Filed 12/15/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S040703
v.
Los
Angeles
Superior Court No.
JAMES ROBINSON, JR.,
PA007095
)
Defendant and Appellant.
____________________________________)
Defendant James Robinson, Jr., appeals from a judgment of the Los Angeles
Superior Court imposing a sentence of death following his conviction of two counts of
1
first degree murder of James White and Brian Berry (Pen. Code, § 187, subd. (a)) and
one count of second degree robbery (id., § 211). The jury found true both robbery-
murder and multiple-murder special-circumstance allegations. (§ 190.2, subd. (a)(3) &
(17).) The jury also found true the allegations that defendant personally used a firearm in
the commission of the offenses. (§§ 1203.06, subd. (a)(1); 12022.5, subd. (a).) After the
initial penalty phase proceedings ended in mistrial, a new jury was selected to consider
the question of penalty, and that jury fixed the punishment at death. In addition to
imposing a judgment of death for each murder conviction, the trial court sentenced
defendant to the midterm of three years for the robbery plus four years for the weapons
enhancements. Defendant’s appeal is automatic. (§ 1239, subd. (b).)
1
All further statutory references are to the Penal Code unless otherwise indicated.
1
We affirm the judgment in its entirety.
I. FACTS
A. Guilt Phase Evidence
1. The
prosecution’s
case
Defendant James Robinson, Jr., was a student at California State University,
Northridge (CSUN), where he lived in a dormitory and had a part-time job on campus. In
the spring of 1990 he had not paid his tuition or student fees and stopped attending
classes. Defendant moved to a condominium, which he shared with roommates near the
CSUN campus. In August 1990 he began a part-time job at a nearby Subway sandwich
shop, where he worked for approximately five months. Stuart Schlosser, owner of the
Subway shop, described defendant as a courteous and cooperative employee, but also
noted that defendant and another employee had been “let go” after he (Schlosser)
confronted them concerning money that was missing and warned that, if the money was
not returned, they would be “terminated.” After leaving employment at the Subway
shop, defendant continued to patronize the shop and had pleasant interactions with
Schlosser.
Defendant found a part-time job as a meat wrapper at a supermarket and remained
there for three months. In April 1991 defendant’s credit union assessed various
overcharge fees and ultimately closed his checking account because he had written more
than three overdrawn checks in the prior six months. A second supermarket hired
defendant as a part-time employee in May 1991. Meanwhile, defendant’s newspaper
subscription was cancelled for lack of payment, and a debt collection agency pursued him
concerning other obligations. Defendant cashed his paychecks at the supermarkets where
he worked and kept most of his money in currency. The credit union ultimately reversed
some of the overcharge fees, and defendant was able to honor each of the returned
checks.
2
Defendant terminated his condominium lease in May 1991 and moved into an
apartment occupied by Tai Williams (Williams), his friend since seventh grade. Williams
shared that apartment with his girlfriend, Donna Morgan, and their baby daughter.
During this period, defendant began to work full time for Lucky’s supermarket in the
meat department, where he met Dennis Ostrander (Ostrander), who occasionally loaned
defendant money for lunch or bus fare.
Williams owned a gun, as did another mutual friend, Tommy Aldridge (Aldridge),
whom defendant also had known since seventh grade. Williams frequently took
defendant and Aldridge to a nearby shooting range for target practice. In early June
1991, defendant purchased an inexpensive .380 semiautomatic handgun to use for target
practice. He testified that he purchased the firearm because previously at the practice
range he had been forced to rent expensive guns for which ammunition also was quite
costly, and he wanted instead to have a simple and serviceable gun that would use less
expensive ammunition. After the mandatory 15-day waiting period expired, defendant
took possession of the gun on June 18, 1991.
Williams testified that defendant’s behavior then changed and that he began to
handle and play with the gun and became “obsessed” with it. In addition, Williams
testified, defendant “became, quote, unquote, a bigger man, you know, because he had all
this protection behind him so now he could walk and talk big.” Williams explained that
defendant’s possession of the gun gave him “an attitude, like he was just invincible” and
that “wherever he went the gun went. . . . And you could just tell, you know. When
someone changes you can just tell.”
Williams also testified that, when defendant still was working at the Subway shop
and on numerous occasions well before defendant moved into Williams’s apartment in
June 1991, defendant mentioned the possibility of robbing the Subway shop because he
needed money. Williams related that defendant said the shop would be an easy target
3
“because he . . . knew the place.” According to Williams, he told defendant he was crazy
and assumed defendant was joking.
These conversations, Williams explained, recurred on numerous occasions after
defendant moved into Williams’s apartment in June 1991. Williams recounted that
defendant told him how he planned to rob the Subway shop and repeated that he would
do so because he needed money: “He told me he was going to go in and order some
food. After that he was going to hold ’em up, and if, when he went in, . . . they were
people that he knew he would have to kill them, shoot them execution style.” According
to Williams, defendant also spoke specifically of his “need to get his hands on some
money,” the layout of the shop, the absence of security cameras, the use of pliers to
remove money from the shop’s safe, and the relative ease of escaping through the shop’s
back door.
Williams testified that he went with defendant to the Subway shop on one
occasion after defendant had ceased working there and that defendant, after joking with
the employees, commented to Williams as they left the shop, “Well, too bad if they are in
there. Too bad. I’ll have to kill them if they are in there.”
Aldridge testified that he was present at Williams’s apartment when,
approximately one week prior to the commission of the crimes, defendant spoke of his
need for money to pay various bills and his plan to commit a robbery at either the
Subway shop or a gas station, or perhaps to rob a person walking on the street.
According to Aldridge, defendant raised the subject again two days later, also while at
Williams’s apartment, with Williams and Donna Morgan also present. On that occasion,
defendant focused his plan upon the Subway shop at which he had worked. According to
Aldridge, defendant asserted that he “knew the hours. He knew the people who worked
there. He knew . . . where the safe was and what he decided to do was pick this
individual Subway because it was the easiest target for him to rob.”
4
Aldridge recounted a third conversation that occurred at Williams’s apartment, in
which defendant repeated his plan to rob the Subway shop that weekend and execute the
employees who were on duty at that time by “lay[ing] them down and blow[ing] them
away at the back of their heads, using his words.” Aldridge testified that he and Williams
were “pretty much trying to discourage [defendant] from trying to rob somebody. We
knew we had no control over [him]. He had just purchased a gun. He was really excited
about that. We were more or less trying to save his life and getting him out of a bad
situation.” Nevertheless, Aldridge testified, defendant stated that although he “felt bad”
that he would have to kill people whom he knew, he also repeatedly stated that he needed
money and didn’t “give a damn. They are going to die because I need the money.”
