Filed 8/28/03
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S035769
v.
JAMES MATTHEW HEARD,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. TA010477
A jury found defendant James Matthew Heard guilty of first degree murder
(Pen. Code, §§ 187, subd. (a), 189),1 one count of a forcible lewd act upon a child
under the age of 14 years (§ 288, subd. (b)), two counts of anal or genital
penetration with a foreign object (§ 289, subd. (a)), and two counts of assault with
a deadly weapon causing great bodily injury (§ 245, subd. (a)(1)), all perpetrated
against 11-year-old Katrina Brown. The jury further determined the defendant
had inflicted great bodily injury in the commission of the sex offenses (§ 12022.8)
and had personally inflicted such injury in the commission of the assaults
(§ 12022.7). The jury also found true the three special circumstance allegations:
that the murder occurred while defendant was engaged in the commission of a
lewd and lascivious act upon a child (§ 190.2, subd. (a)(17)), that the murder
occurred while defendant was engaged in the commission of vaginal rape by an
instrument (§ 190.2, subd. (a)(17)), and that the murder was intentional and
1
All statutory references are to the Penal Code unless otherwise indicated.
1
involved the infliction of torture (§ 190.2, subd. (a)(18)). At the conclusion of the
penalty phase, the jury returned a verdict of death. This appeal is automatic. (Cal.
Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).)
As we shall explain, we conclude no reversible error occurred with regard
to the judgment of guilt and the special circumstances findings, and we shall
affirm the judgment as to these determinations. We conclude, however, that the
trial court conducted a seriously deficient examination of a prospective juror
during the jury selection process and, in the absence of adequate justification,
erroneously excused the juror for cause based upon the juror’s ostensible views
regarding the death penalty. The controlling decisions of the United States
Supreme Court establish that, under federal constitutional principles, this type of
error is not subject to harmless-error analysis, but rather must be considered
reversible per se with regard to any ensuing death penalty judgment. (See Gray v.
Mississippi (1987) 481 U.S. 648, 664-666, 668; Davis v. Georgia (1976) 429 U.S.
122, 123.) Accordingly, under compulsion of these applicable federal decisions,
we shall reverse the judgment as to the sentence of death and remand the matter
for a new penalty trial before a properly selected jury.
I. FACTS
A.
GUILT PHASE EVIDENCE
1.
The prosecution’s case
Defendant became romantically involved with Marilyn Brown in 1987,
experienced an on-again off-again relationship with her, and then began residing
with Marilyn and her daughter, the victim Katrina Brown, in May 1990, about
seven months prior to the murder. At that time, defendant also began working as
the manager of the apartment complex in which they resided, performing repairs
in the other units. From all appearances prior to the murder, Katrina and
defendant shared a father-daughter relationship, and there was no evidence he had
2
ever made sexual advances or engaged in any other inappropriate behavior toward
her. It is apparent from the testimony and photographic exhibits that, despite her
youth, Katrina had a very maturely developed body.
On December 18, 1990, defendant worked in one of the apartments during
the morning and afternoon with his friend, Chris Hodges. The two individuals
began drinking gin and 40-ounce bottles of malt liquor, and then commenced
smoking crack cocaine with a number of other persons into the evening. About
8:00 p.m., defendant announced that he “wanted a woman.” He continued
consuming alcohol and smoking cocaine, but at approximately 10:00 p.m. angrily
complained he had purchased some “bunk” drugs and went out to “beat up” the
dealer unless he got his money back.
In the meantime, Katrina prepared for bed and listened to music while
Marilyn slept before preparing to leave for work shortly before 3:00 a.m. Marilyn
saw defendant sometime between 10:30 and 11:00 p.m., at which time she did not
notice anything unusual about his speech or demeanor. When Marilyn went to
work, Katrina was asleep in her bed, the telephone was set by Katrina’s closed
bedroom door, and all the exterior doors were locked.
At approximately 2:00 a.m., defendant left the apartment and encountered
Mattie McAlister, who was on the way to her house nearby, where a birthday
party for her was taking place. McAlister noticed that defendant appeared
“[b]ombed . . . . He was out of it. . . . He was loaded. . . . He was mad, but he
was high. But he was a mad high. . . . He was high, but he wasn’t happy. He was
mad about something.” At the party, McAlister observed defendant drink about
three glasses of whisky, continue to smoke cocaine, and become increasingly
belligerent. Defendant followed McAlister around the house, continuing to
threaten that he was “going to kill a bitch.” McAlister told defendant that he
frightened her, and she insisted that he leave the premises.
3
At one point during the party, defendant pushed Cheryl Bailey up against a
wall and chastised her for being at a party and drinking alcoholic beverages while
pregnant. Bailey’s boyfriend, Johnny Joe Robinson, intervened, and defendant
responded, “Nigger, you don’t know me. I will kill you.” In response, Robinson
and others drew knives and razors and convinced defendant to retreat. According
to Robinson, defendant repeatedly exclaimed, “I ain’t going to be satisfied until I
kill somebody.” Defendant thereafter asked Bailey to leave with him. When she
refused, he shoved her and said, “Bitch, I am going to kill you. I am going to kill
you.”
Defendant departed with Steve Lamar Elkins about 4:00 a.m., stating he
wanted to go someplace to “get high.” On the street, they encountered Marlo
Plump, and defendant demanded money that he said Plump owed him. Elkins
attempted to intercede, but defendant angrily turned on him. Elkins returned to
McAlister’s house and did not see defendant the rest of the night.
Later at the apartment building where defendant resided with Marilyn and
Katrina, beginning about 5:00 a.m., Guillermo Garcia and his sister, Lucy Elena,
who lived in the upstairs unit, heard the sounds of a man and a young woman
fighting; the noise emanated from Marilyn Brown’s apartment. The woman
screamed and moaned, and made sounds “like a cat crying,” and the man told her
to “shut up.” The sound of the voices continued intermittently for approximately
one hour; during the intervals, the Garcias heard the woman crying quietly.
Lacking a telephone, the Garcias were unable to call anyone from their apartment.
After the fighting sounds stopped, the Garcias fell back asleep. Between 5:30 and
6:00 a.m., Marilyn called home but received no response.
About 7:30 a.m., Katrina’s first cousin, Samuel Lee, who lived directly
across from the Browns’ apartment, came by to pick up Katrina for school. When
he received no response at the front door, he went to the bedroom window and
4
knocked, but no one responded. He returned to the front door, which he found
unlatched, and entered. In Katrina’s bedroom, he saw her naked body on the
floor. He returned to his own apartment and told his Uncle Doyle and his
grandfather Charles Lee what he had seen. Charles found Katrina’s body
sprawled on the floor with a bloody cloth wrapped around her head and two
wooden objects between her legs.
Responding to Charles’s 911 call, paramedics determined that Katrina was
dead, and sheriff’s deputies secured the apartment. Katrina’s bedroom showed
evidence of a struggle, and bloodstained clothing and other items lay around the
body. Investigators also found blood, later identified as consistent with both
defendant’s and Katrina’s, on three bedroom walls, the carpeting, and the
bathroom floor and sink. In addition to the blood-soaked garment wrapped around
Katrina’s head, investigators found an empty bottle of rubbing alcohol in her
mouth. There were bite marks on her chest area and, according to one of the
Sheriff’s investigators, a “dusty print on her chest” that appeared to have been
“left by some sort of shoe as if someone stomped her in the chest.” A baseball bat
wrapped with a curtain protruded from her vagina. Another bat, stained with
blood and feces, lay between her legs.
Charles Lee told the deputies that defendant lived with Katrina and her
mother and gave them a description of him.2 About that time, William Ardizzone,
a Long Beach firefighter paramedic, in response to a call made from a liquor store
parking lot, encountered defendant, who had blood dripping from his mouth and
covering his face and bare chest. Ardizzone inquired whether defendant had been
2
Because Charles Lee died during the period between the preliminary
hearing and the trial, the testimony he gave at that hearing was read into the record
at trial.
5
struck, perhaps with a two-by-four, and defendant responded affirmatively.
Examining defendant’s mouth, Ardizzone noticed that part of defendant’s tongue
was missing. The wound did not appear self-inflicted, nor did defendant’s chin
have any injury.
Ardizzone took defendant to the emergency room at Lakewood Doctors
Hospital, where the attending physician, Dr. Max Lebow, determined that
approximately one-third of defendant’s tongue had been amputated. Defendant,
who was spraying blood as he spoke, explained that he had been in a fight and had
been struck with an object on his chin, causing defendant to bite off his tongue
with his own teeth. Lebow, as well as another emergency room physician, Dr.
Robert Flashman, found the injury inconsistent with this description.
An emergency room technician, Michael Murphy, testified that the patient
with the severed tongue whom he encountered on the morning of Katrina’s murder
was “very agitated” and “screaming obscenities.”3 Murphy stated that the patient
subsequently refused treatment and requested a transfer to the Veterans
Administration (VA) Hospital. When the transfer could not be arranged, the
patient “yanked out his [intravenous tube],” “was screaming ‘I am getting the fuck
out of here,’ ” and departed from the emergency room against medical advice.4
3
Murphy initially was unable to identify defendant in court as the patient he
had encountered. On redirect examination, when the prosecutor showed him
photographs taken of defendant shortly after his arrest, Murphy agreed that the
photographs resembled the patient he had treated.
4
Lisa Jones, an emergency room clerk, also was unable to identify defendant
in court but did testify that the patient she encountered that morning resembled the
individual depicted in the photographs taken of defendant. Jones testified that the
patient asked her to contact his “stepdaughter,” named “Katrina, . . . [b]ecause he
wanted to make sure that she would get to school on time.” Clark thereafter
contacted a relative whose name defendant provided, and the relative informed
(Footnote continued on next page.)
6
Defendant proceeded to a nearby parking lot, where he attempted to obtain
a ride to the VA hospital. When approached by a security guard, defendant was
angry and threatening, informing the guard: “Don’t fuck with me. I already hurt
somebody today. Do you want the same thing?” Defendant challenged the guard
to a fight. When confronted by a second guard, defendant warned him to leave
defendant alone, stating that otherwise “I will fuck you up, too.” This guard
recalled that defendant’s eyes were glazed and bloodshot. Defendant angrily
demanded a ride, confronting several individuals in the parking lot, including one
off-duty police officer whom he told, “Motherfucker, I will kill you like.”
Defendant stepped back after observing a firearm resting between the officer’s
legs, and after threatening another security guard who offered assistance,
defendant left the parking lot. The off-duty officer used a cellular phone to
contact the sheriff’s department.
Responding to a disturbance call, sheriff’s deputies found defendant at a
nearby intersection and initially detained him as a possible robbery suspect.
Defendant asserted he had sustained his injury in a fight with street gang members
and had been struck on the chin with a two-by-four. The deputies determined he
had not been involved in the robbery, and were preparing to release him when
they received a radio dispatch regarding a murder suspect named James Heard
who fit defendant’s physical description. When the deputies asked defendant his
(Footnote continued from previous page.)
Clark that Katrina was dead. By the time Clark related this information to another
nurse, defendant had departed from the emergency room.
7
name and he identified himself, they arrested him. As he was being placed in the
patrol car, he stated, “I didn’t mean to do it. I shouldn’t have hit so hard.”5
An autopsy disclosed multiple blunt force injuries, including several severe
lacerations, to Katrina’s head, which had been tightly wrapped in a housecoat.
One laceration was deep enough to expose the bone on her forehead; there were
eight to 12 areas of hemorrhaging under the skull. Beatings on the sides and top
of her head, described by the coroner as “quite forceful,” were sufficient to
dislodge Katrina’s brain and bruise the brain tissue. On Katrina’s breasts, the
coroner found bite marks on both nipples and a suction bruise above the left
nipple, with a large abrasion between her left breast and her armpit. The abrasion,
in conjunction with significant hemorrhaging in the area, was consistent with
“repetitive stomping” on this part of the body.
The autopsy further revealed considerable bruising to Katrina’s abdominal
area, which the coroner opined was caused internally by the repeated thrusting of a
baseball bat handle against her large intestine. The injuries also were consistent
with repeated stomping on her chest and abdomen. Katrina’s entire genital area
was extensively damaged, and the internal injuries were considerable. According
to the coroner, these injuries were consistent with the thrust of a baseball bat into
her vagina with sufficient force to break the wall separating it from the rectum.
The coroner also allowed for the possibility that the force came from the thrust of
a bat into her anus.
5
Blood spatters found on defendant’s socks subsequently were determined to
be consistent with the blood characteristics of the victim. As noted above, blood
spatters found at the crime scene were determined to be consistent with the blood
characteristics of defendant.
8
Katrina’s mouth showed injuries both from the ingestion of a near-toxic
level of rubbing alcohol and from the force of the alcohol bottle being shoved into
it. Her body exhibited substantial evidence of forceful manual strangulation,
which was most likely the actual, that is immediate, cause of death. Several of the
other injuries, however, would have caused death within a matter of hours.
A forensic dentist testified that defendant’s teeth were shaped in a manner
consistent with the bite marks found on Katrina’s breasts.6 He also expressed the
opinion that the injury to defendant’s tongue was inconsistent with a self-inflicted
wound, but was consistent with the shape of Katrina’s teeth.
