Filed 7/25/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S037195
v.
JERRY NOBLE KENNEDY,
Colusa
County
Defendant and Appellant. )
Super.
Ct.
No.
19005
A jury convicted defendant Jerry Noble Kennedy of one count of murder
(Pen. Code, § 187, subd. (a))1 and one count of robbery (§ 211). The jury found
true an allegation that defendant used a firearm in committing the crimes
(§ 12022.5, subd. (a)) and a special circumstance allegation that the murder was
committed during a robbery (§ 190.2, subd. (a)(17)). The jury returned a verdict
of death. The trial court denied defendant’s motions for a new trial and for
modification of the death verdict, and it sentenced defendant to death. This appeal
is automatic. (Cal. Const., art. VI, § 11; § 1239.)
1
All statutory references are to the Penal Code unless otherwise indicated.
1
I. FACTS AND PROCEEDINGS
A. Guilt Phase
1. Prosecution’s case
Around 4:30 a.m. on March 15, 1993, Janet Madsen and her friend Jay
Blaylock were in a car parked under a light at Maxwell’s Rest Stop off Interstate 5
in Colusa County. Madsen, who was asleep in the passenger seat, was awakened
by the sound of a gunshot coming from the restrooms located 50 to 60 feet from
the car. She saw a man come out from the men’s side of the restroom, walk
briskly down a sidewalk directly towards her, get into a car two parking spaces
away from her on her right, and leave. During this time, Madsen was “locked in
eye-to-eye contact with this man . . . .”
Madsen then saw a man stagger out of the men’s restroom and collapse. As
she ran towards the man to try to help him, Blaylock called the police on his
cellular phone. Sheriff Deputy Randy Morton arrived five minutes later. Morton
ran over to the victim, who was breathing but unable to speak, and radioed for
help. When the emergency rescue team arrived approximately 10 minutes later,
the victim had stopped breathing.
Deputy Morton interviewed Madsen at the scene. She described the person
she saw came out of the restroom as a dark-skinned White male in his early 20’s
with bushy hair “almost like an Afro.” He was wearing Levis and a dark jacket.
He left in a brown compact car, which had dents and also had red and possibly
blue primer paint. Madsen also gave a description to Deputy Sheriff Hameed
Kahn, the second officer to arrive at the scene. Madsen told Kahn that the man
who fled was a curly-haired White adult male about five feet eight or nine inches
in height, weighing approximately 150 pounds, and wearing a dark-colored sweat
shirt with dark-colored pants.
2
Madsen and Blaylock then left the scene and continued their trip. Later that
morning, they stopped in Yreka at the Siskiyou County Sheriff’s Department to
see if they could be of further help. There, Madsen explained that she had been an
eyewitness to a murder and she offered her cooperation in preparing a composite
sketch of the man who fled the murder scene. Sergeant Gary Perry worked with
Madsen in preparing the sketch. Her responses to a series of questions regarding
the suspect’s facial features included statements that the suspect’s eyes were
“large and wide-eyed” and that there “was no facial hair at all.” Because Madsen
was not satisfied with the depiction of the hair, eyes, and nose on the composite
drawing produced by the computerized process, she tried to improve the sketch by
drawing on it herself. She remained dissatisfied with the composite drawing,
however.
Colusa County Sheriff’s Detective David Markss, who had also responded
to the scene of the murder, learned that the victim was Glenn Chambers from Linn
County in Oregon. Markss obtained from the victim’s family a list of his credit
cards and their numbers and arranged for them to be “flagged,” a procedure by
which banks and credit companies would notify the police if someone used the
credit cards. On the night of March 16, 1993, the day after the murder, a bank
notified Detective Markss that one of the victim’s credit cards was being used to
hire a limousine in Sacramento. When Markss learned from the limousine service
that it was sending a limousine to an address on Dawn Court in Sacramento, he
contacted the Sacramento Police Department.
The Sacramento Police Department assembled a team of officers at an
intersection near Dawn Court, where Colusa County Sheriff Gerald Shadinger
joined them. When a car matching Madsen’s description went by, they followed it
to a convenience store, where they detained the car’s three occupants, Doreen
Westbrook, Jack Beach, and Melody Jean Phillips. Sheriff Shadinger asked
3
Westbrook, “Who shot the guy in Maxwell?” She responded, “Termite,”
defendant’s nickname. She said that Termite was in an apartment at the Dawn
Street apartments and that he was armed with a handgun and a machine gun.
As the police evacuated the neighboring apartments and surrounded the
apartment building, a .38-caliber handgun wrapped in a white shirt was thrown
from the balcony of the apartment where defendant was. The police announced
their presence and ordered everyone out of the apartment. Ron Woods, also
known as Ron Mead, was the first to emerge from the apartment, followed 11
minutes later by defendant, and then by Kimberly Crawford. Defendant was
arrested. Defendant, then 37 years old, was six feet tall, and had a full mustache
and goatee that covered the lower half of his face. Defendant’s appearance did not
resemble the composite sketch prepared earlier. Both Woods and Crawford
informed the police that defendant told them of shooting someone at a restaurant
and taking the victim’s credit cards. The police later found the murder victim’s
credit cards in the yard of the apartment and on the balcony next door.
Doreen Westbrook, who had been granted immunity at the preliminary
hearing, testified to the events leading up to and immediately after the murder. On
the evening of March 15, 1993, after taking drugs with defendant, she and
defendant left Sacramento in her car to drive to her mother’s house in Rancho
Tehama, near Redding, to sell drugs and take her niece to the hospital. They first
stopped at the Dunnigan Rest Stop on Interstate 5, where they injected themselves
with methamphetamine. As they continued north on Interstate 5, Westbrook and
defendant talked about robbing people in restrooms. They next stopped at the
Maxwell Rest Stop, where Westbrook went into the women’s restroom to change
clothes. When she came out of the restroom and returned to her car, she heard a
gunshot. As Westbrook started the car so they could “get out of there quick,” she
saw defendant come out of the restroom pulling a ski mask off his head and
4
walking fast, followed by the victim pleading for help. Defendant got in the car
and told Westbrook “drive, girl, drive.”
Westbrook drove out of the rest stop. As they continued north, defendant
went through the victim’s wallet. Commenting, “all of this for 11 bucks,”
defendant showed Westbrook a separate card case containing the victim’s credit
cards. When they arrived at her mother’s house in Rancho Tehama, Westbrook
suggested to her brother and his girlfriend that they use the credit cards. The four
of them then drove to Corning and used the credit cards. They left for Chico, used
the credit cards again, and finally headed to the Arden Fair Mall in Sacramento,
where they again used the credit cards. Thereafter, Westbrook used one of the
credit cards to rent a limousine to take herself, defendant, and some of their friends
to breakfast at a restaurant. She paid with the murder victim’s credit card.
That evening, Westbrook again used the victim’s card in renting a
limousine. When the limousine was late in arriving, she drove to a convenience
store to telephone the limousine service; at that point, the police apprehended her.
Later that night, she told Sacramento Police Officer Jim Bell that defendant was
the killer. A couple of days later, Westbrook traveled to Colusa County, where
she spoke to the police. She first told the police in the interview that a Billy Jinks,
“one of the North Sac dope fiends,” did the killing. She then told the police that
defendant “killed the man.” Westbrook initially blamed the killing on Jinks
because defendant had called her the night before from the Colusa County jail and
told her to lie and because her brother-in-law, George Westbrook, had threatened
her by telling her: “If you don’t ride the manslaughter you’re not coming out of
Colusa alive.”
After defendant’s arrest and arraignment, Janet Madsen, the eyewitness
who had given the police a physical description of the killer, saw a newspaper
article about the murder with a photograph of defendant’s face with a beard. She
5
was concerned that, having described the person she had seen at the rest stop to the
police as having no facial hair, the police had arrested the wrong man. On April 7,
1993, Madsen and her friend Jay Blaylock drove to the City of Colusa to discuss
the discrepancy with the police.
Madsen told Colusa County Sheriff’s Detective Troughton that the
newspaper photograph disturbed her because of the eyes and the beard. (Shortly
after the murder, she had described the person at the rest stop as a clean-shaven
man with large eyes.) Detective Troughton then showed Madsen a picture of
defendant without a shirt on that disclosed tattoos on his chest of a swastika, a
gun, and the name of his motorcycle gang. Madsen could not make an
identification from this picture because it did not show defendant’s eyes, which
were downcast in the photograph. Madsen was then shown a videotape of
defendant’s arrest. When Madsen saw defendant’s eyes as he looked up on the
videotape, she said: “Oh, my God, that’s him, and I don’t know how I missed that
beard.” Madsen was next escorted to the police garage, where she identified
Doreen Westbrook’s car as the car in which she saw the killer flee the scene of the
murder. At trial, Madsen positively identified defendant as the man she saw come
out of the restroom at the time of the shooting.
2. Defense case
Manuel Acosta, a truck driver, was at the Maxwell Rest Stop at the time of
the murder. He said he was awake and had a clear view of the restroom area from
the cab of his truck when he heard a gunshot. He then saw a man come out of the
restroom with the victim just behind him. Acosta described the man to the police
as being between five feet eight inches and six feet in height, slender, Hispanic,
and with a clean-shaven face. When shown a photograph of defendant by a
defense investigator before trial and asked if the photograph was of the person he
saw leave the murder scene, Acosta responded: “No way.” On cross-examination
6
by the prosecution, Acosta said he could not be absolutely positive defendant was
not the man he saw come out of the restroom because he did not see the man’s
face, but he then testified on redirect examination that defendant was “not the right
person” and that the right person is “walking the streets right now.”
According to Debra Jewel Matthews, Doreen Westbrook told her she
committed the murder. Janet Chissney testified that Doreen Westbrook came by
her house in a limousine at 7:00 a.m., was very nervous, and said, “I did it this
time, Janet, I did one.”
Dina McKee testified that defendant and a John Hancock, also known as
Hoss, stayed overnight at her house the night of March 14-15, 1993, and that she
had gone to bed with defendant between 10:00 and 11:00 p.m., but that defendant
had left after she had fallen asleep. McKee’s friend, Susan Nuckols, who lived six
houses away from her, testified that between 4:00 and 4:30 a.m. that same night
she went to McKee’s house to return some books she had borrowed, and that
defendant and Hoss answered her knock on the door and took the books.
B. Penalty Phase
1. Prosecution’s case
Larry Chambers, the brother of murder victim Glenn Chambers, testified
that the victim was the father of two daughters, one who was then 24 years old and
one who was then five years old; that he was a real estate agent and a substitute
teacher; that he had been in the military reserves for 20 years; and that their
mother was distraught over the killing. Zoe Chambers, the victim’s 24-year-old
daughter, expressed her love for her father and described her feelings of anger and
sense of loss.
Sharon Galiano testified that in 1985 she and her then four-year-old
daughter were the victims of a residential robbery committed by defendant. She
7
related that defendant and another man came into her house with a gun, held her at
gunpoint, and went through the house stealing items.
Marilyn Ouye, a custodian of records for the Department of Corrections,
testified to defendant’s criminal history as shown by department records.
(§ 969b.) The records showed that defendant had four prior felony convictions:
two involving the possession of illegal firearms, one for residential robbery, and
one for possession of controlled substances. Between 1982 and 1993, defendant
remained out of prison for only 24 months, and out of those 24 months he was in
local custody for a total of 515 days. Defendant was released on parole on March
5, 1993, 10 days before the murder in this case.
2. Defense case
Buford Kennedy, one of defendant’s older brothers, testified that his family
moved around when they were children, and that the children were separated from
each other when they were young. He expressed the hope that defendant would be
sentenced to life without possibility of parole instead of being given the death
penalty. Buford admitted that he had suffered six felony convictions and that he
was in custody for a parole violation at the time he testified.
Hank Kennedy, another one of defendant’s older brothers, testified that he
and his brothers were wild when they were growing up, that they were separated
when defendant was nine or 10 years old, and that he and his brothers are outlaws.
He did not believe defendant committed the murder because defendant would have
told him if he had, and he asked the jury to give defendant life without possibility
of parole, sparing defendant’s life. Hank admitted that he had been convicted of
seven or eight felonies, and that he and defendant while in prison together had
been involved in fights with other inmates.
Defendant testified on his own behalf. He denied committing the murder,
and he denied being at the rest stop the night of the killing. Defendant told the
8
jury that he believes in the death penalty and that because the jury had found him
guilty it should give him the death penalty. He mentioned that while incarcerated
at Folsom Prison he taught his wife’s young son how to read and write. He
admitted his four prior felony convictions. He acknowledged having spent most
of his adult life in prison and sharing membership with his brothers in an outlaw
motorcycle group called the “Sacramaniacs.” Defendant denied that he told others
he had shot a man at a rest stop, but he admitted telling Rochelle Hendricks (the
girlfriend of Doreen Westbrook’s brother) that he hurt a man at a rest stop so
badly that the man had to be taken away in an ambulance.
II. GUILT PHASE
A. Identification of Defendant
Defendant
contends
that his right to due process of law under the
Fourteenth Amendment to the United States Constitution and article I, section 15
of the California Constitution were violated when the trial court admitted evidence
of eyewitness Janet Madsen’s pretrial and in-court identification of him as the
perpetrator.
