We affirm the judgment as to guilt. But we find the trial court erred at the penalty retrial by permitting the prosecution to make improper use of inflammatory character evidence for purposes unrelated to any legitimate issue in the proceeding. Having carefully reviewed the record, we conclude the error was prejudicial. We therefore reverse the judgment as to the sentence of death and remand the matter for a new penalty determination.
I. BACKGROUND
A. Guilt Phase
On July 18, 1999, defendant and two other men robbed a Five Star Park, Shuttle & Fly ("Five Star") parking lot near the San Diego International Airport. The three robbers were aided by a former Five Star employee, James Torkelson, who planned the robbery and assisted in it by pretending to be on duty. During the robbery, the robbers shot and killed Five Star employees
Although the case initially went cold, subsequent investigation revealed the identities of the perpetrators. In 2003, defendant was jointly charged with one of the other robbers, David Raynoha, but defendant was tried alone. Defendant did not contest his participation in the robbery or the carjacking, but argued that he did not fire the shots that killed Perez and Reynolds.
1. Prosecution Case
Around 12:30 a.m. on July 18, 1999, Kendrick Bowman began a shift in the toll booth at the Five Star parking lot, which was located at the intersection of Sassafras Street and Pacific Highway. Bowman relieved fellow employee Perez, whom he saw empty the cash drawer and head to the Five Star temporary office in a nearby trailer. Shortly after he began his shift, Bowman encountered Torkelson. Bowman was surprised by Torkelson's presence; he thought Torkelson, who had worked as a security guard at the parking lot, had been fired, and Torkelson was atypically early for his shift. Bowman also noticed Torkelson heading for a remote side of the parking lot, which differed from the usual starting point for Torkelson's rounds.
Immediately after Torkelson disappeared from Bowman's line of sight, someone approached Bowman from behind and said, "Hey, you." Bowman turned around and found a man pointing a gun at him. Although the gunman wore nylon stockings over his head, Bowman observed that the gunman was a White man in his twenties
Bowman heard the door to the bathroom near the trailer open, and the gunman yelled at someone to go into the trailer. Bowman assumed the gunman was yelling at Perez, since she had been heading to the trailer. Bowman then heard one gunshot, followed by a series of shots after a brief pause. The gunman standing over him then fled toward Pacific Highway. Bowman stood up and saw the gunman clearly; he also saw two other men running in the same direction. Bowman then called 911.
Around the same time, Gagarin was retrieving his car from Park & Ride, a parking lot across Pacific Highway from the Five Star parking lot. He stopped at the Park & Ride exit booth, which was manned by Michael Mackey. Gagarin and Mackey first heard noises coming from the Five Star parking lot that Mackey dismissed as firecrackers, followed by noises that sounded more like gunshots. Gagarin and Mackey then saw a dark van leave the Five Star parking lot, followed by three men running towards the Park & Ride parking lot from the Five Star parking lot. The first man to arrive at the Park & Ride parking lot was armed and ran past the exit booth. The second and third men fired shots behind them before running up to the exit booth. Gagarin and Mackey both testified that the men were White and wore dark clothing, dark caps and nylon stockings over their faces. The shorter of the two men pointed a gun at Mackey and demanded the car, while the taller man pointed a silver-colored gun at Gagarin. Both Gagarin and Mackey raised their hands in surrender, and Gagarin told the assailants to take his car. The assailants then exited the lot, heading east on Sassafras Street. Just as they left, the dark van that Gagarin and Mackey had seen driving away from the Five Star parking lot pulled into the Park & Ride parking lot. The driver asked if they were all right and told them that there had been shots fired at the Five Star parking lot and he believed that the shots were aimed at him. Mackey then called 911. At the preliminary hearing, Mackey "felt 75 percent sure" that defendant was the shorter gunman. 1
A homicide investigation team from the San Diego Police Department also responded to the scene. Members of the team discovered that the telephone
Gagarin's car was discovered less than a mile from the Five Star parking lot. A nine-millimeter bullet casing was found on the ground outside the car, and a Glock containing 12 live nine-millimeter cartridges was found on the front passenger seat. Ballistics testing confirmed that all of the nine-millimeter casings from the trailer matched the magazine in Gagarin's car. Dr. Christopher Swalwell examined the bodies at the scene on the night of the robbery and performed autopsies
Detective Stephen McDonald testified that the case went cold for three years until he contacted Paula Daleo, Torkelson's girlfriend at the time of the robbery. Daleo disclosed two incidents that connected defendant to the
The second incident occurred about a year after the robbery, when Daleo attended a party in Li'l Jeff's home in June 2000. Daleo recalled a general discussion of the robbery, in which Torkelson was described as the organizer of the robbery, and Li'l Jeff and Raynoha were described as participants. Someone said the killings during the robbery took place because "Jeff got trigger happy." Li'l Jeff responded, "No, I did not," but did not deny involvement with the robbery.
Based on the information obtained from Daleo, Detective McDonald contacted Getscher. At the time, Getscher was serving a term in Arizona state prison for forgery. Getscher explained that he met defendant during an earlier prison term in 1996. Because he was 10 years defendant's senior, Getscher sought to protect defendant inside prison and keep him out of trouble after they were released. Defendant, Anderson, and Torkelson stayed in Getscher's house immediately before the robbery. During their stay, defendant, Anderson, and Torkelson discussed robbing a business where Torkelson worked as a security guard. Getscher was present when the three men discussed their plans and left to commit the robbery and when they all returned to Getscher's home. Torkelson rеpeatedly warned defendant not to say anything.
On a subsequent occasion, defendant told Getscher that the robbery had not gone well and that defendant had shot someone. Getscher also saw defendant attempting to lace his boots with red laces. Getscher explained that he and defendant were skinheads in prison, and that in skinhead culture "red laces would indicate that you have drawn the blood of an enemy." Defendant insisted that he had earned the laces, but Getscher disagreed because defendant had "killed an innocent victim and that he didn't kill an enemy that was trying to get him." Getscher also noticed a cut on defendant's hand, which defendant explained was a burn from putting his hand over the barrel of the gun to silence the gunshots.
Getscher agreed to call defendant from prison and get him to talk about the robbery while Detective McDonald recorded the conversation. This arrangement resulted in two recorded conversations. In the first conversation, which took place on October 28, 2002, Getscher referred to the "stupid little stunt"
After these recorded calls, defendant was arrested. While in custody, Detective McDonald played a portion of the second recorded call for defendant. When asked if he wanted to tell his side of the story, defendant responded, "You heard it all," and "I ain't gonna talk about it no more."
