Citation 52 Cal. 4th 769, 259 P.3d 370, 130 Cal. Rptr. 3d 191
People v. Blacksher
Filed 8/25/11
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S076582
v.
ERVEN R. BLACKSHER,
Alameda County
Defendant and Appellant.
Super. Ct. No. 125666
____________________________________)
A jury found defendant Erven R. Blacksher guilty of the first degree murder
of his nephew, the second degree murder of his sister, and being a felon in
1
possession of a firearm. It also found true the firearm-use allegations and the
2
special circumstance of multiple murder. The jury concluded defendant was sane
and returned a verdict of death.
This appeal is automatic. We affirm.
1
Penal Code sections 187, 189, and 12021. All further statutory references
are to the Penal Code unless otherwise indicated.
2
Sections 1203.06, 12022.5, and 190.2, subd. (a)(3).
1
I. FACTS AND PROCEEDINGS
A. Guilt Phase
1. Prosecution’s case
In 1989, after the death of his father, defendant moved in with his mother,
Eva Blacksher, at her home in Berkeley. Defendant was Eva‘s youngest and
favorite child.3 She provided for him. He did no work and paid no rent.
Defendant was very controlling with his mother. He demanded that his siblings
not visit the home, insisting he could take care of everything on his own.
In 1990, however, as Eva grew ill, defendant‘s sister, Versenia Lee, began
caring for her. Versenia moved into the home with her ex-husband, Sammie, and
their son, Torey. To make room for them, defendant moved into a small cottage
behind the house. Defendant became jealous as Eva‘s attention shifted away from
him and towards Torey.
By May 1995, the relationship between the 40-year-old defendant and 21-
year-old Torey became increasingly hostile. Early on the morning of May 7, 1995,
defendant visited his brother, Elijah Blacksher. Defendant was angry, saying that
Torey was ―fucking with‖ him. Torey and his friends had threatened defendant
and thrown rocks at his car. Torey was dishonoring Eva by selling cocaine at her
home. Defendant asked Elijah to get him a gun so he could kill Torey. Elijah
refused and tried to reason with defendant, explaining that Torey was part of the
family. Elijah asked defendant not to return home but to spend the rest of the night
at his residence. Defendant refused and left.
3
Several members of the Blacksher family testified at the preliminary
hearing and at trial. We refer to these witnesses by their given names to avoid
confusion and repetition.
2
Later that same day, defendant called and revisited Elijah. On the telephone
and in person he repeated his threats against Torey and said he was trying to find a
gun. When Elijah could not calm defendant, Elijah drove defendant to the home of
their eldest brother, James, hoping James would have better success.
There, defendant remained very angry. In front of Elijah, James, and
James‘s wife, Frances, he paced the floor and kept repeating that he was going to
kill ―that punk‖ Torey and would also kill his sister Versenia if she got in the way.
At various points, defendant threatened to ―knock‖ Torey‘s ―brains out‖ with a
baseball bat and to get a gun and ―shoot the place up.‖ James urged defendant to
calm down, leave Torey alone, and get some rest. When defendant refused to
listen, James told him to leave. Defendant did so, saying he was going to buy a
gun on the street.
The next evening, defendant and Torey argued in the driveway outside
Eva‘s home. Versenia eventually broke up the argument and convinced Torey to
come inside.
Hearing of the argument, Elijah visited defendant in the cottage. Elijah
told defendant to stay away from Torey, but defendant again said he was going to
get a gun and shoot Torey. Defendant said, ―Man, I done thought about it and
thought about it and thought about it, I‘m going to kill him.‖
About 11:00 p.m. that evening, Versenia reported the threats to police. She
told the responding officer, Officer Luis Mesones, that defendant was
schizophrenic, had stopped taking his medication, and would sometimes become
angry at people for no apparent reason. Because defendant was not at home at the
time, Officer Mesones had Versenia sign a citizen‘s arrest form.
Between 1:00 and 2:00 a.m., a noise awakened Versenia. She found
defendant sitting in the darkened living room with a baseball bat. He said he was
3
waiting for Torey to come home so he could kill him. Versenia again called the
police, and Officer Mesones returned. When Officer Mesones asked defendant if
he had threatened Torey, defendant said Torey had ―disrespected my mother by
bringing his friends in the house.‖ According to the officer, defendant was
somewhat incoherent and stared ahead not looking at him. Officer Mesones
arrested defendant.
About 3:00 a.m., defendant called his sister, Ruth Cole, and asked her to
bail him out. He repeatedly told her he wanted to kill Torey because Torey was
being disrespectful towards Eva.
On the morning of May 9, 1995, Eva and Versenia went to court and
obtained a temporary restraining order against defendant. After defendant was
released from jail, he went to Eva‘s home and discovered his keys no longer
worked. He confronted Eva and demanded she give him the keys. He told her to
make Versenia and her family leave the house. Eva relented and gave defendant
the keys. Versenia made arrangements to move by the first of the month.
Later that day, defendant visited his sister Ruth, told her he knew about the
restraining order, and repeatedly said he was going to kill Torey. Ruth did not take
defendant seriously, but reminded defendant that he was Torey‘s uncle. Ruth‘s
husband Willie arrived, and defendant told him he was going to kill Torey. Asked
why, defendant showed him a dent on his car and said that Torey had hit it with a
brick. Defendant also claimed Torey and his friends had been threatening him. As
defendant left Ruth‘s home, however, he said he was not going to kill Torey and
that he did not want to ―get his hands dirty.‖
The next day, on May 10, 1995, defendant went see to Elijah. He restated
his decision to kill Torey, and said he had found someone who was willing to sell
him a .357 Magnum. He did not care about the cost and had already withdrawn
4
money from the bank for the purchase. Elijah asked defendant to give him the
money, but defendant refused, saying he would get the gun and hurt Torey.
Elijah called defendant the next morning, May 11, 1995, at 6:30 a.m. When
defendant admitted he had a gun, Elijah begged him to stay in his cottage until he
got there. Defendant hung up.
About 7:00 a.m., Eva‘s next-door neighbor, John Adams, saw defendant
back his car down to the end of the driveway. Adams and defendant
acknowledged each other and exchanged hellos. Defendant went to his mother‘s
bedroom, where Eva was still in bed. He spoke briefly to her, and left her room.
Eva heard Versenia exclaim that she had heard a gunshot and that she was going to
check the house. Eva then heard a single gunshot. Eva got out of bed and saw
4
Versenia fall to the ground, bleeding. Eva then ran outside.
Adams heard the gunshots and called 911. Three other neighbors heard the
gunshots as well. One neighbor saw defendant leave Eva‘s house ―as if he was in
a hurry,‖ just after she heard the gunshots.
4
By the time of trial, Eva Blacksher had been found incompetent to testify
because of Alzheimer‘s dementia. She had testified at the preliminary hearing but,
due to her memory problems, she was unable to remember her prior statements
made to a police officer and in an application for the temporary restraining order.
Her preliminary hearing testimony was read to the jury by a deputy district
attorney. At trial, Eva‘s preliminary hearing testimony was impeached by
Berkeley Police Inspector Alan Bierce, who had interviewed Eva the day after the
murders. In Eva‘s statements to Inspector Bierce, she described hearing two
gunshots soon after defendant had left her room. Eva then saw Versenia enter the
hallway and face the dining room, where Torey had been sleeping. Eva heard
Versenia ask someone, ―What are you doing?‖ or ―What is wrong with you?‖ just
before hearing the third shot and seeing Versenia fall to the ground.
5
Torey died of a gunshot wound to the back of his head. A second bullet
had missed Torey‘s head and passed through a nearby pillow.5 Versenia died of a
gunshot wound to the right side of her head. Apparently, the bullet initially passed
through her right index finger. The bullets were fired by the same gun, either a
.357 Magnum or a .38 Special revolver.
About 7:40 a.m., defendant called James‘s home and spoke with his wife
Frances. Defendant nervously told her that he had heard gunshots at his mother‘s
house and said someone should check on Eva. Frances suggested he should do so,
but defendant said he did not want to be a witness to whatever happened. About
7:45 a.m., defendant called his sister Ruth and told her he had heard gunshots and
screaming at his mother‘s house. He claimed he saw two masked men on the front
porch, and asked Ruth to call the police. She asked why he did not do so.
Defendant said he was afraid they would question him. He claimed he was calling
from a friend‘s house but would not identify the friend.
Later in the day, defendant went to a travel agency, bought a bus ticket to
Reno, and booked a room at a hotel casino. He made the reservations using Ruth‘s
address. The bus left at 12:55 p.m. that afternoon.
Nearly 38 hours later, about 2:30 a.m. on May 13, 1995, defendant
surrendered to Officer Martin Heist as he was sitting in his patrol car outside the
Berkeley police station. Defendant was carrying toiletries and wore a T-shirt that
read, ―Reno, Nevada.‖
5
Toxicology tests showed that Torey had traces of morphine, codeine,
cocaine, and methamphetamine in his bloodstream and three bundles of rock
cocaine in one of his socks.
6
2. Defense case
The defense played the recording of Adams‘s 911 call. During that call
Adams said he believed defendant suffered from mental illness.
The defense also presented evidence that, during the 1980‘s, the Social
Security Administration found defendant eligible for benefits based on paranoid
schizophrenia.
A clinical psychologist, Gerald Davenport, examined defendant to
6
determine his competence to stand trial in both 1984 and in 1996. In 1984, he
diagnosed defendant as a paranoid schizophrenic in remission, but found him
competent. In 1996, he did not formally diagnose defendant but, based on an
interview, Dr. Davenport believed that defendant was still suffering from
schizophrenia. Defendant appeared hyperactive, suspicious, and overly boisterous,
used ―bizarre verbiage,‖ and was inappropriately ―euphoric‖ at times. He behaved
as if he were hearing voices, although he denied experiencing hallucinations.
Dr. Davenport also recounted defendant‘s history of mental illness.
Between 1975 and 1986, defendant was hospitalized at least five times due to
suicidal thoughts, schizophrenia, psychotic depression, paranoia, and religious
delusions. Between 1986 and 1996, he received mental health treatment at least
eight different times. Medical records showed defendant had been repeatedly
diagnosed as having paranoid schizophrenia.
Defendant was convicted as charged and the trial moved to the sanity phase.
6
The trial court instructed the jury that Dr. Davenport‘s testimony was
admitted only to impeach the testimony of several of defendant‘s family members
who had claimed they were unaware that defendant suffered from mental illness.
7
B. Sanity Phase
1. Defense case
Defendant‘s juvenile delinquency history began with a burglary at the age
of eight. Between the ages of nine and 17, defendant committed at least 13
different offenses, including malicious mischief, extortion, burglary, theft, and
robbery. He was confined to the California Youth Authority intermittently during
his teenage years. Following his last juvenile offense, the court referred defendant
for a 90-day psychiatric evaluation. His IQ tested in the low-normal range. An
earlier IQ test, subsequently criticized for racial bias, yielded a score in the
retarded range. Defendant admitted using drugs, including heroin, LSD,
methamphetamine, and barbiturates beginning at the age of 16.
He was hospitalized for the first time at the age of 21 in 1975. His
probation officer reported that he was depressed with suicidal thoughts. When
admitted to Napa State Hospital, he was described as being in a ―confused,
disorganized, agitated state as a result of recent drinking.‖ He was discharged
after three days.
In December 1977, defendant was hospitalized at Highland Hospital. The
mental health unit at the county jail reported he had complained of hearing voices
and seeing a small man sitting on his bed. Defendant told his treating clinician that
he resented his father for ignoring him during childhood. The clinician did not
believe defendant was schizophrenic, but thought he was suffering from a
psychotic reaction to alcohol abuse.
Just over a week later, defendant was again hospitalized, claiming he heard
voices, had hallucinations of a little man criticizing him, and felt suicidal. He
claimed he had been seeing the little man for two years and the hallucinations were
becoming so severe that he did not feel like living any more. Defendant reported
8
consuming a pint of scotch daily in the months before his incarceration. He also
claimed two incidents of untreated head trauma during his childhood, one of which
resulted in a day of nausea and vomiting. Defendant was diagnosed with psychotic
depressive reaction, received the antipsychotic drug Mellaril, and released five
7
days later.
Throughout 1978, defendant remained in jail but continued to have follow-
up examinations by mental health specialists. One of these specialists, Sophia
Miles, noted that defendant continued to be depressed but was slowly improving.
She diagnosed a depressive reaction with alcohol abuse and maintained him on
Mellaril.
Upon release defendant stopped taking his medication. On November 30,
1979, he was referred to Highland Hospital for a 72-hour involuntary commitment.
He had stopped taking Mellaril and had become ―acutely psychotic,‖ with
―auditory hallucinations [and] alterations in visual perception.‖ He held the
paranoid belief that people were trying to kill him. The treating physician at the
hospital diagnosed a resurgence of schizophrenia. Defendant was injected with
antipsychotic medication, improved, and was released.
On March 28, 1980, defendant was recommitted for 12 days. His treating
physicians described him as suffering from auditory hallucinations, with thought
7
Ruth Gades was a licensed social worker who treated defendant during this
time. She testified during the sanity phase that, in retrospect, she was skeptical of
defendant‘s claims of seeing a little man. She had never seen any of her other
patients describe that kind of hallucination. Based on her subsequent experience in
treating inmates, Gades believed that defendant could have manipulated his
caregivers in order to be admitted to a mental health facility. Gades also believed
that defendant‘s hallucinations were not the result of schizophrenia but were from
―alcohol psychosis‖ due to the lingering effects of chronic alcohol abuse on the
brain.
9
interruptions most likely stemming from the high-pitched voices he heard. While
hospitalized, defendant appeared depressed and suicidal. Again diagnosed with
psychotic depressive reaction, defendant was given Mellaril, and released. In
follow-up visits, defendant appeared to be taking his medications and was no
longer psychotic. In June 1981, defendant attempted suicide by overdosing on
sleeping pills.
In August 1981, defendant was again incarcerated. While in custody he
was committed for a mental health evaluation and treatment. He complained that
his incarceration had prevented him from taking his medications and that he again
heard voices. His treating physician saw no direct signs of hallucinations. He
diagnosed a major depressive disorder with psychotic features and antisocial traits,
and represcribed Mellaril, which was later changed to another antipsychotic,
Thorazine. Sophia Miles, who saw defendant on his follow-up visits, described
8
defendant as depressed, but not psychotic or out of touch with reality.
On June 18, 1984, defendant‘s future wife brought him to the hospital
9
because he had not slept for five days and was preoccupied with religion.
Defendant arrived holding his girlfriend with one hand and clutching a Bible in the
other, claiming that certain Bible passages referred directly to him. He was given
Mellaril and discharged, but committed the next day having overdosed on the
8
Miles testified that if defendant were actually suffering from schizophrenia,
any prolonged period without medication would most likely result in his
hospitalization because his illness would easily draw the attention of others.
9
Defendant was married twice, had a son with his second wife in 1985, and
two more sons with other women in 1988 and 1994. The prosecution elicited
testimony from Dr. Pierce that defendant reportedly had been violent towards his
ex-wives during their relationships.
10
Mellaril. Medical records described defendant as depressed, paranoid, mumbling
incoherently, and pacing. He was discharged on June 25, 1984.
On August 2, 1984, defendant was yet again committed after his mother and
sister-in-law reported that he appeared to hear voices, was paranoid and agitated,
talked incoherently, and appeared disoriented. Straight-jacketed and given
Mellaril, defendant calmed down enough to be sent home. His fiancée‘s mother
strongly protested his release.
In October 1984, defendant again began acting strangely. His family
persuaded his parole officer to return defendant to jail so he could receive
treatment. A jail therapist evaluated defendant and had him committed because he
was paranoid, expressed a preoccupation with sex and religion, and appeared to be
having auditory and visual hallucinations. Defendant was released after 35 days.
During his stay, he was slow to improve. He complained of hallucinations and
said ―men and women had been entering his body through suction.‖ His treating
physicians tried various psychotropic medications. Defendant responded
somewhat to Mellaril and lithium, which is used to treat mania. Defendant‘s
discharge diagnosis was bipolar disorder with psychotic features.
In 1985, defendant was moved to the California Medical Facility at
Vacaville. Before his scheduled release in the summer of 1986, the Board of
Prison Terms ordered a mental health evaluation. Defendant was diagnosed as
schizophrenic, with paranoid features in remission, and with mixed substance
abuse and antisocial personality disorder. The report noted that defendant did not
appear psychotic in interviews but did choose his words carefully and sometimes
laughed and smiled inappropriately, as if responding to internal stimuli. While in
prison, defendant was unable to hold a job due to ―bizarre‖ behavior. The report
predicted that defendant would likely deteriorate upon release.
11
On October 6, 1986, defendant‘s parole officer had him committed because
defendant declared he was a woman. He had insisted on using the women‘s
bathroom at church and claimed he had been mistakenly raised as a man. He
objected to being addressed as ―sir,‖ and made frequent religious references. He
denied hallucinations, but laughed inappropriately as if responding to internal
stimuli. Defendant was forcibly injected with Haldol, a potent antipsychotic
medication. Defendant did not appear to be a threat to himself or others, but the
medication did not alleviate defendant‘s delusion that he was a woman. Against
the advice of his treating physician, defendant discharged himself at the end of the
72 hours and balked at the idea of taking any medication. Defendant was
diagnosed as having chronic and delusional paranoid schizophrenia.
From 1987 to 1988, defendant was again incarcerated at the California
Medical Facility at Vacaville. There, he claimed he was homosexual and insisted
he be housed only with other gay inmates in administrative segregation. He
refused to take his medication. Staff and fellow inmates reported that defendant
was paranoid, and sometimes incoherent, and would yell and laugh
inappropriately. He was given the probable diagnosis of paranoid schizophrenia.
Defendant had no further mental health institutionalizations after January
21, 1988, but continued to receive disability payments for mental illness until his
arrest for the present offenses. Defendant‘s girlfriend said defendant continued to
suffer delusions after his release from incarceration in the early 1990‘s. Defendant
at various times believed he had two heads or the head of a dog, thought people
looked like devils, believed he was Jesus and his mother was ―the Earth Mother,‖
and was convinced he was the only man with male genitalia.
Dr. Michael Levin, who had diagnosed defendant with paranoid
schizophrenia in 1986, testified that schizophrenia is a severe, lifelong mental
12
illness in which a person‘s ―internal psychiatric or psychic life‖ becomes more real
and important to him than the outside world. It impairs his ability to assess reality.
A schizophrenic will often stare off into space or laugh inappropriately, because he
is responding to internal stimuli or hallucinations. Some patients with milder
symptoms are able to function well if medicated. Nonmedicated schizophrenics
may remain ―out of trouble‖ because they are withdrawn and keep to themselves.
Schizophrenics commonly do not recognize themselves as mentally ill.
Dr. William Pierce testified that during a psychotic episode a schizophrenic
would be extremely impulsive and would respond to internal stimuli. The person
would be in a manic state and nonresponsive to external reality. A psychotic
episode would disrupt the person‘s cognitive functions and severely affect the
ability to concentrate, anticipate, and plan.
Based upon defendant‘s mental health records, interviews of defendant‘s
friends and family, prior competency examinations, 10 and his own 1995 and 1997
examinations of defendant, Dr. Pierce believed defendant suffered from paranoid
schizophrenia. During interviews, defendant was rambling and incoherent, with
tangential and disordered thinking. Defendant launched into grandiose rants about
Moses, Ali Baba and the 40 thieves, Africa and the Middle East. He claimed he
knew Alexander the Great and was related to Caesar and Cleopatra. According to
Dr. Pierce, during testing defendant appeared internally preoccupied when directed
to perform certain tasks. Dr. Pierce believed defendant had a poor ability to
control a ―vivid fantasy life‖ and that he would have difficulty separating his
internal experiences from external reality. Based on Officer Mesones‘s description
10
The defense also introduced evidence of defendant‘s 1996 competency
examinations. (See post, at p. 61.)
13
of defendant on May 8, 1995 as he waited in his mother‘s living room with a
baseball bat, Dr. Pierce believed defendant was having a psychotic episode. In his
opinion that incident alone would have justified an involuntary mental health
commitment.
But Dr. Pierce could not state with confidence whether defendant was
having a psychotic episode at the time of the murders. In fact, he stated defendant
probably could have distinguished between right and wrong before the murders
given that, at one point, he told his sister Ruth he was not going to ―get his hands
dirty‖ by killing Torey. Dr. Pierce also acknowledged there was no overt evidence
that defendant was suffering from hallucinations around the time of the murders.
His efforts to conceal the crime and flee to Reno showed his cognitive functions
were not completely impaired.
2. Prosecution’s case
To rebut the defense‘s claim of insanity, the prosecution presented the
testimony of defendant‘s older siblings, his statements to police, and the testimony
of law enforcement personnel who had observed defendant after his incarceration
for these offenses.
Defendant‘s elder brother, Artis Blacksher, Jr., testified defendant was his
mother‘s favorite child. Their father was a strict disciplinarian who beat the
children when they misbehaved. Their parents prohibited fighting and taught them
to obey rules.
As defendant grew into an adult, both Artis and his sister Ruth said
defendant mocked the idea of working for a living. Defendant told his siblings
that working was not his ―thing‖ and that he was going to ―beat the system.‖
14
Defendant repeatedly rejected his siblings‘ attempts to encourage him to find
11
work.
Artis, who moved out of the family household when defendant was five
years old, was unaware that defendant was ever hospitalized. He knew of no other
family members who ever required psychiatric care.
About a month after the murders, defendant wrote a letter to his mother,
referring to Torey, not by name, but as ―the punk.‖ Defendant also wrote several
letters to Ruth in which he made numerous religious references.
Two days after the murders, defendant was interrogated by Deputy District
Attorney Richard Moore and Berkeley Police Investigator Douglass Wright. In the
tapes of that interview, defendant claimed he walked out of his cottage on the
morning of the murders, backed his car down the driveway, and exchanged
pleasantries with his neighbor. He went inside the house, spoke to his mother
briefly, and saw Torey asleep and Versenia lying in bed. After using the
bathroom, he left through the front door and discovered two masked men on the
front porch. They motioned for him to leave. He did not see any weapons, but
they carried themselves as if they were armed. As defendant got into his car, he
saw the men enter his mother‘s home then heard what sounded like gunshots. He
thought the men were there for Torey and believed they would leave his mother
and sister alone if he did not interfere or try to call the police. He acknowledged
he called his sister Ruth to report what had happened and later went to a restaurant
for breakfast. He decided to leave town because he did not want to be involved
with the police. He eventually went to Reno because he did not want to face the
11
Defendant‘s employment history was meager, but records indicated he
briefly worked as a cook in 1984.
15
reality that something may have happened to his mother. His clothes were worn,
so he left them in his hotel room and bought new ones. Defendant claimed Torey
was his favorite nephew, but admitted having problems with him in the days
before the murders. He repeatedly denied telling family members he wanted to kill
Torey, but admitted saying he wanted to hurt him. Defendant also denied having
any mental problems.