“In order to determine whether the admission of identification evidence
violates a defendant’s right to due process of law, we consider (1) whether the
identification procedure was unduly suggestive and unnecessary, and, if so,
(2) whether the identification itself was nevertheless reliable under the totality of
the circumstances, taking into account such factors as the opportunity of the
witness to view the suspect at the time of the offense, the witness’s degree of
attention at the time of the offense, the accuracy of his or her prior description of
the suspect, the level of certainty demonstrated at the time of the identification,
and the lapse of time between the offense and the identification.” (People v.
Cunningham (2001) 25 Cal.4th 926, 989.)
9
1. Standard of review
This court has not decided the standard of review applicable to a claim that
an identification procedure was unduly suggestive. It remains “unsettled whether
suggestiveness is a question of fact (or a predominantly factual mixed question)
and, as such, subject to deferential review on appeal, or a question of law (or a
predominantly legal mixed question) and, as such, subject to review de novo.”
(People v. Gordon (1990) 50 Cal.3d 1223, 1242; see People v. Ochoa (1998) 19
Cal.4th 353, 413; People v. Carpenter (1997) 15 Cal.4th 312, 367.) Defendant
contends that the independent standard of review de novo applies. We agree.
It is settled that the abuse of discretion standard applies to questions of pure
fact, and that the independent review standard applies to questions of pure law.
(People v. Cromer (2001) 24 Cal.4th 889, 893-894.) The issue of which standard
of review governs arises when, as here, the decision under review involves a
mixed question of law and fact. Mixed questions of law and fact are those where
the facts are established, the law is undisputed, and the issue is whether the law as
applied to the established facts is violated. (Id. at p. 894.) The constitutionality of
an identification procedure presents a mixed question of law and fact. (Sumner v.
Mata (1982) 455 U.S. 591, 597.)
The mixed question presented in reviewing identification procedures is
similar to the mixed questions the United States Supreme Court has determined
are subject to independent review. For instance, in Thompson v. Keohane (1995)
516 U.S. 99, the high court held that the independent review standard applied to a
determination of whether a defendant was in custody for purposes of Miranda v.
Arizona (1966) 384 U.S. 436. The court reasoned that credibility determinations,
although they could contribute to deciding the facts of what had already happened,
were not dispositive of the inquiry because the trial court did not have a “first-
person vantage” as the facts occurred outside of court. (Thompson v. Keohane,
10
supra, 516 U.S. at p. 113.) It also noted that the “in custody” determination by
appellate courts would serve to guide future decisions (id. at p. 114) because the
creation of a body of legal precedent over time would define the legal principles
and their application. In Ornelas v. United States (1996) 517 U.S. 690, the high
court held that the appellate courts should independently determine whether there
was reasonable suspicion and probable cause to make a warrantless search. The
court there identified in support of its holding the risk of inconsistent results
arising not from different facts but from different trial judges drawing varying
general conclusions, the need for appellate courts to control and clarify legal
principles when the legal rules are defined through their application to facts in
different cases, and the ability to come closer to developing a defined set of rules.
(Id. at p. 697.)
Those considerations apply with equal force to the question of whether a
pretrial identification procedure was unduly suggestive. Although the
determination of the historical facts, which are reviewed under a deferential
standard (People v. Cromer, supra, 24 Cal.4th at p. 900), may involve a credibility
determination, the decision whether those facts demonstrate that the identification
procedure was unduly suggestive does not require such a determination. In
determining whether a pretrial identification was unduly suggestive, a trial judge
does not have a “first person vantage.” Pretrial identification procedures, like
determinations of reasonable suspicion and probable cause, occur outside of the
courtroom. Independent appellate court evaluation of whether an identification
procedure was or was not unduly suggestive would also help to develop a defined
set of rules by establishing a body of legal precedent that provides guidance.
Accordingly, and consistent with “this court’s usual practice for review of
mixed question determinations affecting constitutional rights” (People v. Cromer,
supra, 24 Cal.4th at p. 901), we conclude that the standard of independent review
11
applies to a trial court’s ruling that a pretrial identification procedure was not
unduly suggestive.
2. Analysis
Defendant filed a motion before trial to suppress Janet Madsen’s pretrial
identification of him as the perpetrator. The evidence presented at the pretrial
hearing on defendant’s motion was essentially repeated at trial as part of the
normal presentation of evidence to the trier of fact and has been summarized
above. In ruling on the motion, the trial court made these findings: After seeing a
newspaper article containing a picture of defendant, Madsen decided to go to the
Colusa County Sheriff’s Department with the article to express doubt that the
person pictured in the newspaper was the man she saw at the time of the murder;
she was shown the photograph of defendant without his shirt on and she asked to
see a photograph in which defendant’s eyes showed; when she was shown the
videotape of defendant’s arrest and she saw defendant’s eyes, she exclaimed,
“That’s him.”
The trial court denied the motion, ruling that the police did not use an
unduly suggestive identification procedure. In support, the court cited Neil v.
Biggers (1972) 409 U.S. 188, which both parties agreed was the controlling
authority. The United States Supreme Court there held identification evidence
was admissible “even though the confrontation procedure was suggestive” if the
evidence was nevertheless reliable under the totality of circumstances. (Id. at
p. 199.) It identified the factors to be considered in determining the reliability of
the identification as including “the opportunity of the witness to view the criminal
at the time of the crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty demonstrated by
the witness at the confrontation, and the length of time between the crime and the
12
confrontation.” (Id. at pp. 199-200; see People v. Cunningham, supra, 25 Cal.4th
at p. 989; People v. Ochoa, supra, 19 Cal.4th at p. 412.)
Defendant contends that the admission of Janet Madsen’s testimony
identifying him as the perpetrator violated his state and federal constitutional due
process rights to a fair trial. Admission of the identification evidence is error only
if the identification procedure was unduly suggestive and unnecessary and it is
unreliable under the totality of circumstances. (People v. Ochoa, supra, 19
Cal.4th at p. 412.)
Defendant claims that the identification was unduly suggestive and
unreliable. We conclude that the identification evidence was admissible as
reliable under the totality of circumstances, taking into account such factors as
those the high court identified in Neil v. Biggers, supra, 409 U.S. at page 199.
Janet Madsen had a good opportunity to view the perpetrator at the time of
the crime. While parked in a car outside the restroom, Madsen heard a gunshot;
she then saw a man come out of the restroom and walk towards her, coming to
within five to 10 feet of her. Madsen was parked under a light, and she was
“locked in eye-to-eye contact” with the man for 30 to 60 seconds.
Madsen’s description to the police made no mention of the man’s
prominent beard, and the composite drawing prepared by the police with her help
depicted no facial hair and bore little resemblance to defendant. When she later
saw defendant’s photograph in the newspaper showing him with a beard, she was
concerned that the wrong man had been arrested, and she drove to the City of
Colusa to discuss the discrepancy in appearance with the police.
When police showed Madsen a photograph of defendant with his shirt off,
she was uncertain he was the man she had seen come out of the restroom after the
shooting. She could not clearly see the man’s eyes in the photo. She explained
that the man she saw come out of the restroom came within a few feet of her, and
13
she focused on his eyes. When the police later showed her the videotape of
defendant’s arrest, however, her identification of defendant was quite positive. On
seeing defendant’s eyes, Madsen exclaimed: “Oh, my God, that’s him, and I don’t
know how I missed that beard.” Her identification of defendant at the pretrial
hearing and at trial was also certain. At trial, Madsen testified, “I just kept saying,
‘I don’t believe I missed the beard, I don’t believe it,’ ” and “Oh, my God, that’s
the man.” Finally, we note that the length of time between the crime and the
identification was only three weeks.
After considering the totality of circumstances discussed above, we
conclude that Madsen’s identification of defendant was reliable and that the trial
court did not err in admitting the identification testimony at trial.
B. Admission of Evidence
1. Claims of coerced testimony
Defendant
contends
that
his due process right to a fundamentally fair trial
was violated by the admission into evidence of coerced testimony. He first
challenges as coerced a statement to the police by Doreen Westbrook that
defendant shot the victim.
At trial, the prosecutor asked Sheriff Shadinger what he said to Westbrook
and her response when she was arrested at the convenience store. When the
defense interposed a hearsay objection, the prosecutor replied that the testimony
was not being offered for the truth of the matter asserted, but to explain the
conduct of the police after Westbrook’s arrest. The trial court admonished the jury
to consider the testimony only for the limited purpose of showing what the officers
did when they learned that Westbrook identified defendant as the person who had
shot the victim. Sheriff Shadinger then testified that when he asked, “[w]ho shot
the guy in Maxwell?” Westbrook replied “Termite,” defendant’s nickname.
14
The Attorney General argues that defendant may not claim on appeal that
the testimony was inadmissible as coerced because he did not object at trial to its
admission on that ground. (See People v. Ervin (2000) 22 Cal.4th 48, 84.) We
agree.
“[A]s a general rule, ‘the failure to object to errors committed at trial
relieves the reviewing court of the obligation to consider those errors on appeal.’
[Citations.] This applies to claims based on statutory violations, as well as claims
based on violations of fundamental constitutional rights. [Citations.]” (In re
Seaton (2004) 34 Cal.4th 193, 198.) This rule applies equally to any claim on
appeal that the evidence was erroneously admitted, other than the stated ground
for the objection at trial. When an objection is made to proposed evidence, the
specific ground of the objection must be stated. The appellate court’s review of
the trial court’s admission of evidence is then limited to the stated ground for the
objection. (Evid. Code, § 353.) Here, defendant objected at trial to the
prosecutor’s questions to Sheriff Shadinger on the ground of hearsay, not on the
ground of coercion, the claim raised on appeal. Thus, the claim that Westbrook’s
statement to the police was coerced is not properly before us. In addition, Sheriff
Shandinger’s testimony was offered to explain the conduct of the police after the
arrest, and the court immediately instructed the jury that the testimony was
admitted not for its truth but only to show what the police did after learning that
Westbrook had identified defendant as the person who shot the victim.
Defendant next challenges as coerced Doreen Westbrook’s trial testimony.
He argues that the grant of immunity to Westbrook was conditioned on her
testimony at trial being in conformity with her earlier statement to the police.
Such a conditional grant of immunity to an accomplice is a denial of a defendant’s
right to a fair trial if the prosecution’s case relies substantially on the accomplice’s
15
testimony. (People v. Riel (2000) 22 Cal.4th 1153, 1179; People v. Allen (1986)
42 Cal.3d 1222, 1251.)
The Attorney General correctly asserts that defendant forfeited this claim
by failing to object to Westbrook’s testimony at trial as coerced. (Evid. Code,
§ 353.) A claim of coercion is not cognizable on appeal in the absence of an
objection to the testimony at trial. (People v. Hillhouse (2002) 27 Cal.4th 469,
489; People v. Riel, supra, 22 Cal.4th at pp. 1178-1179.) In requiring an objection
at trial, the forfeiture rule ensures that the opposing party is given an opportunity
to address the objection, and it prevents a party from engaging in gamesmanship
by choosing not to object, awaiting the outcome, and then claiming error. (In re
Seaton, supra, 34 Cal.4th at pp. 198-199.) Here, defendant forfeited his claim of
coerced testimony because of his failure to object at trial. Moreover, the claim
lacks merit, as discussed below.
Westbrook was granted immunity during her testimony at the preliminary
hearing. When she was about to incriminate herself, the trial court admonished
her of her constitutional rights to remain silent and to be represented by an
attorney. When she asked for an attorney, the court appointed Attorney Lorie
Ruminson, who was in the courtroom at the court’s request. After a recess,
Westbrook invoked her right to remain silent, and the prosecutor petitioned the
court to grant Westbrook immunity. The court granted the petition.
The order said: “Westbrook shall not be prosecuted or subjected to penalty
or forfeiture for or on account of those facts and acts concerning her involvement
with defendant, Jerry Noble Kennedy, as set forth in the accompanying petition
and declaration.” The accompanying declaration included as an attachment
Westbrook’s statement to Colusa County Sheriff’s Detective Markss describing
Westbrook’s involvement with defendant immediately before, during, and
16
immediately after the murder, and her identification of defendant as the killer.
Westbrook’s testimony at trial was consistent with her earlier statement.
The prosecutor at trial described the immunity as transactional immunity.
“Transactional immunity protects the witness against all later prosecutions relating
to matters about which [the witness] testifies.” (People v. Hunter (1989) 49
Cal.3d 957, 973, fn. 4.) Use immunity, on the other hand, “protects a witness only
against the actual use of [the witness’s] compelled testimony, as well as the use of
evidence derived therefrom.” (Ibid.) Here, the immunity granted Westbrook
extended to all matters that were the subject of her testimony and thus was
transactional immunity. It did not require Westbrook’s testimony at trial to
conform to any statement given the police. In addition, the immunity order does
not state that it is conditioned on conforming testimony.
Neither the order granting immunity nor the record shows that the
immunity granted to Westbrook at the preliminary hearing was conditioned upon
Westbrook conforming her testimony to her earlier statement to Detective Markss
of the Colusa County Sheriff’s Department.