Aldridge asserted that he declined defendant’s request for a ride to the planned robbery
because “one, . . . it was a crazy idea, and two, my car was being painted that weekend.”
Aldridge asserted that neither he nor Williams believed that defendant actually would
commit the planned robbery, because defendant “was one for talking and not doing
things.”
Williams further testified that on Saturday, June 29, 1991, he informed defendant
that defendant would have to move out of the apartment because he (defendant) had told
Donna Morgan “things that weren’t true” (that Williams had been unfaithful to her) and
because defendant had caused Williams’s telephone to be disconnected due to
nonpayment of defendant’s long distance bills. During that conversation Williams left
defendant alone in the apartment living room at one point, and thereafter Williams and
Donna heard defendant load his gun. Williams testified that Donna mentioned that
defendant was loading his gun and that Williams replied to her, “don’t worry, he is not a
fool.”
5
Williams testified that, after defendant left the apartment, he checked the “gun
2
box” that defendant kept in the living room on the side of the couch and found it empty.
Defendant returned to the apartment half an hour later and asked to speak with Williams,
who met him outside the front door. Williams testified that defendant was depressed and
crying and that he told Williams that he loved Williams like a brother, did not want
Williams to be “like him,” and wanted Williams to be “better than him.” According to
Williams, defendant then gave him a note, the general contents of which he could not
recall, but the last line of which read, “pray for me.”
Because defendant had no other place to go that night, Williams and Donna agreed
to let him remain in the apartment until the next morning. Defendant again departed from
the apartment at approximately 11:30 p.m. Williams testified that he believed defendant
took his gun because he heard defendant handling it only shortly beforehand, and because
defendant “always had it.”
Rebecca James (James) resided in an apartment next to the Subway shop, which
was located approximately five blocks from Williams’s apartment. At approximately
1:30 a.m. on Sunday, June 30, as James walked home from a date, she passed the Subway
shop. The shop was well lit and she saw three males inside: one White person behind the
counter, who appeared to be an employee; one Black person in front of the counter, who
appeared to be a customer; and a third person, who was White. James testified that the
Black person was holding what she thought or assumed was a metal pan. She thereafter
described hearing a loud sound, which she assumed was the metal pan being dropped to
the floor. James explained that after she heard the noise, she “immediately saw the
customer [the Black person] either run around the counter or jump on the counter and
2
As defense counsel emphasized on cross-examination, this conflicted with
Williams’s preliminary hearing testimony, in which he twice asserted that he had not
checked the gun box.
6
over. I thought maybe he was chasing him.” James assumed that the three were simply
“roughhousing,” proceeded to walk to her own apartment, and saw nothing more.
At approximately 1:45 a.m., another person — David Kallman — approached the
shop, noticed “a body with blood around it,” and telephoned 911. Police arrived at the
scene at approximately 2:00 a.m. and found Brian Berry lying dead in a pool of blood
near the counter. A Subway employee, James White, was found lying facedown in a pool
of blood behind the cash register, alive but mortally wounded. Brian Berry had been shot
twice, once in the cheek from 12 to 18 inches away and a second time while the gun was
in contact with his head, just above the right ear. James White had been shot with a gun
that was in contact with the crown of his head when fired. A forensic pathologist
testified that the trajectory of the bullet that struck White was consistent with the victim
having been shot while kneeling. All three bullets were recovered.
The cash register was empty of all paper currency, and the shop’s floor safe was
open. Testimony revealed that approximately $580 had been taken from the cash register
and the floor safe (including approximately $200 in paper currency and rolled coins that
were missing from the safe). Of this sum, between 60 and 75 $1 bills, some of which had
been kept in the safe for making change, were missing.
The cash register’s journal tape showed that the last transaction had taken place at
1:32 a.m. — an order for a turkey and bacon sandwich, a seafood sandwich, and two tuna
salads. The order had been subtotaled, but the items apparently had not been paid for.
Investigators found a plastic Subway bag containing a wrapped turkey and bacon
sandwich in an alley outside the shop’s back door. The prosecution’s fingerprint expert
testified that defendant’s left index fingerprint and left thumbprint were found on the
bottom left-hand corner of the plastic Subway bag. According to that witness, analysis of
the position of the two prints — both of which were on the same side of the bag —
disclosed that they “could not [have been] placed” on the bag at the same exact time, but
must have been placed on the bag at different times. The three bullets recovered from the
7
victims’ bodies were examined by an independent firearms expert who testified that, in
his opinion, each had been fired from the gun later confiscated from defendant upon his
arrest and could not have come from any other weapon. Finally, investigators recovered
a shoe print from the top of the Subway shop’s counter, but were unable to match that
print with the single shoe seized from defendant’s residence immediately following his
arrest.
Defendant subsequently returned to Williams’s apartment, where Williams heard
defendant enter at approximately 3:00 or 3:30 a.m. on June 30, 1991. Williams testified
that when he awoke in the morning, defendant was gone, but his personal belongings still
were there. According to Williams, defendant returned to the apartment later that day
and was “very excited, kind of hyper almost” and asked whether Williams had read the
newspapers. Williams responded “no,” and defendant told Williams that there had been a
robbery at the Subway shop. Williams testified that defendant then gave him $60 in cash
for his share of the apartment telephone bill and said that he had made living
3
arrangements in the dorms at CSUN.
Later on Sunday, June 30, Aldridge “saw on the news [that] the specific Subway
that [defendant] had planned to rob had been robbed and two people had been murdered,
just as [defendant] said he would murder them.” Aldridge immediately telephoned
Williams, who also had seen the report. Aldridge testified that defendant telephoned him
later that evening and was “very hyper. . . . He constantly told me he had a surprise for
me. And I asked him specifically if he had done the murders and robbed the Subway. He
giggled. He would not tell me no, but he wouldn’t tell me yes.”
3
On cross-examination, Williams acknowledged that previously, at the preliminary
hearing, he had testified that defendant had paid the $60 “a couple of days before he
moved out” of the apartment.
8
Defendant was scheduled to work in the supermarket meat department on Sunday,
June 30, but telephoned to say that he was ill. At approximately 11:00 a.m. that day,
defendant rented an apartment from Donna Lopez, producing $400 in cash in $10 and
$20 bills. Lopez testified that she advised defendant that she could not accept cash and
that she needed to run a credit report. Defendant returned shortly thereafter with a
completed application and two money orders for $400 total, plus $25 in $1 bills for the
credit check. He moved into the apartment the next day.
