70 Cal. 2d 480 | Cal. | 1969
Lead Opinion
A jury found Thomas Varnum, John Jackson and Edward Jackson guilty of assault with intent to commit robbery against James H. Fields (Pen. Code, § 220 X
Thereafter, on habeas corpus, we recalled the remittitur and reversed the judgment in its entirety on the ground that defendant’s confessions had been admitted into evidence in violation of People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]. (In re Varnum (1965) 63 Cal.2d 629 [47 Cal.Rptr. 769, 408 P.2d 97].)
Upon retrial, defendant was again found guilty on all four counts charged. The jury fixed the penalty on the murder conviction at death and on the kidnaping conviction at life imprisonment without possibility of parole. On defendant’s automatic appeal" we affirmed as to guilt and reversed as to penalty because of the admission contrary to section 1111 of the uncorroborated testimony of an accomplice as to other crimes committed by defendant. (People v. Varnum (1967) 66 Cal.2d 808 [59 Cal.Rptr. 108, 427 P.2d 772], cert. den. 390 U.S. 529 [20 L.Ed.2d 86, 88 S.Ct. 1208].)
The ease is now before us on appeal after defendant’s third penalty trial on the murder conviction. A jury again fixed defendant’s punishment at death. This appeal is automatic. (§ 1239,subd. (b).)
Merrill’s wallet was found by a passing motorist at 6 :30 a.m. the following morning about 10 miles from the station. At 4 p.m. that afternoon John Russell, a maintenance mechanic, discovered Merrill’s body lying face down in a storage yard near the place where the wallet had been found. After determining that Merrill was dead, Russell informed his employer who summoned the police.
An autopsy showed that Merrill’s death had been caused by two gunshot wounds in the back perforating the heart and the left lung. One bullet had remained in the body; the other had passed completely, through and was found below the surface of the ground. Both bullets were fired from a single-action .41 caliber revolver, the same type of gun which Varnum had earlier borrowed from Thomas Hanks.
On the evening of August 18th the police received an anonymous telephone call informing them that if they went to a specified address there would be someone there who could tell them about the disappearance of Merrill. The caller was John Ashton Victoria, a 16-year-old boy who lived with Edward Jackson and who was present on August 16 when defendant and the Jacksons were planning the robbery. Victoria thereafter named all of the persons connected with the crime' and on this information the police arrested Varnum and the Jacksons.
Considerable evidence received at the first trial was introduced by stipulation at the third penalty trial. Defendant did not take the stand in his own behalf and called only, one witness, a religious adviser who testified as to her correspondence with Varnum about the Bible.
Defendant contends 1) that the court committed prejudicial ..error .in.admitting evidence of other offenses hot specifically •charged -in thé information'; 2) that the prosecutor committed prejudicial misconduct iñ ; arguing the deterrent effect of the death 'penalty; 3) that the trial court erred.in failing to give
I. Evidence of other offenses not charged in the information
The prosecution introduced evidence of two other robberies committed in the same general area and during the same month as those charged in the information. It consisted of the testimony of John Wyche and Donald Barton, the victims of the other robberies and of Thomas Hanks, an accomplice therein, who was the owner of the gun used to kill Merrill and who testified that he had accompanied defendant on these earlier robberies.
Upon a previous appeal (see People v. Varnum, supra, 66 Cal.2d 808) we reversed the judgment as to penalty on the ground that the prosecution attempted to establish these earlier robberies solely by the uncorroborated testimony of the accomplice Hanks in violation of section 1111. It now appears that at the last penalty retrial, Hanks’ testimony was corroborated by that of the two robbery victims and that a claim of error under section 1111 is not again raised. Rather defendant now contends that it was “a denial of due process ... to admit evidence of other crimes not specifically charged in the information” and that “the accused must be given prior notice of such crime so that he can prepare a defense.
