in principle, harboring qualms scruples doubts or concerning capital punishment, expressing general objections Hov'ey capital punishment, hesitating impose In it. Court, Superior supra, group penalty” this the “oppose called death group. i.e., the death community the attitudes of those members who penalty, op- the death could for it in cases. posed but vote some penalty The clear issue of import Witherspoon’s jury neutrality to the approach is that death to be neither nor its be said penalty skeptics may supporters concern, “If this have “biased.” had been court’s would [supreme] ordered such jurors (Hovey be excluded from future cases.” capital Court, Superior 19.) Rather, 28 Cal.3d at as a careful consider supra, p. ation demonstrates, decision Constitution Witherspoon requires inclusion and which bring attitudes viewpoints penalty skeptics to a sentencing in a Only Witherspoon case. this capital reading explains why their exclusion resulted in and a “tribunal “hanging jury” organized to return (391 a verdict of death.” at U.S. pp. [20 Court, 784-785], L.Ed.2d at p. See generally, Hovey v. Superior 19-21.) Cal.3d at pp.
Witherspoon remains as valid as when it If today was decided. anything, its have been premises analysis reaffirmed and reinforced. For example, although Witherspoon was decided at time when had unfettered juries discretion death, to choose between life it is still imprisonment appli cable to death trials today when jury’s discretion constitution ally to be (Adams required more circumscribed. v. Texas 448 U.S. 45-47 589-591, 2521].) L.Ed.2d 100 S.Ct. The Adams court recognized era, even in the post-Furman4 ex jurors “unavoidably still ercise a range at judgment discretion” sentencing capital proceeding. d., (I at 46p. L.Ed.2d at the Adams apparent,” “[I]t stated, court “that a . . . about the influ juror’s views death penalty might ence the manner in which he his role but without performs exceeding ‘guided jury discretion’ . . . him permitted under law.” [state] pp. 590], 46-47 omitted.) citation
Other Court have Supreme Witherspoon’s decisions reinforced another of i.e., underlying the notion a premises, jury that a case sentencing capital must “maintain a link between the contemporary community values and penal system” and the of ulti community conscience the on the “express mate (391 of life or question death.” U.S. at fn. 15 L.Ed.2d 519 and p. [20 Indeed, 783].) p. the claim that upholding capital punishment against it per se violated community standards of under the Amend decency Eighth ” ment, the court looked “the actions of . . Furman. juries (Gregg . since (1972) 346, Georgia 2726], 4Furman v. 408 Furman U.S. 238 L.Ed.2d 92 S.Ct. [33 decision held a sentencing jury may unguided that with discretion complete not be vested (See to impose penalty. (1980) death Beck v. Alabama 447 U.S. 639 L.Ed.2d [65 392, 404, 2382].) effectively existing 100 S.Ct. penalty Furman invalidated all death laws in the nation. 334 859, 880, S.Ct. (1976) 182 L.Ed.2d 96 428 U.S. Georgia 2909] [49 on the Stewart, Powell, Stevens, JJ.).) linkage It relied of & explicitly
(opn. and reliable a “is a jury significant of that Witherspoon, concept explaining involved.” it is so directly index of values because objective contemporary when it down on 181 struck Similarly, L.Ed.2d at death sentence upon Amendment law requiring state Eighth grounds as murders, looked to decisions jury conviction for certain the court again decency of respecting one of two “crucial indicators of standards evolving v. North (Woodson . . . .” society of our imposition punishment 944, 954, S.Ct. (1976) Carolina U.S. 2978] Powell, Stevens, Stewart, JJ.).) & (opn. of With- Winick the continuing significance
Professor has described aptly the community” “Capital punishment “conscience of erspoon’s premise: does not continued imposition constitutional on the its only assumption For the serve community. jury violate the conscience of the enlightened the com- the way it must decide cases community, as conscience the com- would, this, do be fairly and to must munity representative Cases: (Prosecutorial Practices in Capital munity.” Peremptory Challenge Mich.L.Rev. (1982) 81 Analysis An and a Constitutional Empirical Study [hereinafter, Winick].) Adams, Thus, in view of Witherspoon, post-Furman entitled to an cases, his life is (1) it is clear that an individual on trial for case in a capital sentencing jury unbiased an unbiased sentencing jury; question community is one that is for the capable speaking die; (3) perform- whether jury incapable an individual should live or are or skept- all who ing oppose this role if the state excludes from jury therefore, from which such ical toward the death penalty; of the state. in favor have been excluded is a biased persons II. all case, from “swept jury”5
In the the state has once again present about, to, doubts otherwise who jurors expressed opposition qualified state jurors per- toward the death The pool hesitancy penalty.6 Illinois, page L.Ed.2d at 5Witherspoon page 784]. U.S. at *30 reservations challenged jurors had of the sampling 6A of the voir dire indicates that several it in an ability impose their to penalty, although they emphasized about the death also appropriate case. to have put position in a hate to example, acknowledged For Judith K. that she “would do upon if to could called capital in but believed that she punishment,” to decide favor of in be used and some Mary capital punishment should so. K. stated that “in some cases And, shouldn’t,” the crime depend[ed] serious [was].” admitted that “it all on how but the death every against case vote always “not ... Mary H. believed that she would mitted serve at jurors to trial is identical to of allowed pool appellant’s death serve at Mr. trial. If the of Witherspoon’s penalty state’s purge (ibid “crossed the line of skeptics neutrality” Witherspoon 784].), at it is rather is not reached difficult to see the same result why here. is, course,
There of one and the distinction between Witherspoon present case. In Witherspoon, through state a biased its use jury produced cause; trial, for challenges it achieved this result appellant’s through use of peremptory But this distinction is of no challenges. logical legal A significance. culled jury of death is no less biased nor penalty skeptics more for the when the is done capable speaking culling by community peremptory rather than for Under either challenges cause. challenges scenario, the actual the same. The composition jury is is made up exclusively abstainers, of death penalty but supporters viewpoints death are penalty skeptics excluded. Each wholly equally incapable expressing conscience of the as a Each is “delib community whole. Illinois, erately toward death.” tipped (Witherspoon v. 391 U.S. fn. L.Ed.2d at p. itself did Witherspoon not turn which had methods state used systematically death exclude The penalty court was skeptics. Witherspoon substance, form, concerned with not and the fact remains that jury purged of death penalty via skeptics challenges is identical peremptory substantively to one via purged challenges for cause.
