Filed 3/3/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S035367
v.
CEDRIC HARRISON,
) Alameda
County
Defendant and Appellant.
Super. Ct. No. 90719
An Alameda County jury convicted defendant Cedric Harrison of two
counts of first degree murder. (Pen. Code, § 187.)1 The jury found true a
multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)) and further
found that defendant personally used a handgun to commit both murders
(§ 12022.5, subd. (a)). Defendant admitted allegations that he had five prior
convictions: for rape (§ 261), oral copulation (§ 288a), kidnapping (§ 207),
assault with intent to commit a felony (§ 220), and robbery (§ 211). On the
prosecution’s motion, the court struck two other prior-conviction allegations. The
jury deadlocked at the penalty phase, and the court declared a mistrial. After
retrial of the penalty phase, a different jury returned a verdict of death. This
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
1
All further statutory references are to the Penal Code unless otherwise
stated.
1
I. FACTS
A. Guilt Phase
In the early morning hours of April 27, 1987, Betty Thompson and Leroy
Robinson were shot to death in Oakland. The prosecution presented evidence that
defendant killed them over a purchase of a small rock of what was supposed to be
crack cocaine, but apparently was not.
1. Prosecution’s case
In the spring of 1987, defendant lived in Oakland, California. He used
drugs and sold cocaine with his friend and neighbor, Olin Davis. Defendant and
Davis sometimes exchanged cocaine for sexual favors from women. Defendant
always carried a .38-caliber revolver.
Murder victim Betty Thompson also lived in Oakland with her 16-year-old
son and her seven-year-old daughter. She was a habitual cocaine and heroin user.
Shortly before her murder, she began dating murder victim Leroy Robinson,
another drug user and the other murder victim in this case.
On March 20, 1987, Oakland Police Officers Richard Hassna and Michael
Yoell saw defendant standing in a parking lot known for drug problems and
shootings. Defendant looked toward the patrol car and began running. As he ran,
defendant pulled out a revolver and threw it in a nearby planter box. He
eventually stopped and was arrested. Officers recovered six unexpended .38-
caliber rounds from defendant’s front pants pocket, and retrieved a blue-steel .38-
caliber revolver with a two-inch barrel and a brown plastic grip from the planter
box. The revolver had six unexpended rounds in its cylinder.
On April 25, 1987, defendant and Davis saw Thompson in front of
Thompson’s house on 85th Avenue. Defendant introduced Thompson to Davis,
who invited Thompson to his house. That evening, Thompson visited Davis’s
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house with her young daughter. While Davis’s roommate watched Thompson’s
daughter, Thompson and Davis went into the bedroom; Thompson performed oral
sex on Davis in exchange for rock cocaine. About 9:00 p.m., Davis walked
Thompson and her daughter home. Later that night, defendant stopped by Davis’s
house with Richard (“Shorty”) Johnson, and Davis related what had occurred
earlier with Thompson.
Around 11:00 o’clock the next evening, Ralph Rivera, a heroin addict who
had known Thompson for years, visited Thompson at her home. At some point,
Leroy Robinson came to the house, and Thompson introduced him to Rivera.
After 30 minutes, two male friends of Thompson’s joined them. Rivera described
one of the men (Richard Johnson) as about five feet six inches tall, about 150 to
160 pounds in weight and of stocky build, with shoulder-length hair in jheri curls.
The other man, whom Rivera later identified in a live lineup as defendant, was
about six feet tall, had a thin mustache and a nearly shaved head, and was older
and lighter skinned than Johnson.
Rivera heard Johnson talking to Thompson. Although he did not
understand the slang they used, he believed Thompson was agreeing to get drugs
for Johnson. Johnson then left, followed shortly thereafter by Thompson and later
by defendant.
Ten minutes later Thompson returned, and after about five minutes
defendant and Johnson also came back. Thompson spoke to Johnson and handed
him a small white pebble. As defendant stood near the door, Johnson, who
appeared upset, asked: “What’s this?” Thompson replied: “Well, that’s what
they gave me.” Johnson asked where she got it, and she said she got it “around the
corner.” Defendant, who also appeared upset, loudly asked Johnson: “Well, what
do you want to do?” Johnson angrily said: “Well, let’s go and see about getting
the money back.” Everyone except Rivera left.
3
About 2:45 a.m. on April 27, 1987, Lisa McKaufman, who lived with her
infant daughter and boyfriend Kenneth Burnside in her apartment in Oakland, was
awakened by a knock on her kitchen window and the sound of voices. She woke
Burnside. When someone then knocked on the front door, Burnside got up and
asked who it was. A female voice answered: “Open the door, it’s Betty.”
Burnside opened the door to find Thompson and Robinson. Thompson asked if
Burnside was selling drugs, and Burnside said he was not. Robinson then pushed
Thompson forward into the apartment. Scared, McKaufman spoke up and also
denied selling drugs. When the baby started crying, Thompson said: “Okay, it’s
cool,” and she and Robinson left. As they did so, McKaufman saw behind them a
shadow of a man of average height wearing a beanie cap. As Burnside locked the
front door, McKaufman heard Robinson say, “This is bullshit,” and heard
Thompson scream. McKaufman then heard three or four gunshots, apparently
coming from behind the apartment complex. McKaufman called the police.
The gunshots were also heard by Oakland Police Officer Patricia Fuller,
who was nearby in a parked patrol car. When she arrived at the scene, she saw
Thompson near a car in the driveway, curled in a fetal position on the ground,
gasping for breath, bleeding from the head, and holding her hands over her ears.
Some six feet away from Thompson was Robinson, who was lying on the ground
with his face up; he was bleeding from his head and ear. His dentures lay a foot
away.
Thompson died of two gunshot wounds to the head. She also had a
gunshot wound in a finger of her right hand. Stippling, or imbedded gunpowder
grains, in the surface of the skin of that hand indicated that it was no more than
four inches from the weapon that fired the fatal shots. Robinson died from a
single gunshot through his mouth and into his head; the front of the barrel of the
gun was inside his mouth when the shot was fired. The bloodstream of each
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victim contained cocaine metabolite, indicating they had ingested cocaine between
six and 24 hours before their deaths. At the time of his death, Robinson had a
blood alcohol level of .08 percent.
The lead core and the copper-colored jacket of a bullet, as well as several
bullet fragments, were recovered from Thompson’s head, while a solid lead slug
was recovered from Robinson’s head. A criminalist and expert in firearms
identification testified that the slugs were either .38 special or .357 magnum
caliber rounds. He further concluded that one of the bullet fragments recovered
from Thompson’s head and the solid lead slug recovered from Robinson’s head
were fired from the same firearm. The copper-jacketed bullet recovered from
Thompson’s head was fired from a .38 special or .357 magnum firearm having
characteristics similar to that which fired the other slugs. But the criminalist could
draw no conclusion as to whether it was fired from the same firearm as the other
two slugs, because the presence of the copper jacket made further comparison
impossible.
On the day after the two murders, defendant came to his friend Olin Davis’s
house and told him he had shot Thompson and “her old man.” Defendant said that
he had grabbed Thompson and shot her in the back of the head twice with his
revolver, and that he had grabbed Robinson and shot him in the throat. Defendant
said “Shorty” was with him at the time. After telling Davis to keep the
information to himself, defendant left. The next day, early in the afternoon,
defendant came by again and handed Davis a plastic-wrapped newspaper clipping
of the double murder, saying: “Look, see.”
Sometime between April 27 and May 4, 1987, Richard Johnson came to
Davis’s house and said he was present when defendant committed the murders.
He also told Davis to keep “everything” to himself.
5
On April 29, 1987, two days after the murders, Robert Williams went to
Davis’s home and, while Davis was asleep in the bedroom, smoked cocaine.
About 20 minutes later, defendant and Richard Johnson came in the house and
injected heroin. Williams overheard Johnson tell defendant, “You know he told
on him.” Defendant said: “I ought to go kill him now,” referring to Davis.
Williams woke Davis and said: “You better get up and watch yourself.” Williams
then left.
On May 2, 1987, Davis went to the home of his drug supplier, Jesse
Slaughter to get cocaine for several buyers. Slaughter gave Davis five or six rocks
of cocaine worth about $100, a sum that Davis was to pay Slaughter after selling
the rocks. Davis sold one rock from the package and later replaced it with another
rock he obtained elsewhere. The next morning, Davis gave the package to
Williams to give to Slaughter. But later that day, Slaughter sought Davis out and
threatened to kill him if he did not pay him the $100 owed. Davis explained that
he gave the package to Williams to return to Slaughter, but Slaughter denied
receiving the package.
Two days later, on May 4, 1987, Davis hid outside Slaughter’s house to
wait for Williams. As soon as Williams came out, Davis beat him up. As Davis
walked away, Williams chased after him with a gun. Running, Davis fell;
Williams fired the gun, but the gun jammed. Davis ran to a telephone booth and
called police. While he did so, Williams set fire to Davis’s house. As Davis
walked back toward his house after calling the police, Williams caught up with
him and fired the gun, which again jammed. Williams started hitting Davis with
the gun, and the two fought. Slaughter ran toward them and broke up the fight by
shooting his own gun into the ground.
Davis went to Highland Hospital for injuries he suffered during the fight.
When he called his mother, she told him she had heard there was a “contract out”
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on him because he was pressing charges against Williams for arson. Davis’s
brother Bruce picked him up from the hospital and drove him to defendant’s
house. Davis thought that if there was a contract out on him, defendant would
know about it.
Davis and Bruce arrived at defendant’s house about 9:00 p.m. Davis told
defendant there was a contract out on him. Defendant suggested Davis and Bruce
ride with him and his brother so they could talk about the contract. Davis refused.
He and Bruce then drove toward their mother’s house, followed by defendant and
his brother Ronald Gino Harrison (Gino) in their station wagon. Because Davis
did not want defendant to know where his mother lived, he got out of the car and
entered the back seat of the station wagon.
At some point, Gino, who was driving, stopped at a convenience store.
When Gino walked into the store, defendant got in the back seat next to Davis by
shoving him over with his shoulder. As defendant did so, his .38-caliber revolver
fell out. Defendant quickly picked up the revolver.
Gino returned to the car and handed each person a can of beer. Defendant
returned to the front passenger seat. Gino drove to a park near Merritt College.
As soon as the car stopped, defendant jumped out, opened the back passenger side
door, and told Davis, “You’re through.” Defendant was holding his revolver in
his right hand, with the barrel pointed in the air. He then pulled Davis out by his
collar and threw him against the car. Davis grabbed defendant’s gun-holding
hand. As the two struggled, Gino grabbed Davis’s calves. Defendant
overpowered Davis and fired, hitting Davis in the lower chin. When Davis
continued struggling, defendant fired again but missed. Davis broke loose and
ran, hearing two or three shots whizzing by him.
7
Davis ran to a residential area and started banging on doors. At the second
house he approached, a woman came to the door and, seeing his bleeding face,
screamed. Davis slipped to the ground. The police arrived shortly thereafter.
Oakland Police Officer Gus Galindo spoke to Davis. Davis’s face was
bloody and mangled, with pieces of teeth stuck on his face. Unable to speak,
Davis wrote down defendant’s physical description, the location of defendant’s
house, and the description of the station wagon. At Highland Hospital, Davis
wrote a note to the police that he knew who had killed Betty Thompson.
Shortly after 10:00 p.m., Oakland Police Officer Robert Earl Williams, Jr.,
went to the home of defendant’s mother to talk to defendant. Defendant was
sitting on the porch; his right arm was bleeding. Defendant said he and his brother
had been standing in front of the house when someone drove by and shot him, but
he could not give any details about the incident. Officer Williams saw a blue
station wagon parked in the driveway next door, with what appeared to be a
gunshot through the right rear window. The hood of the station wagon was very
warm, indicating that the car had recently been driven; fresh droplets of blood
stained the driver’s seat. Officer Williams arrested defendant and took him to
Highland Hospital for medical treatment.
The next day, May 5, 1987, Sergeant Daniel Voznik, who was investigating
the Thompson/Robinson murders, saw the police report on the Davis shooting and
went to Highland Hospital to talk to Davis. Because Davis’s face was heavily
bandaged, he was unable to speak, and he responded to police questioning by
writing his answers on paper. Davis wrote that defendant had visited him on April
28, 1987, had told him about the Thompson/Robinson murders, and had shown
him a newspaper clipping about the murders. Davis further wrote that defendant
said he and Richard Johnson had killed the victims over heroin.
8
On May 7, 1987, police officers executed a warrant to search the home of
defendant’s mother. They recovered 14 rounds of .38-caliber ammunition, as well
as .22-caliber and .25-caliber ammunition, but found no guns.
The next day, after his discharge from the hospital, Davis led the police to
the location where defendant had shot him. Nearby on the ground were Davis’s
earlier hospital discharge and prescription papers, which he had with him while
riding with defendant in the station wagon; his tennis shoes, which had fallen off
during his struggle with defendant; and a .38-caliber bullet.
Robert Williams testified for the prosecution at defendant’s preliminary
hearing. Before taking the witness stand, he saw defendant outside the holding
cell in the courthouse. Defendant told Williams to keep his mouth shut and not to
say anything about having seen defendant with a gun, adding he knew where
Williams lived. Williams understood this to be a threat.
2. Defense case
By highlighting inconsistencies in Olin Davis’s testimony and attacking
Richard Johnson’s credibility, the defense tried to show that Johnson, not
defendant, had killed Betty Thompson and Leroy Robinson.
Sergeant Voznik testified that he met with Johnson and his attorney on May
12, 1987. Voznik told Johnson that he would be treated as a suspect, and that the
police would review any statement he gave before determining the extent of his
culpability. When Johnson refused to give a statement, Voznik arrested him.
After spending the night in jail, Johnson changed his mind and agreed to talk to
Voznik. Johnson told Voznik that he was at Thompson’s house when defendant
gave Thompson money to buy cocaine. Later that night, after going to Lisa
McKaufman’s apartment, defendant walked to the alley and asked Thompson,
“Betty, may I speak to you for a minute?” Defendant then took a gun from his
9
pants, pulled Robinson to him, and shot him in the neck. Thompson screamed and
dropped to the ground in a fetal position. Defendant straddled Thompson and shot
her at least twice.