The coroner opined that defendant may have used the rubbing alcohol, in
conjunction with the abdominal stomping, to induce Katrina to regurgitate the
severed portion of his tongue.7
2.
The defense case
The primary defense theory was that defendant committed the crimes but
did so while impaired due to his alcohol and cocaine consumption. This defense
rested principally on the testimony of Dr. Orm Aniline, a psychiatrist who
specialized in the psychiatric effect of medications and drugs. He explained that
when cocaine and alcohol are consumed together, the liver produces cocaethylene,
which is more potent and remains in the system longer than cocaine alone. Acute
effects of cocaine generally last one-half to one hour depending on tolerance.
Based on the results of a test of defendant’s urine for the presence of cocaine
6
The defense presented some marginal evidence to suggest Chris Hodges
was the assailant, but the forensic dentist testified that the shape of Hodges’ teeth
was inconsistent with these bite marks.
7
Despite an extensive search performed within the victim’s body, the
coroner was unable to locate the missing portion of defendant’s tongue. A search
of the crime scene and surrounding area similarly was unsuccessful.
9
metabolite, Dr. Aniline concluded defendant either ingested a large dose of
cocaine or had accumulated a substantial amount of the drug.
Dr. Aniline explained that the physiological and behavioral effects of large
doses of cocaine include unusual mood swings as well as violent and threatening
behavior, “hypersexual arousal,” and high energy levels. The drug also can impair
problem-solving abilities. He found the description of defendant’s conduct at
Mattie McAlister’s party, at the emergency room, and in the parking lot consistent
with cocaine intoxication. The intoxication also would explain defendant’s
attempt to force Katrina to regurgitate the bitten part of his tongue by stomping on
her abdomen. Dr. Aniline estimated that defendant’s blood-alcohol level was as
high as .20 or .30 percent, which also would affect his problem-solving
capabilities.
Dr. Aniline further concluded that a person under the influence of
cocaethylene might not premeditate or harbor any specific intent to commit a
crime, but might act in a “frenzied state.”
3. Rebuttal
The prosecution countered the defense evidence pertaining to cocaethylene
by presenting the testimony of Dr. Ronald Markman, a psychiatrist and mental
health consultant on drugs and alcohol. Dr. Markman interviewed defendant and
reviewed other material related to the case. On that basis, he opined that
defendant was acting “in a goal-directed intentional manner and was fully aware
of what he was doing” when he committed the murder. Dr. Markman noted in
particular defendant’s attempt to retrieve his severed tongue and otherwise to
conceal his involvement in the crime, even though these attempts were
unsuccessful. Because neighbors heard intermittent fighting for approximately an
hour, Dr. Markman was of the view that defendant also had the opportunity to
reflect on his actions and therefore acted deliberately in continuing the assault.
10
B.
PENALTY PHASE EVIDENCE
1.
The prosecution’s case
The prosecution presented the following evidence in aggravation. In
September 1976, while married to Cynthia Wilson, defendant, apparently drunk,
fired a rifle inside their home and eventually was taken into police custody.
Between 1985 and 1989, defendant lived with Leilani Blake. During that period,
he often lost his temper after drinking hard liquor; on two occasions, he punched a
hole in the wall of their home. Blake left defendant in August 1989, after he had
been drinking and informed her that he wanted “to go out and kick ass” and then
repeatedly hit her in the face. As a result of the beating, Blake lost consciousness
and suffered facial bruising and swelling, as well as retinal damage that caused her
to experience blurred vision for more than one month. The parties also stipulated
defendant had pleaded guilty to unlawfully driving and taking a vehicle. (Veh.
Code, § 10851, subd. (a).)
2.
The defense case
The defense presented extensive evidence of defendant’s background. He
was born of a White mother and a Black father and was adopted by a Black
couple, James and Harriet Heard, at birth. Defendant’s adoptive father was an
alcoholic who lost his temper easily and was verbally and physically abusive
toward defendant. Defendant’s adoptive mother also was physically abusive
toward defendant; she beat him with the cord of an iron and performed unusual
acts on him such as pouring cold water on his penis and subjecting him to
unnecessary enemas. The family lived in Seattle, Washington, until defendant
was in junior high school, and then moved to Compton, California. As a child,
defendant experienced abuse by his parents and harassment from neighborhood
children because of his mixed-race background and relatively large size he
weighed 290 pounds in junior high school.
11
To counter the prosecution’s evidence in aggravation, the defense presented
testimony that defendant was loving and supportive toward the women he became
involved with and their children. However, he suffered from depression, causing
him sometimes to disappear for several days, and also abused alcohol and a
myriad of other drugs including cocaine.
During the period following defendant’s arrest for the present offenses, he
adjusted well to incarceration and did not present a problem for correctional
personnel. He expressed remorse for his crimes which, the defense argued, were
the result of an uncharacteristic “psychotic-like eruption” while he was out of
control due to intoxication.
3. Rebuttal
On rebuttal, the prosecution presented evidence that defendant never had
complained of any abuse by his adoptive parents.
II. DISCUSSION
A.
JURY SELECTION ISSUES
1.
Excusal of prospective jurors for cause
Defendant contends that the trial court erroneously excused two prospective
jurors, H. and Q., for cause after voir dire concerning their views concerning the
death penalty. (See Wainwright v. Witt (1985) 469 U.S. 412; People v. Rodrigues
(1994) 8 Cal.4th 1060, 1146.)8
8
We agree with respondent that apart from issues relating to the principles
discussed in Wainwright v. Witt, supra, 469 U.S. 412, defendant has waived his
constitutional claims regarding the exclusion of these two prospective jurors by
failing to challenge the trial court’s ruling on those grounds at the time the
prospective jurors were dismissed. (See People v. Hines (1997) 15 Cal.4th 997,
1035.)
12
Past decisions of the United States Supreme Court and this court establish
that “[a] prospective juror may be challenged for cause based upon his or her
views regarding capital punishment only if those views would ‘ “prevent or
substantially impair” ’ the performance of the juror’s duties as defined by the
court’s instructions and the juror’s oath. (Wainwright v. Witt [, supra], 469 U.S.
412, 424; People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Mincey (1992)
2 Cal.4th 408, 456.) ‘ “ ‘A prospective juror is properly excluded if he or she is
unable to conscientiously consider all of the sentencing alternatives, including the
death penalty where appropriate.’ [Citation.]” [Citation.] In addition, “ ‘[o]n
appeal, we will uphold the trial court’s ruling if it is fairly supported by the record,
accepting as binding the trial court’s determination as to the prospective juror’s
true state of mind when the prospective juror has made statements that are
conflicting or ambiguous.’ [Citations.]” ’ [Citation.]” (People v. Cunningham
(2001) 25 Cal.4th 926, 975.)
“ ‘The real question is “ ‘ “whether the juror’s views about capital
punishment would prevent or impair the juror’s ability to return a verdict of death
in the case before the juror.” ’ ” ’ (People v. Ochoa (2001) 26 Cal.4th 398, 431,
quoting People v. Bradford (1997) 15 Cal.4th 1229, 1318, quoting in turn People
v. Hill (1992) 3 Cal.4th 959, 1003.) Because the qualification standard operates in
the same manner whether a prospective juror’s views are for or against the death
penalty (Morgan v. Illinois (1992) 504 U.S. 719, 726-728), it is equally true that
the ‘real question’ is whether the juror’s views about capital punishment would
prevent or impair the juror’s ability to return a verdict of life without parole in the
case before the juror.” (People v. Cash (2002) 28 Cal.4th 703, 719-720; see also
People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [“A prospective juror who
would invariably vote either for or against the death penalty because of one or
more circumstances likely to be present in the case being tried, without regard to
13
the strength of aggravating and mitigating circumstances, is therefore subject to
challenge for cause, whether or not the circumstance that would be determinative
for that juror has been alleged in the charging document” (italics added)].)
Applying the foregoing standards, we conclude the trial court erred in
excusing Prospective Juror H. for cause. As we shall explain, in light of that
determination we need not reach the question of the propriety of the excusal of
Prospective Juror Q.
a.
Prospective Juror H.
Defendant contends the trial court improperly excused Prospective Juror H.
for cause. Defendant maintains that the record shows H. was prepared to follow
the law and the trial court’s instructions, and that the trial court’s findings to the
contrary are not supported by substantial evidence. In assessing defendant’s
claim, we set forth in full the relevant portion of the voir dire examination of this
potential juror:
“The court: ‘Mr. [H.], . . . [a]re you of any position right now where you
would automatically vote life without possibility of parole and no matter what
evidence showed?’
“Prospective
Juror [H.]: ‘No.’
‘The court: ‘Or would you vote death automatically no matter what the
evidence showed?’
“Prospective
Juror [H.]: ‘No.’
“The court: ‘Would you characterize yourself as a person who would listen
to the evidence and make a decision thereafter?’
“Prospective
Juror [H.]: ‘Yes.’
“The court: ‘Would you be reluctant at all to get to the guilt [sic; read
penalty] phase by either finding a defendant not guilty of first degree murder or
14
finding the special circumstances not true so as to avoid having to face the issue of
the death penalty?’
“Prospective
Juror [H.]: ‘No.’
“The court: ‘Would you decide the case based upon the evidence without
fear of having to reach the next stages in deciding this case?’
“Prospective
Juror [H.]: ‘No.’
“The court: ‘[I] think I phrased the question badly. [I refer to juror written
questionnaire] number 46. It says, “If a defendant is convicted of first degree
murder and the special circumstances [are found] to be true, the law provides that
the only possible verdicts are death or life without possibility of parole. Overall,
which do you think [is] worse for a defendant?” [¶] You have indicated life
without possibility of parole. And under explanation of your answer, you said[,]
“Perhaps the special circumstances are due to past psychological experiences and I
would consider prison.” [¶] Assuming there were past psychological
experiences, bad childhood or abuse or something else, I don’t know whether any
of that is going to come out, but assuming that thing occurred, would you be
automatically in favor of life without possibility of parole as opposed to the death
penalty because of those factors?’
“Prospective Juror [H.]: ‘Well, whatever the law states.’
“The court: ‘The law is not going to help you a whole lot in weighing the
evidence and deciding the penalty. That is, the law is going to give you the two
options. And the law is going to tell you that you must consider all the evidence
that’s in. And then you must look at the aggravating and mitigating factors.’
“Prospective
Juror [H.]: ‘Un-huh.’
“The court: ‘And you can only impose death if the aggravating factors are
so substantial in comparison to the mitigating factors that death is warranted. [¶]
Now that’s pretty much it. You are going to have to decide for yourself what
15
those factors are and decide wh[ich] penalty is appropriate. So we are not going to
tell you how to weigh the psychological factors. We are just not going to. You
are going to have to weigh it yourself in your decisions with the other jurors. You
feel comfortable doing that?’
“Prospective
Juror [H.]: ‘Yes.’
“The court: ‘Do you think that if there were past psychological factors that
they would weigh heavily enough that you probably wouldn’t impose the death
penalty? [¶] [Long period of silence.] Is your answer you just don’t know or
what?’
“Prospective Juror [H.]: ‘Yes, I think they might.’
“The court: ‘You think they might auger toward life without possibility of
parole?’
“Prospective
Juror [H.]: ‘Yes.’
“The court: ‘Are you absolutely committed to that position?’
“Prospective
Juror [H.]: ‘Yes.’
“The court: ‘Are you saying that if there were psychological factors,
without naming what they might be, you would automatically vote for life without
possibility of parole?’
“Prospective Juror [H.]: ‘Without naming them, I don’t think so.’
“The court: ‘All right. [¶] I am not trying to force anybody into an
answer, believe me. I just want to know how you think. As I have told you
earlier, if you are irrevocably committed to life without possibility of parole, you
can’t sit [on the jury in this case]. If the opposite is true, you can’t sit. There are a
number of reasons for that. I am just trying to find out whether you are going to
be in a position to be able to choose or that you feel so strongly about something
that you are really not going to consider anything else. That’s the intent of my
question. That’s for all of you, too. [¶] Any questions, [Ms.] Gray?’
16
“[Defense counsel] Ms. Gray: ‘Yes. [¶] Good morning, Mr. [H.]. [¶] On
[juror written questionnaire] number 46, and I know his honor has already asked
you about this, but you had basically said that you felt that life without possibility
of parole is worse than death. [¶] Do you understand now that after hearing his
honor’s question’s that it might not necessarily be so[?] In other words, when you
hear bad things about say, a person accused of a crime, those are aggravating
factors. And when you hear good things, those are the mitigating factors. And it’s
only when the aggravating factors, those are the bad things, so substantially
outweigh those mitigating factors, that you give death. If it doesn’t so
substantially, you give life. [¶] So do you see that death is like the worst of the
worst?’
“Prospective
Juror [H.]: ‘Yeah.’
“Ms. Gray: ‘When you look at it, in terms of whether or not the
aggravating factors or bad things about the person accused of a crime[, that] is
what you look at it to determine life or death?’
“Prospective
Juror [H.]: ‘Yeah.’