This court
fact
In re
recognized this
more than 15
Anderson
years ago
There,
venirepersons
harmless,
that
error was
since
standards.
General
this
Attorney
argued
would
challenges
the
have used his
prosecutor
remaining peremptory
(Id.,
619.)
these
was rejected
remove
at
This
venirepersons.
p.
argument
of an impartial
the court since the contention was based on “a
by
concept
(Id.,
in
that is
conflict
the
at
jury
Witherspoon."
with
majority opinion
620.)
jurors
The court
“a
all
explained
from which
p.
prospective
the death
not an impartial jury
have been excluded is
opposed
[to]
(Ibid.)
but rather constitutes
. . .”
.
‘hanging jury’
(1965)
Not even Swain v.
L.Ed.2d
85
Alabama
U.S.
[13
excluding
S.Ct.
would
the
actions in
support
peremptorily
prosecutor’s
824]
Swain,
death
a black
was convicted and
all
In
defendant
penalty skeptics.7
had struck each
sentenced to
an all-white
after the
by
prosecution
challenges.
of the six blacks
the venire
the
of
by
equivalent
peremptory
Wheeler,
On
the de
(See
v.
22 Cal.3d at
People
appeal,
supra,
p.
vi
challenges
claimed that
fendant
the
use
its
prosecution’s
peremptory
discrimination
olated the federal
intentional
Constitution’s
prohibition
Alabama,
(Swain
203-205
at pp.
blacks.
v.
380 U.S.
against
supra,
[13
contention, out
an
at
763-764].)
L.Ed.2d
The court
this
pp.
rejected
operation
desire to
nature
change
avoid “a radical
apparent
773].)
at
L.Ed.2d
(Id.,
p.
at
221-222
[peremptory] challenge.”
pp.
[13
challenges,
of such
Noting
long established
and functions
purpose
argument,
court reasoned
with defendant’s
high
peremp
that if it agreed
every
“would
each and
tory challenge
challenge
no
longer
peremptory,
773].)
at
at
L.Ed.2d
being
examination . . . .”
open
Swain,
In
was
principles
contention
federal cross-sectional
involving
time,
At
out of the
exclusively
considered.
grew
equal
these principles
but
into
Sixth
clause
were
protection
subsequently incorporated
they
(See
Taylor
Amendment.
419 U.S.
v. Louisiana
692];
Wheeler,
at p.
95 S.Ct.
see
People
supra,
also
have survived
text.)
may
fn. 8 and
While
holding
Swain's
accompanying
Amendment,8
is dis-
this relocation to the Sixth
its cross-sectional approach
Swain,”
requirement of the
say
representative
7I
“not even
cross-section
because
peremptory
prosecutor’s
use of
chal
imposes
California Constitution
more limits on
required
equal protection clause.
lenges
interpretation
than are
of the federal
Swain’s
(See
People
583 P.2d
v. Wheeler
337 from, to, (See tinct related the of though process analysis Witherspoon. due 329, 803, (1983) Fields 673 P.2d People v. 35 Cal.3d 342 [197 680].) the from the defendant Swain did not claim that jury resulting in the was a biased prosecutor’s challenges jury, nothing peremptory Swain decision the to obtain a challenges authorizes state to utilize its Indeed, that has been the court premised demonstrated to be biased. Swain its on the or reduce holding salutary of the eliminate purposes challenge—to the risk of of chal- partiality9—and has never been a purpose peremptory to entitle to obtain a in his favor. lenges litigant slanted In summary, state stacked the deck against present appellant case and obtained a hanging That is forbidden under jury. strictly prin- set forth in ciples Witherspoon. even v. Alabama— Swain Nothing—not permits a court to a death sentence to uphold by jury organized imposed return a verdict of death.
