Filed 8/15/05 (this opn. should follow companion case, S014021, also filed 8/15)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S023000
v.
DEAN PHILLIP CARTER,
San
Diego
County
Defendant and Appellant. )
Super.
Ct.
No.
90280
Following the guilt phase of the trial, a San Diego County jury found
defendant Dean Phillip Carter guilty of the murder of Janette Cullins. (Pen. Code,
§ 187, subd. (a).) 1 The jury also found defendant guilty of the burglary of
Cullins’s inhabited residence (§§ 459, 460) and the robbery of Cullins (§§ 211,
213.5), finding that during the course of the burglary and the robbery, defendant
personally inflicted great bodily injury (§12022.7). The jury found true the special
circumstances that the murder was committed while lying in wait, in the course of
a robbery, and in the course of a burglary, and that defendant previously had been
convicted of the murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie.
(§ 190.2, former subd. (a)(2), (15), (17)(i), (vii), as amended by Prop. 115, § 10, as
approved by voters, Primary Elec. (June 5, 1990).)
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
The jury further found defendant guilty of forcible rape (§ 261) and forcible
oral copulation (§ 288, subd. (c)) arising out of his attack on Barbara S. on
March 25, 1984 (approximately 18 days prior to the murder of Janette Cullins).
The jury found defendant guilty of burglary of an inhabited residence (§§ 459,
460) and robbery (§§ 211, 213.5) in connection with the attack on Barbara S. As
to each of the crimes committed against Barbara S., the jury found that defendant
had used a deadly weapon, a knife. (§§ 12022, subd. (b), 12022.3, subd. (a).)
At the conclusion of the penalty phase, the jury returned a verdict of death.
The court sentenced defendant to death for the murder of Janette Cullins, in
addition to imposing a consecutive sentence of 21 years, 8 months, for the crimes
committed against Barbara S. This appeal is automatic. (Cal. Const., art. VI,
§ 11; § 1239, subd. (b).)2
We set aside the special circumstance of lying in wait, but otherwise affirm
the judgment in its entirety as to both guilt and penalty.
FACTS
I.
GUILT PHASE EVIDENCE
A. The Prosecution’s Case
1. Overview
The
prosecution’s
theory of the case was that defendant, spurned by a
number of women who had rejected his clumsy, unwanted advances, embarked
upon a crime spree that spanned approximately three weeks in the early spring of
2
As explained more fully in People v. Carter (Aug. 15, 2005, S014021) ___
Cal.4th ___, ___ [at pp. 12-13, fn. 5], the Ventura County Superior Court
sentenced defendant to a sentence of 56 years for crimes he committed against
Jennifer S.
2
1984, and consisted of sexually assaulting, robbing, and fatally strangling various
women whom he previously had befriended.
On March 24, 1984, defendant, who was then 28 years of age, telephoned
an acquaintance of approximately one month, Cathleen Tiner, who declined his
invitation to “run off to Mexico and get married.” That evening, he telephoned
another acquaintance, Polly Haisha, then 18 years of age, informing her that he
would be arriving in San Diego the next day. Haisha, who had declined
defendant’s invitation to “quit school and come sail to France,” and had cancelled
several dates with defendant, asked him never to call her again. Like Tiner and
Haisha, Janette Cullins in the weeks leading up to her death also had spurned
defendant’s advances.
On March 25, 1984, Susan Loyland, with whom defendant had maintained
a sexual relationship, traveled to Mexico without defendant, notwithstanding the
circumstance that she previously had made plans to travel with him that day. In
the evening, defendant broke into Loyland’s San Diego residence, raped at
knifepoint Barbara S., Loyland’s housemate, and also stole money from Loyland’s
tip cache. Loyland never heard from defendant again.
On March 27, 1984, defendant, having befriended Jennifer S. in the
preceding few days, raped her at knifepoint in her Ventura County apartment. He
strangled her to the point at which she lost consciousness, and stole her tip money.
Defendant thereafter traveled north to the San Francisco Bay Area, and on
April 1, 1984, encountered Tok Kim at a bar located in Lafayette. They
commenced a relationship over the next several days, during which period several
witnesses observed them together. Kim’s decomposed body was discovered on
April 13, 1984. Although the cause of her death could not be determined,
strangulation could not be excluded as the cause. Kim’s vehicle and various
personal items were missing.
3
Kim’s vehicle was discovered several hundred miles away in Los Angeles
County, parked in front of the Culver City apartment in which the bodies of Susan
Knoll and Jillette Mills were found stacked in a closed bedroom closet on
April 12, 1984. Mills had been sexually assaulted, and each victim had died from
asphyxia caused by strangulation. Knoll’s vehicle was discovered one block from
the apartment. Mills’s distinctive Datsun 280 ZX automobile, as well as personal
items belonging to both victims, were missing.
On April 12, 1984, the body of Bonnie Guthrie was discovered on the
bedroom floor of her Culver City apartment. She had been sexually assaulted and
died from asphyxia caused by strangulation. Personal items were missing from
her apartment. Later that same day, defendant made an unexpected visit to
Cathleen Tiner at her residence in San Diego; Tiner and Janette Cullins had met
defendant at a San Diego bar in February 1984. Tiner told defendant she was
expecting her date for the evening momentarily and could not see him. Defendant
departed.
On April 14, 1984, the body of Janette Cullins was found lying in the
closed bedroom closet of her San Diego apartment. The cause of her death was
asphyxia caused by strangulation. Near the front door, the presence of wood chips
on the floor indicated that someone had broken into her apartment. Cullins had
died approximately one to two days earlier. A neighbor had observed that the
preceding evening, Jillette Mills’s vehicle had been parked in front of Cullins’s
residence and had departed suddenly and loudly. Cullins’s vehicle subsequently
was discovered several blocks away. A videocamera at a bank automated teller
machine on April 13 recorded a man resembling defendant retrieving money from
Cullins’s bank account.
On April 17, 1984, an Arizona highway patrol officer observed Mills’s
vehicle traveling erratically near Ashfork, Arizona. The officer effected a traffic
4
stop and arrested defendant. Inside the vehicle, investigators recovered numerous
personal items linking defendant to each one of the deceased women.
In order to explain certain factual differences in the crime scenes at the
various residences where the deceased women were found, the prosecution
theorized that the reason defendant did not conceal the bodies of Tok Kim or
Bonnie Guthrie was that neither victim had a roommate who might discover the
body. With respect to the killings of Susan Knoll and Jillette Mills, the
prosecution theorized that defendant first murdered Knoll, placing her body in the
closet, moved her vehicle to make it appear she was not at home, and then waited
until Jillette Mills arrived and murdered her. The prosecution further theorized
when defendant broke into Janette Cullins’s apartment, murdered her, concealed
her body in the closet, and then moved her vehicle, defendant similarly may have
intended to kill two women. Cullins’s new roommate, Cheri Phinney, whom
defendant had met earlier that day, was not yet in possession of an apartment key,
however, and did not return to the apartment that evening.
2.
The Rape of Barbara S.
The prosecution presented the testimony of a number of witnesses to
establish that on March 25, 1984, defendant raped Barbara S. at the residence she
shared with Susan Loyland in the marina area of Bay Park, located in San Diego. 3
3
Prior to the preliminary hearing in this case, Barbara S. suffered severe
strokes, and at the time of trial she was relegated to setting forth her answers to
counsel’s examination by typing them on a typewriter. The court appointed a
court intern as a “neutral interpreter.” As Barbara S. typed responses to the
questions posed, the intern read them aloud to the jury. The court admonished the
jury that Barbara S.’s “physical condition was unrelated to the events of March
25[, 1984].”
Outside the presence of the jury, through the proffered testimony of
Barbara S.’ s tenant and housemate, Susan Loyland, the defense sought to
establish that Barbara S. had been a heavy drinker at the time of the attack.
(footnote continued on next page)
5
Barbara S. testified that on that date, she performed yard work at her
residence for most of the day, ate dinner, then fell asleep while watching
60 Minutes on television in her bedroom. She awakened to find a man grabbing
her and dragging her from her bed. The man held at her throat a “sturdy knife”
with a blade about six inches in length. The man repeatedly demanded money and
held her while he rummaged through her purse. When he sought more money,
Barbara S. directed him to the dresser, where she had $200. That money was
missing after the attack.
The man then pushed Barbara S. to her knees and repeatedly told her not to
look at him. While he still held the knife, the man forced her to orally copulate
him. Barbara S. complied because she was frightened. She recalled that
notwithstanding her compliance, the man’s penis was “semi-flaccid” and “nothing
to write home about.”
Shortly thereafter, the man bent Barbara S. over the bed facedown and
raped her; the man never attained a full erection, and the incident lasted “maybe a
very short time.”
The man then “hog-tied” Barbara S.’s hands and feet behind her with her
pantyhose, and she heard her car keys being removed from her purse. The man
departed, telling Barbara S. that “you shouldn’t sleep with the TV on.” Thereafter,
(footnote continued from previous page)
Barbara S. acknowledged having had “two drinks before and during supper, but
was not impaired or drunk.” The defense noted that in her testimony given at the
preliminary hearing, Barbara S. recalled the number of drinks of “scotch and
water” she had consumed prior to the attack as “about three,” and that she had
started drinking in the late afternoon. Barbara S. denied suffering from alcoholism
in March 1984. The trial court disallowed the introduction of the proffered
evidence relating to her drinking habits.
6
she heard “[a] motor sound, and he screeched off.” She partially freed herself by
hobbling to the dishwasher, extracting a knife with her teeth, and using the knife to
cut the ligature that bound her feet and hands.
Helen McGirr, a neighbor who was a retired registered nurse, testified that
she heard Barbara S.’s cries for help and directed her husband to contact the
police, who arrived at the scene approximately 10 minutes later. McGirr found
Barbara S. “laying in kind of a curled-up position unclothed at the front door right
in the doorway” and noticed that Barbara S.’s hands were “dark blue, almost
black” from having been tied up. McGirr was certain Barbara S. was not under
the influence of alcohol.
San Diego Police Department Detective Ken Creese testified that in his
interview with Barbara S. shortly after the attack, the victim appeared “to be upset,
shaken, somewhat traumatized,” and was unable to identify her assailant.
Susan Loyland testified that she rented a room in Barbara S.’s residence at
the time of the attack, and had maintained a sexual relationship with defendant in
the weeks immediately prior to the attack. Loyland had discussed traveling with
defendant to Rosarito Beach, Mexico, on March 25, 1984, but left without him
that morning when she was unable to locate him. Loyland suspected defendant
might have been Barbara S.’s assailant, and so informed the police on the night of
the attack.4
4
Loyland worked as a bartender at The Lost Knight Bar, which she
described as “ a cocktail lounge, kind of a dive,” where she met defendant. She
testified that she had been “pretty high [on alcohol, marijuana, and cocaine] most
of the time” she spent with defendant, had brought him to her bedroom on several
occasions in February and March 1984, and recalled that on at least one occasion,
defendant had met the owner of the house, Barbara S. Barbara S. testified to
having previously met defendant early one morning: “I saved him from getting
the hell beat out of him by [Loyland’s] regular boyfriend by waking him up.”
7
Based upon information supplied by Loyland, police investigators placed
defendant’s photograph in a photo lineup. Barbara S. was unable to identify the
perpetrator from the lineup, but told one detective that the voice of her attacker
sounded similar to that of defendant’s. She testified that during the attack, she
thought she recognized her assailant’s voice but could not identify it, and after
seeing news reports of defendant’s arrest several weeks later, “it came together
like a ton of bricks” that the man’s voice was defendant’s. At trial, Barbara S.
identified defendant as the man who had attacked her.
Following the attack, Barbara S. noticed her kitchen and bedroom
telephone lines had been cut, and that a window screen in Loyland’s room was
“bent out at a 45-degree angle.” Loyland determined that some tip money was
missing from a concealed location near the window. She testified: “nobody
would look in the place that I had it . . . . you’d have to know that the coins were
in there.” Defendant occasionally had accompanied her home after work, and had
seen her conceal her tip money, usually “between 10 and 20 bucks a night in
coins.” Loyland never saw or heard from defendant after March 25, 1984.
Barbara S.’s next-door neighbor, Janell Barksdale, testified that
approximately 6:00 p.m. on March 25, she observed a man whom she did not
recognize walk toward Barbara S.’s residence. The man had dark hair, a
moustache, an olive complexion, and “was attractive . . . nice to look at.” Upon
learning of the attack upon Barbara S., Barksdale told investigators of having seen
a man in the area that evening. Three years later, upon seeing a photograph of
defendant in the newspaper, Barksdale contacted investigators to inform them that
she recognized the person in the newspaper photograph as the man she had
observed. At trial, she identified defendant as the man she saw that night.
8
3.
The Rape of Jennifer S.
Over defendant’s objection, the prosecution commenced its case by
presenting, under Evidence Code section 1101, subdivision (b), substantially the
same evidence pertaining to the March 29, 1984 attack on Jennifer S. in Ventura,
as is summarized in People v. Carter, supra, ___ Cal.4th at page ___ [at
pp. 12-13].
4.
The Death of Tok Kim
The prosecution introduced evidence pertaining to the Alameda County
death of Tok Kim in early April 1984. With two exceptions, the evidence was
substantially similar to that summarized in People v. Carter, supra, ___ Cal.4th at
page ___ [at pp. 2-4].
The first exception involved the testimony of Eddis Jeffrey, who did not
testify in defendant’s Los Angles County murder trial. Jeffrey, an apartment
maintenance worker at the building in which Kim resided, testified that he saw
defendant and Kim arrive at her apartment building on the afternoon of April 9
and leave shortly thereafter in the same vehicle. That was the last time Jeffrey saw
Kim. Jeffrey acknowledged that prior to trial, he had identified in a police photo
lineup prior to trial an individual other than defendant as the person he had seen
with Kim.
The second exception involved the testimony of Dr. Byron Blackbourne, a
forensic pathologist employed by the San Diego County Medical Examiner. Over
defendant’s objection, Dr. Blackbourne stated that after reviewing the Kim
autopsy and crime scene photographs, he believed that her death possibly could
have been caused by asphyxiation due to ligature strangulation.
9
5.
The Fatal Strangulations of Susan Knoll and Jillette
Mills
The prosecution introduced evidence pertaining to the fatal strangulations
on or about April 10-11, 1984, of roommates Susan Knoll and Jillette Mills in Los
Angeles County. The evidence was substantially similar to that summarized in
People v. Carter, supra, ___ Cal.4th at page ___ [at pp. 5-7].
6.
The Fatal Strangulation of Bonnie Guthrie
The prosecution introduced evidence pertaining to the fatal strangulation on
or about April 11, 1984, of Bonnie Guthrie in Los Angeles County. The evidence
was substantially similar to that summarized in People v. Carter, supra, ___
Cal.4th at page ___ [at pp. 7-8].
7.
The Fatal Strangulation of Janette Cullins
The prosecution presented evidence, summarized below, establishing that
defendant and Janette Cullins had been casually acquainted during the several
weeks preceding Cullins’s death on April 12 or 13, 1984, and that defendant
fatally strangled her.
a. Cullins’s acquaintance with defendant in early 1984
On
Saturday
evening,
February 25, 1984, Janette Cullins and a friend,
Cathleen Tiner, went to Jose Murphy’s, a Pacific Beach nightclub that was
featuring Cullins’s and Tiner’s favorite band. The band stopped playing at 1:30
a.m. (February 26), and the women walked across the street to the Old Pacific
Beach Café. They were hungry and knew the café served breakfast until 3:00 a.m.
Cathleen Tiner testified: “When we got into the restaurant there was still a
real good crowd, so we decided, let’s have a drink, let’s go over to the bar and see
if we can get a drink before we go over to breakfast. . . . [¶] [However, t]here was
a very large crowd there. We were getting bumped around a lot. We could not get
to the bar at all. We were far away from it. . . . [¶] Mr. Carter came up to us and,
10
at that time, we didn’t know his name, and . . . said my friend’s at the bar, would
you like me to order some drinks for you? [¶] We said yes, and he said what
would you like? [¶] We said two Harvey Wallbangers. [¶] And so he yelled at
this friend who was standing over to the bar, [‘]hey Antoine [whose last name was
Masure], two Harvey Wallbangers.[’] ”
Tiner added: “Very shortly thereafter, [defendant’s] friend came through
the crowd with our drinks and with their drinks. I offered to pay for the drinks. I
kept trying to pay for them. [¶] [Masure] kept saying no, no, no. [¶] . . . I kept
insisting on paying for the drinks. He wouldn’t take the money. . . . [¶] [Masure]
just took our drinks and walked over to a table and sat them down on a table, and
we ended up sitting down with them. . . . [¶] We talked briefly. Dean asked
Janette ⎯ I heard Dean ask Janette for her phone number.” Tiner testified that
Cullins eventually gave defendant her telephone number, and that defendant asked
the two women whether they had roommates or lived alone. Tiner gave Masure a
card with her own telephone number on it.
Tiner further testified that defendant and Masure wanted the women to
accompany them “someplace else,” but the men did not provide a further
description. The women declined: “Well, we said the right way for you to do it
would be to call us and ask us out rather than try for us to go out with you now.
[¶] Antoine said we’ll go into the twin phone booths and you stand in the other
and we’ll call you. Then everything will be okay. [¶] We didn’t agree with that
idea, so Dean Carter said how about dinner. . . . [¶] I said when. He said
Antoine’s a great cook, how about dinner. I said when, and they said we’ll call
you. . . . [¶] We left shortly thereafter. I would say we were there less than an
hour. . . . [¶] Mr. Carter said we’ll walk you to your car because we don’t want
anyone to get you, or attack you in the parking lot. So they walked us to my car
and we drove off.”
11
A few days later, defendant and Masure invited the women to have dinner
with them on March 2, 1984, on their “yacht” named the Sea Quest, which was
docked near Harbor Drive.5 The four had dinner on the vessel without incident,
with the exception that Cullins’s vehicle did not start immediately when the
women departed that evening. Defendant and Masure, together with a third party
who arrived with cables, assisted the women in “jump-starting” the vehicle. On
the way home, Tiner and Cullins discussed the evening. Tiner related Masure’s
observation that he thought Cullins had not been ready to leave and wanted to stay
with defendant. Cullins replied: “No way. I had no intentions of spending the
night with him, and if he ever calls me again, I will tell him that.”
Two days later, on March 4, defendant telephoned Tiner, informing her that
he had spent the day sightseeing with Cullins, and wanted to know whether Tiner
“wanted to go out and do something with him that night.” Tiner declined.
Defendant telephoned Tiner again on March 24, 1984, indicating that he
wanted to see Cullins “one time before he went back to Alaska.” Tiner falsely
informed defendant that she was unaware of Cullins’s whereabouts. “He said to
me, why don’t I come down there and we can run off to Mexico and get married.”
Tiner declined that offer, as well as defendant’s invitation to go out with him on
the following evening.6
5
At a foundational hearing conducted outside the jury’s presence, Tiner
testified that the Sea Quest was neither a yacht, nor a sailboat, but actually a metal
vessel that she characterized as rusty, greasy, and cluttered ⎯ a platform for large
cranes, littered with junk all over the deck ⎯ not a pleasure boat that one would
use for sailing on the bay.
6
March 25, 1984, was the date on which defendant attacked Barbara S.
(Ante, at pp. 5-8.)
12
Tiner then telephoned Cullins to inform her that defendant was looking for
her. Cullins replied: “I thought I’d gotten rid of him. Now I won’t be able to
answer the phone.” Tiner further testified: “[Cullins] was angry. She was upset
about it that he was calling again.” Nancy McEachern, Cullins’s former
roommate, testified that when she had shared an apartment with Cullins and the
telephone rang, Cullins on multiple occasions had informed her: “If that’s Dean, I
don’t want to talk to him.”7
b. The events leading to the discovery of Janette Cullins’s
body
Janette Cullins resided in apartment B, located at 3972 Kendall Street in the
Pacific Beach neighborhood of San Diego. In search of a new roommate, Cullins
placed an advertisement in The Reader, a local free newspaper. Cheri Phinney
responded to the ad and began moving into the apartment during the second week
of April 1984.
On Thursday, April 12, 1984, Phinney and Cullins spent the day at the
apartment. Phinney painted her new bedroom and bathroom, while Cullins kept
her company, vacuumed the carpet, and performed other housekeeping chores.
Approximately midafternoon, Cullins responded to a knock at her door. The
visitor was defendant, and Cullins returned to Phinney, asking her “to come
through the living room so that he [defendant] would be aware that there was
someone else in the house.” Defendant stayed for approximately one hour, asking
7
Nancy’s McEachern’s testimony on this point was illuminated by Tiner’s
testimony that one reason Jeanette Cullins was not interested in becoming
involved with defendant was that “he was a drug user” and Cullins was
“completely antidrug.”