2. Defense Case
Defendant did not call any witnesses and rested on the record. In closing argument, defense counsel conceded that defendant was in the trailer during the robbery and participated in carjacking Gagarin. Defense counsel argued that defendant did not shoot Perez and that Anderson instead shot both Perez and Reynolds. Defense counsel acknowledged that defendant had claimed responsibility for shooting Perez in his second recorded conversation with Getscher, but argued that defendant was merely posturing to impress
B. Penalty Phase
At the first penalty phase trial, the jury had been unable to reach a verdict and the trial court declared a mistrial on November 10, 2005. The penalty phase retrial began several months later, on June 19, 2006.
1. Prosecution's Case in Aggravation
The prosecution called witnesses from the guilt phase to describe the robbery, defendant's role in the robbery murders, and the forensic evidence. The prosecution also presented evidence of defendant's attitude following the robbery murders. Getscher testified about defendant's attempt to put red laces in his boots аs a mark of having "dr[awn] the blood of an enemy." Getscher took the laces away, telling defendant that he had not earned them because the laces were only for killing non-White "enem[ies]." Defendant responded, "Oh, I earned them. ... It was a Mexican."
The prosecution presented victim impact evidence from family, friends, and coworkers of Perez and Reynolds, who described how the victims' deaths affected them. The prosecution presented evidence of defendant's participation in three prior crimes: (1) an attempted
2. Defense's Case in Mitigation
Members of defendant's family, including his grandmother, aunts, uncle, and parents, testified about hardships defendant had encountered growing up. Defendant's parents separated when he was one year old, and defendant had no contact with his father until he was around 12 years old. Defendant struggled with learning and was placed in special education classes. When defendant was nine years old, he was sexually abused by his older cousin. Defendant's father began giving him alcohol as an infant and later introduced him to drugs as an adolescent. Defendant spent some time in an adolescent psychiatric hospital and a drug rehabilitation center. Defendant was a nonviolent person and a loving and attentive father to his son and stepdaughter. Defendant accepted responsibility for the crimes he committed in Arizona. After the trial court ruled that this evidence of defendant's good character opened the door for the prosecution to introduce evidence of defendant's
Aaron Beek, an inmate who participated in the attack on inmate Harger when defendant was awaiting trial, attested to being the only one who physically attacked Harger; defendant, Beek testified, was not present during the assault. But Beek acknowledged authoring a letter in which he said he pleaded guilty to the assault to "take the charges off ... [his] comrade Jeff." At trial Beek explained, "I don't feel comfortable letting [defendant] get charged with something I did." On cross-examination, the prosecution presented Beek with another letter confiscated by jail officials and signed in defendant's name that bragged about being a member of the "American Front" and the "shot-caller" for the Caucasian prisoners in jail. Beek claimed to have authored this letter as well.
An officer who investigated the attack on Harger testified that although Harger identified defendant as being present during his assault, Harger misidentified defendant's hair color and name. A family therapist characterized defendant as a "follower" who is "highly susceptible to the influence of others." The therapist noted that the sexual molestation that defendant suffered, as well as his early exposure to alcohol, may have affected his development and led to later alcohol and drug abuse problems. The therapist testified that defendant became a skinhead for two reasons: (1) to achieve a sense of belonging as he felt like an outsider in his family, and (2) as a means of self-preservation in prison. In response to questioning about what values might have attracted defendant to "the skinhead philosophy," the therapist testified that the values "incorporat[e] not only the negative ones that we associate with it, but also ones that have to do with honor, respect, loyalty, fidelity to one's group, a sort of misguided protection of the common man ... and a lot of pride."
On rebuttal, the prosecution presented evidence in accordance with the trial court's ruling that testimony by defendant's grandmother supporting his good character could be rebutted with evidence of defendant's racist tattoos and affiliations. Deputies investigating the assault on Harger testified that the day
4. The Defense's Surrebuttal
Two Hispanic inmates housed in the same jail as defendant testified that defendant never expressed any support for racial violence and got along with inmates of other races. A sheriff's department sergeant who investigated the assault on Harger testified that an informant identified Beek and an inmate named Britain as the "shot-caller[s]" for the Caucasian inmates. The informant witnessed Britain sharpening the shanks later recovered from the attack on Harger, Beek looking nervous outside his own jail cell when the attack occurred, and Beek washing his hands after the attack.
II. DISCUSSION
A. Guilt Phase Claims
1. Admission of Statement Given in Response to Police Questioning
After defendant was arrested, he was interviewed by Detective McDonald. Deferring defendant's repeated requests for "his rights," Detective McDonald instead began the interrogation by playing the tape of defendant's conversation with Getscher, in which defendant described the circumstances of the robbery and admitted to fatally shooting Perez. Then, after reading defendant his rights under
Miranda v. Arizona
(1966)
Detective McDonald interviewed defendant on March 20, 2003. After confirming defendant's name and address, Detective McDonald explained that defendant was in custody "regarding a 1999 murder case we revisited" and asked if defendant knew "James Torkelson." Defendant expressed uncertainty, and Detective McDonald responded that "[Torkelson]'s up in prison right now. He's looking at thirty years and he's looking for deals and he gave us some information regarding a murder case in 1999. It happened at [a] Park and Ride,
Detective McDonald explained that Torkelson and another individual had given law enforcement "some information," and so "things are starting to fall apart on this whole operation you guys were ... involved in." Detective McDonald further explained that Torkelson was "doing thirty years" and "wants a deal," but that "[w]e're not sure we want to deal with him." The conversation then continued as follows:
"MCDONALD: ... But we want to hear, this would be your opportunity to tell us your side of the story. We do have other evidence too. We have a tape here that I could play for you if you want to hear that. But I just want to know would you like to tell us your side of the story what happened at this lot?
"YOUNG: After I get my rights.
"MCDONALD: But only if this, yeah, I'm just letting you know if you, I can read your rights.
"YOUNG: (Unintelligible), that's, one step at a time.
"MCDONALD: Okay. Like to go that route?
"MCDONALD: Okay.
"YOUNG: Yeah, I'd like my rights.
"MCDONALD: Okay. Let me uh
"MCDONALD: No, but would you like to listen to a tape first?
"YOUNG: Uh
"MCDONALD: I won't say nothing. I won't ask you any questions. Would you like to listen after?