III. There is another way in which the of use chal prosecutor’s peremptory to remove all lenges death penalty countermands the skeptics requirements of Witherspoon. For a sentencing jury to the conscience of the “express on community the ultimate of life or With question death” required by erspoon (391 U.S. 783], at 519 omitted), L.Ed.2d at fn. it must [20 be Winick, fairly (See representative community. supra, cit. 81 op. Mich.L.Rev. at p. are, course,
Blacks and women members of the whose community conscience is be to expressed. are They likely also disproportionately Thus, opposed all capital punishment. exclusion of permit penalty skeptics by is to un- peremptory challenge the significant promote derrepresentation these groups capital juries.
It is undeniable that the of blacks proportion and women case capital juries will suffer if all death be removed penalty opponents may Arguably, it was this requirement perceived of intent—and inferring difficulties with discriminatory purpose from single a state at officer’s actions trial—that led the Swain to impose court strict limits prosecution’s on defense peremptory attacks on use of 222, challenges. pp. 773-774].) 223 at pp. L.Ed.2d [13 However, showing longer required intent to discriminate is no under the cross-section (See requirement. 368, 579, (1979) 357, Duren v. Missouri U.S. fn. 26 L.Ed.2d [58 589, is, therefore, 99 S.Ct. It quite possible light no longer that Swain is viable in 961, (See McCray of the more recent Sixth Amendment New cases. York 461 U.S. 1322, Stevens, 2438, cert.], opn. L.Ed.2d S.Ct. J. on den. [77 2439] [memo. 961, 2438, Marshall, opn. U.S. L.Ed.2d J. on den. 103 S.Ct. 2439] [dis. cert.]; Mississippi see also Gilliard v. 464 U.S. S.Ct. Marshall, cert.].) opn. of 40] J. on den. [dis. 772-773], at pages
9 380U.S. 220-221 pages L.Ed.2d at Court, 54-56, In Hovey Superior pages prosecution. the death found that have consistently this court women opposed *33 from 1953 to an numbers than men. Over the 25-year period greater to the 11 than men opposition of more women average percent expressed {Id,., 54.) death penalty. between men and
The between exceeds that whites blacks disparity Court, 56-57.) Over 28 Cal.3d at (Hovey pp. women. v. Superior supra, favored the 23 more whites the same an of 25-year average percent period, 56.) And the over increasing death than blacks. penalty gap of blacks favored time: 73 of whites but 46 only percent percent (Ibid.) the death penalty. to obtain some quan
From the evidence
in
it is
Hovey,
possible
presented
chal
use of peremptory
titative indication of the
of the prosecutor’s
impact
through
to remove all death
1953
lenges
During
years
penalty skeptics.
men
of the
an
of
of women and
percent
about
average
percent
Thus,
are excluded
the death
if all death
opposed
penalty.
penalty opponents
than
more often
from a
women will be excluded
proportionally
pool,
removed,
only
men: 44
of all women will be
as opposed
percent
n.10
of me
percent
in question,
The
the 25-year period
situation is worse for blacks. During
death
penalty,
of
of blacks opposed
an average
approximately
percent
result,
of all
the exclusion
with 37
of whites. As a
compared
percent
of
more than half
in the
death
would result
exclusion
opponents
penalty
all blacks but
about one-third whites.
only
women and blacks
capital
I
that some
recognize
underrepresentation
re-
unavoidable,
women
blacks
the views of
is
since
sentencing juries
excluded for
to being
the death
make them more prone
garding
penalty
Court,
whites,
(See Hovey
Superior
cause than men and
respectively.
However,
[blacks].)
the fact
[women],
IV.
There
still
way
another
which
use of
to excuse
peremptories
violates the Constitution. Such
contra
skeptics
procedure
*34
Eighth
venes the
“any
Amendment’s
that
decision to
requirement
impose
be,
be,
the death sentence
based
rather
and
to
on reason
than
appear
caprice
(Gardner
349,
or emotion.”
(1977)
v. Florida
430
357-358
U.S.
[51
11
393, 402,
L.Ed.2d
1197].)
97
Time and
the
Court
S.Ct.
again
Supreme
has stressed that the
difference
death and other pen
between
“qualitative
alties calls for a
the death
greater degree of
when
sentence is
reliability
(Lockett
586,
973,
imposed.”