According to law enforcement personnel, during his incarceration for the
present offenses, defendant never reported any mental illness or hallucinations, and
was on no medication. He did, however, insist that he was homosexual. Jail
officials later removed him from administrative segregation, over his protest,
believing there was no basis for his claim. One deputy sheriff described defendant
as having ―temper tantrums.‖ According to the deputy, he saw defendant scream
and yell at people a few times without apparent provocation. Once, defendant
began screaming and banging his cell door for no apparent reason.
The jury rejected defendant‘s insanity claim and the penalty phase began.
C. Penalty Phase
1. Prosecution’s case
a. Defendant’s prior violent offenses
On October 10, 1984, defendant, while waiting in a holding cell, was
agitated and pacing, making comments about ―whitey.‖ He assaulted two White
inmates in the holding cell, hitting one of them on the back of the head and
punching the other inmate in the face, causing profuse bleeding.
On January 25, 1988, at the California Medical Facility at Vacaville,
defendant punched another inmate in the face after an argument in the shower.
The inmate was knocked to the ground and suffered swelling around the eye.
16
On January 5, 1989, defendant threatened his father with a butcher knife
during an argument about defendant‘s failure to pay rent. The father, who was
terminally ill with stomach cancer, was nervous and shaking. When defendant
refused to put down the knife, Eva and defendant‘s sister, Ruth, shielded the father
and took him to another room. As his mother guarded the other side of the door,
defendant repeatedly hit the door frame with the knife, threatening to kill his
mother if she did not get out of his way. When the police arrived, the father
declined to have defendant arrested.
On February 17, 1990, while Ruth and Artis were visiting their mother,
defendant complained about Artis‘s presence. When Artis refused to leave,
defendant picked up a butcher knife and began pacing and complaining about his
brother‘s presence. Artis kept defendant at bay with a chair and umbrella, while
Ruth and Eva tried to convince him to put down the knife. Eva called the police,
but defendant left just before they arrived. Later that day, defendant returned and
told his mother that she had to choose between him or his siblings. He told Ruth
and Artis that he did not want them coming to the house anymore.
On July 10, 1991, defendant created a disturbance on a bus. The driver
contacted the police to have him removed. As a deputy sheriff began to escort him
off the bus, defendant walked down the aisle and punched a teenage boy in the
face.
On April 16, 1995, defendant picked up his girlfriend, LaDonna T., at the
airport, and drove her to his cottage instead of her residence as she had requested.
As LaDonna sat on defendant‘s bed, he suddenly jumped on her and punched her
in the face. Defendant continued to punch her, and kicked her after she fell to the
floor. Defendant accused LaDonna of having an affair while she was gone. Torey
came to the door and yelled at defendant to leave her alone, but defendant told
17
Torey to mind his own business. Defendant ordered LaDonna to take off her
clothes and raped her. Afterwards, defendant took her home and acted as if
nothing had happened. Fearful, LaDonna did not report the rape, but discontinued
their relationship. LaDonna testified defendant had an erratic personality and
would sometimes swear at strangers in public. Defendant once claimed he saw a
man with four legs sitting outside a restaurant.
The parties stipulated that defendant had been convicted of seven prior
felonies, including five burglaries, an assault, and possessing narcotics for sale.
b. Victim impact testimony
Ruth last spoke with her sister Versenia two days before her murder.
Versenia was crying because Eva had let defendant back in the house. Ruth was
unable to console Versenia because defendant was in Ruth‘s house during the
phone call. Ruth deeply regretted her inablity to comfort her sister during their last
conversation. Ruth was ―devastated‖ by the loss of her sister and nephew. She
described panicking when seeing all the bloodstains on the floor and furniture in
her mother‘s home. She had difficulty accepting that her sister and nephew were
dead until she saw their bodies at the mortuary. She spent $8,000 on funeral
expenses.
Ruth also described her mother‘s reaction to the murders. Eva cried
constantly over the loss of her daughter and grandson. Ruth frequently took her
mother to visit their graves, which seemed to give her some relief. Eva repeatedly
asked why defendant killed them.
18
Sammie Lee, Torey‘s father and Versenia‘s ex-husband,12 said he ―went
off‖ when he discovered that they were dead. Sammie was in disbelief and had
difficulty concentrating at work. For a time he stayed at Ruth‘s home, but decided
that staying at Eva‘s home would help him get over his feelings. Once there,
surrounded by pictures of Torey and Versenia, he could not sleep, and began
drinking heavily. Sammie eventually lost his job, and Ruth urged him to seek help.
Artis said he felt like he had been ―run over by a train‖ when he learned that
his sister and nephew were dead. He tried unsuccessfully to find and hurt
defendant after the murders.
The prosecution also displayed the clothes Torey and Versenia wore at the
time of their murders.
2. Defense case
Defendant‘s brother Elijah, sister Georgia Hill, Georgia‘s ex-husband
Ronald Hill, and Versenia‘s ex-husband Robert Ruffin13 testified as to defendant‘s
family history and character.
Defendant‘s father was an alcoholic and often absent. He abused his wife
and was frequently unfaithful. Defendant would sometimes try to stop his father
from striking his mother. The father had a reputation for wielding a knife during
arguments.
Defendant‘s mother was protective of defendant because he was the
youngest child and had mental problems. As a child, defendant was obese and
12
Versenia and Sammie had divorced in 1987. Versenia‘s second marriage
also ended in divorce. By the time of the murders, Sammie and Versenia had
reunited, were living together, and intended to remarry.
13
Robert Ruffin was married briefly to Versenia in 1992. During that time,
he was a frequent visitor to Eva‘s home and saw defendant often.
19
often teased. At school, he would do peculiar things like get lost or wander into
the girls‘ bathroom. He would often talk to himself, and was sometimes difficult
to converse with. His mind wandered and he seemed distant.
Defendant was repeatedly fired from jobs because he would wander off. He
was fired as a cook because he let a pan catch on fire and simply laughed as it
burned. Defendant‘s behavior became more unusual after he saw his cousin Floyd
shot to death by police. Defendant subsequently began hallucinating, laughing out
loud without reason, and offering his own bizarre interpretations of the Bible.
Other family members suffered from alcoholism and mental illness. An
aunt committed suicide; a cousin attempted suicide; a niece had signs of mental
illness.
Defendant‘s siblings were deeply divided. Older siblings, Ruth, Artis, and
James, were fairly uninvolved in the upbringing of their younger siblings, having
moved from the household to start their own families.14 Defendant‘s mother
added defendant‘s name to the deed of her home and named him a beneficiary in
her will because she wanted to provide for him in case something happened to her.
The older siblings were jealous of the attention and support his mother gave
defendant. They refused to believe he had any disabilities. The younger siblings,
however, expressed compassion for defendant, and believed he suffered from a
mental disability. Georgia and Elijah thought that the older siblings stood to gain
from defendant‘s death by inheriting their mother‘s assets and that they were ―in
denial‖ about the problem of mental illness in the family.
14
Another sibling, Ruby Lindsey, lived in Texas and had little involvement in
any of the family disputes.
20
Defendant got along well with Elijah‘s family. He was close to Elijah‘s
children and to his sister Versenia. He was also very involved in the life of his
youngest child and tried to be a good father to him. Elijah and Georgia‘s ex-
husband Ronald Hill were surprised that he hurt Versenia and expressed doubt that
he actually killed her. Elijah, Georgia, and Ronald all believed defendant should
not be put to death because of his mental problems.
Friends of the Blacksher family also testified on defendant‘s behalf. Many
had frequently observed defendant talking to himself, making abrupt changes in
topics of conversation, and staring off into space.
Longtime family friend Alisa Nelson, a former peace officer and an
associate governmental analyst with the California Department of Alcohol and
Drug Programs, believed defendant suffered from a mental disorder. Nelson saw
defendant pace and talk to himself. Sometimes he would quote from the Bible
inaccurately. On one occasion, defendant glared at her and verbally abused her for
no apparent reason. When she asked him what he was doing, defendant ―snapped
out of it,‖ as if he suddenly realized he had been talking to the wrong person, and
walked away.
Eva‘s neighbor, Diane Marks, knew defendant well, and he always treated
her with respect, frequently cared for her dog, and offered to help with her
yardwork. Eva once told Marks that defendant could become angry if he did not
take his medication.
According to Clarence Burrell, a former San Quentin correctional officer
and a friend of defendant‘s sister Georgia, defendant appeared to be living in the
past and kept a 1960‘s hairstyle. Once, defendant professed that either he was
―crazy‖ or ―the world‘s crazy.‖
21
Patricia White-Brown, the mother of defendant‘s ex-girlfriend Tracy and
the grandmother of defendant‘s youngest son, said she never noticed anything
unusual about defendant‘s behavior. Defendant was respectful to her and worked
hard to help get her daughter off drugs. White-Brown thought defendant was a
good father.
Alisa Nelson, Diane Marks, and Patricia White-Brown all said they were
against capital punishment. Marks and White-Brown believed defendant did not
deserve to die because he was a good person. Nelson thought defendant should
live because he had a son. He was mentally ill, and the family had already suffered
enough tragedy.
II. PRETRIAL ISSUES
A. Defendant’s Competency to Stand Trial
Defendant claims he was denied federal due process of law because he was
incompetent to stand trial. He contends the court abandoned the duty to exercise
its discretion by appointing and relying on a ―tie-breaking‖ third expert when the
first two experts disagreed as to defendant‘s competency. He further argues the
court abused its discretion by relying on the allegedly insufficient examinations of
the two experts who concluded defendant was competent. We find no abuse of
discretion and no error in the competency determination.
1. The Competency Proceedings
On April 19, 1996, defense counsel declared a doubt as to defendant‘s
competence to stand trial. Under sections 1367 and 1368, the court
suspended proceedings and appointed Psychologist Gerald Davenport and
Psychiatrist Joel Fort to examine defendant. They submitted conflicting reports.
Dr. Davenport found defendant incompetent to stand trial, but believed he
could regain competence through medication and psychological treatment. During
22
his interview, defendant ―talked non-stop for approximately an hour and fifteen
minutes.‖ Although defendant initially presented ―a logical thought process,‖ his
―thought confusion‖ gradually revealed itself. Defendant appeared suspicious and
had ―severe mood swings‖ throughout the interview. At times, he appeared
―anxious and depressed,‖ while at other times he appeared ―euphoric and laugh[ed]
wildly‖ for no apparent reason. Although defendant denied any hallucinations, ―he
clearly was responding to internal stimuli.‖ He spoke loudly, repeated himself,
could not sit still, had ―delusions of persecution,‖ engaged in loose and tangential
thinking, and used bizarre verbiage. Defendant occasionally could think
abstractly, ―but unfortunately would very quickly become overly involved in his
thought process,‖ ―lose his focus,‖ and use strange words. Defendant‘s
presentation was ―so severe‖ that Dr. Davenport questioned whether he was
malingering, and asked to review his mental health records. According to Dr.
Davenport, those records showed that defendant had received ―very little
intervention over time.‖ Although defendant appeared to understand the charges
against him and the roles of the participants in the courtroom, Dr. Davenport
believed he was not capable of assisting in his own defense.
Dr. Fort concluded defendant was competent to stand trial. He reviewed
defendant‘s background information, including the circumstances of these offenses
and his mental health history. During defendant‘s interview, he was ―cooperative,
talkative, oriented,‖ and appeared to have ―average intelligence and memory.‖ Dr.
Fort reported defendant understood the charges against him, the roles of the
participants at trial, and the purpose of his next court appearance. Dr. Fort also
noted defendant was able to summarize the testimony of three witnesses, and was
able to read and approve a lengthy motion. Dr. Fort noticed no signs of
hallucinations or delusions except that defendant claimed he did not exist anymore
23
because he ―died in 1984 and someone else took control.‖ Dr. Fort did not believe
this delusion affected defendant‘s mental state or was related to the crimes.
Noting that the doctors‘ reports were ―at opposite ends of the opinion
scale,‖ on May 23, 1996, the court appointed a psychiatrist, Dr. Fred Rosenthal, to
conduct a third competency examination.
Dr. Rosenthal found defendant competent. He described defendant as
―calm and in control‖ during his interview, although he was ―somewhat rambling,‖
exhibited ―indications of paranoid thoughts‖ about his case, and had ―a somewhat
distorted, self-justifying attitude about his current problems.‖ Defendant ―seemed
to maintain his hold on reality to some extent,‖ and there were no indications he
was suffering from any hallucinations or any other severe cognitive deficits.
Based on defendant‘s interview and mental health history, Dr. Rosenthal believed
defendant suffered from chronic paranoid schizophrenia and was in denial about
his mental disorder. Dr. Rosenthal reported that defendant was able to understand
the charges against him and discuss his legal situation in a ―coherent‖ and ―fairly
reasonable manner,‖ except when he professed his innocence and exhibited
paranoid thoughts about being falsely accused and victimized by the justice
system. Dr. Rosenthal reported that defendant was willing to cooperate and work
with his attorney ―because he agreed with him on his innocence.‖
On July 3, 1996, the parties submitted the issue of defendant‘s competency
on Dr. Rosenthal‘s report. The court found defendant competent ―[b]ased upon
the contents of the report‖ and reinstituted the criminal proceedings.
2. Analysis
―The criminal trial of a mentally incompetent person violates due process.
(Cooper v. Oklahoma (1996) 517 U.S. 348, 354.) However, a defendant is not
incompetent if he can understand the nature of the legal proceedings and assist
24
counsel in conducting a defense in a rational manner. (See ibid.; § 1367.)‖
(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047.) A defendant is
presumed competent unless the contrary is proven by a preponderance of the
evidence by the party contending he or she is incompetent. (§ 1369, subd. (f);
Medina v. California (1992) 505 U.S. 437; People v. Medina (1990) 51 Cal.3d
870, 881-885; Cal. Rules of Court, rule 4.130(e)(2).) In reviewing on appeal a
finding of competency, ―an appellate court must view the record in the light most
favorable to the verdict and uphold the verdict if it is supported by substantial
evidence.‖ (People v. Marshall (1997) 15 Cal.4th 1, 31.)
Defendant argues the court‘s reliance on Dr. Rosenthal‘s report was an
abuse of discretion because the report did not provide substantial evidence of his
competence. Specifically, he argues Dr. Rosenthal‘s report only established that
defendant was willing to cooperate with his attorney, but failed to establish that
defendant was able to assist his defense counsel in a rational manner. In fact, he
asserts, the report noted he became irrational, paranoid, and had a limited ―hold on
reality‖ when it came to questions of his innocence.
Because defendant failed to raise these objections below, they are forfeited.
Defendant argues the application of the forfeiture rule here ―is akin to arguing that
a failure to object to evidence on hearsay grounds would prevent an argument on
appeal that the evidence was constitutionally insufficient to support the verdict.‖
Defendant ignores a crucial distinction. Unlike the adjudication of criminal guilt,
which presumes a defendant‘s innocence and places the burden of proof on the
state, here defendant is presumed competent. Because he raised the issue of his
competency, he assumes the burden of proof. (§§ 1096, 1369, subd. (f).) Under
these circumstances, by failing to object below, defendant deprived the prosecution
of the opportunity to rebut any objections with evidence supporting the
25
presumption of competency. (See In re Seaton (2004) 34 Cal.4th 193, 199; see
also People v. Weaver (2001) 26 Cal.4th 876, 904 [―Having submitted the
competency determination on the two psychiatric reports, defendant may not now
relitigate that question with arguments he did not make below‖].) Because
defendant submitted the question of his competency on Dr. Rosenthal‘s report, he
has forfeited the claims that the court abused its discretion by determining
competency on the ―majority vote‖ of the experts or by relying on allegedly
insufficient reports.
In any event, there is no merit to defendant‘s claim that the court failed to
exercise its discretion by relying on the ―majority vote‖ of the three appointed
experts. Instead, the record demonstrates that the parties agreed to submit the
issue of defendant‘s competency on Dr. Rosenthal‘s report and the trial court made
its ruling based on that report. The court‘s decision to obtain a third report and its
reliance on that single report was not an abuse of discretion. (See People v.
McPeters (1992) 2 Cal.4th 1148, 1168-1169; § 1369, subd. (a).)
Moreover, it was defendant‘s burden to prove he was legally incompetent,
and Dr. Rosenthal‘s report does not support such a determination. Although Dr.
Rosenthal believed defendant suffered from paranoid schizophrenia, he concluded
defendant remained ―sufficiently in contact with reality to be considered mentally
competent to stand trial.‖ He based this conclusion on an examination of
defendant and consideration of his prior mental health history. Although Dr.
Rosenthal did not state in so many words that defendant was capable of assisting
in his defense, that conclusion was evident in his report. Dr. Rosenthal concluded
defendant understood the charges against him, was able to discuss his legal
situation coherently, and was willing to cooperate with his attorney. These
circumstances demonstrated that defendant was capable of assisting in his defense.
26
An insistence upon innocence is not unknown among those accused of crime. That
was the position defendant consistently maintained following the murders. Indeed,
his steadfast contention that two masked men were responsible reflected an ability
to formulate a defense to the charges against him. In the end, nothing in Dr.
Rosenthal‘s report established as a matter of law that defendant was
incompetent.15
B. Defendant’s Absence from Certain Proceedings
Defendant contends the court violated his constitutional and statutory rights
by conducting proceedings in his absence on 17 different occasions. ―A criminal
defendant‘s right to be personally present at trial is guaranteed under the federal
Constitution by the confrontation clause of the Sixth Amendment and the due
process clause of the Fourteenth Amendment. It is also required by section 15 of
article I of the California Constitution and by sections 977 and 1043.‖16 (People v.
Concepcion (2008) 45 Cal.4th 77, 81.) ―Under the Sixth Amendment, a defendant
15
Moreover, although Dr. Davenport deemed defendant incompetent, his
opinion was initially tempered by a belief that defendant may have been
malingering. He also found defendant able to understand the charges against him
and the roles of the participants in the courtroom. Dr. Fort‘s report further
supported the finding of competence. According to Dr. Fort, defendant understood
the proceedings against him and the rulings in the case, understood and approved
of a motion filed in the case, and was able to summarize the testimony of
witnesses. On this record, we find neither error nor prejudice.
16
Under section 977, subdivision (b)(1), a felony defendant ―shall be present
at the arraignment, at the time of plea, during the preliminary hearing, during those
portions of the trial when evidence is taken before the trier of fact, and at the time
of the imposition of sentence,‖ and ―shall‖ also attend ―all other proceedings,‖
unless he or she executes a written waiver of the right to be present ―in open
court.‖ Section 1043, subdivision (a), states in part that, ―Except as otherwise
provided in this section, the defendant in a felony case shall be personally present
at the trial.‖
27
has the right to be personally present at any proceeding in which his appearance is
necessary to prevent ‗interference with [his] opportunity for effective cross-
examination.‘ ‖ (People v. Butler (2009) 46 Cal.4th 847, 861, quoting Kentucky v.
Stincer (1987) 482 U.S. 730, 744–745, fn. 17.) ―Due process guarantees the right
to be present at any ‗stage … that is critical to [the] outcome‘ and where the
defendant‘s ‗presence would contribute to the fairness of the procedure.‘ ‖
(Butler, at p. 861, quoting Stincer, at p. 745.) ― ‗The state constitutional right to be
present at trial is generally coextensive with the federal due process right.
[Citations.]‘ Neither the state nor the federal Constitution, nor the statutory
requirements of sections 977 and 1043, require the defendant‘s personal
appearance at proceedings where his presence bears no reasonable, substantial
relation to his opportunity to defend the charges against him. [Citations.]‖
(Butler, at p. 861, quoting People v. Harris (2008) 43 Cal.4th 1269, 1306.)
―Defendant has the burden of demonstrating that his absence prejudiced his case or
denied him a fair trial.‖ (People v. Bradford (1997) 15 Cal.4th 1229, 1357.)
In each of the 17 complained-of proceedings, defendant‘s presence was not
necessary for effective cross-examination or to contribute to the fairness of the
procedure. His absence did not deprive him of the full opportunity to defend
against the charges.
Most of the complained-of proceedings require little discussion, as they
involved pretrial matters or occurred before the presentation of evidence at the
guilt phase. On one occasion, defendant had agreed to his absence on the record
the day before, and the proceedings merely involved corrections to the jury
questionnaire and the record. Two of the proceedings were postponed specifically
because of defendant‘s absence. Nine of the proceedings concerned routine legal
and procedural matters involving discovery, record corrections, stipulated juror
28
hardships, and exhibit list correction. In one proceeding, the prosecutor and
defense counsel briefly appeared to set the matter for trial, and defense counsel
withdrew defendant‘s time waiver. At the next appearance, defendant approved of
the withdrawal on the record. Once in midtrial, the parties discussed the guilt
phase jury instructions. Defendant fails to explain why his presence was necessary
for that proceeding. (People v. Butler, supra, 46 Cal.4th 847, 865 [discussion of
jury instructions is not a critical stage of the proceedings requiring defendant‘s
presence].)
Only three of defendant‘s absences require greater discussion. First, during
jury selection, defendant was not present at an in-chambers discussion of a defense
motion made pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). The discussion was brief, and
the court repeated its ruling in defendant‘s presence. Defendant voiced no
objection to his absence from chambers. He fails to explain why his presence was
necessary or how his absence prejudiced his case.
Second, defendant was absent when a juror was replaced during the penalty
phase deliberations but defendant had been present at the prior proceeding where
the parties agreed to excuse that particular juror if the deliberations had not
concluded in time. The next day, in defendant‘s presence, the juror was replaced
with an alternate, and defendant voiced no objection. Given these circumstances,
defendant fails to explain why his presence was required.
Third, defendant was absent when the parties discussed penalty phase
instructions and defense counsel withdrew defendant‘s request for allocution,
29
stating, ―[w]e are not pursuing that.‖17 ―[W]e have repeatedly held there is no
right of allocution at the penalty phase of a capital trial.‖ (People v. Lucero (2000)
23 Cal.4th 692, 717.) Therefore, even assuming defendant did wish to address the
court before his sentencing, defense counsel did not violate any cognizable right by
withdrawing defendant‘s request for allocution.
In sum, defendant fails to show how any of his absences affected his ability
to defend himself or otherwise prejudiced his case.
C. Batson/Wheeler Claims
Upon defendant‘s objection, the court found no prima facie showing that
the prosecutor exercised two peremptory challenges on racial grounds. Defendant
challenges the ruling. There was no evidence of racial bias and no error.
The prosecution‘s use of peremptory challenges to remove prospective
jurors based on group bias, such as race or ethnicity, violates a defendant‘s right to
trial by a jury drawn from a representative cross-section of the community under
article I, section 16 of the California Constitution and his right to equal protection
under the Fourteenth Amendment to the United States Constitution. (Batson,
supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277.) These
procedures apply when a defendant makes such an objection: ―First, the defendant
must make out a prima facie case by ‗showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.‘ [Citation.] Second, once the
defendant has made out a prima facie case, the ‗burden shifts to the State to
explain adequately the racial exclusion‘ by offering permissible race-neutral
17
Previously, just before the start of the penalty phase and in defendant‘s
presence, defense counsel had mentioned his intention to make a motion ―on the
right of Mr. Blacksher to allocute.‖
30
justifications for the strikes. [Citations.] Third, ‗[i]f a race-neutral explanation is
tendered, the trial court must then decide . . . whether the opponent of the strike
has proved purposeful racial discrimination.‘ [Citation.]‖ (Johnson v. California
(2005) 545 U.S. 162, 168, fn. omitted; see also People v. Lancaster (2007) 41
Cal.4th 50, 74.)