"YOUNG: Yeah.
"MCDONALD: Okay. And then after we're done, I'm not gonna ask you any questions, I'll play a tape and then uh, after the tape, I'll advise you of your rights and we can go on.
"YOUNG: Okay."
Detective McDonald then attempted to play the tape but encountered technical difficulties. After twice leaving to retrieve new batteries, Detective McDonald successfully played defendant a portion of the second recorded call between defendant and Getscher, which took place on November 26, 2002. In the recording, defendant admitted to participating in the robbery and to shooting Perez. Detective McDonald asked defendant if he wanted to hear the remainder of the recorded call, but defendant stated, "Nah, I heard about enough."
Detective McDonald then sрoke about the importance of teaching one's children to take responsibility for mistakes. Defendant agreed that he wanted his son to be raised that way. Detective McDonald reiterated that "sometimes we have to face up to our responsibilities of things that happen." The conversation then continued as follows:
"MCDONALD: ... A lot of people like want favors. But, uhm, so, let me, you know.
"YOUNG: So you're sure those guys don't like Woody. So you
"MCDONALD: No, there's, there's people that don't like Woody at all.
"YOUNG: Yeah.
"MCDONALD: No, he doesn't, there's not too many friends. I don't know why, uh ... no one likes, I can't find anyone that
"MCDONALD: Yeah.
"YOUNG: Fucken be driving to go see girls. Cause I don't have a car.
"MCDONALD: Yeah. Let me advise you of your rights and see if you'd like to continue on. Cause basically we got everything on, on tape but we'd just like some details from you. Okay. And I appreciate your honestly [ sic ] and it'd be something at least you can tell your son, that hey, I made a mistake and I faced up to it and you should too. If you do something wrong, you should tell your mother or something or just face up to your responsibilities. I mean, that's something you got to think of as an adult, as a parent. Uhm, all right?
"YOUNG: What am I looking at? Death?
"MCDONALD: Let me, let me advise you of your rights okay. My job, my job is
"YOUNG: (Unintelligible).
"MCDONALD: Get evidence
"YOUNG: (Unintelligible)."
Detective McDonald then read defendant his Miranda rights, and defendant indicated that he understood each one. Immediately after, Detective McDonald asked defendant, "Do you want to tell us your side of the story on this?" Defendant responded, "You heard it all." Detective McDonald explained that "there's a lot of holes" because "it wasn't me asking you these questions" in the recording. Defendant then responded, "I ain't gonna talk about it no more."
Detective McDonald expressed "respect" for defendant's decision not to speak further about the incident, but noted that "there's other people that are spilling names out left and right." Detective McDonald encouraged
The trial court denied the motion. The trial court explained that "[t]here are a series of statements in [the interrogation]
b. Discussion
"To safeguard a suspect's Fifth Amendment privilege against self-incrimination from the 'inherently compelling pressures' of custodial interrogation (
Miranda
,
supra
,
Defendant argues, and the Attorney General concedes, that Detective McDonald violated
Miranda
by failing to advise defendant of his rights at the outset of the interrogation. But none of defendant's unwarned statements was admitted at trial. Our inquiry here instead focuses on the prosecution's use of a statement elicited after defendant received the required advisements. Case law makes clear that an initial
Miranda
violation does not necessarily require the exclusion of statements following proper advisements. Indeed, we have explained, "[e]ven when a first statement is taken in the absence of proper advisements and is
incriminating
," a subsequent voluntary confession made after proper advisements "is not tainted simply because it was procured after a
Miranda
violation." (
People v. Williams
,
supra
,
Defendant makes essentially two arguments for excluding his postwarning statement. As an initial matter, he argues that the statement was involuntary because Detective McDonald employed improper psychological tactics to induce him to waive his right to remain silent. In particular, defendant argues that after deferring defendant's request for "his rights," Detective McDonald impermissibly attempted to soften him up by suggesting that he might be able to make a deal and by playing on his responsibility as a father.
Defendant relies on
People v. Honeycutt
(1977)
Nor do we otherwise perceive any impropriety in Detective McDonald's supposed suggestion that defendant might obtain a deal or the exhortation that defendant set a good example for his son. Detective McDonald informed defendant that Torkelson and another individual were seeking deals in exchange for their cooperation, but Detective McDonald neither expressly nor impliedly promised defendant a deal should he confess before Torkelson or the other individual. (See
People v. Holloway
(2004)
Defendant's second and more substantial argument concerns Detective McDonald's delay in giving the required
Miranda
advisements. Defendant focuses on the fact that Detective McDonald put off defendant's request for "his rights." Defendant argues the delay requires suppression of his statement because it constituted part of an impermissible "two-step" or "question-first" tactic of the sort disapproved
The Attorney General argues that the interrogation technique at issue here differs in relevant ways from the one condemned in Seibert : Rather than engage in sustained prewarning interrogation, Detective McDonald advised defendant he would read him his rights after he played the tape of his conversation with Getscher. Whether this distinction makes a difference-and more to the point, whether this or any other part of the exchange preceding the giving of Miranda warnings affected the voluntariness of defendant's later, postwarning statement-is an issue we need not decide because any error in introducing the challenged statement would be harmless in any event.
The prosecution argued the statement in question-"You heard it all"-was an adoptive admission of the contents of the second recorded conversation between defendant and Getscher. Its probative value was thus to bolster the veracity of defendant's confessions made therein, including his confession that he shot Perez in the course of the robbery. But the veracity of the tape itself, whiсh was properly admitted at trial, was never contested. The substance of this recorded conversation provided decisive evidence of defendant's guilt: Defendant identified himself as one of the participants in the robbery, admitted that he shot Perez and fired at two other witnesses in the parking lot, and discussed the red laces he had donned to take credit for the murder.