v. Ohio
438 U.S.
604
L.Ed.2d
[57
989,
Carolina,
98 S.Ct.
supra,
Woodson v. North
(plurality opn.);
2954]
This “reliability” has the principle moved court for example, that a sentencer cannot be from precluded considering, “as a mitigating factor, of any aspect a defendant’s or and the cir character record of any of cumstances the that offense the defendant aas basis for a sentence proffers Ohio, (Lockett less than death.” v. 438 at 604 supra, U.S. L.Ed.2d p. [57 990], at omitted.) fn. & p. italics A statute which such consid precludes eration “creates the risk that the death will be imposed spite factors which may call a less severe When choice between penalty. is death, life and that risk is with unacceptable and the commands incompatible Eighth (Id., Fourteenth 605 Amendments.” at L.Ed.2d at p. [57 990].) p. the court held
Similarly, has that a included statutory lesser prohibition homicide instructions in the of a case due guilt phase process. violates capital (B Alabama, v. supra, 447 U.S. Using “reliability” eck the Beck court found that the principle, such instructions unavailability an “encourage[d] convict for belief jury reason—its impermissible that the defendant some serious crime should be guilty punished.” 1 Supreme 1Justice recently explained O’Connor noting Court’s concern this area extraordinary gone that the “has measures to prisoner court ensure that sentenced to guarantee, process executed afforded that will humanly possible, much that as is whim, prejudice, imposed passion, sentence was not out of (Eddings or mistake.” v. Okla (conc. O’Connor, homa L.Ed.2d 102 455 U.S. 118 opn. [71 S.Ct. 869] J.).)
340
(Id., at 642 p. 406].) L.Ed.2d at Since that p. [65 possibility “introduce[d] a level of uncertainty into the it could unreliability factfinding process” not “be tolerated in (Id., 406].) case.” at L.Ed.2d at capital p. p. [65 the state’s
Obviously, in the “heightened reliability interest” of capital judgments also plays role in major assessing fairness of state’s wonder, then, selection procedures.12 It is no Witherspoon requires capital jury “express[es] conscience of the on the ulti community mate Illinois, of life or question death.” v. 391 U.S. (Witherspoon supra, at p. L.Ed.2d at When a fails to p. capital jury [20 maintain “a link between contemporary values and the community system,” its penal determination does not “reflect ‘the standards of that mark evolving decency ” the progress of a fn. 15 at maturing society.’ L.Ed.2d p. [20 783], Dulles, p. quoting Trop v. supra, 356 U.S. at p. 642].) The
p. result is a death sentence less on the evidence and predicated reason, “whim, and more on passion, (Eddings mistake.” prejudice Oklahoma, supra, (conc. U.S. at L.Ed.2d at p. opn. 13] O’Connor, Alabama, J.); see Swain 380 U.S. at *35 L.Ed.2d at p. reason,
For this concerns about selection are reliability injury procedures as fundamental to the Amendment the Eighth as concerns that state permit the sentencer access to (See individualized information about the accused. Gillers, Winick, 86; cit. op. 129 U.Pa. at supra, L.Rev. cit. p. op. supra, 78-82; 81 Mich.L.Rev. at see pp. Haney, also Stan- Epilogue: Evolving dards and the Capital Jury 157.) 8 Law & Human Behav. in order to
Obviously, serve as “a and reliable significant objective index of contemporary values” v. 428 at (Gregg U.S. Georgia, supra, p. at p. a must not be (plurality opn.)), capital purged 879] significant segment of but community Witherspoon attitudes. one permits to this It exception rule. sanctions the removal of who would never jurors vote to impose death sentence of the in the case before regardless evidence them. This limited fully satisfies the state’s interest exception removing from (Winick, those who would a state’s nullify statutory scheme. 44.) cit. op. supra, Mich.L.Rev. at p.
To further permit heightens that a exceptions probability jury’s capital sentence will that reliability not recent United States enjoy Supreme Yet, Court find essential. that pronouncements the effect of precisely observes, reliability “is a only 12As Professor Gillers function not of the information (Gillers, identity of the provided the sentencer Deciding sentencer but of as well . . . Gillers].) Who L.Rev. [hereafter Dies U.Pa. wholesale removal of death permitting penalty skeptics peremptory challenge. considerations,
In see these of this court compelling spite plurality all no with the use to exclude problem challenges state’s of peremptory ante, (See death from a case lead at jury. opn., penalty skeptics capital 313-315.) With all due I must demur. pp. respect,
V. inference, not By are skeptics plurality argue class and their cognizable exclusion does not violate representative correct, cross-section even if irrele- requirement.13 this were Initially, vant. The cognizable class is an element requirement representative Constitution, cross-section mandate of Sixth Amendment to the federal I, as well as article (See Taylor section 16 of the California Constitution. Louisiana, Wheeler, 522; supra, 419 U.S. As this court has was not a carefully “repre- explained,14 Witherspoon i.e., sentative cross-section” case. It based on due process principles, “basic requirements (391 fn. 20 procedural fairness.” U.S. p. id., 784]; L.Ed.2d at see also L.Ed.2d at 785- pp. 786].)15 These before a tri- principles prohibit judicial biased proceedings bunal. It is whether irrelevant or not the cognizable bias involves classes.