13
questions such as how long she planned to continue painting. Shortly thereafter
Cullins informed Phinney that defendant had departed.8
At approximately 6:30 p.m., Cullins left the apartment, informing Phinney
that Cullins was planning to attend the symphony with her friend, Cathleen Tiner.9
Shortly thereafter, Phinney answered a telephone call and wrote down a message
on a piece of paper. The paper was whole when Phinney wrote the message, and
she left blank the top portion of the paper. When Phinney left the apartment at
approximately 7:15 p.m., the drapes and blinds were open. As she locked the door
upon leaving, Phinney did not notice any damage to the front door frame.
Cathleen Tiner testified that after she and Cullins attended the symphony,
the two women went to a restaurant and then returned to Tiner’s apartment, where
they watched television until 11:00 p.m. Cullins informed Tiner that defendant
was back in town. After watching television with Tiner, Cullins left to return to
her own apartment. Tiner never saw Cullins alive again.
Leanne Johnson, who resided across the street from Cullins’s apartment,
testified that at approximately 11:15 p.m. on April 12, she heard the engine of a
8
David Susi testified that at approximately 4:00 p.m., on April 12, 1984,
defendant, driving a vehicle with the license plate “PHANTM Z,” pulled up next
to Susi’s vehicle at an intersection in Pacific Beach and asked for directions to
Mission Beach. Subsequently shown a police photo lineup, Susi selected
defendant’s photograph as depicting the man whom he saw driving the car, stating,
“I think that’s him, but I can’t be sure.” Susi acknowledged on cross-examination
that during an interview with investigators conducted on June 1, 1984, Susi
recalled that the date on which he saw the vehicle was either April 11 or 12, 1984.
9
There is a discrepancy in the testimony pertaining to the precise time that
Cullins departed from the apartment. Phinney fixed the time of Cullins’s
departure at approximately 6:30 p.m. Tiner testified that Cullins arrived at Tiner’s
apartment, an approximate 20-minute drive from Cullins’s residence, at 6:10 p.m.
The discrepancy does not appear to have any significance.
14
vehicle running for about 10 minutes. Johnson peered through her drapes and
observed a white vehicle that she identified as matching the white Datsun 280 ZX
that defendant was driving when later arrested. Johnson testified: “It was
probably 11:30 just before the news went off that I heard the car move out of the
parking space and make a U-turn and it almost hit a pickup truck at the house next
to mine. [¶] It just went up the street. It didn’t stop at the stop sign . . . . [¶] . . . I
mean whoever was in the car sort of pulled out fast, and it was a big loud noise
and I did look out and I did see him make a U-turn and almost hit the pickup
truck.”
Throughout the next day, Cheri Phinney attempted to contact Cullins
without success. Nancy McEachern testified that on April 13, she was
unsuccessful several times in attempting to contact Cullins by telephone. Cullins’s
telephone answering machine, which usually was switched on, was not activated.
Concerned, McEachern drove to Cullins’s apartment around midday. When she
arrived, “another car pulled up on the opposite side of the street from me, and a
man got out of the car and asked me if Jan was home. . . . [¶] I said no, it doesn’t
look like she’s home, her car is not here, I assume she’s not. This person had
identified himself as Dean. . . . [¶] He was driving a white [Datsun] Z with a
black bra on the front of the car.” McEachern identified the individual who spoke
with her as defendant.
McEachern had moved out of the apartment on April 6, but had retained a
key in order to return on the morning of April 14 for the purpose of conducting a
yard sale. McEachern entered the apartment (alone), stayed less than 15 minutes,
left a message for Cullins, and departed. McEachern testified: “The apartment
was closed up. Everything was pretty dark. The blinds were drawn, were closed
very tightly, and all the windows, especially the window in the kitchen, which is a
place we never close them in [sic].” McEachern explained that the living room
15
drapes also were drawn, an unusual circumstance, adding that when she and
Cullins shared the apartment, they never adjusted the window coverings to their
completely closed position. Although McEachern entered Cullins’s bedroom, the
closet doors were shut, and she did not look inside the closet.
Shortly after 6:00 p.m. on the evening of April 13, as Cathleen Tiner was
preparing to attend a San Diego Padres baseball game with a friend, defendant
arrived unexpectedly at Tiner’s front door, “better groomed than I had ever seen
him before.” He wore a beige sweater with a brown windowpane check.10 Tiner
testified: “I was very surprised. . . . [¶] I said Dean, I’m sorry I can’t invite you
in. I have company coming over. You should have called. . . . [¶] And he said
[‘][W]ell, I was here in the neighborhood, I just thought I’d stop by.[’] [¶] He
said, [‘]Did Jan [Cullins] tell you I was in town?[’] [¶] And I said yes, she did.
[¶] And he said, [‘]I told her not to tell you that.[’] [¶] I said, well, she did. I’m
sorry I can’t invite you in. You have to leave. I have . . . company coming over. I
have to go. [¶] And then [defendant] put his chin up like this, and said, [‘]Do you
know she stood me up today?[’] [¶] I said, no, I didn’t.” Tiner shut the door,
unsuccessfully attempted to reach Cullins by telephone, and then attended the
baseball game.
On the morning of April 14, Cheri Phinney again attempted to contact
Cullins, and Nancy McEachern answered the telephone. McEachern informed
Phinney that Cullins was not at home. Phinney drove to the apartment, arriving at
10
The sweater had been knitted by murder victim Bonnie Guthrie, whom
defendant had fatally strangled two days earlier.
16
about 8:30 a.m. McEachern was there with her fiancé. The drapes and curtains
were closed. Phinney noticed wood chips on the floor by the front door.11
Because Phinney and McEachern had expected Cullins to be at the
apartment, they began to search for a note from her, or a document with her
license plate number in the event they needed that information to ascertain from
local authorities whether Cullins had been involved in a traffic accident. In the
course of searching for this information, McEachern opened a bedroom closet
door and discovered the partially clothed body of Janette Cullins, lying on some
boxes. McEachern’s fiancé contacted the police.
c. The police investigation
Richard Thwing, a San Diego police officer assigned to the police
department’s homicide division, testified that the front door of Janette Cullins’s
apartment displayed signs that a forced entry had been made. Cullins’s body was
lying in the bedroom closet. Her neck bore what appeared to be a ligature mark.
Adolph Romero III testified that on the morning of April 14, 1984, as he
was walking to work near the Point Loma piers by North Harbor Drive in San
Diego, he retrieved a wallet he noticed in some bushes near the sidewalk. The
wallet contained a driver’s license and other identification items and credit cards
in the name of Janette Cullins. Cullins’s father later identified the wallet as having
belonged to her. Because Romero had an important appointment that morning, he
11
On cross-examination, the defense partially impeached Phinney insofar as
having seen wood chips by the front door on the morning that Cullins’s body was
discovered. Phinney acknowledged she had not recalled seeing the wood chips
until police mentioned this detail during one of their interviews with her several
months later. On redirect examination, Phinney testified that she told investigators
on April 14 that when she departed from the apartment two days earlier, she had
not noticed any damage to the doorjamb.
17
gave the wallet to a friend, Robert Pack, who gave the wallet to the police. During
the same week that Romero found the wallet, he also had seen parked within one
block of that location a white Datsun 280 ZX.
Dannis Nuckolls, who worked as a San Diego Police Department evidence
technician in April 1984, testified that in conducting an inventory of the contents
of Cullins’s wallet, he found a driver’s license and various identification cards, all
in the name of Bonnie Guthrie. On April 14, 1984, San Diego police officers
recovered Guthrie’s purse from the same North Harbor Drive area.
Hormez Guard, a forensic pathologist, performed an autopsy on Janette
Cullins at 9:00 a.m. on April 15, 1984. Dr. Guard testified that the cause of
Cullins’s death was asphyxia due to ligature strangulation, adding that he found
evidence the victim had suffered “a sharply cutting incised wound” inflicted “after
death, or . . . when the person was dying,” consistent with the use of a sharp knife.
There was no evidence of sexual assault. On cross-examination, Dr. Guard stated
that the time of Cullins’s death was between 24 and 48 hours prior to the time that
he performed the autopsy.
George Cullins, Janette’s father, testified that he had purchased a Triumph
TR 7 for Janette in 1980 or 1981. At the time of purchase, the vehicle bore a
personalized license plate that read “SHYLAS,” which she ultimately replaced.12
Susan Seminoff, a friend of Cullins’s, testified that in December 1980 she
and Janette went together to open checking accounts at San Diego Federal Bank,
which subsequently changed its name to Great American Bank (and later, after
Cullins’s murder, to Wells Fargo Bank.) Seminoff recalled that in selecting an
12
On April 14, 1984, Janette Cullins’s father noticed her car parked about one
and one-half blocks from her apartment. She usually parked her vehicle directly in
front of her apartment.
18
ATM card password, Cullins picked the word from her license plate, “SHYLAS.”
The word “SHYLAS” was written on the back of a torn Alpha Beta Supermarket
receipt recovered by investigators from the “Members Only” brand jacket found in
the Datsun 280 ZX that defendant was driving when he was arrested.
Sandra Homewood, an examiner of questioned documents employed by the
San Diego County District Attorney’s Office, testified that in comparing
exemplars of defendant’s handwriting with entries found in his address book,
Homewood discerned several “unique and conspicuous characteristics” and made
a “positive identification” that defendant had written in his address book the
names Susan Loyland (rape victim Barbara S.’s tenant, see pp. 5-8, ante), Janette
Cullins, Cathleen Tiner, and Susan Knoll. With regard to the slip of paper that
read “SHYLAS,” Homewood was unable to eliminate defendant or identify him as
the writer. In comparing the note to an exemplar of Janette Cullins’s handwriting,
Homewood indicated there existed “very strong indications” that Cullins had
written it.
Great American Bank records revealed that on April 13, 1984, a withdrawal
from Janette Cullins’s account in the amount of $60.00 (leaving an account
balance of $4.06) was made from an automatic teller machine located at the bank’s
Point Loma branch. A four-minute videotape of the transaction was introduced
into evidence and shown to the jury. The tape depicted a man wearing a sweater
(identified as having been knitted by Bonnie Guthrie) and a black jacket.
8. Defendant’s
Arrest
The prosecution introduced evidence pertaining to defendant’s April 17,
1984 arrest in Arizona that was substantially similar to that summarized in
People v. Carter, supra, ___ Cal.4th at page ___ [at pp. 10-11], with one
noteworthy addition, as follows. In the trial conducted in the present case, the
19
prosecution introduced the testimony of Jerald McKeand, a Deputy Sheriff
employed by Yavapai County, Arizona, who recalled that at the time of
defendant’s arrest, defendant wore cutoff jeans, a gray sweatshirt, tennis shoes,
and green socks. Defendant also wore a gold necklace that had belonged to Tok
Kim and a workout shirt that had belonged to Jillette Mills.
9.
The Contents of the Datsun 280 ZX
The prosecution introduced evidence pertaining to the contents of the
Datsun 280 ZX that defendant was driving when he was stopped and arrested in
Arizona. The evidence was substantially similar to that summarized in People v.
Carter, supra, ___ Cal.4th at page ___ [at pp. 11-12].
B.
The Defense Case
Outside the presence of the jury, the trial court informed defendant that he
had the right either to testify or not to testify. Defendant replied that he was not
going to testify.
Unlike defendant’s trial in Los Angeles County, in which the defense did
not present any evidence at the guilt phase (see People v. Carter, supra, ___
Cal.4th at page ___ [at p. 12]), the defense at this trial introduced the testimony of
witnesses pertaining to the Los Angles County murders of Susan Knoll, Jillette
Mills, and Bonnie Guthrie, the San Diego County murder of Janette Cullins, and
the San Diego rape of Barbara S.
1.
The Los Angeles County Murders
The defense introduced the testimony of Ronald C. Tulio, an employee of
the United States Postal Service, who had been Susan Knoll’s boyfriend and also
was acquainted with Knoll’s roommate, Jillette Mills, and their friend, Bonnie
Guthrie. Tulio testified that he and Knoll had lived together from July 1983 to
February 1984, after which Knoll moved in with Mills. In the immediate
20
aftermath of the Los Angeles County murders, members of the Culver City Police
Department interviewed Tulio.
On cross-examination, Tulio acknowledged that his breakup with Knoll had
been an emotional one, and that on the afternoon of April 12, 1984, Culver City
Police Department officers investigating the Los Angeles County murders arrested
him and detained him at the Culver City jail for four days. On the night of April
12, 1984, when Janette Cullins was murdered in San Diego County, Tulio was in
police custody.
When asked on cross-examination what defense counsel had told Tulio he
(Tulio) might testify about, Tulio recalled counsel stating: “He [defense counsel]
said all he wanted to do was have me say that obviously the Culver City Police
Department made a mistake in arresting me, saying that San Diego [Police
Department] could make the same mistake arresting the wrong guy.”
Culver City Police Officer Craig Bloor testified that at the time of the Los
Angeles County murders, he resided in an apartment building adjacent to the
building in which the bodies of Susan Knoll and Jillette Mills were discovered.
April 10, 1984, at approximately 8:30 p.m., Officer Bloor noticed someone he did
not recognize walking from the next-door apartments to the street. Upon learning
several days later of the double homicide that had occurred in the adjacent
building, Officer Bloor identified a photograph of Ronald Tulio as depicting the
man he saw on April 10.
On cross-examination, however, Officer Bloor testified that when he
observed Tulio at the police station, he recognized some similarities to the person
he saw on April 10 but also noticed several differences, and concluded Tulio was
not the man he had seen on that date. Instead, Officer Bloor identified defendant
in court as the man he noticed on April 10, adding that the man was wearing a
“ ‘Members Only’ style cut jacket that was popular then.”
21
On cross-examination, Officer Bloor acknowledged having spoken with
defendant on April 10: “I asked him what he was doing in the area, and he said he
was looking for a friend’s house . . . . [¶] . . . [¶] Then he says[,] ‘[W]hy, do I look
suspicious[?’] [¶] I said yeah, you could. Then he said[, ‘]It’s good that you
check.[’] Then he left.” Defendant held “some kind of blue folder or something
like that” that Officer Bloor recalled was “very similar” to a blue folder the
prosecution previously had introduced into evidence. The folder, which contained
a photograph of defendant, was among the items that investigators recovered from
Jillette Mills’s Datsun 280 ZX.
2.
The Murder of Janette Cullins
The defense presented the testimony of Michael T. Palermo, who in 1984
was employed as a San Diego Police Department latent print examiner. Palermo
testified that as part of the Cullins murder investigation, he examined latent
fingerprint impressions recovered from Cullins’s apartment, but none matched
defendant’s.
The defense also presented the testimony of William W. Loznycky, Jr.,
who in 1984 worked as a San Diego Police Department criminalist. Loznycky
testified that neither fibers found on the hand of Janette Cullins, nor head or pubic
hairs recovered from a blanket and sheets found in her residence, could be
matched to defendant or his clothing. On cross-examination, Loznycky testified
that he also examined an “O-type” bloodstain taken from the crime scene that did
not match the victim’s blood, but could have been left by defendant, whom
Loznycky characterized as having an “O” blood type.
Finally, the defense presented the testimony of Lauren Carville, who
resided in the apartment one floor below the one occupied by Cullins. Carville
testified that she and Cullins had sunbathed in their shared backyard during the
22
afternoon of April 12, during which time an acquaintance of Cullins visited with
Cullins for about 15 minutes. Carville saw Cullins depart in her vehicle that
evening at approximately 7:00 p.m., after which Carville went out. Returning at
approximately midnight, Carville noticed that Cullins’s vehicle was not parked in
front of their apartment building, where Cullins normally parked her car.
3.
The Rape of Barbara S.
The defense presented the testimony of San Diego Police Department
Officer Gene Loucks, who interviewed Barbara S. shortly after she was attacked.
Officer Loucks testified that Barbara S. was unable to recall several physical
attributes of her assailant.
II. Penalty Phase Evidence
A. The Prosecution’s Case
The
prosecution
introduced into evidence the abstracts of judgment from
defendant’s prior burglary convictions in Oregon and Alaska and, over
defendant’s objection, his prior rape conviction in Ventura County. (See People v.
Carter, supra, ___ Cal.4th at page ___ [at pp. 12-14].)
The prosecution also introduced evidence that a deputy sheriff discovered
in defendant’s San Diego County jail cell a homemade knife or “shank” wrapped
in masking tape, as well as a 22-inch pipe. San Diego Police Department Sergeant
Carlos Chacon testified over defendant’s objection that weapons such as those
seized from defendant’s cell could have been smuggled into the jail in parts and
assembled, and that the shank found in defendant’s cell was designed as an
offensive weapon to inflict serious bodily injury.
B.
The Defense Case
The defense introduced extensive evidence pertaining to defendant’s
difficult childhood and upbringing in Alaska (defendant is part Eskimo), as well as
23
evidence that he was an accomplished and cooperative television cameraman and
a good father and friend. The evidence was substantially similar to that
summarized in People v. Carter, supra, ___ Cal.4th at page ___ [at pp. 14-16].13
DISCUSSION
I. PRETRIAL
ISSUES
A. Double Jeopardy and Multiple Punishment
Several weeks prior to the commencement of jury selection, defendant filed
motions to dismiss the proceedings against him on the grounds of double jeopardy,
collateral estoppel, and the statutory prohibition against multiple punishment. In
the alternative, defendant moved “to sever the trial of the issues raised by his pleas
of once in jeopardy and former conviction . . . from the trial of his guilt or
innocence of the crimes charged in the information.” Defendant asserted that he
previously had been placed in jeopardy in the Los Angeles County proceedings,
and that during those proceedings the jury heard and considered both evidence and
argument suggesting defendant was responsible for the murder of Janette Cullins.
Having been sentenced to death in those proceedings, defendant sought, on state
and federal constitutional grounds, the dismissal of the San Diego County charge
that he murdered Cullins.
The trial court denied defendant’s motions, stating, among its reasons: “A
legal analysis based on the statutes, case law and facts of this case as presented to
13
In their brief, the People observe that certain passages set forth in
defendant’s summary of the mitigation evidence contained in the appellant’s
opening brief were proffered but were not presented to the jury. The People
contend the proffered testimony is irrelevant and should be stricken from the brief
pursuant to Code of Civil Procedure section 436. The point is a minor one, and in
fact the brief observes, albeit indirectly, that the evidence was not presented to the
jury. We therefore deny the People’s request.
24
the court for purposes of these motions shows there is no legal basis for a finding
by the court of once in jeopardy. . . . [¶] The double jeopardy argument is
meritless under the law and this fact situation, and therefore, the motion to dismiss
would be denied. [¶] . . . [¶] This motion is so meritless that in all honesty I don’t
see how anyone could call it incompetence of counsel not to enter the double
jeopardy plea at the arraignment. [¶] . . . . [¶] . . . I’m not going to allow the plea.
I can’t do that because in my discretion there’s no legal basis for it.”
On appeal, defendant reiterates the contentions he made in the trial court.
As we shall explain, defendant’s position is procedurally barred by his own
successful motion in the Los Angeles County proceedings to dismiss the Cullins
murder charge. (See People v. Carter, supra, ___ Cal.4th at p. ___ [at pp. 45-46].)
Even were we to ignore that procedural flaw, the trial court correctly determined
that neither double jeopardy, collateral estoppel, or section 654 considerations
barred the San Diego proceedings, and therefore properly rejected defendant’s
motions.14
1.
The Procedural Bar Based upon Defendant’s Successful
Motion in the Los Angeles Proceedings to Sever the San
Diego Charges
As we have explained in the companion appeal, People v. Carter, supra,
___ Cal.4th at page ___ [at p. 45], “the complaint against defendant charged all of
14
As we noted in another case: “With regard both to this claim and to every
other claim raised in his brief, defendant asserts that each alleged error violates not
only state law but multiple provisions of the federal and California Constitutions.
In addressing each claim discussed in this opinion, we have considered
defendant’s contention that the alleged error violates the federal and California
Constitutions, and our rejection of each claim of reversible error includes a
determination that the alleged error does not warrant reversal under the state or
federal Constitution.” (People v. Slaughter (2002) 27 Cal.4th 1187, 1199, fn. 2.)
25
the crimes allegedly committed in Alameda, Los Angeles, and San Diego Counties
in a single pleading. Defendant subsequently moved to dismiss the charges arising
from the Alameda and San Diego crimes committed against Tok Kim and Janette
Cullins, respectively. The prosecution did not oppose the motion, instead
informing defendant that if the motion were granted, the crimes committed in
Alameda and San Diego Counties would form the basis for a refiling of the
charges against defendant in those counties.” The trial court in Los Angeles
County thereafter granted defendant’s motion to dismiss the charges involving the
crimes committed in Alameda and San Diego Counties.