At issue here is whether defendant made a prima facie showing of group
bias. To do so, the defendant must demonstrate ― ‗ ―that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.‖ [Citations.]‘ ‖ (People
v. Howard (2008) 42 Cal.4th 1000, 1016, quoting Johnson v. California, supra,
545 U.S. 162, 168.) Where, as here, it is unclear whether the court relied on the
recently disapproved ―strong likelihood‖ standard, rather than the correct
―reasonable inference‖ standard, ―we review the record independently‖ to
determine whether defendant‘s showing met the ―reasonable inference‖ standard.
(Howard, at p. 1017.)
Defendant is African-American. During jury selection, the prosecutor used
his fourth and eighth peremptory challenges to excuse Prospective Jurors M.P. and
L.W., African-American women. Defense counsel lodged an objection in
chambers, arguing there was ―a strong likelihood that both of those jurors were
excluded on the basis of their race.‖ The court found no prima facie showing,
noting there were still two African-American jurors on the panel and that the
defense had exercised one of its own challenges against an African-American
juror. Jury selection resumed. The final jury included six African-American
jurors.
Based on our independent review, we agree with the court that defendant
did not make a prima facie showing of group bias. Defendant offered no
circumstances relevant to his claim of discriminatory intent. Defense counsel
31
made no attempt to argue that the excused jurors were not, apart from their race, as
―heterogeneous as the community as a whole‖ or that the prosecution engaged
them in desultory voir dire. (People v. Bell (2007) 40 Cal.4th 582, 597.) Defense
counsel failed to show that the prosecution had struck most or all members of the
identified group or had used a disproportionate number of challenges against the
group. (Ibid.)
In fact, other circumstances demonstrate a lack of discriminatory purpose.
The prosecutor did not challenge several other African-American jurors, and, as
noted, six ultimately served on the jury. (People v. Cornwell (2005) 37 Cal.4th 50,
70 [concluding a challenge raised no inference of bias, ―particularly in view of the
circumstance that the other African-American juror had been passed repeatedly by
the prosecutor from the beginning of voir dire and ultimately served on the jury‖];
People v. Turner (1994) 8 Cal.4th 137, 168 [―While the fact that the jury included
members of a group allegedly discriminated against is not conclusive, it is an
indication of good faith in exercising peremptories, and an appropriate factor for
the trial judge to consider in ruling on a Wheeler objection‖].)
Moreover, race-neutral grounds supported the prosecutor‘s challenges.
Prospective Juror M.P. wrote that she had ―ambivalent feelings‖ toward the death
penalty. She expressed discomfort in playing any role in deciding to impose a
death sentence. She believed no one has the right to take a life and such a decision
might be akin to ―playing ‗God.‘ ‖ Prospective Juror L.W. stated in her
questionnaire that she was only ―moderately‖ in favor of the death penalty and
believed a life sentence was a more severe penalty. (See People v. Bolin (1998) 18
Cal.4th 297, 317 [the use of ―peremptory challenges to excuse prospective jurors
who expressed scruples about imposing the death penalty‖ is proper].)
32
Furthermore, M.P. wrote that, based upon a racial-profiling incident
involving her brother and the police, she might treat police testimony with
skepticism. (People v. Farnam (2002) 28 Cal.4th 107, 138 [―a close relative‘s
adversary contact with the criminal justice system might make a prospective juror
unsympathetic to the prosecution‖].) Finally, L.W. was a psychology major and
characterized that discipline as a ―science.‖ Her background thus posed the danger
of having her own specialized knowledge influence her decisionmaking regarding
the significance of the claims of defendant‘s mental illness. (People v. Howard
(1992) 1 Cal.4th 1132, 1156 [prospective juror‘s professional training as a nurse
suggested a possible ground for the prosecutor‘s challenge].)
The court properly found no prima facie case of discrimination and did not
err in denying defendant‘s Batson/Wheeler motion.
III. GUILT PHASE ISSUES
A. Admission of Eva Blacksher’s Statements
Defendant contends the court erred by admitting several hearsay statements
of Eva Blacksher, who was deemed incompetent to testify at trial due to dementia.
The court allowed the prosecutor to present her preliminary hearing testimony
under Evidence Code sections 1290 and 1291.18 Because portions of Eva‘s
preliminary hearing testimony were inconsistent with statements she had made
18
Evidence Code section 1290 defines ― ‗former testimony,‘ ‖ in relevant part,
as ―testimony given under oath in: [¶] . . . [a]nother action or in a former hearing
or trial of the same action[.]‖ (Evid. Code, § 1290, subd. (a).)
Evidence Code section 1291 is the hearsay exception allowing a party to
admit against the opposing party the former testimony of an unavailable declarant,
provided that the opposing party ―had the right and opportunity to cross-examine
the declarant with an interest and motive similar to that which he has at the
hearing.‖ (Evid. Code, § 1291, subd. (a)(2).)
33
before that hearing, the court also allowed the prosecution to present several of her
previous statements. Defendant lodged hearsay and confrontation clause
objections to most of these statements below, and renews these objections on
appeal. He now also argues that some of these statements were inadmissible under
the subsequent rule of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). In
Crawford, the high court held that the Sixth Amendment‘s confrontation clause
prohibits the ―admission of testimonial statements of a witness who did not appear
at trial unless [the witness] was unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.‖ (Crawford, supra, 541 U.S. at pp. 53-
54.)
Eva‘s statements fall under three broad categories: 1) statements she made
in relation to the restraining order she obtained against defendant two days before
the murders; 2) statements she made to a police officer and family members soon
after the murders; and 3) statements she made to a detective the day after the
murders. All of the challenged statements were properly admitted.
1. Statements concerning the restraining order
a) Background
In the preliminary hearing transcript read to the jury, Eva denied obtaining a
temporary restraining order against defendant. She could not remember signing an
application for the order and denied writing that she was afraid of defendant. She
also denied knowing that defendant and Versenia had any problems before the
murders.
Eva‘s daughter, Ruth Cole, testified at trial about statements Eva and
Versenia made on their way to court to obtain the restraining order. As Ruth drove
Eva and Versenia to the courthouse, they discussed how defendant‘s appearance
with a baseball bat the night before had made them fearful. Ruth described how
34
Versenia and Eva spent hours at the courthouse waiting in line and filling out
forms. Ruth saw Versenia read the application forms to Eva and fill them out, saw
Eva sign them, and then saw them submit the forms to the court clerk. Ruth
recognized Versenia‘s handwriting and her mother‘s signatures on the forms.
During the course of Ruth‘s testimony, defense counsel objected to several
questions regarding whether Eva knowingly and willingly went to the courthouse
to obtain the order, claiming the questions called for speculation and a conclusion
as to Eva‘s mental state. Defense counsel also made a general objection to Eva‘s
statements to Ruth on confrontation grounds. The prosecution argued that Ruth‘s
testimony was admissible to show that Eva feared defendant and to impeach Eva‘s
preliminary hearing testimony in which she either denied or could not remember
being involved in the application for the restraining order against defendant. The
court overruled the defense objections, initially ruling the statements were
admissible as prior inconsistent statements19 and to show Eva‘s state of mind.20
Later, however, the court questioned whether Eva‘s state of mind was relevant
19
Evidence Code section 1235 states: ―Evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if the statement is inconsistent
with his testimony at the hearing and is offered in compliance with Section 770.‖
Evidence Code section 770 states, in relevant part: ―Unless the interests of
justice otherwise require, extrinsic evidence of a statement made by a witness that
is inconsistent with any part of his testimony at the hearing shall be excluded
unless: [¶] . . . [t]he witness was so examined while testifying as to give him an
opportunity to explain or to deny the statement[.]‖ (Evid. Code, § 770, subd. (a).)
20
Evidence Code section 1250 states, in relevant part: ―evidence of a
statement of the declarant‘s then existing state of mind, emotion, or physical
sensation (including a statement of intent, plan, motive, design, mental feeling,
pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] . . .
[t]he evidence is offered to prove the declarant‘s state of mind, emotion, or
physical sensation at that time or at any other time when it is itself an issue in the
action[.]‖ (Evid. Code, § 1250, subd. (a).)
35
and, instead, instructed the jury that Eva‘s statements to Ruth about obtaining the
restraining order were admissible only to impeach Eva‘s prior testimony ―and for
that purpose only.‖ In light of this clarification and instruction by the trial court,
we review the question of whether the statements were properly admitted for
impeachment.
Defendant here repeats the objections he made below. He also argues that
Ruth‘s testimony was inadmissible to impeach Eva‘s preliminary hearing
testimony because, under Crawford, Eva‘s failing memory effectively denied him
his right to cross-examine her at the preliminary hearing. He claims her
preliminary hearing testimony revealed she was often unable to understand
questions posed to her and to remember relevant details, thereby preventing him
from engaging her in any meaningful cross-examination.
First, we deal with defendant‘s contention that Ruth‘s testimony
impeaching Eva‘s former testimony should not have been admitted because
defendant was denied his right to effectively cross-examine Eva at the preliminary
hearing. Then, we will address defendant‘s additional arguments that,
notwithstanding any defects at the preliminary hearing, Ruth‘s testimony
impeaching Eva was not admissible under the confrontation clause and that her
testimony constituted improper opinion evidence as to Eva‘s mental state.
b) The Right to Cross-Examination at the Preliminary Hearing
Concerning any defects at the preliminary hearing, we note that defendant
did not challenge Eva‘s competence at the preliminary hearing. Further, at trial, he
made no objection to the admission of Eva‘s preliminary hearing testimony.
Although the high court‘s decision in Crawford came well after the proceedings in
this case, our statutory law governing the admission of former testimony has long
required the prior opportunity to cross-examine as a foundational prerequisite
36
under Evidence Code section 1291, subdivision (a)(2). Consequently, defendant
has forfeited any claim that Eva‘s preliminary hearing testimony was inadmissible.
He twice failed to urge that Eva‘s mental state precluded a meaningful opportunity
for cross-examination.
The claim also lacks merit. The fact that, at the preliminary hearing, Eva
had some difficulty initially understanding the questions posed to her or
remembering some of her previous statements did not render defendant‘s cross-
examination opportunity meaningless. ―The right of confrontation does not protect
against ‗testimony that is marred by forgetfulness, confusion, or evasion.‘ ‖
(People v. Mayfield (1997) 14 Cal.4th 668, 742, quoting Delaware v. Fensterer
(1985) 474 U.S. 15, 22; see also United States v. Owens (1988) 484 U.S. 554,
560.) To be sure, Eva expressed some minor confusion, but she was able to
respond to the questions posed and rephrased to her and was otherwise lucid.
Nothing in her testimony revealed ―an inability to distinguish truth from falsehood
(or perception from imagination)‖ or a failure to appreciate her ―obligation as a
witness to tell the truth.‖ (People v. Cudjo (1993) 6 Cal.4th 585, 622.)
c) The Confrontation Clause and Evidence Code Section 1202
Notwithstanding any alleged defects at the preliminary hearing, we also
reject defendant‘s claim that Ruth‘s testimony impeaching Eva‘s former testimony
was not admissible on confrontation grounds under either state or federal law.
We first note that Eva‘s statements to Ruth about the restraining order were
not admissible for their truth as prior inconsistent statements under Evidence Code
sections 1235 and 770. Those sections permit admission of inconsistent statements
made by a witness who actually testifies at the proceeding. (People v. Williams
(1976) 16 Cal.3d 663, 669.) Because Eva did not testify at trial, those sections do
not apply here.
37
Nevertheless, as the trial court eventually recognized, Eva‘s statements to
Ruth were admissible not for their truth but solely to impeach her former
testimony. (Cal. Law Revision Com. com., 29B pt. 4 West‘s Ann. Evid. Code
(1995 ed.) foll. § 1202, p. 27; Simons, Cal. Evidence Manual (2010) § 2.17, pp.
86-87.) Although the court did not admit the evidence under a specific Evidence
Code section,21 the statements were admissible under Evidence Code section 1202,
which governs the impeachment of hearsay statements by a declarant who does not
testify at trial. The jury was properly instructed on this point.22
Defendant argues for a more narrow interpretation of Evidence Code
section 1202. He urges that the section forbids the prosecution from impeaching
its own unavailable hearsay declarant with an inconsistent statement. He
maintains that Evidence Code section 1202 allows only the opposing party to
introduce the inconsistent statement. His argument fails.
21
―If a judgment rests on admissible evidence it will not be reversed because
the trial court admitted that evidence upon a different theory, a mistaken theory, or
one not raised below.‖ (People v. Brown (2004) 33 Cal.4th 892, 901.)
22
Evidence Code section 1202 states, in relevant part: ―Evidence of a
statement or other conduct by a declarant that is inconsistent with a statement by
such declarant received in evidence as hearsay evidence is not inadmissible for the
purpose of attacking the credibility of the declarant though he is not given and has
not had an opportunity to explain or to deny such inconsistent statement or other
conduct.‖ ―Section 1202 deals with the impeachment of a declarant whose hearsay
statement is in evidence as distinguished from the impeachment of a witness who
has testified. It clarifies two points. First, evidence to impeach a hearsay
declarant is not to be excluded on the ground that it is collateral. Second, the rule
applying to the impeachment of a witness — that a witness may be impeached by
an inconsistent statement only if he is provided with an opportunity to explain or
deny it — does not apply to a hearsay declarant.‖ (Cal. Law Revision Com.
reprinted at com., 29B pt. 4 West‘s Ann. Evid. Code, supra, foll. § 1202, p. 27.)
38
Defendant relies on People v. Beyea (1974) 38 Cal.App.3d 176 (Beyea), in
which the prosecution introduced the preliminary hearing testimony of two
unavailable witnesses. It impeached that evidence with one witness‘s testimony
from a different preliminary hearing and with the other witness‘s statements to
police. The prosecutor in Beyea, however, did not impeach the witnesses at the
defendants‘ preliminary hearing. Instead, the impeaching statements were offered
only at trial, after the witnesses had become unavailable. Although the decision
does not make this point clear, it appears the inconsistent statements were admitted
both for impeachment and for their truth. (Beyea, supra, 38 Cal.App.3d 176, 186,
193, fn.6.)
The Beyea court concluded it would be unfair to allow a party to impeach
the former testimony of its own unavailable witnesses with their inconsistent
hearsay statements unless the opposing party was able to cross-examine the
declarant about the inconsistent statements. (Beyea, supra, 38 Cal.App.3d at
p. 193, quoting Am-Cal Investment Co. v. Sharlyn Estates, Inc. (1967) 255
Cal.App.2d 526, 542.) Beyea acknowledged that the language of Evidence Code
section 1202 contains no such limitation, but referred to the Law Revision
Commission‘s comment to section 1202, which states that the statute provides ― ‗a
uniform rule permitting a hearsay declarant to be impeached by inconsistent
statements in all cases, whether or not the declarant has been given an opportunity
to explain or deny the inconsistency,‘ ‖ with the caveat that ― ‗[i]f the hearsay
declarant is unavailable as a witness, the party against whom the evidence is
admitted should not be deprived of both his right to cross-examine and his right to
impeach.‘ ‖ (Beyea, supra, 38 Cal.App.3d at p. 193.)
The court in People v. Osorio (2008) 165 Cal.App.4th 603, however,
disagreed with Beyea’s conclusion. In Osorio, the prosecution introduced the
39
spontaneous statement of the victim to a paramedic. It then impeached that
statement with one the victim made during a later police interview. The victim
died before trial and the defense never had the opportunity to cross-examine her.
The trial court admitted the victim‘s statement to police for the limited purpose of
impeaching the spontaneous statement. The Osorio court held the prosecution
could impeach the hearsay statements of its own unavailable witness with her later
inconsistent hearsay statement. (Id. at pp. 615-617.) Osorio reasoned there is
nothing in the plain language of Evidence Code section 1202 ―that gives rise to
any ambiguity or lends support to Beyea’s interpretation.‖ (Osorio, at p. 616.)
Moreover, Osorio noted that when the comments to the section were drafted in
1965 there was a general rule against impeaching one‘s own witness, but that rule
was abrogated by the passage of Evidence Code section 785, part of the same bill
that added Evidence Code section 1202, which allows the credibility of a witness
to be attacked by any party. (Osorio, at pp. 616-617.) Because the Legislature did
not expressly make Evidence Code sections 785 and 1202 mutually exclusive,
Osorio concluded that both sections should be read together and ―as a single
statute, these two sections allow a prosecutor to use a prior inconsistent statement
to partially impeach a hearsay statement the prosecutor had previously introduced.‖
(Id. at p. 617.)
Accordingly, if the statements in Beyea were admitted for their truth, the
Court of Appeal correctly concluded that the admission was error. The Beyea
defendants were deprived of their opportunity to cross-examine as to those
inconsistent statements not brought forward during the preliminary hearing.
Similarly, the result in Osorio was also correct. The inconsistent statements at
issue in Osorio were not hearsay because they were not admitted for their truth.
40
Accordingly, the defendant‘s inability to cross-examine the declarant about those
statements raised no confrontation clause concerns.
In sum, the confrontation clause does not prohibit the prosecution from
impeaching the former testimony of its own unavailable witnesses with their
inconsistent statements, provided those statements are admitted only for
impeachment purposes. However, under Evidence Code section 1202, the
prosecution may not offer for their truth the inconsistent statements of a declarant
who does not testify at trial. (People v. Williams, supra, 16 Cal.3d at p. 669.) Any
language to the contrary in People v. Beyea, supra, 38 Cal.App.3d 176, is
disapproved.
Here, Eva‘s statements to Ruth about the restraining order were not
admitted for their truth. They were relevant for the limited purpose of
impeachment and properly admitted.23
d) Opinion Evidence
We also reject the contention that Ruth‘s testimony constituted improper
opinion testimony about what Eva was thinking and intending when she obtained
the restraining order. ―Generally, a lay witness may not give an opinion about
another‘s state of mind,‖ but ―a witness may testify about objective behavior and
describe behavior as being consistent with a state of mind.‖ (People v. Chatman
(2006) 38 Cal.4th 344, 397.) Ruth‘s testimony was based on Eva‘s objective
behavior. Eva verbalized her own state of mind. (Evid. Code, § 1250.) The
actions Ruth observed that day were entirely consistent with that mind set.
23 We will discuss the holding in Crawford in greater detail below. It is
sufficient to observe that because the statements were not offered for their truth
they do not implicate the confrontation clause under the Crawford rule.
(Crawford, supra, 541 U.S. at p. 59, fn. 9.)
41
Moreover, Eva‘s expression of fear and her desire to obtain a restraining order
were not admitted for their truth, but to impeach her preliminary hearing testimony
in which she denied writing that she was afraid of defendant and denied knowing
about a restraining order.
2. Eva’s statements after the murders
Relying on the spontaneous statement exception to the hearsay rule (Evid.
Code, § 1240), the prosecutor filed a pretrial motion to introduce hearsay
statements Eva made to her neighbor, John Adams, immediately after the shooting,
statements she made to an arriving police officer, and statements she made about
an hour later to her son James and his wife in the presence of a city mental health
worker. Defendant opposed the admission of these statements, arguing they did
not qualify as spontaneous statements, were improper opinion testimony, were
more prejudicial than probative, and were unreliable and untrustworthy in violation
of due process and his Sixth Amendment right to confrontation. The court rejected
defendant‘s arguments, admitting all of these statements under Evidence Code
section 1240. Defendant challenges each of these rulings.
a) Eva’s Statements to Officer Nielsen
Based on the dispatched report of a murder-suicide, Officer Nicholas
Nielsen contacted Eva and her neighbor outside Eva‘s home. In the 911 call,
neighbor John Adams had erroneously reported that defendant had killed his sister
and then shot himself. The dispatcher repeated Adam‘s report in sending officers
to the scene. Nielsen described Eva as teary-eyed, distraught, and very agitated.24
She appeared anxious to talk with him. As he approached her, Eva spoke first,
24
Adams described Eva similarly, and noted she appeared to have blood on
her feet.
42
telling him her daughter and grandson had been shot and were probably dead.
Because Eva‘s statement suggested an armed murderer was at large, Officer
Nielsen asked questions to obtain more information before the officers risked
going inside the home to aid the victims. Eva explained that defendant had come
into the house earlier and had spoken with her briefly. He then argued with his
sister and shot the victims. Eva said she did not see defendant carrying a gun, but
assumed he had concealed it. Nielsen asked if defendant was still inside the home.
Eva said she did not know, and described the clothing defendant had been wearing.
According to Nielsen‘s report, Adams pointed out that defendant was probably
gone because his car was no longer in the driveway. Nielsen spoke with Eva and
Adams for 10 to 15 minutes. Eva remained upset throughout the conversation.
Nielsen took notes as they spoke so he could accurately relay information to the
dispatcher and his fellow officers. Three to four minutes into the conversation
with Eva and Adams, other officers arrived and went inside the main house. After
the conversation, Nielsen checked defendant‘s cottage but did not find him there.
Because Eva‘s statements were made out of court and admitted for their
truth, they constituted hearsay. (Evid. Code, § 1200, subd. (a).)25 We first
consider whether they fell under a California hearsay exception and then whether
their admission violated the Sixth Amendment of the United States Constitution as
it has been applied in Crawford and its progeny.26
25
― ‗Hearsay evidence‘ is evidence of a statement that was made other than by
a witness while testifying at the hearing and that is offered to prove the truth of the
matter stated.‖ (Evid. Code, § 1200, subd. (a).)
26
For trial courts considering the question of admissibility, this is the proper
order of analysis. If a proffered statement does not satisfy a hearsay exception, it
is inadmissible and a further Crawford consideration is unnecessary.
43
i) Spontaneous Statement
―Evidence of a statement is not made inadmissible by the hearsay rule if the
statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such perception.‖ (Evid.
Code, § 1240.)
Defendant does not dispute that Eva was hysterical when she spoke with
Officer Nielsen. Under these circumstances the court properly concluded that the
statements were made when Eva was under the domination of nervous excitement
caused by the event, so that her utterances were spontaneous and unreflecting.
Instead, defendant argues that the statements were inadmissible because
there was insufficient foundation that she had ―witnessed‖ the killings. She did
not tell anyone she had actually seen the shootings, and told an inspector the next
day that she could not see into the dining room where the shots were fired.
Defendant‘s argument fails.
The Evidence Code does not use the term ―witnessed by.‖ Rather, it refers
to an act, condition, or event ―perceived by‖ the declarant. (Evid. Code, § 1240,
subd. (a).) While the phrase ―witnessed by‖ was used in People v. Gutierrez
(2009) 45 Cal.4th 789, 809-810, the phrase was used to describe the circumstances
in that case. It was not used to modify the language of the statute itself by
imposing a different foundational requirement. More importantly, in People v.