Both the representative Witherspoon’s cross-section due analysis pro- cess (See approach ultimately Hovey to ensure a neutral v. attempt jury. Court, 20, However, Superior supra, Cal.3d at fn. whereas p. bias—or risk of bias—must be due analysis, demonstrated under the process it is presumed under the cross-section Under a representative approach. cross-section the analysis, systematic exclusion of classes—but cognizable However, plurality 13The explicitly argument. fail to implicit advance in their this Wheeler, 258, People supra, they discussion having “merely v. view as which the pre condemned use of peremptory challenges indulge ‘group to so-called bias’—the sumption persons that they are ‘because are distin group biased members of an identifiable racial, ethnic, ante, 315, guished religious, (Lead p. on or similar grounds opn., . . . .’” 276, Wheeler, People theirs.) quoting supra, Presumably, v. 22 Cal.3d at this italics passage strong plurality agree the premise skep evidence that with the that death constitutionally cognizable tics do not constitute a “group”—or which the Wheeler class—to holding apply. would Court, 10-11, 17, 17-18, 14Hovey Superior supra, pages v. 28 Cal.3d at pages footnote page footnote 45. footnote principles 15I are embodied in believe these same the Cali process due clause of the Constitution, independent of fornia to and in addition federal Constitution. However, exclusion- any systematic only classes—is cognizable prohibited. groups—can constitutionally cognizable one not ary policy—even involving if it has been demonstrated down under due struck process principles, result a biased tribunal. not
Therefore, might of the state the fact that an exclusionary practice violate rep- that the does not affect a class means cognizable only practice nec- that the exclusion It does not mean resentative cross-section principles. appears with due Today’s opinion essarily comports process.16 plurality have overlooked this fact. important in the cross-sectional, flaws
Even there are serious issue as viewing basis which would hold such a class not reasoning cognizable I recognize are too diverse.17 of the death viewpoints penalty skeptics Fields, 342-350, three members that in 35 Cal.3d at supra, pages sentence, a death never vote for this court held that who would persons do not comprise but who could be fair and the issue of guilt, impartial of a capital of the guilt phase class for constitutionally cognizable purposes the exclusion Even if that argument, trial.18 full credence were given There ais death cannot be sustained. case penalty skeptics present critical difference between the two cases. than
First, even larger group are to be an likely penalty skeptics articu- heretofore indudables. Under cross-sectional guilt phase principles courts, it weighs the more lated the size of a greater group for what consti- In the test discussing not it. cognizability, against favor need to include class, about the tutes such a have tended to talk courts “ ” “ any ‘sub- community’ identifiable ‘any large segment Wheeler, (People stantial and identifiable class of citizens.’” 1972) 407 U.S. Kiff( Cal.3d at from Peters v. quoting 83, 94, 92 S.Ct. (plur. opn.).) 2163] county or in a small prosecutor example may point. Suppose 16An further illustrate this jury pool all from the challenges to exclude judicial peremptory were able to use his district *37 result, jury the victim. As persons unacquainted who were unrelated or with a crime obviously is group the victim. The excluded panel would consist of relatives and friends of obviously, class,” just as But “cognizable no cross-section violation has occurred. not a so not neutral. it is process principles due because jury the would be unconstitutional under Supreme Court the jury produced jury here—a precisely the kind of that was This is already to be biased. has determined argument an in case. Attorney General has advanced such this 17The “united group—the “guilt phase indudables”—was argued that this plurality 18The Fields have “di automatically against penalty” and to vote the death only by their determination 349.) harbor p. indudables guilt phase matters.” at The all other verse views on against capital penalty uncompromising punishment views than do death stronger and more id., Fields, 348-349, pp. at (See fn. People v. skeptics. More the fails to that diver- “diversity” argument recognize importantly, Blacks, women, not what determines or lack thereof. sity cognizability is its yet and are in all many Mexican-Americans diverse highly groups respects, are each constitutionally cognizable What of these cognizable. groups makes characteristics, are not the attitudes which the tend groups viewpoints, to share with the it rest of but which from society, distinguish those at in be- population large Each of these is large. part, groups cognizable, cause tends to to the room certain and attitudes bring jury viewpoints which are relevant to which oth- are juries perform tasks asked erwise would go unrepresented underrepresented.