Because defendant previously sought and obtained in Los Angeles County
the dismissal of the San Diego charges, knowing that the dismissal would compel
the San Diego County prosecutor to file separate charges in that county for the
crimes defendant was alleged to have committed in that jurisdiction, defendant’s
contention that proceeding with the San Diego County prosecution was
fundamentally unfair or violative of his rights under the state and federal
Constitutions is not well-taken or worthy of extensive discussion. In view of the
evidence linking defendant to the murder of Janette Cullins, San Diego County
was entitled to prosecute defendant for that crime (as well as other crimes alleged
to have been committed by defendant within that jurisdiction). (§§ 777, 790;15
People v. Carpenter, supra, 21 Cal.4th at pp. 1038-1039; People v. Bradford
(1976) 17 Cal.3d 8, 15.) Having moved in Los Angeles County for dismissal of
the charges involving crimes committed in San Diego, notwithstanding the
15
Several years after defendant’s trials, section 790 was amended to permit in
certain circumstances the joint trial of murders committed in different counties.
(See now § 790, subd. (b), as amended by Stats. 1998, ch. 549, § 1; People v.
Carpenter (1999) 21 Cal.4th 1016, 1039, fn. 4.) These statutory revisions are not
material to our analysis.
26
prosecutor’s representation that the motion, if granted, would effect a severance of
the charges against defendant and a refiling in the respective counties in which the
crimes occurred, defendant cannot now complain that severance led to a second
murder prosecution.
2.
Defendant’s Jeopardy, Section 654, and Collateral
Estoppel Claims
Even if we were to assume that these claims are not barred, we would
conclude that defendant’s contentions based upon double jeopardy principles,
section 654, and collateral estoppel, lack merit.
a. Double jeopardy
The state and federal Constitutions declare that no person shall twice be
placed in jeopardy for the same offense. (U.S. Const., 5th Amend.; Cal. Const.,
art. I, sect. 15.) In Los Angeles County, defendant was placed in jeopardy for the
murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie. In those proceedings,
he was neither charged with, nor convicted of, any crimes pertaining to the murder
of Janette Cullins or the rape of Barbara S. Accordingly, jeopardy never attached
to defendant in the Los Angeles County proceedings for the crimes committed in
San Diego County. (See People v. Carpenter, supra, 21 Cal.4th at p. 1039, fn. 4.
[“ ‘ “[T]he murder of two persons, even by the same act, constitutes two offenses,
for each of which a separate prosecution will lie, and . . . a conviction or acquittal
in one case does not bar a prosecution in the other.” ’ [Citations.]”]; People v.
Medina (1995) 11 Cal.4th 694, 765 [rejecting the defendant’s contention that
double jeopardy principles should apply where the defendant already once had
defended against the charges at the penalty phase of the earlier trial]; see also
United States v. Watts (1997) 519 U.S. 148, 154-155.) Accordingly, defendant’s
double jeopardy argument must fail.
27
b. Section 654
Defendant’s assertion that section 654 barred the San Diego County
prosecutor from proceeding against him is deficient for reasons analogous to those
noted immediately above. At the time of defendant’s trial, section 654 prescribed:
“An act or omission which is made punishable in different ways by different
provisions of this code may be punished under either of such provisions, but in no
case can it be punished under more than one; an acquittal or conviction and
sentence under either one bars a prosecution for the same act or omission under
any other.” (Stats. 1977, ch. 165, § 11, p. 644, italics added.)
Because defendant was neither acquitted nor convicted of the murder of
Janette Cullins or the rape of Barbara S. in Los Angeles County, section 654 did
not bar the San Diego County proceedings instituted against him for those crimes.
(People v. Carpenter, supra, 21 Cal.4th at pp. 1038-1039 [rejecting the
defendant’s contention that section 654 barred separate prosecutions in Marin
County and Santa Cruz County for the crimes committed in each county]; see also
People v. Bradford, supra, 17 Cal.3d at pp. 13-17 [where criminal behavior began
in one county and, following a police chase, terminated in another, the crimes
committed in each county properly were tried separately in the respective
counties].)
c. Collateral estoppel
Defendant contends the prosecutor was barred by collateral estoppel
principles from trying defendant in San Diego County for the murder of Janette
Cullins and the rape of Barbara S. We observe: “Traditionally, collateral estoppel
has been found to bar relitigation of an issue decided at a previous proceeding ‘if
(1) the issue necessarily decided at the previous [proceeding] is identical to the
one which is sought to be relitigated; (2) the previous [proceeding] resulted in a
final judgment on the merits; and (3) the party against whom collateral estoppel is
28
asserted was a party or in privity with a party at the prior [proceeding].’ [¶] It is
implicit in this three-prong test that only issues actually litigated in the initial
action may be precluded from the second proceeding under the collateral estoppel
doctrine. [Citation.] An issue is actually litigated ‘[w]hen [it] is properly raised,
by the pleadings or otherwise, and is submitted for determination, and is
determined . . . .’ ” (People v. Sims (1982) 32 Cal.3d 468, 484, fn. omitted; see
also People v. Taylor (1974) 12 Cal.3d 686, 695 [the doctrine’s purposes are:
“(1) to promote judicial economy by minimizing repetitive litigation; (2) to
prevent inconsistent judgments which undermine the integrity of the judicial
system; and (3) to provide repose by preventing a person from being harassed by
vexatious litigation.”].)
Here, the circumstance that the jury in the Los Angeles County proceedings
never was asked to determine, and did not determine, defendant’s guilt or
innocence of the murder of Janette Cullins and the rape of Barbara S. defeats
defendant’s claim of collateral estoppel. Nor would any of the purposes of the
doctrine noted above be served by its application here.
B. Motion
to
Disqualify the Trial Court Judge
On November 5, 1990, several months prior to the commencement of trial,
defendant filed a motion pursuant to Code of Civil procedure section 170.1,
subdivision (a)(6), to disqualify San Diego County Superior Court Judge
Melinda J. Lasater from presiding at his trial.16
16
Code of Civil Procedure section 170.1, subdivision (a) provides in pertinent
part:
“(a) A judge shall be disqualified if any one or more of the following is
true:
“[¶] . . . [¶]
“(6) For any reason (A) the judge believes his or her recusal would further
(footnote continued on next page)
29
The basis for defendant’s motion was that Judge Lasater had maintained a
“working relationship and a friendship with the prosecutor in this case [San Diego
County Deputy District Attorney James Pippin] such that a person aware of the
facts might reasonably entertain a doubt that the judge would be able to be
impartial.”17
Judge Lasater thereafter conducted a hearing in which she reviewed her
contacts with Mr. Pippin that spanned a period of approximately 16 years, noting
the dates when they had worked together and general information pertaining to
their social contacts. During the hearing, Judge Lasater recalled, among other
things, that she and Mr. Pippin had worked together in the San Diego County
District Attorney’s Office until she left that office in 1987, that her family and his
had gone camping with other families, that her husband had purchased his son’s
dirt bike approximately 10 years prior to the hearing, that there had been sporadic
(footnote continued from previous page)
the interests of justice, (B) the judge believes there is a substantial doubt as to his
or her capacity to be impartial, or (C) a person aware of the facts might reasonably
entertain a doubt that the judge would be able to be impartial. Bias or prejudice
toward a lawyer in the proceeding may be grounds for disqualification.”
17
In defendant’s statement of disqualification, one of his attorneys, Josephine
Dedina, declared: “I accompanied Deputy District Attorney James Pippin to his
office to arrange a telephone call to Judge Lasater to set a schedule for hearings.
Mr. Pippin stated that he had known Judge Lasater for a long time. He had been
her supervisor when she worked as a Deputy District Attorney. Mr. Pippin
informed me that Judge Lasater had participated in his daughter’s wedding in the
summer of 1990. Mr. Pippin also stated that if the defense in this case filed the
usual defense motions to declare the death penalty unconstitutional, he knew
Judge Lasater would immediately deny them. [¶] This past working relationship,
where the judge was the subordinate to the prosecutor, together with a relationship
where Judge Lasater participated in the prosecutor’s daughter’s wedding several
months ago, constitute facts that a person aware of those facts might reasonably
entertain a doubt that the judge would be able to be impartial.”
30
social contacts at parties, that she had performed the wedding of Mr. Pippin’s
daughter at his daughter’s request in August 1990, that his daughter gave her a
necklace similar to necklaces given to the bridesmaids, and that Mr. Pippin’s
daughter had “house sat” for her approximately one year earlier, for which his
daughter had been paid a “minimal amount.” Judge Lasater attached a copy of the
hearing transcript to her answer.18
18
Judge Lasater’s answer, in pertinent part, declared: “The defendant in this
case has expressed concern over my ability to be impartial due to a perceived
personal relationship with the prosecutor in this case, Mr. James Pippin. After
reviewing the statement of disqualification, I conducted a hearing with all parties
and their counsel present in which I detailed the contacts I could remember with
Mr. Pippin over the last 17 years. . . . [¶] Although I was with the district
attorney’s office for almost 13 years, I have had relatively few contacts with Mr.
Pippin. He was my supervisor for only four months in 1974, more than 15 years
ago. During my last five years with the district attorney’s office, I was a division
chief assigned to the Juvenile Division and Mr. Pippin was assigned as a division
chief in the Superior Court division. We were essentially equals in this capacity
and had very little contact. [¶] The social functions we both attended were
incidental to our professional responsibilities with the district attorney’s office,
rather than a reflection of any close personal friendship. Our social interaction
over the years has been no different than that of any other member of the legal
community who occasionally engages in social activities with members of the
profession. [¶] It is common practice for judges of this Court to perform wedding
ceremonies for members of the legal community and their families. My
agreement to perform the wedding ceremony for Mr. Pippin’s daughter was such
an arrangement and was done at his daughter’s request, rather than Mr. Pippin’s. I
was not paid to perform the ceremony and specifically indicated that no fee should
be paid. [¶] Mr. Pippin’s alleged comments regarding my predilection in ruling
on motions dealing with constitutional challenges to the death penalty, are also
unfounded. As I stated at the time of the hearing referenced above, I have never
seen such a motion and would consider it premature to assume such a posture until
I had been presented with the issue and reviewed it. [¶] I am neither biased nor
prejudiced for or against Mr. Pippin, the defendant or his counsel, and am satisfied
that I can perform my duty to decide the issues presented fairly and impartially in
this case.”
31
On November 30, 1990, Judge Allen J. Preckle, selected by agreement of
the parties, conducted a hearing on defendant’s motion. Relying on United Farm
Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104, and Leland
Stanford Junior University v. Superior Court (1985) 173 Cal.App.3d 403, 408, the
court observed that “[t]he standard [for disqualification set forth in Code of Civil
Procedure, section 170.1, subdivision (a)(6)] is fundamentally an objective one.”
Reviewing the nature of the professional and social contacts between Judge
Lasater and Mr. Pippin, the court viewed “as weightless, particularly given the
substantial passage of time, the assertion that a reasonable person would doubt
Judge Lasater’s impartiality because of her past association with Mr. Pippin . . . .
[¶] . . . [¶] This court is further satisfied that any, albeit unreasonable doubt,
concerning Judge Lasater’s impartiality in this case would be erased by a
reasonable person’s being apprised of Judge Lasater’s excellent reputation for
integrity and fierce independence. [¶] This court, therefore, finds that a
reasonable person, aware of all the facts, would not reasonably entertain a doubt
that Judge Lasater will be able to be impartial in this case.” The court thereafter
denied defendant’s motion.
Defendant did not seek review in the Court of Appeal by way of a petition
for writ of mandate, the procedure required by Code of Civil Procedure section
170.3, subdivision (d).19
In his appeal to this court, defendant contends that the superior court below
erred in denying his motion to disqualify Judge Lasater. Acknowledging his
19
Code of Civil Procedure, section 170.3, subdivision (d), provides: “The
determination of the question of the disqualification of a judge is not an appealable
order and may be reviewed only by a writ of mandate from the appropriate court
of appeal sought within 10 days of notice to the parties of the decision and only by
the parties to the proceeding.”
32
failure to comply with the writ review requirement set forth in Code of Civil
Procedure section 170.3, subdivision (d), defendant nevertheless asserts as a
“structural defect” reviewable on appeal the “deni[al of] due process of law in
violation of [the] state and federal Constitutions because the judge who presided
over his case and who rendered the sentence of death was not impartial.”
We find no merit in defendant’s position. His failure to comply with the
requirements of Code of Civil Procedure, section 170.3, subdivision (d), precludes
him from challenging the denial of his statutory disqualification motion on appeal
from the judgment rendered in the trial court. (People v. Brown (1993) 6 Cal.4th
322, 333 (Brown).)
Even if we were to overlook the procedural deficiency inherent in
defendant’s challenge to the denial of his disqualification motion, we would find
no merit in the assertion, implicit in defendant’s argument, that Judge Lasater had
a responsibility to recuse herself in view of her prior professional and casual social
relationship with Mr. Pippin. Defendant provides no statutory or case law
authority in support of that position, and we are aware of none. Because virtually
all judges are drawn from the ranks of the legal profession, such prior relationships
are neither unusual nor dispositive. (See United Farm Workers of America v.
Superior Court, supra, 170 Cal.App.3d 97, 100 [“[T]he proper performance of
judicial duties does not require a judge to withdraw from society and live an
ascetic, antiseptic and socially sterile life. Judicial responsibility does not require
shrinking every time an advocate asserts the objective and fair judge appears to be
biased. The duty of a judge to sit where not disqualified is equally as strong as the
duty not to sit when disqualified.”].)
In our view, Judge Preckle correctly determined that on the facts presented
in the pleadings below, a reasonable person would not entertain a doubt as to
Judge Lasater’s impartiality. (See United Farm Workers of America v. Superior
33
Court, supra, 170 Cal.App.3d at pp. 105-106; cf. Sincavage v. Superior Court
(1996) 42 Cal.App.4th 224, 230-231 [disqualification proper where, 13 years
earlier, judge had been a prosecutor representing the People in other proceedings
against the defendant].) Accordingly, disqualification was not mandated in the
present case.
Defendant asserts a nonstatutory due process claim based upon evidence of
bias adduced at trial. We need not decide whether defendant has forfeited this
claim by failing to file a writ petition on this ground (see generally Brown, supra,
6 Cal.4th at p. 336), because his claim lacks merit. Specifically, defendant cites
Judge Lasater’s contempt order, issued on the eve of the penalty phase (June 3,
1991), against defense counsel and defendant for failure to provide penalty phase
discovery to the prosecution, as well as Judge Lasater’s observation, made in
considering defendant’s application to modify the death sentence rendered by the
jury, that defendant “frankly had no intention of testifying in Los Angeles.”20
Neither of the actions cited by defendant, extracted from a trial court record
in excess of 9,000 pages, remotely approaches the threshold required to establish
the existence of judicial bias. (See People v. Clark (1992) 3 Cal.4th 41, 143 [“The
question for us to decide is whether the judge ‘officiously and unnecessarily
usurp[ed] the duties of the prosecutor . . . and in so doing create[d] the impression
that he [was] allying himself with the prosecution . . . .’ ”].) Moreover, our
20
Far from exhibiting bias, Judge Lasater’s comment in fact was made while
explaining the basis for the court’s denial of defendant’s claim that he had been
denied his right to testify in the Los Angeles proceedings. Her comment was
based upon her review of the transcripts of both proceedings as well as her
discussions with defendant under seal, and was made in the specific context of
expressing the view that defendant “was using [the denial of the right to testify]
issue as a tactical means for obtaining a reversal . . . .”
34
independent review of the entire record reveals a trial court judge who was
scrupulously fair and courteous to each side, and whose rulings exhibited neither
bias nor prejudice. We therefore reject defendant’s claim.
C. Motion
to
Exclude
Evidence of Wood Chips
At the preliminary hearing, Cheri Phinney testified that in April 1984, she
decided to move into the apartment occupied by Janette Cullins. On April 12,
Phinney was at the apartment, painting her new bedroom and bathroom. Phinney
recalled that the carpet area in the living room near the front door had been
vacuumed. At the time Phinney departed from the apartment, between 7:00 and
7:15 p.m., she did not notice any damage to the doorjamb surrounding the front
door or any wood chips on the carpet beneath the door latch. When Phinney
returned to the apartment on the morning of April 14, shortly before the discovery
of Janette Cullins’s body, she noticed wood chips on the floor, as depicted in a
photograph introduced by the prosecution. On cross-examination, Phinney
acknowledged that on April 14, she did not mention the wood chips to the
investigating detective and she also failed to mention the wood chips during her
testimony at defendant’s trial in Los Angeles County.
San Diego Police Department Homicide Detective James Shively testified
that as part of his investigation of the crime scene on April 14, he directed that the
wood chips be photographed. On cross-examination, Detective Shively
acknowledged he did not mention the wood chips in the crime scene report that he
prepared. He further acknowledged that under his direction, evidence technician
35
[Dannis] Nuckolls removed a portion of the doorjamb. Detective Shively did not
recall whether he directed anyone to collect the wood chips.21
San Diego Police Department Sergeant Douglas Naliboff testified that
when he responded to the crime scene on the morning of April 14, the doorjamb
“appeared that it had been pried open. There were wood chips separated from the
doorjamb itself and laying on the floor.” He identified the prosecution’s
photographs as depicting the doorjamb and wood chips that he observed.
Defendant moved to exclude all evidence related to the condition of the
front door of Janette Cullins’s apartment, including testimony regarding the
doorjamb and the wood chips, and photographs of the wood chips. The basis for
his motion was that the prosecution assertedly had “failed to preserve the wood
debris, and carelessly removed the door and doorjamb removed and photographed
[sic].” Defendant asserted that the prosecution’s failure to preserve the
“potentially exculpatory wood chips” violated defendant’s constitutional rights to
a fair trial and due process of law, and that pursuant to Evidence Code section 352
the testimonial or photographic evidence was not admissible in the absence of the
wood chips themselves.
The trial court denied defendant’s motion, finding: “Defendant’s . . .
motion to exclude . . . the wood chips evidence and doorjam[b] is denied. There is
an insufficient showing of bad faith by law enforcement as shown in [Arizona v.]
Youngblood [(1988) 488 U.S. 51]. In addition, the probative value of the
evidence more than substantially outweighs any prejudice of the failure to
preserve the wood chips. [¶] The record should reflect that law enforcement took
21
At trial, Nuckolls testified that he took photographs of the doorjamb and the
wood chips and subsequently removed a portion of the doorjamb, but did not
retain the wood chips and did not know what happened to them.
36
pictures of the evidence from several angles and preserved the door jam[b], itself.
They apparently did not actually preserve the wood chips which are reflected in
the pictures.”
On appeal, defendant contends the trial court erred in denying his motion to
exclude this evidence. He argues that because the charge of burglary, as well as
the burglary and lying-in-wait special circumstances, each depended upon the
prosecution establishing that defendant unlawfully entered Cullins’s apartment,
“the government[’s] fail[ure] to preserve evidence which was material and
potential[ly] exculpatory” deprived him of a myriad of state and federal
constitutional rights. Defendant further asserts that the photographs of the wood
chips could have been taken after the door jamb was removed, and thus the failure
to preserve the wood chips deprived defendant of the opportunity to demonstrate
that the presence of the chips “may have been the result of Nuckolls’s post-crime
removal of wood.” Defendant maintains that the trial court’s denial of his motion
to exclude evidence was not harmless beyond a reasonable doubt and requires
reversal, and further that the trial court’s ruling constituted an abuse of discretion
under Evidence Code section 352.
For the reasons that follow, defendant’s position lacks merit.
“Law
enforcement
agencies have a duty, under the due process clause of
the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a
significant role in the suspect’s defense.’ (California v. Trombetta (1984) 467
U.S. 479, 488 [104 S.Ct. 2528, 2534, 81 L.Ed2d 413]; accord, People v. Beeler
(1995) 9 Cal.4th 953, 976 [39 Cal.Rptr.2d 6076, 891 P.2d 153].) To fall within
the scope of this duty, the evidence ‘must both possess an exculpatory value that
was apparent before the evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably
available means.’ (California v. Trombetta, supra, 467 U.S. at p. 489 [104 S.Ct.
37
at p. 2534]; People v. Beeler, supra, 9 Cal.4th at p. 976). The state’s
responsibility is further limited when the defendant’s challenge is to ‘the failure of
the State to preserve evidentiary material of which no more can be said than that it
could have been subjected to tests, the results of which might have exonerated the
defendant.’ (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [109 S.Ct 333, 337,
102 L.Ed.2d 281].) In such case, ‘unless a criminal defendant can show bad faith
on the part of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.’ (Id. at p. 58 [109 S.Ct. at p. 337];
accord, People v. Beeler, supra, 9 Cal.4th at p. 976.)