Rebecca James, who had observed the interior of the Subway shop at or around
the time of the crime, was contacted by the police on June 30 and described the Black
man whom she had seen as being in his early twenties, “approximately 5-11,” “not real
Black in color,” with “big lips” and “short cropped hair, Afro style.”
Defendant attended his job at the supermarket on July 2. Ostrander, who also was
on duty at that time, testified that he was busy with customers but that defendant at one
point grabbed his arm and said “I need to talk to you about something.” According to
Ostrander, defendant inquired whether Ostrander knew about the Subway killings.
Ostrander replied that he was unaware and testified that defendant replied, “well, there
was killings at the Subway shop. I popped those two kids.” Ostrander testified that he
did not believe defendant and that he replied, “Yeah, right.” In response, Ostrander
asserted, defendant showed him a small handgun that defendant kept in his right sock.
According to Ostrander, defendant told him that he had been wrongly accused of
stealing money from the Subway shop and had been upset about that false charge.
Ostrander recounted that defendant said he had been in the shop’s parking lot for an hour
with a friend, planning the robbery. And then, Ostrander asserted, defendant “told me
how he did everything.”
“He said he went into the shop to make it look like he was purchasing a sandwich
. . . and looked around. . . . He said he noticed that there was somebody sitting at a booth,
a young kid. . . . And . . . the kid made a remark to him, ‘hey, don’t I know you from
9
somewheres?’ [¶] And [defendant] told me he said back to the kid, ‘no, I don’t know
you. . . .’ [¶] And the kid said, ‘oh no, I do. I know you from somewheres.’ [¶]
[Defendant] told me that he . . . knew he had to pop that kid because . . . he knew that kid
would remember him.[4] [¶] And at that time he pulled the gun out and made both of
them go around the back of the counter because he said he knew the safe was in the floor.
And also, he wanted to keep the guy away . . . from the cash register . . . because he knew
there was a buzzer . . . that was supposed to be there. [¶] And when he walked him up to
the safe, he made the guy unlock the safe. And as soon as he unlocked the safe he said
the guy that was unlocking the safe that was working there, he had his back to
[defendant], and [he] shot him in the back of the head. And at that time he said the kid
turned around and the guy just looked at him, and he shot him again.”
Ostrander continued: “He said that . . . he was pissed about [the gun] because he
said it didn’t have enough, excuse my language, ‘fucking killing power.’ [¶] And at that
time he said the one that opened the safe . . . went down on the ground. And then the
other kid in the shop started to run. And . . . [defendant] caught him on the left side of
the temple of the head and shot him in the side of the head, and he fell down on the
opposite side of the counter. [¶] And he said that . . . he went over to the other kid and
put the gun up to his head and the kid, he said he was laying in a puddle of blood crying
and screaming, and he pulled the trigger and it went ‘click, click,’ and he said the gun ran
out of ‘fucking bullets.’ [¶] And then he had a brown bag with him that he carried . . . so
he could pick . . . up [the cartridges] so nobody could trace it. And he forgot to do that
when he first fired the gun . . . [a]nd . . . couldn’t find all the bullets. . . . [¶] He said
4
Defendant apparently was referring to Brian Berry, who was in the Subway shop
visiting his friend James White. Berry previously had worked at one of the supermarkets
where defendant had been employed and apparently recognized defendant from that
experience.
10
when he ran out of the shop, the kid on the outside of the counter that was laying in the
blood . . . was still screaming and stuff like that, and he ran out of bullets. And at that
time he said he knew the kid was living, and he just ran out of the shop.”
Ostrander added that defendant told him that the Subway employee who had
opened the safe was one of the persons who had told Subway management that defendant
earlier had stolen money from the shop and that defendant “had a grievance against him,
and that both victims had pleaded, ‘[p]lease don’t shoot me. Don’t shoot me.’ ”
Ostrander further testified that defendant told him that he took “a little less than 500
bucks” — and that when defendant told him “all of this,” he “absolutely [did] not”
believe defendant, because he did not seem to be the type of person who would commit
such acts.
Aldridge recounted that he had additional telephone conversations with defendant
on July 1 and 2 and that, during the latter conversation, defendant directed Aldridge to go
to an abandoned gas station and telephone him at a specific number from a phone booth
there. Aldridge, accompanied by his friends Raquel Rose and Wendell Jones, drove to
that location as directed and, while standing at the phone booth, Aldridge heard defendant
call him from across the street. Aldridge testified that he reentered his car, drove across
the street, and picked up defendant, who directed that Aldridge drive circuitously to
defendant’s apartment. Aldridge testified that defendant, contrary to his normal
character, was extremely nervous and patted him down “to see if I had a gun.”
Aldridge testified that defendant was carrying his gun without its clip but with a
bullet in the chamber and that once they were inside defendant’s apartment, Aldridge
insisted that defendant place his gun on a shelf where all could see it. Thereafter,
Aldridge recalled, he and defendant walked outside alone and Aldridge asked defendant
whether he had committed the murders. Defendant responded again in a giggling manner
and, smiling broadly, said “yeah, I blew them away.” Aldridge explained, “he knew what
the subject would be about, and after I asked him, he just let loose. It was a big laugh and
11
a big yes.” Aldridge recounted: “He . . . told me [that] . . . to avoid being id’d, he felt
bad about it, but he had to blow them away, and he described [how] he shot one of them
behind the head and another one on the side of the head and he wasn’t sure if he was dead
yet, so he shot the other guy behind the head again.” According to Aldridge, defendant
committed the crimes because “he needed the money.” Defendant told Aldridge that he
had gathered approximately $600 or $700 in the robbery. Defendant treated the group to
food and drinks, and they spent the night together at his apartment.
After Aldridge drove defendant to his supermarket job the following morning,
Aldridge telephoned Williams. Aldridge testified that he did not want to turn defendant
5
in, but believed that Williams would take that step. Williams and Donna Morgan did so,
and Aldridge eventually also contacted the police and cooperated with them.
The witness who lived near the Subway shop, James, learned that a reward was
being offered in connection with the crime investigation, and her family arranged for her
to meet with a private attorney in connection with any possible reward. On July 9, 1991,
James helped the police produce a composite drawing of the Black man she had seen
inside the Subway shop and later testified that the completed sketch looked “something
like” the man she had seen.