Poggi (1988) 45 Cal.3d 306, the court noted spontaneous statements may include
the ― ‗sincere expression‘ ‖ of the speaker‘s ― ‗actual impressions and belief.‘ ‖
(Id. at p. 318, quoting Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460,
468.)
44
There are many ways someone can acquire the personal knowledge required
to support a conclusion that the person perceived an event. Eva saw defendant
enter her room and leave. Shortly thereafter, she heard Versenia‘s exclamation
followed by a gunshot. She emerged from her room to see Versenia fall, bleeding.
She was understandably traumatized by what she perceived: a shooting in her
home, her daughter and grandson lying on the floor mortally injured. These
observations were clearly relevant to the circumstances of the shooting. Nothing
indicated she was insincere in her quite logical belief that defendant had shot the
victims. At best, the issue of whether Eva actually saw defendant fire the shots
went to the weight of her statements, not their admissibility. (People v. Riva
(2003) 112 Cal.App.4th 981, 996.) Accordingly, Eva‘s statements to both John
Adams and Officer Nielsen properly qualified as spontaneous statements.
ii) Sixth Amendment Right to Confrontation
In Crawford, the United States Supreme Court reexamined the application
of the Sixth Amendment to the admission of hearsay statements. Crawford did not
replace a conventional hearsay analysis. Instead, it added a second layer of inquiry
when hearsay is offered against a criminal defendant. Crawford established,
except in circumstances not relevant here, if a hearsay statement is testimonial in
nature it cannot be introduced against a criminal defendant unless the declarant is
unavailable, and the defendant had a previous opportunity to cross-examine the
declarant. (Crawford, supra, 541 U.S. at pp. 53-54.) The Crawford court did not
give a comprehensive definition of the term ―testimonial‖ and subsequent cases
have addressed how the rule should be applied. The court has recently considered
that question in Michigan v. Bryant (2011) ___ U.S. ___ [131 S.Ct. 1143]
(Bryant).
45
There, the court reviewed the evolution of the Crawford rule and iterated
that ― ‗the principal evil at which the Confrontation Clause was directed was the
civil-law mode of criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused.‘ ‖ (Bryant, supra, ___ U.S. at p.
___ [131 S.Ct. at p. 1152], quoting Crawford, supra, 541 U.S. at p. 50.) ―[T]he
word ‗witnesses‘ in the Sixth Amendment‖ is defined as ―those who ‗ ―bear
testimony.‖ ‘ ‖ (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at pp. 1152-1153],
quoting Crawford, supra, at p. 51.) ―Testimony,‖ in turn, is a ― ‗ ―solemn
declaration or affirmation made for the purpose of establishing or proving some
fact.‖ ‘ ‖ (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1153], quoting
Crawford, supra, at p. 51.)
The majority opinion in Bryant again pointed out that ―not all those
questioned by the police are witnesses‖ for purposes of the Sixth Amendment and
not all ― ‗interrogations by law enforcement officers‘ [citation], are subject to the
Confrontation Clause.‖ (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1153],
quoting Crawford, supra, 541 U.S. at p. 53.)
Bryant noted that in the cases decided to date, the term ―police
interrogation‖ has been used to describe ― ‗interrogations solely directed at
establishing the facts of a past crime, in order to identify (or provide evidence to
convict) the perpetrator.‘ ‖ (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p.
1153], quoting Davis v. Washington (2009) 547 U.S. 813, 826 (Davis).) In Bryant,
the court contrasted the companion cases decided by Davis, State v. Davis (Wn.
2005) 111 P.3d 844 and Hammon v. State (Ind. 2005) 829 N.E.2d 444, to tease out
the factors at play in determining what facts make a hearsay statement
―testimonial.‖ (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at pp. 1153-1156].)
46
In State v. Davis, a woman called 911 to report her boyfriend was beating
her with his fists. Her statements were made in the present tense and the police
operator asked for the perpetrator‘s name, which the caller gave. She then told the
operator the boyfriend had driven off. The 911 tape was admitted at defendant‘s
trial when the caller failed to appear. (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct.
at p. 1153], citing Davis, supra, 547 U.S. at pp. 817-819.)
In Hammon v. State, police went to the Hammon home following a report
of domestic violence. They arrived to find Amy Hammon alone on her front
porch. She initially told them that nothing was wrong. Officers went inside with
Amy‘s permission. There, they found broken glass on the floor and Hershel
Hammon in the kitchen. One officer kept Hershel there while Amy was taken into
the living room and told the other officer what happened. Amy then wrote and
signed a ―battery affidavit,‖ summarizing Hershel‘s assault on her. When Amy
failed to appear at Hershel‘s trial, both her oral and written statements were
admitted through an officer‘s testimony. (Bryant, supra, ___ U.S. at p. ___ [131
S.Ct. at p. 1154], citing Davis, supra, 547 U.S. at pp. 819-820.)
As discussed in Bryant, the Davis court distinguished the two cases, holding
the statements in Hammon v. State were testimonial while those in State v. Davis
were not. The Bryant court summarized the differences between them. In Davis,
the events related to the operator were actually happening, as opposed to past,
completed events. The beating of the caller was an ongoing emergency that the
statements were elicited to resolve. The statements were not formal but a call for
help. By contrast, in Hammon v. State whatever had occurred was over when the
officers arrived. Amy said there was nothing wrong and there was no apparent
ongoing danger. The questioning of Amy was part of an investigation into past
conduct. Finally, the circumstances in which Amy was subjected to, organized and
47
structured questioning in a separate room focused on past events that were
potentially criminal and resulted in the preparation of a written and signed
affidavit, were sufficiently formal to be consistent with the acquisition of a
testimonial statement. (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at pp. 1154-
1155].)
The Bryant court concluded from its review of Davis, ―[t]hus, the most
important instances in which the [Confrontation] Clause restricts the introduction
of out-of-court- statements [offered for their truth] are those in which state actors
are involved in a formal, out-of-court interrogation of a witness to obtain evidence
for trial. [Fn. omitted.]‖ (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1155].)
While the court specifically reserved whether ―statements made to someone other
than‖ a law enforcement officer might be testimonial (id. at p. ___ [131 S.Ct. at
p. 1155], fn. 3), the only cases the high court has considered to date have involved
statements by or to a government agent.27 (Cf. People v. Cage (2007) 40 Cal.4th
965, in which statements made by a victim to a police officer were held to be
testimonial while substantially similar statements given to a physician were not
testimonial.)
It is the ―primary purpose of creating an out-of-court substitute for trial
testimony‖ that implicates the confrontation clause. (Bryant, supra, ___ U.S. at p.
___ [131 S.Ct. at p. 1155].) Consequently, if a statement is not offered for its
truth, or is nontestimonial in character, the confrontation clause is not a bar to
27
Bullcoming v. New Mexico (2011) ___ U.S. ___ [131 S.Ct. 2705] and
Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527], both
involved forensic laboratory reports written by analysts employed at a state
laboratory required by law to assist in police investigations, and, in both cases, the
high court concluded the analysts‘ statements were testimonial.
48
admission. Thus, the touchstone questions are whether a statement is hearsay
offered against a criminal defendant, whether the statement is otherwise admissible
under a hearsay exception, and, if so, whether the statement is testimonial.
Bryant counsels that to determine the primary purpose with which a
statement is given by the declarant or obtained by an officer a court must consider
a number of factors:
1) The court must objectively evaluate the circumstances of the encounter
along with the statements and actions of the parties. In this latter regard, ―the
relevant inquiry is not the subjective or actual purpose of the individuals involved
in a particular encounter, but rather the purpose that reasonable participants would
have had, as ascertained from the individuals‘ statements and actions‖ in the given
situation. (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1156].)
The inquiry is on the primary purpose of both officer and declarant. A
majority of the court in Bryant recognized that both participants may have mixed
motives. An officer, even when responding to an emergency, remains an
investigator and, thus, is not indifferent to the gathering of evidence. Likewise,
victims and other declarants may or may not want to see a perpetrator ultimately
prosecuted. The question remains, when viewed objectively, what is the primary
purpose of both declarant and officer? (Bryant, supra, ___ U.S. at p. ___ [131
S.Ct. at p. 1161].)
2) The court should consider whether an ― ‗ongoing emergency‘ ‖ exists, or
appears to exist, when the statement was made. Such an ongoing emergency
focuses the participants on something other than obtaining evidence for trial.
(Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1157].) Again, the analysis is
objective. Even if hindsight reveals that an emergency did not, in fact, exist, if it
reasonably appeared to exist based on the information known when the statement
49
was made the emergency test is satisfied. (Id. at p. ___ [131 S.Ct. at p. 1157], fn.
8.)
The majority took care to clarify that the existence of an emergency is not
the only circumstance in which a hearsay statement may not qualify as testimonial.
(See Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1155] [―[T]here may be
other circumstances, aside from ongoing emergencies, when a statement is not
procured with a primary purpose of creating an out-of-court substitute for trial
testimony‖]; id. at p. 1157, fn. 9 [discussing other exceptions to the hearsay rule,
which, ―by their nature [were] made for a purpose other than for use in a
prosecution‖].)
3) Whether an ongoing emergency exists is a ―highly context-dependent
inquiry.‖ (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1158].) Even when a
threat to an initial victim is over, a threat to first responders and the public may
still exist. The type of weapon involved may expand or limit the duration and
scope of the emergency. A situation created by the use of fists may involve less
ongoing danger than the use of a firearm. (Ibid.)
4) The medical condition of the declarant is a relevant consideration, as it
bears on both the injured declarant‘s purpose in speaking and the potential scope
of the emergency. (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1159].) As
the high court describes it, the declarant‘s medical condition ―sheds light on the
ability of the victim to have any purpose at all in responding to police questions
and on the likelihood that any purpose formed would necessarily be a testimonial
one.‖ (Ibid.)
5) A nontestimonial encounter addressing an emergency may evolve,
converting subsequent statements into testimonial ones. A real or apparent
emergency may resolve itself. The disarming or capture of a perpetrator may end
50
the danger. It may become clear from the declarant and officer‘s statements or
behavior that the focus has shifted from meeting the emergency to obtaining
evidence for trial. (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at pp. 1159-
1160].)
6) Finally, regardless of the existence of an emergency, the informality of
the statement and the circumstances of its acquisition are important considerations.
Inquiries that are conducted in a disorganized way and in turbulent circumstances
are distinguishable from a jailhouse interview, as in Crawford, or the sequestered
and formal preparation of an affidavit, as in Hammon v. State. (Bryant, supra, ___
U.S. at p. ___ [131 S.Ct. at p. 1160].)
In Bryant, police responded to a report that a man had been shot. The
arriving officers found the victim lying on the ground next to his car at a gas
station parking lot, bleeding and mortally wounded by a gunshot to his abdomen.
(Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1150].) The officers asked the
victim ― ‗what had happened, who had shot him, and where the shooting had
occurred.‘ ‖ (Ibid.) The victim said Bryant had shot him outside Bryant‘s home,
and provided the details of how he had been shot. He relayed that he fled from
Bryant‘s home, and drove himself to the gas station. The victim‘s conversation
with police lasted 5 to 10 minutes, ending when paramedics arrived. (Ibid.)
In applying the previously described factors to the facts before it, the high
court concluded that the encounter between the police and the victim did not
produce testimonial hearsay. (Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at
p. 1167].) The court noted the continuing emergency went beyond any private
dispute between Bryant and the victim. Neither the victim nor the police knew the
current location of the armed shooter. (Id. at p. ___ [131 S.Ct. at p. 1164].) In
addition, because the victim did not disclose the motive of the shooting, ―[t]he
51
police did not know, and [the victim] did not tell them, whether the threat was
limited to him.‖ (Ibid.) There was no indication that the emergency had ended
because the victim gave the police ―no reason to think that the shooter would not
shoot again if he arrived on the scene.‖ (Id. at p. ___ [131 S.Ct. at p. 1166].) The
court also noted that the victim was bleeding, ―had difficulty breathing and
talking,‖ and was in considerable pain. These facts did not suggest that he made
his statements with the ― ‗primary purpose‘ ‗to establish or prove past events
potentially relevant to later criminal prosecution.‘ ‖ (Id. at p. ___ [131 S.Ct. at p.
1165], quoting Davis, supra, 547 U.S. at p. 822.) As for the informality of the
encounter, unlike a formal stationhouse interrogation, ―the questioning in this case
occurred in an exposed, public area, prior to the arrival of emergency medical
services, and in a disorganized fashion‖ and the circumstances revealed that ―the
situation was fluid and somewhat confused,‖ as different officers arrived with each
asking ― ‗what had happened.‘ ‖ (Byrant, supra, ___ U.S. at pp. ___, ___ [131
S.Ct. at pp. 1160, 1166].) Finally, the court considered the statements and actions
of the parties. The officers, by asking the victim what had happened, who had shot
him, and where the shooting took place, posed ―the exact type of questions
necessary to allow the police to ‗ ―assess the situation, the threat to their own
safety, and possible danger to the potential victim‖ ‘ and to the public [citations],
including to allow them to ascertain ‗whether they would be encountering a violent
felon,‘ [citation].‖ (Id. at p. ___ [131 S.Ct. at p. 1166], quoting Davis, supra, 547
U.S. at pp. 827, 832.)
52
iii) Eva’s Statements to Nielsen and Adams Were Not
Testimonial
We apply the Bryant analysis to the case at hand. Eva‘s statements to
Officer Nielsen and her neighbor John Adams were hearsay because they were
made out of court and offered for their truth. (Evid. Code, § 1200.) As we have
explained, they satisfied the spontaneous utterance exception to the hearsay rule.
They were offered against defendant at his criminal trial. However, we conclude
they were not testimonial.
Officer Nielsen arrived within four minutes of Adams‘s 911 call. The
bodies were still inside. Eva did not know if defendant was still present. During a
10 to 15 minute conversation Officer Nielsen asked Eva questions about the
shooting, what defendant was wearing and whether he was armed. Nielsen took
notes so he could relay information to the dispatcher and other officers. During
this period it was ascertained that defendant was neither in Eva‘s house nor the
cottage behind it. Thus, the shooter had fled the scene and was presumed to be
armed with the firearm that was the murder weapon. His motive and whereabouts
were unknown. The audio recording of police radio traffic confirms that during
the initial 15 minutes following the 911 call officers were trying to assess the
emergency and determine whether the shooter was dead or still in the
neighborhood. It was objectively reasonable to believe that an armed shooter
remained at large and presented an emergency situation.
Objectively, the primary purpose of both Eva and Officer Nielsen was to
deal with that emergency, not to create an out-of-court substitute for trial
testimony. Instead, the primary purpose for both of them was to determine
defendant‘s whereabouts and evaluate the nature and extent of the threat he posed.
Eva was greatly upset throughout her encounter with Officer Nielsen. The
discussion in her yard, in the presence of a neighbor, was in an open setting and
53
under chaotic conditions. As a result, it was much more similar to the parking lot
questioning in Bryant than the more calm and formal circumstances of Crawford28
and Hammon v. State.
As noted, the Supreme Court has not addressed whether statements ―to
someone other than law enforcement personnel‖ can ever qualify as testimonial.
(Bryant, supra, ___ U.S. at p. ___ [131 S.Ct. at p. 1155], fn. 3; see discussion,
ante, at p. 48.) Setting this question aside, just as the statements to Nielsen were
nontestimonial, Eva‘s exclamations to neighbor John Adams as she ran from her
home were not made or received to create an out-of-court substitute for trial
testimony.
b) Eva’s Statements to James and Frances Blacksher
Inspector Alan Bierce testified that he arrived at the crime scene after
Officer Nielsen and made contact with Eva. He placed Eva in his patrol vehicle
and, because she appeared ―distressed‖ and ―fragile,‖ he decided not to take a
statement from her, but instead called city mental health worker Darryl Brand to
assist her. When Brand arrived, Officer Bierce directed her to help Eva and left
them alone. Brand asked Eva if she wanted any of her family members called to
the scene, and Eva asked for James and Frances Blacksher. They arrived shortly
thereafter and went to the patrol car to comfort Eva, who remained upset and was
screaming. James and Frances separately asked Eva what had happened. She told
each of them that defendant had shot the victims and that Versenia had fallen into
her arms after she had been shot.
28
In Crawford, the declarant was in police custody and a possible suspect
when she gave her tape-recorded statements in response to questioning by
detectives. (Crawford, supra, 541 U.S. at pp. 38, 65.)
54
Although they were made well over an hour after the murders, this lapse of
time did not purge Eva‘s statements of their spontaneity. ― ‗The crucial element in
determining whether a declaration is sufficiently reliable to be admissible under
this exception to the hearsay rule is . . . the mental state of the speaker. The nature
of the utterance — how long it was made after the startling incident and whether
the speaker blurted it out, for example — may be important, but solely as an
indicator of the mental state of the declarant . . . . [U]ltimately each fact pattern
must be considered on its own merits, and the trial court is vested with reasonable
discretion in the matter.‘ ‖ (People v. Brown (2003) 31 Cal.4th 518, 541, quoting
People v. Farmer (1989) 47 Cal.3d 888, 903-904.)
In People v. Brown, we concluded that a statement was properly admitted as
spontaneous under Evidence Code section 1240, even though made two and one-
half hours after the shooting. The witness was still crying and trembling at the
time he expressed his belief that the defendant had shot and seriously injured the
victim. (People v. Brown, supra,31 Cal.4th at p. 541.) Similarly, Eva ―continued
to labor mightily under the emotional influence of the disturbing events‖ she had
perceived. (Ibid.) Frances described Eva as ―very angry‖ and ―terribly upset.‖29
James described his mother as hysterical, upset, and ―screaming and hollering.‖
29
Frances, however, initially described Eva as ―very calm‖ and more calm
then herself when she first made contact with Eva at the patrol car. She also
described Eva as having a ―drawn‖ and ―cold‖ demeanor. In any event, we need
not reweigh any conflicting evidence as to Eva‘s demeanor when she spoke to
Frances. Even assuming Eva‘s statements to Frances were not spontaneous for
purposes of Evidence Code section 1240, their admission could not have been
prejudicial by any standard because they were identical to the statements Eva made
to James, and were therefore cumulative.
55
On this record, the court properly concluded Eva‘s statements to James and
Frances were spontaneous and admissible under Evidence Code section 1240.
Defendant also claims these statements were testimonial because they were
made while Eva was in a police car, in the presence of a city mental health worker,
and with multiple officers nearby. Yet, these statements were not made in
response to police interrogation or to any police agent, but to family members
whose presence she had requested. These statements of a distraught mother and
grandmother to those offering solace completely lacked the ―formality and
solemnity characteristic of testimony.‖ (People v. Cage, supra, 40 Cal.4th at
p. 965, 984.) The presence of a city mental health worker and officers outside the
vehicle is irrelevant. Ms. Brand was not part of the police investigation, but
present to assist an emotional and fragile person. The fact that officers were
somewhere at the scene did not transform Eva‘s words to family members into
―testimonial statements‖ as that term is understood in the Crawford context. (Cage
at p. 987.)
3. Eva’s Written Statements to Inspector Bierce the Day After the
Murders
Defendant also challenges the admission of Eva‘s statements to Inspector
Alan Bierce, made during a police interview the day after the murders, which he
reduced to a writing she then signed. In those statements, Eva described seeing
defendant exit her bedroom, walk down the hallway, and turn into the dining room.
Thereafter, she heard gunshots. Eva then saw Versenia enter the hallway, turn
toward the dining room and say something like, ―What are you doing?‖ or ―What
is wrong with you?‖ before hearing a single shot and seeing Versenia fall to the
floor. She heard a total of three shots.
56
Defendant argues that these statements were admissible only if defendant
had a prior opportunity to cross-examine Eva about them. Although he did have
the opportunity to cross-examine Eva at the preliminary hearing, he claims this
cross-examination was ineffective because of her failing memory. He further
argues the statements were not admissible as prior inconsistent statements.
Defendant has forfeited any appellate challenge to this evidence by failing
to object to it below. Before trial, defendant did not challenge the admission of
Eva‘s statements to Inspector Bierce, and the court made no pretrial ruling on their
admission. When Inspector Bierce testified at trial, defense counsel made no
objection when the prosecutor asked him to repeat Eva‘s statements to him. Some
of Eva‘s statements to Bierce were beneficial to defendant‘s case, and defense
counsel solicited them in cross-examining Inspector Bierce.30 Under these
circumstances, defendant had a tactical reason not to block Bierce‘s testimony, and
he cannot now claim that the testimony was admitted in error. (People v. Riel
(2000) 22 Cal.4th 1153, 1185 [rejecting a similar evidentiary claim, noting that the
defendant there ―did not object to this evidence at trial; indeed, he elicited some of
it himself‖].)
30
The defense emphasized the following points in regard to Eva‘s statements
to Inspector Bierce: Eva describing defendant‘s demeanor as normal and
unagitated when he greeted her before the shootings; Eva describing how she
could not see into the dining room where the shots occurred and did not see
defendant after the gunshots; her failure to mention that Versenia fell into her arms
after being shot; and the lack of any statement indicating that Eva believed
defendant was the shooter.
57
B. Evidentiary Rulings Concerning Defendant’s Mental Problems
Defendant contends the court improperly prevented him from introducing
evidence of his mental health problems and from impeaching the testimony of his
family members who claimed not to know of these problems. He also claims the
court treated the prosecution deferentially, allowing that side to present evidence
rebutting defendant‘s claims on this topic. He maintains the court‘s rulings denied
him his federal constitutional rights to due process and to present a defense. His
contentions lack merit. The court properly ruled that the evidence was either
irrelevant or called for inadmissible hearsay, and defendant made no offer of proof
to establish the admissibility of the disputed evidence.
A trial court has broad discretion in determining relevancy, but it cannot
admit evidence that is irrelevant or inadmissible under constitutional or state law.
(People v. Morrison (2004) 34 Cal.4th 698, 724.) ―The proponent of proffered
testimony has the burden of establishing its relevance, and if the testimony is
comprised of hearsay, the foundational requirements for its admissibility under an
exception to the hearsay rule. [Citations.] Evidence is properly excluded when the
proponent fails to make an adequate offer of proof regarding the relevance or
admissibility of the evidence. [Citations.]‖ (Ibid.; Evid. Code, § 1200, subd. (b).)
Defendant complains the court erred in sustaining the prosecution‘s
objections to defense counsel‘s questions: 1) Whether Sammie Lee, defendant‘s
former brother-in-law, had heard ―other family members‖ refer to defendant as
―crazy;‖ 2) Whether Eva had told her neighbor, John Adams, that defendant had
mental problems; 3) Whether Officer Nielsen, in responding to the scene of the
murders, heard either the radio dispatch or Adams mention that defendant had
mental problems; 4) Whether defendant‘s sister, Ruth Cole, had read Officer
Mesones‘s police report, in which he described defendant as ―schizophrenic and
58
paranoid;‖ 5) Whether James, defendant‘s brother, had been told that defendant
became agitated and difficult when he was off his medication; 6) Whether Officer
Nielsen was personally aware of defendant‘s mental condition based on his prior
visits to the Blacksher household; and 7) Whether James thought defendant was
acting in a paranoid manner when defendant visited him a few days before the
murders.