Defense counsel did argue that defendant was merely "posturing" in this conversation. But no reasonable juror would have believed this explanation. Getscher had initiated the conversation under the guise of recruiting defendant for a bank heist and demanded that defendant explain how the Five Star parking lot robbery had gone so poorly. Defendant admitted to Getscher that
There is no merit in defendant's alternative argument that the statement should have been excluded under state evidence law. ( Evid. Code, §§ 210, 350, 352.) Defendant contends that the challenged statement was inadmissible because it was "ambiguous and equivocal" and "only an acknowledgment of the prosecution's evidence." Defendant is correct that the statement is ambiguous, but the ambiguity does not render it inadmissible; it is enough that a reasonable juror could understand it, as the prosecution argued, to suggest that the contents of the second recorded conversation between defendant and Getscher were accurate. Defendant's contention that the challenged statement was ambiguous and equivocal "concerns only the weight of this evidence, not its admissibility, which does not require complete unambiguity." (
People v. Ochoa
(2001)
Defendant asserts that the challenged statement was also unduly prejudicial, and therefore should have been excluded under Evidence Code section 352, because the statement "severely compromised" his argument that defendant was posturing in the conversation with Getscher and that Getscher was lying or confabulating. But " 'prejudice' " for purposes of Evidence Code section 352 "does not mean damage to a party's case that flows from relevant, probative evidence." (
People v. Cortez
(2016)
Defendant argues that the trial court committed prejudicial error by admitting evidence during the guilt phase that defendant had tattoos suggesting racist beliefs and that he was affiliated with White supremacist groups. We find no reversible error.
a. Background
Before trial, defendant filed a motion in limine to exclude all references to defendant's "affiliation/membership with any White supremacy organization" as well as his "distinctive, racially identified/offensive tattoos." Defendant argued that this evidence was both irrelevant and improper character evidence with "highly inflammatory impact." The prosecution responded that two of defendant's tattoos-one featuring the phrase "Nigger Thrasher" and another depicting Thor's hammer-were relevant to identification, because Daleo, who had observed defendant making admissions about the Five Star parking lot
At a hearing on the motion, the trial court tentatively granted defendant's motion as to evidence of defendant's membership in White supremacist groups. The prosecution reiterated that the red laces were relevant as an аdmission of guilt, and pointed out that some evidence of defendant's White supremacist
With respect to the tattoos, the trial court found that their offensive nature was "not enough" to outweigh their relevance "to bolster the credibility of the witnesses" who identified defendant by those tattoos. The trial court offered defense counsel two options: stipulating that defendant had the tattoos, or allowing the prosecution witnesses to use photographs of the tattoos to
Before trial, defense counsel reiterated its objection to photographs of defendant's "Nigger Thrasher" and Thor's hammer tattoos prepared by the prosecution as a trial exhibit. Defense counsel offered to stipulate that defendant had distinctive tattoos through which Daleo identified him, but the prosecution did not respond to this offer. The trial court ruled that the photographs were admissible.
On direct examination, Daleo testified that the man she knew as "Li'l Jeff" had a tattoo reading "Nigger Thrasher" on his upper arm and a tattoo depicting Thor's hammer on his Adam's apple. Daleo identified defendant as "Li'l Jeff," and also identified the photographs as accurate depictions of defendant's tattoos. The photographs were admitted and published to the jury over defendant's continued objection.
During a break in Daleo's testimony, the prosecution asked for "clarificatiоn" of the trial court's ruling on evidence of defendant's membership in White supremacist groups. The trial court expressed the view that this evidence was still irrelevant. Defense counsel responded that the relevance of this evidence would depend on Daleo's testimony, particularly if Daleo mentioned the red laces. The prosecution indicated that it did not plan to elicit any testimony about the red laces from Daleo, although that evidence "may become relevant later." The trial court responded that the red laces were "likely going to become relevant
When direct examination resumed, Daleo testified that both Torkelson and defendant were skinheads. Torkelson was involved with "several groups that would talk about activism for the White power movement; rallying things together, sometimes political; getting involved to make a difference for the
On cross-examination, defense counsel asked Daleo if she wore red laces to the party in June 2000 where defendant admitted his involvement in the Five Star parking lot robbery and killings. Daleo denied doing so, but admitted that she and other skinheads occasionally wore red laces for fashion reasons. On redirect examination, the prosecution asked Daleo if red laces had a specific meaning for defendant's skinhead group. Daleo responded that it could mean "hav[ing] shed blood for the cause." Daleo also confirmed that "earning your laces" was a type of "initiation" for skinhead groups that
Getscher testifiеd that he and defendant were "both skinheads, good buddies, [who] kind of looked after each other" while in prison together in 1996. Getscher explained that "[r]ed laces would indicate that you have drawn the blood of an enemy. I guess a proud standing in the skinhead culture." Getscher testified that after the Five Star parking lot robbery, defendant told him that "things went really bad" and that defendant had shot someone. Defendant purchased red laces on his way back to Getscher's house from the Five Star parking lot robbery and tried to lace his boots with them. Getscher took the red laces from defendant and "explained to him that he did not earn his red laces" because "he killed an innocent victim and ... he didn't kill an enemy that was trying to get him."
b. Discussion
On appeal, defendant renews his argument that evidence of his racist tattoos and his use of red laces should have been excluded because they were irrelevant and because their prejudicial impact substantially outweighed their probative value. Defendant argues that introduction of evidence of his "Nigger Thrasher" tattoo, in particular, was unnecessary for Daleo's identification because Daleo was acquainted with defendant and could have identified him by his face alone. Defendant also contends that the red laces had little probative value in light of the prosecution's other evidence establishing that defendant shot Perez. Given that neither the robbery nor the killings were motivated by racial animus, defendant argues, the primary effect of admitting this evidence was simply to call the jury's attention to his inflammatory White supremacist views in violation of Evidence Code section 352.
Under the Evidence Code, all relevant evidence is admissible unless prohibited by statute. ( Evid. Code, § 351.) " 'Relevant evidence is defined in Evidence Code section 210 as evidence "having any
Although defendant contends otherwise, his tattoos were clearly relevant because the tattoos had a tendency in reason to prove defendant's identity as "Li'l Jeff," the man Daleo heard discussing his involvement in the robbery murders at a party in June 2000. (See
People v. Medina
(1995)
Defendant also claims for the first time on appeal that the admission of evidence of his racist tattoos, affiliations, and beliefs at the guilt phase
3. Prosecutor's Closing Argument
Defendant contends that the prosecutor committed misconduct in closing argument by vouching for the victims' feelings and urging the jury to view the crime through the eyes of the victims. We find no grounds for reversal in the prosecutor's closing argument. Defendant's claim of misconduct concerns the following portion of the prosecutor's closing argument to the jury: "We know that Teresa Perez and Jack Reynolds were completely compliant with the robbers' demands [and that] they laid down with their faces to the carpet, ultimately, I'm certain, very fearful ...." Defense counsel objected to the phrase "I'm certain" as "a form of vouching." In response, the trial court opined that counsel "should at no time ever use the word 'I' in a closing argument," but explained that this was "more of a personal preference of the Court than it is some rule of law which says that you can't do that." The trial court concluded that the prosecutor's use of the first person "wasn't in terms of vouching" and was instead conveying "what [the prosecutor] believed the inferences would have shown." The trial court found no misconduct.