2. Claims relating to the admission of evidence
Defendant challenges four evidentiary rulings by the trial court.
a. Hearsay objection to Doreen Westbrook’s testimony
Defendant contends the trial court should not have overruled his hearsay
objection to certain testimony by prosecution witness Doreen Westbrook. On
direct examination, Westbrook testified without objection by the defense that she
had lied to the police when she was first questioned in Colusa County a couple of
days after her apprehension. In that interview, she said that a person named Billy
Jinks had committed the murder. She explained she had lied because defendant
had called her from the Colusa County jail and told her to say that Billy Jinks had
taken her car and to lie to the police. On cross-examination, the defense sought to
17
impeach Westbrook by, among other things, suggesting that her statements
implicating defendant were the result of threats of prosecution, that she could not
remember what she said when she made statements the night she was arrested
because she was intoxicated on drugs at the time, and that her trial testimony was
influenced by the immunity order.
On redirect examination, the prosecution asked Westbrook to tell what she
said to her friend Debbie Matthews and to Matthews’s husband. When Westbrook
started to say that she told them defendant had called her on the telephone, the
defense objected on the ground of hearsay and the prosecution responded that the
testimony was admissible as a prior consistent statement. The trial court overruled
the objection. Westbrook then said she told Matthews and her husband that
defendant had telephoned her and told her that she “was to put it off on Billy
Jinks, it would be better off for [her] health if [she] did.”
A prior consistent statement is admissible as an exception to the hearsay
rule if it is offered after admission into evidence of an inconsistent statement used
to attack the witness’s credibility, and the consistent statement was made before
the inconsistent statement; or when there is an express or implied charge that the
witness’s testimony was recently fabricated or influenced by bias or improper
motive, and the statement was made before the fabrication, bias, or improper
motive. (Evid. Code, §§ 791, 1236.)
Defendant contends the trial court erred in allowing Westbrook’s testimony
on redirect examination because the defense did not imply in cross-examining
Westbrook that her testimony about the telephone call was fabricated. We
disagree. As the Attorney General points out, Evidence Code section 791 permits
the admission of a prior consistent statement when there is a charge that the
testimony given is fabricated or biased, not just when a particular statement at trial
is challenged. (E.g., People v. Andrews (1989) 49 Cal.3d 200, 210-211; People v.
18
Bunyard (1988) 45 Cal.3d 1189, 1208-1209.) On cross-examination, defendant
attacked Westbrook’s credibility by suggesting that her testimony on direct
examination implicating defendant was biased or fabricated because of threats of
prosecution made by the police and the district attorney, because she was
intoxicated, and because she was granted immunity. Accordingly, Westbrook’s
prior consistent statements were admissible to rehabilitate her and to support her
credibility.
b. Relevancy objection to Doreen Westbrook’s testimony
The trial court admitted testimony by Doreen Westbrook of what George
Westbrook, her brother-in-law, told her before she went to the City of Colusa to be
interviewed by the police. Defendant contends the testimony was irrelevant. We
disagree.
Three days after the police apprehended Doreen at a convenience store, the
police in Colusa County interviewed her. At that time she gave the police two
different statements regarding the murder. In the first of these statements, she
identified one Billy Jinks as the killer. In the second statement, made that same
day, she told the police that defendant was the killer.
At trial, after testifying on direct examination by the prosecution about the
telephone call she received from defendant telling her to identify Billy Jinks as the
killer, Doreen was asked what her brother-in-law George Westbrook said to her
before her interview by the police in Colusa County. The defense objected on the
ground of hearsay. The prosecutor replied that the testimony was being offered to
show Doreen’s state of mind when she made the first statement to the police
identifying Billy Jinks and not defendant as the killer. At defendant’s request, the
trial court instructed the jury that it could not consider the testimony for its truth
but only to understand Doreen’s conduct based on what she had been told by her
brother-in-law George Westbrook. She then testified that after George “stripped
19
all of my jewelry off me,” he told her, “ ‘If you don’t ride the manslaughter you’re
not coming out of Colusa alive.’ ” She said this scared her.
Defendant contends this testimony was irrelevant and thus inadmissible.
Because defendant did not object on this ground, he is now precluded from
asserting this claim. (Evid. Code, § 353.) In any event, the evidence was relevant.
Evidence is relevant if it has any tendency in reason to prove or disprove any
disputed fact of consequence, including evidence relevant to the credibility of a
witness. (Evid. Code, §§ 210, 780.) The testimony in question was relevant to
establishing Doreen’s credibility. It tended to show that her statement to the
police identifying Billy Jinks as the killer instead of defendant was false and that
her testimony at trial that defendant was the killer was true. The trial court
therefore did not err in admitting the testimony.
c. Hearsay objection to Detective Troughton’s testimony
Detective Clinton Troughton read from his police report a statement by
Doreen Westbrook’s brother, Robert Duclos (also known as Robert Lenore), as to
defendant’s explanation about his possession of the murder victim’s credit cards.
Defendant argues that the trial court erred in allowing this testimony as a prior
consistent statement, an exception to the hearsay rule. We reject defendant’s
challenge, for the reasons given below.
After the killing, defendant and Doreen Westbrook drove from the Maxwell
Rest Stop to Rancho Tehama, where they visited her brother (Robert Duclos) and
his girlfriend (Rochelle Hendricks). During direct examination by the prosecution,
Robert Duclos said that he saw defendant going through a wallet while they were
in Rancho Tehama. Defendant told Duclos “a guy pinched my sister in the butt
and [defendant] beat him up for it and took his wallet.” On cross-examination,
Duclos testified that although he was not promised immunity, the prosecutor had
20
shown him letters from the surrounding counties stating that the counties were not
interested in prosecuting him.
The defense re-called Detective Troughton as a witness. On cross-
examination, the prosecution asked Troughton to read from his report as to what
Duclos had told him about defendant’s explanation to Duclos as to the source of
the credit cards. When the defense objected, the prosecution pointed out that the
defense had questioned Detective Troughton about the accuracy of the report and
the statement by Duclos to Troughton. Defense counsel responded that Duclos
“had made different statements in his testimony.” After the prosecution explained
that its question to Detective Troughton sought to elicit a prior consistent
statement by Duclos, the court overruled the defense objection. Troughton then
read a statement by Duclos that, in referring to the victim, defendant said: “Don’t
worry about him, he’s not a problem. I hurt him so bad that an ambulance came
and took him away.”
Defendant claims that the trial court’s evidentiary ruling was wrong
because the prosecution failed to show that Duclos made the statement at issue to
Detective Troughton before making any inconsistent statement. As discussed
above, a prior consistent statement is admissible as an exception to the hearsay
rule if offered after an express or implied charge of bias or fabrication, and the
prior consistent statement was made before the bias or motive for fabrication
arose. (Evid. Code, §§ 791, 1236.) Here, the defense in its examination of Duclos
asserted bias and a motive for fabrication by Duclos when it suggested that his
testimony was influenced by promises from the counties surrounding Colusa
County that they would not prosecute Duclos. Duclos’s statement to Detective
Troughton was consistent with his testimony at trial and was made before any
promises not to prosecute him. Thus, the testimony was admissible as a prior
consistent statement.
21
d. Relevancy objection to Ron Woods’s testimony
Ron Woods testified about a March 19, 1993, gunfight at his apartment that
occurred a few days after defendant’s arrest. Defendant claims that the testimony
identifying the participants in the gunfight was irrelevant and prejudicial.
The police arrested defendant and Ron Woods at the latter’s apartment on
Dawn Court in Sacramento. Woods, who was in custody when he testified, stated
on direct examination by the prosecution that defendant and Doreen Westbrook
brought the murder victim’s credit cards and defendant’s gun to Woods’s
apartment. Woods also testified that defendant told him he had shot someone and
had taken the victim’s credit cards. On cross-examination, the defense sought to
impeach Woods by showing that he had received favorable treatment from the
prosecution. The defense also elicited testimony by Woods that he was not
charged with anything relating to the murder or arising out of his detention at his
apartment, and defendant’s arrest there, although drugs were found at his
apartment and he had committed the offense of being a felon in possession of
guns.
On redirect examination by the prosecution, Woods testified that two men,
John Hancock and Richard Kiyoka, were involved in the shoot-out at his
apartment during which time they shot at him and he shot at them; neither
Hancock nor Kiyoka reported the incident to the police.
Defendant did not object to Woods’s testimony identifying Hancock and
Kiyoka as participants in the shoot-out. He thus has not preserved this issue for
appeal. (Evid. Code, § 353.) In any event, admission of this testimony by Woods
did not prejudice defendant. The testimony concerning the shoot-out and the
identity of the participants was not linked to defendant in any way. It arose in the
context of an attempt by the defense to impeach Woods by showing that Woods
22
received favorable treatment from the prosecution in connection with the shooting
incident that was not related to the murder charge against defendant.
C. Alleged Prosecutorial Misconduct
Defendant raises numerous instances of alleged prosecutorial misconduct
and asserts that these instances taken individually or collectively compel reversal
of his murder conviction. We disagree.
The law governing prosecutorial misconduct is well established. “Conduct
by a prosecutor that does not violate a court ruling is misconduct only if it
amounts to ‘the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury’ [citations] or ‘is so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process’ [citation].”
(People v. Silva (2001) 25 Cal.4th 345, 373; accord, People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 120.) A finding of misconduct does not require a
determination that the prosecutor acted in bad faith or with wrongful intent.
(People v. Crew (2003) 31 Cal.4th 822, 839.) To preserve a claim of prosecutorial
misconduct for appeal, a defendant must object and seek an admonition if an
objection and admonition would have cured the harm. (Ibid; People v. Hill (1998)
17 Cal.4th 800, 820.) Applying these principles here, we review defendant’s
claims of prosecutorial misconduct in sequence.
1. Claim that prosecution improperly elicited evidence of defendant’s
incarceration
During the prosecution’s direct examination of Doreen Westbrook, the
following colloquy between the prosecutor and the witness occurred:
“[Q]: How long have you known [defendant]?
“[A]: About a year and a half or so.
“[Q]: Remember when you first met him?
“[A]: Yeah, at my house, somebody brought him to my house.
23
“[Q]: And did you use to hang out with [defendant]?
“[A]: Not – not really, cause he went back to prison right after I met him.”
Defendant claims that the prosecutor’s questioning constituted misconduct
because the prosecutor knew that the questions were likely to elicit testimony
about defendant’s criminal history. Defendant, however, did not object at trial to
this questioning. Therefore, the claim has been forfeited.
In any event, the claim lacks merit. As the Attorney General points out, the
questioning occurred at the beginning of Westbrook’s testimony and just before
her testimony about the events leading up to defendant’s killing of Glenn
Chambers at the rest stop. It was simply an attempt by the prosecutor to establish
the nature of the relationship between Westbrook and defendant. The question
whether Westbrook used to “hang out” with defendant fit into that context.
Westbrook’s response that defendant “went back to prison right after” she met him
was not a response that the prosecutor could necessarily have anticipated.
Defendant insists that the prosecutor must have anticipated Westbrook’s answer
because when the police asked her on the night she was apprehended how long she
had known defendant, she replied she “met him a year and a half ago . . . then he
went to the pen.” Because the prosecution’s question to Westbrook at trial that
elicited her reference to defendant’s prior incarceration was unlike the question the
police asked her the night she was apprehended, the prosecutor had no reason to
believe that his question at trial would cause Westbrook to mention defendant’s
imprisonment.
2. Alleged prosecutorial misconduct in introducing into evidence a
photograph of defendant’s tattoos
Defendant faults the prosecutor for introducing into evidence a photograph
of defendant’s torso showing tattoos depicting a swastika, the name of his gang on
his chest, and a gun on his abdomen. The Colusa County Sheriff showed this
24
photograph to Janet Madsen before she identified defendant from the videotape of
his arrest, and it was a subject of her testimony regarding her identification of
defendant. Because defendant did not object at trial, he has not preserved this
issue for review. Also, contrary to defendant’s claim, the photograph, which was
actually introduced into evidence by the defense and not the prosecution, was
relevant to Madsen’s identification as it was the photograph shown to her at the
time of her identification of defendant at the police station.
Equally without merit is defendant’s assertion that the prosecutor
committed misconduct by referring to defendant’s gun tattoo in closing argument.
In its cross-examination of defendant’s friend George Hancock, the defense
elicited a statement that Hancock had never seen defendant with a gun. Hancock’s
testimony gave rise to the inference that defendant did not use and was not around
guns. Because the existence of a gun tattoo on someone’s body gives rise to the
inference that that person may be familiar with and be around guns, the evidence
of the tattoo tended to impeach Hancock’s testimony. It was thus a proper subject
of the prosecutor’s closing argument.
3. Claim that prosecution improperly elicited testimony of defendant’s
prior arrest
Defendant accuses the prosecution of engaging in misconduct by asking
two witnesses, John Hancock and Dina McKee, about a prior arrest involving
defendant and firearms.
The prosecution began the redirect examination of defendant’s friend John
Hancock by referring to Hancock’s testimony on cross-examination by the defense
that he had never seen defendant carry a gun. The prosecution then elicited
testimony from Hancock that he, defendant, and Dina McKee were arrested in
June 1992 and that in a car search incident to that arrest the police seized two
pistols. After asking Hancock if the guns belonged to him and being told they did
25
not, the prosecutor remarked, “Supposedly they were Dina’s?” Hancock
responded that the police report stated that the guns were Dina’s.