With the exception of the last two rulings, all of defense counsel‘s inquiries
called for hearsay, and defense counsel made no attempt to offer a relevant hearsay
exception. As a result, the court properly sustained the prosecution‘s hearsay
objections.
Furthermore, although Sammie Lee, Ruth Cole, and James each denied
having any prior knowledge of defendant‘s mental problems or related
hospitalizations, none of the proffered hearsay statements impeached their prior
knowledge, but instead involved the beliefs of other persons.31 In addition, the
issue of whether Officer Nielsen or John Adams believed or knew that defendant
had mental problems had no relevance to any matter in the proceedings because
they were not in a position to evaluate defendant‘s mental state in the days leading
up to the murders. Furthermore, Officer Nielsen and Adams did not deny having
knowledge of defendant‘s psychiatric history. Thus, a prior inconsistent statement
exception was not available.
Whether James believed that defendant was ―paranoid that everyone was
against him‖ when defendant visited him a few days before the murders may have
31
In contrast, the evidence the prosecution was allowed to admit, over
defendant‘s objection, did not call for hearsay or the beliefs of other third parties.
Instead, the evidence involved the witness‘ own descriptions of defendant‘s
relationships with Eva and Torey.
59
been relevant, but the court sustained the prosecution‘s objection to this question
on the ground it called for a ―medical conclusion.‖ It appears that defense counsel
was seeking a lay description of defendant‘s behavior, not an expert evaluation of
paranoia. Even assuming an error that defendant did not forfeit, however, James‘s
description of defendant as behaving in a paranoid manner on the night he visited
him would have added little to defendant‘s case. James, his wife Frances, and
defendant‘s brother Elijah all testified in great detail as to defendant‘s behavior
that night, and the jury was free to draw its own conclusion as to whether
defendant behaved abnormally then.
Finally, we reject defendant‘s contention that, despite the rules of evidence,
the federal constitutional right to present a defense prevails over state evidentiary
rules to invalidate the court‘s rulings. Again, defendant forfeited this contention
by not raising it below, and it lacks merit in any event. ―As a general matter, the
ordinary rules of evidence do not impermissibly infringe on the accused‘s right to
present a defense.‖ (People v. Hall (1986) 41 Cal.3d 826, 834.) Defendant fails to
persuade us that the application of these rules prejudiced the ability to defend his
case.
Here, defendant was permitted to introduce extensive evidence relevant to
his mental defense. The excluded evidence was of slight value in comparison to
the substantial evidence admitted. In order to impeach those family members who
denied knowing any of defendant‘s mental history, defendant was permitted to
introduce Dr. Davenport‘s detailed testimony regarding his numerous
hospitalizations and various diagnoses. The jury also learned that defendant had
received government disability payments based on his diagnosis of paranoid
schizophrenia. Finally, they also heard John Adams testify and state in his 911 call
that he believed defendant had had a ―case of mental illness . . . over the years‖
60
and was ―crazy.‖ Given the volume of other evidence admitted under the ordinary
rules of evidence, defendant‘s constitutional challenge to those rules lacks merit.
C. Failure to Limit Cross-examination of Defense Expert
Defendant claims the court improperly permitted the prosecution to cross-
examine Dr. Davenport on matters that went beyond the limited purpose for which
his testimony was admitted: to impeach family members who claimed not to know
of defendant‘s mental problems. He argues the cross-examination elicited
irrelevant and prejudicial testimony and violated his Fifth Amendment right to
remain silent by discussing statements defendant had made during his prior
competency evaluations. We disagree.
The court admitted Dr. Davenport‘s testimony about defendant‘s
psychological history to impeach the family members who claimed to be unaware
of it. The court told the jury that the testimony could be only considered for that
purpose, and not as evidence that defendant suffered from a mental illness when
the charged crimes occurred or that he lacked the mental state to commit them.
In 1975 defendant was committed to Napa State Hospital for suicidal
thoughts. Over defendant‘s objection, the prosecutor cross-examined Dr.
Davenport about the circumstances of that commitment. Through a hypothetical
question, the prosecutor elicited from Dr. Davenport that it would be unusual for a
person not to manifest any acute symptoms of paranoid schizophrenia, assuming
he had the disorder and had received no mental health treatment in the eight-year
period between 1986 and 1994.32 Over defendant‘s objection, Dr. Davenport
32
Defendant also argues he was prejudiced by the prosecutor‘s use of this
hypothetical because it incorrectly assumed defendant received no treatment for
mental illness between 1986 and 1994. But the parties later recognized the error
and stipulated that the jury be told that defendant had received medical treatment
(Footnote continued on next page.)
61
admitted on cross-examination that this gap in treatment would cast doubt on the
accuracy of a schizophrenia diagnosis. Over defendant‘s objection, Dr. Davenport
also testified that 1984 medical records indicated defendant had refused to take his
medications. The prosecutor asked for a definition of ―malingering‖ and
questioned the doctor about his 1984 and 1996 competency evaluations of
defendant. According to Dr. Davenport, in 1996 defendant denied having any
hallucinations, did not appear delusional, understood the charges against him, and
―vehemently denied‖ any involvement in the murders. According to Dr.
Davenport, in 1984 defendant did not manifest any signs of psychosis or mental
disorder, appeared to be able to think rationally, and was otherwise competent to
stand trial.
In chambers, the prosecutor asked to have Dr. Davenport return on the
following court day for additional cross-examination. The court refused and
admonished the prosecutor, stating that he was getting ―way beyond‖ the purpose
of the doctor‘s testimony. The court noted that the defense had not made
―objections in depth‖ to the prosecutor‘s questions about Dr. Davenport‘s
competency evaluations and that the defense had opened the door to some of that
testimony by raising the doctor‘s reports on direct examination. Defense counsel
noted that he had objected ―as long as [he] could, but [he] kept getting overruled.‖
Under the state and federal Constitutions, the privilege against self-
incrimination applies to competency examinations. Consequently, a defendant
cannot be ― ‗convicted by use of his own statements made at a court-compelled
(Footnote continued from previous page.)
for a psychiatric disorder eight times between 1986 and 1996. The effect of any
error was substantially minimized by that stipulation.
62
[competency] examination.‘ ‖ (People v. Weaver (2001) 26 Cal.4th 876, 960,
quoting People v. Arcega (1982) 32 Cal.3d 504, 522; see also People v. Pokovich
(2006) 39 Cal.4th 1240, 1246.) Unless the defendant has made a valid waiver
under Miranda v. Arizona (1966) 384 U.S. 436, the statements he or she makes
during a competency examination enjoy immunity and cannot ―be used by the
prosecution to prove its case-in-chief as to either guilt or penalty‖ or to impeach a
defendant at trial. (People v. Pokovich, supra, 39 Cal.4th 1240, 1246, 1253; see
also People v. Weaver, supra, 26 Cal.4th at p. 960, citing Arcega, supra, 32 Cal.3d
at p. 523, and Estelle v. Smith (1981) 451 U.S. 454.)
Defendant lodged unsuccessful objections to many of the prosecutor‘s
questions on various grounds, but did not specifically object to the questions about
Dr. Davenport‘s competency examinations of defendant. To the extent defendant
failed to lodge a Fifth Amendment objection to the prosecutor‘s questions about
the prior competency examinations, this claim is forfeited. (People v. Weaver,
supra, 26 Cal.4th 876, 961.) We disagree that any objection would have been
futile, given the clarity of case law on this subject and the fact that the court
sustained at least one of defendant‘s objections during the prosecutor‘s cross-
examination. Even if the in-chambers discussion could be construed as evidence
that defense counsel was objecting generally to this evidence, counsel failed to
state any Fifth Amendment basis for the objection. (See People v. Kennedy (2005)
36 Cal.4th 595, 612.) As the court noted, however, it was the defense that began
the inquiry by asking about those interviews on direct examination.
Even assuming error, defendant fails to show prejudice. In cross-
examination, the prosecutor elicited statements defendant had made during the
1996 competency evaluation in which he denied experiencing any hallucinations,
denied being delusional, said he understood the charges against him, and denied
63
guilt. But on redirect examination, Dr. Davenport stated that during his 1996
competency evaluation defendant appeared to be responding to hallucinations and
made delusional statements, and explained it was common for mentally ill persons
to deny their illness. This testimony helped clarify Dr. Davenport‘s earlier cross-
examination testimony and to impeach the testimony of family members who
denied knowing of defendant‘s mental illness. As to defendant‘s statements about
understanding the charges against him and denying his guilt, defendant‘s actions
after the murders showed that he understood his culpability and that he was trying
to deflect guilt from himself and, initially, to avoid apprehension. Before he fled
the state, defendant telephoned his relatives, claiming that masked men were
responsible for gunshots inside his mother‘s home. Moreover, the court instructed
the jury that Dr. Davenport‘s testimony could be considered only to impeach
defendant‘s family members who denied knowing that defendant suffered from
any mental illness, not ―to show or negate the capacity of the defendant to form
[the mental states] required for the commission of the crimes charged.‖ Under
these circumstances, any error was harmless beyond a reasonable doubt. (People
v. Pokovich, supra, 39 Cal.4th 1240, 1254-1255, citing Chapman v. California
(1967) 386 U.S. 18.)
As for the remaining portions of the prosecutor‘s cross-examination, there
was no error. ―It is settled that the trial court is given wide discretion in
controlling the scope of relevant cross-examination.‖ (People v. Farnam, supra,
28 Cal.4th 107, 187.) Moreover, ― ‗it is well settled that the scope of cross-
examination of an expert witness is especially broad; a prosecutor may bring in
facts beyond those introduced on direct examination in order to explore the
grounds and reliability of the expert‘s opinion. [Citations.]‘ ‖ (People v. Loker
(2008) 44 Cal.4th 691, 739, quoting People v. Lancaster, supra, 41 Cal.4th at p.
64
105.) Given that the defense went into some of the details regarding defendant‘s
prior hospitalizations and medications, the court properly allowed the prosecution
to point out that Dr. Davenport did not personally observe defendant during those
commitments and that defendant refused to take his medication, yet had not been
committed in the eight years preceding the murders. This inquiry was relevant to
support the prosecution‘s argument that it was possible for defendant‘s family
members not to have noticed any signs of his mental problems.
D. The Court’s Biased Treatment of Counsel
Defendant contends the court treated counsel differently and made
disparaging remarks to defense counsel, thus aligning itself with the prosecution in
violation of defendant‘s federal constitutional right to due process and a fair trial.
We disagree.
― ‗Although the trial court has both the duty and the discretion to control the
conduct of the trial [citation], the court ―commits misconduct if it persistently
makes discourteous and disparaging remarks to defense counsel so as to discredit
the defense or create the impression it is allying itself with the prosecution‖
[citation]. Nevertheless, ―[i]t is well within [a trial court's] discretion to rebuke an
attorney, sometimes harshly, when that attorney asks inappropriate questions,
ignores the court's instructions, or otherwise engages in improper or delaying
behavior.‖ [Citation.] Indeed, ―[o]ur role . . . is not to determine whether the trial
judge‘s conduct left something to be desired, or even whether some comments
would have been better left unsaid. Rather, we must determine whether the judge's
behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a
perfect, trial.‖ [Citation.]‘ ‖ (People v. McWhorter (2009) 47 Cal.4th 318, 373,
quoting People v. Snow (2003) 30 Cal.4th 43, 78.)
65
At the outset, because defendant raised no objection below on the grounds
he now raises on appeal and did not ask for a jury admonition to address the
court‘s alleged intemperance towards his defense attorneys, he has forfeited this
claim. (People v. McWhorter, supra, 47 Cal.4th at p. 373.)
Even if the issue had been preserved, we have reviewed each complained-of
remark, and find no error.
On one occasion, Defense Counsel Thomas Broome tried to elicit what a
witness believed defendant knew, and the prosecutor objected to the question as
speculative. Defense counsel‘s only response to this objection was, ―It is a
question. It is cross-examination,‖ and the court sustained the objection,
commenting that ―we don‘t throw out the rules of evidence just because you‘re on
cross.‖ On another occasion, Broome tried to introduce Elijah‘s hearsay
statements about Torey‘s behavior as prior inconsistent statements when, in fact,
they were not inconsistent with Elijah‘s testimony. When counsel tried a second
time to admit similar inadmissible hearsay, the court again sustained the
prosecutor‘s objection and said, ―nice try.‖ Counsel, undeterred, unsuccessfully
tried a third time, stating, ―I have to keep trying, judge.‖
It can be difficult to ascertain the emotional content of such exchanges from
a cold record. However, to the extent the court‘s comments to Broome were a
reflection of frustration and irritation at counsel‘s repeated efforts to elicit
inadmissible hearsay, they were not improper. ―[S]uch manifestations of friction
between court and counsel, while not desirable, are virtually inevitable in a long
trial.‖ (People v. Snow, supra, 30 Cal.4th 43, 78-79.)
In beginning her cross-examination of Elijah, Defense Counsel Trina
Stanley commented on the prosecution‘s repeated use of a transcript of Elijah‘s
police interview to refresh his memory during direct examination. She asked
66
Elijah to turn over his copy of the transcript, telling him ―we‘re not going to be
restricted to the script.‖ The prosecutor said the comment was inappropriate and
the court remarked, ―That was uncalled for, Ms. Stanley.‖ Soon after, defense
counsel unsuccessfully tried to elicit from Elijah speculation about whether other
family members knew defendant had mental problems. After the court sustained
two objections on the subject, Stanley, apparently while reading from Elijah‘s
police interview transcript, asked a third question that called for inadmissible
evidence. The court sustained the prosecutor‘s objection and remarked, ―Going
back to the script now, Ms. Stanley?‖ Later, Stanley tried to establish that Elijah
was a reluctant witness by asking him whether police officers were present to
prevent him from leaving the courtroom. The prosecutor objected to this question
as ―really improper,‖ and the court warned defense counsel, ―Please don‘t make
me have to admonish you in front of the jury again.‖ Finally, during his cross-
examination of Dr. Davenport, the prosecutor asked hypothetically whether the
doctor would doubt defendant‘s prior diagnosis of paranoid schizophrenia if he
had received no mental health treatment since 1986. Defense Counsel Stanley
objected, asserting the hypothetical lacked foundation and was ―skirting on
misconduct.‖33 The court told defense counsel, ―I don‘t know how many times I
have to ask you not to do that,‖ and the court told the jury it was improper for the
defense to use ―that kind of language regarding misconduct in an attempt to
persuade you one way or the other about [the prosecutor‘s] conduct.‖
The court‘s comments to Defense Counsel Stanley were appropriate; she
repeatedly asked questions designed to elicit inadmissible evidence. The court‘s
33
Defense Counsel Stanley did not properly explain the basis of her objection
until a subsequent in-chambers discussion. (See ante, fn. 32.)
67
comment relating to defense counsel‘s use of the transcript may have been
sarcastic but did not amount to judicial misconduct.
E. The Admission of Autopsy Photographs
Defendant claims the court erroneously admitted autopsy photographs of
the victims that were irrelevant, cumulative, and unduly prejudicial in violation of
his federal constitutional rights to due process and a fair trial. The complained-of
photographs include two photographs showing the exit and entry wounds in the
back of Torey‘s head (People‘s exhibits Nos. 57 and 58), one photograph showing
the entry wound to Versenia‘s head (People‘s exhibit No. 61), and one photograph
showing the wound to her right forefinger (People‘s exhibit No. 64). The four
photographs were properly admitted.
Before trial, defendant filed a motion stating a general objection to the
admission of ―all evidence of photographs of the victims . . . [taken] after they
were deceased‖ as irrelevant, cumulative, inflammatory, and prejudicial. The
motion identified no individual photographs and offered to stipulate to the victims‘
deaths and the location of their wounds. But later, at the hearing to determine the
admissibility of the particular photographs that the prosecutor sought to introduce,
defense counsel only contended the autopsy photographs as a group were
cumulative to the photos taken at the crime scene. The only autopsy photographs
the defense specifically objected to were two additional photographs: one showing
Versenia‘s face (People‘s exhibit No. 63) and the other a closer view of the wound
to her forefinger (People‘s exhibit No. 65). The court ruled that People‘s exhibits
Nos. 57, 58, 61, and 64 were admissible but excluded exhibits Nos. 63 and 65 as
cumulative. At the end of the guilt phase, however, exhibits Nos. 63 and 65 were
68
pronounced admitted by the court and given to the jury without objection by either
party.34
As to People‘s exhibits Nos. 57, 58, 61, and 64, defendant has forfeited any
claim that they were inflammatory and prejudicial. Although defendant‘s written
motion made a general objection to any ―bloody photos of the victims‖ as
prejudicial and inflammatory , that objection was insufficient to preserve the issue
for appeal because it did not identify any particular autopsy photograph, making it
impossible for the court to ―determine the evidentiary question in its appropriate
context.‖ (People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on another
point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; see also People v.
Rodrigues (1994) 8 Cal.4th 1060, 1172.) The autopsy photographs were not
identified to the court until the hearing to determine their admissibility. At that
hearing defense counsel failed to renew his specific objection to exhibits Nos. 57,
58, 61, and 64 as being prejudicial and inflammatory.
In any event, all of the admitted photographs were relevant to the
prosecution‘s case and none were ―so gruesome as to have impermissibly swayed
the jury.‖ (People v. Smithey (1999) 20 Cal.4th 936, 974.) In fact, the autopsy
photographs depict cleaned wounds showing far less blood than photographs of the
crime scene showing the position of the bodies. They were also not cumulative to
the other photographs or other evidence. The autopsy photographs were the only
evidence showing the nature and placement of the fatal wounds, and ―[t]he
prosecution was not obligated to ‗accept antiseptic stipulations in lieu of
photographic evidence.‘ ‖ (People v. Loker, supra, 44 Cal.4th at p. 705, quoting
34
Defendant does not make any contention on appeal regarding People‘s
exhibits Nos. 63 and 65, and has, in any event, forfeited this claim.
69
People v. Pride (1992) 3 Cal.4th 195, 243.) Moreover, the photograph showing
the wound to Versenia‘s finger indicated she was in a defensive position just
before she was shot, which was relevant to issues of malice and intent to kill.
(People v. Burney (2009) 47 Cal.4th 203, 243.)
Finally, although the court, in contravention of its earlier ruling, admitted
exhibits Nos. 63 and 65, their admission was of no significance. Exhibit No. 63,
the autopsy photograph of Versenia‘s face, showed blood flow across her face in
virtually the same manner as exhibit No. 40, which was taken at the crime scene
and admitted into evidence. Exhibit No. 65, which was a closer view of
Versenia‘s forefinger, was not misleading and was relevant because it corroborated
testimony that her finger was ―almost severed‖ by the bullet. Although exhibits
Nos. 63 and 65 may have had some overlap with other photos, they were neither
confusing nor misleading.
F. Prosecutorial Misconduct in Guilt Phase Closing Argument
Defendant contends the prosecutor engaged in various acts of misconduct
during his guilt phase closing argument in violation of his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights.35 Defendant fails to show entitlement to relief.
35
― ‗A prosecutor‘s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process.‘ [Citations.] Under California law, a
prosecutor who uses deceptive or reprehensible methods of persuasion commits
misconduct even if such actions do not render the trial fundamentally unfair.
[Citation.] Generally, a claim of prosecutorial misconduct is not cognizable on
appeal unless the defendant made a timely objection and requested an admonition.
[Citation.]‖ (People v. Doolin (2009) 45 Cal.4th 390, 444.) In order to be entitled
to relief under state law, defendant must show that the challenged conduct raised a
reasonable likelihood of a more favorable verdict. In order to be entitled to relief
under federal law, defendant must show that the challenged conduct was not
harmless beyond a reasonable doubt. (People v. Cook (2006) 39 Cal.4th 566, 608.)
70
Defendant claims the prosecutor violated defendant‘s Fifth Amendment
right to remain silent by making two references to statements defendant had made
to Dr. Davenport during his 1996 competency evaluation. In the first, the
prosecutor stated defendant had claimed someone else had committed the murders
and, according to Dr. Davenport, had ―vehemently denied‖ guilt and had claimed
―the masked men came in the house and did this.‖ Defense counsel interrupted,
and said, ―That‘s not it,‖ and the court replied, ―Sustained.‖ In the second, the
prosecutor again mentioned that defendant had ―vehemently denied the charges‖ to
Dr. Davenport, but the jury would be able ―to tell‖ the doctor ―the truth of what
[defendant] did that day —.‖ Defense counsel again interrupted with an objection
to the form of the statement, but the court overruled the objection.
Defendant has forfeited this claim on appeal for several reasons. First, as
discussed ante at page 63, despite the immunity attached to such statements,
defense counsel did not object when the prosecutor elicited defendant‘s
competency statements from Dr. Davenport during cross-examination. When
evidence is admitted without objection, it is difficult ―to fault the prosecutor for
simply referring to [statements] that had been admitted by the court.‖ (People v.
Schmeck (2005) 37 Cal.4th 240, 301.) Second, defendant‘s objections during the
prosecutor‘s closing argument were clearly not made on Fifth Amendment
grounds. Defense counsel‘s first objection of ―[t]hat‘s not it‖ simply noted that
defendant had never said the masked men had committed the murders, only that he
saw them enter the house. Defense counsel‘s second objection was to the form of
the prosecutor‘s statement asking the jury to send a message to Dr. Davenport.
These objections failed to inform the court of the Fifth Amendment issue so it
could consider the interest at stake and make a fully informed ruling. (See People
v. Partida (2005) 37 Cal.4th 428, 435.) Third, defendant did not request an
71
admonition that the jury not consider defendant‘s statements to Dr. Davenport
either at the time of the doctor‘s testimony or during the prosecutor‘s closing
arguments. ―Generally, a claim of prosecutorial misconduct is preserved for
appeal only if the defendant objects in the trial court and requests an admonition,
or if an admonition would not have cured the prejudice caused by the prosecutor‘s
misconduct. [Citations.]‖ (People v. Ledesma (2006) 39 Cal.4th 641, 726.)
Defendant fails to show why an objection and admonition would have been futile.