The sketch showed a man without eyeglasses. Various witnesses testified that
defendant usually wore glasses but sometimes did not.
Although James had been unable to identify defendant from a photographic lineup
shown to her a few days after the crimes, at the trial nearly two years later, James was
5
In his opening brief, defendant repeatedly emphasizes that, at one point during
Aldridge’s testimony, Aldridge stated that he had not wanted “to turn Tai in.” (Italics
added.) Defendant asserts that Aldridge “later corrected himself, stating that he had
meant to say ‘James’ [that is, defendant]. ” (Italics added.) In fact, as the record
discloses, the witness immediately corrected himself, saying, “I mean, excuse me, turn
James [defendant] in.”
12
“absolutely positive” that defendant was the man she had seen in the Subway shop.
Nevertheless, James acknowledged, there were dissimilarities between defendant and the
man she recalled having seen and described to the police: James did not recall the man
wearing eyeglasses, and she recalled the man as having a rounder build and face than
6
defendant’s as he appeared at trial.
Dennis Ostrander further testified that, despite having been told by his own
girlfriend about the Subway crimes, he still had not believed defendant’s story, and for
that reason did not disclose to the police, until after defendant had been arrested, the
admission that defendant had made to him. Ostrander explained that defendant
previously had made up various stories “to impress me or whatever,” but that he had
begun to believe defendant’s story when, upon departing at the end of one of his shifts, he
was met in the parking lot by a pair of Black men who told him to “keep [his] fucking
mouth shut.” Thereafter, according to Ostrander, the two men, both wearing sunglasses,
met him as he arrived for work and stared at him for approximately 30 seconds. At that
point, Ostrander stated, he “knew [he] had a problem,” went inside the market, called a
meeting of his supervisors, and told them “what’s going on.” Ostrander testified that he
subsequently received numerous threatening telephone calls at his workplace and that his
employer moved him to three different stores during a six-month period in response to
those threats. Ostrander also testified that, after he attended the preliminary hearing in
this case, his supervisor told him not to go to work that day, because other supermarket
employees had reported that two men with sunglasses had been waiting for him at the
meat department for about 20 minutes. Ostrander explained that he was kept off the work
schedule for a few days thereafter. Finally, Ostrander testified that once, while driving to
6
Various other witnesses commented that at the time of trial, defendant appeared
slimmer than he had earlier.
13
discuss these matters with a supermarket supervisor, he was run off the road, but was told
by supermarket management that it was unnecessary to file a police report concerning
that incident and that the supermarket would protect him by moving his work location
from one store to another. Ostrander conceded that, because of these experiences, he
feared for his own safety and once had told police officers that if the case against
defendant “goes to trial I am not going to remember anything.”
On
cross-examination,
defense counsel confronted Ostrander with a prior
statement Ostrander had made to the police, in which he had said: “I just want to be
truthful. I will go to the court for you, but that’s my terms and I want to do it. And if I
have to ask the police department to help me out with [my employer] with a lawyer
stating, okay, this man, we are going to need him. This is the terms. You are going to
give him a settlement and it is not going to be no $50,000 or something because he
cannot live. I want to get something going for myself.” Ostrander explained his
comments as reflecting his frustration that, because he had reluctantly become a witness
in this case, he had “lost” his 11-year career at the supermarket and had sought a
settlement from the market so that he could relocate. When asked by defense counsel
whether the above quoted statement “represent[s] your feelings on the subject?”
Ostrander responded: “My feelings is I feared for my life and wanted to move away.”
Nine days after the crimes were committed, defendant was arrested on the street in
front of his apartment. He was not wearing eyeglasses. He waived his Miranda rights
(Miranda v. Arizona (1966) 384 U.S. 436) and agreed to speak with the police. The
police report’s summary of that interview reads as follows: “[Defendant] denied both the
murders of James White and Brian Berry, and the robbery of the Subway sandwich shop.
[Defendant] claimed that on the date of the crime, 6-30-91, he was visiting a CSUN
student, Etsuko Sugita. He was visiting with her until about 0140/0145 hours.
[Defendant] said that he did not have his gun with him because when he left the
14
apartment earlier in the evening he could not find it. [Defendant’s] statements to the
detectives included “I always carry the gun with me. I carried it all the time until this
happened.” A transcript of the tape-recorded interview was prepared.
2. The
defense
case
Defendant testified on his own behalf. He denied committing the robbery or the
murders, denied having the various conversations recounted by Williams, Aldridge, and
Ostrander, and denied much of the testimony by other witnesses. He testified he was
frightened when he spoke to the police, and assumed he had been arrested because he is
Black and formerly had worked at the Subway shop. Defendant further explained that he
was nervous and embarrassed during the interview because he knew who had committed
the crimes, but thought that the police would not believe his story about being at the
scene and for that reason did not tell the full truth at that time. He also testified that he
began wearing eyeglasses in third grade and cannot see clearly without them.
Defendant
asserted
that
Williams had made various comments about robbing the
Subway shop. Specifically, defendant testified that Williams had picked him up at least
once from his shift at the shop and had remarked that the enterprise did not appear to be
making money. Defendant testified that, in response, he showed Williams hourly logs
reporting the sums that had been collected. Defendant further testified that, in early June
1991 (while defendant was living at Williams’s apartment), Williams raised the idea of
robbing the Subway shop after Williams and Donna Morgan watched a crime program on
television. As defendant described it, Williams was sitting on the living room floor,
holding his baby, and commented, “Hey, if you rob the Subway, you can go out the back
door, can’t you?” Defendant testified he replied by observing that such a plan would not
work, because a certain gate was kept locked. Defendant added that Williams again
brought up the subject approximately one week prior to the commission of the crimes,
when he and defendant were at the target practice range. At that point, according to
15
defendant, Williams asked him, “if you shoot people in the Subway, can’t you kill them
in the refrigerator?” Defendant recounted that he responded, “if you shoot anybody in a
place like that, you’ll lose your hearing.” Defendant testified that he began to believe
that Williams “was a little bit overboard with this,” but that defendant “did not worry
about it.”