"A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects ' "the trial with unfairness as to make the resulting conviction a denial of due process." [Citation.]' [Citation.] The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (
People v. Mendoza
(2007)
It is misconduct for a prosecutor to refer to facts not in evidence. (
People v. Hill
(1998)
4. Use of Courtroom Restraints During Trial
Defendant argues that the trial court violated his rights under the federal Constitution's Sixth, Eighth, and Fourteenth Amendments by ordering him restrained with a leg chain at trial. The claim lacks merit.
a. Background
Before trial, defendant filed a motion requesting permission to appear in court without any physical restraints attached to his person. The prosecutiоn
b. Discussion
"Under California law, 'a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints.' [Citation.] Similarly, the federal 'Constitution forbids the use of visible shackles ... unless that use is "justified by an essential state interest"-such as the interest in courtroom security-specific to the defendant on trial.' " (
The record does not reveal the specific basis for the trial court's conclusion that defendant had "numerous problems while in custody involving other inmates and threats and weapons in other cases." The trial court did not provide any identifying details about these incidents nor indicate the source of this knowledge. But the Attorney General cites evidence supporting the
But even if the trial court had abused its discretion in ordering that defendant be restrained by a hidden leg chain, defendant cannot demonstrate prejudice. " '[W]e have consistently held that courtroom shackling, even if error, [is] harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to testify or participate in his defense.' " (
People v. Williams
,
supra
,
There is no evidence that the jury saw defendant's leg chain in the courtroom. Defendant argues that the jurors were nevertheless aware that defendant was restrained in the courtroom because they were instructed with CALJIC No. 1.04, which states: "The fact that physical restraints have been placed on defendant [ ] must not be considered by you for any purpose. They are not evidence of guilt, and must not be considered by you as any evidеnce that [he] is more likely to be guilty than not guilty. You must not speculate as to why the restraints have been used. In determining the issues in this case, disregard that matter entirely." The prosecution initially requested CALJIC No. 1.04 as a precautionary measure in case any juror had seen defendant's restraints. The trial court then expressed an "inclination [ ] not to give" CALJIC No. 1.04 because it didn't "think there's anything that indicated that [defendant]'s been restrained to [the jury]." In response, defense counsel informed the trial court that defendant "tells me that some of the jurors did see him when he was brought up one day" in restraints, apparently outside
5. Exclusion of Third Party Culpability Evidence
Defendant argues that the trial court erred by barring him from presenting evidence suggesting that victim Reynolds himself had participated in the Five Star parking lot robbery. Defendant contends the trial court's ruling violated his rights under the Sixth and Fourteenth Amendments to the federal Constitution. The claim lacks merit.
a. Background
Before trial, the prosecution filed a motion in limine to exclude evidence of Reynolds's criminal history, including facts and charges relating to three cases in the 1970's and 1980, as well as his alleged attendance at Aryan Nations (or similar) meetings. The prosecution argued that evidence of the former was irrelevant and improper character evidence, and that evidence of
Defendant later requested clarification as to whether the trial court's ruling excluded all evidence suggesting that Reynolds
b. Discussion
" '[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial
We perceive no abuse of discretion in the trial court's decision to exclude evidence that one of the victims of the robbery murders may have started out as a participant in the crime. The parties dispute whether some of the proffered evidence-specifically, Reynolds's criminal history, alleged
Defendant's proffered evidence could lead only to speculative inferences concerning Reynolds's participation in the crime. Reynolds's prior convictions were remote in time, and defendant offered scant basis for concluding that the Five Star robbery fit a "pattern" established by Reynolds's past misconduct. (See
People v. Lewis
,
supra
,
What is more, the inferences defendant would draw from this evidence are unsupported by any other evidence in the record. Reynolds was a victim of the robbery murders; like Perez, he was shot in the back of the head while lying facedown with his arms over his head. The circumstances of the shooting do not suggest willing participation in the crime. Neither Daleo nor Getscher, who initially identified the perpetrators during Detective McDonald's investigation, identified Reynolds as a participant in the robbery. Nor did defendant identify Reynolds as a participant in the robbery in either of the two recorded calls with Getscher, including the one in which he admitted to personally shooting Perez. Having concluded this speculative third party culpability evidence was properly excluded, we also reject defendant's claim that his constitutional rights were violated by the exclusion. (See
People v. Lewis
,
supra
, 26 Cal.4th at pp. 373-374,
Defendant contends that the cumulative effect of the guilt phase errors requires reversal of his convictions. (See
People v. Hill
,
supra
,
B. Penalty Phase Claims
1. Retrial of the Penalty Phase
Penal Code section 190.4, subdivision (b) directs a trial court to empanel a second jury to decide the penalty in a capital case if the first jury deadlocks, as it had in defendant's case. ( Pen. Code, § 190.4, subd. (b).) Defendаnt argues that mandatory retrial of the penalty phase violates the Eighth Amendment to the federal Constitution because such a retrial violates evolving standards of decency, as demonstrated by the differing practices of other states, and "sends a message to the community that the individual moral judgment of each juror is not trusted or valued." Defendant also raises several more specific challenges to the conduct of the penalty retrial.
We have repeatedly rejected the Eighth Amendment claim defendant now raises, holding that "a penalty retrial following jury deadlock does not violate the constitutional proscription against double jeopardy or cruel and unusual punishment." (
People v. Jackson
,
supra
,
We also find no merit to defendant's argument that permitting a second jury to impose the death penalty after the first jury deadlocks devalues the decisionmaking autonomy of the first jury. The cases cited by defendant require only that " 'the individualized assessment of the appropriateness of the death penalty [be] a moral inquiry into thе culpability of the defendant, and not an emotional response to the mitigating evidence.' " (
Saffle v. Parks
(1990)
Finally, defendant claims that the retrial of the penalty phase unfairly conferred several advantages on the prosecution. Specifically, defendant contends that: (1) many of the prosecution witnesses added "flourishes and amplifications" to their retrial testimony; (2) witnesses impermissibly testified as to the emotional stress caused by a second penalty phase; and (3) the prosecution referenced evidence in her closing statement that was presented during the first penalty phase but not the second phase. None of these claims has merit. First, defendant does not identify any misrepresentations in the retrial testimony, and both parties had the opportunity to elicit additional testimony
2. Admission of White Supremacist Beliefs
At the guilt phase of the trial, as discussed above, the trial court admitted (over defense objection) limited evidence
Defendant argues that the evidence of his racist beliefs was both inflammatory and irrelevant to any legitimate issue before the jury at the penalty phase and that the prosecution's improper use of the evidence undermined the fairness аnd reliability of the proceedings. Although we conclude some of the evidence of defendant's racist beliefs was relevant to the jury's determination of the appropriate penalty for defendant's crime, we agree with defendant that much of this evidence was admitted and used for an improper purpose. On close review of the record, we conclude this error was prejudicial.