“Ms. Gray: All right. And do you also not understand, and I guess all of
you understand that you are going to be given certain things that you can consider
in determining or making that choice as to whether to give life or death?’
“Prospective
Juror [H.]: ‘Yeah.’
“Ms. Gray: ‘And one of those things that you can consider is maybe a
psychological background. Would you consider that?’
“Prospective
Juror [H.]: ‘Yeah.’
“Ms. Gray: ‘What about whether or not a person has or does not have any
prior felony convictions? Would you consider that?’
“The court: ‘The court’s objection is sustained. He doesn’t know what to
consider at this point, counsel. I have told him to consider all the evidence. If you
17
ask him whether he should consider prior felony convictions, how does he know
whether he can or cannot consider that?’
“Ms. Gray: ‘I would preface that question, if the law states that you can.’
“The court: ‘No. Court’s objection is sustained.’
“Ms. Gray: “I have nothing further.’
“The court: ‘[Ms.] Frohreich.’
“[Prosecutor] Ms. Frohreich: No questions. Thank you, Mr. [H.].’
[¶] . . . [¶]
[The following colloquy was conducted outside the presence of the
prospective jurors.]
“The court: ‘First challenge for cause, who wants to go first?’
“Ms. Frohreich: ‘I will go first. [¶] Mr. [H.]. Psychiatric problems that I
feel makes him, subject to a motion for cause. He admitted to the court that he felt
that there were psychological factors in the background that would [lead him to]
feel life without possibility of parole was the appropriate sentence. And he
indicated when you pressed him, your honor, that he still felt that way, even
though you gave him opportunities to back away from that position. [¶] My
impression of the record is that he did not back away from that position, and he
would not want to impose death if there were ’
“The court: ‘I remember what he said.’
“Ms. Gray: ‘The circumstances in all of his answers, though, he
consistently said that he would consider the factors in all of the evidence as
instructed. And he kept emphasizing “whatever the law says and whatever I am
told. I don’t know the law.” [¶] And I think once he gets the instructions, he
would be able to follow [the law] because he kept emphasizing he would.’
“The court: ‘Okay. . . .’ [¶] . . . [¶] [Discussion involving another
prospective juror.] Mr. [H.][,] I will excuse for cause. I think that his answers
18
were such that I think he would, given background conditions, vote [for life in
prison without possibility of parole]. I think he’s although less articulate [than a
different prospective juror], in the same sort of a ballpark. So Mr. [H.] is out
. . . .”
As noted earlier, the applicable law is clear: a prospective juror properly
may be excluded for cause based upon his or her views concerning the death
penalty only if the juror’s views “would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.” (Wainwright v. Witt, supra, 469 U.S. at p. 424; Adams v. Texas (1980) 448
U.S. 38, 45; see also People v. Cash, supra, 28 Cal.4th at pp. 719-720; People v.
Ochoa (1998) 19 Cal.4th 353, 443; People v. Mincey, supra, 2 Cal.4th at p. 456,
People v. Ghent (1987) 43 Cal.3d 739, 767.) We conclude that the record in this
case does not support excusal for cause under the governing standard.
The People initially contend that the trial court’s excusal of Prospective
Juror H. is supported by the jury questionnaire completed by H. prior to the oral
voir dire examination and, in particular, by H.’s response to one question set forth
in the questionnaire (question No. 46), in which H. expressed the view that
imprisonment for life without the possibility of parole represents a “worse”
punishment than death.
As defendant notes, the jury questionnaire completed by Prospective Juror H.
was lost after the trial and is not a part of the record on appeal, and thus we cannot
review the particular questionnaire answer to which the trial court referred in the
context of H.’s questionnaire responses as a whole, in order to determine whether
other responses may shed additional light on the meaning or significance of the
particular response to which the trial court referred. In any event, however, it is
evident from the transcript of the voir dire quoted above that after the trial court
explained to H. that California law considers death the more serious punishment and
19
that the death penalty can be imposed under California law only if the aggravating
circumstances outweigh the mitigating circumstances, H. did not provide any
indication that his views regarding the death penalty would prevent or significantly
impair him from following the controlling California law. Instead the prospective
juror stated that he would do “whatever the law states.” The record further indicates
that this answer to the questionnaire that life imprisonment without the
possibility of parole was considered to be a worse punishment for a defendant than
death was not an uncommon response from the jury venire as a whole, and,
indeed, from a substantial number of jurors who actually sat on the case.
In view of H.’s clarification of his views during voir dire, we conclude that
his earlier juror questionnaire response, given without the benefit of the trial
court’s explanation of the governing legal principles, does not provide an
adequate basis to support H.’s excusal for cause.
Further, we conclude that H.’s responses to the questions posed by the
court and counsel on voir dire do not support a determination that his views
regarding the death penalty “would prevent or substantially impair the
performance of his duties as a juror” so as to justify his excusal for cause under the
governing precedent of United States Supreme Court decisions. (See Wainwright
v. Witt, supra, 469 U.S. 412, 424.) Despite the trial court’s imprecise questioning,
H. made it quite clear that he would not vote “automatically” — in other words,
“no matter what the evidence showed” — either for life imprisonment without the
possibility of parole or for death, and also that he would not be reluctant to find
the defendant guilty of first degree murder or to find the special circumstances true
“so as to avoid having to face the issue of the death penalty.” When the court
asked whether H. would vote automatically in favor of life imprisonment without
the possibility of parole if there was evidence that the defendant had “past
psychological experiences, bad childhood or abuse,” H. responded, “Well,
20
whatever the law states.” When the court then explained that the law provides
“you can only impose death if the aggravating factors are so substantial in
comparison to the mitigating factors that death is warranted,” but that “[y]ou are
going to have to decide for yourself what those factors are and decide [which]
penalty is appropriate” and asked whether H. felt comfortable doing that, H.
responded that he did. When the court further asked whether “if there were past
psychological factors . . . they would weigh heavily enough that you probably
wouldn’t impose the death penalty,” defendant, after a pause, stated “I think they
might,” but when the court followed up by asking, “Are you saying that if there
were psychological factors, without naming what they might be, you would
automatically vote for life without possibility of parole?” H. responded, “Without
naming them, I don’t think so.”
Nothing in the foregoing responses supported a finding that H.’s views
were such that they would prevent or substantially impair the performance of his
duties as a juror. The circumstance that the existence of “psychological factors”
might influence H.’s determination whether or not the death penalty would be
appropriate in a particular case certainly does not suggest that H. would not
properly be exercising the role that California law assigns to jurors in a death
penalty case. (See People v. Jones (1997) 15 Cal.4th 119, 163, fn. 13, overruled
on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [recognizing
that a challenge for cause “will not lie” in such circumstances].)
In granting the prosecution’s motion to excuse Prospective Juror H. for
cause, the trial court stated: “I think [H.’s] answers were such that I think he
would, given background conditions, vote [for life in prison without possibility of
parole]. I think he’s although less articulate [than another prospective juror], in
the same ballpark. So Mr. [H.] is out . . . .” The trial court’s statement does not
reveal what the court meant by “background conditions,” but in any event the
21
court did not explain what there was in H.’s responses that indicated that he would
not be willing or able to follow the law in determining whether life in prison
without the possibility of parole, or death, was the appropriate punishment in light
of all the evidence presented.
If the trial court remained uncertain as to whether H.’s views concerning the
death penalty would impair his ability to follow the law or to otherwise perform his
duties as a juror, the court was free, of course, to follow up with additional
questions. The prosecutor similarly could have pursued the matter with further
questions. Based upon the responses of Prospective Juror H. set forth in the record,
however, we conclude that there is not substantial evidence to support a
determination that H. harbored views that would prevent or substantially impair the
performance of his duties so as to support his excusal for cause. Accordingly, under
the applicable standard established by the controlling decisions of the United States
Supreme Court, the trial court’s excusal of Prospective Juror H. for cause was error.
Furthermore, the governing high court decisions also establish that
although such an error does not require reversal of the judgment of guilt or the
special circumstance findings, the error does compel the automatic reversal of
defendant’s death sentence, and in that respect the error is not subject to a
harmless-error rule, regardless whether the prosecutor may have had remaining
peremptory challenges and could have excused Prospective Juror H. (See Gray v.
Mississippi, supra, 481 U.S. 648, 666-668 (opn. of the court); id. at pp. 669-672
(conc. opn. by Powell, J.); Davis v. Georgia, supra, 429 U.S. 122, 123; People v.
Ashmus (1991) 54 Cal.3d 932, 962.) Accordingly, we are compelled by these
decisions of the high court to reverse the judgment in the case before us insofar as
it relates to the penalty imposed.
Although such precedent clearly requires that we set aside the penalty, we
note our dismay regarding the adequacy of the trial court’s efforts to fulfill its
22
responsibilities in selecting a jury in this case. Unlike other duties imposed by law
upon a trial court that may call for the rendition of quick and difficult decisions
under unexpected circumstances in the midst of trial, the conduct of voir dire in a
death penalty case is an activity that is particularly susceptible to careful planning
and successful completion. In California, numerous resources exist that assist trial
courts in conducting voir dire in death penalty trials, and in preventing the type of
readily avoidable error that was committed in this case.9 In view of the extremely
9
We therefore take this opportunity to remind the state’s trial courts of the
numerous courses and publications that exist to assist them in properly conducting
voir dire in capital cases. These resources include several made available for
many years by the California Center for Judicial Education and Research (CJER),
a division of the California Administrative Office of the Courts. (See, e.g., in their
recent editions, CJER, Death Penalty Trials (2002) pp. 9-18 [case law pertaining
to jury selection issues, 66-121 [sample juror questionnaire]; CJER, Death Penalty
Benchguide: Pretrial and Guilt Phase (2001) §§ 98.24-98.41, pp. 98-27-98-38;
CJER, Bench Handbook and Jury Management (2001) Jury Selection, pp. 26-40;
see also 5 Witkin & Epstein, Cal. Criminal Law, (3d ed. 2000) sections 460-513,
pp. 657-731; Murray, Cal. Criminal Law and Procedure Institute, Selected Jury
Selection & Management Issues in Criminal Cases (CJER 2003) section 10A,
pp. 10-21; Bennett’s Guide to Jury Selection and Trial Dynamics: Cal. Criminal
Litigation (1995) §§ 18.12-18.14, pp. 527-538.)
The plethora of treatises and handbooks underscores the circumstance that
the trial court’s mishandling of the voir dire examination of Prospective Juror H.
was preventable. Indeed, a review of the foregoing resources provides useful
advice which, had it been followed by the trial court in the present case, could
have obviated the need for this court’s reversal of the penalty phase judgment.
(See, e.g. CJER, Bench Handbook and Jury Management, supra, p. 31 [the court’s
voir dire examination should be comprised of questions that “are simply phrased,”
and the court should “[r]efrain from interrupting the [prospective] jurors during
their answers and give them sufficient time to formulate their answers”]; id., at
p. 39 [the court should ensure “that a complete record be made of why or why not
a challenge for cause was granted”]; CJER, Death Penalty Benchguide: Pretrial
and Guilt Phase, supra, § 98.35, p. 98-35 [“the court should follow up on
ambiguous answers”]; § 98.37, p. 98-36 [“[a prospective] juror who regards [life
imprisonment without possibility of parole] as a worse punishment than death” is
(Footnote continued on next page.)
23
serious consequence — an automatic reversal of any ensuing death penalty
judgment — that results from a trial court’s error in improperly excluding a
prospective juror for cause during the death-qualification stage of jury selection,
we expect a trial court to make a special effort to be apprised of and to follow the
well-established principles and protocols pertaining to the death-qualification of a
capital jury. As the present case demonstrates, an inadequate or incomplete
examination of potential jurors can have disastrous consequences as to the validity
of a judgment. The error that occurred in this case — introducing a fatal flaw that
tainted the outcome of the penalty phase even before the jury was sworn —
underscores the need for trial courts to proceed with special care and clarity in
conducting voir dire in death penalty trials. The circumstance that the error in this
case was committed by a trial judge with substantial experience in criminal law
renders the voir dire examination at issue all the more inexplicable and
disappointing.
The colloquy set forth above shows that, in response to a series of awkward
questions posited by the trial court, Prospective Juror H. indicated he was prepared
to follow the law and had no predisposition one way or the other as to imposition
of the death penalty. Prospective Juror H. generally was clear in his declarations
that he would attempt to fulfill his responsibilities as a juror in accordance with the
court’s instructions and his oath. To the extent H.’s responses were less than
(Footnote continued from previous page.)
not automatically disqualified unless the juror’s views “would prevent the juror
from ‘faithfully and impartially applying the law.’ ”].
24
definitive, such vagueness reasonably must be viewed as a product of the trial
court’s own unclear inquiries.10
Nor do we believe that additional follow-up questions or observations by
the court would have been unduly burdensome: in a capital case that required
more than three weeks, the trial court’s expenditure of another minute or two of
thoughtful inquiries, followed by a somewhat more thorough explanation of its
reasons for excusing or not excusing Prospective Juror H., would have made the
difference between rendering a supportable ruling and a reversible one. But given
the absence of substantial support in the record for the trial court’s ruling, it cannot
stand. Although we accord appropriate deference to determinations made by a
trial court in the course of jury selection, the trial court in the present case has
10
We reject the People’s contention that the “[l]ong period of silence” noted
by the court reporter is supportive of the trial court’s excusal of Prospective Juror
H. As the transcript reveals, the lengthy period of silence to which the People
refer followed a question by the court that asked “Do you think that if there were
past psychological factors that they would weigh heavily enough that you
probably wouldn’t impose the death penalty?” (italics added), and to which the
prospective juror ultimately responded, “Yes, I think they might.” (Italics added.)