? J
It is well settled that at the trial on the issue of penalty evidence of other crimes is admissible (People v. Tahl (1967) 65 Cal.2d 719, 736-737 [56 Cal.Rptr. 318, 423 P.2d 246]; People v. Mitchell (1966) 63 Cal.2d 805, 815-816 [48 Cal.Rptr. 371, 409 P.2d 211]; People v. Terry (1964) 61 Cal.2d 137, 143-144 [37 Cal.Rptr. 605. 390 P.2d 381]; People v. Hamilton (1963) 60 Cal.2d 105, 129 [32 Cal.Rptr. 4, 383 P.2d 412], overruled on other grounds People v. Morse, supra, 60 Cal.2d 631, 649; People v. Bentley (1962) 58 Cal.2d 458, 460 [24 Cal.Rptr. 685, 374 P.2d 645]; People v. Pike (1962) 58 Cal.2d 70, 94-95 [22 Cal.Rptr. 664, 372 P.2d 656]), but
Finally, we observe that since defendant interposed no objection at trial to the introduction of the evidence of other crimes, he cannot now raise the objection for the first time on appeal. (People v. Tahl, supra, 65 Cal.2d 719, 735; People v. Cockrell (1965) 63 Cal.2d 659, 667 [47 Cal.Rptr. 788, 408 P.2d 116]; People v. Robinson (1965) 62 Cal.2d 889, 894 [44 Cal.Rptr. 762, 402 P.2d 834]; People v. Jones (1959) 52 Cal.2d 636, 646 [343 P.2d 577.].)
II. Alleged misconduct of the prosecutor
Defendant asserts that the prosecutor committed prejudicial misconduct during his opening argument to the jury by making three separate references to the deterrent effect of the death penalty. We take up the three specifications in the order presented.
First: By way of illustration, the prosecutor referred to a different type of homicide, namely a domestic “situational” killing. We set forth the pertinent portion of the argument in the footnote.
Defendant did not make any assignment of misconduct or object in any way to either of the above arguments.
Third: At the conclusion of his opening argument, the prosecutor then said: “Now, if you vote life, ladies and gentlemen, we will never be able to change that verdict. Just as a former verdict was life without possibility of parole as to the kidnaping charge, we can’t change that verdict. That verdict stands. Before you decide what is a proper verdict, think of the consequences of that verdict. Think of the fact that if the verdict of this jury is the death penalty, that you may be preventing Mr. Varnum from ever killing again.” Defendant’s objection to the remarks was sustained and the jury admonished to disregard them.
Defendant contends that in all three instances the prosecutor’s remarks constituted an argument to the jury as to the deterrent effect of the death penalty and require a reversal under our holding in People v. Love (1961) 56 Cal.2d 720, 731 [16 Cal.Rptr. 777, 17 Cal.Rptr. 481, 366 P.2d 33, 809]. (See also People v. Bickley (1962) 57 Cal.2d 788, 798-799 [22 Cal.Rptr. 340, 372 P.2d 100]; People v. Imbler (1962) 57 Cal.2d 711, 717 [21 Cal.Rptr. 568, 381 P.2d 304] (not prejudicial error); People v. Garner (1961) 57 Cal.2d 135,
Further, as we have already indicated, defendant interposed no objection to the first two instances of alleged misconduct and the court sustained his objection to the third, properly admonishing the jury to disregard the remarks.
Misconduct of the prosecuting attorney may not be assigned as error on appeal if it has not been assigned at the trial unless, the case being closely balanced and presenting grave doubt of the defendant’s guilt, the misconduct contributed materially to the verdict or unless the harmful results of the misconduct could not have been obviated by a timely admonition to the jury. (People v. Golston (1962) 58 Cal.2d 535. 541 [25 Cal.Rptr. 83, 375 P.2d 51], cert. den. 372 U.S. 955 [9 L.Ed.2d 979, 83 S.Ct. 954]; People v. Rosoto (1962) 58 Cal.2d 304. 357 [23 Cal.Rptr. 779, 373 P.2d 867], cert. den. 372 U.S. 955 [9 L.Ed.2d 978, 83 S.Ct. 953], remittitur recalled on other grounds id., 62 Cal.2d 684 [43 Cal.Rptr. 828, 401 P.2d 220]; People v. Perez (1962) 58 Cal.2d 229, 247 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946]; People v. Wein (1958) 50 Cal.2d 383. 396 [326 P.2d 457]; People v. Lyons (1958) 50 Cal.2d 245, 262 [324 P.2d 556]; People v. Kirkes (1952) 39 Cal.2d 719, 726-727 [249 P.2d 1]; People v. Berryman (1936) 6 Cal.2d 331, 337 [57 P.2d 136]; People v. Basler (1963) 217 Cal.App.2d 389, 399 [31 Cal.Rptr. 884].)
As to the first two remarks of the prosecutor it is clear that they fall within the above general rule and not within either of the above two exceptions, and that defendant cannot now raise an objection to the misconduct for the first
III. Failure to give instruction set forth in People v. Morse
Defendant contends that the trial court erred in failing to give the instruction set forth in People v. Morse, supra, 60 Cal.2d 631, 648. He argues that although the instruction was not requested, the court was required to give it sua sponte.