Stephen Stephanopoulos, an investigator with the Alameda County District
Attorney’s Office, testified he spoke with Johnson in October 1991. Johnson said
that his statement to the police implicating defendant was a lie, and that he did not
know anything about the murders because he was not there.
Andre Jackson, incarcerated on a charge of burglary at the time of
defendant’s trial, testified that in March 1985, Johnson accused him of owing
Johnson’s sister money for drugs, grabbed him by his chest with one hand, and
pointed a .38-caliber gun at his chest. Jackson broke free, and Johnson fired
several shots at him.
Psychiatrist Harry Kormos testified about the effects of substance abuse on
the brain. As the amount of cocaine in the body increases, because of increased
dosage or repeated usage, psychiatrically abnormal behavior such as agitation,
impatience, inability to focus or concentrate, paranoia, and misinterpretation of
information becomes more common. Dr. Kormos explained that a cocaine user is
likely to be disoriented as to time and impaired in perception, recollection, and
communication, and that these mental impairments are more pronounced in
chronic users of cocaine. He defined a chronic user as someone who abuses
substances often enough, although not necessarily daily, that his or her life is
dominated by them and his or her thinking is more or less permanently altered.
Based on the testimony of Olin Davis regarding his use of cocaine, Dr. Kormos
concluded that Davis was a chronic cocaine user.
The defense also presented evidence that on May 4, 1987, defendant and
Davis each shot the other during the fight in the park. Charles Morton, an expert
in the fields of firearms identification, criminalistics, and ballistics, analyzed the
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shirt defendant was wearing when he was shot in the arm. In his view, the gun
had been in contact with the shirt at the time it was fired. He concluded the bullet
hole in the shirt was too small to have been made by a .38-caliber bullet, and thus
could not have been caused by defendant accidentally shooting himself while
struggling with Davis.
B. Penalty Phase Retrial
1. Prosecution’s case in aggravation
The prosecution generally reprised its guilt phase evidence, either by
calling the same witnesses or by reading into the record the guilt phase testimony
of witnesses who were unavailable at the penalty phase. It also presented the
following evidence relevant to section 190.3, factor (b) (other violent criminal
conduct) and factor (c) (prior felony convictions):
Dorothy Mary Poynter testified that on January 11, 1977, defendant
snatched her purse and fled.
On the night of July 4, 1979, 14-year-old Marcia J. and her friend Linda
accepted a ride home from Linda’s acquaintance Randy. The girls got into a van,
which defendant was driving. A third man was sitting in the front passenger seat.
Randy began sexually assaulting Linda, who jumped out of the van when it
stopped at some point. Randy forced Marcia, who was still in the van, to orally
copulate him. He then raped her, as did defendant and the third man. The parties
stipulated that in December 1979, defendant pleaded guilty to three counts of rape
(§ 261), one count of oral copulation (§ 288a), one count of assault with intent to
commit a felony (§ 220), and one count of kidnapping (§ 207). Defendant was
sentenced to five years in state prison for these offenses and was discharged from
parole in 1986.
11
On June 30, 1981, a prison riot broke out at the California Correctional
Center in Susanville, where defendant was incarcerated. While searching the
dorms and dorm lockers of all inmates, prison guards recovered from defendant’s
locker a 10 1/2-inch long, inmate-manufactured wooden shank, which was
sharpened to a point on one end. This led to the filing of a rules violation report
against defendant.
Murder victim Betty Thompson’s younger sister, Patricia Rayfield, testified
she raised her sister’s two children after the murder, receiving financial assistance
that offset only a portion of the costs of their upbringing. Thompson’s son
Kendall Gibbs testified he missed his mother very much.
2. Defense case in mitigation
The defense offered evidence similar to that presented at the guilt phase,
attempting to raise a lingering doubt that defendant was the shooter and pointing
instead to Richard Johnson as the actual shooter. The defense tried to discredit
Johnson’s statement to police identifying defendant as the killer, and highlighted
inconsistencies in Olin Davis’s testimony and statements to police.
II. PRETRIAL ISSUES
A. Speedy Trial
In 1987, the trial court appointed Jon Rolefson as counsel for defendant.
On December 5, 1990, when the trial court commented on the need for “a July
setting date,” the clerk suggested July 15, 1991, and defense counsel, identified in
the reporter’s transcript as “Don Rawlston,” stated, “July 15th is fine.” The court
continued the case to July 15, 1991, to set for trial. On December 24, defendant
moved for self-representation under Faretta v. California (1975) 422 U.S. 806,
and the court granted the motion. The court also stated it would “maintain all the
court dates.” On February 28, 1991, the matter was continued to July 15, 1991.
12
Thereafter, defendant moved to give up his self-representation status; the court
granted the motion on April 16, 1991, and appointed Albert Meloling as counsel.
Defendant contends he was denied the right to a speedy trial in violation of
section 1382, the Sixth Amendment to the federal Constitution, and article I,
section 15 of the California Constitution. He claims the continuance granted on
December 5, 1990, was improper because it was agreed to not by Jon Rolefson,
his appointed counsel, but by Don Rawlston, a purported stranger to the case who
had no authority to appear on his behalf. He also claims the continuances on
December 24 and February 28, obtained while he represented himself, were
ineffective because the trial court did not obtain his personal waiver of the right to
a speedy trial.
The Sixth Amendment to the federal Constitution, as applied to the states
through the due process clause of the Fourteenth Amendment (Klopfer v. North
Carolina (1967) 386 U.S. 213, 222-223), guarantees a criminal defendant the
“right to a speedy and public trial.” Similarly, article I, section 15 of the
California Constitution guarantees an accused the “right to a speedy public trial.”
The California Legislature has “re-expressed and amplified” these fundamental
guarantees by various statutory enactments, including Penal Code section 1382.
(Townsend v. Superior Court (1975) 15 Cal.3d 774, 779.) At the time of the
December 1990 continuance, section 1382 provided in pertinent part: “The court,
unless good cause to the contrary is shown, shall order the action to be dismissed
in the following cases: [¶] . . . [¶] (b) When a defendant is not brought to trial in
a superior court within 60 days after the . . . filing of the information . . . . [¶] . . .
[¶] (d) If the defendant is not represented by counsel, the defendant shall not be
deemed under this section to have consented to the date for the defendant’s trial
unless the court has explained to the defendant his or her rights under this section
and the effect of his or her consent.” (Stats. 1987, ch. 577, § 1, pp. 1889-1891.) If
13
the defendant is represented by counsel, counsel has the authority to waive
defendant’s statutory right to a speedy trial, at least in the absence of evidence
showing incompetence of counsel. (People v. Wright (1990) 52 Cal.3d 367, 389.)
“Moreover, a defendant’s failure to timely object to the delay and thereafter move
for dismissal of the charges is normally deemed a waiver of his right to a speedy
trial.” (Ibid.)
The reporter’s transcript shows that on December 5, 1990, “Don Rawlston”
appeared on defendant’s behalf. The clerk’s minutes for that date, however,
indicate that appointed counsel Jon Rolefson appeared, but they do not say
whether defendant was present. Defendant argues that because the clerk’s minutes
are inconsistent with the reporter’s transcript as to the identity of the attorney who
appeared on December 5, we must assume that “Don Rawlston,” not Jon Rolefson,
appeared on his behalf. “Rawlston,” he asserts, was not his lawyer and thus
lacked the authority to waive his right to a speedy trial.
As a general rule, a record that is in conflict will be harmonized if possible.
(People v. Smith (1983) 33 Cal.3d 596, 599.) If it cannot be harmonized, whether
one portion of the record should prevail as against contrary statements in another
portion of the record will depend on the circumstances of each particular case.
(Ibid.)
Here, no irreconcilable conflict appears in the record. Defense counsel’s
name obviously was misspelled in the reporter’s transcript. Indeed, the cover page
of the volume containing the transcript of the December 5, 1990, proceeding lists
defense counsel as “Don Ralston,” not “Don Rawlston” as stated in that transcript.
And, as the Attorney General points out, the miscellaneous reporter’s transcript
volume that contains the transcript of the December 5 proceeding contains similar
typographical errors, listing defense counsel at times as “John Rolefson” or “Jon
Rolofson.” Appointed counsel’s actual name was Jon Rolefson. It is thus clear
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that no one other than court-appointed counsel Jon Rolefson appeared on
December 5, 1990, and on that date agreed to a continuance to July 15, 1991.
As for the proceeding on December 24, 1990, defendant contends that once
the trial court granted his Faretta motion, the act of setting the matter over to the
next court date—July 15, 1991—was a continuance requiring a waiver of his right
to a speedy trial, notwithstanding the court’s statement that it would “maintain all
the court dates.” Defendant cites no support for his position, and we reject it.
When a trial court grants a defendant’s motion for self-representation, it is not
required to set aside scheduling decisions agreed to by the defendant’s previous
counsel.
Defendant contends that the continuance on February 28, 1991, to July 15,
1991, violated section 1382, subdivision (c). Not so. As stated, defense counsel
previously had agreed to continue the matter to July 15, when the court would set
a trial date. Although the clerk’s minutes for February 28, 1991, stated that the
matter was “continued” to July 15, the announcement of this court date merely
reiterated a trial setting date to which defense counsel had agreed on December 5,
1990.
Defendant also claims federal and state constitutional violations of his right
to a speedy trial because he did not personally waive his speedy trial right when,
on December 5, 1990, the trial court continued the case to July 15, 1991. To
determine whether defendant’s federal right was violated, we evaluate the length
of the delay, the reason for the delay, defendant’s assertion of his right, and the
prejudice to defendant. (Barker v. Wingo (1972) 407 U.S. 514, 530; People v.
Seaton (2001) 26 Cal.4th 598, 633.) Although no reason for the delay appears on
this record, its length is not atypical for a capital case, as such cases generally
require extensive preparation for trial. Most significantly, defense counsel agreed
to the July 1991 trial setting date. Defendant does not claim any prejudice from
15
the relatively minor delay. We thus reject defendant’s federal constitutional claim,
and we reject his state constitutional claim on the same basis. (See People v.
Martinez (2000) 22 Cal.4th 750, 755-756 [absent a violation of a statutory speedy
trial provision, a defendant must make a showing of specific prejudice to establish
a violation of the state Constitution’s speedy trial right].)
B. Excusal of Prospective Juror Elaine Q.
Defendant contends he was denied the right to a guilt phase trial by an
impartial jury, under the Sixth and Fourteenth Amendments to the federal
Constitution and under article I, section 16 of the California Constitution, because,
according to him, the trial court improperly excluded for cause Prospective Juror
Elaine Q. based on her attitude toward the death penalty.
In Wainwright v. Witt (1985) 469 U.S. 412, the United States Supreme
Court held that a prospective juror may be excluded for cause when the juror’s
views on capital punishment “would ‘prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.’ ” (Id. at p. 424, quoting Adams v. Texas (1980) 448 U.S. 38, 45.) We have
adopted that standard in determining whether a defendant’s state constitutional
right to an impartial jury was violated by an excusal for cause. (People v. Ghent
(1987) 43 Cal.3d 739, 767; see also People v. Ashmus (1991) 54 Cal.3d 932, 962.)
The trial court’s determination of the juror’s state of mind is binding on appeal if
the juror’s statements are equivocal or conflicting. If the juror’s statements are not
inconsistent, we will uphold the court’s ruling if it is supported by substantial
evidence. (People v. Jones (2003) 29 Cal.4th 1229, 1247.)
We find no error here. Several times during voir dire, Prospective Juror Q.
said she could not vote for the death penalty, although she hedged her answer by
stating that “maybe” she could not do so. At the end of voir dire, she stated: “I
16
would find it very, very difficult [to vote for the death penalty], but I could
probably do it. I mean, that’s as good as I can come.” After the prosecutor
challenged Prospective Juror Q. for cause, the trial court noted that she was “quite
uncomfortable” during questioning and that “the record may not reflect the
physical manifestations of her anxiety.” Under these circumstances, the court’s
determination of Prospective Juror Q.’s state of mind is binding. (See People v.
Jones, supra, 29 Cal.4th at p. 1247.)
Defendant maintains Prospective Juror Q. should not have been dismissed
simply because she had serious doubts about the propriety of the death penalty.
He argues that removing prospective jurors with views comparable to Prospective
Juror Q. “tilts the jury toward conviction.” But the trial court did not dismiss
Prospective Juror Q. because of her doubts about the death penalty, but because it
found that those doubts would substantially impair her ability to follow the court’s
instructions. As defendant concedes, we have held that the state and federal
Constitutions permit such “death qualification.” (People v. Jackson (1996)
13 Cal.4th 1164, 1199.)
III. ISSUES RELATED TO GUILT AND SPECIAL CIRCUMSTANCE
A. Admission of the Attempted Murder of Olin Davis
Defendant contends the trial court erred in admitting evidence of his
attempted murder of Olin Davis, because such evidence was impermissible
character evidence (Evid. Code, § 1101, subd. (a)), and because its prejudicial
effect outweighed its probative value (Evid. Code, § 352). He also claims that its
admission violated his federal constitutional right to a fair trial.
1. Relevant proceedings
In addition to the Thompson/Robinson murders, defendant was originally
charged in a third count with the attempted murder of Olin Davis, but the trial
17
court granted defendant’s motion to sever the attempted murder count from the
two murder counts. The court noted that if the prosecution wanted to offer
evidence relating to the attempted murder in the double murder trial, it could seek
a hearing on its admissibility under Evidence Code section 1101.
At a later hearing regarding the admissibility of evidence of the attempted
murder, the prosecutor proffered evidence that, two days after the double murder,
Robert Williams overheard defendant tell Richard Johnson at Davis’s house that
he was planning to kill Davis because Davis knew defendant had killed Thompson
and Robinson and because Davis had been known to provide information to the
police. The prosecutor acknowledged he had not told the trial court of this
evidence at the severance hearing. The court responded it had earlier ruled that
Davis could testify about the circumstances that led him to give the police
information about the two murders, and it ruled that Williams could testify about
the conversation between defendant and Johnson. Moreover, because the
prosecutor planned to present evidence that defendant’s alleged motivation to kill
Davis was clearly related to the two homicides, the court said it was “having a
hard time thinking of any reason to limit any of the evidence in the third count.”
The court further stated that the extent to which the prosecutor wished to prove the
attempted murder was “something that we can deal with witness by witness and
objections at the time.”