a. Background
At the first penalty trial, the trial court had admitted, over defense objection, extensive evidence concerning defendant's skinhead beliefs and his tattoos, including expert testimony expounding on each subject. Before the penalty retrial, defendant again objected to the admission of this evidence, filing a motion in limine to exclude all references to "affiliation/membership with any White supremacy organization, in whatever form as well as reference to distinctive, racially identified/offensive tattoos" worn by defendant. Opposing the motion, the prosecution argued that the "Nigger Thrasher" and "Thor's hammer" tattoos and defendant's use of red laces were admissible as circumstances of the crime. (See Pen. Code, § 190.3, factor (a).) The prosecution also argued that additional evidence of defendant's White supremacist beliefs might become relevant if defendant introduced evidence of his good character. ( Id. , factor (k).)
Ruling on the motion in limine, the trial court determined that the prosecution could use the following evidence in its case-in-chief: (1) defendant's association with White supremacist groups to explain the basis of his affiliation with the other perpetrators of the Five Star parking lot robbery, (2) defendant's use of the red laces, and (3) the "Thor's hammer" tattoo. Although evidence of the "Nigger Thrasher" tattoo had been admitted at the guilt phase, the trial court excluded it for purposes of the penalty retrial; evidently concerned about its inflammatory impact, the trial court ruled it could be referred to only as a "unique tattoo." But the trial court also agreed with the prosecution that other evidence of defendant's White supremacist tattoos, beliefs, and associations would become admissible as rebuttal evidence if defendant chose to present evidence of his good character. The court
During the prosecution's case in aggravation, Daleo testified that she had seen defendant at Aryan Nations meetings. Daleo testified that the Aryan Nations group had a religious component based on the belief that "God's chosen people were white people," and that the meetings also served as social
The jury also heard the testimony of Getscher, who explained that he and defendant became friends in prison because they "were both skinheads" who had a shared belief in "[w]hite supremacy." Shortly after the Five Star parking lot robbery, Getscher saw defendant trying to put red laces in his boots. Getscher explained that in skinhead culture, red laces "means you drew the blood of an enemy."
Defendant began his case in mitigation by calling his grandmother Fern Vinatieri as his first witness. Vinatieri testified that defendant was devoted to his family, had completed a GED and learned a trade to support his family, and accepted full responsibility for the robbery and assault committed in Arizona in 1999.
After Vinatieri concluded her testimony and before the next witness was called, the trial court notified the parties that, consistent with its earlier ruling on defendant's motion in limine, the court would permit the prosecution to introduce evidence of defendant's racist beliefs, tattoos, and associations. The trial court explained that Vinatieri's testimony had "put [defendant]'s overall character" at issue, thereby opening the door for the prosecution to introduce this evidence.
Following the trial court's ruling, defendant called additional witnesses who testified that he was a good father, "kind," and "not a violent person." Defendant also called fellow inmate Beek to rebut the prosecution's evidence that defendant participated in an assault on inmate Robert Harger; Beek testified that defendant was not involved in the assault. During cross-examination, Beek admitted that he was a skinhead and dеscribed the American Front group, to which defendant purportedly belonged, as "a group of working-class individuals" with White supremacy being a nonexclusive focus of the group. Defendant also called a family therapist who testified that defendant became a skinhead for two reasons: (1) to achieve a sense of
On rebuttal, the prosecution introduced substantial additional evidence of defendant's White supremacist beliefs, tattoos, and associations. Prison deputies testified that shortly after the assault of Harger, they discovered a rune above defendant's cell door and a swastika in a common area near defendant's cell, both painted with what appeared to be blood. Police officers who interacted with defendant in 1999 testified about the White supremacist tattoos they had seen on defendant in 1999 and identified new tattoos that defendant had acquired by the time of his arrest in 2003. One officer had encountered defendant in September 1999 and observed that defendant was wearing "typical gang attire for a skinhead," consisting of a shaved head, red suspenders, and red laces in his boots. On the basis of this attire, the officer opined that defendant was still involved with skinheads at the time.
Finally, the prosecution called Joanna Mendelson, the director of investigative research at the Southern California branch of the Anti-Defamation League, as an expert witness to testify about the origins and ideology of skinheads. Mendelson explained that neo-Nazis believed that "what Hitler had achieved ... was a good start" and sought to "carry out Hitler's vision." Skinheads are a subset of neo-Nazis, so "all skinheads are neo-Nazis." Mendelson
Mendelson identified and explained the meaning of the following symbols that appeared on letters that defendant had written: (1) "14" refers to a 14-word mantra about perpetuating the White race; (2) "88" signifies "Heil Hitler"; and (3) a Celtic cross is the "most common white supremacist and neo-nazi symbol[ ]." Mendelson similarly identified and explained the meaning of the following symbols found on defendant's tattoos: (1) a swastika; (2) a variation of the Nazi flag; (3) a Confederate flag; (4) the Celtic cross and
Before deliberations, the trial court instructed the jury as follows: "Certain evidence was admitted during the course of the trial with regard to the defendant's beliefs, allegiance, and tattoоs. This was done in rebuttal to the presentation by the defense of evidence of the defendant's good character. Such beliefs, allegiance, and tattoos are constitutionally protected by the First Amendment of the United States Constitution. Such evidence may be considered by you only for the limited purpose of evaluating the credibility or strength of witnesses who were asked about the defendant's character. Such evidence cannot be considered by you as an aggravating circumstance."