The focus should be the death add proper on what would penalty skeptics to the of a functioning case Even that death capital jury. assuming penalty were identical skeptics to all other in all never- jurors respects, they other theless their bring otherwise concern- unique unrepresented viewpoints Fields, Moreover, the death ing penalty. unlike the situation in this is an important addition to the since these relevant jury, directly are viewpoints to an issue which the required decide. jury
It bemay useful to elaborate. Fields with the exclusion of guilt dealt phase indudables from the trial. The guilt case phase capital present involves the exclusion of the death from the penalty penalty skeptics phase. This is a crucial difference. Fields of the guilt phase the exclusion upheld indudables from the guilt because in all matters their phase except views, penalty this was the same as the Inasmuch group remaining jurors. as an individual’s views are irrelevant to a penalty technically jury’s at the functioning guilt the exclusion of distinctive phase, harboring persons only views as to penalty would not alter the guilt phase performance from which they had been excluded. The situation is in drastically different present issue appeal. case, Fields, this unlike involves the of a phase trial. Unlike penalty capital Fields, it involves the exclusion an inevitable role” viewpoints that “play trial, i.e., decision the ultimate issue in that “whether phase or not death is ‘the . . . proper penalty’ (Witherspoon case .” [the] Illinois, 783], deleted.) 391 U.S. italics In situation, this persons to exclude all with reservations about the death very to thwart of the purpose cross-section requirement. rule is to goal cross-section enhance the likelihood “[T]he will be significant (Rubio representative community attitudes . . .” . *38 93, (1979) 24 734, v. Court Superior 593 P.2d Cal.Rptr. [154 Mosk, J.).) (lead of 595], opn. italics deleted Without the death penalty issue to be of relevant to the very one-half all attitudes virtually skeptics, decided will go entirely unrepresented.19 death if that the
Finally, penalty even one were to the conclusion accept end that would not cognizable, are not themselves constitutionally skeptics forbid not principles the cross-section Constitutional cross-section inquiry. classes but that are aimed at merely cognizable those exclusions systematic class- those which in” the exclusion cognizable also “lead to” “result 52, 56-57 (See, v. Harris es. e.g., 433].) 679 P.2d constitutionally cogniz- It is well that blacks and women are established out, clear, that the exclusion able It is I already pointed classes. also as have all death significant underrepresentation will result penalty skeptics plurality of blacks juries. Today’s opinion and women on capital sentencing not does even to address this cross-section problem. attempt to remove The also challenges sanction the use plurality peremptory persons death on the basis that such juries all from penalty capital skeptics (Lead penalty.” opn., have attitudes on death allegedly “specific juror ante, has not been 315.) at that contention I this p. May respectfully suggest out. carefully thought which entitles
If all death have a attitude” skeptics penalty “specific cases, it is difficult to un- them death to remove from penalty prosecutor in Witherspoon. their exclusion derstand Court forbade why Supreme command that Witherspoon not Did are excludable for cause? Why they cases?20 jurors biased serve on permitted capital a death sen- imposed which had jury The answer should be obvious. absence of views because of the tence Mr. was biased Witherspoon constitutionally required Their inclusion was of the death penalty skeptics. these To jury. permit from being hanging in order to prevent to restore the “bias” is alleged to be once jurors again same excluded venirepersons course, sentencing jury from a those to exclude may 19Of the state choose (See Witherspoon impose never vote to death. unmistakably they that would who make clear 522-523, Illinois, 785].) has a p. fn. 21 The state L.Ed.2d at supra, pp. at v. U.S. sentencing based capable making a decision significant ensuring interest in Court, 51.) (See supra, p. No such Superior Cal.3d at fn. Hovey on the evidence. (See Texas, p. U.S. case. Adams present implicated interests are in the L.Ed.2d at by characterizing this unconstitutional downplay result attempt plurality 20The (Lead “strong opinions,” opn., “leanings,” and “attitudes.” skeptics’ views penalty ante, precisely jurors’ the fact that it is these mask because cannot Such terms peremptory challenges. exercised her prosecutor on the death biases
345 jury to its former status as a due jury. This result violates hanging clearly The process. flatly which that result reached is reasoning by is inconsistent with Witherspoon’s view of what as this jury, constitutes neutral penalty Anderson, court in In re at recognized supra, 620. page is fact that death in a are not biased penalty skeptics constitutionally serve, recognized like way. They, all other allowed to would jurors impose case, death in a “proper” they differ as to what a although may “proper” case But is. that is the very reason their is re- presence constitutionally i.e., quired, ensure that a decision to is by death made impose whose views regarding closely case will reflect—as as the “proper” pro- cess of random draw (See allows—the views of the community at large. Wheeler, supra, Cal.3d at cannot be done if This one end of the case” “proper at the state’s whim. spectrum swept away Instead of serving “significant reliable index of contem- objective values,”21 porary death sentences such will reflect a by juries “distorted exaggeration of the community’s the death willingness impose penal- ty.”22
This practice has been refuted the United expressly by States Supreme Texas, Court. In Adams v. U.S. the court held that even when death penalty “frankly concede that the skeptics of the death prospects penalty may affect what their honest judgment of the facts will be or what they may doubt,” deem to be a reasonable may not be they constitutionally excluded from the jury. 50p. 593].) L.Ed.2d at p. “Such as- sessments and judgments by jurors are inherent in and to system, all exclude who jurors would be in the slightest affected way prospect of the death by their views about such a be to penalty would deprive defendant to which he or impartial jury she is entitled (Ibid. under the law.” L.Ed.2d at this Obviously, holding wholly inconsistent with today’s rule such to be excluded permitting jurors for bias.