2. Analysis
“Relevant evidence” includes “evidence relevant to the credibility of a
witness . . . , having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.” (Evid. Code, § 210.) In
determining the credibility of a witness, the jury may consider, among other
things, “[t]he extent of his capacity to perceive, to recollect, or to communicate
18
any matter about which he testifies,” “[t]he existence or nonexistence of a bias,
interest, or other motive,” and the witness’s “attitude toward the action in which
he testifies or toward the giving of testimony.” (Id., § 780, subds. (c), (f), (j).)
“The credibility of a witness may be attacked or supported by any party, including
the party calling him.” (Id., § 785.) But evidence of the good character of a
witness “is inadmissible to support his credibility unless evidence of his bad
character has been admitted for the purpose of attacking his credibility.” (Id.,
§ 790.) And “[e]xcept as otherwise provided by statute, all relevant evidence is
admissible.” (Id., § 351.)
Evidence Code section 1101, subdivision (a), generally prohibits the
admission of a criminal act against a criminal defendant “when offered to prove
his or her conduct on a specified occasion.” Subdivision (b), however, provides
that such evidence is admissible “when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity . . .).” To be
admissible, such evidence “ ‘must not contravene other policies limiting
admission, such as those contained in Evidence Code section 352.’ [Citation.]”
(People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Under Evidence Code section 352,
the probative value of the proffered evidence must not be substantially outweighed
by the probability that its admission would create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352;
People v. Ewoldt, supra, at p. 404.)
We review for abuse of discretion a trial court’s rulings on relevance and
admission or exclusion of evidence under Evidence Code sections 1101 and 352.
(See People v. Cole (2004) 33 Cal.4th 1158, 1195; People v. Lewis (2001) 25
Cal.4th 610, 637.)
Defendant here contends that evidence of the attempted murder of Olin
Davis was irrelevant, and that the prosecutor used it in violation of Evidence Code
19
section 1101, subdivision (a) to show defendant was of bad character and thus
must have committed the double murders. He asserts this was precisely what the
prosecutor argued to the jury. But, as the Attorney General notes, whether
evidence was erroneously admitted does not depend on counsel’s later argument to
the jury.2 Here, evidence of defendant’s attempt to murder Davis was admissible
under Evidence Code section 1101, subdivision (b) to prove his identity as the
killer of Thompson and Robinson. Davis testified that a day or two after
Thompson and Robinson were killed, defendant admitted to Davis that he killed
them. And Robert Williams testified that a few days after the murders, he
overheard defendant tell Richard Johnson that he (defendant) should kill Davis.
Under these circumstances, defendant’s attempt, a week after the double murders,
to kill Davis – to whom he had admitted the murders – was probative of
defendant’s consciousness of guilt, which in turn was probative of his identity as
the perpetrator of the charged offenses. (See People v. Wilson (1992) 3 Cal.4th
926, 940; see also People v. Farnam (2002) 28 Cal.4th 107, 154; People v. Arias
(1996) 13 Cal.4th 92, 127-128.) The evidence of defendant’s attack on Davis also
bolstered the credibility of Davis’s testimony that defendant told him he had killed
Thompson and Robinson, because it explained why, after the attack, Davis told the
police about defendant’s admission, when he had not previously done so. (See
Evid. Code, § 210 [credibility evidence is relevant].)
Defendant argues that even if evidence of his attempted murder of Davis
was admissible to show consciousness of guilt, the probative value of this
evidence, which was detailed and extensive, was substantially outweighed by its
2
We address defendant’s claim of prosecutorial misconduct in part III.F,
post.
20
undue consumption of time and the probability of substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)
To preserve a claim that a trial court abused its discretion in not excluding
evidence under Evidence Code section 352, “a party must make a timely and
specific objection when the evidence is offered.” (People v. Kirkpatrick (1994)
7 Cal.4th 988, 1014; accord, People v. Valdez (2004) 32 Cal.4th 73, 108.) At trial,
defendant objected both to the admission of photographs of Davis after he was
shot by defendant and to the admission of the videotaped reenactment of the drive
to the park as unduly prejudicial, but he otherwise posed no objections to the
detailed testimony of the attempted murder. On appeal, defendant argues
additional objections would have been fruitless. We disagree. At trial, when the
court and the parties discussed the admissibility of evidence of the attempted
murder of Davis, they appeared to agree that no specific objection or ruling could
be made until a witness was ready to testify or a specific question on the matter
was posed to a witness. Thereafter, defendant made no objection other than to the
photograph of the injured Davis at the hospital and to the videotaped reenactment.
Defendant alternately argues he could not have objected under Evidence
Code section 352 to the voluminous evidence of the attempted murder until all of
the evidence had been admitted, at which point an objection and admonition
would have been futile. Defendant’s argument is specious. The purpose of a
timely and specific objection to the admission of evidence is to prevent just such a
result.
Even had defendant objected, the trial court would not have abused its
discretion in admitting the evidence of the attempted murder of Davis. Davis
testified at length about the events of May 4, 1987, including the fight with Robert
Williams, his visit to defendant that night, his car trip with defendant and
defendant’s brother Gino, his struggle with defendant, his escape, and his
21
discussions later with the police at the hospital. There was, however, no
substantial danger of undue prejudice to defendant, of confusing the issues, or of
misleading the jury. The court repeatedly instructed the jury it could not consider
the evidence relating to the attempted murder of Davis as evidence of defendant’s
bad character or as showing he had a propensity to commit murders. During the
opening statement of the defense, the court instructed the jury that defendant was
not charged with the May 4, 1987, shooting of Davis, but that there would be
evidence of that incident, which the jury was to consider in light of the instructions
the court would give at the end of the trial. Before Davis testified on this subject,
the court again instructed the jury that defendant was not charged with a crime
relating to the May 4 incident, and that it should not consider the evidence in
determining defendant’s guilt of the charged double murder of Thompson and
Robinson or as showing he was a person of bad character. The court further
explained that such evidence was admitted for a limited purpose that included
assisting the jury in evaluating Davis’s testimony and fleshing out the relationship
between Davis and defendant. Still later in Davis’s testimony, in response to a
juror’s question, the court reiterated to the jury that the only issues to be decided
were two counts of murder, and that the incident involving Davis on May 4, 1987,
was admitted for a limited purpose, to be explained in detail later. Last, after the
close of evidence, the court instructed that if the jury found defendant had tried to
suppress evidence against himself in this matter, such as by intimidating a witness
or attempting to eliminate a witness, that attempt might be considered by the jury
as a circumstance tending to show a consciousness of guilt, but that such conduct
was not by itself sufficient to prove guilt. The court also told the jury that certain
evidence had been admitted for a limited purpose and the jury could not consider
such evidence for any purpose other than the limited purpose for which it was
admitted.
22
B. Joinder of Counts
Defendant argues the trial court “effectively vacated” its severance ruling
and “de facto” tried him on two counts of murder and one count of attempted
murder, in violation of his right to a fair trial. We disagree.
Section 954, which governs joinder of counts in a single trial, provides:
“An accusatory pleading may charge . . . two or more different offenses of the
same class of crimes or offenses, under separate counts . . . .” “But section 954
also provides that ‘the court in which a case is triable, in the interests of justice
and for good cause shown, may in its discretion order that the different offenses
. . . be tried separately.’ ” (People v. Sapp (2003) 31 Cal.4th 240, 257-258.)
Here, the trial court granted defendant’s motion to sever the attempted
murder count from the two murder counts. The trial of the attempted murder
count trailed that of the Thompson/Robinson murder counts, and the court granted
the prosecution’s motion to dismiss the attempted murder charge after the penalty
phase retrial. Defendant, however, argues that the court “effectively vacated” and
“de facto denied” the severance motion because it admitted evidence of the
attempted murder at the trial on the double murders. Defendant provides no
authority for such a proposition, and no California court has so held. We decline
to do so here. Defendant’s claim is, in substance, a reformulation of his
contention that the trial court erroneously admitted evidence of the attempted
murder. For the reasons stated, the court did not abuse its discretion in admitting
the evidence.
C. Admission of the Photograph of Davis
At trial, defendant objected to People’s exhibit No. 3D, a photograph
depicting Davis on a gurney in the hospital after defendant had shot him, as
irrelevant or, if relevant, unduly prejudicial under Evidence Code section 352.
The trial court overruled the objection and admitted the photograph.
23
Defendant contends that the photograph was irrelevant because he did not
dispute that Davis was shot in the mouth, and that the trial court should have
excluded it under Evidence Code section 352 because it was gruesome and
cumulative to testimony from Davis and several police officers about the nature of
the injury. As we shall explain, the court did not abuse its discretion in admitting
the photograph.
The admissibility of photographs is governed by the same rules of evidence
used to determine the admissibility of evidence generally. (Evid. Code, §§ 210,
350; see also People v. Heard (2003) 31 Cal.4th 946, 972-973; People v. Lewis,
supra, 25 Cal.4th at p. 641.) The trial court has broad discretion in deciding the
relevancy of such evidence. (People v. Lewis, supra, at p. 641.)
The photograph showing Davis on a gurney in the hospital showed that
Davis had been shot in the head. This corroborated Davis’s testimony that
defendant tried to kill him. Evidence that defendant tried to kill Davis, in turn,
tended to show that defendant had killed Robinson and Thompson, based on the
prosecution’s theory that defendant tried to kill Davis because he feared that Davis
would reveal defendant’s identity as the killer of Robinson and Thompson to the
police. Thus, the trial court did not abuse its discretion when it admitted the
photograph as evidence relevant to prove defendant’s guilt of the murders with
which he was charged, that was not merely cumulative of the testimony of Davis
and the officers who observed Davis’s wound. (See People v. Smithey (1999) 20
Cal.4th 936, 973-974.)
We also reject defendant’s argument that the trial court erred in not
excluding it as more prejudicial than probative under Evidence Code section 352.
The court’s exercise of its discretion to admit assertedly gruesome or
inflammatory evidence will not be disturbed on appeal unless the probative value
of the evidence clearly is outweighed by its prejudicial effect. (People v. Heard,
24
supra, 31 Cal.4th at pp. 975-976.) Having reviewed the photograph, we are
satisfied that it is not unduly gruesome or inflammatory, and its admission did not
violate state evidentiary law. (See People v. Lewis, supra, 25 Cal.4th at p. 642.)
D. Admission of the Videotaped Reenactment
Defendant contends People’s exhibit No. 73, a videotaped reenactment of
the route to the location where defendant shot Davis on May 4, 1987, was
cumulative to other evidence and unduly prejudicial, in violation of Evidence
Code section 352.
The videotape, which had no sound, was made by the Alameda County
District Attorney’s Office on January 15, 1992, approximately eight months after
defendant shot Davis in the face. It was taken from a car similar to the station
wagon in which defendant and his brother Gino Harrison transported Davis, with a
police officer in the driver’s seat taking the role of Gino, another officer in the
front passenger seat taking defendant’s role, and Davis in the back seat. The tape
began at 98th Avenue and Bancroft, where Davis began his ride with the Harrison
brothers, and ended at the park where Davis was shot, with the officers and Davis
reenacting the fight.
At trial, the court held a hearing on defendant’s motion in limine regarding
the admissibility of the videotape. Defendant argued that the lighting conditions
in the videotape, which was made in broad daylight, were unlike the conditions at
the time of the shooting, which occurred at night, and that the videotape was thus
improper demonstrative evidence. He also argued that the videotape was
cumulative to testimonial and physical evidence and unduly prejudicial under
Evidence Code section 352. The court concluded the difference in lighting did not
make the videotape inadmissible, and stated: “[I]t helped me understand the
testimony [of Davis] better, and I assume, therefore, it would help the jury, and it
25
would be more real than looking at a map.” But the court ruled that the end of the
videotape, depicting the reenactment of the assault, should not be admitted
because it was not made under the same lighting conditions and was not exactly as
Davis described it. The redacted videotape ended with the station wagon stopping
at the park, before anyone got out. Before playing the redacted videotape for the
jury, the court instructed that the tape was not intended to show the lighting
conditions or to attempt to “recreate the visual experience that occurred” but rather
to show the route taken, as described by Davis. As the tape was played for the
jury, the prosecutor questioned Davis about it.
In ruling on the admissibility of videotapes under Evidence Code section
352, “ ‘the court enjoys broad discretion in deciding whether prejudice
substantially outweighs probative value.’ [Citation.]” (People v. Michaels (2002)
28 Cal.4th 486, 532.)
Defendant’s contention that the trial court erred under Evidence Code
section 352 in admitting the videotape because it was cumulative of the
testimonial and other physical evidence presented lacks merit. (See, e.g., People
v. Michaels, supra, 28 Cal.4th at p. 532; People v. Hart (1999) 20 Cal.4th 546,
616; People v. Scheid, supra, 16 Cal.4th at p. 19.) As the court noted, the
videotape could assist the jury in understanding and evaluating Davis’s testimony.
Moreover, we have reviewed the videotape and do not find it unduly prejudicial.
As the trial court observed, it merely depicted the route taken. Thus, the court did
not abuse its discretion in admitting the videotape.
Defendant also contends that the admission of the videotape at the penalty
phase retrial violated Evidence Code section 352. Because he failed to object to
the admission of this evidence at the penalty phase retrial, he may not raise the
issue for the first time on appeal. (People v. Hart, supra, 20 Cal.4th at p. 615.)
26
Even if defendant had preserved the challenge, for the reasons discussed above,
the trial court did not err in admitting the videotape.
E. Admission of Richard Johnson’s Out-of-court Statements
Defendant contends the trial court erroneously admitted one portion of
Richard Johnson’s statement to Olin Davis and certain portions of his statement to
Sergeant Voznik. We address each of these contentions in turn.
1. Johnson’s statement to Davis
Defendant contends the trial court’s admission of Johnson’s statement to
Davis that defendant killed Thompson and Robinson violated his right to confront
witnesses against him as guaranteed by the Sixth Amendment to the federal
Constitution and article I, section 15 of the California Constitution.
On direct examination by the prosecution, Davis testified that Johnson
came to his house on Tuesday, April 28, 1987, after defendant had visited. On
cross-examination, defense counsel asked, “And when you talked to [Johnson], he
told you that he was there [when Thompson and Robinson were killed]?” The
prosecutor objected on the ground of hearsay, and the trial court excused the jury
and heard the parties’ arguments regarding the proffered testimony.