“On review, we must determine whether, viewing the evidence in the light
most favorable to the superior court’s finding, there was substantial evidence to
support its ruling. (People v. Griffin (1988) 46 Cal.3d 1011, 1022 [251 Cal.Rptr.
643, 761 P.2d 103].)” (People v. Roybal (1998) 19 Cal.4th 481, 509-510; see also
People v. Cooper (1991) 53 Cal.3d 71, 810.)
Under this standard, the court below did not err in concluding there was no
showing of bad faith by law enforcement in failing to preserve the evidence; none
of the testimony at the preliminary hearing (or trial) suggested otherwise.
Similarly, nothing in the record suggests that the court below erred in determining
that the wood chips did not have an exculpatory value that was apparent prior to
their disappearance, or that the wood chip evidence was of such a nature that
defendant was unable to obtain comparable evidence by other reasonably available
means. (See People v. Cooper, supra, 53 Cal.3d 771, 810.)
Nor do we find any abuse of discretion in the court’s determination that the
probative value of the evidence substantially outweighed any prejudice that could
be attributed to the failure to preserve the wood chips that had been observed by
Cheri Phinney and Sergeant Naliboff. Investigators photographed the wood chip
evidence. The photographic evidence indicated that someone had forced an entry
38
into Janette Cullins’s apartment, and therefore was probative as to the burglary
charge and the burglary special circumstance. Defendant does not demonstrate
how, in the absence of the wood chips themselves, the trial court abused its
discretion in denying defendant’s motion to exclude the testimony and
photographs of the wood chips. Defendant’s assertion that removal of a portion of
the doorjamb during the investigation might have created the wood chips is
speculative and has no bearing on whether the trial court abused its discretion in
denying defendant’s motion to exclude the evidence.
II. JURY SELECTION ISSUES
Defendant contends the trial court erroneously prohibited sequestered voir
dire examination of prospective jurors, unfairly restricted the examination of the
prospective jurors by counsel, conducted voir dire in an oppressive atmosphere,
improperly instructed prospective jurors, and applied an incorrect standard to
exclude persons from the jury. In view of these asserted errors, defendant
contends he was denied a myriad of rights guaranteed to him under the state and
federal Constitutions and therefore his conviction and sentence must be reversed.
As we shall explain, none of defendant’s contentions has merit.
A. Defendant’s Motion for Sequestered Voir Dire
At the commencement of jury selection, defendant moved for sequestered
voir dire of prospective jurors pursuant to Hovey v. Superior Court (1980) 28
Cal.3d 1. The prosecution joined in the request. The trial court denied the motion,
stating that “Proposition 115 is the law and is applicable. . . . [¶] And I intend to
follow Proposition 115, and that includes, at this particular point in time, I’m not
going to be using a sequestered inquiry of the jurors. [¶] In making that decision,
I’m exercising my discretion as well as requested by the People.” When defendant
renewed his request, the trial court repeated its denial.
39
On appeal, defendant contends he was “denied meaningful voir dire by the
court’s improper procedures,” including the trial court’s denial of sequestered voir
dire. He is mistaken. Proposition 115, which took effect on June 6, 1990
(approximately eight months prior to jury selection here), enacted Code of Civil
Procedure section 223, which in relevant part provided (prior to its amendment in
2000): “In a criminal case, the court shall conduct the examination of prospective
jurors[, and such examination] . . . . shall, where practicable, occur in the presence
of other jurors in all criminal cases, including death penalty cases.” (Stats. 1990,
p. A-245.)22
Moreover, we repeatedly have rejected contentions similar to those
advanced by defendant. (See, e.g. People v. San Nicholas (2004) 34 Cal.4th 614,
633-634; People v. Ramos (2004) 34 Cal.4th 494, 513-515; People v. Slaughter
(2002) 27 Cal.4th 1187, 1199; People v. Box (2000) 23 Cal.4th 1153, 1180-1181;
see also People v. Waidla (2000) 22 Cal.4th 690, 713 [Proposition 115
“abrogates” the requirement found in Hovey v. Superior Court, supra, 28 Cal.3d at
22
At the time of defendant’s trial, Code of Civil Procedure section 223 in full
provided as follows (Prop. 115, § 7, as approved by voters, Primary Elec. (June 5,
1990)):
“In a criminal case, the court shall conduct the examination of prospective
jurors. However, the court may permit the parties, upon a showing of good cause,
to supplement the examination by such further inquiry as it deems proper, or shall
itself submit to the prospective jurors upon such a showing, such additional
questions by the parties as it deems proper. Voir dire of any prospective jurors
shall, where practicable, occur in the presence of the other jurors in all criminal
cases, including death penalty cases.
“Examination of prospective jurors shall be conducted only in aid of the
exercise of challenges for cause.
“The trial court’s exercise of its discretion in the manner in which voir dire
is conducted shall not cause any conviction to be reversed unless the exercise of
that discretion has resulted in a miscarriage of justice, as specified in Section 13 of
Article VI of the California Constitution.” (Stats. 1990, p. A-245.)
40
page 115, of individual sequestered voir dire examination of prospective jurors
during the death qualification portion of jury selection in a capital case]; Tapia v.
Superior Court (1991) 53 Cal.3d 282, 288 [applying Proposition 115 to crimes
committed prior to enactment of the new statute, where (as here), the trial is
conducted after its enactment].) Defendant has not provided us with any
persuasive basis for revisiting the holdings in those decisions, and we decline to do
so.
The trial court made clear that its ruling was guided by the provisions set
forth in Code of Civil Procedure section 223. The court also explained at length
the basis for its exercise of discretion in denying the requests for sequestered voir
dire. No error or abuse of discretion appears.
B.
The Trial Court’s Imposition of Time Limits on Voir Dire
The trial court permitted counsel for each party to have 60 minutes to
conduct voir dire of the first 20 prospective jurors, and gave 30 minutes to each
side for each additional group of 9 jurors. The defense and prosecution each
protested vociferously that the court’s limits were unduly restrictive.23 The parties
23
In seeking additional time in which to conduct the voir dire examination,
defense counsel argued: “I would like more time than 60 minutes for the first 20
[jurors], and more time than 30 minutes with the fill-in jurors. [¶] Since it appears
to me that the time being set is more or less arbitrary, in other words, Your Honor
is just picking a figure sort of out of the air, 60 minutes, it could just as well be 90,
120, something like that. [¶] Sixty minutes is only an average of three minutes
per juror, and that simply is not enough in a capital case.”
Defense cocounsel added: “No disrespect to the court, the speed of this, I
don’t have time to reflect. . . . I do not have time to consider[,] to reflect, to
confer. One of the purposes to hav[ing] two attorney[s] is to be able to confer, and
I don’t have the time to reflect and think this is the right decision. And I would
appreciate the time to do that after the questions to be able to confer with [lead
defense counsel] . . . . [¶] . . . I don’t want to be . . . speeded along on this without
making the right objections for the record. And I feel at some points that I’m not
(footnote continued on next page)
41
repeatedly moved the court to reconsider its ruling, each side citing the difficulty
of ascertaining a prospective juror’s views during group voir dire within the time
allotted by the trial court. The court denied these requests, expressing confidence
that the process would afford counsel an adequate amount of time in which to
conduct the voir dire examination.24
(footnote continued from previous page)
thinking swiftly enough because of the time constraints.”
The prosecutor similarly argued: “To tell us that you only get an average of
three minutes per juror to decide a case I think is unfair, and I don’t think there is a
legitimate reason for it.”
24
The trial court informed the parties in relevant part as follows:
“You’ll be permitted to ask [prospective] jurors questions which are
properly phrased and not repetitive of what is in the questionnaire directly
yourselves. . . .
“[¶] . . . [¶]
“Now, let me give you a caveat on that: I don’t want to be going back over
what’s in the questionnaires with them.
“[¶] . . . [¶]
“[K]eep in mind if it’s truly a follow-up question, something that’s in the
questionnaire, you should be giving it to me.
“[¶] . . . [¶]
“You can go to L.A. where they don’t allow any inquiry [by counsel on
voir dire], in some instances, even on capital cases.
“[¶] . . . [¶]
“But logic would dictate that if your main concern happens to be someone’s
reaction to sexual assault, or you have a particular [prospective] juror who you
think you have got a problem with . . . a particular issue, or if your main concern
with a particular witness is their belief on the death penalty, then you’re going to
want to ask to spend more time on that particular [prospective] juror on those
areas.
“What you’re going to want to do is ask some of your general questions . . .
as a whole of the panel, and then to spot-check certain people who you’re not
really comfortable with.
“I mean there are different techniques of voir dire.
“If you decide that you want to go through each [prospective] juror one by
one and ask the same set of questions, you’re going to end up with three minutes
(footnote continued on next page)
42
(footnote continued from previous page)
per [prospective] juror.
“That’s a decision that each side is going to have to make.
“But that is going to be the decision that you’re going to make, because I
believe that based upon my experience in using this technique and watching
attorneys inquire, that you can cover more than adequately with 20 [prospective]
jurors in 60 minutes what I have told you that you could cover.
“[¶] . . . [¶]
“When I initially g[a]ve you the time periods, I believe I said . . . : that you
would have the opportunity to . . . give me follow-up questions on the
questionnaire.
“This is in addition to any questions I may decide to ask.
“Second of all, that if I didn’t follow-up on an area in a questionnaire
adequately and you want me to ask some more questions on a particular subject on
a particular [prospective] juror, that I would be giving you that opportunity to ask
me to do that.
“This is all prior to you asking questions.
“Finally, I said that each . . . side would have one hour to inquire on those
limited subjects without repeating questions in the questionnaire.
“I also said that if there was a response from a particular [prospective] juror
that needed additional follow-up that seemed to be out of the ordinary, that I
would be taking that into consideration in looking at the time period which you
have.
“Now, if I feel, after I have done the inquiry of the [prospective] jurors, that
there are some problem [prospective] jurors that you’re going to need additional
time with, I’m going to give you the time up front before you start your hour.
“If you hit upon something that hasn’t surfaced, then what you need to do is
prior to your hour[’s] expiration say to me[,] [‘]Judge, I need some additional
time. I think, I’m concerned about this particular area.[’]
“I’ll let you know at that time, but for your planning purposes . . . I’m not
going to change the hour and [the] 30 minute [time periods], because I think you
can . . . more than adequately cover the subjects that you have if you are
concentrating on those particular subjects.
“If it appears based upon the inquiry that it’s not working, I’m going to
make a modification on the spot.
“[¶] . . . [¶]
“But I am still comfortable in light of your positions, and I can understand
your trepidation at trying to do the inquiry in one hour, but in the long run an hour
efficiently used can be very effective, and more effective than if you were to spend
two or three hours and felt as if you had all the additional time.
(footnote continued on next page)
43
On appeal, defendant contends the trial court’s restriction of the amount of
time permitted each side in obtaining answers to questions was improper and
resulted in a denial of meaningful voir dire. We have observed that the adequacy
of voir dire is a matter “ ‘ “not easily subject to appellate review. The trial judge’s
function at this point in the trial is not unlike that of the jurors later on in the trial.
Both must reach conclusions as to impartiality and credibility by relying on their
own evaluations of demeanor evidence and responses to questions.” ’ ” (People v.
Holt (1997) 15 Cal.4th 619, 661, quoting Mu’Min v. Virginia (1991) 500 U.S. 415,
424; see also People v. Cardenas (1997) 53 Cal.App.4th 240, 247 [“ ‘The exercise
of discretion by trial judges under the new system of court-conducted voir dire is
accorded considerable deference by appellate courts.’ ”]; People v. Taylor (1992)
5 Cal.App.4th 1299, 1313 [same].) The applicable standard is a demanding one:
“Unless the voir dire by a court is so inadequate that the reviewing court can say
that the resulting trial was fundamentally unfair, the manner in which voir dire is
conducted is not a basis for reversal. [Citation.] A fortiori, the same standard of
reversible error applies when both the court and counsel participate in the voir
dire.” (People v. Holt, supra, 15 Cal.4th at p. 661; see also People v. Bolden
(2002) 29 Cal.4th 515, 538 [same].)
Our review of the record reveals the voir dire examination conducted here
was more than adequate. The trial court informed the parties that if, in addition to
the initial questions posed by the court and by each side, counsel desired that
further inquiries be made of a prospective juror, counsel would be given the
opportunity to request that the court ask follow-up questions directed to those
(footnote continued from previous page)
“But if we run into a problem, you know, I’m going to be watching for it,
and I’m willing to listen to your positions on it.”
44
particular jurors. “The right to voir dire, like the right to peremptorily challenge
[citation], is not a constitutional right but a means to achieve the end of an
impartial jury. [Citation.] . . . [I]t is the duty of the trial judge to restrict the
examination of the prospective jurors within reasonable bounds so as to expedite
the trial. [Citations.]” (People v. Wright (1990) 52 Cal.3d 367, 419; see also
People v. Bittaker (1989) 48 Cal.3d 1046, 1086.)
In view of the circumstance that the parties clearly were given the
opportunity to elicit information on voir dire, we conclude, consistent with our
foregoing pronouncements, that the time limits of which defendant complains did
not prevent defense counsel from making reasonable inquiries into the fitness of
prospective jurors to serve on the jury. No error or abuse of discretion appears.
(See e.g., People v. Carpenter (1997) 15 Cal.4th 312, 353-354; People v. Lucas
(1995) 12 Cal.4th 415, 480.) 25
Moreover, even were we to assume that the trial court abused its discretion
in restricting voir dire, defendant has failed to establish prejudice. (See People v.
25
We also observe that, pursuant to Code of Civil Procedure section 205, the
trial court permitted the use of written juror questionnaires, and that each of the
questionnaires employed was comprised of 135 questions that spanned 30 pages.
(See fn. 24, ante.)
Defendant contends the trial court improperly restricted the scope of the
questions used in the questionnaire, and specifically notes the trial court’s refusal
to permit questions “that might suggest ‘substantial impairment’ under
Wainwright v. Witt (1985) 469 U.S. 412, deciding instead that the questionnaire
should only inquire whether a juror would ‘automatically’ refuse or vote for death
or life imprisonment.” The trial court was not required to ensure that a particular
question regarding a specific legal doctrine would be asked. (See People v.
Johnson (1989) 47 Cal.3d 194, 1224.) In any event, in passing, we observe that
nine questions (including numerous subquestions) spanning five pages of the very
thorough questionnaire were aimed directly at eliciting the views of prospective
jurors regarding the death penalty.
45
Carpenter, supra, 15 Cal.4th at p. 354; see also People v. Bittaker, supra, 48
Cal.3d at p. 1082 [no abuse of discretion where the court formulated four specific
questions to ask prospective jurors during the death-qualifying process, and
refused to permit further questions from counsel].) The trial court’s rulings were
minimally restrictive, and the circumstance that both parties passionately argued
against them suggests that the court’s restrictions did not disproportionately
impact one side to the advantage of the other. Jury selection required eight court
days, a period of time hardly indicative of an unduly rapid proceeding.
C. The Atmosphere in the Courtroom
At certain points during the voir dire examination, defense counsel
complained about the overcrowded conditions occasioned by the large number of
prospective jurors who had been directed into the courtroom. At one point,
counsel declared: “There is a carnival atmosphere in here not fitting for this kind
of case. We’ve got a hundred and I don’t know how many people jammed into
this one courtroom. Jurors are complaining. It is extremely uncomfortable, not
only for the jurors, but for counsel. And the whole . . . atmosphere militates
against the calm deliberation which we ought to be applying to this case.” On
another occasion, the court informed the jury venire: “I don’t want you to think
that since all these chairs are so close up here that I’m just doing that to harass
you, because given the way the last few days have gone for most of us, I wouldn’t
be surprised if you thought that.” On yet another occasion, the court indicated that
it had received a note from a prospective juror that read, “Can you lower the room
temperature, it’s too stuffy, etc.,” to which the court responded, “We didn’t need
to have him tell us.”
Defendant characterizes the atmosphere in the courtroom during the voir
dire examination as having been “oppressive,” a circumstance that he contends ⎯
46
when viewed either singly or together with the trial court’s other asserted errors ⎯
warrants reversal. We disagree. The panel was comprised of 140 prospective
jurors. Although the warm, crowded conditions in the courtroom undoubtedly
were neither optimum nor particularly comfortable, they did not deprive defendant
of any rights to which he was entitled. To the extent defendant’s claim is directed
at the difficult “working conditions” under which the defense was forced to
operate during voir dire, the prosecution was compelled to perform under the
identical challenging conditions. To the extent defendant’s claim is directed at the
potentially adverse impact the conditions may have had upon prospective jurors,
we observe that defendant was entitled to an impartial jury, not a contented one.
Although defendant’s representations as to the nature of the courtroom atmosphere
portray a challenging environment for all concerned, we observe that the eight-day
duration of these conditions was not inordinately lengthy.
Significantly, the defense had six peremptory challenges remaining when it
accepted the jury ⎯ a circumstance indicating that, notwithstanding defendant’s
arguments regarding the “oppressive” nature of the courtroom atmosphere, the
defense was not dissatisfied with the jury as sworn. Indeed, the defense requested
that the jury be sworn. “ ‘When the jury was finally selected, defendant did not
claim that any juror was incompetent, or was not impartial. We therefore find no
prejudicial error.’ ” (People v. Carpenter, supra, 15 Cal.4th at p. 354.)26
26
The trial court denied the parties’ joint request to increase the number of
their respective peremptory challenges from 20, the amount specified under Code
of Civil Procedure section 231, subdivision (a), to 26.
47
D. The Trial Court’s Voir Dire Examination of Prospective
Jurors
Defendant contends the trial court misled prospective jurors, some of whom
eventually were sworn as jurors in the case, by conducting an “improper and
misleading voir dire examination [that] left the defense guessing at bias or
prejudice,” and by misstating the law related to the penalty phase of the
proceedings. Defendant refers to assertedly imprecise questions posed by the trial
court, and its repeated use during voir dire of inquiries such as, “would you
hesitate to vote for the death penalty, and would you have a tendency to vote for
the death penalty?” (Italics added.) Further, in response to questions posed by
prospective jurors as to whether the “weighing process” described by the court
would involve a “moral decision,” the trial court answered in the negative.
Defendant contends that this response by the court conflicted with CALJIC No.
8.88 (1989 rev.), which specifically instructed jurors that “You are free to assign
whatever moral or sympathetic value you deem appropriate to each and all of the
various factors you are permitted to consider.” (Italics added.) Defendant further
asserts that “the record does not demonstrate adequate bases for trial court rulings
on challenges for cause, in large part because it is not clear the views of
prospective jurors would have prevented or substantially impaired performance of
their duties as jurors.”
Our review of the trial court’s voir dire examination reveals that although
defendant is correct that certain statements made by the court lacked precision,
may have been overly simplistic, and contained technical misstatements of law,
the court made clear that its comments were “not instructions on the law which
I’m giving you at this time. You’ll receive, if you’re selected as a juror, the actual
instructions on the law in their full detail later.” We believe the court’s
admonition made clear that its comments were directed toward generally
48
familiarizing the prospective jurors with the tasks ahead in order to elicit responses
from them that would assist the parties in determining whether or not to exercise
their available challenges. Significantly, counsel were given the opportunity to
ask follow-up questions of prospective jurors.
E.
Trial Court’s Rulings on Challenges for Cause
In considering defendant’s contention that the trial court erred in ruling on
challenges for cause, we are guided by well-established principles. If, as occurred
in the present case, a defendant has unused peremptory challenges available when
the trial court impanels the jury, and the defendant does not express dissatisfaction
with the jury ultimately selected, his or her claim is not preserved on appeal.
(People v. Ochoa (1998) 19 Cal.4th 353, 444.) Even were defendant’s claim
properly preserved, we would reject it on the merits because he has failed to
identify any prospective juror who he contends was improperly retained on the
jury despite a valid challenge for cause, or one who erroneously was removed for
cause. In view of defendant’s failure to establish specific reversible error, his
contention must fail.
III. GUILT PHASE ISSUES
A. Testimony of Polly Haisha
Over defendant’s objection on the ground of lack of relevancy, the
prosecution introduced the testimony of Polly Haisha, an acquaintance of
defendant’s, who, as a senior in high school, met defendant at a party in February
1984. Haisha testified that she accepted defendant’s invitation at the party to go
sailing with him, gave him her telephone number, but subsequently cancelled the
date because she “just felt really uncomfortable about the whole thing. I had a
weird feeling about it. I ca[lled] him up and canceled. I made up an excuse why I
couldn’t go . . . .” Haisha and defendant spoke several times in the ensuing weeks;
49
the two repeatedly rescheduled their date but, in Haisha’s words, “I would always
cancel out shortly before we were supposed to meet.” Haisha identified defendant
in court and in photographic exhibits. She also verified that an entry in
defendant’s address book was her telephone number at the time (observing,
however, that her name had been misspelled).27
Haisha further testified that upon informing defendant during one of their
initial conversations of her plans to attend college, he responded: “You know,
that’s just a waste. He said why don’t you quiet [sic] school and come sail to
France with me. You’ll get a better experience of life there than you could in
school. [¶] I said, well, you know, that might be so, but I plan on going to
college. I barely know you. I’m not going to give up my life so I can sail to
France with you.”