There is a further with the problem that death premise penalty skeptics bemay peremptorily excused for I bias. have no whatsoever with quarrel that a proposition peremptory challenge may be exercised on the basis of evidentiary subtleties that would insufficient to sustain a challenge But cause. that was the case here. not As the of the voir dire transcript clear, makes several the excluded jurors were death penalty skeptics. ante, (See 6.) Here, fn. the state’s peremptory to those challenges jurors page 21Gregg Georgia, supra, 879], U.S. at page [49 L.Ed.2d at 22Winick, page op. supra, Mich.L.Rev. cit. 81. *40 a basis for a which could never serve as
were exercised legal reasoning for cause. challenge Wheeler, supra, court’s landmark in
This decision the bases for evidentiary legal demonstrates distinction between that an show- evidentiary for cause. Wheeler did not alter the rule challenges did, however, It unnecessary challenge. to sustain a ing peremptory the that be reasoning underlying peremptory there some valid require legal noted, need be given” As the while “no reason court challenge. specifically does not follow therefrom for the exercise of “it peremptory challenge, (Id., 274.) at p. that is an for no reason need exist..” which objection the reason, bias which [pe- For that there certain “kinds of only upon are at p. be based.”23 remptory] challenge may permissibly the state from excus- If—as holds—the Constitution forbids Witherspoon views, what of their penalty class for cause based on death ing jurors bias which of upon transforms those same views into suddenly “kind[] do not be The may plurality based”? peremptory] challenge permissibly [a address, answer, to assume They let begin appear to alone this question. of a that for the exercise may peremptory serve as basis any reasoning for chal- even if it is a constitutionally impermissible ground challenge, in law. It does not for But lenge cause. that has no assumption support Wheeler the only even a the Wheeler decision. cursory reading survive of Signif- such a problem. instance where this court has addressed previously to be exercised this court to icantly, permit peremptory challenge refused serve constitutionally which never basis of the “kind of bias” could as a challenge cause. be may ever skeptic pe-
I am not here no death penalty suggesting context, it well be that some may As the Wheeler remptorily challenged. if is other evidence death excused there may individual penalty skeptics case, involved this nor But is not what was suggestive partiality. the practice. does the so limit plurality opinion may peremptories use prosecution conclusion that plurality’s that both the on the premise is also based excuse penalty skeptics limited numbers peremptory have “equal and defense prosecution [and] ante, 315; Code, 1070.24) (Lead at see Pen. . opn., § . . challenges 774], Alabama, page page indi U.S. 23Even Swain v. challenges were limited peremptory exercise permissible grounds for the cated that the the case.” related to “acceptable considerations (a) provides part that where the offense carries 24Penal Code section subdivision death, “the defendant entitled to 26 imprisonment life a maximum challenges.” peremptory state fact, reason, The force of this is that this plurality “equal presumably “cures” from the state’s use of imbalance that results opportunity” any to achieve a biased While the abstract peremptories jury. reading plurality’s correct, Penal Code is their it in the context is reliance on present severely flawed. *41 Wheeler,
In supra, this court forbade prosecu- tors from using blacks for bias. peremptory challenges group to remove the Significantly, court did not find that the of and limited” existence “equal of numbers such would enable the defense to blacks challenges—which get onto a by using its whites—remedied the against peremptory challenges What problem.25 is to an ev- today’s to have done plurality appear permit isceration of the on which Wheeler based. principles
One very good why reason the Wheeler been ill court would have advised to this line of accept reasoning is that it will not work in the real world. Thus, Whites outnumber significantly blacks in this state. to have a realistic chance of whites, the maintaining of blacks the defense proper proportion to will have to several challenge whites for each black excused peremptorily by the prosecution. Queen Alice, To borrow the words of the Red to it will do, all the you can to in the running “take[] same Even at keep place.”26 this the pace, effort is doomed to Since the of fail. number prosecution’s peremptory challenges defense, of that the the of equals proper proportion blacks can be maintained for a only limited time.
This is reasoning in the A equally impractical context. conserva- present tive estimate would place the ratio death to penalty supporters skeptics four-to-one,27 at so that the defense would to remove have four supporters 25I question also whether premise argument the good policy. plurality this is Do the truly desire to encourage litigant—here, peremptory challenges the defense—to exercise for no reason other than to up opposing make for party’s peremptory challenges? the use Yet, implication that the is plurality opinion.
26Carroll, Through Looking-Glass (1872) chapter II. 27If the result of the concerning penalty any most recent statewide vote the death indi cation, supporters of (Cal. the death penalty opponents by outnumber about three-to-one. - State, 7, 1978, Election, Sec. of 39.) Statement of Vote Nov. p. figure Gen. This inis rough agreement (Sourcebook, with op. supra, the most recent national cit. statistics. p. 2.37.) Table opponents Not all penalty of the death challenge would According survive a for cause. to Winick, public polls Professor opinion show that between one-half and two-thirds of death penalty opponents (Winick, would op. supra, be excludable for cause. cit. 81 Mich.L.Rev. p. fn. This means that no more than of the death penalty opponents one-half would be penalty classified as death skeptics. figures place These would the ratio of death penalty supporters skeptics to at between six-to-one and nine-to-one. course, Of well, some death supporters will be for but removable cause as (See Texas, number will be small. Adams v. 448 U.S. at L.Ed.2d at certainly It most will approach percentage penalty opponents not of death who are excludable for cause. Thus, conservatively I qualified every estimate there four penalty supporters are death penalty skeptic. death prosecution.