Defendant’s offer of proof was that Davis would testify Johnson told him
he was present when Thompson and Robinson were killed and warned him not to
tell anybody about it. Defense counsel acknowledged such testimony was
hearsay, but sought to introduce it as a declaration against penal interest under
Evidence Code section 1230. The parties stipulated Johnson was an unavailable
witness, and defense counsel argued the proffered evidence was relevant to show
that Johnson was present at the scene of the murders, had the opportunity to
commit the murders, and ultimately committed the murders. The prosecutor
responded that the statement defense counsel was trying to introduce was
27
“completely out of context” and that, if the court admitted the statement, he would
ask the court to admit Johnson’s entire statement under Evidence Code section
356, because to do otherwise would be extremely misleading. The court asked the
parties whether Johnson’s entire statement to Davis would be admissible under
Evidence Code section 356 if it ruled that defense counsel’s question called for a
proper declaration against penal interest. Defense counsel answered “yes” and
noted that if the full statement were admitted, the defense could bring in other
hearsay statements to show prior consistent or inconsistent statements,
acknowledging that doing so would be a tactical decision that the defense “would
have to live with.”
The trial court concluded that, based on defendant’s offer of proof,
Johnson’s statement to Davis about his presence at the scene of the murders was a
declaration against penal interest, and that it was prepared to rule such evidence
relevant, “subject to the provisions of Evidence Code section 356 and other
provisions regarding prior inconsistent and consistent statements without ruling on
what else comes in.” The court added that if the defense chose not to cross-
examine Davis on the contents of the conversation, the issue could nevertheless
become relevant in the defense case, subject to cross-examination and rebuttal
evidence as to his prior consistent or inconsistent statements. Based on the court’s
ruling, the prosecutor withdrew his original hearsay objection.
The following then occurred during cross-examination of Davis by the
defense:
“Q. After the conversation, did Rick [Johnson] tell you not to tell anybody
about this particular conversation he was having with you?
“A. Yes.
“Q. And the conversation related to the homicides of Betty Thompson and
her old man; is that correct?
28
“A. Yes.
“Q. And what Rick told you . . . was that he was present at the time of
these particular murders, correct?
“A. Yes.
“Q. And then Rick proceeded to lay the murder on [defendant]; is that
correct?
“THE COURT: Do you understand the question?
“[DAVIS]: No.
“THE COURT: Could you translate your slang and reframe your question.
“[DEFENSE COUNSEL]: The slang is, Rick blamed [defendant] for the
murder; isn’t that correct?
“[DAVIS]: Your Honor, can I answer the question—
“THE COURT: Yes.
“[DAVIS]: —and give—say something else?
“THE COURT: Well, yes, but start with—the question is, in this
conversation you had with Rick, did he blame [defendant] for the murders, that’s
the question.
“[DAVIS]: Well, he said [defendant] did it, yes.
“THE COURT: What is it you wanted to explain?
“[DAVIS]: But what I want to explain is that when he said that [defendant]
did it, I mean he just told me that he was there, [defendant] did it, and keep
everything to myself, okay, that was it. But [defendant] had already told me he
did it hisself [sic].”
Defendant contends the trial court erroneously admitted Johnson’s hearsay
statements because they were not proper declarations against penal interest
excepted from the hearsay rule under Evidence Code section 1230, and because
29
they violated his Sixth Amendment right to confront and cross-examine witnesses
against him.
We need not decide whether the trial court erred in admitting Johnson’s
hearsay statements, for defendant invited any error. (See People v. Riel (2000)
22 Cal.4th 1153, 1214; People v. Barton (1995) 12 Cal.4th 186, 198.) Defense
counsel expressly acknowledged that eliciting testimony on the portion of
Johnson’s statement admitting he was at the scene of the crime was a tactical
decision on their part, as they knew that admission of such evidence likely would
mean that the portion of Johnson’s statement attributing the murders to defendant
would also be admitted to place the statement in context of the entire conversation
between Johnson and Davis under Evidence Code section 356.3 Defense counsel
wanted the jury to learn that Johnson was present at the scene of the crime so that
they could later argue during closing argument that Johnson was the shooter.
2. Johnson’s statement to Sergeant Voznik
Sergeant Voznik, a defense witness who had also testified for the
prosecution, testified that on May 12, 1987, Johnson came to the police station
with his attorney. Voznik told them that Johnson would be treated as a suspect
and that, if Johnson wished to give a statement, the police would thereafter make a
determination as to Johnson’s involvement in the murders. Johnson asked to
speak privately with Jesse Slaughter, who had come to the police station shortly
after Johnson. Sergeant Voznik allowed Johnson, his attorney, and Slaughter to
3
Evidence Code section 356 provides: “Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the same
subject may be inquired into by an adverse party; . . . and when a detached act,
declaration, conversation, or writing is given in evidence, any other act,
declaration, conversation, or writing which is necessary to make it understood may
also be given in evidence.”
30
speak privately. Johnson then declined to give a statement to the police, and was
arrested on an outstanding warrant. The next morning, Johnson telephoned
Sergeant Voznik from jail and said he had changed his mind and wanted to make a
statement. Voznik contacted Johnson’s attorney, and the three met that afternoon
at the police station. During the ensuing interview, Johnson told Voznik that, on
April 27, defendant negotiated with Thompson about buying crack cocaine and
gave her money for it. Johnson also said that he was present when Thompson and
Robinson were killed and that defendant had killed them.
On cross-examination by the prosecution, Sergeant Voznik testified that his
interview with Johnson was tape-recorded. The prosecutor marked for
identification a 28-page transcript of Johnson’s interview and referred to the
transcript in questioning Voznik about the details of the interview. Johnson told
Voznik that defendant shot Thompson and Robinson about 10:00 p.m. on April
27, 1987, in an alley outside the apartment of Lisa McKaufman. Defendant
“snatche[d]” Robinson with his left hand, pulled a gun from the front of his pants
with his right hand, placed the gun to Robinson’s neck and fired one shot.
Robinson “just drop[ped],” and Thompson lay on the ground in a fetal position
“screaming and hollering.” Defendant then straddled Thompson and shot her two
to three times on the side of her head. Defendant did not object to any of this
testimony.
When the prosecutor asked Sergeant Voznik where defendant went after
shooting Thompson, defense counsel objected to the testimony as being “no
longer within the realm of [Evidence Code section] 356.” The trial court
overruled the objection. Voznik then testified that Johnson said that defendant
leaped past him after shooting Thompson. Without objection from the defense,
Voznik also stated that defendant’s gun was a rust-colored revolver with a three-
inch barrel. The court sustained several of defendant’s objections to identified
31
portions of the Johnson interview as outside the scope of Evidence Code section
356 or as cumulative. Over defendant’s objection that the testimony was
cumulative, Sergeant Voznik further testified that during the interview Johnson
said that when defendant shot Robinson the gun was touching Robinson’s neck,
and when defendant shot Thompson the gun was two or three feet from
Thompson’s head.
Defendant contends that Johnson’s statement to Sergeant Voznik providing
details about the Thompson/Robinson murders, which the prosecutor elicited
during cross-examination, was inadmissible hearsay. Because he did not object at
trial on this ground, he has not preserved the issue for review. (See People v.
Hines (1997) 15 Cal.4th 997, 1035.) Even if the issue was properly before us, the
contention lacks merit, as discussed below.
“Evidence Code section 356 permits introduction of statements ‘on the
“same subject” ’ or which are necessary for the understanding of the statements
already introduced. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 419-
420.) Accordingly, once defendant had introduced a portion of Johnson’s
interview with Sergeant Voznick into evidence, the prosecution was entitled to
introduce the remainder of Johnson’s interview to place in context the isolated
statements of Johnson related by Voznik on direct examination by the defense.
(See People v. Zapien (1993) 4 Cal.4th 929, 959.) The trial court’s admission of
Johnson’s statements was therefore proper under California statutory law.
Defendant also contends that by admitting the statement the trial court
violated his right to confront and cross-examine witnesses against him, under the
Sixth Amendment to the federal Constitution and article I, section 15 of the
California Constitution. Even if he has not forfeited this claim by his failure to
raise it at trial, the claim lacks merit. Recently, the United States Supreme Court
stated that when testimonial hearsay evidence, which includes “[s]tatements taken
32
by police officers in the course of interrogations” (Crawford v. Washington (2004)
541 U.S. 36, ___ [124 S.Ct. 1354, 1364]), is at issue, the “Sixth Amendment
demands . . . unavailability [of the declarant] and a prior opportunity for cross-
examination” (id. at p. ___ [124 S.Ct. at p. 1374]). But the high court has not said
whether Crawford applies to cases that, like this one, were tried before it was
decided. Assuming for the sake of argument that under Crawford, admission of
Johnson’s statements to Voznik violated the Sixth Amendment, admission of the
statements would require reversal unless we found beyond a reasonable doubt that
the jury verdict would have been the same absent any error. (Neder v. United
States (1999) 527 U.S. 1, 7-10; see also People v. Bolden (2002) 29 Cal.4th 515,
560.)
Under that standard, any error in admitting Johnson’s statements was
harmless. The important factual issue at trial was identity, not the manner in
which the victims were killed. On this point, defendant himself elicited from
Sergeant Voznik the statement by Johnson identifying defendant as the shooter,
which was consistent with defendant’s admission of guilt to Davis. The details of
the murders provided by Davis, as relayed to him by defendant, were largely
identical to the details provided by Johnson, but for the order in which the victims
were killed. The locations and the analysis of the victims’ wounds corroborated
evidence that they were killed at very close range. Under these circumstances, we
are satisfied beyond a reasonable doubt the jury’s verdict would have been the
same absent the admission of evidence elicited by the prosecution on cross-
examination of Voznik about the details of Johnson’s statement to him.
33
F. Prosecutorial Misconduct
Defendant accuses the prosecutor of misconduct before and during trial,
thus violating his rights to a fair trial and due process under the state and federal
Constitutions.
1. Procuring Richard Johnson as a witness
Defendant contends the prosecution “frustrated” his efforts to call Richard
Johnson as a defense witness. He asserts the prosecution behaved “irresponsibly”
by stating before trial that it would call Johnson as a witness, only to tell the
defense, after jury selection had been completed and four days before opening
statements, that it would not call him after all. At this point the defense, which
wanted to call Johnson as a witness, began an unsuccessful effort to locate him.
After the evidentiary portion of trial was under way, the parties stipulated
that they each had “exercised due diligence” in attempting to locate Johnson to
testify at trial, and that he was an unavailable witness under Evidence Code
section 1230. As further evidence that Johnson was unavailable the trial court
noted that Johnson had failed to appear at a probation revocation hearing, as a
result of which the superior court had issued a no-bail bench warrant for his arrest.
Defendant’s contention that the prosecution frustrated his efforts to call
Johnson lacks merit. Before trial began, the parties and the court discussed
potential evidence pertaining to Johnson. At that time the prosecutor noted that
Johnson could not be found, that he had “received information as to where
Johnson might be staying,” and that he had “given this information to the
defense.” The prosecutor did nothing to prevent defendant from attempting to find
and subpoena Johnson. Although defendant claims the prosecutor acted in bad
faith by waiting until after jury selection to say he would not call Johnson to
testify, we see no evidence of bad faith. The defense was responsible for securing
the presence of any witness it wanted to call at trial, regardless of whether the
34
prosecution would also be using that witness. If the defense wanted to ensure that
Johnson would be available to testify, it could have begun looking for him at any
time, without waiting to see whether the prosecution would also call him.
Defendant also claims that the prosecution had a duty to undertake
reasonable good faith efforts to locate Johnson, and that it violated this alleged
duty. But defendant made no such claim at trial. Indeed, as explained above, he
stipulated that both parties had “exercised due diligence” in attempting to locate
Johnson. Defendant therefore has not preserved the issue for appeal. (See People
v. Thornton (1974) 11 Cal.3d 738, 763 [involving discovery rights].)
2. Richard Johnson’s statements to police
When the police interviewed Richard Johnson in May 1987, he said he saw
defendant kill Thompson and Robinson, and he described in detail the manner of
the killings. Later, in October 1991, Johnson told an investigator from the district
attorney’s office he knew nothing about the murders because he was not there. He
said that he had lied to the police in May 1987.
At trial, during a discussion in chambers regarding the admissibility of
certain evidence not relevant here, this colloquy occurred:
“[THE PROSECUTOR]: [W]hen [Johnson] gave his statement to the
police after a day and a half in custody, he got as far—he sanitized himself as
much as he possibly could. He laid everything on [defendant], and, in his own
words, he said basically he was just standing there.
“THE COURT: Which belies—
“[THE PROSECUTOR]: It belies common sense, belies the truth, it belies
everything.” (Italics added.)
Later, when cross-examining Sergeant Voznik, the prosecutor elicited the
detailed description of the murders that Johnson had given to Voznik in May
35
1987. Defendant contends the prosecutor engaged in misconduct by eliciting this
description, because he had previously expressed the view, in the discussion
quoted above, that Johnson’s statements were false, and because he knew that
Johnson had later recanted his statements. Defendant failed to preserve this issue
for appeal because he did not object to that testimony at trial. (People v. Crew
(2003) 31 Cal.4th 822, 839.) In any event, there was no prosecutorial misconduct.
A prosecutor’s misconduct violates the Fourteenth Amendment to the
federal Constitution when it “infects the trial with such unfairness as to make the
conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44;
accord, Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v.
DeChristoforo (1974) 416 U.S. 637, 643.) In other words, the misconduct must be
“of sufficient significance to result in the denial of the defendant’s right to a fair
trial.” (United States v. Agurs (1976) 427 U.S. 97, 108.) A prosecutor’s
misconduct “that does not render a criminal trial fundamentally unfair” violates
California law “only if it ‘ “involves the use of deceptive or reprehensible methods
to attempt to persuade either the court or the jury.” ’ ” (People v. Espinoza (1992)
3 Cal.4th 806, 820; accord, People v. Farnam, supra, 28 Cal.4th at p. 167.)
“Under well-established principles of due process, the prosecution cannot
present evidence it knows is false and must correct any falsity of which it is aware
in the evidence it presents . . . .” (People v. Seaton, supra, 26 Cal.4th at p. 647.)