In response to the prosecutor’s inquiry regarding defendant’s demeanor on
the telephone, Haisha testified: “Well, the very first time I talked to him the next
day after I met him at the party, he was really nice and very open to what we could
do, and anything that I wanted to ⎯ whenever we wanted to meet after that. [¶] It
got ⎯ he got more and more aggressive. Like the time I said I wouldn’t go to
France with him, he acted like I was making fun of him; somehow that was a
stupid idea or something. [¶] He would get kind of mean and when I would
cancel on dates, he would get kind of irritated, like he had to change his whole
schedule for me. Yet, again, he wasn’t happy. [¶] It kind of scared me, but he
would always tone it down towards the end so I wouldn’t be afraid to talk with
him the next time. [¶] . . . [¶] Later on, towards the end of our phone
27
In addition to Polly Haisha’s name, the address book contained the names
of murder victims Susan Knoll and Janette Cullins.
50
conversations, he mentioned his ex-wife . . . and at that time he was really bitter
about it and, you know, would call her names and said he was happy that part of
his life was over. He was happy to get away from her. [¶] He called her a bitch.”
Haisha also testified that in the evening of March 24, 1984, defendant
contacted her by telephone and informed her he would be in San Diego on the
following day. In response, Haisha “asked him at the end of our phone call never
to call me again, and that I didn’t want to talk to him anymore. [¶] I certainly
didn’t want to see him, and he became very irritated and said why all of a sudden
this change, we haven’t even gone out yet. [¶] I said well, I don’t feel
comfortable about talking to you or seeing you. I would rather this ended right
now, and would you please just never call this number again. . . . [¶] He was very
irritated and he started getting mad and almost hostile. That’s when I knew for
sure I made the right choice, because at previous times in phone conversations he
had gotten that way.” She added that she did not remember defendant ever
contacting her again after that.
On cross-examination, Haisha testified that during the time period in which
defendant was on trial (April 1991), she was a law student who, in the previous
year, had worked as an intern in the San Diego County District Attorney’s Office,
and that she planned to return to that office again to work as an intern after taking
the bar examination that upcoming summer.
On appeal, defendant reiterates his contention at trial that Haisha’s
testimony was irrelevant and that it warranted exclusion for that reason,
additionally asserting on appeal that the testimony was highly prejudicial,
“designed to inflame the jury,” and constituted improperly admitted character
evidence (Evid. Code, § 1101, subd. (b)), and that the trial court erred in failing to
exercise its discretion under Evidence Code section 352 to exclude this evidence.
51
Defendant adds that the trial court’s admission of Haisha’s testimony violated a
panoply of defendant’s state and federal Constitutional rights.
Preliminarily, we observe that defendant did not object at trial based upon
Evidence Code sections 352 or 1101 ⎯ a point acknowledged by defendant but
apparently overlooked by the People ⎯ and therefore has not preserved this claim
for our review. (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 424.)
With regard to the substance of defendant’s contentions, we conclude they
are without merit for reasons similar to those set forth in response to defendant’s
challenge to the admission of other evidence introduced in the Los Angeles
proceedings. (See People v. Carter, supra, ___ Cal.4th at pp. ___ [at pp. 56-66].)
In view of our more extensive summary of the applicable legal principles
involving relevancy and prejudice in the companion appeal, the brief analysis that
follows shall suffice.
The prosecution met its burden of establishing that the testimony of Polly
Haisha was relevant under Evidence Code section 210. Haisha’s testimony
corroborated the testimony of Susan Loyland that defendant intended to be in San
Diego on March 25, 1984, the date on which Loyland’s housemate, Barbara S.,
was raped in San Diego, and after which neither Haisha nor Loyland ever heard
from defendant again. Haisha’s testimony also bolstered the prosecution’s theory
of the case that defendant embarked upon his murderous crime spree in the
immediate aftermath of being spurned by a number of women, including Haisha.
(See ante, pp. 2-5.) Implicit in the prosecution’s theory is that these rejections
comprised a “trigger” that, once pulled, propelled defendant to rape and murder
women whom he recently had befriended. Accordingly, defendant’s demeanor
during his conversations with Haisha ― including his frustration and anger when
Haisha cancelled their scheduled dates ― in the weeks leading up to the murders
and other crimes appears relevant.
52
The evidence was not unduly prejudicial. It merely described Haisha’s
initial encounter with defendant at a party and his subsequent fruitless efforts to
meet her again, causing him to become irritated or angry. The testimony was not
altogether uncomplimentary, as Haisha recalled that during their first telephone
conversation, defendant “was really nice.”
The trial court did not abuse its discretion in denying defendant’s motion to
exclude Haisha’s testimony. Further, viewed in the context of defendant’s trial, in
which the prosecution’s evidence overwhelmingly established that defendant
committed multiple brutal murders and vicious rapes, the testimony of Polly
Haisha ⎯ a woman whom defendant did not physically attack, and who had only
minimal personal contact with him ⎯ was not even remotely prejudicial.
Citing Evidence Code section 1101, subdivision (a), defendant also
contends Haisha’s testimony was “improperly admitted character evidence, and no
doubt carried over to penalty phase as non-statutory aggravation evidence.”28
Defendant’s argument fails because, as noted, it was not presented at the trial
court, nor did admission of the evidence violate Evidence Code section 1101,
subdivision (a), because the prosecution did not offer Haisha’s testimony to prove
defendant’s conduct on a specific occasion. Finally, it is not reasonably possible
that the evidence “carried over” as an aggravating circumstance to the penalty
phase, or that in the absence of the evidence defendant would have received a
more favorable penalty verdict. As noted above, a massive amount of other, far
28
Subject to certain exceptions not relevant to our discussion, Evidence Code
section 1101, subdivision (a), provides: “[E]vidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible
when offered to prove his or her conduct on a specified occasion.”
53
more damaging evidence was introduced against defendant at the guilt and penalty
phases of the trial.
Considered as guilt phase evidence, even if we were to determine under any
theory that the trial court abused its discretion in admitting the testimony of Polly
Haisha, such error would have been harmless under the applicable Watson
standard, because it is not reasonably probable that the jury would have reached a
different result in the absence of Haisha’s testimony. (People v. Watson (1956) 46
Cal.2d 818, 836.)29
B.
Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his conviction
of the crimes committed against Barbara S. and Janette Cullins, as well as the prior
murder and lying-in-wait special-circumstance findings. “In reviewing a criminal
conviction challenged as lacking evidentiary support, ‘ “the court must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence ⎯ that is, evidence which is reasonable,
credible, and of solid value ⎯ such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.]’ (People v. Hillhouse
(2002) 27 Cal.4th 469, 496 [117 Cal.Rptr.2d 45, 40 P.3d 754].) The same
standard of review applies to special circumstance allegations. (People v. Maury
(2003) 30 Cal.4th 342, 396 [133 Cal.Rptr.2d 561, 68 P.3d 1].) An appellate court
must accept logical inferences that the jury might have drawn from the evidence
29
In view of our conclusion that the trial court properly admitted the
testimony of Polly Haisha, defendant’s contention that his trial counsel’s “failure
to assert the proper objection [under Evidence Code sections 352 and 1101,
subdivision (a)] constitutes ineffective assistance of counsel” necessarily fails.
(See, e.g., People v. Memro (1995) 11 Cal.4th 786, 834; People v. Frierson (1991)
53 Cal.3d 730, 747.)
54
even if the court would have concluded otherwise. (People v. Rodriguez (1999)
20 Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618].)” (People v. Combs (2004)
34 Cal.4th 821, 849.)
1.
The Crimes Committed Against Barbara S.
Defendant contends his conviction of the crimes committed against Barbara
S. is not supported by sufficient evidence. He is mistaken.
As we have noted (pp. 2-8, ante), one day after having been rejected by
Polly Haisha and Cathleen Tiner, defendant arrived in San Diego on March 25,
1984, having made plans to travel to Mexico that day with Susan Loyland, who
departed from San Diego without him. Janell Barksdale, the next-door neighbor
of Barbara S. and Susan Loyland, observed defendant approaching the victims’
residence on the evening of March 25. That evening, defendant broke into
Loyland’s residence, stole some of her tip money from a concealed location that
previously had been revealed to him, and raped at knifepoint Barbara S.,
Loyland’s housemate.
Barbara S. provided details of the rape, oral copulation, robbery, and
burglary, including the circumstances that her assailant’s voice sounded familiar to
her and that weeks later she recognized the voice as defendant’s. At trial, she
identified defendant as the man who attacked her. Susan Loyland established that
defendant had seen the location where she had concealed the money determined to
have been taken from her bedroom, and explained why she suspected defendant
might have been Barbara S.’s assailant.
Defendant glosses over the foregoing highly incriminating evidence,
instead emphasizing Barbara S.’s general uncertainty and inability to identify her
assailant in the immediate aftermath of the attack. Defendant also asserts the
prosecution “clearly bootstrapped” its case in the Barbara S. sexual assault to the
55
“other crimes” evidence implicating defendant in the murders of Susan Knoll,
Jillette Mills, Bonnie Guthrie, and Janette Cullins, the death of Tok Kim, and the
sexual assault of Jennifer S. He further asserts that the evidence supporting the
convictions was undermined by the fact that the trial court excluded evidence
indicating that Barbara S. suffered from alcoholism in the spring of 1984.30
None of defendant’s points is persuasive. Barbara S.’s identification of
defendant as the man who assaulted and robbed her at knifepoint in her residence
was supported by her housemate’s testimony that money was stolen from a
concealed location known to defendant, and by a neighbor’s testimony that
defendant walked toward the residence on the night of the attack. Thus, the
prosecution’s evidence implicating defendant in the attack on Barbara S. more
30
Defendant assigns error to the trial court’s ruling, made pursuant to
Evidence Code section 352, excluding the proffered testimony of Susan Loyland
that Barbara S. suffered from alcoholism.
After conducting a foundational hearing at the People’s request, outside the
presence of the jury, in which Loyland described her own alcoholism and daily
drug usage in the spring of 1984, the trial court explained at length its reasons for
excluding Loyland’s proffered testimony, stating that although the evidence
“could be relevant,” its admission “is going to take us in a circle of evidence that
is . . . going to be nonproductive and [cause] undue consumption of time.” The
court added: “I’m not precluding that subject of [Barbara. S.] being an alcoholic
being raised by other witnesses if the foundation can be laid.”
The trial court’s ruling conformed to the requirements of Evidence Code
section 352. The proffered testimony regarding Barbara S.’s alleged alcoholism
was marginally relevant and likely would have consumed an undue amount of
court time. No abuse of discretion appears.
Moreover, even were we to conclude that the trial court ruled incorrectly,
any such error plainly would have been harmless in view of the overwhelming
evidence that defendant broke into the residence shared by Barbara S. and Susan
Loyland, stole money belonging to each, and sexually assaulted Barbara S.
56
than adequately meets the substantial evidence standard summarized above.
(People v. Combs, supra, 34 Cal.4th at p. 849.)31
2.
The Crimes Committed Against Janette Cullins
Defendant contends the evidence is insufficient to sustain his conviction of
murder, robbery, and burglary stemming from crimes committed at the residence
of Janette Cullins on or about April 12, 1984. He challenges on similar grounds
the jury’s true findings as to the burglary, robbery, and lying-in-wait special
circumstances. With the exception of the last special circumstance, we find
unpersuasive each of these assertions.
The evidence adduced at trial established that defendant visited Janette
Cullins’s apartment on the afternoon of April 12, 1984, asking her new roommate,
Cheri Phinney, how long Phinney planned to be there. That evening, Cullins
attended the symphony with her friend, Cathleen Tiner, who last saw Cullins at
approximately 11:00 p.m., when Cullins departed to return to her apartment. A
neighbor of Cullins observed the distinctive white Datsun 280 ZX in which
defendant subsequently was arrested, parked with its engine running for several
minutes late that evening. A number of Cullins’s friends unsuccessfully attempted
to contact Cullins on April 13.
A visitor to Cullins’s apartment on April 14 noticed wood chips on the
floor by the front door ⎯ evidence consistent with a forced entry. Cullins’s body
31
In view of our holding, above, we reject as without merit defendant’s
related claim that the “insufficiency of the evidence” supporting the sexual assault
crimes perpetrated against Barbara S. led to error at the penalty phase when the
trial court admitted this evidence in aggravation pursuant to section 190.3,
factor (b) (“criminal activity by the defendant which involved the use or attempted
use of force or violence or the express or implied threat to use force or violence”).
As noted, the evidence was sufficient; therefore defendant’s argument fails.
57
was found partially clothed in the bedroom closet, and her neck bore a ligature
mark. The concealment of the body in a closet and the cause of Cullins’s death ⎯
asphyxia due to strangulation ⎯ bore a strong resemblance to the circumstances of
the Susan Knoll/Jillette Mills murders in Culver City three days earlier.
Cullins’s wallet containing her various items of identification was
recovered from a location near where the distinctive Datsun 280 ZX was parked
that same week. The wallet also contained Bonnie Guthrie’s identification,
strongly suggesting that one person had murdered and robbed both women.
On April 13, 1984, a man wearing a dark jacket made a withdrawal from
Cullins’s bank account. Four days later, in Arizona, a paper bearing the word
“SHYLAS,” a bankpass card bearing Cullins’s name, and a black jacket were
among the items found in defendant’s possession at the time of his arrest.
The foregoing evidence amply supports the jury’s conclusions that late in
the evening of April 12, 1984, defendant with the requisite felonious intent forced
his way into Cullins’s apartment, encountered Cullins, compelled her to disclose
her bank password, then fatally strangled her, concealed her body in her bedroom
closet, took her wallet, and subsequently depleted her bank account. The evidence
thus established the elements of the charged offenses ⎯ burglary, robbery, and
murder ⎯ as well as the elements of the burglary and robbery special
circumstances.
In reaching our conclusion, we reject defendant’s contention that the
prosecution failed to establish that defendant acted with felonious intent. Nor do
we find persuasive his related contention that the robbery and burglary special-
circumstance findings were improper because the crimes were merely incidental to
the murder or intended to facilitate or conceal the murder. (See People v. Zapien
(1993) 4 Cal.4th 929, 984-985.) The requisite intent for each crime, and
supporting each of these special circumstances, readily may be inferred from the
58
evidence. (See People v. Matson (1974) 13 Cal.3d 35, 41 [“Although the People
must show that a defendant charged with burglary entered the premises with
felonious intent, such intent must usually be inferred from all of the facts and
circumstances disclosed by the evidence, rarely being directly provable.
[Citations.] When the evidence justifies a reasonable inference of felonious intent,
the verdict may not be disturbed on appeal.”]; see also People v. Ochoa, supra, 19
Cal.4th at pp. 413-414 [In reviewing a claim of insufficient evidence as to special
circumstance findings, “ ‘ “we must determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the [allegations] beyond a reasonable
doubt.’ ” ’ [Citation.]”].)
The requisite intent and all essential elements were present here. Cullins’s
apartment showed signs of a forced entry consistent with an intent to commit a
felony. The evidence that the doorjamb had been pried, producing a scattering of
wood chips near the front door, supported the burglary charge and the burglary
special circumstance.
The circumstance that defendant harbored an intent to rob Cullins ⎯ quite
independent of his intent to murder her ⎯ may be inferred from the evidence that
he obtained her bank account password prior to fatally strangling her. The
circumstances of the break-in, murder, robbery, and theft, together with
defendant’s hurried, loud, and dramatic departure in the stolen vehicle consistent
with a perpetrator’s escape from a crime scene, amply support the inference of
defendant’s intent to commit burglary. (People v. Moody (1976) 59 Cal.App.3d
357, 363.)
With regard to defendant’s contention that the lying-in-wait special
circumstance was not supported by substantial evidence, the People contend the
evidence adduced at trial suggested that defendant accomplished his entry prior to
59
Cullins’s arrival home. The People urge that no other explanation for the forcible
entry, indicated by the presence of the wood chips, was adduced at trial, and that it
reasonably could be inferred that defendant was lying in wait for his victim from
the forced entry, as well as from the presence of Jillette Mills’s stolen vehicle,
with its engine running for several minutes, at the approximate time Cullins likely
returned to her apartment. (See People v. Hillhouse, supra, 27 Cal.4th at pp. 500-
501; People v. Michaels (2002) 28 Cal.4th 516-517.)
We reject the People’s position on this point. The evidence in support of
the lying-in-wait special circumstance ⎯ essentially, the wood chips and the car
with its engine running ⎯ appears unduly reliant upon the inference suggested by
the prosecution that defendant arrived prior to Cullins’s return home in order to
attack her by surprise. The wood chip evidence tended to show forced entry, not
that the entry occurred prior to Cullins’s arrival. Cullins may have arrived at her
apartment before defendant did, and he may have forced his way in while she was
undressing elsewhere in the apartment. Under the latter scenario, the lying-in-wait
special circumstance would rely upon the neighbor who heard the car engine
running, and the time of that event cannot be pinpointed. Moreover, the car idling,
besides occurring at an uncertain time, does not strongly imply that defendant was
waiting in the car to attack Cullins; if defendant had planned a home invasion
when Cullins arrived home, he likely would have turned off the engine so as not to
attract attention. We therefore set aside the special circumstance of lying in wait.
At the time of defendant’s arrest, he was fleeing California in a vehicle that
had belonged to murder victim Jillette Mills, and was in possession of personal
property that linked him to each one of the murdered women, including the murder
victim in the present case. As noted, Janette Cullins’s body was concealed in a
manner similar to that used to hide the bodies of Susan Knoll and Jillette Mills.
Each of these women, and Bonnie Guthrie, had been fatally strangled. No
60
reasonable explanation, other than defendant’s culpability for the charged
offenses, presented itself at trial. Indeed, the evidence in support of the charged
crimes and burglary and robbery special circumstances was overwhelming.32
3.
The Prior Murder Special Circumstance
Defendant contends the trial court committed prejudicial error when it
denied his motion to strike the prior-murder special circumstance allegations
derived from the murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie,
reflected in the Los Angeles County judgment rendered against defendant on
January 30, 1990. Defendant challenged the prior convictions on the ground they
were “constitutionally defective,” because defendant “was denied the right to
effective assistance of counsel” and “denied his constitutional right to testify at the
guilt phase of the Los Angeles trial; he was erroneously denied his constitutional
right to present a defense at the guilt phase of that trial; and the Los Angeles trial
court erroneously failed to afford him a hearing on conflict of interest allegations
between him and his attorneys, in violation of his right to counsel.” Defendant
further asserts that “failure to dismiss [the prior murder] special circumstances . . .
would deny [him] a fair trial and due process of law . . . and would deny him
protection against cruel and unusual punishment” in violation of the applicable
state and federal constitutional guarantees.
32
In view of our conclusion that substantial evidence supports defendant’s
convictions and the burglary and robbery special-circumstance findings, we find
no merit in defendant’s related contention that the trial court erred in denying his
pretrial motion to dismiss the substantive charges and strike those special
circumstance allegations. For the same reason, we reject defendant’s contention
that the trial court erred in denying his motions for judgment of acquittal made
during and at the conclusion of the prosecution’s case-in-chief.
61
In the companion case, People v. Carter, supra, ___ Cal.4th ___, we have
upheld the judgment of death against defendant for the murders of Susan Knoll,
Jillette Mills, and Bonnie Guthrie. In so doing, we have rejected contentions that
are substantially similar to those made in support of defendant’s motion at the trial
of the present case to strike the prior murder special-circumstance allegations ⎯
contentions that, by his own acknowledgment, he has included “to a large extent”
here. (Id. at pp. ___ [at pp. 42-44].) As we have explained in that decision, the
Los Angeles County murder convictions were valid, and therefore the San Diego
trial court properly denied the motion to strike. Insofar as defendant’s arguments
regarding the validity of the prior murder convictions forming the basis for the
prior murder special circumstance differ from the arguments made in his
automatic appeal from the Los Angeles County judgment convicting him of those
murders, we reject those arguments.
C. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct,
requiring reversal of the judgment, based upon the following asserted
transgressions: (1) “misstatements of fact and deceptive practices to gain
favorable rulings,” (2) “comments disparaging of defense counsel,” and
(3) “prosecutorial misconduct during opening and rebuttal arguments, including
adverse comment upon defendant’s right against self-incrimination, improper
shifting of the burden of proof, and misstatements of law.”