In her closing argument, the prosecutor argued that defendant's racist beliefs, tattoos, and associations rebutted defendant's mitigating character evidence. The prosecutor argued that instead of making good choices, defendant chose to become a skinhead who "very, very strongly embraced this White supremacy ideology"; that he chose to get racist tattoos in prison rather
b. Discussion
Defendant argues the trial court erred in permitting the prosecution to use what he describes as a "mountain" of irrelevant evidence of his racist beliefs,
Defendant likens his case to
Dawson
,
supra
,
The high court explained that while "the Constitution does not erect a
per se
barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment" (
Dawson
,
supra
,
As relevant here,
Dawson
stands for two central propositions. First, "[e]vidence of a defendant's racist beliefs is inadmissible in the penalty phase of a capital trial if it is not relevant to an issue in the case." (
People v. Powell
,
supra
,
This case, unlike
Dawson
, does not involve a bare stipulation that the defendant has been associated with White supremacist groups. Far from it. But defendant argues that the same result should obtain because the evidence of his White supremacist beliefs and associations was nonetheless irrelevant to any legitimate issue in the case. As in
Dawson
, no one argues that defendant's racist beliefs were relevant to explain his motive for the robbery murders. (Cf., e.g.,
People v. Powell
,
supra
, 5 Cal.5th at pp. 960-961,
This argument is too broad. It is true that the challenged evidence shed no light on defendant's motivation for his crime (and the People have not argued otherwise), but some of the evidence was clearly relevant to other legitimate
Evidence of a rune and swastika appearing somewhere near defendant's cell shortly after the attack on Harger was
But the central difficulty here is that the trial court also permitted the prosecution on rebuttal to introduce a large quantity of additional evidence concerning defendant's racist beliefs-not for purposes of illuminating the circumstances of his crime or past acts of violence, but simply for the light the offensiveness of those beliefs shed on his character. The trial court ruled that because defendant chose to present evidence of his good character-that he was a good family man, kind, and so on-the prosecution was entitled to rebut that evidence with testimony regarding defendant's racial ideology. The court explained: "Can't [a] general member of society make a determination that, you know what, if someone is a White supremacist, has been engaged in these type of activities, has those types of tattoos, those are not things of good character[?] I'm not going to walk away saying that's a good person." Defense counsel argued against the constitutionality of this approach, stating, "The People are trying to demonize [defendant's] beliefs that are protected under our constitution in such a way that the jury will be inflamed to the point of giving him the death penalty." The court responded: "Without using the pejorative sounding rhetoric you used in your last statement, I think it's absolutely and wholly accurate," and "I think [the prosecutor is] entitled to do that. [¶] Motion is denied."
Here, the mitigating evidence that prompted the trial court's ruling was the testimony of defendant's grandmother, who spoke to his commitment to his family and children, his academic achievement in earning his GED, and his personal accountability for previous crimes. As
Dawson
makes clear, evidence of a defendant's abstract beliefs is not relevant to rebut this variety of good character mitigation. (
Dawson
,
supra
, 503 U.S. at pp. 167-168,
We do not suggest that evidence of a defendant's racist beliefs is
never
relevant to rebut a defendant's evidence of his own good character. A defendant who seeks to portray an image of racial tolerance during his case in mitigation, for example, might well open the door to contrary evidence of his racist beliefs and associations. In such a case, such evidence would tend to show more than the reprehensibility of the defendant's abstract beliefs; it would tend to show that the defendant lacks a specific positive character trait that he claims to have. (Cf.
People v. Siripongs
(1988)
The Attorney General asks us to uphold the trial court's evidentiary ruling on other grounds, arguing the challenged evidence could instead have been admitted to show defendant's violent tendencies. As already noted, the jury in this case was not merely presented with a bare stipulation that the defendant was a member of a racist group, as in
Dawson
. The jury also heard evidence that defendant had claimed credit for the killing of Perez, claiming a badge of honor with particular significance in skinhead culture. It heard evidence that defendant was a member of a White prison gang that had, at least on one occasion, orchestrated violence against a fellow White inmate.
4
And it heard a reference from a prosecution expert to the propensity of White supremacist groups to "conduct criminal activity and violence" in prison. According to the Attorney General, this evidence laid the foundation necessary to permit the jury to consider the challenged rebuttal
We agree that at least some of the challenged evidence might have been admitted for the purpose of showing the connection between defendant's prior violent acts and his propensity for violence. Had the trial court admitted the evidence for this purpose, it would be a different case. But the great bulk of the challenged evidence was
The consequence of this ruling was an evidentiary presentation and set of arguments that focused on the nature of defendant's offensive racist beliefs
The prosecutor returned to this theme in her closing argument, arguing at great length that defendant's racist beliefs and his decision to cover his body in racist tattoos, in and of themselves, showed he was not the good person he claimed to be in his case in mitigation and was therefore undeserving of the jury's mercy. She described defendant as "a walking billboard of hate" who has "very, very strongly embraced this White supremacy ideology." She emphasized that defendant "continued having all of these White supremacy beliefs" after he committed the murders. And she told the jury that defendant's "very offensive" tattoos "go[ ] to who he is." "[W]hat you permanently put on your body," she argued, "says a whole lot about what you are thinking and about who you are." The prosecutor made no effort to connect defendant's beliefs to his past acts of violence or even his propensity for violence. Much as in
Dawson
, the record leaves little doubt that the "evidence was employed simply because the jury would find these beliefs morally reprehensible," and not because of the light the evidence shed on defendant's moral culpability for his crime or the dangers he poses to his fellow inmates or other members of society. (
Dawson
,
supra
,
The Attorney General also argues on appeal that the evidence of defendant's beliefs could have been admitted to refute defense witness Beek's misleading answers on cross-examination, in which he described the neo-Nazi group he and defendant belonged to as a "White club" and a "group of working-class individuals that band together [and] have barbecues." But Beek also testified that White supremacy was a "focus" of the group, if not its "main" focus. The trial court did not admit the evidence concerning defendant's beliefs and tattoos for the purpose of setting the
The Attorney General concedes that "[t]he simple fact that Young believed Caucasians to be superior to all other races" was "arguably inadmissible" for any purpose other than to reveal his violent propensities or to refute Beek's characterizations, but contends that the trial court correctly so instructed the jury. But the jury would not have gleaned this message from the instruction it was given. Once again, it was instructed: "Certain evidence was admitted during the course of the trial with regard to the defendant's beliefs, allegiance, and tattoos. This was done in rebuttal to the presentation by the defense of evidence of the defendant's good character. Such beliefs, allegiance, and tattoos are constitutionally protected by the First Amendment of the United States Constitution. Such evidence may be considered by you only for the limited purpose of evaluating the credibility or strength of witnesses who were asked about the defendant's character. Such evidence cannot be considered by you as an aggravating circumstance." The instruction did inform the jury that defendant's beliefs, allegiance, and tattoos are entitled to First Amendment protection. But it did not inform the jury that it was permitted to consider the evidence for certain purposes (for example, to evaluate defendant's violent propensities) and not others (to conclude defendant has bad character because he holds morally reprehensible beliefs). This omission is unsurprising, given the trial court's ruling that the prosecution was entitled to argue that defendant's White supremacist beliefs in themselves undermined his claim to be "a good person"-which is precisely what the prosecution argued to the jury in its closing. There was nothing, in short, that would have alerted the jury that it was forbidden from considering evidence of defendant's beliefs for this very purpose. 5
Because the First Amendment prohibits the introduction of this evidence for the purpose for which it was used at the penalty retrial, we find
It is true, as the Attorney General emphasizes, that the People presented a substantial case in aggravation-both at the original penalty phase trial, which had resulted in a hung jury, and the penalty
But for whatever reason, the prosecution chose not to rely on this evidence alone. Instead, in response to defendant's general character evidence, the prosecution adduced testimony from seven differеnt witnesses concerning his racist beliefs, tattoos, and associations,
In her closing argument, the prosecutor then repeatedly raised defendant's decision to "espous[e] [White supremacist] views and this ideology," and his "ch[oice] to put all these [tattoos] on his body," explaining, "It goes to who he is." Other representative excerpts from the prosecutor's extensive emphasis on defendant's racist beliefs include:
• "He chose to become a skinhead. He chose to become a skinhead before he ever went to Arizona prison. We saw from the Thunder Road records that he was even having some racist beliefs while he was fairly young. Those continued to grow until he very, very strongly embraced this White supremacy ideology."