But the prosecutor here did not know that Johnson’s initial statement to the police
was false; he merely suspected that was the case. When, as here, the prosecution
has doubts as to the truth of a statement it intends to present at trial, it must
disclose to the defense any material evidence suggesting that the statement in
question is false. But, notwithstanding those doubts, the prosecutor may still
present the statement to the jury, as we explained in People v. Gordon (1973) 10
Cal.3d 460.
36
In
Gordon, the prosecutor told the jury in his opening statement that he
believed his chief witness “ ‘would not be telling the truth’ ” because she would be
testifying that the defendant was the sole perpetrator of the murder charged in that
case, whereas the prosecutor suspected that the witness was actually an
accomplice. (People v. Gordon, supra, 10 Cal.3d at p. 472.) We rejected the
defendant’s claim that the prosecutor violated his right to a fair trial by knowingly
presenting perjured testimony, explaining that the prosecutor “did not know” (Id.
at p. 474) the witness was lying and that “the jury could decide for itself which of
the conflicting versions of the incidents in question was true” (ibid.; see also
People v. Riel, supra, 22 Cal.4th at pp. 1181-1182 [quoting Gordon with
approval]).
Here, the prosecutor’s comment about Johnson’s statement to the police –
“It belies common sense, belies the truth, it belies everything” – appears to express
the view that Johnson was lying when he claimed to be an innocent bystander, and
that he actually assisted defendant in committing the murders. Thus, the
prosecutor’s doubts about the truth of Johnson’s statement mirrored the doubts of
the prosecutor in Gordon regarding the truthfulness of the latter’s chief witness.
But, as in Gordon, those doubts were based on the evidence presented at trial, not
on facts of which the jury was unaware. (See generally People v. Seaton, supra,
26 Cal.4th at p. 648 [“So long as the prosecutor’s doubts are based solely on the
evidence presented at trial, the jury is capable of deciding which of the competing
experts is the more convincing . . . .”].) Just as the prosecutor in Gordon was
entitled to call his chief witness to testify, the prosecutor here was entitled to
introduce Johnson’s statement. The jury, which also heard from the defense that
Johnson had later recanted his statement, could make its own decision as to
Johnson’s credibility.
37
Defendant also contends the prosecutor had a duty under Mooney v.
Holohan (1935) 294 U.S. 103, 112, and its progeny, to tell the jury that Johnson’s
account of the murders to Sergeant Voznik could not be believed because Johnson
had repudiated it. It is true that “deliberate deception of a court and jurors by the
presentation of known false evidence is incompatible with ‘rudimentary demands
of justice.’ ” (Giglio v. United States (1972) 405 U.S. 150, 153, citing Mooney v.
Holohan, supra, 294 U.S. at p. 112.) But as explained in the previous paragraph,
the prosecutor did not deceive the court or jury by presenting evidence of
Johnson’s statements to the police.
3. Closing argument
Defendant contends the prosecutor engaged in misconduct when, in closing
argument during the guilt phase, he ascribed various negative characteristics to
defendant, argued at length about the uncharged March 1987 incident involving
defendant’s possession of a firearm, and (according to defendant) fabricated facts.
He further contends the cumulative impact of the various acts of misconduct could
not have been cured by an admonition, and the misconduct violated his state and
federal constitutional rights to a fair trial.
a. Forfeiture
At the threshold, the Attorney General contends defendant forfeited
appellate review of all these claims. Defense counsel objected to only one of the
prosecutor’s allegedly improper remarks and in no case did he request an
admonition or curative instruction.
Defendant argues that a request for an admonition would have been futile
and would not have cured the harm because the prosecutor’s misconduct was
pervasive. “A defendant will be excused from the necessity of either a timely
objection and/or a request for admonition if either would be futile. [Citations.] In
38
addition, failure to request the jury be admonished does not forfeit the issue for
appeal if ‘ “an admonition would not have cured the harm caused by the
misconduct.” ’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 820.) Here,
however, defendant objected to virtually none of the prosecutor’s purportedly
improper statements and never sought an admonition. A timely objection and
request for admonition at the first sign of any purported misconduct might have
curbed the vigor of the prosecutor’s argument. (See People v. Dennis (1998)
17 Cal.4th 468, 521.) Moreover, even if defendant had preserved the right to raise
these claims on appeal, no reversal would be required, as discussed below.
b. Specific instances of misconduct
When the issue “focuses on 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. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another
point in People v. Hill, supra, 17 Cal.4th at pp. 822-823; accord, People v. Clair
(1992) 2 Cal.4th 629, 663.) A prosecutor is given wide latitude during closing
argument. The argument may be vigorous as long as it is a fair comment on the
evidence, which can include reasonable inferences or deductions to be drawn
therefrom. “ ‘A prosecutor may “vigorously argue his case and is not limited to
‘Chesterfieldian politeness’ ” [citation], and he may “use appropriate epithets . . .
.” ’ [Citations.]” (People v. Wharton (1991) 53 Cal.3d 522, 567-568.) “A
defendant’s conviction will not be reversed for prosecutorial misconduct . . .
unless it is reasonably probable that a result more favorable to the defendant
would have been reached without the misconduct.” (People v. Crew, supra,
31 Cal.4th at p. 839.)
39
i. Epithets
Defendant contends the prosecutor engaged in misconduct by arguing to
the jury that defendant “enjoyed” killing Robinson; that he “enjoyed” killing
Thompson “with the relish and degree of a little kid opening his toys at
Christmas”; that he plotted to kill Davis because he “likes to kill,” “likes to
intimidate,” and “likes to bully and strong-arm”; and that “in his glee,” with “[h]is
mind made up” to kill Davis, he “jumped into the back seat [with Davis], gun
exposed to smell and feel the last bit of life he’s going to take.” These statements
did not exceed the bounds of proper argument. Given the evidence that defendant
killed Thompson and Robinson in cold blood, at point-blank range, apparently
over a fraudulent cocaine purchase, and that a week later he tried to kill Davis
after he had shared beer and taken a car ride with him, the prosecutor’s
characterizations of defendant fell within the permissible bounds of argument.
Defendant also complains about the prosecutor’s description of defendant
as a “prowler” and a “denizen of the night” who was “in his element” at night, and
the prosecutor’s repeated references to defendant as a man of “concealed intent.”
Through these descriptions the prosecutor evidently was alluding to a March 1987
incident when the police saw defendant, who was loitering at night in a crime-
ridden area, pull a gun from under his jacket and toss it away. Defendant did not
object to the admission of evidence of this incident, and thus cannot complain
about it now. In any event, the prosecutor’s descriptions of defendant were
permissible comments on the evidence. As for the later description of defendant
as a man of “concealed intent,” the prosecutor argued defendant intended to harm
Thompson and Robinson as he stood outside Lisa McKaufman’s house during the
early morning hours of April 28, and that he had a similar intent toward Davis
during the car trip on May 4, 1987. Again, based as they were on the evidence,
these comments did not exceed the bounds of proper argument.
40
Defendant also contends the prosecutor improperly argued defendant was a
habitual killer. Specifically, defendant cites as improper these descriptions of him:
“a creator of victims . . . who turns people from life into death”; “the executioner”;
“the terminator of precious life”; “a head hunter”; one who had no respect for the
dead, the living, or anybody; and one who “kills or threatens, threatens or kills,
whatever serves his purpose.” Defendant further contends the prosecutor
improperly argued: “This is a one-man crime wave. He may not be a serial killer,
but killing is his byline. Two deaths and an attempt and an invitation and threats
to back it up. A one-man gang, a worldly [sic] dervish of energy, poised and
striped [sic] to kill. That’s [defendant].” The challenged statements did not
exceed the bounds of proper argument, given the evidence that defendant shot two
people in the head at point-blank range over a purchase of fake cocaine.
Defendant argues that the prosecutor improperly urged the jury to convict
him of murder based on an alleged predisposition to kill, based on these
comments: “[Defendant] decides to execute in cold blood two helpless human
beings that never ever saw this coming. Snatches with the left, shoots with the
right, similar to the way he attacked Olin [Davis]. [¶] So, ladies and gentlemen,
he had a predisposition to kill and he acted it out. And he got them to where he
could mutilate them where nobody could see it and he did it . . . .” (Italics added.)
The Attorney General counters that “predisposition to kill” was the prosecutor’s
shorthand way of saying that defendant intended to kill Thompson and Robinson
when Thompson could not get the money back for the fake rock of crack cocaine
she had bought for defendant and Johnson. We need not decide what the
prosecutor meant by his statement, for any misconduct was harmless. The
statement was a tiny part of an otherwise permissible argument that spanned two
days. That a more favorable verdict would have been received in the absence of
41
the error is not reasonably probable, given the strong evidence that defendant shot
Thompson and Robinson at point-blank range.
Defendant also cites as misconduct the prosecutor’s assertion that
defendant wanted to kill Olin Davis’s brother Bruce at the same time he killed
Olin: “And he wants to take Bruce along too so he can talk to Bruce. That’s four.
That’s four. That’s four. Another double homicide is contemplated on May 4th.”
Defendant objected to this comment, and the court sustained the objection, stating
that the prosecutor was “in excess of the instruction on the purpose for which Mr.
Davis’ testimony was limited.” The court told the prosecutor to “confine [his]
remarks to the evidence as limited.” The admonition cured any harm.
Defendant also contends the prosecutor engaged in misconduct by
describing defendant as evil. The prosecutor argued: The case was about
defendant’s “utter evil”; dealing with defendant was like peeling the skin of an
onion, with every layer being a “level of evil” and every layer peeled being “that
much closer to the evil hard-core”; defendant was “the lowest common
denominator and the complete and total essence of evil”; and “[t]he layers of evil
within [defendant] surrounded a cold unyielding heart.” None of these
characterizations exceeded the permissible scope of closing argument.
ii. Biblical reference to evil
Toward the end of his rebuttal argument at the guilt phase of trial, the
prosecutor said he “had to look at something to make sense out of this, something
to put this into some perspective because in 45 years [he had not] seen anything
that [he could] compare . . . to” this case. He stated that although he was “not a
religious person by any stretch of the imagination” he had read about the
apocalypse as described in Revelation, the last book of the Bible. “[T]he word
apocalypse,” he said, put “defendant’s conduct in proper perspective,” except that
42
in contrast to the apocalypse, defendant did not have “the necessary mandate” to
carry out his actions. The prosecutor explained that in the apocalypse, a crowned
rider on a white horse who came to conquer the world was followed by three other
men on horses who came to kill and take peace away so that the world could start
anew.
Describing the apocalypse as “the mandate of God,” the prosecutor argued
to the jury: “On what steed, with whose authority does [defendant] cut a path
through the City of Oakland leaving murder and death and destruction and utter
annihilation in his wake? By what authority is he guided? [¶] This man is the
disciple of Satan, ladies and gentlemen. He has worked his way up into this
community from the deep inner core of this planet like a sour foul putrid weed.
He has cracked the soil and killed all before him so he can live, and when the sun
goes down he comes out and he slaughters and he maims and he murders. [¶]
But, . . . he’s not the judge and jury in this case, you are, and that’s where he
comes up short. The man is the utter harbinger of senseless total annihilation, no
more, no less. You must take the sword from him and cast it down and tell him
that he was wrong and he may go no further.” The prosecutor continued: “[T]he
institutions that govern the conduct of the people in this world are to be taken most
seriously. The Penal Code of this state consists of thousands of laws but they
mean nothing until you give them life through your verdict and set the appropriate
standard of conduct.”
We repeatedly have held that prosecutors may not appeal to religious
authority in a closing argument to the jury. Our opinions have most often
discussed such arguments when made at the penalty phase of a capital case,
because the decision whether to impose the death penalty is an ethical and
normative question that at first glance seems amenable to religious argument. As
we have explained, such argument is improper, because to invoke God may
43
diminish the jurors’ sense of personal responsibility for the decision whether to
impose the death penalty or may encourage jurors to base their penalty decision on
a different or higher law than that found in the California Penal Code. (People v.
Ervin (2000) 22 Cal.4th 48, 100; People v. Welch (1999) 20 Cal.4th 701, 761-762;
People v. Roybal (1998) 19 Cal.4th 481, 519-521; People v. Hill, supra,
17 Cal.4th at pp. 836-837; People v. Bradford (1997) 14 Cal.4th 1005, 1063;
People v. Wash (1993) 6 Cal.4th 215, 260-261; People v. Sandoval (1992) 4
Cal.4th 155, 193-194.)
Here, the prosecutor’s biblical reference came at the guilt, not the penalty,
phase of trial. Appeals to religious authority at the guilt phase are also
impermissible, but for a different reason than at the penalty phase. The jury at the
guilt phase is not charged with making an ethical or normative decision; instead, it
decides questions of historical fact based on the evidence and applies to those facts
the law as articulated by the trial court. Religious input has no legitimate role to
play in this process. (See generally People v. Williams (2001) 25 Cal.4th 441,
463.)
But not every reference to the Bible is an appeal to religious authority. Not
only is the Bible a religious text, but it is also generally regarded as a literary
masterpiece; indeed, it is among the oldest and best-known literary works in our
culture. The English departments of major secular universities teach courses on
the Bible as literature.4 And this court has repeatedly held that in closing
argument attorneys may use “illustrations drawn from common experience,
history, or literature.” (People v. Love (1961) 56 Cal.2d 720, 730, italics added;
see also People v. Boyette (2002) 29 Cal.4th 381, 463; People v. Cunningham
4
English department courses on the Bible as literature appear in the on-line
catalogues of Yale University and the University of California at Los Angeles.
44
(2001) 25 Cal.4th 926, 1026; People v. Hill, supra, 17 Cal.4th at p. 819; People
v. Williams (1997) 16 Cal.4th 153, 221; People v. Sandoval, supra, 4 Cal.4th at p.
193; People v. Wharton, supra, 53 Cal.3d at p. 567; People v. Farmer (1989) 47
Cal.3d 888, 922; People v. Thornton, supra, 11 Cal.3d at p. 763.) As an article in
a respected law journal explains, “fiction, anecdotes, jokes and Bible stories are
commonly regarded as acceptable” in closing argument. (Levin & Levy,
Persuading the Jury with Facts Not in Evidence: The Fiction-Science Spectrum
(1956) 105 U.Pa. L.Rev. 139, 147, italics added.)