Reflection at this point was appropriate. The circumstance that unspecified
psychological factors “probably” or “might” lead a prospective juror not to impose
the death penalty certainly does not provide a basis for excusing the prospective
juror for cause. The law permits consideration of such factors. Had he answered
in the negative, defendant could have challenged him. Further, when the court
followed up by asking “Are you saying that if there were psychological factors,
without naming what they might be, you would automatically vote for life without
possibility of parole?” the prospective juror responded, “Without naming them, I
don’t think so.” In our view, the circumstance that Prospective Juror H. took some
time to think about and respond to the court’s imprecise questioning as to whether
he thought that “if there were past psychological factors” he “probably wouldn’t
impose the death penalty,” provides no legitimate basis for concluding that the
prospective juror’s views would prevent or substantially impair him in performing
his duties.
25
provided us with virtually nothing of substance to which we might properly
defer.11
In view of the per se standard of reversal set forth in the United States
Supreme Court decisions cited above, the validity of the penalty judgment
ultimately rendered against defendant was doomed even before the jury was
empaneled. The penalty phase of the trial thus was rendered a complete waste; for
naught went the parties’ preparation and presentation of their respective penalty
phase cases, the court’s use of its own resources, and the jurors’ performance of
their civic duty in deciding the punishment to be imposed.
When a trial court commits such readily avoidable error under the
circumstances before us, the public perception of justice suffers and the public fisc
is squandered. Now, several years after the original trial commenced, the
prosecution and the defense will be asked to prepare and present their respective
cases, not only strictly concerning the appropriate penalty but also largely
concerning the facts underlying the determination as to guilt in order to
sufficiently inform the new jury, thereby consuming scant governmental resources
and causing witnesses to relive the details of this horrible crime. That such
inefficiencies and renewed anguish were so readily avoidable, and yet were set in
motion here by an experienced jurist, thereby compelling this court to reverse a
penalty phase judgment in a case so exceptionally aggravated, underscores the
11
In the wake of the trial court’s inadequate questioning, one might have
expected the prosecutor to more diligently follow up the court’s examination of
Prospective Juror H. with questions that were more precisely directed toward
identifying H.’s qualms, if any, in order to better ensure the validity of the penalty
phase judgment that ultimately was rendered. Instead, the prosecutor failed to
address a single question to Prospective Juror H.
26
need for our trial courts to redouble their efforts to proceed with great care, clarity,
and patience in the examination of potential jurors, especially in capital cases.
b.
Prospective Juror Q.
Prospective Juror Q. initially indicated she would not automatically vote for
one punishment or the other in the event of a penalty phase trial. During
subsequent voir dire, however, she stated she thought life imprisonment without
the possibility of parole was the more serious alternative. Eventually, the court
excused Q. for cause.
We need not reach the question whether the trial court properly excused
Prospective Juror Q., because defendant’s challenge to the excusal of Prospective
Juror Q. is based solely upon Wainwright v. Witt, supra, 469 U.S. 412, and thus
relates only to the penalty phase, and we already have concluded that in view of
the trial court’s error in dismissing Prospective Juror H. for cause, the penalty
phase judgment must be reversed.
2.
Missing juror questionnaires
As already noted, prior to voir dire the prospective jurors completed
questionnaires, which included questions relating to their views concerning the
death penalty. During jury selection, defense counsel objected that the prosecutor
was exercising peremptory challenges in violation of People v. Wheeler (1978) 22
Cal.3d 258, 276-277, and Batson v. Kentucky (1986) 476 U.S. 79, 89. In
responding to the trial court’s finding of a prima facie showing of impermissible
exclusion, the prosecutor referred in part to answers contained in the
questionnaires as the basis for exercising peremptory challenges with respect to
the prospective jurors at issue. During the process of record correction and
certification, however, the trial court determined that all juror questionnaires had
been lost except those of the jurors actually empaneled, and further found that it
27
was not possible to reconstruct this aspect of the record for a settled statement.
Defendant now contends the loss of the juror questionnaires prejudiced his ability
to obtain meaningful appellate review of the trial court’s rulings relating to his
Wheeler-Batson claim.
Unfortunately, this is not the first occasion before us in which juror
questionnaires have not been preserved for inclusion in the record on appeal. (See
People v. Ayala (2000) 24 Cal.4th 243, 269; People v. Alvarez (1996) 14 Cal.4th
155, 196, fn. 8, both capital cases.) We caution that because of the requirement
that all such documents be made part of the record in capital cases (see Cal. Rules
of Court, rule 39.51 [specifying that “juror questionnaires of all potential jurors”
shall be included within the clerk’s transcript in capital cases]; see also id., former
rule 39.5(c) [generally requiring inclusion of “any other paper or record filed or
lodged with the superior court pertaining to the case”]), all juror questionnaires
must be scrupulously maintained in such cases. Nevertheless, we find no basis for
concluding that the loss of the juror questionnaires requires or warrants reversal of
the judgment in this case.
“A criminal defendant is . . . entitled to a record on appeal that is adequate
to permit meaningful review. . . . The record on appeal is inadequate, however,
only if the complained-of deficiency is prejudicial to the defendant’s ability to
prosecute his appeal. [Citation.] It is the defendant’s burden to show prejudice of
this sort. [Citation.]” (People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.) As in
Alvarez and People v. Ayala, supra, 24 Cal.4th 243, defendant has failed to do so
here. In advancing this issue, defendant does not present any substantive
objection to the trial court’s rejection of his Wheeler-Batson claim as to any
particular prospective juror, but rather contends that it is impossible, without all
the juror questionnaires, to obtain meaningful review of the trial court’s Wheeler-
28
Batson rulings. He proffers three reasons to support this contention, none of
which is meritorious.
First, he asserts that it is impossible to know the race of the excluded
prospective jurors because that information was contained in the missing
questionnaires and was not made part of the record during jury selection.
However, after some discussion of which prospective jurors were Black and
therefore included in the Wheeler-Batson claim, the prosecutor specified those
potential jurors she understood were at issue and provided race-neutral
explanations for her exercise of peremptory challenges to these jurors. Defense
counsel at no time indicated that the excusal of any additional prospective jurors
should be addressed. Under these circumstances, defendant may not properly
maintain on appeal that the record does not adequately disclose the prospective
jurors who were the subject of the Wheeler-Batson claim.
Second, defendant notes the prosecutor referred to the questionnaires in
responding to the trial court’s finding of a prima facie case. Without the actual
documents, he implies, it is not possible to obtain adequate review of the
justifications put forth by the prosecutor. As with the racial identification
information, however, the record contains no contradiction from defense counsel
or the court as to the prosecutor’s representation of the contents of the juror
questionnaires that led her to excuse the prospective jurors in question. Although
defense counsel justifiably could assume that the questionnaires ultimately would
become part of the record on appeal, this circumstance did not relieve counsel of
the obligation to bring to the trial court’s attention any disagreement with the
prosecutor’s representations as to the content of the questionnaires. (Cf. People
v. Vera (1997) 15 Cal.4th 269, 275-276 [as a general rule, the failure to object in
trial court waives claim of error on appeal].)
29
In this regard, “[b]oth Wheeler and Batson profess confidence in the ability
of the trial courts to determine the sufficiency of the prosecutor’s showing. In
Wheeler, we said that we will ‘rely on the good judgment of the trial courts to
distinguish bona fide reasons for such peremptories from sham excuses belatedly
contrived to avoid admitting acts of group discrimination.’ [Citation.] The court
indicated likewise in Batson. [Citation.] The trial court, however, must make ‘a
sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of
the circumstances of the case as then known, his knowledge of trial techniques,
and his observations of the manner in which the prosecutor has examined
members of the venire and has exercised challenges for cause or peremptorily. . . .’
[Citation.]” (People v. Johnson (1989) 47 Cal.3d 1194, 1216.) The record reflects
the trial court made such an attempt in passing on the prosecutor’s justifications.
In the absence of any indication from defense counsel at the time of the trial
court’s ruling that the prosecutor was misrepresenting the contents of the
questionnaires upon which the prosecutor relied, we have no reason to question
the trial court’s acceptance of the prosecutor’s race-neutral explanations as
genuine.
Finally, defendant contends the questionnaires are necessary to enable this
court to compare the voir dire of those prospective jurors who were excused by the
prosecutor in alleged violation of Wheeler-Batson with the prosecutor’s exercise
or nonexercise of peremptory challenges as to other prospective jurors. We
recently addressed the subject of employing comparative juror analysis in the
Wheeler-Batson context. (People v. Johnson (2003) 30 Cal.4th 1302, 1318-1325.)
After thorough consideration of both our own precedents and federal authority,
including Miller-El v. Cockrell (2003) 537 U.S. 322 [123 S.Ct. 1029], we held in
Johnson “that engaging in comparative juror analysis for the first time on appeal is
unreliable and inconsistent with the deference reviewing courts necessarily give to
30
trial courts . . . .” (Johnson, supra, 30 Cal.4th at p. 1318.) Although the trial court
and the objecting party may rely at trial on comparative juror analysis in
evaluating whether a prima facie case has been established and whether the
prosecutor’s proffered reasons are legitimate and genuine (id. at pp. 1324-1325),
in the absence of any reliance upon comparative juror analysis in the trial court it
is inappropriate for a reviewing court to second-guess Wheeler-Batson rulings on
that basis. (Ibid.; see also id. at p. 1331 (dis. opn. of Kennard, J.).) Here, neither
the trial court nor defense counsel engaged in any comparative juror analysis at
trial, and thus defendant may not raise this claim on appeal.
Accordingly, defendant has failed to demonstrate that he suffered prejudice
as the result of the trial court’s preservation of only those questionnaires of the
individuals who actually were selected to serve as jurors.
B.
ADMISSION OF PHOTOGRAPHS
At a pretrial hearing, the prosecution offered into evidence numerous
photographs that depicted the crime scene and the victim’s body. The
photographs were organized as follows: Exhibit 4 contained 14 photographs of
the crime scene, as well as a photograph of Katrina’s body, as initially
encountered by paramedics and sheriff’s deputies; exhibit 5 contained 11
photographs that depicted Katrina’s face and head as discovered wrapped in a
bloody garment and unwrapped to reveal her wounds; exhibit 6 contained 11
photographs depicting Katrina’s head and chest injuries. Defendant objected to
the introduction of the photographs on the grounds that the images were irrelevant
and, even if relevant, their prejudicial impact outweighed their probative value.
(Evid. Code, § 352.) He also contended that certain photographs were cumulative.
The trial court rejected defendant’s objection and admitted the photographs. On
31
appeal, defendant renews his challenge to these photographs on the grounds
asserted below.12
As we shall explain, defendant’s challenge is without merit.
In reviewing the ruling of the trial court, we reiterate the well-established
principle that “the admissibility of this evidence has two components: (1) whether
the challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence
Code section 210, and (2) if the evidence was relevant, whether the trial court
abused its discretion under Evidence Code section 352 in finding that the
probative value of the [evidence] was not substantially outweighed by the
probability that its admission would create a substantial danger of undue
prejudice.” (People v. Scheid (1997) 16 Cal.4th 1, 13.) We address these issues in
turn.
1.
The Photographs Were Relevant
“The rules pertaining to the admissibility of photographic evidence are
well-settled. Only relevant evidence is admissible (Evid. Code, § 350; People v.
Crittenden[, supra,] 9 Cal.4th 83, 132; People v. Garceau (1993) 6 Cal.4th 140,
176-177; People v. Babbitt (1988) 45 Cal.3d 660, 681), and all relevant evidence
12
At trial, defendant objected to one other item of photographic evidence,
exhibit 12, a videotape made by investigators showing the crime scene as they
encountered it. The trial court overruled the objection and the jury viewed the
tape, which ran approximately five minutes in length. Defendant on appeal does
not renew his objection to the videotape.
For the first time on appeal, defendant contends that the trial court’s ruling
admitting the photographs into evidence violated his state and federal
constitutional rights, including his rights to due process and a reliable penalty
determination under the Eighth and Fourteenth Amendments. Because defendant
failed to interpose an objection on these grounds at trial, this claim was not
preserved and may not be raised on appeal. (See People v. Anderson (2001) 25
Cal.4th 543, 592, fn. 17; People v. Ramos (1997) 15 Cal.4th 1133, 1170.)
32
is admissible unless excluded under the federal or California Constitution or by
statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).) Relevant
evidence is defined in Evidence Code section 210 as evidence ‘having any
tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.’ The test of relevance is whether the evidence
tends ‘ “logically, naturally, and by reasonable inference” to establish material
facts such as identity, intent, or motive. [Citations.]’ (People v. Garceau, supra,
6 Cal.4th at p. 177.) The trial court has broad discretion in determining the
relevance of evidence (ibid.; People v. Crittenden, supra, 9 Cal.4th at p. 132;
People v. Babbitt, supra, 45 Cal.3d at p. 681) but lacks discretion to admit
irrelevant evidence. (People v. Crittenden, supra, 9 Cal.4th at p. 132; People v.