We reject defendant’s contention that the prosecutor’s questioning was
designed to elicit inadmissible evidence of a propensity by defendant to have guns.
Defendant failed to preserve this claim for appeal by not objecting to the
questioning at trial. Moreover, the questioning was proper to impeach Hancock
because Hancock’s admission that he and defendant were arrested in a car in
which guns were found raised doubts as to the veracity of Hancock’s previous
statement on cross-examination that he had never seen defendant carry a gun.
Nor, contrary to defendant’s argument, does admission of that testimony
violate the evidentiary limitations on the use of evidence of specific instances of
prior misconduct. Those restrictions do not apply to evidence offered to support
or attack the credibility of a witness. (Evid. Code, § 1101, subd. (c).) In addition,
the record does not support defendant’s assertion that Hancock’s statement that he
never saw defendant carry a gun was not admitted for its truth. The admission of
the evidence was not so limited at trial. Finally, we see no impropriety in the
prosecutor’s apparently sarcastic remark, “Supposedly they were Dina’s?,” which
implied that the prosecutor suspected that the guns found in the car actually
belonged to either defendant or Hancock. Although the police report prepared at
the time of the arrest stated that the persons in the car in which the guns were
found claimed the guns belonged to Dina, the prosecutor was not required to
accept this claim as truthful.
On direct examination by the defense, Dina McKee presented an alibi for
defendant by saying that defendant spent the night with her when the murder
occurred. On cross-examination, the prosecution asked about her June 1992
arrest, which occurred at the same time as the arrests of Hancock and defendant,
and inquired whether the guns found in the car were hers. Defendant asserts that
26
the prosecutor’s questions constituted misconduct. We disagree. Evidence that
defendant and McKee had previously been involved together in a criminal activity
was relevant because it cast doubt on the credibility of McKee’s testimony that
defendant was spending the night with her when the murder occurred. (People v.
Freeman (1994) 8 Cal.4th 450, 494.)
4. Alleged prosecutorial misconduct in eliciting testimony regarding
defendant’s gang affiliation and propensity for violence
The prosecutor asked Doreen Westbrook to describe defendant’s mood
after he had used methamphetamine and they were driving from Sacramento to the
rest stop where the murder occurred. Westbrook answered: “He was in a
maniacin’ mood, he was spun.” She defined “spun” as “like you’re rock and
rollin’ . . . don’t care about nothing.” She defined “maniacin’” as a state of mind
that ends in violence with a person feeling “[t]en feet tall and bulletproof. You do
– you do anything you want and you don’t let nobody tell you no. You’re above
the law, you’re above the rules, you break the rules, you do it just to see if you can
get away with it.” Westbrook also testified that she knew where the sound of the
gunshot came from at the rest stop “[b]ecause [defendant] had a gun when we left
Sacramento. We were joking around about robbing people, he was in a maniacin’
mood, I knew where the shot came from.”
Defendant accuses the prosecutor of misconduct by eliciting testimony
from Westbrook that defendant was in a “maniacin’” mood the night of the
murder. Defendant argues that the testimony was both improper opinion evidence
of his propensity for violence and an irrelevant reference to his gang affiliation
with the Sacramaniacs gang. Because defendant did not object to this testimony at
trial, he is precluded from raising these issues on appeal. In any event, as
explained below, defendant’s arguments lack merit.
27
Contrary to defendant’s argument, Westbrook’s testimony was not
objectionable as improper lay opinion evidence. The testimony defined
Westbrook’s use of the term “maniacin’,” which needed explanation because it
lacked a commonly understood meaning. Westbrook’s opinion about defendant’s
state of mind on the night of the murder was admissible because it was based on
her perceptions and helped to better understand her testimony. (Evid. Code,
§ 800, subd. (a); see also People v. Williams (1988) 44 Cal.3d 883, 914-915.)
Nor was Westbrook’s testimony irrelevant. It was relevant because it
described defendant’s state of mind at the time of the murder. In addition,
contrary to defendant’s assertion, the jury would not have understood Westbrook’s
statement defining the word “maniacin’” as referring to defendant’s affiliation
with the gang called the Sacramaniacs. Her definition pertained to a state of mind,
not a gang.
5. Claims of prosecutorial misconduct relating to testimony
concerning immunity
Defendant accuses the prosecutor of misconduct in questioning Doreen
Westbrook about her having been granted immunity. Defendant claims that the
questions misled the jury, unfairly bolstered Westbrook’s credibility by suggesting
“the trial court had given its imprimatur to the prosecution’s decision to grant
immunity,” unfairly implicated defendant in the immunity process, and unfairly
minimized the prosecution’s role in granting Westbrook immunity. Because
defendant did not object at trial to these questions, he has not preserved these
claims for appeal. Moreover, as we will explain, the record does not support his
allegations.
During
direct
examination, the prosecutor elicited from Westbrook the
statement that the issue of immunity did not come up until she testified at the
preliminary hearing, when, in the words of the prosecutor, defense counsel
28
“declared the Fifth Amendment.” (Italics added.) Defendant claims the word
“declared” inaccurately implied that the defense asserted Westbrook’s Fifth
Amendment right. We disagree. As the Attorney General notes, defense counsel
did raise the issue of Westbrook’s privilege against self-incrimination at the
preliminary hearing. Although the prosecutor would have been more precise had
he said that defense counsel “raised the question of” Westbrook’s Fifth
Amendment privilege, instead of saying that counsel “declared” that privilege, the
prosecutor’s description of what transpired at the preliminary hearing was not
inaccurate.
Likewise without merit is defendant’s assertion that the prosecution
unfairly bolstered Westbrook’s credibility by suggesting that the court gave its
imprimatur to the immunity. Westbrook responded “yes” to the prosecutor’s
question that the immunity “was granted by [the prosecutor’s] office with the
approval of the Court, correct?” There was no misconduct. The question merely
informed the jury that Westbrook had received immunity. Here, as in People v.
Freeman, supra, 8 Cal.4th at page 489, “[n]o reasonable juror would interpret the
questions as implying that the judge, or anyone else, had vouched for her
credibility.”
6. Claim that prosecutor improperly bolstered evidence of defendant’s
admissions
Defendant and Doreen Westbrook were at the apartment on Dawn Court in
Sacramento the morning of the murder with, among others, Kimberly Crawford.
During Crawford’s testimony on direct examination, the prosecutor asked her if
defendant had made a statement along the lines of “ ‘I got these [credit] cards from
an old guy who fought back so I shot him.’ ” Crawford responded that she was
not sure defendant said anything about credit cards, but she did recall that
defendant said he shot the man. The prosecutor then asked Crawford whether she
29
remembered telling Detective Markss in a pretrial interview that defendant said he
shot the man because the man put up a struggle. She answered “yes.”
Defendant’s claim of prosecutorial misconduct is based on the assertion
that the prosecutor’s reference to Crawford’s prior out-of-court statement was
improper hearsay because it included an inadmissible prior consistent statement by
her. There was no objection at trial, so the claim is forfeited. Moreover, the
reference was admissible to refresh Crawford’s recollection. (People v. Parks
(1971) 4 Cal.3d 955, 961.)
7. Claim that prosecutor improperly coached Westbrook’s testimony
At an in-chambers conference, defense counsel advised the trial court that
his cross-examination of Doreen Westbrook would concern statements by her
during a polygraph examination. Counsel proposed that Westbrook be given an
opportunity to first review the tape of the polygraph examination outside the jury’s
presence. The prosecution then suggested that court and counsel proceed with the
trial by having other witnesses testify.
Defendant contends that differences between Westbrook’s testimony before
she viewed the videotape of her polygraph examination and after she viewed it
must have been the product of coaching by Detective Markss and thus
prosecutorial misconduct. Nothing in the record supports defendant’s statement
that Detective Markss accompanied Westbrook to the room to view the videotape.
In addition, the differences defendant cites in Westbrook’s testimony before and
after she viewed the videotape of her polygraph examination do not support his
claim of prosecutorial misconduct. Before viewing the videotape, Westbrook
testified it took her an hour and a half to drive from North Sacramento to Rancho
Tehama; after viewing the videotape, she testified the drive took her two hours.
Before viewing the videotape, Westbrook testified that defendant called her from
jail and told her it would be “really wise” if she told the police that Billy Jinks
30
committed the murder; after viewing the videotape, she testified that she was
scared because defendant told her that doing what he asked would be “better for
your health,” a statement Westbrook understood to be a direct threat. The
difference in Westbrook’s testimony on the driving time is relatively minor, and
her testimony about the telephone call from defendant is not in conflict. Finally,
defendant forfeited the claim by failing to object at trial.
8. Claims of prosecutorial misconduct relating to testimony of John
Hancock
Sacramento County Sheriff’s Detective Richard Matranga interviewed John
Hancock twice while Hancock was in custody. At trial, on direct examination by
the prosecution, Hancock denied telling Detective Matranga that defendant had
told him about shooting an old man and taking his wallet, and that defendant had
showed him a gun. On cross-examination by the defense, Hancock testified that
he was defendant’s best friend, that he would never give the police a statement
about defendant’s admitting anything, and that he would “do time” before he
“would snitch somebody off.” On redirect examination by the prosecution,
Hancock denied telling Detective Matranga about his involvement in a shoot-out
with someone named Kiyoka at the apartment of Ron Woods. He also denied
telling Matranga about another shooting involving a man named “Loaf.”
The prosecution next called Detective Matranga as a witness. Matranga
testified that Hancock told him that he ran the Sacramaniac gang; that Hancock
showed him two gang tattoos, one on his back and one on his penis; that Hancock
told him that defendant bragged about the murder and showed Hancock a gun; and
that Hancock provided details of the shoot-out at Woods’s apartment involving
Hancock, Woods, and a man named Kiyoka. Hancock also told Detective
Matranga about a shooting involving a man named “Loaf.”
31
Defendant argues it was misconduct for the prosecutor to elicit the
testimony concerning Hancock’s gang affiliation and gang tattoos. He contends
the testimony was irrelevant. We disagree.
We recognize that evidence of gang affiliation creates a risk that the jury
will infer a defendant’s criminal disposition from the evidence and decide guilt of
the offense charged based on that inference. As we have held previously,
evidence of criminal disposition is inadmissible to prove commission of a specific
act. (People v. Williams (1997) 16 Cal.4th 153, 193.) Gang affiliation evidence
that is otherwise relevant, however, is admissible, although subject to trial court
scrutiny because of its highly inflammatory impact. (Ibid.; People v. Champion
(1995) 9 Cal.4th 879, 921-923.) Here, evidence of Hancock’s gang affiliation was
relevant (Evid. Code, § 210), because the affiliation of Hancock and defendant
with the same gang explained why defendant would have made incriminating
statements about his involvement in the murder to Hancock.
Likewise misplaced is defendant’s claim that the prosecutor on direct
examination of Detective Matranga committed misconduct by eliciting testimony
about Hancock’s involvement in the shoot-out at Ron Woods’s apartment and the
shooting involving an individual nicknamed “Loaf.” This testimony impeached
the inconsistent statements Hancock made earlier while testifying on redirect
examination by the prosecution.
9. Claim of prosecutorial misconduct in eliciting evidence of
incarceration of defense witness’s husband
Defendant accuses the prosecutor of misconduct by eliciting from John
Hancock testimony agreeing with the prosecutor’s comment about defense witness
Dina McKee’s husband being “in the joint now.” In sustaining a defense
objection, the trial court said: “I don’t know any relevance for it.” The court
admonished the prosecution not to “go into it.” The misconduct, if any, was not
32
prejudicial to defendant, because any possible harm was cured by the trial court’s
admonition.
10. Claim of prosecutorial misconduct for asking leading questions
According to defendant, the prosecutor committed misconduct when he
asked leading questions at the guilt phase of the trial. Defendant, however, fails to
identify the questions, instead providing only record citations, a quotation where
the trial court told the prosecutor to “be careful,” and a quotation where the
prosecution asked the court for “a little latitude with this witness” and the court
responded, “I haven’t seen any problem yet.”
The record does not support defendant’s allegation of prosecutorial
misconduct. The parts of the record cited by defendant in support of his claim of
prosecutorial misconduct show nothing more than the normal process of
questioning and objections at trial. For example, defendant cites the following
exchange as indicative of prosecutorial misconduct.
“[Prosecutor] Did you – you knew that what you were doing at that point in
time was against the law, did you not?
“[Defense Counsel] Leading. Form of the question is leading.
“[Court]
Sustained.
“[Prosecutor] Did you know whether or not using stolen credit cards is
against the law?
“[Witness]
Yes.”
We have reviewed defendant’s citations to the record in support of his
allegation and conclude that they do not establish prosecutorial misconduct
because they do not show deceptive or reprehensible methods by the prosecution.
Nor do they show that the trial was infected with unfairness resulting in a
conviction that denied defendant due process. (People v. Coffman and Marlow,
supra, 34 Cal.4th at p. 120.)