When references to the Bible are involved, the line between literary
allusion and religious appeal is often a fine one. A prosecutor who mentions the
Bible in closing argument runs a grave risk that a reviewing court will find that the
line has been crossed and will reverse the defendant’s conviction. Because any
use of biblical references in argument must be carefully scrutinized, cautious
prosecutors will choose to avoid such references. Nevertheless, so long as they do
not appeal to religious authority, prosecutors may refer to the Bible in closing
argument to illustrate a point.
Here, a reasonable juror likely would understand the prosecutor’s biblical
references merely as a powerfully dramatic illustration of the gravity and enormity
of defendant’s crimes. The prosecutor did not argue that biblical law or doctrine
required defendant’s conviction of the charges against him.5 Indeed, he prefaced
his remarks with a statement that he himself was “not a religious person.”
5
Justice Moreno’s concurring opinion states that the prosecutor’s biblical
allusion “was an invitation to the jury to apply a ‘higher law than that found in the
California Penal Code.’ ” (Conc. opn., post, at p. 3.) To the contrary, the
prosecutor concluded the allusion with these words: “The Penal Code of this state
consists of thousands of laws but they mean nothing until you give them life
through your verdict . . . .”
45
Because the prosecutor did not use the biblical allusion as an appeal to religious
authority, we do not find prosecutorial misconduct in this case.
iii. Fabrication of evidence
In his closing argument, the prosecutor said in reference to defendant’s
attempted murder of Davis: “[W]hen [defendant] gets out of that car, he comes
around with the gun extended in his right hand up in the ready position, he opens
the door, he looks at his friend [Davis] and he says, ‘My friend, you are through,
you’re through. I’m going to kill you. You’re not going to live to testify against
me in the superior court trial. You’re going to die.’ That’s exactly what his
intention is.” (Italics added.) Pointing out that Davis testified defendant said only
“you’re through” after opening the car door, defendant contends the prosecutor
fabricated evidence.
“While counsel is accorded ‘great latitude at argument to urge whatever
conclusions counsel believes can properly be drawn from the evidence [citation],’
counsel may not assume or state facts not in evidence [citation] or mischaracterize
the evidence [citation].” (People v. Valdez, supra, 32 Cal.4th 73, 133-134.)
“Whether the inferences the prosecutor draws are reasonable is for the jury to
decide.” (People v. Dennis, supra, 17 Cal.4th at p. 522.) Here, the prosecutor did
not fabricate evidence. After making the argument in question, he immediately
said, “That’s exactly what [defendant’s] intention is.” The prosecutor thus merely
suggested an inference that the jury could draw from Davis’s testimony.
4. Arguing the facts of the March 1987 incident
During his closing argument, the prosecutor told the jury there was
evidence defendant possessed a firearm in March 1987. But the prosecutor
promptly told the jury defendant was not on trial for the March 1987 incident and
46
that the jury could consider evidence of that incident only to show defendant had
access to the kind of firearm used in the double murders.
Defendant contends that the trial court should not have admitted evidence
of the March 1987 incident, and that the prosecutor engaged in misconduct during
closing argument by relying on the incident to persuade the jury that defendant
had a criminal disposition.
Evidence of the March 1987 incident was admitted without objection.
Thus, the prosecutor was permitted to refer to such evidence. Contrary to
defendant’s argument, moreover, the prosecutor did not argue that he was a man
of criminal disposition because he possessed a firearm in 1987. No misconduct
occurred.
G. Instructional Errors
1. Limiting instructions on uncharged offenses
As stated, before Olin Davis testified about the attempt to kill him, the trial
court instructed the jury:
“Mr. Davis is about to testify to a series of events that took place on May
4th, 1987, which involve interaction between Mr. Davis, [defendant], and
Mr. Ronald Gino Harrison. And the evidence . . . will reveal the commission of a
crime against [Davis], namely an assault with a deadly weapon at the very least.
What I want to have you understand is this.
“[Defendant] is not charged with this crime in this case, and you are not to
consider this evidence for determining his guilt for this crime that he’s not charged
with, or to hear it to come to some conclusion that he’s a bad person because of
what happened here.
“This evidence is being admitted to explain — to evaluate — to assist you
in evaluating the testimony of Mr. Olin Davis and to flesh out, if you will, the
47
relationship between Mr. Davis and [defendant], and it may become relevant for
purposes for which you will be specifically instructed otherwise.
“But I want to make sure you understand it’s evidence of an uncharged
crime, and it’s being heard here for very limited purposes. And you must not — it
is not direct evidence on the issues that you’re here to ask about the two counts of
murder, but it relates to Mr. Davis’ credibility and believability as you should
evaluate that, the motives that he may have for testifying here in relationship to
[defendant], and other factors which may become apparent upon which you will
be specifically instructed.”
At a sidebar conference immediately thereafter, the prosecutor asked to
have the instruction read back during the break because he was concerned the
court had instructed the jury it was not to consider this evidence “in any form” as
to defendant’s guilt. The court denied having done so, but the prosecutor
nevertheless asked to read the transcript of the instruction to make sure.
The trial court then told the jury: “As is frequently the possibility when we
speak extemporaneously, I may have misspoken. I’m going to have this transcript
reread to me. I want to make sure all I’m telling you here is that this testimony
that you’re about to hear is special testimony, and it will be heard by you for
limited reasons which will be fully explained at the conclusion of the trial. And I
want you to understand that and to keep it separate from the testimony of Mr.
Davis on, for instance, attributed to him, that he attributes certain statements to
[defendant] directly relevant to the two counts, and we’ll leave it at that. [¶] If
I’ve misspoken myself, I’ll correct it when I’ve reread the transcript. All of this
will be cleared up at the end of trial, I hope.”
The prosecutor read the relevant portion of the reporter’s transcript during a
break. Thereafter, he said he had no objections to the wording of the court’s
instructions to the jury.
48
At the close of the guilt phase, the trial court gave the standard jury
instruction on evidence limited as to purpose (CALJIC No. 2.09 (5th ed. 1988))6
and a modified jury instruction on other crimes evidence (CALJIC No. 2.50 (5th
ed. 1988)).7 Defendant challenges these instructions on several grounds.
First, defendant contends the trial court’s limiting instruction to the jury
during Davis’s testimony was erroneous because evidence of defendant’s attempt
to kill Davis should not have been admitted at all. As discussed in part III.A, ante,
the court properly admitted that evidence. Accordingly, we reject the argument
that the limiting instruction on this issue was erroneous on this basis.
Next, defendant complains this instruction must have confused the jury
because the trial court told the jury it might have “misspoken” in instructing the
jury, without identifying the portion of the instruction at issue. Thus, defendant
6
The trial court instructed the jury under CALJIC No. 2.09: “Certain
evidence was admitted during the trial . . . for a limited purpose. At the time this
evidence was admitted, you were admonished that it could not be considered by
you for any purpose other than the limited purpose for which it was admitted. Do
not consider such evidence for any purpose except the limited purpose for which it
was admitted.”
7
The court instructed the jury:
“Evidence has been introduced for the purpose of showing that the
defendant committed crimes other than that for which he is on trial. Such
evidence, if believed, was not received and may not be considered by you to prove
that the defendant is a person of bad character or that he has a disposition to
commit crimes.
“Such evidence was received and may be considered by you only for the
limited purpose of determining if it tends to show the defendant had knowledge or
possessed the means that might have been useful or necessary for the commission
of the crimes charged, the defendant had a consciousness of guilt with respect to
the crimes charged.
“For the limited purpose for which you may consider such evidence, you
must weigh it in the same manner as you do all other evidence in the case. You
are not permitted to consider such evidence for any other purpose.”
49
argues, the jury was left without guidance as to how to consider the evidence of
defendant’s attempted murder of Davis. Not so. The court expressly instructed
the jury that it could consider such evidence for limited purposes, such as
credibility, believability, and motive, and that, if other purposes later became
relevant, the jury would be instructed accordingly. In any event, any possible jury
confusion engendered by the trial court’s statement that it might have “misspoken”
was cleared up at the end of trial when the court gave a modified version of
CALJIC No. 2.50, which identified the particular limited purposes for which the
jury could consider other crimes evidence. There is no reasonable likelihood the
jury was confused and misconstrued or misapplied the instruction (see People v.
Clair, supra, 2 Cal.4th at pp. 662-663), and defendant’s argument to the contrary
is speculation.
Defendant also contends the trial court erred in giving a modified version
of CALJIC No. 2.50, because it was unnecessary and irrelevant. He argues that
instructing the jury that other crimes evidence may be considered “for the limited
purpose of determining if it tends to show the defendant had knowledge or
possessed the means that might have been useful or necessary for the commission
of the crimes charged” was unnecessary because at trial defendant did not deny
that he had access to guns. He also argues that instructing the jury that other
crimes evidence may be considered “for the limited purpose of determining if it
tends to show [that] . . . the defendant had a consciousness of guilt with respect to
the crimes charged” was erroneous because the March 1987 incident was
irrelevant on this issue.
We find no error. “[T]he correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of
an instruction or from a particular instruction.” (People v. Burgener (1986)
41 Cal.3d 505, 538.) In addition to the above instructions, the trial court
50
instructed the jury: “Whether some instructions apply will depend upon what you
find to be the facts. Disregard any instruction which applies to facts determined
by you not to exist.” (See CALJIC No. 17.31 (5th ed. 1988).) Viewed as a whole,
the instructions adequately advised the jury how to consider evidence limited as to
purpose and other crimes evidence.
Finally, defendant contends the trial court’s guilt phase instructions were
inadequate to “overcome” the voluminous evidence admitted on attempted murder
and the prosecutor’s improper closing argument that defendant’s character, as
shown by other crimes evidence, proved he committed the double murders.
Defendant’s contention essentially repeats earlier claims of erroneous admission
of evidence and prosecutorial misconduct, which we have already rejected.
2. Defense special instructions
a. Special instruction C
At the time of trial, Bruce Davis, a prosecution witness and the brother of
Olin Davis, was in jail facing six counts of robbery.
Robert Williams, another prosecution witness, testified at trial that he had
been originally charged with four felony counts stemming from his May 4, 1987,
altercation with Olin Davis, but the day after he testified at defendant’s
preliminary hearing three of these counts were dismissed. Williams pleaded guilty
to one count of assault with a deadly weapon and, in 1989, was sentenced to 18
years in state prison. He was serving his sentence at the time of trial.
Defendant requested, but the trial court refused, this special instruction
(special instruction C): “The testimony of a witness who provides evidence
against a defendant in the hope or expectation of leniency in his punishment must
be examined and weighed by the jury with greater care than would be applied to
the testimony of an ordinary witness. [¶] The jury should examine such testimony
51
to determine whether it is colored in such a way as to place guilt on the defendant
in order to further the witness’ own interest, for such a witness, confronted with
the realization that he can secure leniency or freedom by incriminating another has
a motive to falsify.” In requesting this special instruction, defense counsel
explained it focused on the expectation of leniency by Bruce Davis and Robert
Williams and the effect of such expectation on their testimony. In refusing the
instruction, the court noted that the requested instruction was “overspecialized,”
and that CALJIC No. 2.20 adequately focused the jury’s attention on the existence
or nonexistence of bias, interest, or other motive of a witness. Defendant contends
the court erred in so ruling, and thereby violated his right to a fair trial.
“We have suggested that ‘in appropriate circumstances’ a trial court may be
required to give a requested jury instruction that pinpoints a defense theory of the
case . . . .” (People v. Bolden, supra, 29 Cal.4th at p. 558.) But a court need not
give a pinpoint instruction if it “merely duplicates other instructions.” (Ibid.; see
also, e.g., People v. Garceau (1993) 6 Cal.4th 140, 191 [no error in refusing to
give a special instruction that would have cautioned the jury to examine with
greater care the testimony of an informer, for the jury received adequate standard
instructions on the credibility of witnesses].)
Here, the jury received instructions on the credibility of witnesses in
general (CALJIC No. 2.20) and on the credibility of a witness who has been
convicted of a felony (CALJIC No. 2.23). Together, these instructions adequately
informed the jury that the “existence or nonexistence of a bias, interest, or other
motive” and a witness’s prior conviction of a felony were factors it could consider
in determining the believability of a witness. Defendant cites no authority to
support his argument that these instructions were inadequate, and we find none.
Accordingly, the court did not err in refusing to give defendant’s special
instruction C. Thus, defendant’s right to a fair trial was not violated.
52
b. Special instruction D
Defendant also requested, but the trial court refused, this special instruction
(special instruction D): “If a party has it peculiarly within his power to produce a
witness whose testimony would be material on any matter in issue, the fact that he
does not creates the presumption that the testimony, if produced, would be
unfavorable to that party.” In requesting this instruction, defense counsel noted
that the prosecution had the power to produce Richard Johnson and Olin Davis’s
roommate “Moe” but did not do so, and claimed that their testimony would have
been material to the murders themselves and to defendant’s admission to the
murders. In refusing the instruction, the trial court noted it was not satisfied that
the requested instruction correctly stated the law. Defendant contends the court’s
refusal to give this instruction violated his right to a fair trial.
Defendant argues that special instruction D “reflects the provisions of
Evidence Code section 412.” That section provides: “If weaker and less
satisfactory evidence is offered when it was within the power of the party to
produce stronger and more satisfactory evidence, the evidence offered should be
viewed with distrust.”
We need not decide whether special instruction D is consistent with
Evidence Code section 412, for instruction on this issue was inapplicable in any
event. It was undisputed at trial that the prosecution tried to locate Johnson for
trial but could not do so. As for the purported application of the requested
instruction to “Moe,” from the record it appears that no one had any information
about him beyond his first name. Thus, the prosecution did not have enough
information about Moe to produce him as a witness. Further, there was no
evidence that Moe was present at the scene of the murders or when defendant
made his admission to Davis. Davis testified that Moe was in the room when
defendant came to his house a day or two after the murders, but that Davis and
53
defendant walked out to the porch before defendant admitted to Davis that he
killed Thompson and Robinson. Davis also testified that Moe was present when
defendant returned to the house the next day with the newspaper clipping of the
double murders, but that he was not present when defendant and Davis further
discussed the murders. Therefore, even if the prosecution could have found Moe,
his testimony would not have been material. Accordingly, the court did not err,
under state or federal law, in refusing to give special instruction D.