In Morse we held that at the trial of a first degree murder case on the issue of penalty, it was error to receive evidence, to allow argument to the jury, or to give an instruction which permitted the jury to consider the possibility that the defendant, if given a life sentence, might be sometime paroled. We reasoned that the jury would “plunge into a judgment based upon conjecture” and preempting the whole parole system “would then utilize the death penalty for fear that the Adult Authority will not properly perform the function that the Legislature has specifically delegated to it.” (60 Cal.2d at p. 644.) We concluded that such practice would “foster the dual vices of foisting upon the jury alien issues and concomitantly diluting its own sense of responsibility. ’ ’ {Id. at p. 654.)
However recognizing “that individual jurors often entertain some ideas of parole laws and might erroneously consider the effect of such laws upon a term of life imprisonment” {id. at p. 647) we suggested in Morse “for the general guidance of the trial court” {id. at p. 648) an instruction informing the jury of the general scheme of the parole system but admonishing them not to consider the matter of parole in determining the defendant’s punishment.
While we have had many cases before us since the time of Morse which have raised the Morse issue (People v.
We think that the whole tenor of our opinion in Morse clearly indicates, and our above-quoted language prefacing the instruction emphasizes, that the instruction is mandatory
If the court had given the Morse instruction in the instant case it would have confused rather than assisted the jury. They had already been informed by both the court and counsel that defendant had been convicted of kidnaping for robbery and had been sentenced to life imprisonment without possibility of parole. We have no difficulty in conceiving their immediate perplexity if they had thereupon been further informed in the suggested language of Morse that the rendering of a sentence of life imprisonment “means that the prisoner may be paroled at some time during his lifetime. ...” (People v. Morse, supra, 60 Cal.2d 631, 648.) Such additional information would have been completely inconsistent with that initially received that defendant could never be paroled. It would have produced obfuscation, not light. We find no error.
IV. Constitutionality of section 190.1
As previously indicated, defendant contends that section 190.1 violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. We considered this argument in In re Anderson and Saterfield (1968) 69 Cal.2d 613, 621-629 [73 Cal.Rptr. 21, 447 P.2d 117], and rejected it.
V. The right to a fair and impartial jury
Defendant contends that one of the prospective jurors at his penalty trial was excused for cause by the prosecution in violation of the standards set out in Witherspoon v. Illinois, supra, 391 U.S. 510. Although Witherspoon was decided after defendant’s trial it is clear that the ease is applicable herein. (Witherspoon v. Illinois, supra, 391 U.S. 510, 523, fn. 22 [20 L.Ed.2d 776, 785].)
Defendant asserts that prospective juror Yvonne Bronsal was erroneously excused for cause because she did not unambiguously state that she “would automatically vote against the imposition of capital punishment no matter what the trial might reveal. ...” (Id. at p. 516, fn. 9 [20 L.Ed.2d at p. 781].) The complete voir dire of Mrs. Bronsal is set out in the margin.
In our application of the rule announced in Wither-spoon, we must determine whether the prospective juror who has been excused for cause made it “unmistakably clear” that he or she would automatically vote against the imposition of' the death penalty regardless of the evidence in the case. Our task requires us to assess the responses of the venireman
Turning to the instant problem, we note that Mrs. Tanya Hokin to whom Mrs. Bronsal referred had already
After this initial and somewhat general inquiry of Mrs. Bronsal as to “any reason” she might have as to “why you could not sit on this case,” the court made a more direct attempt to ascertain her attitude on the imposition of the death penalty. The judge asked her: “And it is your feeling at the present time, Mrs. Bronsal, under no circumstances in a proper case would you ever vote for that type of punishment?” If we confine our inquiry to the question, then Mrs. Bronsal’s response—“Not the death penalty, no”—might appear ambiguous because nowhere in the question was it made clear to her that it was entirely in her discretion to determine what was a proper case. If we considered nothing more, we could not assume that Mrs. Bronsal thereby affirmed “that [she] could never vote in favor of [the death penalty] or that [she] would not consider doing so in the case .before [her].” (Witherspoon v. Illinois, supra, 391 U.S. 510, 515-516, fn. 9 [20 L.Ed.2d 766, 781].)
However, when we examine Mrs. Bronsal’s testimony in the full - context and setting of .the voir dire examination conducted up until tiie time she was excused, her frame of mind as to the death penalty is brought clearly into focus. She stated that under no circumstances in a proper case would, she ever vote for the death penalty. We need not attempt to determine whether, upon considering the above seven italicized words in context, the first three words—-“Under no circumstances”—dominate the next four. If we can ascertain that Mrs. Bronsal was aware that she could decide what was the proper case, then it is sufficient .that the first three words are present. In such event, their absolute negating force is unrestricted and they convey the idea of a vote against the death penalty automatically and regardless of the evidence in the case.