Defendant testified that when he lived with Williams and Donna Morgan, they
bickered constantly, were unfaithful to each other, and called upon him to help settle
disputes that arose between them. Defendant also asserted that when he left Williams’s
apartment on the evening prior to the Subway crimes, he placed three $20 bills on a
counter in the living room to cover his share of the telephone bill. He further testified
that when he returned to the apartment shortly thereafter to speak with Williams, he
assured Williams that he was not trying to interfere with Williams’s relationship with
Donna and told Williams that he (Williams) would be a “better man” if he took
defendant’s advice and applied for a job at a supermarket, which in turn would provide
benefits for Williams’s child. Defendant also recounted that he told Williams not to
worry about him and that he understood that Williams had to “do what you have to do.”
Defendant denied Williams’s testimony that he gave Williams a note. Defendant asserted
that he asked, “what’s going on?,” and that Williams responded, “meet me at the Subway
at one o’clock.”
Defendant testified that, after he left Williams’s apartment, he walked to a
Kentucky Fried Chicken restaurant where he kept his bicycle locked and rode it to the
supermarket to speak with an acquaintance who previously had offered to share an
apartment with him, in order to make arrangements for new housing. The acquaintance
was not at work. Defendant testified that he then went to the CSUN dorms to visit a
Japanese student named Etsuko, whom he had met earlier that evening, and made plans to
meet her at her dorm at midnight. Defendant testified that he left Etsuko’s dorm after
1:00 a.m. and did not care that he was late for his appointment with Williams at the
16
Subway shop at 1:00, because he had since come to the conclusion that he “did not want
to hear anything that [Williams] had to say” to him. Nevertheless, defendant testified, he
decided to walk the half- or quarter-mile to the Subway shop, because he thought
Williams would be upset with him for failing to arrive as planned at 1:00 and defendant
wanted to be able to later tell Williams that he indeed had been there after the meeting
time and simply had tired of waiting for him. Defendant further explained that he
planned to be able to describe to Williams the employees who had been working that
shift, in order to prove to Williams that he had been at the shop after 1:00 a.m.
Defendant testified that as he entered the shop he noticed a person with a bloody
face sitting on the floor facing the counter — a position that, defendant conceded on
direct examination, was different from that shown in the crime scene photos. Thereafter,
defendant claimed, he heard the two-by-four board that was used to bolt the shop’s back
door drop to the ground, and he then heard the distinct sound of two sets of footsteps in
the back of the shop. Defendant described one set of the footsteps as sounding “like
tennis shoes” and making a “chirping” noise and the other set as sounding “like a
different shoe, a heavier shoe.”
Defendant asserted he walked toward the back of the shop, jumped over another
person lying on the ground behind the cash register, looked around a corner, and saw the
back door closing slowly, as if under its own motion. Defendant testified he ran out the
back door, saw a departing 1990 Mustang, and chased after it. According to defendant,
the car’s brake lights illuminated, revealing white light emitted from broken plastic
panels on each side. Defendant asserted he realized at that point that the car was
Williams’s (who drove a gray 1990 Mustang with broken tail lights). Defendant
explained he “immediately thought that I should take something and let him know that I
know what he did.” According to defendant, “when I looked down I saw the [Subway
sandwich] bag. I went to reach for it and then something told me don’t touch anything so
I didn’t, and then I ran.” Later in his testimony, defendant explained: “When I looked
17
down I saw the bag and the logo, and I could see the asphalt up under it so there was
nothing in the bag. And I had went to pick it up, and then I just thought don’t touch it.
And there was nothing in the bag that I can remember seeing. I saw clear through the bag
to the asphalt. It was dark beneath.” Asked if he recalled “actually touching the bag
itself,” defendant responded: “In a way I do, but I don’t think that I had — I don’t
believe that I had actually lifted it. I had never completed a stand from off the ground
where I had bent over to touch it. Right then I let go before I began to lift up.”
Defendant twice demonstrated for the jury how he had bent down and touched the bag by
pinching it between his left forefinger and thumb, and he reiterated that the bag he had
touched had been empty.
Thereafter, according to defendant, he ran down the alley and “thought about
going down to the police station but didn’t know if that was the right thing to do.
Because I knew who did it personally. [¶] I began to think . . . [w]hen I was crossing the
street . . . ‘why did he ask me to meet him there.’ And then I begin to wonder if he was
going to kill me because he was acting like he was mad at me that night I left. So I didn’t
know what to do.”
Defendant testified that, when he arrived back at Williams’s apartment in the early
hours of Sunday, June 30, he “tried not to go to sleep so that I wouldn’t get confronted”
by Williams or be “caught off guard” by him. On cross-examination, defendant
acknowledged he was armed with his own gun at that time.
Defendant
further
testified
he left the apartment at 6:00 on Sunday morning,
June 30, checked into a nearby hotel, and then departed to look for an apartment to rent.
Defendant stated that Aldridge had paged him numerous times at work following the
Subway crimes and that he finally telephoned Aldridge because the constant pages were
annoying. Defendant asserted he agreed to let Aldridge come to see his new apartment so
that he (defendant) “would be able to know whether Tai had intended to do what he did
. . . .”
18
On cross-examination, the prosecutor quoted extensively from the transcript of
defendant’s postarrest interview, which revealed that defendant repeatedly and
emotionally had denied being at the Subway shop on the morning when the crimes were
committed. The prosecutor exposed and highlighted scores of inconsistencies in
7
defendant’s testimony and ultimately asked defendant why the jury should believe his
story and disbelieve the numerous witnesses who had testified contrary to his version of
the events. Defendant responded that nearly everyone else who had been called by the
prosecution to testify at his trial had lied — some witnesses, about “a lot of things”;
others, about “a few things” — and that he had “tried” to tell “nothing but the truth.”
Los Angeles Police Officer Peggy Moseley, one of the investigating officers in the
matter, was called to testify by defendant and recounted that eyewitness James had been
unable to identify defendant in a photographic lineup conducted three days after the
8
Subway crimes.
7
For example, the following exchange occurred concerning statements made by
defendant at the time of his arrest:
“Q. . . . Did you tell Detective Richardson ‘Do I seem like I am lying? Do I look
like it?’ Did you say that?
“A. Yes, sir.
“Q. At that time you were crying about all this too at the same time, weren’t you?
“A. Yes, sir.
“Q. At that time you were lying through you teeth, weren’t you?
“A. Yes, sir.”