H. Cumulative Error
Defendant contends the cumulative effect of the trial court’s alleged errors
and prosecutorial misconduct during the guilt phase resulted in an unfair trial, an
unreliable verdict, and a miscarriage of justice under the state and federal
Constitutions. For the sake of argument, we have assumed that the trial court
erred by admitting Richard Johnson’s out-of-court statement to Olin Davis
(although defendant invited any error), and we have assumed that several of the
prosecutor’s comments in closing argument amounted to misconduct, although
defendant forfeited the latter claims by failing to object or to request a curative
admonition. In each of these instances, we have found the error harmless. The
combined effect of these assumed errors did not deny defendant a fair trial, a
reliable verdict, or any other constitutional right.
IV. ISSUES RELATED TO THE PENALTY RETRIAL
A. Lingering Doubt Instruction
The trial court instructed the jury: “Each individual juror may consider, as
a mitigating circumstance, any residual or lingering doubt in the mind of that
juror, as to whether the defendant murdered Leroy Robinson and Betty Thompson.
You may not relitigate or reconsider matters which were resolved in the guilt
phase, but you may consider such residual or lingering doubt, if it exists in your
54
mind, as a circumstance in mitigation. [¶] . . . [¶] A lingering or residual doubt is
defined as that state of mind between beyond a reasonable doubt and beyond all
possible doubt.” Defendant argues that the portion of this instruction prohibiting
the jury from relitigating or reconsidering “matters” resolved in the guilt phase
conflicted with the portion permitting it to consider lingering doubt as a
circumstance in mitigation, thereby violating his rights under the Sixth and
Fourteenth Amendments to the federal Constitution.
In resolving the issue of penalty, a capital jury may consider lingering
doubts about a defendant’s guilt. (People v. Musselwhite (1998) 17 Cal.4th 1216,
1272.) A trial court is not required as a matter of state or federal law, however, to
instruct a penalty jury to consider lingering doubt as a factor in mitigation. (See
Franklin v. Lynaugh (1988) 487 U.S. 164, 173-174; see also People v. Valdez,
supra, 32 Cal.4th at p. 129, fn. 28; People v. Musselwhite, supra, 17 Cal.4th at
p. 1272.)
Defendant argues that to properly consider lingering doubt, the penalty
phase jury must, by definition, “reconsider matters which were resolved in the
guilt phase,” that is, whether defendant had committed the murders, and that the
court erred in instructing otherwise. We disagree. The guilt phase jury
determined defendant’s guilt and the truth of the special circumstance allegation
beyond a reasonable doubt. As a matter of law, the penalty phase jury must
conclusively accept these findings. (See People v. Cain (1995) 10 Cal.4th 1, 66;
People v. DeSantis (1992) 2 Cal.4th 1198, 1238.)
Defendant criticizes as vague the trial court’s definition of lingering doubt
as “a state of mind between beyond a reasonable doubt and beyond all possible
doubt.” We have in the past upheld the adequacy of an identically worded
instruction on lingering doubt. (People v. Snow (2003) 30 Cal.4th 43, 125.)
Defendant notes that, during voir dire of prospective jurors at the penalty phase
55
retrial, several of those jurors, including one who was selected as a juror for the
retrial, were confused on the concept of lingering doubt. But any confusion by
prospective jurors who ultimately were not seated as jurors could not possibly
have affected the penalty phase retrial. As for the one sitting juror who
purportedly was confused on the concept of lingering doubt during voir dire, even
assuming she was confused, we find no prejudice to defendant. The jury
instructions at the end of the penalty phase retrial included an instruction on the
definition of lingering doubt, and defendant does not argue that after hearing this
instruction the juror in question or any other juror was confused about the concept
of lingering doubt.
The instruction at issue, moreover, did not purport to limit the evidence the
jury could consider on the issue of lingering doubt. Indeed, in closing argument
defense counsel asked the jury to “objectively evaluate the evidence . . . [before]
deciding whether or not there is a lingering doubt.” We conclude that the
instruction given “adequately convey[ed] the concept of lingering doubt and its
proper relevance to the penalty decision.” (People v. Snow, supra, 30 Cal.4th at
p. 125.)
B. Prosecutorial Misconduct During Argument
Citing five areas of alleged misconduct by the prosecutor during his penalty
phase retrial closing argument, defendant contends the cumulative impact
deprived him of a fair penalty phase trial. We disagree.
In part III.F of the discussion, ante, we set forth the constitutional standards
governing prosecutorial misconduct. (See also People v. Crew, supra, 31 Cal.4th
at p. 855.) Here, as we explain below, defendant fails to show that the
prosecutor’s conduct infected the trial with such unfairness as to make the
conviction a denial of due process, or that, in violation of state law, the prosecutor
56
used deceptive or reprehensible methods to persuade the jury. Nor has defendant
shown “a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.” (People v. Morales, supra,
25 Cal.4th at p. 44.)
1. Alleged Griffin error
During his closing argument, the prosecutor urged the jury to reject any
argument by the defense that the jury should have “compassion and sympathy” for
defendant, contending that defendant’s conduct demonstrated “a sense of very
strong arrogance.” Asserting that defendant acted as the judge, jury, and
executioner of Thompson and Robinson, and that he tried to do the same to Olin
Davis, the prosecutor said: “When he makes up his mind that a person must go,
that person is through, ‘you’re through Olin and that’s all there is to it.’ But I’ll
tell you, ladies and gentlemen, he had no right to do it. This is a man who should
be on his knees apologizing for what he did to his poor victims.” (Italics added.)
When defendant objected, the trial court reminded the jury that the prosecutor’s
statements were not evidence and advised him to “move forward into another
area.” Defendant later unsuccessfully moved for a mistrial, claiming the
prosecutor’s statement that defendant should be on his knees apologizing was the
functional equivalent of a comment on his failure to testify, in violation of Griffin
v. California (1965) 380 U.S. 609.
“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.) 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)
57
29 Cal.3d 733, 757 & fn. 19.) 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, quoting People v. Jackson (1980) 28 Cal.3d
264, 304.)
Here, the prosecutor’s remark that defendant “should be on his knees
apologizing” was not a reference to defendant’s failure to testify, but rather an
assertion that defendant was proud of the murders when he ought to be ashamed of
them. The prosecutor’s argument to the jury after defense counsel’s objection
demonstrates his purpose in making the remark: He pointed out that defendant
had bragged about the murders to Olin Davis, and he argued that defendant cut out
a newspaper clipping that mentioned the murders because he was “proud as a
peacock” that he had committed them. This argument did not violate Griffin v.
California, supra, 380 U.S. 609. (See People v. Boyette, supra, 29 Cal.4th at
p. 455; People v. Crittenden (1994) 9 Cal.4th 83, 147.)
2. Reference to inapplicable law
During closing argument, the prosecutor discussed the events leading to
defendant’s attempted murder of Davis and argued that defendant intended to kill
Davis to eliminate him as a witness. The prosecutor continued: “Ladies and
gentlemen, the murder of a witness in the State of California is a special
circumstance, itself, in and of itself makes someone eligible for the death penalty,
in addition to the multiple murder special circumstance. He was going to kill a
witness to a crime within a week of executing two people.” (Italics added.)
Defendant objected to the italicized portion of the argument, and the trial court
sustained the objection. The court told the jury that the special circumstance the
58
prosecutor referred to “was not and is not alleged in this case” and that the jury
should disregard it.
Defendant contends the italicized statement provided the jury with a
“perfect independent rationale for a verdict of death.” We disagree. In the context
of the prosecutor’s discussion of defendant’s attempted murder of Davis, the
statement was merely an attempt to convey to the jury the seriousness of the crime
against Davis. In any event, there is no reasonable likelihood the jury construed or
applied the challenged remark in an objectionable fashion, given that defendant
did not kill Davis, the prosecutor did not argue defendant killed Davis, and the
jury was told that the special circumstance of murdering a witness was not alleged
in this case and that it should disregard the remark.
3. Epithets
Near the beginning of his closing argument at the penalty phase, the
prosecutor commented: “When we picked the jury and we went through that
process, . . . I looked at this case and I said I can hardly wait to get up to argument
and tell this jury what a rotten, nasty, S.O.B. and M.F. this man is.” Later, the
prosecutor also referred to defendant as a “punk[].” The trial court noted defense
counsel’s objection to “name calling” and admonished the jury that the statements
of counsel were not evidence. Defendant asserts that both comments were
improper. Although “epithets are not necessarily misconduct when they are
reasonably warranted by the evidence” (People v. McDermott (2002) 28 Cal.4th
946, 1002), we do not condone the use of profanity in arguments to the jury.
Here, however, defendant did not object to the initial remark or request an
admonition, so he cannot challenge it on appeal. (Id. at p. 1003.) In any event,
these brief references “would not have had such an impact ‘as to make it likely the
jury’s decision was rooted in passion rather than evidence.’ [Citation.]” (Ibid.)
59
4. Facts not in evidence
In his closing argument, the prosecutor said: “I believe that if you embrace
a man and hold him, you can feel him . . . . And then when you hold that man and
shoot that man, you can feel that man die. You can feel his life pass from his spirit
through your body and gone to the beyond and it’s that singular feeling of being
close and being near to sense and feel and smell the fear . . . that gives life to
[defendant] needing to feel that life forcing through him and pass on and then drop
the carcass to the ground. Death is invigorating to him . . . . That’s why he shoots
these people in the head.” Defendant argues there was no evidence to support this
“ghoulish depiction.” Because he did not object to the remarks or request an
admonition at trial, he may not now challenge them. Moreover, the remarks were
reasonable commentary on the evidence that defendant was holding Robinson
when he fatally shot him in the head and that he was holding Olin Davis when he
tried to kill him by shooting him in the head. In any event, these brief comments
in a very long closing argument were harmless under any standard.
Defendant also complains about the prosecutor’s comment in closing
argument that defendant was “sponging off his mom.” Defendant objected that
there was no such evidence, whereupon the trial court reminded the jury that the
statements of counsel were not evidence in the case. Even assuming the remark
was improper, there is no reasonable likelihood that the jury applied it in an
objectionable fashion.
5. Davenport error
During his discussion of section 190.3, factor (k) (“Any other circumstance
which extenuates the gravity of the crime even though it is not a legal excuse for
the crime”), the prosecutor stated: “[N]obody came up here from [defendant’s]
family. I haven’t seen any employers. I haven’t seen any school teachers. I
haven’t seen anybody from the college . . . . I haven’t seen anyone come into this
60
courtroom and say anything on his behalf, nothing whatsoever, and if it existed, I
guess he would be here by now. [¶] [This instruction] is the vehicle . . . upon
which you most reasonably would base a verdict of life. And all of this, all of this
that’s available to him, all of that which the law requires, all of that gives him a
possible basis for life, he can answer none of this . . . . This instruction is useless
to him because he can’t fill any of the blanks.”
Defendant contends the prosecutor improperly argued to the jury that the
absence of mitigating factors was evidence in aggravation, in violation of People
v. Davenport (1985) 41 Cal.3d 247, 288-290. Defendant forfeited this argument
by failing to object. (See People v. Gurule (2002) 28 Cal.4th 557, 657-658.)
In any event, the point lacks merit. Although the prosecutor noted the
absence of evidence of mitigation, he did not argue that this absence “transformed
the mitigating factors into aggravating factors.” (People v. McDermott, supra,
28 Cal.4th at p. 1003.) His statements fell within the range of proper prosecutorial
argument. (See id. at pp. 1003-1004; see also People v. Clark (1993) 5 Cal.4th
950, 1030.)
6. Cumulative effect of asserted instances of prosecutorial misconduct
There is no merit to the claims of prosecutorial misconduct, and thus there
is no improper cumulative effect.
C. Constitutionality of California’s Death Penalty Statute
Defendant challenges various aspects of California’s death penalty law as
violating the federal Constitution. We have previously rejected these challenges,
and we decline to reconsider them here. A summary of the pertinent holdings
follows.
The special circumstances listed in section 190.2 adequately narrow the
class of murder for which the death penalty may be imposed. (People v. Crew,
61
supra, 31 Cal.4th at p. 860; People v. Burgener (2003) 29 Cal.4th 833, 884 & fn.
7; People v. Bolden, supra, 29 Cal.4th at p. 566.) Section 190.3, factor (a), which
permits the jury to consider the circumstances of the capital crime as an
aggravating factor, is not unconstitutionally vague. (Tuilaepa v. California (1994)
512 U.S. 967, 973; People v. Bolden, supra, at p. 566; People v. Mendoza (2000)
24 Cal.4th 130, 192.) Identification of sentencing factors as aggravating or
mitigating is not constitutionally required. (People v. Crew, supra, at p. 860.)
“The prosecution need not prove beyond a reasonable doubt that aggravating
factors outweigh mitigating factors, and the jury need not find beyond a
reasonable doubt that death is the appropriate punishment.” (Ibid.) The jury need
not be instructed on the burden of proof on the issue of penalty. (People v.
Mendoza, supra, at p. 191.) Written jury findings or unanimity as to aggravating
circumstances are not constitutionally required. (People v. Crew, supra, at p. 860;
People v. Bolden, supra, at p. 566.) Intercase proportionality review is not
required. (Ibid.)
V. DISPOSITION
We affirm the judgment in its entirety.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
BROWN, J.
62
CONCURRING OPINION BY MORENO, J.
I concur with the result and the reasoning of the majority, except insofar as
it concludes that the religious references made by the prosecutor at the guilt phase
of the trial were not misconduct. I would conclude that the prosecutor’s
invocation of religion during defendant’s guilt phase trial constituted misconduct,
but was not prejudicial, given the strong evidence of defendant’s guilt.
As the majority rightfully acknowledges, we have repeatedly held that a
prosecutor may not appeal to religious authority in a closing argument to the jury.
(Maj. opn., ante, at p. 44.) I agree with the majority that “[w]hen references to the
Bible are involved, the line between literary allusion and religious appeal is often
a fine one.” (Id., at p. 46.) I believe that the prosecutorial argument at issue here,
however, falls squarely on the wrong side of that line.