Our examination of the record satisfies us that in respond
We conclude that since Mrs. Bronsal made it “unmistakably clear” that regardless of the evidence in the case she would automatically vote against the imposition of the death penalty, she was therefore properly excused for cause. Although defendant has asserted no other violations of the rule announced in Witherspoon, we have nevertheless made an independent examination of the record and are of the opinion that none exists. We are satisfied that the issue of defendant’s penalty was determined by a fair and impartial jury.
The judgment is affirmed.
Traynor, C. J., McComb, J., and Burke, J., concurred.
Hereafter unless otherwise indicated all section references are to the Penal Code.
Defendants John Jackson and Edward Jackson were sentenced to life imprisonment for the murder and to life imprisonment without possibility of parole for the kidnaping. They are not parties to the instant appeal. (See People v. Varnum (1964) 61 Cal.2d 425, 426, fn. 1 [38 Cal.Rptr. 881, 392 P.2d 961]; In re Varnum (1965) 63 Cal.2d 629, 630, fn. 1 [47 Cal.Rptr. 769, 408 P.2d 97].)
‘We have a situation of where you have a domestic situation where the wife has been giving the husband the benefit of -her unhappy humor for many years and he is finally fed up and he goes out and he buys a gun and he comes back and says, ‘Mabel, if you say another word, I am going to kill you,’ so we have premeditation, and she says, ‘Don’t,’ and he kills her and he says, ‘I told you not to say another-word to me,’ and that is first degree murder.
‘ ‘ But the doctors will come in and tell you that the man, although he deliberately bought the gun and pointed the gun and fired the trigger, his mind left him so he did not really premeditate. All right, if that is
“If incarceration isn’t going to do him any good for stopping him stealing automobiles do you think incarceration is going to do him any good for the crime he committed in this instance or is it just a situation where'Ke will be waiting, waiting for the opportunity to escape? Waiting, waiting-for the opportunity to commit another crime? Don’t you think that they commit crimes in prison? You know, ladies and gentlemen, that they are not chained to a bed. They are not chained to a wall. They are not given bread and water and kept in some dungeon. The same things go on in prisons that go on in every day life. ’ ’
We do not think that the foregoing contains such implications as the argument in People v. White (1968) 69 Cal.2d 751, 761-762 [72 Cal.Eptr. 873, 446 P.2d 993], where the prosecutor invited the jury to speculate from the defendant’s attempt to escape on.the day of his arraignment as to the possibility of his escape from prison in the future.
As indicated supra, the complete instruction will he found in 60 Cal.2d at page 648. We see no reason for repeating it here either in whole or in cart.
In the case of People v. Treloar (1964) 61 Cal.2d 544 [39 Cal.Rptr. 386, 393 P.2d 698], the prosecutor both during voir dire and on final argument told the jury to consider the possibility of parole. We reversed the penalty judgment noting that “aside from the affirmative errors which are now revealed in the light of the Morse decision, defendant did not have the benefit of the instruction proposed in Morse which removes from the jury’s consideration the possibility of premature parole and compels the penalty jurors to assume that the defendant will not be released unless completely rehabilitated.” (Id. at pp. 549-550.) We did not, however, comment on whether in fact that instruction was mandatory since we had adequate other grounds for reversal of the penalty. (Cf. People v. Jacobson (1965) 63 Cal.2d 319 [46 Cal.Rptr. 515, 405 P.2d 555].)
Prior to the Morse ease the rule was that the jury could be told that they could consider in their deliberations the fact that the defendant could possibly be paroled if sentenced to life imprisonment. (See cases cited in Morse (60 Cal.2d 631, 637, fn. 2).) While there was a proper purpose in admitting this evidence, the entire issue got out-of hand and it led to the jury’s usurpation of the function of the Adult 'Authority as well as putting improper questions before the jury. We decided in Morse that the court should inform the jury generally about the .scheme
Our reason for deciding as we did in Morse was to remove from the jury the temptation to consider the chances that the defendant might be paroled. We did not simply hold that the court should not mention the issue of parole at all, for we realized that jurors do hold misconceptions about the parole system which might have an impact on their deliberations. Rather, we held that the jury should be told about the possibility of parole in order to “prevent latent misconceptions.” The instruction would thus seem to be mandatory in the usual death penalty trial because if' nothing is said to the jury about parole then all of the “latent misconceptions” entertained by jurors concerning the parole system will remain.