33
11. Alleged prosecutorial misconduct at closing argument
Defendant cites as misconduct a number of statements the prosecutor made
during closing argument to the jury. Defendant, however, did not object to any of
the challenged statements and therefore cannot now raise them. (People v. Crew,
supra, 31 Cal.4th at p. 839.)
In any event, we conclude that the statements either were not misconduct or
did not prejudice defendant. During closing argument to the jury, the prosecutor
stated that Manuel Acosta, the truck driver at the rest stop where the murder
occurred, testified that defendant did not look like the man he saw come out of the
restroom and commented, “ ‘Well, I guess I missed the beard.’ ” The statement
about missing the beard, however, was made not by Acosta but by Janet Madsen
who testified that she saw defendant come out of the restroom right after the
shooting. The jurors could not have been misled, because in her testimony
eyewitness Madsen readily acknowledged “miss[ing] the beard.” This, coupled
with defense counsel’s closing argument to the jury that Acosta had testified that
defendant was not the man he saw at the scene of the murder, support our
conclusion that defendant has not shown a reasonable likelihood that the jury was
misled by the prosecutor’s attributing to Acosta the statement about defendant’s
beard. (People v. Brown (2003) 31 Cal.4th 518, 553.)
Defendant
complains
about the prosecutor’s description of defense counsel
Leo Steidlmayer as a “highly paid professional.” In his closing argument to the
jury, defense counsel said that he was in the position of acting as a 13th juror. The
prosecutor responded he had difficulty with that description because defense
counsel, unlike the jurors, is “as much of a – of a highly trained and skilled lawyer
as anybody who is sitting at counsel table here.” A prosecutor’s description of
defense counsel as being a highly trained and skilled lawyer is not misconduct.
Such a statement does not rise to the level of a deceptive or reprehensible attempt
34
to improperly influence a jury. (People v. Coffman and Marlow, supra, 34 Cal.4th
at p. 120; People v. Silva, supra, 25 Cal.4th at p. 373.)
Defendant asserts that the prosecutor improperly “vouched for his case” by
telling the jury that defense counsel’s “idea of blowin’ smoke and roiling up the
waters to try to confuse you is you put everybody else on trial.” It is not
misconduct for a prosecutor to argue that the defense is attempting to confuse the
jury. (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Here, the record
does not support defendant’s characterization of the prosecution’s statement as
attacking the integrity of defense counsel.
We now turn to defendant’s allegation that the prosecutor committed
misconduct by misstating defense counsel’s argument and the evidence. During
closing argument to the jury, the prosecutor stated that defense counsel attributed
eyewitness Madsen’s statement, “That man is the man I saw,” to the morning after
the murder when Madsen assisted Siskiyou County Sheriff’s Sergeant Gary Perry
with the composite drawing. The prosecutor asserted there was no evidence to
support defense counsel’s argument. Defense counsel’s argument, however,
referred to Madsen’s in-court identification, not to her statement at the time of the
composite drawing. Thus, the prosecutor confused defense counsel’s statement
pertaining to Madsen’s in-court testimony with Madsen’s testimony about the
composite drawing. The misconduct, if any, was not prejudicial to defendant,
however, because it is not reasonably likely that the jury misunderstood or
misapplied the comment. It was clear that Madsen’s in-court identification was
the subject of defense counsel’s argument. Contrary to defendant’s assertion, the
prosecutor’s misstatement would not have led the jury to impute any impropriety
to defense counsel.
Defendant also accuses the prosecutor of misconduct in stating in closing
argument to the jury that Ron Woods was not charged with any crimes arising out
35
of the shoot-out at his apartment because of the lack of cooperation from victims
Hancock and Kiyoka. There was no misconduct, for the prosecutor’s comment
correctly reflected the evidence produced at trial: No charges were filed against
Woods because the victims did not report the shooting to the police.
Nor was there misconduct when the prosecutor pointed out to the jury that
after the defense said in its opening statement that it would call Jay Blaylock as a
witness, it did not do so. Blaylock, who was with Janet Madsen at the public rest
stop at the time of the murder, did not testify at trial. It is not misconduct for a
prosecutor to comment on the failure of the defense to introduce material evidence
or to call witnesses. (People v. Mincey (1992) 2 Cal.4th 408, 446.)
Defendant contends the cumulative effect of the alleged instances of
prosecutorial misconduct, which we discussed above, compels reversal of the
judgment. We disagree. Any impropriety by the prosecutor, whether considered
individually or together, did not rise to the level of misconduct that would require
reversal of the judgment.
D. Cumulative Prejudice of Errors at Guilt Phase of Trial
Defendant argues that the cumulative prejudice of the errors he alleges
occurred at the guilt phase of the trial compel reversal of the judgment. But, as
discussed above, any errors that occurred were of an insubstantial nature. Whether
viewed either alone or in combination, the errors did not prejudice defendant.
III. PENALTY PHASE
A. Limiting Defense Closing Argument
Defendant contends the trial court violated section 1095, to his prejudice,
when it conditioned his right to have second counsel argue at the penalty phase on
the prosecution’s option to present a second closing argument to the jury. The
record does not support defendant’s assertion.
36
Section 1095 provides that in a capital case “two counsel on each side may
argue the cause.” The right of each side to present arguments by two attorneys
exists regardless of whether the opposing side presents arguments by two
attorneys. (People v. Bonin (1988) 46 Cal.3d 659, 694, fn. 3.) Violation of this
rule does “not amount to a denial of [a] constitutional right.” (Id. at p. 694.)
In discussing the matter of closing argument, the trial court stated: “So
then number of argument, just a couple of details. You’re entitled to two. Are we
gonna have two each, are we gonna have one each?” The prosecution responded
that it would do one closing argument, but depending on the closing argument by
the defense it would either “waive” or present a second closing argument.
Defense counsel then said, “if they waive that that would cut off our right to a
second argument.” When defense counsel asked the prosecutor to make the
decision before the conclusion of the first argument by the defense, the prosecutor
said it was impossible to do so. The court then told defense counsel: “He wants to
hear your argument before he decides whether to give up or not.” The court made
no further comments. The prosecution then made its closing argument, followed
by closing argument by the defense. At the conclusion of the defense argument,
the prosecution said it saw no need for further argument. Defense counsel
responded: “Matter submitted, your honor.”
The above recitation of what occurred at trial refutes defendant’s claim that
the court precluded the defense from exercising the statutory right to have “two
counsel . . . argue the case.”
B. Alleged Prosecutorial Misconduct
Defendant accuses the prosecution of various acts of misconduct at the
penalty phase.
Earlier, with respect to the alleged prosecutorial misconduct at the guilt
phase, we set forth the governing law. In brief, prosecutorial misconduct occurs
37
only if the actions by the prosecution involve “ ‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury’
[citations] or ‘is so egregious that it infects the trial with such unfairness as to
make the conviction a denial of due process’ [citation].” (People v. Silva, supra,
25 Cal.4th at p. 373.) To preserve a claim of prosecutorial misconduct for appeal,
a defendant must object and seek an admonition if doing so would have cured the
harm. (Ibid.; People v. Hill, supra, 17 Cal.4th at p. 820.)
Defendant has forfeited each claim of prosecutorial misconduct at the
penalty phase because of his failure to object at trial. (People v. Silva, supra, 25
Cal.4th at p. 373; see People v. Miller (1990) 50 Cal.3d 954, 1000-1001.)
Defendant insists that his failure to preserve his claims for appeal should be
excused on the ground that the misconduct rendered the penalty verdict so unfair
and unreliable as to require reversal of the penalty verdict. The record does not
support defendant’s argument, as discussed below.
1. Alleged interference with witness preparation
Defense counsel obtained court orders directing that defendant’s two
brothers, Hank and Buford Kennedy, be transferred from the facilities in which
they were then incarcerated to the Colusa County jail so they could testify on
November 17, 1993, at 9:00 a.m., as defense witnesses at the penalty phase of
defendant’s trial. At 8:55 a.m. on that date, defense counsel advised the court in
chambers that he was informed the night before that the two brothers were not
available and that the jail staff was unable to tell counsel where the witnesses
were. When defense counsel indicated his desire to speak to the two brothers
before they testified, the court assured counsel, “You’ll have that right, no
question.” The prosecutor then mentioned that the two brothers were not going to
be housed at the Colusa County jail because of security concerns. Defense
counsel responded that he had not expected that he “wouldn’t be able to even see
38
them until after the trial started.” The court assured defense counsel he would
“have the time.”
The parties then addressed the admissibility of a videotape and certain
concerns by defendant that some defense witnesses might assert their
constitutional right to not incriminate themselves. When the discussion returned
to the availability of defendant’s two brothers as witnesses, the prosecutor said
that he would make a telephone call at the next break to find out when defendant’s
two incarcerated brothers would arrive at the Colusa County jail, and make
arrangements for them to meet with defense counsel. The court told defense
counsel to let the court know if there were any problems, adding that the court
would “make sure you see ’em at a reasonable time and place.”
The prosecutor later informed the trial court that defendant’s two
incarcerated brothers would be arriving at the Colusa County jail later that
morning, one at 10:30 and the other at 11:30, and that defense counsel would be
given ample time to interview them. When the court told defense counsel “rest
assured that this Court will see that the proceedings afford you ample opportunity
to interview those two witnesses,” defense counsel said that the “issues raised this
morning then are all resolved as far as we’re concerned.” The parties and the
court then proceeded to deal with the admissibility of a videotape and a matter
concerning a juror.
After the prosecution completed its opening statement to the jury, defense
counsel informed the court, “because of the issues we raised this morning we
prefer to reserve our right to make an opening statement at the opening of our
case.” After the prosecution presented its penalty phase witnesses, the prosecutor
told the court and defense counsel that defendant’s two brothers had arrived at the
jail. At defense counsel’s request, the court extended the noon recess to 1:30 p.m.
39
At 1:25 p.m. the court and counsel met again in chambers. Defense counsel
mentioned he had been unable to interview defendant’s two brothers at the jail
because Department of Corrections staff told him that he could not meet with
defendant and the latter’s two brothers at the same time and that any conversations
would have to be conducted over the jail phones, which were monitored.
Arrangements were then made for the three Kennedy brothers to be in adjoining
cells; defense counsel would be outside the cells in the presence of an officer who
was not to communicate with the prosecution. The court then ordered a recess and
asked the jurors to return at 3:00 p.m.
When the court reconvened at 3:00 p.m., the prosecution rested and a
discussion ensued at a sidebar conference whether Buford Kennedy, defendant’s
incarcerated brother, would testify wearing prison clothes and in shackles. The
prosecutor mentioned the safety concerns expressed by a Department of
Corrections officer, described Buford as “damn near 5150” (a reference to a
person being dangerous or gravely disabled within the meaning of Welfare and
Institutions Code section 5150), and said that “his appearance wouldn’t even look
good in a three-piece suit” because of “ink all over his face, tattoo all over his face
. . . .” Defense counsel suggested that Buford Kennedy testify in prison clothes
with handcuffs, but that Hank Kennedy testify in prison clothes without physical
restraints. The defense then called Buford Kennedy as a witness.
Based on the events described above, defendant contends that “court error
here combined with prosecutorial misconduct” to deprive him of his right to
access to witnesses and to present a defense. Not so.
Contrary to defendant’s assertion, the circumstances surrounding his trial
counsel’s access to defendant’s incarcerated brothers, Buford and Hank Kennedy,
did not compel counsel to waive his opening statement at the beginning of the
proceeding. As mentioned earlier, defense counsel expressed a preference to defer
40
an opening statement to “the opening of our case.” This, counsel said, was
prompted by the “issues we raised this morning,” a reference to issues relating to
the possible exercise of the privilege against self-incrimination by potential
defense witnesses John Hancock and Richard Kiyoka. Although defense counsel
initially expressed concern about the adequacy of access to the two jailed brothers,
that issue was later resolved by the trial court, and defense counsel so stated in
court, as we mentioned earlier.
We also reject defendant’s claim that the prosecutor committed misconduct
by denying defense counsel sufficient time to address concerns relating to defense
witness Buford Kennedy’s mental issues. The record discloses that defense
counsel had an opportunity to meet with Buford and Hank Kennedy during the
court recess from 1:45 p.m. to 3:00 p.m., that defense counsel did not express a
need to postpone Buford’s testimony, and that Buford’s testimony was coherent
and lucid. Nor is there any merit to the claim that defendant’s rights were violated
because he was not allowed to speak to his two brothers either personally or
through his attorney privately. The arrangements made and agreed to by the
parties did not preclude defendant from speaking “privately” to either of
defendant’s brothers.
2. Allegation that prosecution made a defense witness unavailable
In the afternoon of November 16, 1993, the day before the beginning of the
penalty phase of defendant’s capital trial, defense counsel learned that several
individuals had been arrested for the attempted murder of John Tucker, also
known as “Loaf.” The persons arrested included John Hancock, who had testified
during the guilt phase of defendant’s trial. Hancock’s attorney later told defense
counsel that Hancock would not testify at the penalty phase because he would
assert his privilege against self-incrimination. Noting that the “Loaf” shooting had
occurred eight months before the arrests of persons involved in that shooting, and
41
that the arrests were made shortly before defendant’s penalty phase trial was to
begin, defense counsel accused the prosecution of having Hancock arrested to
prevent him from testifying for defendant at the penalty phase of defendant’s
capital trial. Defense counsel also moved to exclude evidence relating to the
shooting of Loaf. The prosecution responded by noting that it had given timely
notice of its intent to use the Loaf shooting as evidence of an aggravating factor at
the penalty phase, that the defense motion was not supported by legal authorities,
and that a witness’s right to invoke the privilege against self-incrimination did not
depend on whether the witness had been arrested.