“ ‘The applicable federal and state standards regarding prosecutorial
misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior
violates the federal Constitution when it comprises a pattern of conduct “so
egregious that it infects the trial with such unfairness as to make the conviction a
denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not
62
render a criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves “ ‘ “the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.” ’ ” [Citation.] As a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion — and on the same ground — the defendant [requested] an
assignment of misconduct and [also] requested that the jury be admonished to
disregard the impropriety. [Citation.] Additionally, when the claim focuses upon
comments made by the prosecutor before the jury, the question is whether there is
a reasonable likelihood that the jury construed or applied any of the complained-of
remarks in an objectionable fashion.’ (People v. Samayoa (1997) 15 Cal.4th 795,
841.)” (People v. Ochoa, supra, 19 Cal.4th at p. 427; see also People v. Box,
supra, 23 Cal.4th at pp. 1207-1208 [rejecting claim of prosecutorial misconduct
where the defendant “failed to satisfy the general rule requiring assignment of
misconduct and request for admonition as to the prosecutor’s comment of which
he now complains”].)
Here, defendant failed to request an assignment of misconduct or an
admonition with regard to any of the conduct he now challenges as improper.
Accordingly, he has not preserved his claims on appeal.
Even assuming defendant’s claims properly were before us, we would
reject them on the merits, as follows.
1.
Alleged Misstatements of Fact and Deceptive Practices
Defendant contends that prior to trial, the prosecution misled the trial court
into believing that a key found in defendant’s possession was a key to Barbara S.’s
business office. Defendant implies the prosecution acted in bad faith in light of its
subsequent disclosure that the key could not be located. No misconduct appears.
63
Defendant faults the prosecution for declining to stipulate to certain facts
supporting defendant’s motion to suppress evidence seized from the Datsun
280 ZX. Defendant contends the prosecution’s position was characterized by
“obfuscation and gamesmanship.” The prosecution’s reluctance to accept a
stipulation was not improper. (See People v. Garceau (1993) 6 Cal.4th 140, 182.)
Defendant
contends
the
prosecution misrepresented the significance of the
testimony of witness Polly Haisha. Defendant argues that the prosecution on the
first day of trial deceptively suggested that Haisha was a potential witness who
was unlikely to be called unless the defense denied ownership of the address book
that included her name. Defendant also complains that Haisha, a law student, was
permitted to remain in the courtroom during a portion of the opening statements,
until the defense objected that her presence violated the court’s order excluding
witnesses from observing the proceedings.
At trial, defendant objected to Haisha’s testimony on relevancy grounds,
which the trial court properly overruled, as we previously have explained. (See,
ante, pp. 49-54.) Defendant did not object to Haisha’s testimony on the ground
that the prosecution had violated discovery rules or had engaged in misconduct.
Therefore, he has waived any such claim on appeal. (People v. Ochoa, supra, 19
Cal.4th at p. 427.) Even if we assume prosecutorial misconduct, it is not
reasonably probable that a result more favorable to defendant would have occurred
in the absence of Haisha’s testimony. (People v. Haskett (1982) 30 Cal.3d 841,
866.) As we previously have noted, Haisha was a minor witness whose testimony
was peripheral to the central events underlying defendant’s crime spree. Neither
her presence during a portion of the prosecutor’s opening statement, in violation of
the court’s order excluding witnesses, nor her eventual testimony at trial, could
have made any possible difference in the outcome of the trial, in view of the
compelling evidence that linked defendant to the charged offenses.
64
2.
The Prosecutor’s Comments Regarding Defense Counsel
Defendant
contends
the
prosecution made disparaging comments regarding
defense counsel. Again, defendant did not object to the comments of which he
now complains, and thereby has waived his claim. (People v. Gionis (1995) 9
Cal.4th 1196, 1215.) Even if defendant’s contention properly were before us, we
would reject it. With one exception, the comments were not made in the presence
of the jury, and defendant fails to demonstrate how these comments outside the
jury’s presence, which were of the sort one might expect to encounter during a
vigorously contested capital trial, prejudiced the proceedings below. With regard
to the one comment made before the jury ⎯ at the commencement of the
prosecution’s guilt phase rebuttal argument ⎯ we note that it was fleeting,
imprecisely attributed to a member of the United States Supreme Court, and not
remotely similar in degree of impropriety to the comments we have held to
constitute prejudicial misconduct. (See, e.g., People v. Hill (1998) 17 Cal.4th
800.)33
33
The prosecutor argued on rebuttal as follows:
“Good morning. [Defense counsel] suggested that the prosecution, or law
enforcement developed a theory about Dean Carter’s guilt and then suggested that
perhaps the witnesses changed their testimony to fit that theory. Suggested
perhaps that by the way we ask questions and the way we presented evidence, that
we were somehow trying to manipulate the evidence to fit a theory about his guilt.
“I suggest to you that would be improper for the prosecution to do.
“[Defense counsel] likes to talk about age[-]old traditions in our system, he
likes to talk about the Constitution, and he likes to talk about the rules, so I’m
going to do that for a minute.
“I’m going to tell you what a United States Supreme Court [justice] ⎯ he
likes to do that on occasion, to, quote the United States Supreme Court ⎯ said
about the relative duties between prosecutors and defense attorneys.
“ ‘Law enforcement officers have an obligation to convict the guilty and to
make sure they do not convict the innocent.’
“It would be improper for the prosecution to try to manipulate a case to
convict somebody who wasn’t guilty. And if we tried to do that, he wouldn’t
(footnote continued on next page)
65
3.
Other Alleged Prosecutorial Misconduct
Immediately after making the comment noted in the margin (fn. 33, ante),
the prosecutor commented upon the failure of the defense to present evidence as to
“why defendant was in that car with all that property. They could do that if they
wanted to.”34 Defendant interposed an objection that the prosecutor improperly
was “suggesting that the defendant should have testified, and [is] drawing
attention to the fact that he did not.” (See Griffin v. California (1965) 380 U.S.
609 (Griffin)). In view of the arguable ambiguity inherent in the prosecutor’s
comments, the trial court declined to rule as to their propriety, and instead acceded
to defendant’s request to reinstruct the jury at that time pursuant to CALJIC Nos.
(footnote continued from previous page)
stand still for it, and the court wouldn’t stand still for it.
“That hasn’t happened.
“That same United States Supreme Court Justice says, ‘Defense counsel
have no comparable obligation to ascertain or present the truth.’
“They don’t have to tell you what’s true. We do.” (Italics added.)
The prosecutor’s comments, of which defendant now complains, are
derived from United States v. Wade (1967) 388 U.S. 218, 256-257 (conc. & dis.
opn. of White, J.)
34
The prosecutor argued as follows:
“Defense counsel talked a lot about the presumption of innocence. He says
you carry that with you into the jury room. I don’t want to play a word game. The
instruction says, ‘The defendant in a criminal action is presumed to be innocent
until the contrary is proved.’
“That happened some time ago. The contrary was proved. His innocence
was disproved a long time ago in this case. It doesn’t exist anymore. The
evidence took that away from him.
“The rules are that the defense doesn’t have to present any evidence in a
case. They can if they want to. No one prevents them from presenting any
evidence to you. No one prevents them from telling you what happened. No one
prevents them from bringing forth witnesses to explain why the defendant was in
that car with all of that property. They could do that if they wanted to.”
66
2.60, and 2.61, which recognized defendant’s constitutional right not to testify and
his option to rely on the state of the evidence.
On appeal, defendant contends that the prosecutor’s comments constituted
Griffin error. (People v. Sanders (1995) 11 Cal.4th 475, 527-529.)
“ ‘Pursuant to Griffin, it is error for a prosecutor to state that certain
evidence is uncontradicted or unrefuted when that evidence could not be
contradicted or refuted by anyone other than the defendant testifying on his or her
own behalf.’ (People v. Hughes (2002) 27 Cal.4th 287, 371 [116 Cal.Rptr.2d
401,39 P.3d 432].) We also have said ‘it is error for the prosecution to refer to the
absence of evidence that only the defendant’s testimony could provide.’ (Id. at
p. 372, citing People v. Murtishaw (1981) 29 Cal.3d 733, 757 & fn. 19 [175
Cal.Rptr. 738, 631 P.2d 446].) Griffin’s prohibition against ‘ “direct or indirect
comment upon the failure of the defendant to take the witness stand,” ’ however,
‘ “does not extend to comments on the state of the evidence or on the failure of the
defense to introduce material evidence or to call logical witnesses.” ’ (People v.
Hovey (1988) 44 Cal.3d 543, 572 [244 Cal.Rptr. 121, 749 P.2d 776], quoting
People v. Jackson (1980) 28 Cal.3d 264, 304 [168 Cal.Rptr. 603, 618 P.2d 149].)”
(People v. Harrison (2005) 35 Cal.4th 208, 257; see also People v. Stewart (2004)
33 Cal.4th 425, 505-506; People v. Brown (2003) 31 Cal.4th 518, 554; People v.
Bradford (1997) 15 Cal.4th 1229, 1339.)
In this case, we need not decide whether the prosecutor’s comments
constituted error under Griffin, because even if we assume (without deciding) that
error occurred, in view of the indirect nature of the prosecutor’s comment, the
court’s timely reinstruction of the jury, and the strength of the evidence against
defendant, it is “clear beyond a reasonable doubt that the jury would have returned
a verdict of guilty” (United States v. Hasting (1983) 461 U.S. 499, 511) even if the
67
prosecutor had not made the comment at issue. Accordingly, no prejudicial error
occurred.
Defendant also characterizes as improper argument certain additional
remarks made by the prosecutor during summation: “There are people among us
who murder other people because they like to murder other people. [¶] There are
evil people among us. [¶]. . . [¶] [Defense counsel] stresses that you are the
conscience of the community, and you are. People in the community have
emotions. It’s . . . improper for you to have your verdict influenced by emotion.
But it is proper for you to express through a verdict how you feel about this case,
to tell the defendant Dean Carter, what you did, you murdered Janette Cullins, was
evil, was senseless, it was vicious, it was unforgivable, and it was first degree
murder.” Elsewhere during his summation, the prosecutor argued similarly.
Defendant did not interpose an objection, and thus waived his claim. But
even if the issue properly had been preserved, we would reject defendant’s claim
of error. The prosecutor’s comments were not, as defendant asserts, references to
“improper[] character propensity,” but instead came “within the range of
permissible comment regarding egregious conduct on defendant’s part.
[Citation.]” (People v. Thomas (1992) 2 Cal.4th 489, 537 [rejecting a challenge to
the prosecutor’s characterization of the defendant as a “ ‘mass murderer, rapist,’ ”
“ ‘a perverted murderous cancer,’ ” and a “ ‘walking depraved cancer’ ”]; see also
People v. Hawkins (1995) 10 Cal.4th 920, 961 [upholding prosecutor’s
characterization of the defendant as “ ‘coiled like a snake’ ” and a “ ‘rabid
dog’ ”].) Moreover, in view of the overwhelming evidence that connected
defendant to the charged crimes, the prosecutor’s remarks “could not have carried
such an emotional impact as to make it likely the jury’s decision was rooted in
passion rather than evidence.” (People v. Thomas, supra, 2 Cal.4th at p. 537.)
68
D. Alleged Instructional Error
Prior to instructing the jury, the trial court reviewed with counsel the
instructions to be given. Defendant objected to the trial court giving CALJIC No.
17.20, an instruction that directed the jury to determine whether, if the jury found
defendant guilty of robbery and/or burglary, defendant in the commission of those
crimes committed great bodily injury on Janette Cullins.35
Defense counsel argued: “[T]here [are] all kinds of results that could
follow from this. [¶] I don’t know if it’s a [section] 654 issue or not, but for the
[great bodily injury allegation,] if the [great bodily injury] is the killing, and you
could have some absurd results in this, one is that, for example, the defendant was
found guilty of the robbery and the burglary, and not the murder and then the
intentional [great bodily injury,] so I’m wondering if this instruction should be
given at all.”
35
Pursuant to CALJIC No. 17.20 (1991 rev.), the trial court instructed the
jury as follows:
“It is alleged in Counts Two [robbery] and Three [burglary] that in the
commission of the crimes therein described, the defendant, Dean Phillip Carter,
with the specific intent to inflict injury, personally inflicted great bodily injury on
Janette Ann Cullins.
“If you find the defendant guilty of robbery and or burglary, you must
determine whether or not the defendant, with the specific intent to inflict such
injury, did personally inflict great bodily injury on Janette Ann Cullins in the
commission of robbery and/or burglary.
“ ‘Great bodily injury’ as used in this instruction means a substantial
physical injury. Minor or moderate injuries of a temporary nature do not
constitute great bodily injury and are not sufficient.
“The People have the burden of proving the truth of this allegation. If you
have a reasonable doubt that it is true, you must find it to be not true.
“You will include a special finding on that question in your verdict, using a
form that will be supplied for that purpose.”
69
The prosecutor responded: “I think [the instruction] should be given. I
mean the issue in this case is who did the crime. The same person that robbed her
killed her, and counsel expresses the possibility of bizarre results; that they could
find him guilty of robbery with the intention of inflicting [great bodily injury], and
not the murder. [¶] I can’t imagine that happening. I imagine Mr. Carter would
be happy as a clam if that happened, but that’s not going to happen.”
The trial court acknowledged the possibility of “an unexpected result under
the facts as we know them,” but concluded: “I don’t see where it would be
prejudicial or confusing to give the instruction.” The trial court thereafter
instructed the jury pursuant to CALJIC No. 17.20. Upon returning verdicts of
guilty as to robbery and burglary, the jury found “true” the allegations that
defendant personally inflicted great bodily injury on Cullins with regard to both of
those offenses. The court imposed sentencing enhancements of three years’
imprisonment for each of the special allegations, which the court stayed pursuant
to section 654.
On appeal, defendant contends the trial court erred in giving the instruction,
citing section 12022.7, subdivision (g), which provides that a sentencing
enhancement for inflicting great bodily injury “shall not apply to murder or
manslaughter.” Defendant further contends that reversal of the judgment is
required “because as a matter of law criminal sanctions were imposed upon
insufficient proof and double punishment is prohibited by law.” He also
challenges the sufficiency of the evidence in support of the great bodily injury
findings.
We reject defendant’s argument in all respects. The jury was properly
instructed, because the allegations of great bodily injury clearly and specifically
enhanced each of the robbery and burglary counts, not the murder count. The
jury’s verdicts specifically found defendant guilty of robbery and burglary, with a
70
great bodily injury finding enhancing each of those two crimes. Nothing
contained in the jury’s verdicts or in the record as a whole indicates that the jury
misunderstood its function in this regard or was confused by the challenged
instruction. With regard to defendant’s claim that the evidence was insufficient to
sustain the findings as to the enhancements, the fatal strangulation of Janette
Cullins provides the evidentiary support for the allegations that in committing the
robbery and the burglary, defendant inflicted great bodily injury. The
circumstance that the trial court stayed the three-year enhancements that were
imposed based upon the jury’s findings that defendant inflicted great bodily injury
means that defendant was not subject to double punishment. No error appears.36
E. Miscellaneous
Contentions
Defendant raises a number of contentions that are either virtually identical
or substantially similar to certain claims raised on appeal from the Los Angeles
County death judgment rendered against him for the murders of Susan Knoll,
Jillette Mills, and Bonnie Guthrie ⎯ contentions that we have rejected in the
companion appeal in People v. Carter, supra, ___ Cal.4th ___. These contentions
are as follows: 1) defendant’s motion to suppress the evidence seized from his
person and from the stolen Datsun 280 ZX improperly was denied; 2) defendant’s
motion to exclude other-crimes evidence involving the death of Tok Kim, and the
murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie, improperly was
denied; 3) the photographic lineup procedures used by the Oakland Police
36
The question whether section 654 applies to enhancements is before us in
People v. Palacios (review granted, May 11, 2005, S132144). Because, as noted
in the text, the enhancements imposed here were stayed and defendant therefore
was not subject to double punishment, we need not and do not address the section
654 issue here.
71
Department in the investigation of Tok Kim’s death in Alameda County were
impermissibly suggestive, and therefore the trial court erred in denying the motion
to exclude the Alameda County witness identifications of defendant;
4) defendant’s motion to exclude the preliminary hearing testimony of Alameda
County witness Ray Blevins (who had died prior to trial) improperly was denied;
and 5) defendant’s motion to sever his trial for the murder of Janette Cullins from
the charge of rape involving Barbara S. improperly was denied. 37
For the reasons we have set forth more extensively in the companion
matter, People v. Carter, supra, ___ Cal.4th ___, we reject defendant’s
contentions. Insofar as defendant’s claims do not precisely mirror those set forth
37
With regard to defendant’s contention that the trial court erroneously
denied his motion to sever his trial for the murder of Janette Cullins from the
charged rape of Barbara S., we rely upon the analysis of section 954 and our
decisions interpreting that statute as set forth in People v. Carter, supra, __
Cal.4th at pp. ___ [at pp. 38-40], and which need not be repeated here, except to
observe that the distinctions between defendant’s motion to sever the Susan Knoll
and Jillette Mills murder charges from the Bonnie Guthrie murder charge in the
Los Angeles proceedings (see id. at pp. ___ [at pp. 37-42], and defendant’s motion
to sever the Janette Cullins murder charge from the Barbara. S. rape charge in the
San Diego proceedings, do not persuade us that the trial court below abused its
discretion. To the contrary, the court reviewed in exhaustive detail the basis for its
conclusion that severance was improper, observing, among other things, that the
rape and murder charges were of the same class under section 954, each crime
involved a forced entry into a residence, each involved evidence that a knife had
been used, each involved theft, and each victim previously had been acquainted
with defendant. Strong evidence linked defendant independently to the death of
Janette Cullins and to the rape of Barbara S. Accordingly, the likelihood that the
jury might convict defendant of having committed one of the charged crimes
based on the evidence that he committed the other was virtually nonexistent. No
abuse of discretion in denying defendant’s motion to sever appears. Nor has
defendant demonstrated that prejudice actually resulted from the joinder of the
murder and rape charges at trial. (See People v. Bradford, supra, 15 Cal.4th at
p. 1318.)
72
in the companion appeal, neither defendant’s additional arguments nor the variants
in their phrasing persuade us that the trial court committed an error or abuse of
discretion prejudicial to defendant’s case. Indeed, these claims are not deserving
of additional discussion. (People v. Laursen (1972) 8 Cal.3d 192, 205.)
IV. PENALTY
PHASE
A. Evidence of Defendant’s Sexual Assault on Jennifer S.
At the conclusion of the People’s case in aggravation, the prosecutor over
defendant’s objection offered abstracts of judgment as proof that defendant had
been convicted of: (1) sexual assault crimes committed against Jennifer S. in
Ventura County in March 1984, (2) burglary in Alaska in 1978, and (3) burglary in
Oregon in 1974. Defendant argued against the introduction of defendant’s
Ventura County convictions on the basis that because the judgments were
rendered in October 1984, they postdated the April 1984 murder of Janette Cullins
and therefore were inadmissible as prior felony convictions under section 190.3,
factor (c). (See, e.g., People v. Webster (1991) 54 Cal.3d 411, 453; People v.
Balderas (1985) 41 Cal.3d 144, 201-202.)
The trial court agreed with defendant’s interpretation of the temporal
requirements of section 190.3, factor (c), but pursuant to section 190.3, factor (b),
correctly recognized that “the evidence of crimes of violence can occur before or
after the murder, and the [Jennifer S.] rape is a crime of violence.” (See, e.g.,
People v. Malone (1988) 47 Cal.3d 1, 47.) The trial court thereafter admitted
evidence of defendant’s sexual assault upon Jennifer S.
73
On appeal, defendant reiterates his contention that the trial court improperly
admitted this evidence. For the reasons aptly noted by the trial court, no error
appears.38
Even if the trial court had failed to recognize the distinction between
section 190.3, factors (b) and (c), and admitted evidence of defendant’s crimes
against Jennifer S. under subdivision (c), the error would have been harmless,
“because the evidence was admissible as evidence of violent criminal activity
under [section 190.3] factor (b).” (People v. Bradford, supra, 15 Cal.4th at
p.1374.)
Defendant further contends the trial court improperly instructed the jury
that it could double-count the crimes committed against Jennifer S. under section
190.3, factors (b) and (c). His citation to the record, however, is to an inapposite
instruction (CALJIC No. 2.82⎯Concerning Hypothetical Questions), and our
review of the other instructions given to the jury has not revealed any such
“double-counting” instruction.
B.
Exclusion of Proffered Evidence in Mitigation
The defense introduced evidence of defendant’s troubled childhood
growing up in Alaska. Several witnesses testified that defendant spent
considerable portions of his childhood and adolescence in orphanages, juvenile
institutions, and foster homes, and was incarcerated in penal institutions during
much of his early adulthood.