Moreover, even assuming defendant has not forfeited this claim, and
assuming the prosecutor‘s comments violated the immunity afforded to
defendant‘s statements made during his competency examination, defendant fails
to show prejudice. As discussed ante at page 63, the jury heard evidence that
defendant tried to deny any culpability by blaming the murders on masked gunmen
he saw enter his mother‘s house. Accordingly, the complained-of statements
touched on other, properly admitted, remarks made by defendant. As explained in
People v. Noguera (1992) 4 Cal.4th 599, 627, a claim of prejudice ―is substantially
undercut, however, by similar evidence in the record which is not challenged.‖
Defendant next argues the prosecutor improperly argued matters outside the
record concerning Eva‘s memory and what she may have witnessed during the
shootings. The prosecutor argued Eva had been traumatized by the murders, but
suggested her inability to recall certain facts damaging to defendant‘s case in her
preliminary hearing testimony was due to her bias as his mother. About her prior
statements, the prosecutor suggested that ―the only way [Eva] could have said the
things she did is because she was able to figure out what happened inside the
house.‖ Defense counsel objected to these statements as improper or as referring
to matters outside the record, but the court properly overruled the objections. It
was not unreasonably speculative to argue that Eva was biased in favor of her son
72
or that she was able to conclude that defendant had shot the victims. The
prosecutor‘s statements were ―reasonable inferences or deductions that may be
drawn from the evidence.‖ (People v. Ledesma, supra, 39 Cal.4th at p. 726.)
Defendant also takes issue with statements the prosecutor made during
argument about whether defendant‘s family members had seen signs that he was
mentally ill. First, the prosecutor claimed no one in defendant‘s family had seen
signs of mental illness. In response to defense counsel‘s objection, the court
corrected the prosecutor and said, ―there were some people who said yes.‖ Given
that the court ―promptly and properly corrected the erroneous statement of the
prosecutor,‖ any error was avoided. (People v. Williams (1988) 44 Cal.3d 883,
962.) The prosecutor also argued that defendant‘s family members did not know
of defendant‘s mental health history because, according to Dr. Davenport‘s
testimony, the treatment occurred while defendant was incarcerated. The defense
unsuccessfully objected. Although Dr. Davenport did not specifically state that
defendant‘s mental health records were mainly from his periods of incarceration,
the doctor testified that he was relying on medical records provided by ―Criminal
Justice Mental Health.‖ In addition, Elijah Blacksher testified that defendant had
―spent the majority of his life in jail.‖ The prosecutor‘s comment fell within the
―wide latitude‖ of advocates ―to make fair comment upon the evidence.‖ (People
v. Ledesma, supra, 39 Cal.4th at p. 726)
Defendant also contends the prosecutor improperly suggested that
defendant wanted ―no part of the special circumstance‖ because ―he knows what it
means‖ and that he believed the defense was going to argue that defendant had
committed the murders. But the court sustained defendant‘s objection that it was
improper for the prosecutor to discuss what the defense might argue. In any event,
we have never categorically prohibited a prosecutor from making fair comments
73
on anticipated trial strategy, and nothing said here portrayed defense counsel
unfairly. (See People v. Wilson (2005) 36 Cal.4th 309, 338-339; People v.
Davenport (1995) 11 Cal.4th 1171, 1213; People v. Davis (1995) 10 Cal.4th 463,
538-539.)
Defendant next argues the prosecutor mischaracterized the record regarding
defendant‘s Social Security disability payments, as reflecting a diagnosis of
paranoid schizophrenia. The prosecutor noted that the jury appeared unsettled
when the defense introduced the document, and said, ―we have no information
available concerning [defendant‘s] medical condition or the names or addresses of
his treating or diagnostic physician.‖ Defendant claims the prosecutor‘s comments
mischaracterized the stipulation that accompanied the document, but, in fact, the
prosecutor quoted the stipulation verbatim. The stipulation made clear that the
supporting documentation for the disability payments was unavailable. The
prosecutor properly emphasized what the stipulation made clear: it was impossible
to review how defendant was diagnosed or found to qualify for the disability
payments. Finally, defendant fails to show that the prosecutor improperly
characterized the jury as being ―unsettled‖ when the court read the lengthy
stipulation for the Social Security records and then allowed the jury to review the
one-page document, which cryptically lists only the dates and payment amounts
defendant received. In any event, the defense successfully objected to the
description. It is difficult to discern any possible prejudice. Jurors surely knew
whether they were ―unsettled‖ or not and their lack of composure over a
government document could not have unduly influenced the verdict.
G. Instructional Error Concerning Defendant’s Mental State
Defendant contends the court‘s instructions erroneously led the jury to
believe it could not consider whether defendant‘s mental illness precluded him
74
from forming the intent to commit murder. Specifically, he claims the court‘s
instruction on the presumption of sanity and the failure to give a requested
pinpoint instruction hampered his mental illness defense and lowered the
prosecution‘s burden of proof in violation of his due process rights.
The court properly instructed the jury that: ―In the guilt trial or phase of
this case, the defendant is conclusively presumed to have been sane at the time []
the offenses . . . are alleged to have been committed.‖ Defense counsel did not
object to this instruction and requested no further definition of sanity. Defendant
now argues that this instruction effectively negated the defense that because of his
mental illness he could not form the mental state required for murder. Yet the jury
was given CALJIC No. 3.32, which is the standard instruction for this very
defense.36 As defendant acknowledges, we rejected an identical argument in
People v. Coddington (2000) 23 Cal.4th 529, 584-585, overruled on other grounds
in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13, and we are
neither persuaded nor bound by any contrary decisions of the lower federal courts.
(People v. Avena (1996) 13 Cal.4th 394, 431)
36
The court instructed the jury with CALJIC No. 3.32 as follows: ―You have
received evidence regarding a mental disease, mental defect or mental disorder of
the defendant at the time of the commission of the crime[s] charged in counts one
and two or the lesser crimes thereto, namely, second degree murder and voluntary
manslaughter. You should consider this evidence solely for the purpose of
determining whether the defendant actually formed the required specific intent,
premeditated and deliberated or harbored malice aforethought, which are elements
of the crime charged in counts one and two, namely, first-degree murder; whether
he formed the required specific intent or harbored malice aforethought, which are
elements of the lesser crime of second-degree murder; or whether he formed the
required specific intent, which is an element of the lesser crime of voluntary
manslaughter.‖
75
Defendant also requested a pinpoint instruction similar to CALJIC No. 3.32
but with the addition that, if the jury believed defendant suffered from mental
illness, then in order to find him guilty of first degree murder it must also be
―convinced beyond a reasonable doubt that defendant did not act while under the
influence of‖ his mental illness; if not so convinced, then the jury was required to
conclude that the illness ―negated the specific intent required for first degree
murder.‖ The court rejected this instruction, concluding it was ―basically covered‖
by CALJIC No. 3.32.
Defendant‘s proposed instruction is both an incorrect statement of law, and
confusing to the point of near incomprehensibility. Unlike CALJIC No. 3.32, the
proposed instruction would have required the jury to presume that defendant‘s
mental illness negated the mental state required for first degree murder if it was not
convinced that he did not act under the influence of that mental illness. The mere
fact that defendant acted under the influence of mental illness does not necessarily
mean he lacked the required mental state. The question, as it is properly phrased in
CALJIC No. 3.32, is ―whether the defendant actually formed the required specific
intent.‖ This question is considered in the context of any evidence regarding
mental illness. Defendant‘s proposed instruction would, in effect, have resurrected
the defense of diminished capacity, a defense this state has long rejected. (§ 28,
subd. (a) [―Evidence of mental disease, mental defect, or mental disorder shall not
be admitted to show or negate the capacity to form any mental state . . . .‖].)
To the extent defendant argues the proposed instruction was necessary to
establish it was the prosecution‘s burden to prove beyond a reasonable doubt that
defendant had the requisite mental state for first degree murder, other instructions
conveyed the same point. No further instruction was required.
76
H. Instructional Error on Manslaughter
The parties agree that the court erroneously instructed the jury that an intent
to kill is a necessary element of voluntary manslaughter. Defendant argues the
error denied him his federal constitutional right to due process and to correct
instructions to support his theory of defense. There was no prejudicial error.
Murder involves the unlawful killing of a human being with malice
aforethought, but a defendant who intentionally commits an unlawful killing
without malice is guilty only of voluntary manslaughter. (People v. Breverman
(1998) 19 Cal.4th 142, 153.) For purposes of voluntary manslaughter, an
intentional unlawful killing can lack malice when the defendant acted under a
― ‗sudden quarrel or heat of passion‘ ‖ or when the defendant acted under ―[an]
unreasonable but good faith belief in having to act in self-defense.‖ (Id. at p. 154.)
Two years after the trial here, in People v. Lasko (2000) 23 Cal.4th 101, we
clarified that voluntary manslaughter may also apply where a defendant ―acting
with conscious disregard for life and knowing that the conduct endangers the life
of another, unintentionally but unlawfully kills in a sudden quarrel or heat of
passion.‖ (Id. at p. 104.) We further explained that ―the presence or absence of an
intent to kill is not dispositive of whether the crime committed is murder or the
lesser offense of voluntary manslaughter‖ (id. at p. 110) and that it was error to
instruct the jury otherwise. (Id. at p. 111.) Accordingly, the trial court erred here
when it instructed the jury that voluntary manslaughter requires a finding that the
―killing was done with the intent to kill.‖
But there was no evidence supporting a manslaughter theory, let alone any
theory of unintentional murder. Defendant repeatedly stated his intention to kill
Torey days before the murders, and rejected pleas that he reconsider. According to
Frances Blacksher, defendant also said if Versenia got in the way, he would kill
77
her, too. Defendant had expressed dissatisfaction that Versenia‘s family was
living in his mother‘s house and that Versenia had helped their mother obtain a
restraining order against him. These circumstances and the time over which
defendant repeated his complaints are not consistent with heat of passion.
The brief duration between defendant‘s entry into the home and the firing of
shots does not comport with a sudden quarrel and there was no evidence of such a
quarrel. The physical evidence showed that Torey was shot from behind, in his
sleep. Defendant does not articulate how Torey could have incited violence while
he was asleep and facing away from defendant. The fact that Versenia came to
Torey‘s aid immediately thereafter could not constitute sufficient provocation to
generate a sudden quarrel or heat of passion for purposes of voluntary
manslaughter. ―Indeed, ‗[n]o case has ever suggested . . . that such predictable
conduct by a resisting victim would constitute the kind of provocation sufficient to
reduce a murder charge to voluntary manslaughter.‘ ‖ (People v. Kanawyer (2003)
113 Cal.App.4th 1233, 1247, quoting People v. Jackson (1980) 28 Cal.3d 264,
306.)
Therefore, although the court gave a manslaughter instruction, defendant
received a benefit to which he was not entitled and, by any standard, could not
have been harmed by any error in failing to give additional manslaughter
instructions setting forth the alternate voluntary manslaughter theory we described
in People v. Lasko. (See People v. Steele (2002) 27 Cal.4th 1230, 1253-1254.)
I. Instructional Error on Hearsay Evidence
Defendant contends the court erred by not giving the jury his two proposed
pinpoint instructions concerning Eva Blacksher‘s hearsay statements, and that this
error violated his state and federal constitutional rights to due process and to
present a defense. Specifically, he claims the instructions actually given deprived
78
his right to have the jury decide whether Eva had witnessed the shootings and
whether her statements were spontaneous as a result. The claim is both forfeited
and lacks merit.
Defendant‘s first proposed instruction would have told the jury that if the
prosecution could not prove by a preponderance of the evidence that ―Eva
Blacksher was able to perceive the shooting of‖ the victims, then the jury could not
consider in its deliberations her statements implicating defendant. His second
proposed instruction stated that if the prosecution could not prove by a
preponderance of the evidence that ―Eva Blacksher actually made any statements
implicating‖ defendant in the shootings, then the jury could not consider such
statements in its deliberations. Both proposed instructions further cautioned the
jury not to rely ―upon such evidence, in whole or part, to convict the defendant
unless the prosecution has proven the existence of the preliminary fact beyond a
reasonable doubt.‖
On the record, the court acknowledged these proposed defense instructions,
stated that it had conferred with defense counsel, and explained that counsel had
agreed to a modified ―special instruction‖ derived from the instruction for
Evidence Code section 1240. This special instruction told the jury that Eva‘s
statements were admitted as spontaneous statements, explained that such
statements were admissible if they met the criteria for spontaneous statements,
listed those criteria, and stated that, ―Whether the declarant perceived the events
described in the statements and the weight to which these statements are entitled is
a matter for you to decide.‖
Given that defense counsel specifically agreed to substitute the instruction
ultimately given to the jury for the ones they had previously requested, defendant
has forfeited this claim. In any event, there was no error. The instruction given
79
properly told the jury to decide whether Eva had actually perceived the events
described in her statements. Defendant, therefore, was not deprived of his right to
have the jury determine this issue. (Evid. Code, § 403, subds. (b), (c)(1).)
Defendant also complains that the instruction given precluded the jury from
determining whether Eva‘s statements were in fact spontaneous. This is not a jury
question. A determination of ―[w]hether the requirements of the spontaneous
statement exception are satisfied . . . is vested in the court, not the jury.‖ (People
v. Poggi, supra, 45 Cal.3d at p. 318.) The only exception to this rule is where the
preliminary fact establishing the admissibility of the evidence is also ―a fact in
issue in the action‖ because ―it would be prejudicial to the parties for the judge to
inform the jury how he had decided the same factual question that it must decide in
determining the merits of the case.‖ (Evid. Code § 405, subd. (b); Cal. Law
Revision Com. com., reprinted at 29B pt. 1 West‘s Ann. Evid. Code (1995 ed.)
foll. § 405, p. 377.) Whether Eva had personal knowledge of the facts contained in
her statements was an issue for the jury, as they were properly told. Whether Eva‘s
statements were spontaneous was not ―a fact in issue in the action.‖ (Evid. Code
§ 405, subd. (b).) The spontaneity of the statements was a legal question for the
court to resolve. The instruction did not suggest the court had already decided that
Eva‘s statements were accurate. There was no error.
J. Cumulative Guilt Phase Error
Defendant argues we must reverse his conviction because of the cumulative
effect of errors in the guilt phase of his trial. We assumed for the sake of argument
that the prosecution improperly elicited statements from defendant‘s competency
examination, but concluded that those statements were similar to defendant‘s other
admissible statements in which he shifted blame for the murders. We also
assumed for the sake of argument that it was error not to allow defendant‘s brother
80
to describe defendant‘s behavior as ―paranoid,‖ but concluded that this description
would have been of marginal value and, given the extensive psychiatric testimony,
its exclusion was not prejudicial. Considered cumulatively, the assumed errors
described above could not have prejudiced defendant at the guilt phase.
IV. SANITY PHASE
A. Failure to Limit Cross-Examination of Defense Witness
Defendant faults the court for admitting, over his objection, Ruth Gades‘s
testimony on cross-examination that, in light of her intervening 20 years of
professional experience, she now doubted her original diagnoses of defendant in
1978 and 1980. Defendant argues that this cross-examination was irrelevant and
prejudicial in violation of his federal constitutional rights to due process and a fair
trial. We disagree.
On direct examination, Ruth Gades, who had a master‘s degree in
psychology and was a licensed social worker, described her intake evaluations of
defendant in 1978 and 1980 when he was involuntarily committed to Highland
Hospital while incarcerated. Defense counsel asked Gades her diagnosis of
defendant in each evaluation. In 1978, she concluded defendant suffered from
psychotic depression with auditory and visual hallucinations and suicidal ideation.
In 1980, she diagnosed him with psychotic depression.
On cross-examination, the prosecutor asked whether Gades would still give
defendant the same diagnoses. Defense counsel objected on relevancy and
foundational grounds, 37 but the court overruled the objection, stating, ―You asked
37
Respondent contends defendant failed to object below on the federal ground
he now asserts, but the court had granted defendant‘s pretrial motion to
―federalize‖ all his objections. In any event, the new federal arguments are based
on factual or legal standards no different from those the trial court was asked to
(Footnote continued on next page.)
81
her what her opinion was, [the prosecutor] can certainly cross on that.‖ Gades then
explained that her intervening 20 years of experience would cause her to doubt
whether defendant‘s hallucinations were genuine and that it was very common for
inmates to exaggerate their symptoms to gain access to a mental health facility.
Although defendant claims he did not call Gades as an expert witness,
defense counsel went beyond asking about her observations of defendant. He
asked directly for her prior diagnosis and clinical impressions. Thus, the defense
questions were clearly ―directed toward medical expertise,‖ going beyond mere lay
opinion and into ― ‗a subject that is sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact.‘ ‖ (People v. Thornton
(2007) 41 Cal.4th 391, 449, quoting Evid. Code, § 801, subd. (a).) After the
defense solicited Gades‘s prior diagnoses, opposing counsel was entitled to cross-
examine the witness about what those diagnoses were based on and whether the
expert witness remained confident in the accuracy of her conclusions. (See People
v. Smith (2005) 35 Cal.4th 334, 359.) The cross-examination was proper.
B. The Court’s Biased Treatment of Counsel
Defendant again argues the court made inconsistent evidentiary rulings at
the sanity phase that were biased in favor of the prosecution, in violation of his
federal constitutional right to due process and a fair trial. Defendant argues the
court treated the parties differently in allowing and disallowing certain questioning
of defense witness Dr. William Pierce. Defendant also argues the court allowed
(Footnote continued from previous page.)
apply, and merely raise the additional legal consequence of violating the federal
Constitution. ―To that extent, defendant‘s new constitutional arguments are not
forfeited on appeal.‖ (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
82
the prosecution to take advantage of its own discovery violation in cross-
examining Dr. Pierce. There was no error.
As with his similar guilt phase claim (see ante at pages 65-68) defendant
raised no objection below on the grounds he now raises on appeal, and thus has
forfeited this claim. (People v. McWhorter, supra, 47 Cal.4th at p. 373.)
Even had the issue been preserved for appeal, the court‘s evidentiary rulings
concerning Dr. Pierce‘s testimony were not inconsistent and there was no judicial
misconduct.
Defendant faults the court for not permitting him to ask Dr. Pierce, over the
prosecution‘s objections on grounds of speculation, whether defendant‘s mental
health status would have been assessed and what would have happened to him had
he been involuntarily committed on the night he was arrested for appearing at
Eva‘s house with a baseball bat. Defendant also faults the court for allowing the
prosecution to ask Dr. Pierce, over defense objections, how defendant would have
acted if he were suffering from a psychotic episode at the time of the murders,
whether the doctor believed there was a plausible reason why defendant went to
Reno immediately after the murders, and whether defendant‘s telephone calls to
his siblings immediately after the murders indicated he was lying to protect
himself. Defendant also faults the court for allowing the prosecution to ask Dr.
Pierce whether defendant intended to kill Torey, over the defense objection that
the question called for a legal conclusion. These rulings were not inconsistent and
are not evidence of judicial misconduct.
The defense questions concerning what would have happened to defendant
or how he might have been diagnosed had he been involuntarily committed called
for improper speculation. The prosecutor‘s questions, on the other hand, were not
rooted in speculation, given that defendant had offered Dr. Pierce‘s expert opinion
83
that defendant had suffered numerous psychotic episodes in the past and was
probably experiencing one the night he appeared at Eva‘s home with the baseball
bat. On cross-examination, Dr. Pierce said he did not know for certain whether
defendant was also suffering from a psychotic episode at the time of the murders,
but stated that his examination of defendant and his past history indicated he
―definitely has a potential to have psychotic episodes,‖ and it was ―very possible‖
defendant was in a psychotic state when he shot the victims.
As we have already noted, ― ‗the scope of cross-examination of an expert
witness is especially broad‘ ‖ and ― ‗a prosecutor may bring in facts beyond those
introduced on direct examination in order to explore the grounds and reliability of
the expert‘s opinion. [Citations.]‘ ‖ (People v. Loker, supra, 44 Cal.4th at p. 739,
quoting People v. Lancaster, supra, 41 Cal.4th at p. 105.) Given Dr. Pierce‘s
opinions and his testimony that psychotic episodes severely disrupt cognitive
functioning, the prosecutor‘s questions were all relevant to the question of whether
defendant was suffering from a psychotic episode when the murders occurred.
The court‘s rulings, therefore, were not inconsistent, but merely reflected the fact
that cross-examination of expert witnesses is not narrowly circumscribed.
Finally, although the prosecution was late in disclosing a tape recording of
defendant‘s statements to police, the recording was turned over before trial began.
As a result, defense counsel had nearly three months to allow Dr. Pierce to listen to
that tape before his appearance at the sanity phase. The doctor did not do so.
Under the circumstances, there was nothing unfair in allowing the prosecutor to
ask Dr. Pierce whether he had listened to that tape.
C. Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct during his sanity
phase closing argument in violation of his Sixth, Eighth and Fourteenth
84
Amendment rights under the United States Constitution. There was no prejudicial
error.
We agree with defendant that the prosecutor committed misconduct by
suggesting he did not call any experts at the sanity phase because it would have
wasted the jury‘s time. In his opening statement for the sanity phase, the
prosecutor claimed he intended to call ―two mental health experts‖ to show that
defendant was capable of planning and carrying out a course of action and was
―goal oriented.‖ But the prosecutor called no such witnesses during the sanity
phase. In closing argument, the prosecutor said, ―I really thought I was going to
call two psychologists and two psychiatrists,‖ but then explained that during the
testimony of defense expert Dr. Pierce he had seen the jury ―falling asleep,
shuffling, waiting for him to close that book and stop this mess and come on up
here and get real in 1998 instead of flashing back in the past in 1978.‖ The
prosecutor continued, ―I said, man, if I put on any psychiatric testimony these
people are going to kill me.‖ Defense counsel interrupted and objected to the
comment as ―inappropriate and irrelevant,‖ but the court overruled the objection
stating, ―It is all right.‖ The prosecutor continued, claiming the jury would ―have
[his] head,‖ so he ―said no.‖ The prosecutor further explained, ―I don‘t think Dr.
Pierce had anywhere to go, so I cut the case short and deal [sic] with him on the
basis of his own testimony because he didn‘t get there.‖
To the extent the prosecutor claimed Dr. Pierce was not useful to
defendant‘s case, his argument was permissible comment on the evidence. But the
prosecutor also implied he had evidence that defendant was not insane, but did not
want to bore the jury or waste its time with not just two, but four expert witnesses.
This was improper. (People v. Boyette (2002) 29 Cal.4th 381, 452 [misconduct
where the prosecutor suggested ―she had evidence in her possession that supported
85
her line of questioning, but simply chose not to present it in the interest of saving
the jury time‖]; People v. Hill (1998) 17 Cal.4th 800, 829 [misconduct where the
prosecutor told the jury, ― ‗I could have had somebody come in here and analyze
[the alleged narcotics]‘ ‖ (italics omitted)].)
But the error was not prejudicial on either state or federal grounds.38
Defendant was unable to present any expert testimony supporting his claim of
insanity at the time of the killings. At most, his expert testified that he ―might‖
have been insane. Moreover, the court instructed the jury only to rely on evidence
presented in court and not treat counsel‘s comments as evidence. (See People v.
Boyette, supra, 29 Cal.4th at p. 453.) Under these circumstances, the prosecutor‘s
improper remarks had little significance.