After further argument to the trial court, the defense moved to exclude
evidence of the “Loaf shooting” or in the alternative for a continuance of the trial
to enable the defense to adequately prepare to address such evidence and the
issues raised by the possible assertion by John Hancock of the privilege against
self-incrimination. When the trial court announced it would grant the defense
motion for a continuance if the prosecution intended to proceed with evidence of
the “Loaf shooting,” the prosecution replied it would not introduce the evidence in
its case-in-chief.
Defendant accuses the prosecutor of misconduct by preventing potential
defense witness John Hancock from testifying by having him arrested for the
shooting of Loaf, which in turn led to Hancock’s expected invocation of the
privilege against self-incrimination. To establish a violation of the constitutional
right to the compulsory process of witnesses, the defendant must show, among
other things, “ ‘activity that was wholly unnecessary to the proper performance of
[the prosecution’s] duties and was of such a character as “to transform [a defense
witness] from a willing witness to one who would refuse to testify,” ’ and . . .
interference with the fact-finding process – that is, ‘a causal link between the
misconduct and [the defendant’s] inability to present witnesses on his own
42
behalf.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 471.) The defendant must
also show that the witness’s testimony would have been both material and
favorable. (Ibid.; In re Martin (1987) 44 Cal.3d 1, 31-32.) There is no need here
to evaluate each of these requirements, as defendant has failed to show that the
testimony of potential witness Hancock would have been both material and
favorable. The required showing is not made by defendant’s unsupported
assertion that Hancock “was slated to present evidence in mitigation of
punishment, testimony obviously material and favorable to the defense.” It was
the prosecution that identified Hancock as a witness it intended to call to present
evidence in aggravation at the penalty phase. And Hancock’s testimony at the
guilt phase, which was impeached, undermines defendant’s assertion that
Hancock’s testimony during the penalty phase would have been material and
favorable to the defense.
3. Alleged prosecutorial misconduct in implicating defendant in a
second murder
Defendant accuses the prosecution of misconduct by asking questions
during cross-examination of defendant’s two brothers, Buford Kennedy and Hank
Kennedy, that taken together suggested defendant’s involvement in a second
murder. We disagree.
On cross-examination, Buford Kennedy told the prosecutor he did not want
defendant executed. The prosecutor then asked, “Whether it was one murder or
even if it was two murders?” Buford responded by saying “if it was two murders
or one murder, if he was guilty I feel that he would have copped to it.” Later,
during the prosecutor’s cross-examination of Hank Kennedy, when Hank said he
did not know what defendant did when he was released from prison on March 5,
1993, the prosecutor asked him if he knew “what [defendant] did on March 9,
1993?” Hank answered “no.” The prosecution then asked to approach the bench
43
and, in defense counsel’s presence, said: “My position is that given on direct
testimony and especially the part about where he thinks his brother can lead a
productive life, that it’s proper to impeach this witness with the evidence of the
Loaf shooting.” The court refused to allow the prosecutor to use evidence of the
Loaf shooting. Because of the trial court’s rulings excluding evidence concerning
what was referred to at trial as the “Loaf shooting,” the record discloses very little
about the matter. Presumably, the references to the “Loaf shooting” are to the
attempted murder of John Tucker, also known as “Loaf,” that we discussed in the
previous part.
Defendant’s allegation that the prosecution committed misconduct because
the jury could infer from the cross-examinations of defendant’s brothers, Buford
and Hank Kennedy, that defendant committed a second murder is too speculative.
The prosecutor’s question to Buford Kennedy about a second murder, quoted in
the immediately preceding paragraph, was not connected to any facts about any
murder. The prosecutor’s question to Hank Kennedy, also quoted above, stated a
date, March 9, 1993, presumably the date of the “Loaf shooting” incident, but the
question asked only about a date; it was not connected to anything about the Loaf
shooting or any other factual assertions. We conclude that the jury would not have
inferred from these questions that defendant had committed a second murder.
4. Claim of improper cross-examination by prosecutor
Defense witness Hank Kennedy testified on direct examination that
defendant should not be sentenced to death because he could lead a productive life
in prison. On cross-examination, the prosecutor asked Hank a number of
questions concerning defendant’s criminal background. Hank was asked if it was
a “pretty accurate guess” to say that defendant had been out of jail or prison for
only six months in 11 years. Hank responded, “Probably.” When he was asked
about defendant’s listing his occupation on California Department of Correction
44
records as being a robber, Hank replied, “I’m not gonna deny he’s ever robbed
anyone.” Hank responded to a prosecution question about defendant’s telling him
of “using a sawed-off shotgun on a lady and a kid to do a robbery” by saying
defendant told him “about that but not on a woman and a child, no.” Later during
the cross-examination, the prosecution asked Hank if defendant’s job in 1976 as
an electrician ended because defendant went to federal prison for stealing cars and
taking them across state lines. Hank answered, “I’m not sure what he was in
federal prison for but I believe so.” When asked by the prosecution if defendant
and Hank had been arrested in a “guns and dope case,” Hank replied that the case
was dismissed.
Defendant argues that the prosecutor engaged in misconduct by asking
questions on cross-examination involving prior bad acts by defendant. We
disagree. Evidence of specific instances of conduct is admissible to attack the
credibility of a witness. (Evid. Code, § 1101, subd. (c).) Thus, the prosecution
may cross-examine a defense character witness about acts inconsistent with the
witness’s testimony as long as the prosecution has a good faith belief that such
acts actually occurred. (People v. Barnett (1998) 17 Cal.4th 1044, 1170.)
5. Allegation that the prosecution improperly implied the existence of
facts that could not be proved
In cross-examining defense witness Hank Kennedy, the prosecutor asked
about his numerous prior felony convictions. Hank explained that he was not
convicted of attempted murder but of shooting at an occupied vehicle and that one
of the convictions was not for grand theft from a person but for stealing a backhoe
trailer. The prosecutor also cross-examined defense witness Buford Kennedy
about his numerous prior felony convictions. He denied having been convicted of
assaulting a police officer, claiming the conviction was for assault with a deadly
weapon and did not involve a police officer. On cross-examination of defendant,
45
the prosecutor, referring to the evidence about a shoot-out at Ron Woods’s
apartment involving John Hancock and someone named Richard Kiyoka, asked
defendant: “Did you tell [John Hancock] and Richard Kiyoka to go shoot up Ron
Woods so he wouldn’t testify against you?” Defendant responded, “No sir, I did
not.”
Defendant contends the prosecutor committed misconduct because these
questions imply the existence of facts the prosecutor could not prove. There were
no defense objections to the prosecution’s questions and thus no further inquiry
into or development of the subject matters of the prosecution’s questions.
Accordingly, there is nothing in the record to support defendant’s assertion that
the prosecution could not prove the facts implied in the questions or that the
prosecutor asked the questions in bad faith. (People v. Barnett, supra, 17 Cal.4th
1044, 1170-1171.)
6. Alleged prosecutorial impropriety in asking objectionable questions
Defendant quotes at length from the prosecution’s cross-examination of
Buford Kennedy inquiring into defendant’s criminal record, in the course of which
the trial court sustained a defense objection to one of the questions as
argumentative. Defendant then quotes the following question by the prosecutor
asking Sharon Galiano about a residential robbery committed by defendant, to
which the trial court sustained a defense objection on the ground the question was
leading and suggestive: “Did the defendant . . . make a statement to you while he
was in the house that he wanted to kill your husband?” Finally, defendant simply
gives two reporter’s transcript citations with the notation that argumentative
objections were there sustained, without further elaboration.
Defendant presents no argument and makes no effort to establish that his
quoted portion of the prosecution’s cross-examination of Buford Kennedy, his
quoted question from the prosecution’s direct examination of Sharon Galiano, or
46
his two citations to the reporter’s transcript, individually or collectively, support
his allegation of prosecutorial misconduct. Having reviewed the challenged
testimony, we conclude that they do not.
7. Alleged prosecutorial misconduct during closing argument
During his closing argument at the penalty phase, the prosecutor told the
jury that it should be insulted by defendant’s attitude and demeanor, and by his
comment to the jury that it was wrong in convicting him of the murder. The
prosecutor told the jury it could consider this conduct by defendant as an
aggravating factor. Thereafter, in his closing argument, defense counsel described
the prosecutor’s argument as a “smoke screen” and pointed out to the jury that an
innocent person must maintain his or her claim of innocence.
Defendant
contends
that the prosecutor committed misconduct by telling
the jury that defendant’s continued claim of innocence during the penalty phase
could be considered as an aggravating factor in determining the penalty.
We agree with defendant that it was improper for the prosecutor to state
that defendant’s testimony at the penalty phase that he was innocent was an
aggravating factor. (People v. Fierro (1991) 1 Cal.4th 173, 244.) Defendant
failed to preserve this issue for appeal, however, because he did not object and
request an admonition at trial. In addition, the comment was not prejudicial,
because it was brief and was directly addressed and countered by defense counsel
in his closing argument.
We reject defendant’s additional claim that the prosecution committed
misconduct during its closing argument in telling the jury that defendant deserved
no less punishment than what he inflicted on the murder victim and that defendant
did not show mercy or sympathy to the victim. The argument is permissible under
California law. (People v. Ochoa, supra, 19 Cal.4th at pp. 464-465.)
47
8. Cumulative prejudice of alleged prosecutorial misconduct at the
penalty phase
Earlier, we identified one error at the penalty phase: the prosecutor’s
statement during his closing argument to the jury that it could consider as an
aggravating factor defendant’s continuing assertion of innocence during the
penalty phase after the jury at the guilt phase had convicted him of the murder.
But, as we explained earlier, this error was not prejudicial to defendant.
C. Failure to Instruct on Criminal Activity Involving Force
Defendant
contends
the trial court committed prejudicial error in not
instructing the jury that it could not consider evidence that defendant had
committed crimes other than those with which he was charged unless the jury
found the other crimes were proved beyond a reasonable doubt. Our law does
require the jury to be so instructed. (People v. Avena (1996) 13 Cal.4th 394, 429;
People v. Robertson (1982) 33 Cal.3d 21, 53-54; see CALJIC No. 8.87.) The
failure to do so is prejudicial if it is reasonably possible the failure to instruct
affected the jury’s verdict. (People v. Avena, supra, at p. 429.) The Attorney
General argues that the failure to so instruct the jury here was not prejudicial. We
agree.
The evidence against defendant at the penalty phase consisted primarily of
victim impact testimony, evidence of his conduct underlying his 1986 conviction
for the residential robbery of Sharon Galiano and her four-year-old daughter, and
evidence of his other convictions before the verdict of guilt of the offenses
charged in this case. Defendant’s assignment of error here concerns the trial
court’s failure to instruct as to the evidence of his conduct during the 1986
robbery.
The prosecutor’s closing argument made two related references to criminal
activity involving the use of force or violence or the implied threat to use force or
48
violence involving the 1986 robbery. (§ 190.3, factor (b).) He first commented
that the jury could consider the residential robbery of Sharon Galiano and her
four-year-old daughter and then commented on a letter defendant wrote while
incarcerated at the Sacramento County jail “asking somebody to take care of
Sharon Galiano,” a letter the prosecutor described as threatening Galiano.
The records of defendant’s convictions for the 1986 robbery of Galiano and
possession of a sawed-off shotgun relating to that robbery were before the jury, the
trial court instructed the jury that it could not consider those prior convictions
unless it found beyond a reasonable doubt that defendant was the person convicted
of those crimes, and defendant admitted committing and being convicted of the
robbery. Although defendant denied pointing the shotgun at Galiano’s four-year-
old daughter, he testified that he may have accidentally pointed the gun at Galiano
and that he pointed the gun “at people when [he] walked through the door” of
Galiano’s house. Defendant also admitted to writing a letter while in the
Sacramento County jail “asking somebody to take care of Sharon Galiano.”
Defendant testified that by “tak[ing] care of Sharon Galiano” he meant to try to
bribe her not to testify against him, not to kill her.
It is not reasonably possible in light of the above described evidence that
the trial court’s failure to instruct the jury that it could not consider evidence of
prior crimes unless the jury found the other crimes proved beyond a reasonable
doubt affected the jury’s verdict. With the exception of disputing that he pointed
the gun at Galiano’s four-year-old daughter during the 1986 residential robbery,
defendant admitted the facts underlying the robbery and the robbery conviction.
Even as to the pointing of the gun during the robbery, defendant admitted that he
pointed it “at people” when he came through the door of Sharon Galiano’s
residence. The only people there were Galiano and her four-year-old daughter.
The only evidence before the jury concerning the letter defendant wrote from jail
49
“asking somebody to take care of Sharon Galiano” was defendant’s own testimony
that he meant to have someone bribe, not kill, Galiano. In view of the substantial
aggravating evidence presented, the evidence of defendant’s letter about Galiano
is not such that it would have played any significant role in the jury’s decision.