Burgener (1986) 41 Cal.3d 505, 527.)” (People v. Scheid, supra, 16 Cal.4th 1,
13-14.)
Defendant contends that the photographs “had little or no probative value
relating to any issue in this case.” He argues that although the issue of his “intent
(or lack thereof) at the time the sexual assaults and homicide were committed
[was] very much in dispute, none of the photographs had any tendency in reason
to prove that these offenses were in any way preplanned or intentional as opposed
to being impulsive acts committed in the heat of passion and under the influence
of cocaine and alcohol.” Defendant adds that the photographs were inadmissible
to establish the cause of death or the nature of Katrina’s injuries, because he
“never contested these points.”
The People contend in response that the photographs were relevant to show
defendant’s mental state on the night of the murder, and that because the
prosecution was required to prove premeditation and deliberation, the images were
relevant to show the manner in which the crimes were committed. The People
33
maintain that the trial court acted within its discretion in admitting the challenged
photographs, and also that the photographs were not cumulative.
As we shall explain, we conclude that the photographs were clearly relevant
within the meaning of Evidence Code section 210.
First, as the prosecution argued at trial, the photographs were relevant to
establish the injuries suffered by Katrina, the savageness of the attack, and the
ferocious nature of the struggle. These images illustrated the testimony of various
prosecution witnesses who encountered the victim and viewed the crime scene.
(See People v. Scheid, supra, 16 Cal.4th 1, 15 [photograph was corroborative of
witnesses’ testimony regarding the circumstances of the crime, and the shocking
crime scene encountered; thus, photograph bolstered the witnesses’ credibility];
People v. Garceau, supra, 6 Cal.4th 140, 181 [photograph of mummified victims
hidden within a dresser was highly probative, because it corroborated testimony
relating to concealment of the bodies]; People v. Pride (1992) 3 Cal.4th 195, 243
[“the photographs were pertinent because they showed the nature and the
placement of the fatal wounds”]; People v. Allen (1986) 42 Cal.3d 1222, 1256
[nine photographs of victims were “clearly relevant” to corroborate witnesses’
testimony “concerning the location and manner in which the victims were shot”];
accord, People v. Taylor (2201) 26 Cal.4th 1155, 1168; see also People v. Hughes
(2002) 27 Cal.4th 287, 335-337; People v. Sanders (1990) 51 Cal.3d 471, 514-
515.) The circumstance that defendant did not challenge the prosecution’s theory
that the attack upon Katrina was a vicious one “does not render victim
photographs irrelevant.” (People v. Lewis (2001) 25 Cal.4th 610, 641.)
Further, the parties vigorously disputed defendant’s mental state at the time
the crimes were committed. The condition of the victim’s body and evidence of
defendant’s sexual assault therefore were important in establishing the People’s
case. Thus, for example, the photographs contained in exhibit 4 that depicted the
34
footprint marks found on Katrina’s chest and abdomen and the bottle of rubbing
alcohol found protruding from her mouth, were probative of the prosecution’s
theory that defendant’s capacity to premeditate and deliberate was evidenced by
his attempt to force her to regurgitate the amputated portion of his tongue.
Second, the photographs of the crime scene, showing Katrina’s body as it
was found by paramedics and sheriff’s deputies, “was relevant in establishing the
fact that a murder had occurred.” (People v. Scheid, supra, 16 Cal.4th at p. 15;
People v. Taylor, supra, 26 Cal.4th at p. 1168; People v. Seaton (2001) 26 Cal.4th
598, 655.) “The circumstance that other evidence existed to establish the murder
did not render the photograph irrelevant for purposes of Evidence Code sections
210 and 350.” (People v. Scheid, supra, 16 Cal.4th at p. 15.)
Third, the photographs were relevant because they established the means by
which defendant accomplished the fatal assault. (See People v. Farnam (2002) 28
Cal.4th 107, 185 [“ ‘Generally, photographs that show the manner in which a
victim was wounded are relevant to the determination of malice, aggravation and
penalty’ ”]; see also People v. Lucas (1995) 12 Cal.4th 415, 450 [photographs
admissible to illustrate, among other matters, “intent to kill, deliberation and the
torture element of the torture-murder special circumstance”].) Further, the
photographs were probative of the allegations involving the infliction of great
bodily injury and torture. In particular, the images contained within exhibit 5
illustrated Katrina’s injuries, and some of the photographs were referred to by the
coroner during his testimony concerning the fatal blows and strangulation suffered
by Katrina. The photographs contained within exhibit 6 depicted the bite marks
around Katrina’s breasts, which illustrated certain aspects of the forensic dentist’s
testimony intended to identify the perpetrator.
Although it is true that the prosecution could have relied upon other
evidence to establish the matter at issue, “it is immaterial for purposes of
35
determining the relevance of evidence that other evidence may establish the same
point.” (People v. Scheid, supra, 16 Cal.4th 1, 16; see also People v. Anderson,
supra, 25 Cal.4th 543, 592 [“[P]hotos are not cumulative simply because they
illustrate evidence presented by other means.”] In re Romeo C. (1995) 33
Cal.App.4th 1838, 1843 [“Evidence may be relevant even though it is cumulative;
thus, the only ban on cumulative evidence is found in Evidence Code section
352.”] .) Nor were the photographs somehow rendered irrelevant simply because
defendant did not dispute the cause of death or the nature and extent of the
victim’s injuries. (See People v. Box (2000) 23 Cal.4th 1153, 1199; People v.
Smithey (1999) 20 Cal.4th 936, 973-974.) Moreover, “the jury was entitled to see
the physical details of the crime scene and the injuries defendant inflicted on his
victim[].” (People v. Weaver (2001) 26 Cal.4th 876, 933; see also People v.
Crittenden, supra, 9 Cal.4th 83, 133; People v. Pride, supra, 3 Cal.4th 195, 243.)
In sum, the photographs clearly satisfied the relevancy requirement
embodied in Evidence Code section 210. We therefore conclude that the trial
court did not err in finding that the photographs constituted relevant evidence.
2.
The Photographs Were Not Unduly Prejudicial
As noted above, defendant contends that even if the photographs
constituted relevant evidence, the trial court nevertheless erred in denying his
motion to exclude this evidence pursuant to Evidence Code section 352.
Defendant maintains that the photographs were gruesome and likely to inflame the
passions of the jury. The People disagree with defendant’s characterization and
contend the trial court did not abuse its discretion in finding that the probative
value of the photographs outweighed any potential prejudice. As we shall explain,
we find no abuse of discretion.
“The admission of photographs of a victim lies within the broad discretion
of the trial court when a claim is made that they are unduly gruesome or
36
inflammatory. [Citations.] The court’s exercise of that discretion will not be
disturbed on appeal unless the probative value of the photographs clearly is
outweighed by their prejudicial effect. [Citations.]” (People v. Crittenden, supra,
9 Cal.4th at pp. 133-134.)
As noted, the photographs served to illustrate and corroborate the testimony
given by various prosecution witnesses regarding the circumstances of the crime.
In depicting the crime scene and, more specifically, the wounds suffered by the
victim, the photographs illustrated the brutal nature of the attack upon Katrina.
“[I]nsofar as defendant is contending that the trial court was required to exclude
the photograph[s] under Evidence Code section 352 because th[e] physical
evidence was cumulative of the testimonial evidence presented, the trial court
correctly rejected defendant’s argument. (See People v. Wilson (1992) 3 Cal.4th
926, 938 [‘ “[W]e have often rejected the argument that photographs of a murder
victim should be excluded as cumulative if the facts for which the photographs are
offered have been established by testimony.” ’]; accord, People v. Kaurish (1990)
52 Cal.3d 648, 684; People v. Thompson (1988) 45 Cal.3d 86, 115.)” (People v.
Scheid, supra, 16 Cal.4th 1, 19.)
As to whether the photographs had an unduly prejudicial effect, we note
that “[w]e have described the ‘prejudice’ referred to in Evidence Code section 352
as characterizing evidence that uniquely tends to evoke an emotional bias against a
party as an individual, while having only slight probative value with regard to the
issues. (People v. Garceau, supra, 6 Cal.4th 140, 178.) As we previously have
observed, victim photographs and other graphic items of evidence in murder cases
always are disturbing. (People v. Hendricks (1987) 43 Cal.3d 584, 594.)”
(People v. Crittenden, supra, 9 Cal.4th at p. 134; accord, People v. Fierro (1991)
1 Cal.4th 173, 223.) Here, the photographs portray the results of defendant’s
violent conduct; that they are graphic and unpleasant to consider does not render
37
the introduction of those images unduly prejudicial. (See People v. Navarette
(2003) 30 Cal.4th 458, 496 [rejecting the defendant’s contention that the “sexually
suggestive nature” of photographs taken of the victim rendered them unduly
prejudicial, and holding that “[w]hen the victim of a murder has been stabbed
directly between the breasts and left with her pants and underwear around her
ankles, the defendant cannot complain that the jury is exposed to images of her
nudity.”]; see also People v. Riel (2000) 22 Cal.4th 1153, 1194 [“The fact that the
exhibits involved blood was due to the crime, not the court’s rulings.”].)
Our independent review of the photographs and the crime scene videotape
introduced at the trial convinces us that, although not easy to look at, they are not
unduly gory or inflammatory. (See, e.g., People v. McDermott (2002) 28 Cal.4th
946, 998; People v. Michaels (2002) 28 Cal.4th 486, 531-532; People v.
Anderson, supra, 25 Cal.4th 543, 590-592; People v. Pride, supra, 3 Cal.4th 195,
243, People v. Fierro, supra, 1 Cal.4th 173, 223; People v. Kelly (1990) 51 Cal.3d
931, 963; People v. Turner (1990) 50 Cal.3d 668, 707; People v. Coleman (1988)
46 Cal.3d 749, 776.) The photographs, while unquestionably unpleasant, do not
appear to be of the sort that might inflame a jury. (See, e.g., People v. Turner
(1984) 37 Cal.3d 302, 320, 321, and fn. 9, overruled on another ground in People
v. Anderson (1987) 43 Cal.3d 1104, 1149-1150 [upholding trial court’s finding
that four crime scene photographs, which included a photograph of one victim’s
head in a large pool of blood and of another victim lying face up with bleeding
wounds, were “not gruesome”]; see also People v. Allen, supra, 42 Cal.3d 1222,
1258 [victims’ bodies were not depicted “in a badly decomposed condition . . . or
after they had been grossly disfigured during autopsy”].)13
13
The five cases relied upon by defendant are distinguishable and do not
persuade us that the trial court erred in admitting into evidence the photographs in
(Footnote continued on next page.)
38
Moreover, as we observed in People v. Scheid, supra, 16 Cal.4th 1, 20, “the
trial court clearly and properly could find that the photograph[s were] not so
gruesome as to have impermissibly swayed the jury ‘in light of the testimony
detailing each and every fact relating to the crime scene and victims.’” As noted
above, various witnesses for the prosecution testified in detail as to what they
observed when they first encountered Katrina’s body. (See People v. Allen, supra,
42 Cal.3d 1222, 1258 [observing that the inflammatory nature of nine photographs
“was relatively slight in comparison with the heinous nature of the crime presented
to the jury through the testimony of witnesses”].)
Nor, contrary to defendant’s assertion, were the photographs unduly
prejudicial on the ground they were cumulative by reason of their corroboration of
facts independently established by testimony. (See, e.g., People v. Hart (1999) 20
Cal.4th 546, 616 [upholding the trial court’s ruling admitting into evidence 16
photographic slides, three photographs, and one videotape]; People v. Medina
(1995) 11 Cal.4th 694, 754-755; People v. Price (1991) 1 Cal.4th 324, 441, and
(Footnote continued from previous page.)
question. (See People v. Poggi (1988) 45 Cal.3d 306, 322-323 [one photograph of
victim while alive and another showing an autopsy incision were deemed
irrelevant to any disputed material fact]; People v. Gibson (1976) 56 Cal.App.3d
119, 134-135 [photographs were deemed to represent “cumulative evidence of
slight relevancy”]; People v. Smith (1973) 33 Cal.App.3d 51, 68-69 [“the record
does not reveal what evidentiary purpose was expressed by the district attorney in
presenting these pictures to the jury”], disapproved on other grounds in People v.
Wetmore (1978) 22 Cal.3d 318, 325; People v. Burns (1952) 109 Cal.App.2d 524,
541 [admitting into evidence postautopsy photographs of uncertain probative
value deemed to have been an abuse of discretion].) In a fifth case, also involving
an autopsy photograph, this court concluded that the image lacked probative value
when introduced at the penalty phase. (People v. Love (1960) 53 Cal.2d 843,
856.)
39
cases cited therein; see also People v. Thompson, supra, 45 Cal.3d 86, 115 [“Even
somewhat cumulative photographic evidence may be admitted if relevant”].)