Defendant sought to introduce additional evidence in mitigation, including
testimony of defendant’s older brother, Jerry Carter, regarding the particulars of
38
Insofar as defendant’s argument can be read to incorporate his pretrial
efforts to strike evidence of his sexual assault upon Jennifer S., his claim fails for
the same reasons as those noted above.
74
defendant’s upbringing and family life, the testimony of university professor
Linda Ellana regarding cultural conditions experienced by the Native Alaskan
population living in the Nome area, and the testimony of James Park, a California
correctional officer and expert on prison operations and classifications. Defendant
also moved for allocution. The trial court denied each of these requests.
On appeal, defendant contends the trial court committed prejudicial error in
excluding the proffered evidence. As we shall explain, we disagree.
1.
The Proffered Testimony of Jerry Carter
On
direct
examination,
Jerry Carter testified regarding defendant’s difficult
childhood in a manner generally consistent with the testimony he gave at
defendant’s trial for the murders of Susan Knoll, Jillette Mills, and Bonnie
Guthrie. (See People v. Carter, supra, ___ Cal.4th at p. ___ [at pp. 14-15].) In
the course of presenting this testimony, however, defense counsel asked Jerry
Carter several questions concerning subjects about which the witness lacked
personal knowledge. These topics included where defendant would go as a child
when he ran away; where defendant found food on those excursions; defendant’s
efforts as a child to stow away on airplanes; and information regarding where
defendant went when he was sent away from Nome by his mother and his
stepfather. The trial court sustained the prosecutor’s objections to these lines of
inquiry on foundational and hearsay grounds.
On appeal, defendant contends that the trial court’s rulings improperly
foreclosed the defense from presenting certain aspects of the case in mitigation.
We are unpersuaded. In view of Jerry Carter’s lack of personal knowledge as to
certain aspects of his proposed testimony, the trial court ruled correctly. Similarly,
insofar as the witness attempted to testify as to statements made to him that were
offered for the truth of the matter asserted, the proffered testimony was hearsay
75
that was not subject to any recognized exception, and properly was excluded by
the trial court. (Evid. Code, § 1200, subd. (a); People v. Whitt (1990) 51 Cal.3d
620, 642-643.)
Moreover, even if we were to agree with defendant that the trial court ruled
improperly, we observe that the defense succeeded in introducing the gist of the
incidents through other testimony of Jerry Carter and of other witnesses. In the
context of that testimony, much of which graphically described the abuse
defendant suffered as a child, as well as defendant’s institutionalization, the
excluded testimony was of marginal significance. Thus, there is not a reasonable
possibility that the jury would have rendered a different verdict had the trial court
not excluded the challenged testimony. (People v. Brown (1988) 46 Cal.3d 432,
447-448.)
2.
The Proffered Testimony of Linda Ellana
Outside the presence of the jury, Dr. Linda Ellana, a professor of cultural
anthropology at the University of Alaska, testified regarding cultural conditions
experienced by the Native Alaskan population living in the Nome area.
A resident of Nome for 15 years, Dr. Ellana recalled the rampant
alcoholism and depression suffered by the Native Alaskan population, as well as
the racial and ethnic discrimination directed toward them by the Caucasian
minority. She testified: “I would say that not only are natives discriminated
against, but more importantly, people who are half-breeds, or quarter breeds, are
neither accepted very well either by the . . . native community in Nome. [¶] . . . [¶]
Alcohol abuse is extreme in Nome. It is not limited to the native community,
though it is most noticeably focused on the native communities . . . . [Incidents
that accompany the alcohol abuse in Nome include] many assaults. Assaults are
76
the [most] common. Assaults, suicides, and homicides, assaults including, and not
including rape.”
Dr. Ellana also testified to having been acquainted with James Carter,
defendant’s stepfather, recalling that James Carter was negatively disposed toward
the young Native Alaskans ⎯ colloquially known in the area as “bush
students” ⎯ and that he called them “worthless, lazy, trouble causers.”
Dr. Ellana acknowledged, however, that she had no specific knowledge
regarding defendant, his background, or the criminal charges filed against him.
She never had met or spoken with defendant, although she recalled seeing him
“once or twice” when he was a child. She knew nothing of the problems that the
Carter family experienced raising defendant. She never heard James Carter speak
of defendant or of the other members of his family.
The prosecution argued against the introduction of the proffered testimony
on the ground of relevancy. The defense countered that Dr. Ellana was
experienced in the problems encountered by residents of the Nome area, including
mixed-race individuals, had some knowledge of the disparaging attitude
defendant’s stepfather portrayed toward Native and part-Native Alaskans, and that
the significance of the testimony was “a question for the jury to decide.”
The trial court rejected the proffered testimony on the ground of relevancy
and under Evidence Code section 352, explaining at some length the court’s
reasoning.39
39
The trial court ruled as follows:
“. . . . I was trying real[ly] hard with [Dr. Ellana] to figure out some way for
her to be able to testify before the jury for a variety of reasons. But a number of
things came up during the course of this discussion that cause me a great deal of
concern in terms of relevance, as well as under [Evidence Code section] 352,
getting into her own biases that began to crop up at certain points.
“Now, the areas that I made note that the defense asked questions on had to
(footnote continued on next page)
77
(footnote continued from previous page)
do with prejudice by Jim Carter, the defendant’s father, prejudice in general, in the
community of Nome, alcoholism in that area, [‘]bush kids[’] and that phrase, and
the negative connotation that goes with it, and the despair. . . .
“[Dr. Ellana] is a very qualified person for her particular occupation, but
that doesn’t mean that she is automatically an expert who is . . . appropriate for
this particular case.
“First of all, foundationally, her testimony concerning Jim Carter relates to
a time period when the defendant is probably about 12 years old, give or take a
little, at that point.
“ [¶] . . . [¶]
“She has seen the defendant with his father two times, and obviously there
was nothing inappropriate that was expressed or seen at that particular stage.
“Her foundation for her opinion about Jim Carter is based upon these staff
meetings, is what she said.
“[¶] . . . [¶]
“[T]here is no showing at this particular stage, that the defendant, himself,
was experiencing prejudice on the part of his stepfather, and it is very speculative.
I mean I’ve allowed a lot to come in on this issue of prejudice, and I think the jury
is well aware that prejudice exists in Nome now, and it did then. And therefore,
the defendant may have been subjected to, and probably was subjected to some of
the prejudice. And that, you know, I think ought to be there, and is there, as well
as the alcoholism.
“But to allow her to testify as to her opinion as to whether Mr. Carter is
prejudice[d] when her own statements about a desire to have native people, you
know, employed in the school, and she probably wouldn’t have hired him if she
had known he was in law enforcement, does not sound to me like we are getting
into an area where its truly an expert opinion being expressed.
“ [¶] . . . [¶]
“. . . The other comments lead me to believe under [Evidence Code section]
352 we are going to get into a lot of things that are going to be very time-
consuming, nonproductive in an area I’m determining at this stage, although
relevant, is not compellingly relevant in light of the state that we know about any
impact or prejudice on Dean Carter himself.
“In other words, we don’t have any psychiatric testimony, and the
defendant hasn’t testified, and I haven’t seen it come in any other way at this
particular stage, except perhaps that his mother, not the father, didn’t bring him
cookies when she brought cookies to the older boy.
“And I think it is necessary to lay the record on this, so I apologize for
keeping you, because there is a real balancing that has to be done under [Evidence
(footnote continued on next page)
78
On appeal, defendant contends the trial court erred in excluding the
testimony in question. Although certain aspects of Dr. Ellana’s testimony clearly
fell outside the bounds of relevancy (for example, cultural attitudes and problems
in Nome at the time of defendant’s 1991 trial, seven years after he was
incarcerated in California), and other aspects were cumulative (for example, the
harsh living conditions experienced by residents of Nome), the question whether
her testimony ought to have been excluded in its entirety is closer. Dr. Ellana did
have firsthand knowledge of the rigid and prejudicial attitudes regarding “half-
breeds” expressed by defendant’s stepfather; as noted earlier, defendant is part
Eskimo. Consistent with the principles set forth in Evidence Code sections 210
and 352, we believe that the trial court could have set certain limits as to the areas
in which Dr. Ellana could testify.
(footnote continued from previous page)
Code section] 352. The probative value on these particular points, because a good
portion of it is duplicative, as well, or cumulative ⎯ not just duplicative but
cumulative ⎯ is also a part of what I’m weighing.
“ [¶] . . . [¶]
“ [‘]Bush kids[’] is not relevant at this point. And as far as the despair is
concerned, it is purely speculative based upon her particular knowledge of the area
at that particular time. . . . I did not get the feeling, based upon the qualifications,
that this is where her expertise truly lies.
“So for those reasons, . . . I just want to make it real clear, there is no
evidence in terms of how Jim Carter treated Dean Carter directly as a result of any
potential prejudice in that regard.
“And also the timing of it is a problem. I’m not going to allow it, is the
bottom line.
“[¶] . . . [¶]
“I think the probative value is minimal and the prejudicial effect in terms of
getting into issues which are going to create a great deal of confusion in terms of
timing and the cumulative effect of bringing her back is just ⎯ the probative value
is minimal and the prejudicial effect is high, and I’m not going to allow it.”
79
We need not decide whether the trial court’s ruling to exclude Dr. Ellana’s
testimony in its entirety was erroneous, however, because even if we assume that
error occurred, defendant suffered no prejudice. The jury heard a considerable
amount of other testimony regarding Nome’s harsh conditions and defendant’s
troubled childhood. Viewed in the context of the comprehensive case in
mitigation presented by the defense, Dr. Ellana’s testimony was of marginal
significance and unlikely to have swayed the jury. Defendant fails to persuade us
that it is reasonably possible a more favorable result would have been reached in
the absence of the trial court’s ruling excluding this testimony. (People v. Brown,
supra, 46 Cal.3d 432, 447-448.)
3.
The Proffered Testimony of James W. L. Park
Outside the presence of the jury, the defense offered the testimony of James
W. L. Park, an expert in prison operations, prison construction, and prisoner
classification who had lengthy experience working in the California Department of
Corrections. Park testified that prisons use audio-visual equipment, and that a
prisoner with experience in this field would be a benefit to the prison system.
Based upon his review of defendant’s records of incarceration, Park stated that in
his opinion defendant would make “an above[-]average adjustment” to living in a
maximum security prison. Park further testified that defendant “would not be a
danger to staff or to prisoners.”
The trial court ruled that Park could testify before the jury as to his opinion
that defendant would adjust to life in prison, but also that if Park so testified, the
prosecution would be permitted to cross-examine Park with regard to defendant’s
psychological testing results and history of violence and criminal behavior.40
40
The trial court’s ruling included the following:
“[Defendant’s] status as a death row inmate will not come in.
(footnote continued on next page)
80
Defense counsel thereafter informed the court that the defense would not
call Park as a witness.
On appeal, defendant contends “[t]he trial court’s improper ruling
effectively precluded the expert’s testimony in violation of [defendant’s]
constitutional rights.” We disagree. The proffered testimony sought to introduce
into evidence certain experience and character traits of defendant that suggested he
would adjust well to prison life and probably would not be dangerous to other
inmates and staff. Had the defense introduced that evidence, the prosecution
would have been entitled to cross-examine Park regarding defendant’s
psychological propensities and prior criminal record. (See People v. Daniels
(1991) 52 Cal.3d 815, 882-883.) The trial court did not preclude Park from
testifying, nor unduly restrict the areas of inquiry pertaining to his proposed
testimony, but instead simply made clear that if the defense offered evidence of
defendant’s character related to the likelihood of his adjustment to life in prison,
(footnote continued from previous page)
“. . . [Park] may not testify to what it’s like to be . . . a prisoner under a life
without possibility of parole [LWOP] sentence in and of itself. . . .
“He may testify that based upon his experience, that an LWOP prisoner
could utilize a trade as a video operator.
“He will be allowed to testify as to his opinion that the defendant will make
an adequate adjustment to state prison, but if that question is asked, the People
may cross-examine him, including cross-examining him on his history of any
violence or any criminal behavior.
“[¶] . . . [¶]
“And [defendant’s] entire record, and any psychological testing results that
the people have can be raised by way of cross-examination of this particular
witness, because that’s information that that witness should have in forming such
an opinion.
“[The People] also [will] be allowed to cross-examine the witness and
make it clear to the jury that this witness has not examined this defendant.”
81
the prosecution would be entitled to cross-examine the witness and seek to rebut
his testimony. Under these circumstances, the defense for obvious tactical reasons
declined to introduce Park’s testimony. No error or abuse of discretion appears.
4.
The Trial Court’s Ruling Prohibiting Allocution
Although acknowledging that the right of allocution is not recognized in
California, defendant nevertheless contends the trial court erred in refusing his
request to plead for mercy without being subject to cross-examination. No error
appears. (See, e.g., People v. Davenport (1995) 11 Cal.4th 1171, 1209; People v.
Hunter (1989) 49 Cal.3d 957, 989.)
C. Alleged Prosecutorial Misconduct
Defendant
contends
the
prosecution committed misconduct at the penalty
phase by “propound[ing] questions to witnesses in bad faith,” interposing
objections on the ground of hearsay, propounding “arguments . . . designed to
improperly invoke non-statutory aggravation evidence in violation of [s]ection
190.3 and [defendant’s] constitutional rights,” and by improperly commenting
upon defendant’s failure to testify in violation of Griffin v. California, supra, 380
U.S. 609. Defendant further contends the prosecution improperly “used every
means available to curtail testimony regarding [defendant’s] childhood ⎯ or
other ⎯ socio-medico information and history that were legitimately proffered for
a sentence less than death.”
Our review of the record leads us to conclude that defendant greatly
overstates his position. Although a prosecutor is not permitted to comment “either
directly or indirectly, on the defendant’s failure to testify in his defense,” the
prosecutor may comment “ ‘on the state of the evidence, or on the failure of the
defense to introduce material evidence or call logical witnesses . . . .’ ” (People v.
Turner (2004) 34 Cal.4th 406, 419; quoting People v. Medina (1995) 11 Cal.4th
82
694, 755.) For the most part, the prosecution’s handling of its penalty phase
responsibilities fell within the range of appropriate behavior. The prosecution was
vigorous in its cross-examination and summation, and in interposing objections
(most of which clearly were well-founded). Even were we to assume that the
isolated incidents of which defendant now complains constituted misconduct, they
were trivial in the context of defendant’s trial and did not resemble or even
approach the sort of misconduct that we have held to be prejudicial. (See, e.g.,
People v. Hill, supra, 17 Cal.4th 800.) We therefore reject defendant’s claim of
prejudicial error.
D. Miscellaneous
Contentions
Defendant raises a number of contentions that are virtually identical or
substantially similar to claims raised on appeal from the Los Angeles County
death judgment rendered against him for the murders of Susan Knoll, Jillette
Mills, and Bonnie Guthrie, and which we have rejected in the companion case of
People v. Carter, supra. ___ Cal.4th ___. These contentions are as follows: 1) the
trial court’s pattern jury instructions to the jury were inappropriate; 2) the delay
between the pronouncement of defendant’s death sentence and his execution
renders the entire process unconstitutional; and 3) the use of lethal gas as a method
of execution is unconstitutional.
For the reasons we have set forth more extensively in the companion
matter, People v. Carter, supra, ___ Cal.4th at pages ___ [at pp. 107-128], we
reject defendant’s contentions. Insofar as defendant’s claims do not precisely
mirror those set forth in the companion appeal, neither defendant’s additional
arguments nor the variants in their phrasing persuade us that the trial court
committed an error or abuse of discretion prejudicial to defendant’s case. Indeed,
83
these contentions are not deserving of additional discussion. (People v. Laursen,
supra, 8 Cal.3d at p. 205.)
E.
Challenges to the Death Penalty Law
Defendant
contends
that many features of California’s capital sentencing
scheme, singly and in combination, violate the federal Constitution. We
previously have rejected similar challenges, and because defendant has not
presented any persuasive reason for us to reconsider those rulings, we decline to
do so.
The 1978 death penalty law does not violate the Eighth Amendment by
failing to distinguish between death-eligible and non-death-eligible murders in a
meaningful and nonarbitrary way. (See, e.g., People v. Combs, supra, 34 Cal.4th
821, 868; People v. Morrison (2004) 34 Cal.4th 698, 729; People v. San Nicholas
(2004) 34 Cal.4th 614, 676-677; People v. Burgener (2003) 29 Cal.4th 833, 884 &
fn. 7; People v. Barnett (1998) 17 Cal.4th 1044, 1179; People v. Jones (1997) 15
Cal.4th 119, 196; People v. Sanchez (1995) 12 Cal.4th 1, 60-61; People v. Stanley
(1995) 10 Cal.4th 764, 842-843.) The special circumstances set forth in the statute
are not overinclusive by their number or by their terms, nor have these categories
been construed in an overly inclusive manner. (People v. Ray (1996) 13 Cal.4th
313, 356.)
Section 190.3, factor (a) does not bias the determination of penalty in favor
of death, in violation of the Eighth Amendment, as defendant acknowledges.41
41
Section 190.3 provides in relevant part:
“In determining the penalty, the trier of fact shall take into account any of
the following factors if relevant: [¶] (a) The circumstances of the crime of which
the defendant was convicted in the present proceeding and the existence of any
special circumstances found to be true pursuant to Section 190.1.”
84
(See People v. Duncan (1991) 53 Cal.3d 955, 978-979; People v. Murtishaw
(1989) 48 Cal.3d 1001, 1020.)
The use in section 190.3, factor (d) of the adjective “extreme” does not act
as a barrier to the jury’s proper consideration of defendant’s evidence in
mitigation.42 (See People v. Morrison, supra, 34 Cal.4th 698, 729.) Nor was it
reasonably probable that, because of factor (d), the jury failed properly to weigh
defendant’s evidence in mitigation. To the contrary, we observe that the trial court
in the instant case instructed the jury pursuant to section 190.3, factor (k) (factor
(k)) as reflected in CALJIC No. 8.85, which provided the jury wide latitude to
consider any extenuating circumstance in determining penalty.43 (See People v.
Holt, supra, 15 Cal. 4th at p. 698 [upholding the validity of factor (d), in view of
factor (k)]; People v. Benson (1990) 52 Cal.3d 754, 804 [“[T]here is no reasonable
likelihood that the jury would have inferred from [CALJIC No. 8.85, subd. (k)]
that they could not consider mental or emotional disturbance of any degree
whatever in mitigation of penalty”].)
42
Under factor (d), the trier of fact may, in determining the penalty to be
imposed, take into account “[w]hether or not the offense was committed while the
defendant was under the influence of extreme mental or emotional disturbance.”
43
Pursuant to CALJIC No. 8.85, the trial court instructed the jury: “In
determining which penalty is to be imposed on the defendant, you shall consider
all of the evidence which has been received during any part of the trial of this case,
except as you may be hereafter instructed. You shall consider, take into account
and be guided by the following factors, if applicable: [¶] . . . [¶] (k) Any other
circumstance which extenuates the gravity of the crime even though it is not a
legal excuse for the crime and any sympathetic or other aspect of the defendant’s
character, background, social history or record that the defendant offers as a basis
for a sentence less than death, whether or not related to the offense for which he is
on trial. . . .”
85
Notwithstanding defendant’s assertion that the factor (k) instruction is the
least accurately understood of California’s sentencing factors, contributing to
“pronounced” “constitutional harm,” we repeatedly have rejected challenges to its
validity. (See, e.g., People v. San Nicholas, supra, 34 Cal.4th at pp. 675-676; see
also Boyde v. California (1990) 494 U.S. 370, 381 [upholding a predecessor
version of factor (k)].) We do so again here. We also observe that defendant does
not demonstrate that the jury misunderstood its function in the present case.
CALJIC No. 8.88 (1989 rev.) is not inconsistent with the requirement set
forth in section 190.3 that “If the trier of fact determines that the mitigating
circumstances outweigh the aggravating circumstances[,] the trier of fact shall
impose a sentence of confinement in state prison for a term of life without the
possibility of parole.”44 (See People v. McPeters (1992) 2 Cal.4th 1148, 1194
[rejecting a similar contention].)
The trial court did not err in failing to instruct the jury (or otherwise
require) that the jury must agree unanimously as to aggravating circumstances,
that all aggravating factors must be proved beyond a reasonable doubt, that
aggravation must outweigh mitigation beyond a reasonable doubt, and that death
must be found to be the appropriate penalty beyond a reasonable doubt. (People v.
Carpenter, supra, 15 Cal.4th at p. 421; People v. Berryman (1993) 6 Cal.4th 1048,
1101-1102.)
The trial court’s failure to delete inapplicable factors from the instructions
given to the jury did not violate defendant’s rights under the Fifth, Sixth, Eighth,
44
Pursuant to CALJIC No. 8.80 (1989 rev.), the trial court instructed the jury:
“To return a judgment of death, each of you must be persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.”