Moreover, defendant was not entitled to the reasonable doubt instruction
for other crimes of which he had been convicted. The instruction applies only to
unadjudicated violent criminal activity. (People v. Welch (1999) 20 Cal.4th 701,
766.) Here, the other crimes evidence consisted primarily of defendant’s
adjudicated conduct, that is, the conduct that had resulted in his prior convictions
for robbery and illegal weapon possession. The evidence of defendant’s other
criminal activity not resulting in convictions, such as the letter about Galiano, was
relatively insignificant, so that it is not reasonably possible the trial court’s failure
to instruct on the reasonable doubt standard as to those other crimes affected the
jury’s verdict.
Our conclusion that defendant was not prejudiced by the trial court’s failure
to instruct on crimes other than those charged in this case is not changed by
defendant’s assertion, without supporting record citations or elaboration, that the
prosecutor insinuated throughout the case that defendant committed other
threatening or violent criminal conduct. Specifically, defendant claims the
prosecutor referred to: defendant’s unlawful possession of firearms; threats to
Doreen Westbrook; prison assaults; unspecified criminal activity “perhaps”
involving an attempted murder on March 9, 1993 (presumably the “Loaf
shooting”); and a threat to kill Sharon Galiano’s husband. All of this conduct was
either admitted by defendant, was established by records of defendant’s
convictions, primarily concerned individuals other than defendant, or was at most
a passing reference by the prosecutor.
50
D. Automatic Motion to Modify Penalty Verdict
The trial court denied defendant’s automatic motion to modify the jury’s
verdict of death. (§ 190.4, subd. (e).) In denying the motion, the court stated that
it was guided by the statutory aggravating and mitigating factors, and it made a
number of findings. In the course of discussing its findings of aggravating factors,
the court said: “At this point, [defendant] has shown no remorse for his conduct,
in fact denies perpetrating the crime.”
Defendant contends the trial court erred in using defendant’s lack of
remorse as an aggravating factor. Defendant, who had instructed counsel to
submit the motion at issue without argument, did not object at trial and,
accordingly, failed to preserve the issue for appeal. (People v. Martinez (2003) 31
Cal.4th 673, 701; People v. Riel, supra, 22 Cal.4th at p. 1220.) In any event, the
error did not prejudice defendant.
We agree with defendant that lack of remorse cannot be used as an
aggravating factor unless it is a circumstance of the murder. (People v. Crew,
supra, 31 Cal.4th at p. 857; People v. Mendoza (2000) 24 Cal.4th 130, 187.) But
we conclude that there is no reasonable possibility (People v. Avena, supra, 13
Cal.4th at p. 448) the error affected the trial court’s decision, as discussed below.
In discussing aggravating factors, the trial court found that the killing of
Glen Chambers was during a robbery, was intentional, had been planned, and was
committed 10 days after defendant had been paroled. The court also noted
defendant’s prior convictions for robbery and weapons charges, and it mentioned
that defendant had been in prison for 10 out of the past 11 years. As to mitigating
factors, the court stated after considering every possible mitigating factor,
including any circumstances extenuating the gravity of the crime, it found
“nothing except the possibility that there was testimony that Mr. Kennedy used
some narcotics prior to the commission of this offense, this killing.” With respect
51
to defendant’s use of drugs, the court commented that the “particular evidence [of
defendant’s drug use at the time of the crime] is un – unmoving to this Court and
is unconclusive [sic] as the evidence stands at this time.” In short, the court
identified a number of aggravating factors but found only one possible mitigating
factor, which the court described as “unmoving” and “inconclusive.” Under these
circumstances, the trial court’s error in viewing defendant’s lack of remorse as an
aggravating factor did not prejudice defendant.
E. Alleged Violations of International Law
Defendant contends the violations of state and federal law he has asserted
on this appeal also establish that he was denied the right to a fair and impartial trial
in violation of international law. We reject this contention. (People v. Jenkins
(2000) 22 Cal.4th 900, 1055; see People v. Smith (2005) 35 Cal.4th 334, 374;
People v. Brown (2004) 33 Cal.4th 382, 403-404.)
F. Cumulative Error
Defendant contends the judgment must be reversed because of the
cumulative prejudice of errors at the guilt and penalty phases of his capital trial.
Considered individually or collectively, the very few errors at defendant’s trial
were not prejudicial.
IV. CHALLENGES TO DEATH PENALTY LAW
Defendant challenges the constitutional validity of California’s death
penalty law on a number of different grounds. We reject each challenge.
A. Failure to Sufficiently Narrow Eligibility for Death Penalty
Defendant contends California’s death penalty law violates the Eighth
Amendment to the federal Constitution’s prohibition against cruel and unusual
punishment because it does not meaningfully distinguish the cases in which the
death penalty is imposed from the cases in which it is not. He asserts that the
death penalty law contains so many special circumstances making a defendant
52
eligible for the death penalty that it no longer performs the constitutionally
required narrowing function. We have in the past repeatedly rejected this
challenge. (E.g., People v. Crew, supra, 31 Cal.4th at pp. 859-860; People v.
Bolden (2002) 29 Cal.4th 515, 566.)
We also reject defendant’s assertion that the Eighth Amendment to the
federal Constitution prohibits the death penalty as a form of punishment because
the death penalty is not recognized in European countries and therefore is cruel
and unusual. Whether a form of punishment is cruel and unusual under the Eighth
Amendment is determined based on an evaluation of evolving standards of
decency. (Trop v. Dulles (1958) 356 U.S. 86, 100-101.) Although the practices
and norms of other nations can be relevant in determining whether a punishment is
cruel and unusual under the Eighth Amendment, they are not controlling. (Roper
v. Simmons (2005) ___ U.S. ___, ___ [125 S.Ct. 1183, 1200].) What matters are
the standards of decency of the American people. As our high court has stated,
“the ‘clearest and most reliable objective evidence of contemporary values is the
legislation enacted by’ ” our nation’s legislatures. (Atkins v. Virginia (2002) 536
U.S. 304, 312.)
Defendant further contends that our death penalty law violates the Equal
Protection Clause and the Eighth Amendment to the federal Constitution because
it allows the imposition of the death penalty based on the felony-murder rule,
which does not require intent to kill, while a premeditated and deliberate
intentional murder does not necessarily qualify the murderer for the death penalty.
We have previously rejected this contention. (People v. Taylor (1990) 52 Cal.3d
719, 747-748; People v. Anderson (1987) 43 Cal.3d 1104, 1147.)
B. Triple-counting Same Facts
Defendant contends that the use of the same fact – robbery of the murder
victim – (1) to qualify the murder as first degree murder, (2) to make the murder
53
eligible for the death penalty, and (3) as an aggravating factor in deciding whether
the death penalty should be imposed, was impermissible. He argues that multiple
use of the same facts violates the Eighth Amendment, the Fourteenth Amendment,
and the Fifth Amendment to the United States Constitution. We have in the past
rejected this argument (People v. Webster (1991) 54 Cal.3d 411, 455-456; People
v. Marshall (1990) 50 Cal.3d 907, 945-946) and do so again here.
C. Challenges to the Penalty Phase of Trial
Defendant presents a number of challenges to the penalty phase of the trial.
As he acknowledges, this court has in prior decisions rejected these challenges.
We briefly discuss these holdings below.
A trial court is not required on its own motion to instruct the jury not to
consider the same facts as circumstances of the offense and as special
circumstances. (People v. Cain (1995) 10 Cal.4th 1, 68.)
Allowing the jury to consider the circumstances of the crime (§ 190.3,
factor (a)) does not lead to the imposition of the death penalty in an arbitrary or
capricious manner. (People v. Brown, supra, 33 Cal.4th at p. 401.)
The trial court is not required to delete any inapplicable factors from the list
of statutory factors presented to the jury. (People v. Jones (2003) 30 Cal.4th 1084,
1128-1129.)
Sentencing factors do not have to be characterized by the trial court as
aggravating or mitigating. (People v. Brown, supra, 33 Cal.4th at p. 402.) The
use of adjectives in the sentencing statute and instruction such as “extreme” and
“substantial” do not render either unconstitutional. (Ibid.)
The federal Constitution does not require juries to make written findings or
achieve unanimity as to aggravating circumstances. (People v. Brown, supra, 33
Cal.4th at p. 402.)
54
California’s death penalty law is not unconstitutional for not imposing a
burden of proof on the prosecution to prove that death is the appropriate penalty.
(People v. Brown, supra, 33 Cal.4th at p. 401.)
The federal Constitution does not require intercase proportionality review.
(People v. Brown, supra, 33 Cal.4th at p. 402.)
The federal Constitution does not compel a trial court to instruct the jury
that a sentence of life without possibility of parole actually means life without
possibility of parole (People v. Jones (1997) 15 Cal.4th 119, 189-190), or to tell
the jury there is a presumption that life without possibility of parole is the
appropriate sentence (People v. Arias (1996) 13 Cal.4th 92, 190).
DISPOSITION
The judgment is affirmed.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
55
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Kennedy
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S037195
Date Filed: July 25, 2005
__________________________________________________________________________________
Court: Superior
County: Colusa
Judge: S. William Abel
__________________________________________________________________________________
Attorneys for Appellant:
Michael Satris, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves,
Assistant Attorney General, Eric L. Christoffersen and Janis Shank McLean, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael Satris
Post Office Box 337
Bolinas, CA 94924
(415) 868-9209
Janis Shank Mclean
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-8610
Opinion Information
| Date: | Docket Number: |
| Mon, 07/25/2005 | S037195 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Sacramento Office Janis McLean, Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Kennedy, Jerry Noble (Appellant) San Quentin State Prison Represented by Michael William Clough Attorney at Law 6114 LaSalle Ave., #833 Oakland, CA |
| 3 | Kennedy, Jerry Noble (Appellant) San Quentin State Prison Represented by Michael Satris Attorney at Law P. O. Box 337 Bolinas, CA |
| Disposition | |
| Jul 25 2005 | Opinion: Affirmed |
| Dockets | |
| Dec 20 1993 | Judgment of death |
| Jan 6 1994 | Filed cert. copy of Judgement of Death Rendered 12-20-93. |
| Jan 10 1994 | Application for Extension of Time filed By Court Reporter Andrea Freeny to Complete R.T. |
| Jan 11 1994 | Extension of Time application Granted To Court Reporter To 1-25-94 To Complete R.T. |
| Jan 18 1994 | Application for Extension of Time filed By County Clerk to Complete C.T. |
| Jan 21 1994 | Extension of Time application Granted To County Clerk To 2-14-94 To Complete C.T. |
| Jun 18 1998 | Counsel appointment order filed Michael Satris Is appointed to represent Applt on His Automatic Appeal. |
| Jun 22 1998 | Counsel appointment order filed Michael C. Ciraolo Is appointed to represent Applt for Habeas Corpus/Executive Clemency Proceedings Related to the Automatic Appeal. |
| Jul 13 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 14 1998 | Extension of Time application Granted To 9-10-98 To request Record correction |
| Sep 9 1998 | Application for Extension of Time filed To request Record correction |
| Sep 10 1998 | Extension of Time application Granted To 10-13-98 To request Record correction |
| Sep 29 1998 | Compensation awarded counsel |
| Oct 8 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 13 1998 | Filed: Supplemental Proof of Service of Extension of time request |
| Oct 13 1998 | Extension of Time application Granted To 11-12-98 To request Record correction |
| Oct 28 1998 | Compensation awarded counsel |
| Nov 12 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 13 1998 | Extension of Time application Granted To Applt To 11-30-98 To request Corr. of Record. |
| Nov 30 1998 | Filed: Notice of filing of motion to correct, Augment & Settle the Record on Appeal. |
| Nov 30 1998 | Received copy of appellant's record correction motion Appellant: Kennedy, Jerry Noble motion to correct, augment and settle the record (16 pp.) |
| Dec 22 1998 | Compensation awarded counsel |
| Jan 20 1999 | Compensation awarded counsel |
| Jan 20 1999 | Compensation awarded counsel |
| Apr 28 1999 | Compensation awarded counsel |
| Jun 30 1999 | Compensation awarded counsel |
| Aug 11 1999 | Compensation awarded counsel |
| Dec 1 1999 | Compensation awarded counsel Atty Ciraolo |
| Jan 3 2000 | Compensation awarded counsel Atty Ciraolo |
| Feb 16 2000 | Compensation awarded counsel Atty Ciraolo |
| Apr 20 2000 | Compensation awarded counsel Atty Ciraolo |
| Jul 19 2000 | Compensation awarded counsel Atty Ciraolo |
| Aug 21 2000 | Counsel's status report received (confidential) from atty Ciraolo. |