Finally, even if the photographs engendered a disturbing response among
the jurors, we believe the risk defendant would be prejudiced by that response was
minimal, because the jury knew defendant had committed the acts described by
the witnesses who had appeared before them.
In sum, we conclude that the trial court reasonably could determine that the
probative value of the photographic evidence outweighed its potentially
prejudicial effect. We thus determine that the trial court did not abuse its
discretion under Evidence Code section 352 in admitting the photographs into
evidence. (People v. Crittenden, supra, 9 Cal.4th at p. 134; People v. Wilson,
supra, 3 Cal.4th at p. 938; People v. Mickey (1991) 54 Cal.3d 612, 656; People v.
Cox (1991) 53 Cal.3d 618, 666; People v. Benson (1990) 52 Cal.3d 754, 786.).
3.
Even if the Trial Court Erred, No Prejudice Occurred
Even if we were to agree with defendant that the trial court erred in
admitting the photographic evidence in question, we nonetheless would conclude
that any error in admitting such evidence was harmless under the Watson standard.
(See People v. Allen, supra, 42 Cal.3d 1222, 1258, applying the standard of
People v. Watson (1956) 46 Cal.2d 818, 836.)
“Under the Watson standard, the erroneous admission of a photograph
warrants reversal of a conviction only if the appellate court concludes that it is
reasonably probable the jury would have reached a different result had the
photograph been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.)”
(People v. Scheid, supra, 16 Cal.4th 1, 21.) The photographs at issue did not
disclose to the jury any information that was not presented in detail through the
testimony of witnesses. Although the photographs were unpleasant, they were not
unusually disturbing or unduly gruesome, and were no more inflammatory than
40
the graphic testimony provided by a number of the prosecution’s witnesses.
Under these circumstances, we conclude it is not reasonably probable that the
admission of the photographs affected the jury’s verdict. (People v. Gurule (2002)
28 Cal.4th 557, 625; People v. Allen, supra, 42 Cal.3d at p. 1258.)
C.
INSTRUCTIONAL ISSUES
1.
Reasonable doubt instruction
Defendant contends the standard reasonable doubt instruction used at his
trial — former CALJIC No. 2.90 — unconstitutionally permitted the jurors to take
into account moral considerations in determining his guilt.14 As he acknowledges,
however, the United States Supreme Court has sustained the language of former
CALJIC No. 2.90 against constitutional challenge (Victor v. Nebraska (1994) 511
U.S. 1, 6, affg. People v. Sandoval (1992) 4 Cal.4th 155, 185-186) even though
the high court expressed concerns regarding the wording of the instruction, and
this court consistently has affirmed the validity of the instruction. (People
14
In relevant part, the court instructed defendant’s jury that “A defendant in a
criminal action is presumed to be innocent until the contrary is proved, and in case
of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a
verdict of not guilty. This presumption places upon the People the burden of
proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined
as follows: it is not a mere possible doubt; because everything relating to human
affairs, and depending upon moral evidence is open to some possible or imaginary
doubt. It is that state of the case which, after the entire comparison and
consideration of all of the evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction, to a moral certainty, of the
truth of the charge.”
CALJIC No. 2.90 now provides in part: “Reasonable doubt is defined as
follows: It is not a mere possible doubt; because everything relating to human
affairs is open to some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all of the evidence, leaves
the minds of the jurors in that condition that they cannot say they feel an abiding
conviction of the truth of the charge.”
41
v. Lewis (2001) 25 Cal.4th 610, 651-652; People v. Staten (2000) 24 Cal.4th 434,
456.) Defendant has not submitted any argument that would undermine these
decisions.
2.
Circumstantial evidence instruction
Defendant also raises a constitutional objection to the circumstantial
evidence instructions set forth in CALJIC Nos. 2.00 and 2.01,15 which he
15
Those instructions as given provided as follows: “Evidence is either direct
or circumstantial.
“Direct evidence is evidence that directly proves a fact without the
necessity of an inference. It is evidence which by itself, if found to be true,
establishes a fact.
“Circumstantial evidence is evidence that, if found to be true, proves a fact
from which an inference of the existence of another fact may be drawn.
“It is not necessary that facts be proved by direct evidence. They may be
proved also by circumstantial evidence or by a combination of direct evidence and
circumstantial evidence. Both direct evidence and circumstantial evidence are
acceptable means of proof; neither is entitled to any greater weight than the other.
“However, a finding of guilt as to any crime may not be based on
circumstantial evidence unless the proved circumstances are not only consistent
with the theory that the defendant is guilty of a crime, but cannot be reconciled
with any other rational conclusion.
“Further, each fact which is essential to complete a set of circumstances
necessary to establish the defendant’s guilt must be proved beyond a reasonable
doubt. In other words, before an inference essential to establish guilt may be
found to have been proved beyond a reasonable doubt, each fact or circumstance
upon which such inference necessarily rests must be proved beyond a reasonable
doubt.
“Also, if the circumstantial evidence as to any particular count . . . is
susceptible of two reasonable interpretations, one of which points to the
defendant’s guilt, the other to his innocence, you must adopt that interpretation
which points to the defendant’s innocence and reject that interpretation which
points to his guilt.
“If on the other hand, one interpretation of such evidence appears to you to
be reasonable and the other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.”
42
contends permit the jury to draw factual inferences “without making the
constitutionally required additional judgment that the inferred fact was more likely
than not to follow from the proved fact.” Thus, he argues, these instructions
conflict with the presumption of innocence, the guarantee of due process of law,
and the requirement of proof beyond a reasonable doubt.
In response to similar arguments, we previously have concluded that these
instructions are not constitutionally defective when viewed as a whole and read in
conjunction with the reasonable doubt instruction. (People v. Bradford (1997) 14
Cal.4th 1005, 1054; People v. Wilson, supra, 3 Cal.4th 926, 942-943.) Defendant
urges us to reconsider this determination in light of his argument that the
reasonable doubt instruction is “hopelessly confusing.” Because we disagree with
this assessment of former CALJIC No. 2.90, we decline to do so.
3.
Lesser included offense instructions
The trial court instructed on first degree premeditated and felony murder
and implied-malice second degree murder. Defendant contends it erred in failing
additionally to instruct the jury sua sponte on the lesser included offense of
involuntary manslaughter, as to which defendant contends the jury properly could
have found him guilty, based upon evidence that defendant ingested cocaine and
alcohol prior to the sexual assault and murder of Katrina and as a result “was not
conscious of what he was doing.”
“ ‘[A] defendant has a constitutional right to have the jury determine every
material issue presented by the evidence [, and] . . . an erroneous failure to instruct
on a lesser included offense constitutes a denial of that right . . . .’ [Citations.] To
protect this right and the broader interest of safeguarding the jury’s function of
ascertaining the truth, a trial court must instruct on lesser included offenses, even
in the absence of a request, whenever there is substantial evidence raising a
question as to whether all of the elements of the charged offense are present.
43
[Citations.] ‘Substantial evidence is evidence sufficient to “deserve consideration
by the jury,” that is, evidence that a reasonable jury could find persuasive.’
[Citation.]” (People v. Lewis, supra, 25 Cal.4th at p. 645.) Involuntary
manslaughter ordinarily is considered a lesser included offense of murder. (See
People v. Ochoa, supra, 19 Cal.4th 353, 422.)
Defendant predicates his argument on the testimony of defense witness Dr.
Aniline that he was suffering from cocaethylene syndrome — as a result of the
combined effects of cocaine and alcohol — and that “it was reasonably inferable
that in his intoxicated state he was unaware of, and thus unable to control, his
behavior.” Defendant asserts that in view of his prior relationship with the victim,
during which he never had made any inappropriate sexual advances toward her,
and his protective attitude toward her, “the jury certainly could have found” that
he “ ‘must’ have been literally ‘out of his mind’ and ‘unconscious’ of what he was
doing” when he committed the crimes against her.
Involuntary manslaughter includes criminally negligent homicide. (§ 192,
subd. (b); People v. Ochoa, supra, 19 Cal.4th 353, 423.) “When a person renders
himself or herself unconscious through voluntary intoxication and kills in that
state, the killing is attributed to his or her negligence in self-intoxicating to that
point, and is treated as involuntary manslaughter.” (Ochoa, at p. 423.) Although
unconsciousness in this context “ ‘can exist . . . where the subject physically acts
in fact but is not, at the time, conscious of acting’ ” (People v. Kelly (1973) 10
Cal.3d 565, 572), the record in the present case fails to reflect substantial evidence
that defendant’s ingestion of cocaine and alcohol rendered him unconscious.
Most significantly, Dr. Aniline did not indicate defendant was unconscious
at the time of the attack on Katrina, but rather testified only that defendant’s drug
consumption may have impaired his judgment and precipitated a “frenzied state”
rather than deliberate behavior. Furthermore, other circumstances, including the
44
manner of the killing and defendant’s own statements prior to the crimes, are
inconsistent with any suggestion that defendant was unconscious when he
committed the acts in question. At Mattie McAlister’s party, when Cheryl Bailey
rebuffed his advances, defendant proclaimed that he was “going to kill a bitch.”
He then proceeded to the Browns’ apartment where he engaged in an hour-long
assault, during which time neighbors heard the victim’s intermittent screams and
crying. Particularly revealing of defendant’s state of mind were his efforts to
retrieve the amputated piece of his tongue that he apparently believed Katrina had
swallowed and to remove fingerprints from the baseball bats. In sum, the
evidence failed in all respects to support a finding of unconsciousness, and the
trial court did not err in declining to instruct the jury on involuntary manslaughter.
(See People v. Ochoa, supra, 19 Cal.4th at p. 424.)
Moreover, the jury was instructed that in order to find defendant guilty of
specified sexual offenses, it had to determine that he acted with specific intent, and
that it should consider the effect of his intoxication in deciding whether he acted
with the requisite mental state. In convicting defendant of these sexual offenses,
the jury necessarily determined that defendant formed the requisite specific intent
despite his consumption of drugs and alcohol. In view of this finding, the jury
could not have concluded he was unconscious and therefore guilty only of
involuntary manslaughter. Thus, even if the court had erred in its instructions, we
would find that such error was clearly harmless. (See People v. Earp (1999) 20
Cal.4th 826, 884-886.)
D. CUMULATIVE
ERROR
Defendant contends that the cumulative effect of the guilt phase errors
asserted was sufficient to warrant reversal regardless of the prejudicial impact of
any single error. Having determined that no error occurred at the guilt phase, we
conclude that this contention lacks merit as well.
45
E.
CONSTITUTIONALITY OF CALIFORNIA’S DEATH
PENALTY STATUTES
Defendant’s contentions pertaining to the penalty phase judgment are
limited to a series of challenges to the constitutionality of California’s death
penalty statutes — arguing in various respects that they violate the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution and article I,
section 17, of the California Constitution. Because we have concluded that the
erroneous excusal of Prospective Juror H. for cause compels reversal of
defendant’s death sentence, we need not address these issues.
III. CONCLUSION
The judgment is affirmed as to the guilt verdicts and the special
circumstance findings, but is reversed as to the sentence of death. The case is
remanded to the trial court for a new penalty trial before a properly selected jury.
GEORGE, C.J.
WE CONCUR:
KENNARD, J.
WERDEGAR, J.
MORENO, J.
46
CONCURRING AND DISSENTING OPINION BY BROWN, J.
I concur in the majority’s determination to affirm the jury’s guilty verdict
and special circumstance findings.
I cannot agree, however, that the trial court erred in excusing Prospective
Juror H. for cause. I find the record fairly supports—and thus requires deference
to—the court’s implicit determination that H.’s views on the death penalty would
sufficiently interfere with his duties as a juror to warrant excusal.
In
Wainwright v. Witt (1985) 469 U.S. 412 (Witt), the United States
Supreme Court reconsidered language in Witherspoon v. Illinois (1968) 391 U.S.
510, to the effect that prospective jurors may be excused for cause if they make it
“unmistakably clear (1) that they would automatically vote against the imposition
of capital punishment without regard to any evidence that might be developed at
the trial of the case before them, or (2) that their attitude toward the death penalty
would prevent them from making an impartial decision as to the defendant’s
guilt.” (Id. at p. 522, fn. 21.) This standard had tended to be applied in formulaic
terms, with “lower courts stat[ing] that a veniremember may be excluded only if
he or she would ‘automatically’ vote against the death penalty, and even then this
state of mind must be ‘unambiguous,’ or ‘unmistakably clear.’ [Citation.]” (Witt,
at p. 419.)
1
In
Witt, the high court rejected such a narrow and formalistic approach and
discarded the Witherspoon formulation. It held instead that a trial court may
excuse a prospective juror for cause whenever “the juror’s views would ‘prevent
or substantially impair the performance of his duties as a juror in accordance with
his instructions and his oath.’ ” (Witt, supra, 469 U.S. at p. 424, fn. omitted.) The
court further emphasized that “in addition to dispensing with Witherspoon’s
reference to ‘automatic’ decisionmaking, this standard likewise does not require
that a juror’s bias be proved with ‘unmistakable clarity.’ This is because
determinations of juror bias cannot be reduced to question-and-answer sessions
which obtain results in the manner of a catechism. What common sense should
have realized experience has proved: many veniremen simply cannot be asked
enough questions to reach the point where their bias has been made ‘unmistakably
clear’; these veniremen may not know how they will react when faced with
imposing the death sentence, or may be unable to articulate, or may wish to hide
their true feelings. Despite this lack of clarity in the printed record, however, there
will be situations where the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially apply the law. . . .