The majority opinion quotes at length the pertinent portion of the
prosecutor’s argument invoking the Bible, and I therefore need not quote it in full
here. (See maj. opn., ante, at pp. 43-44.) Of particular significance are the
prosecutor’s extended metaphor invoking the Four Horsemen of the Apocalypse
(see Revelation 6:1-6:8), his description of defendant as “the disciple of Satan,”
and his charge to the jury to “take the sword from [defendant] and cast it down
and tell him that he was wrong and may go no further.” (Maj. opn., ante, at pp.
43-44.)
The majority is correct to note that “not every reference to the Bible is an
appeal to religious authority.” (Maj. opn., ante, at p. 45.) Literary allusion, which
is by definition “a covert, implied, or indirect reference” to a work of literature (1
Oxford English Dict. (2d ed. 1989) p. 349), is permissible in closing argument
even when the work of literature alluded to is the Bible. Indeed, counsel would be
well within the bounds of permissible argument if he or she referred to a skeptical
1
expert witness as a “doubting Thomas” (John 20:24-20:28), or called someone a
“good Samaritan.” (Luke 10:33-10:34.)
However, extended references to biblical passages that explicitly relate
principles or illustrations from the Bible to the case at hand go well beyond mere
allusion. While it is true that the Bible is “generally regarded as a literary
masterpiece,” (maj. opn., ante, at p. 45) it is clearly more than a work of literature
to many potential jurors who may believe the Bible to be divinely inspired. As
such, any extended reference to the Bible can be expected to carry an inherent
authority behind it that illustrations drawn from Dickens, Shakespeare, or J.K.
Rowling could not. To pretend otherwise would be to ignore the reality that, to
many people, the Bible is not just a literary work but a holy text.
Although the majority correctly notes that “any use of biblical references in
argument must be carefully scrutinized” (maj. opn., ante, at p. 46, italics added), it
then concludes that “a reasonable juror likely would understand the prosecutor’s
biblical references merely as a powerfully dramatic illustration of the gravity and
enormity of defendant’s crimes.” I am unpersuaded.
An argument need not directly tell jurors to supplant the state’s law with
God’s law to invoke religious authority. The prosecutorial argument at issue here
was not only biblical in style and substance, but made an explicit and extended
comparison between defendant and the Four Horsemen and called defendant a
“disciple of Satan.” Indeed, the aim of the prosecutor’s extended, albeit somewhat
confusing, comparison between defendant and the Horsemen appears to be that the
defendant, unlike the Horsemen, lacked “the necessary mandate” to kill. In
contrast, though the prosecutor did not directly urge the jury to follow religious
law rather than California law, he did suggest that, unlike defendant, the jury had a
divine mandate, if not a religious obligation, to “cast . . . down” defendant and to
judge him guilty. In addition, using language strongly evocative of biblical
passages, the prosecutor charged the jury with a mandate to “take the sword from
2
[defendant] and cast it down and tell him that he was wrong and he may go no
further.” This extended metaphor was an invitation to the jury to apply a “higher
law than that found in the California Penal Code.” (Maj. opn., ante, at p. 44.)
Because I believe that the prosecutor’s closing argument at the guilt phase
crossed the line between permissible allusion to the Bible and impermissible
religious exhortation, I would conclude that the argument was improper.
MORENO, J.
I CONCUR:
WERDEGAR,
J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Harrison
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S035367
Date Filed: March 3, 2005
__________________________________________________________________________________
Court: Superior
County: Alameda
Judge: William R. McGuiness
__________________________________________________________________________________
Attorneys for Appellant:
Thomas Kallay, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass,
Assistant Attorney General, Ronald S. Matthias and Jeffrey M. Laurence, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Thomas Kallay
1317 North San Fernando Boulevard, #243
Burbank, CA 91504
(213) 830-7377
Jeffrey M. Laurence
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 703-5897
Opinion Information
| Date: | Docket Number: |
| Thu, 03/03/2005 | S035367 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Francisco Office Jeffrey Laurence, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | Harrison, Cedric (Appellant) San Quentin State Prison Represented by Habeas Corpus Resource Center Jeannie Sternberg 50 Fremont Street, Suite 1800 San Francisco, CA |
| 3 | Harrison, Cedric (Appellant) San Quentin State Prison Represented by Thomas Kallay Attorney at Law 1317 North San Fernando Blvd., Suite 906 Burbank, CA |
| Disposition | |
| Mar 3 2005 | Opinion: Affirmed |
| Dockets | |
| Aug 30 1993 | Judgment of death |
| Oct 6 1993 | Filed cert. copy of Judgement of Death Rendered 8-30-93. |
| May 15 1997 | Filed: Applt's Pro Se request for Daily Transcripts. |
| Jul 16 1997 | Order filed: Appellant's motion, filed in this court on 5-15-97, for an order that he be provided with copies of the daily transcripts of his capital trial, is denied. Mosk, J., and Kennard, J. are of the opinion the motion should be granted. |
| May 27 1998 | Filed: Application for Order directing Trial Counsel to Furnish Trial Files to Appellant on Appeal in Pro per |
| Jul 8 1998 | Counsel appointment order filed appointing Thomas Kallay to represent appellant for the direct appeal. |
| Sep 17 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 22 1998 | Extension of Time application Granted To 10-08-98 To request Record correction |
| Oct 7 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 13 1998 | Extension of Time application Granted To 12-07-98 To request Record correction |
| Dec 7 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 11 1998 | Extension of Time application Granted To 2-5-99 To request Record correction |
| Dec 15 1998 | Filed: Amended Proof of Service of Applt's request for Eot. |
| Feb 5 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Feb 8 1999 | Extension of Time application Granted To 4-6-99 To request Record correction |
| Apr 13 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 19 1999 | Extension of Time application Granted To 6-7-99 To request Record correction |
| Jun 3 1999 | Change of Address filed for: Attorney General - S.F. Office. |
| Jun 7 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jun 9 1999 | Filed: Confidential Decl of Atty Kallay. |
| Jun 10 1999 | Extension of Time application Granted To 7-7-99 To request Record correction no further Extensions of time Are Contemplated |
| Jun 23 1999 | Order filed: The Applic. for Order directing Trial Counsel to Furnish Trial Files to Applt on Appeal Is denied as Moot. |
| Jul 8 1999 | Received: Copy of Applt's request to correct & Settle the Record (18 Pp.) |
| Jul 8 1999 | Received: Copy of Applt's request to Prepare & certify Missing Material (5 Pp.) |
| Aug 2 1999 | Compensation awarded counsel Atty Kallay |
| Mar 9 2000 | Record on appeal filed C-76 (22,583 Pp.) and R-44 (9,666 Pp.) including material under seal. (CT includes 9,409 pp. of juror questionnaires.) |
| Mar 9 2000 | Appellant's opening brief letter sent, due: 4/18/2000 |
| Mar 15 2000 | Compensation awarded counsel Atty Kallay |
| Apr 20 2000 | Application for Extension of Time filed To file Aob. |
| Apr 24 2000 | Extension of Time application Granted To 6/19/2000 To file Aob. |
| Jun 21 2000 | Application for Extension of Time filed To file Aob. |
| Jun 26 2000 | Extension of Time application Granted To 8/18/2000 To file Aob. |
| Aug 21 2000 | Application for Extension of Time filed To file AOB. (third request) |
| Aug 25 2000 | Extension of Time application Granted To 10/17/2000 to file AOB. |
| Oct 17 2000 | Application for Extension of Time filed To file AOB. (4th request) |
| Oct 19 2000 | Counsel's status report received (confidential) from atty Kallay. |
| Oct 20 2000 | Extension of Time application Granted To 12/18/2000 to file AOB. |
| Dec 15 2000 | Counsel's status report received (confidential) from atty Kallay. |
| Dec 20 2000 | Application for Extension of Time filed To file AOB. (5th request) |
| Dec 21 2000 | Extension of Time application Granted To 1/17/2001 to file AOB. |
| Jan 22 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| Jan 29 2001 | Extension of Time application Granted To 3/19/2001 to file AOB. No further ext. of time are contemplated. |
| Feb 20 2001 | Counsel's status report received (confidential) from atty Kallay. |
| Feb 27 2001 | Application to file over-length brief filed To file AOB. (434 page A0B subm. under separate cover) |
| Mar 9 2001 | Order filed: Application to file Over Length Brief is granted. |
| Mar 9 2001 | Appellant's opening brief filed (5 vols. - 434 pp.) |
| Mar 15 2001 | Compensation awarded counsel Atty Kallay |
| Apr 6 2001 | Application for Extension of Time filed To file Respondent's Brief. (1st request) |
| Apr 11 2001 | Extension of Time application Granted To 6/8/2001 to file Respondent's Brief. |
| Apr 16 2001 | Counsel's status report received (confidential) from atty Kallay. |
| Jun 6 2001 | Application for Extension of Time filed to file respondent's brief. (2nd request). |
| Jun 11 2001 | Extension of Time application Granted to 8/7/2001 to file respondent's brief. |
| Jun 15 2001 | Counsel's status report received (confidential) from atty Kallay. |
| Aug 7 2001 | Application for Extension of Time filed to file resp's brief. (3rd request) |
| Aug 16 2001 | Extension of Time application Granted To 10/9/2001 to file resp.'s brief. |
| Oct 3 2001 | Application for Extension of Time filed To file resp.'s brief. (4th request) |
| Oct 12 2001 | Extension of Time application Granted To 12/10/2001 to file resp.'s brief. |
| Dec 7 2001 | Request for extension of time filed To file resp.'s brief. (5th request) |
| Dec 12 2001 | Extension of time granted To 2/8/2002 to file resp.'s brief. Dep. AG Laurence anticipates filing the brief by 2/8/2002. No further extension is contemplated. |
| Feb 6 2002 | Respondent's brief filed (210 pp.) |
| Feb 25 2002 | Request for extension of time filed To file reply brief. (1st request) |
| Mar 4 2002 | Filed: Suppl. declaration in support of application for extension of time to file reply brief. |
| Mar 6 2002 | Extension of time granted To 4/29/2002 to file reply brief. |
| Apr 12 2002 | Change of Address filed for: applt. counsel Thomas Kallay. |
| Apr 24 2002 | Request for extension of time filed To file reply brief. (2nd request) |
| Apr 30 2002 | Extension of time granted To 6/28/2002 to file reply brief. Counsel anticipates filing the reply by 6/30/2002. One further extension totaling 32 additional days is contemplated. |
| Jul 2 2002 | Request for extension of time filed To file applt.'s reply brief. (3rd request) |
| Jul 3 2002 | Extension of time granted To 7/30/2002 to file applt.'s reply brief. Counsel anticiapates filing that brief by 7/30/2002. No further extension is contemplated. |
| Jul 25 2002 | Appellant's reply brief filed (125 pp.) |
| Sep 4 2002 | Compensation awarded counsel Atty Kallay |
| Jan 17 2003 | Order appointing Habeas Corpus Resource Center filed HCRC appointed to represent appellant for habeas corpus/executive clemency proceedings related to the automatic appeal. |
| Apr 9 2003 | Counsel's status report received (confidential) from HCRC. |
| May 20 2003 | Counsel's status report received (confidential) from HCRC. |
| Jun 9 2003 | Compensation awarded counsel Atty Kallay |
| Jul 23 2003 | Counsel's status report received (confidential) from HCRC. |
| Sep 26 2003 | Counsel's status report received (confidential) from HCRC. |
| Nov 21 2003 | Counsel's status report received (confidential) from HCRC. |
| Jan 20 2004 | Counsel's status report received (confidential) from HCRC. |
| Feb 17 2004 | Motion filed (in AA proceeding) Appellant's pro se Marsden Motion. |
| Feb 20 2004 | Counsel's status report received (confidential) from HCRC. |
| Mar 3 2004 | Motion denied Appellant's letter, filed on February 17, 2004, treated as a motion to relieve appointed habeas corpus counsel and appoint new habeas corpus counsel in its place, is denied. |
| Mar 22 2004 | Counsel's status report received (confidential) from HCRC. |
| Apr 21 2004 | Exhibit(s) lodged People's exhibits: 3D (photograph) and 73A (video cassette). |
| May 19 2004 | Counsel's status report received (confidential) from HCRC. |
| Jul 26 2004 | Counsel's status report received (confidential) from HCRC. |
| Sep 23 2004 | Counsel's status report received (confidential) from HCRC. |
| Sep 27 2004 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the November calendar, to be held the week of Nov. 1, 2004, in Sacramento. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument. |
| Nov 3 2004 | Case ordered on calendar 12/8/04 @ 1:30pm., San Diego |
| Nov 10 2004 | Filed: respondent's focus issue letter, dated 11-10-2004. |
| Nov 17 2004 | Filed: letter from appellant, dated 11-9-2004, with focus issues, and requesting 45 minutes for oral argument. |
| Dec 8 2004 | Cause argued and submitted |
| Dec 27 2004 | Counsel's status report received (confidential) from HCRC. |
| Jan 18 2005 | Related habeas corpus petition filed (concurrent) No. S130762 |
| Mar 3 2005 | Opinion filed: Judgment affirmed in full Opinion by Kennard, J. -----joined by George, C.J., Baxter, Chin, & Brown, J.J. Concurring opinion by Moreno, J. -----joined by Werdegar, J. |
| Mar 17 2005 | Rehearing petition filed by appellant. (6659 words; 22 pp.) |
| Mar 21 2005 | Time extended to consider modification or rehearing to 6/1/2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| May 18 2005 | Rehearing denied Petition for rehearing denied. |
| May 18 2005 | Remittitur issued (AA) |
| May 23 2005 | Received: Acknowledgment of receipt of remittitur. |
| May 24 2005 | Order filed (150 day statement) |
| May 31 2005 | Exhibit(s) returned to superior court. |
| Jun 2 2005 | Received: acknowledgment of receipt of exhibits. |
| Jul 20 2005 | Received: Letter from U.S.S.C., dated 7/12/2005, advising cert petition filed 7/7/2005 as No. 05-5232. |
| Sep 12 2005 | Compensation awarded counsel Atty Kallay |
| Oct 3 2005 | Certiorari denied by U.S. Supreme Court |
| Nov 19 2009 | Appellant deceased Appellant: Harrison, Cedric received notification from Senior Assistant Attorney General Ronald Matthias that Harrison died this date. |
| Briefs | |
| Mar 9 2001 | Appellant's opening brief filed |
| Feb 6 2002 | Respondent's brief filed |
| Jul 25 2002 | Appellant's reply brief filed |