86
or Fourteenth Amendments. (People v. Carpenter, supra, 15 Cal.4th at p. 421.)
Moreover, as defendant acknowledges, the trial court instructed the jury pursuant
to CALJIC No. 8.85 that “only those factors that are applicable on the evidence
adduced at trial are to be taken into account in the penalty determination in the
individual case.” We therefore reject defendant’s contention that he was deprived
of his right to an individualized sentencing determination based upon permissible
factors relating to him and the crimes he committed.
The circumstance that under California law an individual prosecutor has
discretion whether to seek the death penalty in a particular case did not deny
defendant his constitutional rights to equal protection of the laws or to due process
of law. (People v. Barnett, supra, 17 Cal.4th 1044, 1179; People v. Ray, supra, 13
Cal.4th 313, 359; People v. Crittenden (1994) 9 Cal.4th 83, 152; see also Gregg v.
Georgia (1976) 428 U.S. 153, 225 (conc. opn. of White, J.) [“Absent facts to the
contrary, it cannot be assumed that prosecutors will be motivated in their charging
decisions by factors other than the strength of their case and the likelihood that a
jury would impose the death penalty if it convicts.”].) Moreover, nothing in the
present case even remotely suggests that defendant’s constitutional rights were
denied by the decision of the San Diego County prosecutor to seek the death
penalty. To the contrary, the evidence of defendant’s penchant for overpowering
young women and strangling them to death amply demonstrates that the
prosecutor’s decision to seek the death penalty was neither arbitrary nor
capricious, but rather an appropriate exercise of prosecutorial discretion in
response to defendant’s criminal rampage across California. Defendant, an
apparently unremorseful serial killer and rapist, is precisely the type of individual
against whom virtually any California prosecutor would seek the death penalty.
Defendant is totally unconvincing in suggesting otherwise.
87
F. Cumulative
Error
Defendant contends that the cumulative effect of the asserted errors
committed at his trial led to a miscarriage of justice, requiring reversal of the guilt
and penalty phase judgments. Having determined that defendant’s trial was nearly
free of error, and that, to the extent error was committed, it clearly was harmless,
we conclude that defendant’s claim of cumulative error lacks merit.
DISPOSITION
The special circumstance of lying in wait is set aside. In all other respects,
we affirm the judgment as to both guilt and penalty.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
88
CONCURRING OPINION BY KENNARD, J.
I concur in the majority opinion, which I have signed. I write separately to
address the merits of defendant’s claim that the prosecutor improperly commented
on defendant’s invocation of his right not to testify at trial.
Defendant was charged with the murder of Janette Cullins. In its case-in-
chief, the prosecution presented evidence that defendant had also murdered four
other women: Tok Kim, Susan Knoll, Jillette Mills, and Bonnie Guthrie. When
defendant was arrested for the murders, he was driving a car belonging to murder
victim Mills. In the car, the police found a key ring that belonged to victim
Cullins; a kitchen knife, rubber gloves, and a gold chain, belonging to victim Kim;
a supermarket CASHEX card that belonged to victim Knoll; towels, athletic wear,
and photographic equipment that belonged to victim Mills; and three handwoven
sweaters that belonged to victim Guthrie.
In his rebuttal argument to the jury, the prosecutor said: “No one prevents
[the defense] from telling you what happened. No one prevents them from
bringing forth witnesses to explain why the defendant was in the car with all that
property. They could do that if they wanted to.” Defense counsel objected,
asserting the prosecutor was in essence commenting on defendant’s invocation of
the privilege against self-incrimination. Without ruling on the objection, the trial
court instructed the jury that defendant had a constitutional right not to testify.
The majority does not decide whether the prosecutor’s comment was
proper, concluding that any error was harmless. (Maj. opn., ante, at p. 67.) In my
view, the comment violated the rule established in Griffin v. California (1965) 380
U.S. 609. There, the United States Supreme Court held that a prosecutor who
1
comments on a defendant’s failure to testify at trial violates the defendant’s
privilege against self-incrimination, as protected by the Fifth and Fourteenth
Amendments to the federal Constitution. The court explained that such a
comment “solemnizes the silence of the accused into evidence against him,” and
thus “cuts down on the privilege by making its assertion costly.” (Id. at p. 614;
see also Portuonodo v. Agard (2000) 529 U.S. 61, 65.)
This court has explained that, as a general rule, Griffin v. California, supra,
380 U.S. 609, does not prevent prosecutors from commenting on the failure of the
defense to introduce relevant evidence or to call logical witnesses. (People
v. Hovey (1988) 44 Cal.3d 543, 572.) But Griffin does not allow a prosecutor to
argue to the jury “that certain testimony or evidence is uncontradicted, if such
contradiction or denial could be provided only by the defendant, who therefore
would be required to take the witness stand.” (People v. Bradford (1997) 15
Cal.4th 1229, 1339; see also People v. Johnson (1992) 3 Cal.4th 1183, 1229 [“a
prosecutor errs by referring to evidence as ‘uncontradicted’ when the defendant,
who elects not to testify, is the only person who could have refuted it”]; People
v. Murtishaw (1981) 29 Cal.3d 733, 757-758.) Similarly, “a prosecutor may not
comment on a defendant’s failure to present evidence to contradict the
government’s case if ‘the defendant alone had the information to do so.’ ” (U.S. v.
Triplett (8th Cir. 1999) 195 F.3d 990, 995.) To determine whether a prosecutor’s
comment violated Griffin, a reviewing court must decide whether there is a
“reasonable likelihood” that the jury construed the remark as a commentary on the
defendant’s failure to testify. (People v. Roybal (1998) 19 Cal.4th 481, 514;
People v. Clair (1992) 2 Cal.4th 629, 663.)
Here, the evidence presented to the jury at trial did not disclose the
existence of any living person other than defendant who could have testified as to
how defendant had acquired a car that belonged to one of the murder victims and
2
that contained property belonging to each of the other murder victims. Nor would
there necessarily be such a person if defendant were innocent of the murders.
Thus, there is a “reasonable likelihood” (People v. Roybal, supra, 19 Cal.4th at
p. 514; People v. Clair, supra, 2 Cal.4th at p. 663) that the prosecutor’s assertion
that nothing prevented the defense from “bringing forth witnesses to explain why
the defendant was in the car with all that property” was construed by the jury as a
commentary on defendant’s failure to testify in his own defense.
The prosecutor’s improper comment does not, however, require reversal of
the judgment. As the majority correctly explains, any error was harmless “in view
of the indirect nature of the prosecutor’s comment, the court’s timely reinstruction
of the jury, and the strength of the evidence against defendant.” (Maj. opn., ante,
at p. 67.) Thus, it is “clear beyond a reasonable doubt that the jury would have
returned a verdict of guilty” (United States v. Hasting (1983) 461 U.S. 499, 511)
even if the prosecutor had not made the comment at issue.
KENNARD,
J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Carter
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S023000
Date Filed: August 15, 2005
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Melinda J. Lasater
__________________________________________________________________________________
Attorneys for Appellant:
Phillip H. Cherney, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Carl H. Horst and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Phillip H. Cherney
214 South Johnson Street
Visalia, CA 93291
(559) 732-6852
Jeffrey J. Koch
Deputy Attorney General
110 West A Street. Suite 1100
San Diego, CA 92101
(619) 645-2213
2
Opinion Information
| Date: | Docket Number: |
| Mon, 08/15/2005 | S023000 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Jeffrey J. Koch, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Carter, Dean Phillip (Appellant) Represented by Federal Public Defender - La Brad D. Levenson / Amanda R. Touchton 321 East Second Street Los Angeles, CA |
| Disposition | |
| Aug 15 2005 | Opinion: Affirmed |
| Dockets | |
| Sep 9 1991 | Judgment of death |
| Sep 19 1991 | Filed cert. copy of Judgement of Death Rendered 9-9-91. |
| Sep 29 1991 | Application for Extension of Time filed By CSR Cathy Bell to Complete R.T. |
| Sep 29 1991 | Application for Extension of Time filed By CSR Donna Gebhart to Complete R.T. |
| Sep 29 1991 | Application for Extension of Time filed By CSR Duane Rankin to Complete R.T. |
| Sep 29 1991 | Application for Extension of Time filed By Csrs John Avery & David Daily to Complete R.T. |
| Sep 30 1991 | Application for Extension of Time filed By County Clerk to Complete C.T. |
| Oct 3 1991 | Extension of Time application Granted To Court Reporters To 11-28-91 To Complete R.T. |
| Oct 8 1991 | Application for Extension of Time filed By CSR Lynn Alexander to Complete R.T. |
| Oct 10 1991 | Extension of Time application Granted To County Clerk To 12-2-91 To Complete C.T. |
| Oct 11 1991 | Extension of Time application Granted To Court Reporter To 10-30-91 To Complete R.T. |
| Mar 18 1994 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Phillip H. Cherney, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings. |
| Apr 11 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Apr 13 1994 | Extension of Time application Granted To Applt To 6-16-94 To request Corr. of Record. |
| Apr 20 1994 | Compensation awarded counsel |
| Jun 17 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 22 1994 | Extension of Time application Granted To Applt To 8-15-94 To request Corr. of Record. |
| Aug 15 1994 | Application for Extension of Time filed By Applt to request correction of Record. |
| Aug 16 1994 | Extension of Time application Granted To Applt To 10-14-94 To request Corr. of Record. |
| Sep 8 1994 | Change of Address filed for: Atty Phillip H. Cherney. |
| Oct 17 1994 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 18 1994 | Extension of Time application Granted To Applt To 12-13-94 To request Corr. of Record. |
| Dec 13 1994 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 14 1994 | Extension of Time application Granted To Applt To 2-14-95 To request Corr. of Record. |
| Feb 15 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Feb 16 1995 | Extension of Time application Granted To Applt To 4-17-95 To request Corr. of Record. |
| Apr 17 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Apr 18 1995 | Extension of Time application Granted To Applt To 6-16-95 To request Corr. of Record. |
| Jun 16 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 19 1995 | Extension of Time application Granted To Applt To 8-15-95 To request Corr. of Record. |
| Aug 15 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Aug 17 1995 | Extension of Time application Granted To Applt To 10-16-95 To request Corr. of Record. |
| Oct 16 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Oct 17 1995 | Extension of Time application Granted To Applt To 12-15-95 To request Corr. of Record. |
| Dec 15 1995 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 15 1995 | Extension of Time application Granted To Applt To 2-13-96 To request Corr. of Record. |
| Feb 15 1996 | Application for Extension of Time filed By Applt to request correction of Record |
| Feb 16 1996 | Extension of Time application Granted To April 15,1996 To request correction of the Record on Appeal.Counsel for Applt Is Ordered To Notify the Clerk of the Supreme Court in Writing As Soon As the Act As to which the Court has granted an Extention of time has been Completed. |
| Apr 16 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 22 1996 | Extension of Time application Granted To Applt To 6-14-96 To request Corr. of Record. |
| Jun 12 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jun 13 1996 | Extension of Time application Granted To Applt To 8-13-96 To request Corr. of Record. no further Extensions of time Are Contemplated. |
| Aug 12 1996 | Received copy of appellant's record correction motion Application to Provide Sealed Transcripts and to Augment, Correct and Settle the Record on Appeal. (27 pp. excluding attachments). |
| Aug 21 1996 | Compensation awarded counsel |
| Mar 17 1997 | Record on appeal filed C-17 (3,397 Pp.) and R-109 (10,173 Pp.) (Includes Sealed Material). Clerk's Transcript includes 578 pages of Juror Questionnaires. |
| Mar 17 1997 | Appellant's opening brief letter sent, due: 4-28-97. |
| Mar 19 1997 | Compensation awarded counsel |
| Apr 25 1997 | Application for Extension of Time filed To file Aob. |
| Apr 29 1997 | Extension of Time application Granted To 6-27-97 To file Aob. |
| Jun 26 1997 | Application for Extension of Time filed To file Aob. |
| Jun 27 1997 | Extension of Time application Granted To 8-26-97 To file Aob. |
| Aug 25 1997 | Application for Extension of Time filed To file Aob. |
| Aug 27 1997 | Extension of Time application Granted To 10-27-97 To file Aob. |
| Oct 27 1997 | Application for Extension of Time filed By Applt to file AOB |
| Oct 28 1997 | Extension of Time application Granted To December 29, 1997 To file AOB |
| Dec 29 1997 | Application for Extension of Time filed To file Aob. |
| Dec 30 1997 | Extension of Time application Granted To 2-27-98 To file Aob. |
| Feb 26 1998 | Application for Extension of Time filed To file Aob. |
| Mar 3 1998 | Extension of Time application Granted To 4-28-98 To file Aob. |
| Apr 27 1998 | Application for Extension of Time filed To file Aob. |
| Apr 28 1998 | Extension of Time application Granted To 6-29-98 To file AOB |
| Jun 26 1998 | Application for Extension of Time filed To file Aob. |
| Jul 2 1998 | Extension of Time application Granted To 8-28-98 To file AOB |
| Aug 28 1998 | Application for Extension of Time filed To file Aob. |
| Aug 28 1998 | Extension of Time application Granted To 10-27-98 To file Aob. |
| Oct 26 1998 | Application for Extension of Time filed To file Aob. |
| Nov 2 1998 | Filed: Suppl Decl of Phillip Cherney in support of request for Eot. |
| Nov 3 1998 | Extension of Time application Granted To 12-28-98 To file Aob. |
| Dec 28 1998 | Application for Extension of Time filed To file AOB |
| Jan 6 1999 | Extension of Time application Granted To 2-26-99 To file AOB |
| Feb 26 1999 | Application for Extension of Time filed To file Aob. |
| Mar 3 1999 | Extension of Time application Granted On the representation of Counsel Phillip H Cherney that He Anticipates filing Applt's Opening brief in this Matter "by the End of June,1999," the Request for Extension of time in which to file AOB Is granted to 4-27-99.Only one Additional Extension of time Is Contemplated in this Matter. |
| Apr 26 1999 | Application for Extension of Time filed To file Aob. |
| Apr 29 1999 | Extension of Time application Granted Based Upon Counsel's representation that He [Does] not Anticipate Any other Responsibilities Will Interfere with [His] Ability to Complete and file An Opening brief in this case by the End of June 1999,the time for filing AOB Is extended to and Including 6-30-99. No further Extensions of time will be granted |
| Jun 30 1999 | Filed: Applt's Applic. for Leave to file Oversized Aob. (AOB submitted Under Separate Cover.) |
| Jul 2 1999 | Order filed: The Application of Appellant for Leave to file an Oversized Appellant's Opening brief Is Granted. |
| Jul 2 1999 | Appellant's opening brief filed (382 Pp) |
| Jul 7 1999 | Compensation awarded counsel |
| Jul 23 1999 | Application for Extension of Time filed To file Resp's brief. |
| Jul 28 1999 | Extension of Time application Granted To 9-30-99 To file Respondent's brief |
| Sep 24 1999 | Application for Extension of Time filed To file Resp's brief. |
| Sep 28 1999 | Extension of Time application Granted To 11/29/99 To file Resp's brief. |
| Nov 23 1999 | Application for Extension of Time filed To file Resp's brief. |
| Nov 30 1999 | Extension of Time application Granted To 12/29/99 To file Resp's brief. |
| Dec 23 1999 | Application for Extension of Time filed To file Resp's brief. |
| Jan 4 2000 | Extension of Time application Granted To 1/28/2000 To file Resp's brief. |
| Jan 26 2000 | Respondent's brief filed (209 Pps.) |
| Feb 3 2000 | Compensation awarded counsel Atty Cherney |
| Feb 14 2000 | Application for Extension of Time filed To file reply brief. |
| Feb 18 2000 | Extension of Time application Granted To 4/17/2000 To file reply brief. |
| Apr 17 2000 | Application for Extension of Time filed To file reply brief. |
| Apr 18 2000 | Extension of Time application Granted To 6/16/2000 To file reply brief. |
| May 12 2000 | Compensation awarded counsel Atty Cherney |
| Jun 16 2000 | Application for Extension of Time filed To file reply brief. |
| Jun 22 2000 | Extension of Time application Granted To 8/15/2000 To file reply brief. |
| Aug 14 2000 | Application for Extension of Time filed To file reply brief. (4th request) |
| Aug 14 2000 | Counsel's status report received (confidential) |
| Aug 16 2000 | Extension of Time application Granted To 10/16/2000 to file reply brief. |
| Aug 22 2000 | Compensation awarded counsel Atty Cherney |
| Oct 16 2000 | Application for Extension of Time filed To file reply brief. (5th request) |
| Oct 24 2000 | Extension of Time application Granted To 12/15/2000 to file reply brief. |
| Dec 12 2000 | Application for Extension of Time filed To file reply brief. (6th request) |
| Dec 14 2000 | Extension of Time application Granted To 1/16/2001 to file reply brief. |
| Dec 22 2000 | Application to file over-length brief filed To file reply brief. |
| Dec 28 2000 | Filed: confidential declaration of counsel. |
| Jan 3 2001 | Order filed: Applt's application for leave to file applt's reply brief in excess of 140 pages is granted. |
| Jan 3 2001 | Appellant's reply brief filed (175 pages) |
| Jan 5 2001 | Compensation awarded counsel Atty Cherney |
| Jan 10 2001 | Compensation awarded counsel Atty Cherney |
| Feb 20 2001 | Counsel's status report received (confidential) |
| Apr 16 2001 | Related habeas corpus petition filed (concurrent) case no. S096874. |
| Apr 16 2001 | Habeas funds request filed (confidential) |
| Apr 23 2001 | Compensation awarded counsel Atty Cherney |
| Sep 12 2001 | Order filed re habeas funds request (confidential) |
| Dec 4 2001 | Compensation awarded counsel Atty Cherney |
| Dec 19 2001 | Compensation awarded counsel Atty Cherney |
| Mar 23 2005 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the late May calendar, to be held the week of May 23, 2005, 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. |
| May 3 2005 | Case ordered on calendar 5/24/05, 1:30pm, S.F. |
| May 13 2005 | Filed letter from: respondent, dated 5/12/2005, re focus issues for oral argument. |
| May 16 2005 | Filed letter from: appellant, dated 5-13-2005, with focus issues for oral argument. |
| May 18 2005 | Received: letter from respondent, dated 5-16-2005, with additional authorities. (2 pp.) |
| May 19 2005 | Filed: supplemental proof of service of appellant's focus issue letter filed 5-16-2005. |
| May 20 2005 | Received: letter from appellant, dated 5-18-2005, with additional authority. (1 pp.) |
| May 24 2005 | Cause argued and submitted |
| May 26 2005 | Compensation awarded counsel Atty Cherney |
| Aug 15 2005 | Opinion filed: Judgment affirmed in full Majority Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin & Moreno, JJ. |
| Aug 30 2005 | Rehearing petition filed by appellant. (1614 words; 7 pp.) |
| Sep 6 2005 | Time extended to consider modification or rehearing to 11/3/2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Oct 26 2005 | Opinion modified - no change in judgment |
| Oct 26 2005 | Rehearing denied Opinion modified. Petition for rehearing DENIED. |
| Oct 26 2005 | Remittitur issued (AA) |
| Nov 3 2005 | Order filed (150 day statement) |
| Nov 7 2005 | Received: acknowledgment of receipt of remittitur. |
| Feb 15 2006 | Received: letter from U.S.S.C., dated January 25, 2006, advising petition for writ of certiorari filed on January 21, 2006 and placed on docket January 25, 2006 as No. 05-8814. |
| Feb 24 2006 | Received: copy of brief in opposition to petiton for writ of certiorari. (17 pp. - excluding attachments) |
| Apr 3 2006 | Certiorari denied by U.S. Supreme Court |
| Jun 22 2007 | Related habeas corpus petition filed (post-judgment) case no. S153780 |
| Sep 5 2007 | Motion to withdraw as counsel filed by atty Cherney. |
| Sep 5 2007 | Motion for appointment of counsel filed by the Federal Public Defender. |
| Sep 12 2007 | Exhibit(s) filed (AA) Exhibit A filed in support of appellant's motion for appointment of counsel by the Federal Public Defender. |
| Sep 18 2007 | Filed: supplemental proof of service re: Exhibit A Federal Public Defender Amanda R. Touchton |
| Sep 25 2007 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for condemned prisoner Dean Phillip Carter, filed September 5, 2007, is granted. The order appointing Phillip H. Cherney as counsel of record for condemned prisoner Dean Phillip Carter, filed March 18, 1994, is hereby vacated. The Federal Public Defender for the Central District of California is hereby appointed attorney of record for condemned prisoner Dean Phillip Carter. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. |
| Briefs | |
| Jul 2 1999 | Appellant's opening brief filed |
| Jan 26 2000 | Respondent's brief filed |
| Jan 3 2001 | Appellant's reply brief filed |