‘‘By the Court:
Q. Mrs. Bronsal, have you been able to hear all right from your seat in the back of the courtroom ?
A. Tes, I have.
Q. Calling your attention to the nature of this litigation, do you know of any reason why you could not sit on this ease?
A. I am afraid I am of the opinion as [Mrs.] Hokin. I am doubtful I ivould be able to give a verdict of guilty—I moan of capital punishment.
Q. Is that based on a conscientious objection to that type -of penalty?
A. I am afraid so.
Q. And it is your feeling at the present time, Mrs. Bronsal, under no circumstances in a proper case would ■ you ever vote for that type of punishment?
A. Not the death penalty, no.
The Court: Do you wish to inquire any further?
Mr. Bubrick [defense counsel] : No, your Honor. ' ■
Mr. Stovitz [prosecuting attorney] : Did you say "No,” Counsel?
■ Mr. Bubrick: "No.”
- Mr. Stovitz: We have no questions. We ask she be excused.-for actual bias. ■ - ■. •
■- The Court-: Mrs. Bronsal, you will be excused. I will grant the challenge for cause, reserving again the defendant's objection and noting if; for the record, ” (Italics added.) ■ ■ •
In its introductory remarks to the assembled panel of veniremen the court stated: “Now in the State of California the law does not impose either of two possible alternative punishments, but leaves that in the sole discretion of the jury.
“The State of California for the crime of murder, if the finding is murder in the first degree, the legislature has two possible alternative penalties.
“One is life imprisonment and, second, the penalty is death, and the determination of the proper penalty is left, as I have indicated, in the sole discretion of the jury. ’ ’
In questioning a venireman who was excused for cause on motion of the prosecution, the court clearly stated the applicable rule: “So your frame of mind at this time, Mr. Bush, is if you were called upon to listen to the evidence in this case and listen to the law, and were called upon to decide the proper penalty, under no circumstances in any type of ease would you ever vote for the death penalty; is that correct 1”
The prosecuting attorney often made reference to the fact that the choice of penalty was solely in the discretion of each juror in language similar to the following voir dire of prospective juror Ernest Schreiber:
“And if in this case you were satisfied—you were satisfied in your mind, that the death penalty was a proper verdict, would you be able to sign that verdict ? ’ ’
Defense counsel went to great lengths to explain to veniremen the amount of discretion they had in deciding the proper penalty. As an example, the voir dire of prospective juror William McCall proceeded:
“You understand if the evidence may preponderate by a ratio of 10 to 1 in either direction, it will be your decision and your decision alone based upon your personal evaluation of the evidence that will cause you to return whatever verdict you will?
“. . .So once you decide whether something is or is not a proper case, then you will make your determination because of that decision; do you understand that?
“. . . You understand you are to impose the death penalty only if you find it to be a proper case for the death penalty?
“. . . And I take it yon must know by now that none of us can tell you what a proper case is? That is a subjective evaluation- that you must make on your own. ’ ’ (Italics added.)
When questioning a member of the panel for the first time the court often began in a manner similar to the following voir dire of prospective juror Martin Glickman: 1 ‘ Have you heard anything here, as I have
The prosecuting attorney posed questions which closely followed the form of that asked of venireman Armando Rosales: “Now, Mr. Rosales, assume I asked you each and every question I asked Mrs. Clarke, [the first venireman questioned] questions concerning conjecture, questions concerning burden of proof, questions concerning your groups and your affiliations and your understanding in your mind as to what you consider as a proper case in a death penalty, would your answers be all the same?”
Defense counsel also relied upon his questioning of prior veniremen as illustrated by the following inquiry made of prospective juror Rosemary Mallon: “Now if I were to ask you all the questions I have asked the other jurors, would your answers, generally speaking, be the same except to those questions which may refer to you personally ? ’ ’
Concurrence Opinion
I concur. While I believe the procedures in California by which the death penalty is imposed are unconstitutional (see dissenting opinion of Tobriner, J. in In re Anderson and Saterfield, 69 Cal.2d 613 at p. 635 [73 Cal.Rptr. 21, 447 P.2d 117]), this court by a four-to-three majority in that case has decided otherwise, and as long as the majority opinion remains the law of California, I am bound by it. Solely under compulsion of the majority opinion in that case, I concur in this opinion.
Tobriner, J., and Kaus, J. pro tem.,
Assigned by the Chairman of the Judicial Council.