Defendant next contends the prosecutor referred to evidence outside the
record when he argued that defendant‘s ―hook into Social Security was his
mother‘s disability of some kind.‖ He claims this argument contravened the
parties‘ stipulation that defendant had received disability payments due to a
diagnosis of paranoid schizophrenia. But defendant ignores the fact that Ruth Cole
had testified, without objection, that defendant did not want to work, wanted to
―beat the system,‖ and had his first exposure to disability payments as a teenager
when his mother became disabled and could not work. The prosecutor made the
comment not to undermine the stipulation but to argue that defendant was a ―con
man‖ who learned early on how to take advantage of ―the system.‖ This was
permissible argument based on the evidence. (People v. Stansbury (1993) 4
Cal.4th 1017, 1059 [―The suggestion that defendant was a ‗con man‘ was an
38 See ante footnote 35.
86
appropriate comment, in colorful terms, upon the evidence to be introduced at
trial‖].)
Defendant argues the prosecutor in two instances improperly injected his
personal beliefs into his closing arguments, but defense counsel made no
objections to any of the comments of which he now complains. Defendant
contends any objections would have been futile. But the record demonstrates that
defense counsel had no hesitation in lodging objections to the prosecutor‘s closing
arguments at either the guilt or sanity phases, and the court sustained many of
defendant‘s objections. In any event, there was no misconduct.
Defendant first complains the prosecutor improperly maligned the
credibility of defense expert Dr. Pierce by stating his belief that ―the doctor looked
ridiculous and didn‘t make any sense.‖ But the prosecutor prefaced these remarks
by explaining that Dr. Pierce‘s opinion was based in part on information provided
by defendant, which he argued was untrustworthy. This was permissible argument
based on the evidence. (People v. Pinholster (1992) 1 Cal.4th 865, 948 [A
prosecutor may argue ―that defense witnesses are not entitled to credence . . . [and]
argue on the basis of inference from the evidence that a defense is fabricated‖].)
Defendant also complains the prosecutor improperly injected his personal
beliefs by stating he did not ―like the way it invaded your province when
[defendant] sat in court and laughed‖ while Deputy District Attorney Richard
Moore testified about defendant‘s statements to police. Counsel called defendant‘s
behavior ―cold‖ and ―wrong.‖ Defendant claims there was no indication the jury
actually saw this conduct. But the prosecutor mentioned he was ―glad [the jury]
saw it,‖ and the fact that defendant did not object to this line of argument suggests
defendant‘s behavior was readily observable during Moore‘s testimony.
Moreover, defense counsel, in his closing arguments at the sanity phase, likewise
87
noted the jury was witness to bouts of defendant‘s inappropriate laughter during
the course of the trial. The prosecutor, therefore, was addressing what had
transpired during trial, not merely describing his personal belief as to defendant‘s
demeanor.
It is misconduct, however, for a prosecutor to comment on a nontestifying
defendant‘s courtroom demeanor or behavior during the guilt phase of the trial.
(People v. Heishman (1988) 45 Cal.3d 147, 197; People v. Smith (2007) 40 Cal.4th
483, 524; People v. Boyette, supra, 29 Cal.4th 381, 434.) We have refused to
apply this rule during the penalty phase when a defendant‘s character is placed in
issue as a mitigating factor. ―Under those circumstances it was proper for the jury
to draw inferences on that issue from their observations of defendant in the
courtroom and therefore proper for the prosecutor to base a closing argument on
such observations.‖ (People v. Heishman, supra, 45 Cal.3d at p. 197.)
This exception applies even more strongly here because defendant‘s
demeanor was a significant issue in determining his sanity. In particular,
according to Dr. Levin, defendant‘s propensity to laugh inappropriately during his
prior examinations and hospitalizations was a symptom relevant to his previous
diagnoses of mental illness. As already discussed, defense counsel raised this very
issue during closing argument and referred to defendant‘s ―inappropriate laughter‖
and ―bizarre‖ demeanor during the trial. Given the circumstances, the prosecutor
made fair comment on defendant‘s demeanor.
D. Cumulative Sanity Phase Error
The only error we have identified during the sanity phase was the
prosecutor‘s suggestion that he could have called four experts in his favor, but did
not do so in order to save the jury‘s time. We concluded the error could not have
88
been prejudicial. Consequently, there is no cumulative effect of sanity phase error
to consider in this case.
V. PENALTY PHASE
A. Victim Impact Evidence
Members of the Blacksher family testified about the lasting effects of the
murders on their lives. (See ante, at p. 18.) Defendant contends the admission of
this evidence violated his state and federal rights to due process and a reliable
penalty determination. We have previously rejected the contention that section
190.3, factor (a) is unconstitutionally vague as to the scope of admissible victim
impact evidence, and we reject defendant‘s further claim that such evidence should
be limited to: (1) testimony by family members who were personally present at the
scene during or immediately after the killing; (2) circumstances known or
reasonably foreseeable to the defendant; and (3) the testimony of a single witness.
(People v. Dykes (2009) 46 Cal.4th 731, 783.)
Defendant further argues that family members should not have been able to
testify as to the financial impact of the murders and the lasting effects of the
murders on their emotional and employment lives. Defendant made no specific
objection to this testimony below. Even assuming he has not forfeited this claim,
the complained-of testimony did not invite ―a purely irrational response from the
jury,‖ nor was it ― ‗so unduly prejudicial‘ as to render the trial ‗fundamentally
unfair.‘ ‖ (People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 1056-1057.) We
have previously found similar testimony relevant to the impact of defendant‘s
crimes. (People v. Jurado (2006) 38 Cal.4th 72, 131-134, and cases cited therein.)
B. The Exclusion of Mitigating Evidence
Defendant argues the trial court erred in sustaining the prosecutor‘s
objections to questions he posed to his sister, Georgia Hill, about what other family
89
members knew of defendant‘s mental problems. He also faults the trial court for
sustaining the prosecution‘s objection to the question of whether Sammie Lee,
Versenia‘s former husband, believed that the Blacksher family had ―seen enough
death.‖ He claims the rulings excluded potential mitigating evidence in violation
of his rights to present a defense, to confront witnesses, to due process, and to a
reliable sentencing determination under the Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution. There was no prejudicial error.
When defense counsel tried to ask Georgia what she thought her older
siblings did not understand about defendant or why they hated him, the court
sustained the prosecution‘s objections as calling for speculation. The court did not
abuse its discretion in so ruling. Georgia‘s belief as to what her older siblings
thought, or why they thought so, was speculative. (Evid. Code, § 702, subd. (a).)
Moreover, at issue was whether the older siblings wrongly believed that defendant
suffered no mental illness. Thus, her belief as to that issue was not relevant unless
supported by adequate foundation. In any event, defendant made no argument to
support the admissibility of this evidence; he likewise fails to do so on appeal. The
evidentiary rulings were proper. (People v. Morrison, supra, 34 Cal.4th 698, 724.)
The court also sustained objections to Georgia‘s characterizations of
defendant as behaving in a ―schizophrenic‖ manner on the ground she was not
qualified to give a medical conclusion. Although the term ―schizophrenic‖ carries
a technical psychiatric meaning, it also has a common or ordinary meaning as an
adjective describing ―contradictory or antagonistic qualities or attitudes.‖
(Merriam-Webster‘s Collegiate Dict. (10th ed. 1998) p. 1041.) Defendant made
no effort to clarify which meaning Georgia relied upon. Even assuming a
cognizable error, there was no conceivable prejudice. Georgia was allowed to
describe in detail her observations of defendant‘s odd behavior. The mere fact that
90
she was not allowed to label that odd behavior as ―schizophrenic‖ could not have
affected the verdict, especially in light of all the other evidence on this topic.
Finally, when Defense Counsel Thomas Broome asked Sammie Lee if he
felt ―this family has seen enough death,‖ the court properly sustained the
prosecutor‘s objection on relevancy grounds. The question was vague and called
for speculation. Although the defense may elicit opinions from a capital
defendant‘s family members about the appropriate punishment (People v.
Lancaster, supra, 41 Cal.4th 50, 98; People v. Mickle (1991) 54 Cal.3d 140, 194),
the question posed to Sammie was not phrased in this manner. If defense counsel
wanted to ask Sammie whether he believed defendant should be put to death, he
had the opportunity to rephrase his question more clearly. He did not.
Given our analysis of the above described rulings, we reject the further
contention that the court‘s rulings demonstrated an ―asymmetrical application‖ of
the rules of evidence in violation of defendant‘s due process rights. In any event,
defendant forfeited this claim for appellate purposes by failing to raise it below.
(People v. Halvorsen (2007) 42 Cal.4th 379, 414.)
C. Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct during his
penalty phase arguments in violation of his Sixth, Eighth, and Fourteenth
Amendment rights under the federal Constitution. There was no error.
Defendant first contends the prosecutor committed misconduct during his
penalty phase opening statement by referring to the expected testimony of Dr. Joel
Fort, who ultimately did not testify. The defense made a relevancy objection just
before opening statements began. The court did not rule on the objection until
after the prosecutor had made his opening statement. Hence, the prosecutor did
not engage in misconduct by referring to the anticipated testimony. Moreover, all
91
the prosecutor said about Dr. Fort was that he had reviewed ―some materials,‖
would testify as to defendant‘s state of mind at the time of the murders, and ―[h]is
opinion will not be in any way related to paranoid schizophrenia.‖ After the court
ruled Dr. Fort‘s testimony inadmissible, the parties agreed to a curative instruction
in which the court informed the jury that the prosecutor had intended to call Dr.
Fort as a witness, but the court changed its ruling so the prosecutor would no
longer be calling him. The court further warned the jury not to speculate about Dr.
Fort‘s testimony or why he would not be testifying. It also instructed the jury not
to discuss these matters or allow them to be part of the deliberations. Under the
circumstances, there was no misconduct.
Defendant next argues that the prosecutor made several improper arguments
concerning remorse at the penalty phase closing argument. ―A prosecutor may
properly comment on a defendant‘s lack of remorse, as relevant to the question of
whether remorse is present as a mitigating circumstance, so long as the prosecutor
does not suggest that lack of remorse is an aggravating factor.‖ (People v.
Mendoza (2000) 24 Cal.4th 130, 187.)
Defendant argues it was improper for the prosecutor to comment, over his
objection, that defendant‘s emotionless courtroom demeanor showed he had a
―heart of ice,‖ but since defendant placed his own character at issue as a mitigating
factor and asked for the jury‘s compassion and sympathy, the argument was
proper. (People v. Navarette (2003) 30 Cal.4th 458, 519; People v. Heishman,
supra, 45 Cal.3d 147, 197.) Defendant also takes issue with the prosecutor
commenting that after the murders defendant ate a ―full breakfast of eggs, coffee,
sausage and French toast and finished it off with a cigarette‖ while the victims
bled to death. But defendant made no objection to the prosecutor‘s comments, and
we have found similar arguments in other cases to be fair comment on the
92
evidence. (People v. Bennett (2009) 45 Cal.4th 577, 613 [prosecutor did not
improperly introduce evidence of defendant‘s lack of remorse where defendant
bought a new car and took his wife out for a ―romantic dinner‖ after the murders];
People v. Box (2000) 23 Cal.4th 1153, 1215 [prosecutor did not improperly argue
lack of remorse in pointing out that the defendant ate at a fast food restaurant after
the murders].) Defendant also complains the prosecutor offered a statement he
never made, ―They can drop dead. I won‘t care. I am hungry and I have to have
something to eat . . . .‖ But again, defendant did not object, and ―[t]he imagined
statements by [defendant] were no more than sarcastic hyperbole identifying what
the prosecutor believed to be weakness in the defense explanation of the events.‖
(People v. Cummings (1993) 4 Cal.4th 1233, 1303, fn. 48.) Defendant argues the
prosecutor improperly commented, over his objection, on defendant‘s claim to
police about having a ―beautiful relationship‖ with the victims and his claim that
he last saw Torey asleep and smiling. But we have allowed similar arguments that
a defendant‘s untruthfulness and evasiveness demonstrated a lack of remorse.
(People v. Boyette, supra, 29 Cal.4th 381, 455; People v. Holt (1997) 15 Cal.4th
619, 691.) Finally, nothing in the prosecutor‘s argument asked the jury to consider
lack of remorse as an aggravating factor.
Defendant faults the prosecutor for repeatedly arguing in the penalty closing
argument that there was no evidence in mitigation. He claims, to the contrary, the
record contained mitigating evidence and the prosecutor‘s argument was
tantamount to an expression of his own personal belief and reference to matters
outside the record. Although defendant objected to some of these comments , the
objections were properly overruled as the remarks were fair comment on the
evidence and were consistent with the prosecutor‘s claim that defendant did not
suffer from any mental illness. (People v. Farnam, supra, 28 Cal.4th 107, 200
93
[prosecutor made fair comment on the evidence by describing defendant‘s ―case in
mitigation as ‗garbage,‘ ‗a scam,‘ ‗obvious ploys,‘ ‗lies,‘ ‗baloney,‘ and ‗a fairy
tale‘ ‖].)
Defendant contends the prosecutor on two occasions engaged in
―paraleipsis:‖ stating one thing but suggesting the opposite. (See People v. Wrest
(1992) 3 Cal.4th 1088, 1107.) Although defendant objected to the remarks, the
court properly overruled the objections. On the first occasion, the prosecutor
described defendant‘s assault on a fellow inmate and argued that the incident, in
light of defendant‘s prior convictions, suggested a pattern of ―violence escalating‖;
the prosecutor, however, corrected himself and said, ―I‘m not going to comment on
this again, because I‘ve already referred to it as a prior felony conviction and you
can‘t double count.‖ When defense counsel objected, the prosecutor again
repeated, ―You can‘t double count,‖ and asked the jury to ―consider this one time
and that‘s all.‖ There was nothing misleading in the prosecutor‘s statements,
which merely clarified a passing reference to defendant‘s record of prior
convictions. On the second occasion, the prosecutor described defendant‘s rape
and beating of his ex-girlfriend and the effect of the murders on his brother, Artis
Blacksher, Jr. The prosecutor noted that defendant‘s crimes had made each
witness so angry at defendant that they wanted to kill him. Defense counsel
objected, stating that Artis had only said he wanted to hurt defendant after the
murders, not kill him. After the court overruled the objection, the prosecutor
argued that it would not be fair for the jury to base its decision on anger, and
although they were mad at defendant, ―[a]nger is not an appropriate basis for any
decision in this case.‖ Defense counsel made no objection to these remarks and,
even assuming the contention was not forfeited for appeal, the prosecutor was
merely describing the impact of defendant‘s crimes, while also making clear that
94
the jury should not let its anger permeate its decision making. In sum, the
complained-of comments were not improper. (See People v. Valencia (2008) 43
Cal.4th 268, 281-282.)
Last, defendant claims the prosecutor injected into closing arguments his
personal belief regarding deterrence and the benefit of his own experience as a
prosecutor for ―many, many years.‖ Not so. Defendant did not object to any of the
statements he now challenges and thus has forfeited these contentions. Moreover,
they lack merit. The prosecutor did not argue that his own experience made him
believe that death was an appropriate penalty in this case. Instead, he said that, in
his experience, juries can sense insincerity; as a result, he had learned humility and
restraint and he was not simply going to assume that the jury would do as he asked.
We have never faulted a prosecutor for simply declaring his or her humility. The
prosecutor also suggested that the murders had caused the community to suffer ―a
wound as a body‖ and that a death sentence for defendant would be ―a cleansing‖
and ―a catharsis‖ that would restore ―order and continuity to what we have.‖
These statements do not address deterrence, but rather community retribution. We
have permitted similar brief statements in other cases. (See People v. Martinez
(2010) 47 Cal.4th 911, 965-966; People v. Zambrano (2007) 41 Cal.4th 1082,
1178.)
95
D. Instructional Error
Defendant claims the court made various instructional errors in violation of
his federal constitutional rights to due process and a reliable sentencing
determination. No prejudicial error occurred.
Defendant correctly contends the court failed to reinstruct the jury during
the penalty phase on the applicable principles of evaluating the credibility of
witnesses found in CALJIC Nos. 2.20, 2.22, 2.23, and 2.21.1.39 Although the
court erred, the omission was not prejudicial.
A trial court has a sua sponte duty to ―instruct on general principles of law
that are closely and openly connected to the facts and that are necessary for the
jury‘s understanding of the case,‖ including instructions relevant to evaluating the
credibility of witnesses. (People v. Carter (2003) 30 Cal.4th 1166, 1219 (Carter).)
In Carter, not only did the court fail to give the instructions relevant to assess the
credibility of witnesses, it also failed to instruct at the penalty phase with any of
the applicable evidentiary instructions from CALJIC Nos. 1.00 through 3.31.
(Carter, at pp. 1218-1219.) As here, the court in Carter had specifically told the
jury to disregard all other instructions given in the prior phases of the trial. We
assumed error in Carter, but concluded the error was harmless beyond a
reasonable doubt because, at least as to those omitted instructions regarding the
credibility of witnesses, ―the jury expressed no confusion or uncertainty in this
regard and never requested clarification.‖ (Id. at p. 1221.) The same is true here.
Defendant identifies only one way in which the failure to instruct allegedly
prejudiced him. He claims that the testimony of his ex-girlfriend, who claimed
defendant had raped and beaten her, was allowed to go before the jury
39
Defendant below made no request for these instructions.
96
―unimpeached‖ because it was not instructed to consider her prior felony
convictions in assessing her credibility. (CALJIC No. 2.23.) Of course, it is not
the role of any instruction to ―impeach‖ or advocate. Defendant had an ample
opportunity to cross-examine the witness and made no effort to impeach her
version of events. There was no evidence she testified in exchange for any reward
or immunity in relation to her prior criminality, which was in evidence. Her
testimony was detailed, vivid, and appeared otherwise credible. In these
circumstances, her prior convictions were of marginal impeachment value.
Finally, given that counsel for both parties strongly argued the credibility of certain
witnesses in their penalty phase closing arguments, defendant simply cannot argue
that the jury was ―adrift‖ when it came to evaluating the credibility of the
witnesses at the penalty phase.
Defendant, therefore, fails to establish a reasonable possibility that any error
under state law affected the verdict. We also conclude it appears beyond a
reasonable doubt that the error did not contribute to the verdict of death under the
federal standard of review of constitutional error. (Carter, supra, 30 Cal.4th at pp.
1221-1222.)
Defendant argues the court erred by refusing to give his requested
instruction that the jury should not ―double-count‖ the special circumstances
against him as aggravating factors relevant to the circumstances of the crime under
section 190.3, factor (a). But we have rejected identical claims, concluding that, in
the absence of any misleading argument to encourage double-counting, the
― ‗standard instructions do not inherently encourage the double counting of
aggravating factors. [Citations.]‘ ‖ (People v. Ayala (2000) 24 Cal.4th 243, 289,
quoting People v. Barnett (1998) 17 Cal.4th 1044, 1180; see also People v. Young
(2005) 34 Cal.4th 1149, 1225-1226.) Here, the prosecutor made no such argument
97
and only encouraged the jury to consider the circumstances that defendant had
murdered members of his own family; premeditated the crimes for nearly a week;
and exploited the victims‘ vulnerability by shooting Torey while he was asleep and
Versenia when she came to her son‘s aid. There was no need to clarify the
standard instructions.
Defendant contends the court erred by refusing to instruct the jury with a
proposed instruction directing the jury to consider: (1) whether defendant
committed the offenses while ―under the influence of any mental or emotional
disturbance;‖ and (2) whether defendant‘s capacity ―to appreciate the criminality
of his conduct or to conform his conduct to the requirements of law was impaired
as a result of mental disease or defect, regardless of whether the capacity was so
impaired as to constitute a defense to the charges, and regardless of whether the
impairment caused him to commit the crimes.‖ He claims the failure to instruct
the jury regarding these two factors violated his federal constitutional rights to
present a defense and to a fair trial under the Sixth Amendment, his right to a
reliable sentencing determination under the Eighth Amendment, and his right to
due process under the Fourteenth Amendment.
Defendant argues his proposed first factor was necessary because the
standard CALJIC No. 8.85 instruction, given to the jury here, unconstitutionally
restricted the jury to consideration of only ―extreme‖ mental or emotional
disturbances.40 We have repeatedly rejected identical arguments, and do so again.
(People v. Bramit (2009) 46 Cal.4th 1221, 1249; People v. Anderson (2001) 25
Cal.4th 543, 601; People v. Davenport, supra, 11 Cal.4th 1171, 1230.)
40
Defendant did not make this specific argument below, but as this claim
attacks the validity of the death penalty statute, it ―may be raised at any time.‖ (In
re Clark (1993) 5 Cal.4th 750, 765, fn. 4.)
98
The second proposed factor differs from the standard instruction, which was
given, only in that it directs the jury to consider the defendant‘s mental impairment
even if it did not constitute a legal excuse or did not cause the crimes to occur. But
we have rejected claims the standard instruction is insufficient for failing to state
that the mental impairment may be considered even if it did not influence the
commission of crime. (People v. Taylor (2001) 26 Cal.4th 1155, 1179; People v.
Riel, supra, 22 Cal.4th 1153, 1225.) Furthermore, the court gave the ―catchall‖
instruction under section 190.3, factor (k), which directs the jury to consider ―[a]ny
other circumstance which extenuates the gravity of the crime, even though it is not
a legal excuse for the crime.‖ (Italics added.) ―This instruction was sufficient to
advise the jury of the full range of mitigating evidence.‖ (People v. Sully (1991)
53 Cal.3d 1195, 1245, citing People v. Easley (1983) 34 Cal.3d 858, 878, fn. 10.)
E. Unconstitutionality of the Death Penalty Statute
Defendant raises numerous constitutional challenges to California‘s death
penalty law, all of which we have repeatedly rejected for lack of merit.
California‘s death penalty law ―adequately narrows the class of murderers
subject to the death penalty‖ and does not violate the Eighth Amendment. (People
v. Loker, supra, 44 Cal.4th 691, 755.)
Section 190.3, factor (a), allowing the jury to consider the circumstances of
the crime, does not result in the arbitrary or capricious imposition of the death
penalty. (People v. Stevens (2007) 41 Cal.4th 182, 211.)
The death penalty law is not unconstitutional because it does not require
juror unanimity on the aggravating circumstances or provide a specific burden of
proof for aggravating factors. Nor is the law unconstitutional because it does not
require that the jury find that aggravating factors outweigh mitigating factors or
that death is the appropriate penalty under any specific burden of proof. (People v.
99
Loker, supra, 44 Cal.4th 691, 755.) The United States Supreme Court decisions in
Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S.
584, and Blakely v. Washington (2004) 542 U.S. 296 do not compel a different
result. (Loker, at p. 755.)
A jury in a capital case is not required to make written findings. (People v.
Stevens, supra, 41 Cal.4th 182, 212.)
Intercase proportionality review is not required under either the state or
federal Constitutions. (People v. Loker, supra, 44 Cal.4th at p. 755; People v.
Crittenden (1994) 9 Cal.4th 83, 156-157.)
A penalty phase jury may consider a defendant‘s unadjudicated criminal
activity and need not agree unanimously or beyond a reasonable doubt that the
defendant committed the unadjudicated crimes. (People v. Barnwell (2007) 41
Cal.4th 1038, 1059; People v. Hoyos (2007) 41 Cal.4th 872, 927.)