| Aug 23 2000 | Counsel's status report received (confidential) from atty Satris. |
| Nov 6 2000 | Record on appeal filed C-26 (6,499 pps.) and R-9 (2,172 pps.) including material under seal |
| Nov 6 2000 | Appellant's opening brief letter sent, due: 12-18-2000 |
| Nov 6 2000 | Counsel's status report received (confidential) from atty Satris. |
| Nov 16 2000 | Compensation awarded counsel Atty Ciraolo |
| Nov 17 2000 | Compensation awarded counsel Atty Satris |
| Dec 15 2000 | Application for Extension of Time filed To file AOB. (1st request) |
| Dec 15 2000 | Counsel's status report received (confidential) from atty Ciraolo. |
| Dec 20 2000 | Extension of Time application Granted To 2/16/2001 to file AOB. |
| Dec 20 2000 | Extension of Time application Granted To 2/16/2001 to file AOB. |
| Jan 17 2001 | Counsel's status report received (confidential) from atty Satris. |
| Feb 16 2001 | Application for Extension of Time filed To file AOB. (2nd request) |
| Feb 20 2001 | Counsel's status report received (confidential) from atty Ciraolo. |
| Feb 20 2001 | Application for Extension of Time filed To file AOB. (3rd request) |
| Feb 21 2001 | Extension of Time application Granted To 4/17/2001 to file AOB. |
| Mar 21 2001 | Counsel's status report received (confidential) |
| Apr 16 2001 | Counsel's status report received (confidential) from atty Ciraolo. |
| Apr 16 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Apr 17 2001 | Extension of Time application Granted To 6/18/2001 to file AOB. |
| Jun 11 2001 | Counsel's status report received (confidential) from atty Satris. |
| Jun 14 2001 | Counsel's status report received (confidential) from atty Ciraolo. |
| Jun 28 2001 | Application for Extension of Time filed to file AOB. (5th request) |
| Jul 5 2001 | Extension of Time application Granted to 8-15-2001 to file AOB. |
| Aug 7 2001 | Counsel's status report received (confidential) from atty Satris. |
| Aug 7 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| Aug 8 2001 | Compensation awarded counsel Atty Ciraolo |
| Aug 15 2001 | Counsel's status report received (confidential) from atty Ciraolo. |
| Aug 16 2001 | Extension of Time application Granted To 10/15/2001to file AOB. |
| Oct 10 2001 | Counsel's status report received (confidential) from atty Satris. |
| Oct 10 2001 | Compensation awarded counsel Atty Ciraolo |
| Oct 11 2001 | Application for Extension of Time filed To file AOB. (7th request) |
| Oct 16 2001 | Extension of Time application Granted To 12/14/2001 to file AOB. No further extensions of time are contemplated. |
| Dec 12 2001 | Counsel's status report received (confidential) from atty Satris. |
| Dec 12 2001 | Request for extension of time filed To file AOB. (8th request) |
| Dec 17 2001 | Counsel's status report received (confidential) from atty Ciraolo. |
| Dec 19 2001 | Extension of time granted To 2/13/2002 to file AOB. No further extensions will be granted. |
| Jan 16 2002 | Compensation awarded counsel Atty Ciraolo |
| Feb 13 2002 | Counsel's status report received (confidential) from atty Ciraolo. |
| Feb 15 2002 | Appellant's opening brief filed (277 pp. - perm.) |
| Mar 6 2002 | Compensation awarded counsel Atty Satris |
| Mar 7 2002 | Motion to withdraw as counsel filed By atty. Michael Ciraolo, to withdraw as habeas corpus counsel. |
| Mar 11 2002 | Request for extension of time filed To file resp.'s brief. (1st request) |
| Mar 18 2002 | Extension of time granted To 4/17/2002 to file resp.'s brief. |
| Apr 12 2002 | Request for extension of time filed To file resp.'s brief. (2nd request) |
| Apr 18 2002 | Extension of time granted To 5/17/2002 to file resp.'s brief. Supv. Dep. Atty General McLean anticipates filing the brief by 7/15/2002. Only one further extension totaling 61 additional days is contemplated. |
| May 1 2002 | Order filed Good cause appearing, the application of appointed habeas corpus/executive clemency counsel for permission to withdraw as attorney of record for appellant Jerry Noble Kennedy, filed March 7, 2002, is granted. The order appointing Michael Ciraolo to represent appellant Jerry Noble Kennedy for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court, filed June 22, 1998, is hereby vacated. Michael G. Millman, as Executive Director of the California Appellate Project, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Jerry Noble Kennedy. Michael Ciraolo is directed to deliver to Executive Director Michael G. Millman, within 30 days from the filing of this order, his copy of the record on appeal in People v. Kennedy, all case files, and all habeas corpus investigation work product. Mr. Ciraolo also is directed to deliver to Mr. Millman, within 30 days from the filing of this order, all trial files, reports and related materials that he has obtained from appellant's trial counsel, paralegals, experts and investigators, or from any other source. |
| May 9 2002 | Request for extension of time filed To file resp.'s brief. (3rd request) |
| May 16 2002 | Extension of time granted To 7/17/2002 to file resp.'s brief. Supv. Dep. Atty. General McLean anticipates filing the brief by 7/17/2002. No further extension is contemplated. |
| Jul 8 2002 | Request for extension of time filed To file resp.'s brief. (4th request) |
| Jul 18 2002 | Extension of time granted To 8/7/2002 to file resp.'s brief. Supv. Dep. AG McLean anticiaptes filing that brief by 8/7/2002. No further extension will be granted. |
| Aug 6 2002 | Respondent's brief filed (194 pp.) |
| Aug 19 2002 | Request for extension of time filed to file reply brief. (1st request) |
| Aug 20 2002 | Extension of time granted to 10-25-2002 to file reply brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Oct 29 2002 | Request for extension of time filed To file appellant's reply brief. (2nd request) |
| Nov 4 2002 | Extension of time granted To 12/24/2002 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Michael Satris's representation that he anticiaptes filng that brief by 4/1/2003. |
| Dec 19 2002 | Request for extension of time filed to file reply brief. (3rd request) |
| Dec 23 2002 | Extension of time granted To 2/24/2003 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is based upon counsel Michael Satris's representation that he anticipates filing that brief by 4/1/2003. |
| Feb 28 2003 | Filed: Application for relief from default and request for extension of time to file appellant's reply brief. (4th request) |
| Mar 5 2003 | Order filed Appellant's application for relief from default is granted. Extension of time is granted to 4/25/2003 to file appellant's reply brief. Extension is granted based upon counsel Michael Satris's representation that he anticipates filing that brief by 4/25/2003. After that date, no further extension is contemplated. |
| Apr 23 2003 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Apr 25 2003 | Extension of time granted to 5/27/2003 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Michael Satris's representation that he anticipates filing that brief by 5/25/2003. |
| May 29 2003 | Appellant's reply brief filed (132 pp. - per rule 40(k)) |
| Jun 24 2003 | Compensation awarded counsel Atty Satris |
| Feb 25 2005 | Oral argument letter sent advising counsel that court could schedule the case for argument as early as the first May calendar, to be held the week of May 2, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Mar 8 2005 | Case ordered on calendar was Fri. 4/8/05 @2pm - Los Angeles. **To be called and continued to the early May Calendar.** |
| Mar 10 2005 | Motion filed (AA) by appellant for continuance of oral argument. |
| Mar 14 2005 | Filed: appellant's supplement to motion for continuance of oral argument. |
| Mar 14 2005 | Order filed Appellant's motion for continuance of oral argument is granted. The argument is continued to the early May calendar, to be held the week of May 2, 2005, in San Francisco. |
| Apr 1 2005 | Case ordered on calendar 5/5/05 @1:30pm, S.F. |
| Apr 7 2005 | Argument rescheduled 5/3/05 @ 1:30pm, S.F. |
| Apr 8 2005 | Cause called and continued to 5-3-05 1:30 in S.F. |
| Apr 21 2005 | Filed letter from: appellant, dated 4/19/2005, re focus issues for oral argument. |
| Apr 25 2005 | Received: letter from appellant, dated 4/21/2005, re additional authorities for oral argument. |
| Apr 25 2005 | Filed letter from: respondent, dated 4/21/2005, re focus issues for oral argument. |
| May 3 2005 | Cause argued and submitted |
| Jun 29 2005 | Counsel appointment order filed The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Jerry Noble Kennedy, filed May 1, 2002, is hereby vacated. Judd C. Iversen is hereby appointed to represent appellant Jerry Noble Kennedy for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Brown, J., was absent and did not participate. |
| Jun 29 2005 | Compensation awarded counsel Atty Iversen |
| Jul 25 2005 | Opinion filed: Judgment affirmed in full Majority Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin & Moreno, JJ. |
| Aug 8 2005 | Rehearing petition filed appellant's petition. (3287 words; 15 pp.) |
| Aug 8 2005 | Time extended to consider modification or rehearing to 10/21/2005, or the date upon which rehearing is either granted or denied. whichever occurs first. |
| Aug 30 2005 | Counsel's status report received (confidential) from atty Iversen. |
| Sep 15 2005 | Compensation awarded counsel Atty Satris |
| Oct 12 2005 | Rehearing denied Petition for rehearing DENIED. |
| Oct 12 2005 | Remittitur issued (AA) |
| Oct 24 2005 | Received: acknowledgment of receipt of remittitur. |
| Nov 1 2005 | Counsel's status report received (confidential) from atty Iversen. |
| Nov 4 2005 | Related habeas corpus petition filed (post-judgment) No. S138625 |
| Dec 6 2005 | Filed: Declaration of atty Judd C. Iversen (confidential). |
| Dec 6 2005 | Change of contact information filed for: attorney Judd C. Iversen. |
| Dec 14 2005 | Compensation awarded counsel Atty Iversen |
| Dec 16 2005 | Order filed The order filed in the above case on June 29, 2005, is amended to read as follows: The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Jerry Noble Kennedy, filed May 1, 2002, is hereby vacated. Judd C. Iversen is hereby appointed to represent appellant Jerry Noble Kennedy for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 24 months [now 36 months]" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus/executive clemency counsel Michael Ciraolo's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Jerry Noble Kennedy. Brown, J., was absent and did not participate. |
| Jan 4 2006 | Received: letter from U.S.S.C., dated 12/28/2005, advising that time for filing petition for writ of certiorari has been extended to and including 2/9/2006. |
| Feb 14 2006 | Received: letter from U.S.S.C., dated 2-1-2006, advising cert petition was filed on 2-1-2006 and placed on the docket 2-9-2006 as No. 05-9146. |
| Apr 24 2006 | Received: letter from U.S.S.C., dated 4-17-2006, advising that the petition for writ of certiorari was denied that date. |
| Jun 21 2006 | Compensation awarded counsel Atty Iversen |
| Feb 5 2007 | Compensation awarded counsel Atty Iversen |
| Feb 14 2007 | Compensation awarded counsel Atty Iversen |
| May 25 2007 | Order filed (150 day statement) |
| Nov 15 2007 | Compensation awarded counsel Atty Iversen |
| Nov 28 2007 | Compensation awarded counsel Atty Iversen |
| May 14 2008 | Compensation awarded counsel Atty Iversen |
| Jul 7 2008 | Compensation awarded counsel Atty Iversen |
| Jul 23 2008 | Compensation awarded counsel Atty Iversen |
| Dec 24 2008 | Motion to withdraw as counsel filed by Judd C. Iversen, "Motion to Withdraw as Habeas Corpus Counsel" Note: Proof of Service for motion to withdraw as counsel, application to file declaration of Dr. Alan B. Schwartz Under Seal and lodged declaration is attached to motion to withdraw. |
| Dec 24 2008 | Filed: by Judd C. Iversen, "Application to File Declaration of Dr. Alan B. Schwartz Under Seal Pursuant to California Rule of Court, rule 8.160(e). |
| Dec 24 2008 | Lodged: by Judd C. Iversen, CONDITIONALLY UNDER SEAL, Declaration of Dr. Alan B. Schwartz. (filed under seal pursuant to court's order of January 21, 2009) |
| Jan 21 2009 | Filed: by Judd C. Iversen, Attorney at Law, *****UNDER SEAL***** Declaration of Dr. Alan B. Schwartz |
| Jan 21 2009 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed habeas corpus/executive clemency counsel for permission to withdraw as attorney of record for condemned prisoner Jerry Noble Kennedy, filed December 24, 2008, is granted. The order appointing Judd C. Iversen as habeas corpus/executive clemency counsel of record for condemned prisoner Jerry Noble Kennedy, filed June 29, 2005 (as amended Dec. 16, 2005), is hereby vacated. On the court's own motion, Michael W. Clough is hereby appointed to represent condemned prisoner Jerry Noble Kennedy for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Iversen is hereby directed to deliver to Clough, within 60 days from the filing of this order, all case transcripts, case files, habeas corpus investigation work product, trial files, investigation reports, 60-day status reports and all related materials that he has obtained from condemned prisoner Jerry Noble Kennedy or from Kennedy's appellate, trial or prior habeas corpus counsel, paralegals, experts and investigators, or from any other source. |
| Jan 21 2009 | Order filed Good cause appearing, appointed habeas corpus/executive clemency counsel Judd C. Iversen's "Application to File Declaration of Dr. Alan B. Schwartz Under Seal Pursuant to California Rules of Court, Rule 8.160(e)," filed December 24, 2008, is granted. The court expressly finds that the factors enumerated in California Rules of Court, rule 2.550(d), support granting the application to file under seal. |
| Briefs | |
| Feb 15 2002 | Appellant's opening brief filed |
| Aug 6 2002 | Respondent's brief filed |
| May 29 2003 | Appellant's reply brief filed |