to one death removed every peremptorily penalty skeptic excused, If defense would have 5 death were thus only penalty skeptics any 20 of its balance. And if more such use challenges keep any thereafter, would have challenges jurors happen prosecutor appear to the defense that left with which to remove them. It is little comfort that number is “limited” to 26 such since prosecutor challenges, more than to remove all of probably penalty skeptics sufficient short, from cannot be main- minority In given panel. viewpoint simply limited” number tained on the an premise “equal both sides have of peremptory challenges. world, extremely real it is
Not is this in the only premise impractical amount of its unfair. For while the defense must use a disproportionate up *42 unbiased, in an the pros- challenges attempt penalty phase jury keep to its jury ecution is free to of its to tailor majority challenges use choose defense, not is forced to guilt. as The but liking prosecution, or a a jury between its to obtain fair using challenges penalty peremptory fair guilt jury. It assumes
There is in this is unrealistic. way reasoning another which to reveal likely that current dire are as voir death-qualifying procedures however, I death suggest, death penalty supporters penalty skeptics. fact, this not the In a of death percentage penalty skeptics case. far greater Review at voir than do death identify penalty supporters. themselves dire this con- of the voir dire decided court by automatic transcripts appeals firms the existence of the problem. it is a death outnumber
Although vastly opponents, penalty supporters for acknowledge rare voir dire where more support transcript venirepersons to allow begin unless we than capital opposition. punishment Consequently, on capital punish- to be about their views general venirepersons questioned on trial I, one, individual ment—an innovation for would not welcome—the he death supporters will continue to those identifying penalty have difficulty a balanced pen- should order to maintain challenge properly peremptorily alty jury.
VI. is a jury A have been excluded from which all death jury penalty skeptics Illinois, supra, “organized (Witherspoon to return a verdict of death.” substantially 784].) It is a jury 391 U.S. at at p. p. L.Ed.2d [20 therefore, has is, which jury And a blacks and women. underrepresents Court for it vi been condemned the United States specifically Supreme (Id., at fairness.” olates one of the “basic of procedural requirements 784].) fn. 20 at It “cannot commu- p. p. speak L.Ed.2d [20 (id., at and hence “cannot the task demanded it” nity” perform pp. 783]), at reliable. L.Ed.2d and its verdict is less p. The only who be excluded from a penalty opponents may capital trial on the basis of their views the death are those who concerning can never vote to death in case or who cannot fair and impose any on 522-523, 785].) at impartial guilt. fn. 21 pp. exclude jurors broader based on their grounds concerning opinions “[T]o Texas, the death penalty (Adams supra, 448 U.S. impermissible.” L.Ed.2d at p. The plurality today continue to sanction the wholesale removal of death penalty skeptics “broader than those grounds” by Witherspoon permitted They Adams. continue to the selection of which is identical permit jury to the composition which was A Witherspoon. condemned hanging jury by any other name is still jury. hanging
One would think that at least due has prima facie violation been process established here. burden should shift to the state to its use of justify Illinois, “deliberately (See toward death.” tipped Witherspoon v. su- *43 pra, 391 at 521-522, U.S. 785].) fn. 20 at a pp. Not hint p. of a legitimate state interest has been offered to this trial a biased justify by Further, jury. it is doubtful can be any conjured Witherspoon since itself up, to “designed accommodate the in State’s interest legitimate obtaining jurors who could follow their (Adams and instructions their oaths.” v. obey Texas, 448 supra, U.S. at L.Ed.2d at p.
What the have plurality done is to today countenance a wholesale subver- sion of and Witherspoon Indeed, fundamental of due if principles process. a somewhat broader taken, overview of this case is the vista is bewil- truly Fields, dering. Recently, 329, in a supra, plurality this court refused to permit certain death penalty to serve at the opponents guilt trial, phase even capital those swore could be though jurors they fair and decision, impartial. Fields in based its plurality large part, speculation that such jurors be might biased against prosecution. 351-352.) In pp. case, know for present must certain— plurality since Witherspoon so holds—that explicitly culled death jury Yet, is biased skeptics jury, albeit in of the this prosecution. favor valid. It is to in impossible satisfactorily reconcile the decision this case with Fields.
The prosecutorial peremptory challenge utilized this case practices pro- juries duce that do not reflect the conscience of the community. juries Such ex- of all who Purged white and male. persons
are also disproportionately such juries or death concerning penalty, reluctance any skepticism press will- community’s of the exaggeration verdicts that are “a distorted produce (Winick, cit. op. the death penalty.” ingness impose I would Witherspoon, Like the Court Supreme Mich.L.Rev. a by hanging jury. forbid a death sentence to imposed J., concurred. Reynoso,
MOSK, J., and Concurring Dissenting. . . disposition I concur the plurality’s aside the as sets judgment guilt, of this insofar it affirms the appeal as to judgment penalty. circumstances and reverses findings, special (ante, 313-315) I dissent from Part of the opinion pp. II.2.a plurality in People we left open insofar as to answer the purports question expressly footnote v. Zimmerman i.e., challenges system- 776], P.2d use of peremptory whether “the de- about atically penalty” exclude who had reservations persons to a ‘neutral’ impartial nies a defendant “his due process right capital (1968) 391 Illinois Witherspoon meaning within the penalty phase for . I answer to question U.S. 510 . . .” with the disagree plurality’s ante) 342-344, I, II, V the reasons stated in Parts (except pp. in this case. the Chief Justice opinion concurring dissenting Bird, 1985. January was denied Respondent’s petition rehearing be granted. J., Lucas, J., should opinion petition were C.