The use of restrictive adjectives, such as ―extreme‖ and ―substantial,‖ in
section 190.3‘s list of potential mitigating factors does not render it
unconstitutional. (People v. Stevens, supra, 41 Cal.4th at p. 213.)
A penalty phase jury need not be instructed as to which factors are
aggravating and which are mitigating or to restrict its consideration of evidence in
this regard. (People v. Barnwell, supra, 41 Cal.4th 1038, 1059; People v. Brown,
supra, 33 Cal.4th 382, 402.)
Capital defendants and noncapital defendants are not similarly situated;
therefore, the death penalty law does not violate equal protection or the Eighth
Amendment by denying capital defendants various procedural rights given to
noncapital defendants. (People v. Loker, supra, 44 Cal.4th at p. 756.)
Finally, we again reject the contention that the death penalty violates
international law, is contrary to international norms, or that these norms require the
100
application of the death penalty to only the most extraordinary crimes. (People v.
Martinez, supra, 47 Cal.4th 911, 968.)
VI. PRESENTENCING ISSUES
A. Failure to Conduct a Second Competency Hearing
Defendant contends the court violated his federal right to due process
because it lacked jurisdiction to sentence him without holding a second
competency hearing or making an express finding that defendant was competent to
be sentenced. He also claims the court ignored new evidence that cast doubt on
defendant‘s competency. We disagree.
Before sentencing, on November 2, 1998, defense counsel declared a
second doubt as to defendant‘s competency, claiming defendant appeared not to
understand the proceedings during their last two meetings. The court stayed the
proceedings and appointed two doctors to evaluate defendant. Both doctors,
however, were unable to examine defendant because he refused to leave his cell.
At the December 7, 1998 appearance, the court noted defendant‘s refusal to
cooperate with the court-appointed doctors and invited defense counsel to make a
written submission concerning whether the court, under the circumstances, could
proceed with sentencing. The court also stated it had given counsel ―three cases
that go to that issue.‖ Defense Counsel Thomas Broome replied that he intended
to brief whether defendant should be represented by independent counsel because
of the conflict between defendant and himself regarding defendant‘s mental
condition.
Before adjourning, the court allowed defendant to address the court.
Defendant complained that his attorneys had not clearly explained the
consequences of his plea of not guilty by reason of insanity and described his
disagreement with some of the court‘s pretrial evidentiary rulings. Defendant
101
insisted he did not harm his sister or nephew. He appeared to believe that his plea
of not guilty by reason of insanity was tantamount to an admission of guilt of the
murders, stating that if his counsel had explained to him that he ―had to admit to
two counts of murder of my nephew and sister, no, there would have been no
sanity trial.‖ Defendant was particularly upset that the prosecutor had accused
defendant of malingering — a term that defendant equated with ―slander,‖
denigration, and racism.
On January 25, 1999, the court denied defense counsel‘s motion to appoint
independent counsel for defendant and set the matter for sentencing. At no point
did the court expressly reinstate the proceedings or make any ruling or finding as
to defendant‘s competency, and defense counsel made no objection on this ground
before sentencing. On February 9, 1999, the court sentenced defendant to death.
In People v. Medina (1995) 11 Cal.4th 694, we concluded the court
properly declined to hold a second competency proceeding because the defendant
had refused to cooperate with the court-appointed experts, and, consequently,
―there was no new evidence to introduce at a second hearing . . . .‖ (Id. at p. 734.)
We concluded the defendant‘s ―noncooperation did not, under the circumstances,
constitute substantial evidence of a change in circumstances necessitating a new
hearing.‖ (Ibid.) We also rejected the claim that the court‘s decision to appoint
experts automatically and irrevocably triggered the need for a formal competency
hearing because the defendant had the burden of proving his incompetency and,
without new information, ―holding another competency hearing would be
pointless.‖ (Id. at p. 735.)
Although the court here did not expressly find an absence of substantial
new evidence regarding competence, at the December 7, 1998 court appearance, it
expressly noted defendant‘s noncooperation with the court-appointed doctors.
102
Thus, the court was obviously aware that the defense had no new evidence
regarding defendant‘s competence. Although the court did not expressly reinstate
the proceedings, it had previously invited defense counsel to brief the issue of
whether sentencing could proceed and the court gave counsel case law that was
directly relevant to this issue. The court, therefore, was aware of the jurisdictional
issue. In all, the court‘s actions in proceeding with sentencing revealed the
obvious — that defendant failed to present a change in circumstances necessitating
a new competency hearing and that the court was reinstating the proceedings and
moving forward with the sentencing. The court‘s actions could not be reasonably
interpreted any other way.41
Defendant acknowledges Medina, but attempts to distinguish it. He argues
that the court here had before it substantial evidence of changed circumstances, in
the form of defendant‘s statements to the court on December 7, 1998. Defendant
argues his complaints to the court about his plea showed he did not understand the
proceedings and his statements reflected his inability to assist in his defense.
But defendant‘s confusion regarding his plea did not necessarily amount to
an inability to assist in his defense. Under section 1016, ―[a] defendant who pleads
not guilty by reason of insanity, without also pleading not guilty, thereby admits
the commission of the offense charged.‖ A defendant ―is wholly free to prevent
that result by merely making the additional plea of not guilty.‖ (People v. Walker
(1948) 33 Cal.2d 250, 262, italics added.) Defendant entered both such pleas,
albeit with some confusion. The legal subtleties implicated by these different
41
The Attorney General argues defendant abandoned the competency issue by
not objecting to the court‘s action. However, determining competency ―is
jurisdictional, and cannot be waived by counsel.‖ (People v. Hale (1988) 44
Cal.3d 531, 541.)
103
pleas would confuse most laypersons. The entry of both pleas means that, as a
matter of law, defendant‘s insanity plea did not function as an admission of guilt.
Moreover, the fact defendant appeared to understand the significance of a single
plea of not guilty by reason of insanity indicated he had the ability to grasp the
legal consequences of his plea.
Finally, although at times defendant did ramble in his statements to the
court, at other times he was direct and fairly eloquent. Furthermore, defendant‘s
predilection to use ―bizarre verbiage‖ was nothing new to the court, as documented
in defendant‘s medical records. In sum, given the deference accorded to a trial
court‘s decision on whether to hold a competency hearing, defendant‘s statements
to the court did not constitute substantial evidence of a change in circumstances
requiring a second competency hearing. (People v. Marshall, supra, 15 Cal.4th 1,
33 [―More is required than just bizarre actions or statements by the defendant to
raise a doubt of competency‖ requiring a second hearing].)
B. Refusal to Appoint Independent Counsel
Defendant contends the court erred and denied him due process by failing to
address an alleged conflict between himself and defense counsel that arose after
defense counsel declared a second doubt as to his competency. Defendant claims
the court should have resolved this alleged conflict either by appointing
independent counsel to represent him or by allowing defendant to testify as to his
competence and allowing his counsel to offer evidence of his incompetence. We
disagree.
As noted ante, at page 101, before sentencing defense counsel declared a
conflict when defendant refused to be examined by the court-appointed doctors.
Counsel asked the court to appoint independent counsel to resolve the conflict and
to represent defendant on the issue of his sanity. The court denied the motions.
104
Defendant relies on People v. Stanley (1995) 10 Cal.4th 764 (Stanley) to
argue that the appointment of independent counsel was required. The reliance
fails. Stanley involved the inverse situation from that encountered here. In
Stanley, we held that the appointment of independent counsel for a defendant in a
competency proceeding did not violate his due process rights, where a conflict
arose between the defendant and his original trial counsel about the presentation of
mitigating evidence at the penalty phase. This conflict prompted original counsel
to declare a doubt as to the defendant‘s competency, to which defendant objected.
The trial court, without objection by any party, appointed independent counsel, in
addition to defendant‘s original counsel, to represent defendant at his competency
hearing. At that hearing, the prosecutor and the independent counsel argued that
defendant was competent, and original trial counsel argued he was not. The trial
court subsequently found defendant competent, and defendant ultimately allowed
his original counsel to present the disputed mitigating evidence. (Id. at pp. 803-
807.)
In Stanley, we rejected the claim that the defendant‘s simultaneous
representation by two lawyers arguing conflicting points of view amounted to a
violation of his due process rights. We explained the trial court was confronted
―with a complex situation‖ and by ―appointing separate counsel to represent
defendant‘s point of view, the trial court acted to resolve a conflict, not create
one.‖ (Stanley, supra, 10 Cal.4th at p. 806.) We noted that ―the jury [heard] every
side of the issue of defendant‘s competence, thereby assuring defendant a fair
trial.‖ (Id. at pp. 806-807.) We acknowledged that, under the circumstances, the
defendant ―perhaps got more than he was entitled to,‖ but we were ―unable to
conclude he thereby was denied due process.‖ (Id. at p. 807.)
105
Stanley permits but does not mandate the appointment of independent
counsel when defense counsel and a defendant disagree on the defendant‘s
competency. Moreover, unlike the present case, the conflict in Stanley was not
restricted to defendant‘s competency ―because the root of the problem was
defendant‘s refusal to permit mitigating evidence . . . .‖ (Stanley, supra,
10 Cal.4th at p. 806.) Accordingly, Stanley did not compel the trial court to
appoint independent counsel to represent defendant with respect to possible
competency proceedings.
The Attorney General argues that the appointment of independent counsel
was unnecessary because any ―conflict‖ here was illusory, reasoning that counsel
does not act against a defendant‘s interest in pursuing a finding of incompetency
even if it is against the defendant‘s wishes. We have previously articulated this
same proposition, limiting its application to the stage where ―there has been a
prima facie showing of incompetence . . . .‖ (Stanley, supra, 10 Cal.4th at p. 804;
People v. Samuel (1981) 29 Cal.3d 489, 495 [―a section 1368 hearing is held only
after there has been a prima facie showing of mental incompetence. Of necessity,
therefore, defendant‘s attorney must play a greater role in making fundamental
choices for him, and cannot be expected to seek approval of strategic decisions
made in the course of obtaining and presenting proof of incompetence‖]; see also
Shephard v. Superior Court (1986) 180 Cal.App.3d 23, 29 [―The rationale giving
competent defendants ultimate authority over tactical decisions at trial, does not
extend to this situation where defense counsel‘s duty to protect a prima facie
mentally incompetent defendant requires contravening that defendant‘s tactical
preferences‖]; People v. Jernigan (2003) 110 Cal.App.4th 131, 136 [―To permit a
prima facie incompetent defendant to veto counsel‘s decision to argue that the
client is incompetent would increase the danger that the defendant would be
106
subjected to criminal proceedings when he or she is unable to assist counsel in a
rational manner‖].) 42 In these cases, counsel‘s duty to argue the defendant‘s best
interests, regardless of the defendant‘s actual wishes, was triggered by the
discovery of substantial evidence of the defendant‘s incompetency.
But, counsel‘s mere opinion that defendant might be incompetent, without
more, did not constitute substantial evidence of his incompetency. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1111-1112.) Given that a defendant is presumed
competent and the burden is on the defense to prove otherwise (People v. Medina,
supra, 51 Cal.3d 870), a defense attorney may be presented with a difficult
situation if he or she genuinely believes a defendant is incompetent but the
defendant refuses to cooperate in marshalling evidence of his condition. This case
is further complicated by evidence that defendant may have previously engaged in
malingering.
Even if we were to assume error, defendant fails to explain how the
appointment of independent counsel would have either alleviated the alleged
conflict or would have otherwise resulted in a more favorable outcome. Defendant
consistently maintained that he did not shoot the victims. He may have been
somewhat unclear about all the legal intricacies of an insanity plea. He correctly
understood, however, that such a plea, standing alone without an accompanying
not guilty plea, would acknowledge that he had, indeed, fired the fatal shots. It
was to this acknowledgment that he objected. Defendant refused to participate in
any further competency proceedings, and nothing in the record indicated his
42
All of these cases used the term ―prima facie‖ where substantial evidence of
incompetency existed either in the form of an expert‘s evaluation that the
defendant was incompetent or where the trial court independently declared a doubt
as to the defendant‘s competency.
107
refusal was uniquely tied to his defense counsel. Even if the court had appointed
independent counsel, it is speculative to assume defendant would have cooperated
with new counsel and allowed the doctors to evaluate him. Moreover, it is also
speculative to assume that the results of any competency evaluation would have
been favorable to defendant.
Finally, defendant complains that the alleged conflict could have been
resolved by the procedure described in People v. Bolden (1979) 99 Cal.App.3d
375. There, the defendant and his counsel disagreed as to his competence.
Counsel resolved this dispute by allowing the defendant to testify as to his own
competence and defendant allowed defense counsel to present a psychiatrist to
testify to the contrary. But the procedure in Bolden, which reflected a compromise
between client and counsel, was uniquely tailored to the presentation of evidence
at a competency trial. As with the procedure employed in Stanley, we have never
suggested that the Bolden procedure was mandatory under any circumstance.
C. Cumulative Error Affecting the Reliability of Defendant’s
Sentencing Determination
Defendant finally contends that the collective impact of errors during all
phases of the proceedings deprived him of his Eighth Amendment right to a
reliable sentencing determination. We have concluded that any errors or assumed
errors were not prejudicial. Viewing them cumulatively, we conclude defendant is
not entitled to reversal of his judgment.
108
VII. CONCLUSION
The judgment is affirmed.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
ARMSTRONG, J.*
__________________
*
Associate Justice, Court of Appeal, Second Appellate District, Division
Five, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
109
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Blacksher
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S076582
Date Filed: August 25, 2011
__________________________________________________________________________________
Court: Superior
County: Alameda
Judge: Larry J. Goodman
__________________________________________________________________________________
Counsel:
Kathy Moreno, under appointment by the Supreme Court, for Defendant and Appellant.
Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Manuel M. Medeiros, State Solicitor General, Gerald A. Engler and Dane R. Gillette, Assistant
Attorneys General, and Michele J. Swanson, Deputy Attorney General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kathy Moreno
P. O. Box 9006
Berkeley, CA 94709
(510) 649-8602
Michele J. Swanson
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5703
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 08/25/2011 | 52 Cal. 4th 769, 259 P.3d 370, 130 Cal. Rptr. 3d 191 | S076582 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Francisco Office Michele J. Swanson, Deputy Attorney General 455 Golden Gate Ave., Suite 11000 San Francisco, CA |
| 2 | Blacksher, Erven R. (Appellant) San Quentin State Prison Represented by Kathy Rose Moreno Attorney at Law P.O. Box 9006 Berkeley, CA |
| Dockets | |
| Feb 9 1999 | Judgment of death |
| Feb 16 1999 | Filed certified copy of Judgment of Death Rendered 2-9-99. |
| Feb 16 1999 | Penal Code sections 190.6 et seq. apply to this case |
| May 14 1999 | Record certified for completeness |
| Oct 31 2002 | Filed: appellant's application for appointment of counsel (IFP form). |
| Oct 31 2002 | Counsel appointment order filed appointing Kathy M. Chavez to represent appellant for the direct appeal. |
| Dec 12 2002 | Received: notice from superior court that 22,325-pp. record was transmitted to appellant's counsel on 12-10-2002. |
| Dec 12 2002 | Appellant's opening brief letter sent, due: January 9, 2004. (pursuant to the California Rules of Court, rule 39.57(b)) |
| Dec 16 2002 | Date trial court delivered record to appellant's counsel (22,325 pp. record) |
| Jan 9 2003 | Counsel's status report received (confidential) from atty Chavez. |
| Feb 13 2003 | Compensation awarded counsel Atty Chavez |
| Mar 6 2003 | Counsel's status report received (confidential) from atty Chavez. |
| Apr 7 2003 | Received copy of appellant's record correction motion Request to correct, augment and settle the record. (22 pp.) |
| Apr 17 2003 | Compensation awarded counsel Atty Chavez |
| May 7 2003 | Counsel's status report received (confidential) from atty Chavez. |
| Jul 7 2003 | Counsel's status report received (confidential) from atty Chavez. |
| Sep 5 2003 | Counsel's status report received (confidential) from atty Chavez. |
| Oct 31 2003 | Record certified for accuracy |
| Nov 5 2003 | Counsel's status report received (confidential) from atty Chavez. |
| Dec 15 2003 | Letter sent to: counsel advising the record on appeal, certified for accuracy, was filed this date. |
| Dec 15 2003 | Record on appeal filed Clerk's transcript 52 volumes (18,336 pp.) and reporter's transcript 37 volumes (4,160 pp.) including material under seal; ASCII disks. Clerk's transcript includes 15,582 pp. of juror questionnaires. Reporter's transcript includes 17 volumes of reporter's concordances (not paginated). |
| Jan 2 2004 | Request for extension of time filed to file AOB. (1st request) |
| Jan 5 2004 | Compensation awarded counsel Atty Chavez |
| Jan 6 2004 | Counsel's status report received (confidential) from atty Chavez. |
| Jan 6 2004 | Extension of time granted to 3-9-2004 to file AOB. |
| Mar 8 2004 | Counsel's status report received (confidential) from atty Chavez. |
| Mar 8 2004 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Mar 11 2004 | Extension of time granted to 5/10/2004 to file appellant's opening brief. |
| Mar 16 2004 | Compensation awarded counsel Atty Chavez |
| May 6 2004 | Counsel's status report received (confidential) from atty Chavez. |
| May 7 2004 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| May 10 2004 | Extension of time granted to 7/9/2004 to file appellant's opening brief. |
| Jul 6 2004 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Jul 8 2004 | Counsel's status report received (confidential) from atty Chavez. |
| Jul 8 2004 | Extension of time granted to 8/9/2004 to file appellant's opening brief. |
| Aug 6 2004 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Aug 10 2004 | Extension of time granted to 9/8/2004 to file appellant's opening brief. After that date, only one further extension totaling about 14 additional days is contemplated. Extension is granted based upon counsel Kathy M. Chavez's representation that she anticipates filing that brief by 9/22/2004. |
| Sep 7 2004 | Counsel's status report received (confidential) from atty Chavez. |
| Sep 7 2004 | Appellant's opening brief filed (90,050 words; 409 pp.) |
| Sep 7 2004 | Respondent's brief letter sent; due: July 5, 2005. |
| Sep 22 2004 | Compensation awarded counsel Atty Chavez |
| May 26 2005 | Request for extension of time filed to file respondent's brief. (1st request) |
| May 31 2005 | Extension of time granted to 9/6/2005 to file respondent's brief. |
| Aug 22 2005 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Aug 24 2005 | Extension of time granted to 11/7/2005 to file respondent's brief. |
| Nov 7 2005 | Respondent's brief filed (90307 words; 301 pp.) |
| Jan 5 2006 | Request for extension of time filed to file reply brief. (1st request) |
| Jan 9 2006 | Extension of time granted to 3/7/2006 to file appellant's reply brief. |
| Mar 1 2006 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Mar 3 2006 | Extension of time granted to May 8, 2006 to file appellant's reply brief. After that date, only one further extension totaling about 50 additional days will be granted. Extension is granted based upon counsel Kathy M. Chavez's representation that she anticipates filing that brief by June 2006. |
| May 3 2006 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| May 5 2006 | Extension of time granted to June 27, 2006 to file the reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Kathy M. Chavez's representation that she anticipates filing that brief by June 27, 2006. |
| Jun 9 2006 | Appellant's reply brief filed (36,784 words; 174 pp.) |
| Jun 14 2006 | Compensation awarded counsel Atty Chavez |
| Jun 25 2009 | Compensation awarded counsel Atty Moreno |
| Jan 19 2010 | Exhibit(s) lodged People's exhibits nos. 1A, 15, 16, 18, 40, 44, 56, 57, 58, 61, 63, 64, 65, 86, 110A, 110B, 111, 123, 129, 131, and 131A. Defendant's exhibits nos. GG, HH, XX, VV, YY, WW, AAA, BBB, CCC, DDD, EEE, FFF, |
| Sep 7 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the November calendar, to be held the week of November 1, 2010, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Sep 10 2010 | Received: Letter from Kathy R. Moreno, Attorney at Law, dated September 9, 2010, requesting that the court set oral argument after the first week in December 2010, or in January 2011. |
| Mar 16 2011 | Supplemental briefing ordered Petitioner and respondent are directed to serve and file supplemental letter briefs addressing the following issues: 1) The significance of People v. Osorio (2008) 165 Cal.App.4th 603 on defendant's claim regarding the admissibility of Eva Blacksher's statements to Ruth Cole; and 2) The significance of Michigan v. Bryant (No. 09-150) and Davis v. Washington (2006) 547 U.S. 813 on defendant's claim regarding the admissibility of Eva Blacksher's statements to Officer Nicholas Nielsen. The parties are to serve and file simultaneous letter briefs addressing these points on or before April 1, 2011, and may serve and file simultaneous reply briefs on or before April 15, 2011. No extensions of time for the filing of these briefs are contemplated by the court. |
| Apr 1 2011 | Letter brief filed Respondent: The PeopleAttorney: Attorney General - San Francisco Office Respondent's letter brief dated March 31, 2011. (6 pp.) |
| Apr 4 2011 | Letter brief filed Appellant: Blacksher, Erven R.Attorney: Kathy Rose Moreno Appellant's letter brief, dated March 31, 2011 (12 pp.) (timely filed pursuant to California Rules of Court, rule 8.25(b)) |
| Apr 12 2011 | Letter brief filed Respondent: The PeopleAttorney: Attorney General - San Francisco Office Respondent's Reply to Supplemental letter brief, dated April 11, 2011 ( 6 pp.) |
| Apr 18 2011 | Letter brief filed Appellant: Blacksher, Erven R.Attorney: Kathy Rose Moreno Appellant's Reply to Supplemental letter brief, dated April 15, 2011 (8 pp.) (Timely filed pursuant to California Rules of Court, rule 8.25(b)) |
| May 4 2011 | Case ordered on calendar to be argued on Wednesday, June 1, 2011, at 9:00 a.m., in Los Angeles |
| May 4 2011 | Justice pro tempore assigned Hon. Orville A. Armstrong Second Appellate District, Division Five |
| May 12 2011 | Received: appearance sheet from Attorney at Law Kathy Moreno, indicating 45 minutes for oral argument for appellant. |
| May 13 2011 | Received: appearance sheet from Deputy Attorney General Michele Swanson, indicating 30 minutes for oral argument for respondent. |
| May 16 2011 | Filed: appellant's focus issues letter, dated May 13, 2011 |
| May 20 2011 | Filed: respondent's oral argument letter, dated May 20, 2011 |
| Jun 1 2011 | Cause argued and submitted |
| Jun 15 2011 | Compensation awarded counsel Atty Moreno |
| Aug 24 2011 | Notice of forthcoming opinion posted To be filed Thursday, August 25, 2011 at 10 a.m. |
| Briefs | |
| Sep 7 2004 | Appellant's opening brief filed |
| Nov 7 2005 | Respondent's brief filed |
| Jun 9 2006 | Appellant's reply brief filed |
| Brief Downloads | |
 | |
| |
| |
| |
| |
| |
| |
| |