8
Defendant argues in his reply brief that respondent fails to present an accurate
picture of the guilt-phase facts, because respondent’s recitation highlights evidence
tending to show that defendant was in financial difficulty in the months prior to the
robbery and the homicides. Defendant’s criticisms lack merit. Indeed, defendant’s own
accounting of the guilt-phase facts is itself improper: in both his opening brief and reply
brief, defendant repeatedly augments his description of the facts with numerous citations
(footnote continued on following page)
19
B. Penalty Phase Evidence
After finding defendant guilty of the charged offenses and making true findings on
the two special circumstance allegations, the jury heard penalty phase evidence and
ultimately deadlocked seven to five in favor of imposing a sentence of death. The court
declared a mistrial as to penalty, after which defendant’s trial counsel (Bruce Hill) was
9
relieved due to a conflict and replacement counsel (Richard Leonard) was appointed to
represent defendant. Nine months later, the court empanelled a new jury and the
prosecution presented, in essence, the evidence set forth above, detailing the
circumstances of the crime: defendant had financial problems in the months prior to June
1991 and was living with friends because he could not afford an apartment of his own; he
purchased a handgun in early June 1991 and spoke repeatedly of robbing the Subway
shop; on June 29, 1991, defendant robbed the Subway shop and fatally shot each of the
two victims in the head; and defendant thereafter admitted doing so to his friend Aldridge
and his coworker Ostrander. (Aldridge testified on direct examination that both he and
Williams had received $7,000 in reward money that had been offered in connection with
(footnote continued from preceding page)
to the record of the penalty-phase retrial — testimony that was not before the jury that
heard and tried the guilt-phase issues.
9
The nature of the conflict was as follows: In early June 1993, Hill had
commenced representing another inmate, Anders. Subsequently, Anders informed Hill
that, in May 1993, while defendant was awaiting the jury’s verdict in the first penalty
trial, defendant confessed to Anders that he had killed the two victims and Anders had so
informed the prosecution. Numerous proceedings ensued, during which it became clear
that, among other things, the prosecution might call Anders as a witness at defendant’s
penalty phase retrial. Hill eventually moved to be relieved in both matters. Upon
granting Hill’s motion in the present case, the trial court commented that it did so “[w]ith
great reluctance. He has served the defendant well. [¶] I stated many times that in my
experience in almost ten death penalty cases I have both participated in as a lawyer and
presided over as a judge, Mr. Hill’s performance was by far the best.”
20
the Subway crimes.) Finally, as explained below (pt. II.C.4), the victims’ relatives
testified concerning the devastating impact of the killings on their own lives.
Defendant again testified on his own behalf, essentially repeating his testimony at
the guilt phase of the trial. In addition, defendant described his childhood and his brief
service in the United States Marine Corps. He explained that he had dropped out of
college because he had misspent financial aid money that had been granted to pay for his
housing expenses, and that he also had written a few bad checks in May and June of
1991, but assertedly the bank erroneously had failed to honor some of his checks.
Defendant denied robbing the Subway shop or killing the two victims and asserted that
Tai Williams was the true perpetrator of the crimes. Defendant explained that he
previously had lied to the police and had not implicated Williams, because defendant did
not trust the police and was frightened. Defendant repeatedly stated that he now was
telling the truth and that the various prosecution witnesses who testified otherwise were
lying.
Thirteen
witnesses
testified extensively on defendant’s behalf. Some explained
that they had met defendant as a child when his mother had joined a church choir group
and that they found him to be nice, quiet, nonviolent, responsible, and mild-mannered.
Others — such as former neighbors at college — gave similar testimony.
Defendant’s mother testified that she was strict when raising defendant and his
sisters and that she remained protective of defendant when he was in college, sometimes
visiting him two or three times a week and supplying him with money and groceries. She
also explained that after defendant misspent the financial aid money that had been
intended for his housing expenses, she met with defendant and school officials and
arranged to repay the school more than half of the funds, with the understanding that
defendant would repay the balance. Defendant’s mother characterized him as meek,
mild, and soft-hearted, and testified that when he telephoned her in mid-June to tell her
21
that he was staying with Williams, she became angry and told him to return home, but he
refused.
Defense counsel also introduced six photographs of defendant, depicting him
(a) during a family vacation cruise celebrating his 16th birthday, (b) during a visit to
Hearst Castle in San Simeon, (c) in second grade “when he first got his glasses,” (d) at an
Order of the Eastern Star banquet that defendant attended with his mother and sisters as a
Junior Mason, (e) in a helicopter, along with his sisters, at a Young Marine Corps camp,
and, finally, (f) graduating from high school.
In rebuttal, the prosecution presented the testimony of the detective who had
interviewed defendant on the day of his arrest. The officer recounted that defendant
repeatedly and forcefully had denied being present at the Subway shop on the night of the
crimes.
II. DISCUSSION
A. Asserted Errors During Selection of the First Jury
The court prepared, and prospective jurors completed, a detailed juror
questionnaire. Defendant challenges the use and administration of the questionnaire and
the resulting jury selection process in this case. Indeed, in the course of his combined
210 pages of briefing on this subject, he argues that this case “presents virtually every
imaginable form of error which can possibly occur in voir dire and jury selection.” We
address immediately below the challenges that affect the first trial. We shall consider in a
subsequent section (pt. II.B.1) defendant’s additional voir dire challenges relating
specifically to the penalty phase retrial.
1. Claims concerning Code of Civil Procedure section 223
At the time of the first and second trials in this matter, Code of Civil Procedure
section 223 provided that, in a criminal case, the court “shall conduct the examination of
prospective jurors,” but that the parties “upon a showing of good cause” may
22
“supplement the examination.” (As added by § 7 of Prop. 115, approved by electorate
eff. June 6, 1990; see generally People v. Taylor (1992) 5 Cal.App.4th 1299, 1307-1309
10
(Taylor) [describing the history of the statute].) By contrast, in civil cases, at the time
of the trials in this case (as now), Code of Civil Procedure section 222.5 generally
conferred a right of attorney voir dire.
Defendant contends that the restrictions imposed by Code of Civil Procedure
section 223 upon voir dire in criminal cases violated his equal protection rights under the
state and federal Constitutions. We reject that claim for the same reasons that we
recently set forth in People v. Ramos (2004) 34 Cal.4th 494 (Ramos): “The right to voir
dire the jury is not constitutional, but is a means to achieve the end of an impartial jury.