[T]his is why deference must be paid to the trial judge who sees and hears the
juror.” (Id. at pp. 424-425, fn. omitted.)
With respect to deference, the court explained: “[T]he question whether a
venireman is biased has traditionally been determined through voir dire
culminating in a finding by the trial judge concerning the venireman’s state of
mind. . . . [S]uch a finding is based upon determinations of demeanor and
credibility that are peculiarly within a trial judge’s province. Such determinations
were entitled to deference even on direct review [as well as federal habeas corpus
proceedings].” (Witt, supra, 469 U.S. at p. 428, fn. omitted.) While the trial judge
applies a legal standard in resolving challenges for cause, “his predominant
2
function in determining juror bias involves credibility findings whose basis cannot
be easily discerned from an appellate record.” (Id. at p. 429; see also Darden v.
Wainwright (1986) 477 U.S. 168, 175-178; Patton v. Yount (1984) 467 U.S. 1025,
1038.) Indeed, as the court had observed as early as Reynolds v. United States
(1878) 98 U.S. 145, 156-157, “ ‘[T]he manner of the juror while testifying is
oftentimes more indicative of the real character of his opinion than his words.
That is seen below, but cannot always be spread upon the record. Care should,
therefore, be taken in the reviewing court not to reverse the ruling below upon
such a question of fact, except in a clear case.’ ” (Witt, supra, at p. 428, fn. 9,
quoting Reynolds, at pp. 156-157.)
In applying the constitutional standard of Witt, this court has also
consistently accorded the same measure of deference in reviewing excusals for
cause. (See, e.g., People v. Crittenden (1994) 9 Cal.4th 83, 122-123; People
v. Ghent (1987) 43 Cal.3d 739, 768.) “On appeal, we will uphold a trial court’s
ruling on a challenge for cause by either party ‘if it is fairly supported by the
record, accepting as binding the trial court’s determination as to the prospective
juror’s true state of mind when the prospective juror has made statements that are
conflicting or ambiguous.’ [Citations.]” (People v. Bolden (2002) 29 Cal.4th 515,
537.)
Reviewing the record in light of the foregoing principles, I conclude the
trial court did not err in excusing Prospective Juror H. for cause. In making its
ruling, the court focused on H.’s views regarding “background conditions.”
During voir dire, the court noted that H. had referred in his juror questionnaire to
“past psychological experiences” as a basis for imposing life without possibility of
parole—which H. considered the more serious punishment—and sought to clarify
his views. The following colloquy then ensued:
3
“THE COURT: . . . Assuming there were past psychological experiences,
bad childhood or abuse or something else, I don’t know whether any of that is
going to come out, but assuming that thing occurred, would you be automatically
in favor of life without possibility of parole as opposed to the death penalty
because of those factors?
“PROSPECTIVE JUROR [H.]: Well, whatever the law states.
“THE COURT: The law is not going to help you a whole lot in weighing
the evidence and deciding the penalty. That is, the law is going to give you the
two options. And the law is going to tell you that you must consider all the
evidence that’s in. And then you must look at the aggravating and mitigating
factors.
“PROSPECTIVE JUROR [H.]: Uh-huh.
“THE COURT: And you can only impose death if the aggravating factors
are so substantial in comparison to the mitigating factors that death is warranted.
“Now that’s pretty much it. You are going to have to decide for yourself
what those factors are and decide what penalty is appropriate. So we are not going
to tell you how to weigh the psychological factors. We are just not going to. You
are going to have to weigh it yourself in your decisions with the other jurors. You
feel comfortable doing that?
“PROSPECTIVE JUROR [H.]: Yes.
“THE COURT: Do you think that if there were past psychological factors
that they would weigh heavily enough that you probably wouldn’t impose the
death penalty?
“Long period of silence. Is your answer you just don’t know or what?
“PROSPECTIVE JUROR [H.]: Yes, I think they might.
“THE COURT: You think they might auger toward life without possibility
of parole?
4
“PROSPECTIVE JUROR [H.]: Yes.
“THE COURT: Are you absolutely committed to that position?
“PROSPECTIVE JUROR [H.]: Yes.
“THE COURT: You are saying that if there were psychological factors,
without naming what they might be, you would automatically vote for life without
possibility of parole?
“PROSPECTIVE JUROR [H.]: Without naming them, I don’t think so.”
It thus appears that although H. initially indicated he felt “comfortable”
with deliberating the question of penalty, including consideration of psychological
factors, the trial court nevertheless perceived a sufficient degree of ambiguity or
uncertainty to persist in this line of questioning to clarify his true state of mind.
The court also felt constrained to note a “long period of silence”—during which it
plainly would have been focused on H.’s demeanor—before H. responded
regarding imposition of the death penalty “if there were past psychological
factors.” Despite several more questions, however, he never expressed a clear
position. Whether or not his answers were actually inconsistent, they were at least
equivocal.
“[A] primary purpose of [the death-qualifying] phase of voir dire is to
enable the trial court to ‘assess the juror’s state of mind’ and thereby make a
meaningful evaluation of his or her impartiality. [Citation.] [¶] As a concomitant
principle of review, we generally accord considerable deference to these
evaluations, which ‘constitute[] a resolution of what is essentially a question of
fact or, perhaps more accurately, a mixed question that is essentially factual.
[Citation.]’ [Citation.] ‘If there are conflicting answers to the voir dire, the court
may assess the juror’s state of mind and is not bound by statements which, taken
in isolation, are unequivocal. When such a prospective juror has both equivocated
and taken (at some point) a clear stand, the wisdom of entrusting the ruling on the
5
challenge for cause to the trial court becomes clear.’ [Citation.] Thus, ‘where
equivocal or conflicting responses are elicited regarding a prospective juror’s
ability to impose the death penalty, the trial court’s determination as to his true
state of mind is binding on an appellate court.’ [Citations.] ‘In the final analysis,
“the question is not whether a reviewing court might disagree with the trial court’s
findings, but whether those findings are fairly supported by the record,” and
ambiguities are to be resolved in favor of the trial court’s assessment. [Citation.]’
[Citations.]” (People v. Cox (1991) 53 Cal.3d 618, 646-647.) The portion of the
voir dire cited above reflects precisely the circumstance in which we should defer
to the conclusions of the trial court, which saw and heard what we can now only
review in inscrutable print.
The majority describes the voir dire as “a series of awkward questions” and
suggests the court’s perceived deficiencies in H.’s responses “reasonably must be
viewed as a product of the trial court’s own unclear inquiries.” (Maj. opn., ante, at
p. 24, fn. omitted.) With all due respect, these criticisms not only unfairly
disparage a conscientious bench officer1 but highlight the majority’s own failure
1
The majority’s characterization of Prospective Juror H.’s voir dire variously
as inadequate and “inexplicable and disappointing” (maj. opn., ante, at p. 24) is
equally unjustified on this record. A review of H.’s questioning in the context of
the entire voir dire demonstrates that the court considered each prospective juror,
including H., individually to the extent necessary, or possible, to determine his or
her actual views regarding the death penalty. Thus, for example, the court
inquired further of several prospective jurors who had indicated on their
questionnaires they thought life imprisonment without the possibility of parole
was a more severe punishment than death. At some point, the court also explained
to the venire generally the manner in which the jury would make its penalty
determination, emphasizing that death would be warranted only if the aggravating
circumstances substantially outweighed those in mitigation, meaning the law
considered death the more severe punishment. Inferentially, the court concluded
(Footnote continued on next page.)
6
to impose the self-restraint required of a reviewing court in these circumstances.
As the high court in Witt cautioned, this is the very situation in which our
“common sense should have realized [what] experience has proved: many
veniremen simply cannot be asked enough questions to reach the point where their
bias has been made ‘unmistakably clear’; these veniremen may not know how
they will react when faced with imposing the death sentence, or may be unable to
articulate, or may wish to hide their true feelings. Despite this lack of clarity in
the printed record, however, there will be situations where the trial judge is left
with the definite impression that a prospective juror would be unable to faithfully
and impartially apply the law. . . . [T]his is why deference must be paid to the trial
judge who sees and hears the juror.” (Witt, supra, 469 U.S. at pp. 424-426; see id.
at pp. 428, fn. 9, 429.) This court did not see or hear Prospective Juror H; it is
therefore impossible for us to determine the cause of his vagueness and lack of
articulation.
The relevant determination here is not whether a prospective juror would
always or automatically vote for one penalty or the other; nor is the question
strictly whether the individual is unable to follow the law. While either of these
circumstances would be a sufficient basis to excuse for cause, neither is a
necessary one. Rather, the trial court must endeavor to assess whether “the juror’s
views would ‘prevent or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath.’ ” (Witt, supra, 469 U.S. at
p. 424, fn. omitted & italics added.) In my view, it is entirely reasonable that, in
(Footnote continued from previous page.)
in this context that it was unnecessary to pursue the point with those prospective
jurors it perceived from their demeanor had no confusion on this point.
7
light of the voir dire—including an evaluation of credibility and demeanor—the
court could conclude Prospective Juror H.’s view would substantially impair the
discharge of his duties. On this record, that assessment is entitled to our
deference.
I likewise find no error in the trial court’s excusal of Prospective Juror Q.
Q. initially indicated she would not automatically vote for one punishment or the
other in the event of a penalty phase trial. During subsequent questioning,
however, she stated she thought life without the possibility of parole was the more
serious alternative. The court and both counsel attempted to clarify her state of
mind but without real success. At one point, the prosecution asked, “Well, can
you even conceive of any circumstance under which death would be
appropriate?”—to which Q. responded, “I can’t think of [any].” The prosecutor
made further efforts to understand the logic of her position, which the trial court
finally summarized as follows: “I guess what [the prosecutor] is saying is if Hitler
were on trial here and he were convicted, he would get life. And if somebody else
were tried who just barely made the first degree murder and special circumstances,
he’d get death. [¶] . . . [¶] . . . Is that your position?” In response, Q. affirmed
without equivocation that the court had accurately described her views on the
death penalty.
The trial court properly excused Prospective Juror Q. for cause. As the
court expressed the situation, Q. “has boxed herself into a position that where I
don’t know anymore how she stands. I mean, she is literally impossible at this
point to evaluate, absent some lengthy, lengthy questions.” The record bears out
this determination as well as the reasonable inference Q.’s equivocation and
ambivalence would impair her ability to function according to the instructions and
her oath if the case proceeded to a penalty phase. Since substantial evidence
8
supports the court’s resolution of these uncertainties, we should not second-guess
its evaluation of her state of mind.
Defendant argues that nevertheless the trial court erroneously failed to
continue questioning Q. to resolve her apparent confusion and clarify her actual
views. It is entirely uncertain what, if any, value additional voir dire would have
had; and he cites no constitutional imperative for imposing such an obligation
where the court and counsel have all made reasonable efforts to ascertain a
prospective juror’s attitude. As with the ultimate determination to excuse for
cause, the trial court’s decision whether further questioning would serve any
useful purpose should be deferred to on review. (Cf. Witt, supra, 469 U.S. at
p. 425.)
“The selection of a jury in a capital case includes many judgment calls by
trial judges—calls that involve the judge’s intuition about the demeanor of the
venireman, the appropriateness of his response, his manner, dress, and his
inflection. It is a decision with the usual stuff of trial court decisionmaking, calls
more dependent upon intuition, shrewdness, or courtroom savvy than abstract
analogical processes. Correspondingly, one need not pause for long to summon
up myriad examples of expression whose meaning can only be determined by the
inflection and manner of its expression. For example, the simple expressions ‘I
reckon so’ and ‘I could hardly do so’ may or may not express doubt. In sum,
ruling upon a request to exclude a venireman inevitably involves an interpretation
of what was asked and answered. The dynamic trial scene is not easily conformed
to a mold judicially shaped to facilitate review or to achieve a targeted level of
accuracy, perhaps because few but lawyers and judges talk and think in such a
fashion, peculiarly so with the interrogation of veniremen in death cases.”
(O’Bryan v. Estelle (5th Cir. 1983) 714 F.2d 365, 393 (conc. opn. of
Higginbotham, J.).)
9
Thus, while preparation is incumbent, the trial court must bring more
intuitive skills to the voir dire process as well. Contrary to the majority’s
implication and irrespective of “careful planning” (maj. opn., ante, at p. 23), the
actual determination whether to excuse for cause is an on-the-spot assessment of
the individual’s credibility as a prospective juror not the parsing of a cold
transcription of questions and answers. As the high court reminded in Witt,
“determinations of juror bias cannot be reduced to question-and-answer sessions
which obtain results in the manner of a catechism.” (Witt, supra, 469 U.S. at
p. 424.) Moreover, once error is found, we have no alternative but to reverse the
penalty judgment, with the tremendous toll that implies not only on the victim’s
family but the judicial system at large. Given this consequence, it is all the more
critical that we observe the greatest circumspection and take care not to reverse
“except in a clear case.” (Reynolds v. United States, supra, 98 U.S. at p. 157.)