• "When you look at what he did after he committed these murders, what did he do? He continued having all of these White supremacy beliefs."
• "We know [two months after the murders] he had a number of tattoos on him. But there were a number he got after this. During this period of time where he's supposedly raising a family and being a good father, what's he doing? He's adding additional tattoos to his body, and very offensive ones atthat. Adding a big German soldier on his side. Adding a tree with a noose on it on his side. That's what he's doing."
• "How does he talk to his grandmother in these letters? Well, he signs off with the 'love, Jeff, 14,' celtic cross, '88.' We know what that is. He's writing to his grandma, and he's putting these offensive racial symbols in his letters to her. [¶] Is he a good family man? Good grandson? This is what he's doing. He's saying 'heil Hitler' to his grandma."
• "You heard from his own mother that he is raising his son in a racist household, that he has not abandoned these beliefs. [¶] It was of some interest that he even named his child Odin. You heard from the mother that the kids are being raised in a home where a Nazi flag is being flown."
• "But what kind of a role model does he serve? [¶] ... [¶] He espouses all kinds of hateful views on his own body. He continues to add to those. Many of these tattoos came after September of 1999. He is a walking billboard of hate."
• "They want you to believe somehow that he has renounced his views. We know some of these tattoos that he got in prison. That's clear. But we knowthat many of them he did not. Many of them he got after September of 1999. This is two months after he's committed the homicide. He adds this crucified skinhead to his arm, this crucified skinhead with the red suspenders."
• "What about the German soldier on his side? He got that-and this is a professional tattoo. As offensive as it is, this was an expensive and professional tattoo. This is something that he chose to add to his body well after."
• "We know, too, that he adds this Nazi eagle with the Schutzstaffel on his chest again sometime after September of 1999. [¶] Is this somebody who has somehow renounced his views? [¶] There was a clear impression that was intended to be given to you by the defense that somehow the only reason he became a White supremacist was for protection in prison. That was absolutely not true. You know from the evidence that he is clearly espousing these views and this ideology after he gets out of prison. That's how he meets James Torkelson, going to Aryan Nations meetings. This has nothing to do with protection in prison. Nothing at all. It goes to who he is."
• "What you put on your body, what you permanently put on your body, says a whole lot about what you are thinking and about who you are. These were things-again, choices. He chose to put all these on his body. He chose to do many of these things well after he got out of prison."
• "Again, that German soldier, that cost a lot of money. Instead of spending the money on his kids, that's how he's spending it. That's the kind of choices he makes."
In sum, the prosecutor openly and repeatedly invited the jury to do precisely what the law does not allow: to weigh the offensive and reprehensible nature of defendant's abstract beliefs in determining whether to impose the death penalty. We cannot ignore the possibility that the jury accepted that invitation in returning its verdict on the penalty retrial. (Cf.
Dawson v. State
(Del. 1992)
III. DISPOSITION
We affirm the judgment as to guilt, reverse the judgment as to the sentence of death, and remand the matter for a new penalty determination.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
Notes
At trial, the prosecution presented the evidence of the following physical characteristics of defendant and the other robbers: (1) defendant is five feet six inches or five feet seven inches, weighs 160 pounds, and has brown hair; (2) Max Anderson is six feet two inches, weighs 175 pounds, and has brown hair; and (3) David Raynoha is six feet, weighs 175 pounds, and has red hair.
The prosecution's opposition to defendant's motion in limine identified a second witness who observed defendant's admissions and identified defendant by his tattoos, but that witness ultimately did not testify at trial.
After the trial court had already ruled (over his objection) that his grandmother's testimony opened the door to the challenged evidence, defendant did present testimony seeking to show his racially tolerant nature and to downplay his White supremacist beliefs. But this testimony, which appears to have been presented in an attempt to blunt the force of the prosecution's anticipated rebuttal evidence, could not have justified the trial court's initial ruling, nor did it render otherwise inadmissible evidence admissible.
The Attorney General also argues in its briefing that the jury heard evidence that defendant tattooed his body with the phrase "Nigger Thrasher" after beating an African-American man. The record contains no evidence to support the argument.
The Attorney General argues defendant failed to object to the instruction at trial and therefore forfeited any claim the instruction was inadequate. But defendant had fully aired his First Amendment objection to the admission of the evidence concerning his beliefs, and in response the trial court ruled the evidence of his beliefs was admissible for the purpose of rebutting his evidence of good character. Defendant was not further required to seek a limiting instruction that would have prohibited the jury from considering the evidence for the very purpose for which the court had admitted it. (See, e.g.,
Warner Constr. Corp. v. City of Los Angeles
(1970)