(People v. Estorga (1928) 206 Cal. 81, 84.) . . . . ‘[T]here is no constitutional right to any
particular manner of conducting the voir dire and selecting a jury so long as such
limitations as are recognized by the settled principles of criminal law to be essential in
securing impartial juries are not transgressed.’ (People v. Boulerice (1992) 5 Cal.App.4th
463, 474 (Boulerice).) [¶] Federal and state courts have held, however, that the
Legislature may establish reasonable regulations or conditions on the right to a jury trial
as long as the essential elements of a jury trial are preserved, including number of jurors
(12), unanimity, and impartiality. (Boulerice, supra, 5 Cal.App.4th at p. 474.) The
purpose of Code of Civil Procedure former section 223 was to curb commonly known
abuses during the voir dire process in criminal cases. (Boulerice, supra, 5 Cal.App.4th at
p. 474.) [¶] As the People observe, therefore, the statute’s distinction between criminal
and civil voir dire is constitutional as long as it is rationally related to a legitimate state
10
“As amended effective in 2001, this statute now confers upon counsel for the
parties a limited right to examine prospective jurors, following the court’s initial
examination.” (People v. Stewart (2004) 33 Cal.4th 425, 455, fn. 18 (Stewart); see Stats.
2000, ch. 192, § 1.)
23
purpose under the rational relationship test, a test met here. (People v. Leung (1992) 5
Cal.App.4th 482, 496 (Leung).) By enacting Code of Civil Procedure section 223, the
voters sought to prevent abuse of the jury selection process in criminal cases. Prevention
of abuse of a statutory right is a legitimate purpose, and the voters’ action was aimed at
achieving a legitimate purpose rationally related to the distinction made by the law.
(Leung, supra, 5 Cal.App.4th at p. 496.) Because the classification drawn by Code of
Civil Procedure section 223 was rationally related to a legitimate state purpose, it did not
deny defendant his equal protection rights under the California and United States
Constitutions. (Leung, supra, 5 Cal.App.4th at p. 496.)” (Ramos, supra, 34 Cal.4th 494,
512-513.)
Defendant also argues that reversal is required because the trial court did not
understand the extent of its discretion under Code of Civil Procedure section 223. We
reject defendant’s claim.
Defense counsel moved unsuccessfully under that statute for both attorney-
conducted voir dire and individual sequestered voir dire concerning the issue of death
qualification. At the hearing on that motion, the trial court discussed a number of cases
cited by defense counsel, including Taylor, supra, 5 Cal.App.4th 1299. Defendant
focuses upon one sentence of the court’s description of Taylor, in which the court
asserted, “A trial court is not allowed to ask open-ended questions but may ask those
questions that could call for a yes or no answer.” We agree that the trial court’s
characterization of Taylor was inapt — that case held only that open-ended questions
were not constitutionally compelled in that case (see id., at pp. 1315-1316). But the
record in the present matter discloses that the court’s extensive 20-page juror
questionnaire (which was, of course, part of the voir dire process itself) contained
numerous open-ended questions (such as “what, if anything, have you already learned
about this case or about the defendant?”). Moreover, during the court’s own voir dire
examination of the prospective jurors, it did occasionally ask open-ended questions
24
(inquiring, for example, “what are those situations?” in response to a prospective juror’s
assertion that he could vote for the death penalty in some situations). In any event, the
record demonstrates the trial court’s general awareness — at both the first trial and the
penalty phase retrial — that it possessed discretion to conduct oral voir dire as necessary
and to allow attorney participation and questioning as appropriate. For example, at the
start of the first trial, the court specifically advised the parties that it did not preclude
“any consideration of additional questions on a juror by juror basis, and I will consider
each request individually as they come up.” Moreover, as further explained immediately
below, defendant has not shown that the voir dire examination conducted by the trial
court in this matter was inadequate.
2. Claims of error concerning the jury selection process
Defendant claims that the trial court’s voir dire examination was insufficiently
comprehensive, thereby impairing both defense counsel’s ability to make challenges for
cause and the trial court’s ability to rule properly on those challenges, and that “there is
no guarantee that the jurors selected in either phase of the capital trial were fair and
impartial.” As noted above, the trial court required all prospective jurors to complete a
20-page juror questionnaire that asked 56 questions, many with subparts, calling for more
than 90 total responses. Although the court offered counsel the opportunity to suggest
modifications to the questionnaire, the record does not reflect that either party did so.
The resulting questionnaire required the prospective jurors to provide answers to a
broad range of questions. Each juror was directed to state his or her name, age, sex, area
of residence, occupation and employer, total family income, former occupations, and
prior places of employment, as well as whether he or she had served in the Armed Forces,
and if so, whether he or she had any involvement with the military police or military
justice system. The questionnaire inquired as to each prospective juror’s marital status,
as well as the names, ages, occupations, and employers of spouses and children. It also
25
probed each prospective juror’s level of education, as well as any legal or medical
training.
Some questions required only “yes” or “no” answers or other similarly brief
responses. Many urged the prospective juror to explain his or her answer to open-ended
questions such as inquiries regarding any experience visiting an incarcerated friend or
family member, any association with attorneys, law enforcement officials, psychologists,
or psychiatrists, and any prior jury service. Each prospective juror was asked whether he
or she (or a close friend or relative) had been involved in any criminal incident. Other
questions probed each prospective juror’s ownership or use of weapons, participation in
neighborhood crime prevention groups, and pressing business or personal matters or
health problems that could affect the prospective juror’s ability to sit through a lengthy
trial.
The questionnaire further explored whether each prospective juror would have
difficulty following the law as given by the trial court, even if he or she disagreed with
the law. Each was asked whether he or she had “any feelings against the defendant solely
because the defendant is charged with this particular offense . . .” and whether the “mere
fact that criminal charges had been filed against the defendant” caused the prospective
juror to conclude that the defendant is “more likely to be guilty than not guilty.”
Each prospective juror was asked whether he or she knew “anything about this
case other than what you have heard in open court,” or was acquainted with defendant or
the attorneys. Follow-up questions inquired: “What, if anything, have you already
learned about this case or about the defendant? Where did you learn this? Did this
information make you favor the prosecution or the defense?” Additional questions
inquired about newspapers or periodicals frequently read, radio and television news
broadcasts frequently heard or watched, the most recent book read, specific news stories
or topics followed by each prospective juror, and participation in civic, social, religious,
or volunteer work or organizations.
26
The questionnaire probed, in open-ended questions, each prospective juror’s
willingness to “stay as long as is necessary to reach a verdict” and to keep an open mind
until all the evidence was presented and arguments were heard. Each prospective juror
was told that parties, attorneys, or witnesses “may come from a particular national, racial,
or religious group” or have “lifestyles different from your own,” and each was asked,
“Would that fact affect your judgment or the weight and credibility you would give his or
her testimony?” Each also was asked: “Do you know of any reason why you would not
be a completely fair and impartial juror in this case regardless of whether the victim was
male or female, an adult or child, related to the defendant, or a stranger, etc.?”