Accordingly, I would affirm the judgment in its entirety.
BROWN, J.
WE CONCUR:
BAXTER,
J.
CHIN,
J.
10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Heard
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S035769
Date Filed: August 28, 2003
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Richard P. Kalustian
__________________________________________________________________________________
Attorneys for Appellant:
Jonathan P. Milberg, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Susan Sullivan Pithey, Deputy Attorneys
General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jonathan P. Milberg
300 N. Lake Avenue, Suite 320
Pasadena, CA 91101
(626) 685-8910
Susan Sullivan Pithey
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2273
2
Date: | Docket Number: |
Thu, 08/28/2003 | S035769 |
1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Susan Sullivan Pithey, Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA |
2 | Heard, James Matthew (Appellant) San Quentin State Prison Represented by Robert E. Boyce Attorney at Law 924 23rd St. San Diego, CA |
3 | Heard, James Matthew (Appellant) San Quentin State Prison Represented by Jonathan P. Milberg Attorney at Law 300 N. Lake Ave., Suite 320 Pasadena, CA |
Disposition | |
Aug 28 2003 | Opinion: Conviction & specials aff., penalty rev. |
Dockets | |
Sep 28 1993 | Judgment of death |
Oct 29 1993 | Filed certified copy of Judgment of Death Rendered 9-28-93. |
Jun 22 1998 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Jonathan P. Milberg is hereby appointed to represent appellant Heard for the direct appeal in the above automatic appeal now pending in this court. |
Jun 22 1998 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Robert E. Boyce is hereby appointed to represent appellant Heard for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. |
Jul 22 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
Jul 28 1998 | Extension of Time application Granted To Applt To 9-28-98 To request Corr. of Record. |
Sep 29 1998 | Received: Copy of Applt's motion for Additional Record, correction of Record & Settled Statement Proceedings (9 Pp. Excluding Exhibits). |
Oct 21 1998 | Compensation awarded counsel |
Dec 7 1998 | Compensation awarded counsel |
Dec 14 1998 | Change of Address filed for: Atty Jonathan Milberg. |
Dec 16 1998 | Compensation awarded counsel |
Mar 24 1999 | Compensation awarded counsel |
Mar 14 2000 | Record on appeal filed C-10 (1,916 Pp.) and R-20 (2,782 Pp.) Including Material Under Seal; Clerk's Transcript includes 147 pages of Juror Questionnaires. |
Mar 14 2000 | Appellant's opening brief letter sent, due: 4/24/2000 |
Apr 24 2000 | Application for Extension of Time filed To file Aob. |
Apr 28 2000 | Extension of Time application Granted To 6/23/2000 To file Aob. |
May 12 2000 | Compensation awarded counsel Atty Milberg |
Jun 21 2000 | Application for Extension of Time filed To file Aob. |
Jul 3 2000 | Extension of Time application Granted To 8/22/2000 to file AOB. |
Aug 21 2000 | Application for Extension of Time filed To file AOB. (3rd request) |
Aug 21 2000 | Counsel's status report received (confidential) |
Aug 25 2000 | Extension of Time application Granted To 10/23/2000 to file AOB. |
Sep 5 2000 | Counsel's status report received (confidential) from atty Boyce. |
Oct 23 2000 | Counsel's status report received (confidential) from atty Milberg. |
Oct 23 2000 | Application for Extension of Time filed To file AOB. (4th request) |
Oct 24 2000 | Extension of Time application Granted To 12/22/2000 to file AOB. |
Nov 3 2000 | Counsel's status report received (confidential) from atty Boyce. |
Dec 18 2000 | Application for Extension of Time filed To file AOB. (5th request) |
Dec 18 2000 | Counsel's status report received (confidential) from atty Milberg. |
Dec 20 2000 | Extension of Time application Granted To 2/20/2001 to file AOB. |
Feb 13 2001 | Counsel's status report received (confidential) from atty Boyce. |
Feb 16 2001 | Counsel's status report received (confidential) from atty Milberg. |
Feb 16 2001 | Application for Extension of Time filed To file AOB. (6th request) |
Feb 26 2001 | Extension of Time application Granted To 4/23/2001 to file AOB. No further ext. of time are contemplated. |
Mar 14 2001 | Counsel's status report received (confidential) from atty Boyce. |
Apr 23 2001 | Application for Extension of Time filed to file AOB. (7th request) |
Apr 23 2001 | Counsel's status report received (confidential) |
Apr 23 2001 | Counsel's status report received (confidential) from atty Milberg. |
Apr 30 2001 | Extension of Time application Granted To 6/22/2001 to file AOB. No further extensions of time will be granted. |
May 14 2001 | Counsel's status report received (confidential) from atty Boyce. |
Jun 22 2001 | Application for Extension of Time filed to file AOB. (8th request) |
Jun 22 2001 | Counsel's status report received (confidential) from atty. Milberg |
Jun 29 2001 | Extension of Time application Granted On counsel's representation that the AOB will be filed on or before 6-29-2001, permission is granted to and including 6-29-2001, to file AOB. No further extensions of time will be granted. |
Jun 29 2001 | Appellant's opening brief filed (116 pp.) |
Jul 13 2001 | Counsel's status report received (confidential) from atty Boyce. |
Jul 20 2001 | Application for Extension of Time filed To file resp's brief. (1st request) |
Jul 20 2001 | Compensation awarded counsel Atty Milberg |
Jul 25 2001 | Extension of Time application Granted To 9/28/2001 to file resp.'s brief. |
Sep 12 2001 | Counsel's status report received (confidential) from atty Boyce. |
Sep 21 2001 | Application for Extension of Time filed to file respondent's brief. (2nd request) |
Sep 27 2001 | Extension of Time application Granted To 11/27/2001 to file resp.'s brief. |
Nov 16 2001 | Request for extension of time filed to file respondent's brief. (3rd request) |
Nov 26 2001 | Extension of time granted To 1/28/2002 to file resp.'s brief. No further extensions of time are contemplated. |
Nov 26 2001 | Counsel's status report received (confidential) from atty Boyce. |
Nov 28 2001 | Filed: Amended declaration of service re third request for extension of time to file resp.'s brief. |
Dec 24 2001 | Counsel's status report received (confidential) from atty Boyce. |
Jan 9 2002 | Filed: Counsel's declaration re review of record. (confidential) |
Jan 24 2002 | Compensation awarded counsel Atty Boyce |
Jan 25 2002 | Respondent's brief filed (110 pp.) |
Feb 7 2002 | Request for extension of time filed To file reply brief. (1st request) |
Feb 7 2002 | Received document entitled: Automatic Appeal Status Report from attorney for appellant |
Feb 13 2002 | Filed: Amended first request for an extension of time to file reply brief. |
Feb 13 2002 | Counsel's status report received (confidential) from atty Milberg. |
Feb 15 2002 | Extension of time granted To 4/15/2002 to file reply brief. |
Feb 25 2002 | Counsel's status report received (confidential) from atty Boyce. |
Apr 24 2002 | Counsel's status report received (confidential) from atty Milberg. |
Apr 24 2002 | Request for extension of time filed To file reply brief. (2nd request) |
Apr 26 2002 | Counsel's status report received (confidential) from atty Boyce. |
Apr 30 2002 | Extension of time granted To 6/14/2002 to file reply brief. Counsel anticipates filing the brief by 6/14/2002. No further extensions is contemplated. |
Jun 10 2002 | Request for extension of time filed to file reply brief. (3rd request) |
Jun 10 2002 | Counsel's status report received (confidential) from atty Milberg. |
Jun 13 2002 | Extension of time granted to 8-14-2002 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Milberg's representation that he anticipates filing brief by 8-14-2002. |
Jun 24 2002 | Counsel's status report received (confidential) from atty Boyce. |
Aug 12 2002 | Request for extension of time filed to file reply brief. (4th request) |
Aug 12 2002 | Counsel's status report received (confidential) from atty Milberg. |
Aug 19 2002 | Extension of time granted to 9-13-2002 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Milberg's representation that he anticipates filing the reply brief by that date. |
Aug 26 2002 | Counsel's status report received (confidential) from atty Boyce. |
Sep 11 2002 | Appellant's reply brief filed (29 pp.) |
Sep 20 2002 | Letter sent to: counsel: The court requests respondent to file a letter brief responding to appellant's contention that the California death penalty statute is unconstitutional in various respects under Ring v. Arizona (2002) ___U.S.___ [122 S.Ct. 2428]. The letter brief will be due on or before 10-7-2002. Any reply by appellant will be due on or before 10-21-2002. |
Sep 20 2002 | Exhibits lodged People's exhibits 4A-4M, 5A-5K, 6A-6K & 7A-7K received from Los Angeles County Superior Court. (4 manilla envelopes containing photographs) |
Sep 20 2002 | Compensation awarded counsel Atty Milberg |
Sep 27 2002 | Letter brief filed by respondent in response to court's letter of 9-20-2002. (3 pp.) |
Oct 21 2002 | Request for extension of time filed To file appellant's reply to respondent's letter brief. (1st request) |
Oct 25 2002 | Counsel's status report received (confidential) supplemental from attorney Boyce. |
Oct 29 2002 | Extension of time granted To 11/4/2002 to file appellant's supplemental reply brief. No further extension will be granted. |
Nov 5 2002 | Supplemental reply brief filed by appellant. (21 pp. - Rule 40(k)) |
Jan 10 2003 | Counsel's status report received (confidential) from atty Boyce. |
Jan 21 2003 | Filed letter from: attorney Jonathan Milberg for appellant HEARD, letter dated Jan 20, 2003, letter brings to the court's attention, a recent U..S. Supreme Court opinion. |
Feb 19 2003 | Exhibits lodged People's no. 12 (videotape) |
Mar 3 2003 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the May calendars, to be held in S.F. the week of May 5 and also the week of May 27, 2003. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument. |
Mar 4 2003 | Received letter from: Attorney Milberg, dated 2/28/2003l, advising reporter's transcript of 2/23/1993 not provided to counsel. |
Mar 4 2003 | Received letter from: Attorney Milberg, dated 2/28/2003, advising reporter's transcript of 7/10/1993 not provided to counsel. |
Mar 10 2003 | Received letter from: appellant James M. Heard |
Mar 18 2003 | Counsel's status report received (confidential) from atty Boyce. |
Apr 30 2003 | Compensation awarded counsel Atty Boyce |
Apr 30 2003 | Case ordered on calendar 6-4-03, 1:30pm, L.A. |
May 14 2003 | Filed letter from: Respondent's counsel, dated 5/12/2003, re focus issues for oral argument. |
May 19 2003 | Filed letter from: Appellant's counsel, dated 5/14/2003, re focus issues for oral argument. |
Jun 4 2003 | Cause argued and submitted |
Jun 6 2003 | Counsel's status report received (confidential) from atty Boyce. |
Jun 6 2003 | Filed: Declaration of attorney Robert E. Boyce pursuant to Penal Code Section 1241 (confidential). |
Jun 11 2003 | Compensation awarded counsel Atty Milberg |
Jun 11 2003 | Change of Address filed for: atty Jonathan Milberg. |
Jun 18 2003 | Compensation awarded counsel Atty Boyce |
Aug 11 2003 | Related habeas corpus petition filed (concurrent) No. S118272 |
Aug 28 2003 | Opinion filed: Conviction & specials aff., penalty reversed Remanded to the trial court for a new penalty trial before a properly selected jury. Majority Opinion by George, C.J. -- joined by Kennard, Werdegar & Moreno, JJ. Concurring & Dissenting Opinion by Brown, J. -- joined by Baxter & Chin, JJ. |
Sep 12 2003 | Rehearing petition filed respondent. (8 pp.) |
Sep 18 2003 | Answer to rehearing petition filed by appellant. (8 pp.) |
Sep 19 2003 | Time extended to consider modification or rehearing to 11/26/2003, or the date upon which rehearing is either granted or denied, whichever occurs first. |
Oct 22 2003 | Rehearing denied Baxter, J., is of the opinion the petition should be granted. Chin, J., is of the opinion the petition should be granted. Brown, J., was absent and did not participate. |
Oct 22 2003 | Remittitur issued (AA) |
Nov 3 2003 | Habeas funds request filed (confidential) |
Nov 10 2003 | Received: Acknowledgment of receipt of exhibits. |
Nov 25 2003 | Order filed re habeas funds request (confidential) |
Dec 11 2003 | Order filed (150 day statement) |
Jan 26 2004 | Received: Copy of appellant's cert petition. (22 pp. - excluding appendices) |
Jan 27 2004 | Received letter from: U.S.S.C., dated 1-23-2004, advising that cert petition was filed on 1-20-2004, case No. 03-8533. |
Mar 12 2004 | Certiorari denied by U.S. Supreme Court |
Briefs | |
Jun 29 2001 | Appellant's opening brief filed |
Jan 25 2002 | Respondent's brief filed |
Sep 11 2002 | Appellant's reply brief filed |