Finally, a separate five and one-half page section of the questionnaire probed each
11
prospective juror’s attitude concerning the death penalty.
The trial court conducted further voir dire examination of each prospective juror,
first asking whether he or she wished to change any response set forth in the written
questionnaire, then additionally questioning each person who failed to respond to any
written inquiry or who gave ambiguous, conflicting, or otherwise problematic answers to
those inquiries. Finally, the trial court asked each prospective juror a series of four
12
questions concerning his or her attitude regarding the death penalty.
11
The questionnaire employed at the penalty phase retrial was essentially
identical — it was modified only by eliminating questions related to determination of
defendant’s guilt and the existence of the special circumstances.
12
Defendant erroneously asserts that “[o]f the 18 jurors actually selected to hear the
case, 16 had undergone absolutely no questioning in court . . . .” The four questions
asked of all prospective jurors in open court were:
(1) “Do you have such conscientious objections to the death penalty that,
regardless of the evidence in this case, you would refuse to vote for murder in the first
degree merely to avoid the death penalty issue?”
(footnote continued on following page)
27
a. General challenges to the voir dire process
Defendant claims the voir dire examination was inadequate because (1) the
questionnaire itself was unduly lengthy and complex; (2) the questionnaire was “poorly
administered,” in that prospective jurors were pressured to complete the forms quickly,
with many spending less than an hour doing so, and some of the completed forms
contained inaccuracies; (3) the trial court displayed a “cavalier attitude” when it
conducted only “rushed” and “superficial” follow-up questioning that did not clarify
confusion experienced by some prospective jurors; (4) the court improperly conveyed,
through the style and tenor of its questioning, that “the important thing was for the jurors
to provide the ‘correct’ answer” and did not “approach voir dire with an interest in
discovering information about [the] prospective jurors’ real views and attitudes,” but
instead was “solely interested in impaneling a jury as quickly as possible”; (5) the court’s
voir dire exhibited a pro-prosecution and pro-death-penalty bias; and (6) the court’s voir
dire examination did not provide sufficient information with which to determine the
parties’ challenges for cause.
Because defendant failed to object or suggest modifications to the questionnaire,
he has forfeited any challenge to its length and asserted complexity or to any other aspect
(footnote continued from preceding page)
(2) “Do you have such conscientious objections to the death penalty that,
regardless of the evidence in this case, you would automatically vote for a verdict of not
true as to any special circumstance alleged merely to avoid the death penalty issue?”
(3) “Do you have such conscientious objections to the death penalty that, should
we get to the penalty phase of this trial, and regardless of what the evidence is in this case
you would automatically vote for a verdict of life imprisonment without the possibility of
parole and never vote for the death penalty?”
(4) “Do you have such conscientious opinions regarding the death penalty that,
should we get to the penalty phase of this trial, and regardless of what the evidence is,
you would always vote for death and never vote for life imprisonment without the
possibility of parole?”
28
of its contents. (People v. Avena (1996) 13 Cal.4th 394, 413 (Avena).) In any event, on
the merits, no basis for reversal appears.
It is established that a trial court “is in the best position to assess the amount of
voir dire required to ferret out latent prejudice, and to judge the responses” (Taylor,
supra, 5 Cal.App.4th 1299, 1314), and hence a trial court has “ ‘great latitude in deciding
what questions should be asked on voir dire.’ ” (People v. Earp (1999) 20 Cal.4th 826,
852, quoting Mu’Min v. Virginia (1991) 500 U.S. 415, 424 (Mu’Min).) In the present
case, “[v]iewing the voir dire record as a whole, we cannot say that the voir dire was
inadequate and that the resulting trial was fundamentally unfair.” (Stewart, supra, 33
Cal.4th 425, 458.)
Defendant observes that the trial judge distributed the questionnaires to
prospective jurors midmorning and repeatedly admonished that they be returned to the
court “by noon today, no later than 1:30 . . . this afternoon.” The trial judge also
informed the prospective jurors that the courtroom would be closed between noon and
1:30 p.m. and that, if the form could not be returned by noon, they would need to wait to
do so until the court reconvened at 1:30 p.m. According to defense counsel at trial, most
jurors took approximately 45 minutes to complete their forms, which, defendant
calculates, averages approximately 28 seconds per response. From this, defendant
argues, prospective jurors must have been pressured into completing the forms quickly
and, he theorizes, inaccurately. In support, defendant observes that a few prospective
jurors left some questions blank, thereby demonstrating that they were rushed or
confused.
As the trial court observed, however, many of the questionnaire inquiries could be
answered quickly with a few words, and most of the forms were fully completed, many
with thoughtful written answers to the various open-ended questions. Questions that any
prospective juror did not respond to were in turn repeated by the judge during the in-court
voir dire examination of that prospective juror and, in some instances, the exchange
29
disclosed that the prospective juror had not been confused, but simply had left items
blank in lieu of responding “no” or “inapplicable.” Prospective jurors who gave
inconsistent or ambiguous answers were asked follow-up questions by the trial court and,
in each instance, the confusion was dispelled and an answer given. Defendant fails to
identify any prospective juror who indicated to the court any difficulty in completing the
questionnaire in the time provided.
Nor do we believe that the record supports defendant’s claim that the court’s voir
dire examination of the prospective jurors was unduly rapid or otherwise improper. The
record shows instead that the trial court was merely efficient — the process was
completed in approximately three hours and 20 minutes, resulting in an average
examination of approximately three minutes per prospective juror. Nor does the record
support defendant’s general assertion that the trial court exhibited a pro-prosecution bias
or that it pressured prospective jurors to give appropriate answers. For example, one
prospective juror had indicated in her questionnaire that she believed defendant “more
likely to be guilty” because an information had been filed against him. The trial court
explained the presumption of innocence to the prospective juror and asked whether she
still believed that defendant was likely guilty. When she replied, “probably not,” the
court explained that “ ‘probably’ is not good enough.” The prospective juror then
changed her answer to “no,” prompting the trial court to state: “When I say it is not good
enough, I don’t want you to change your answer just to please me. Don’t worry about
me. I like all of you. I don’t care how you think. Do you understand this is very, very
important?” The juror conceded that she still believed a criminal defendant more likely
to be guilty and the parties stipulated to her excusal for cause. In dismissing the juror, the
trial court stated, “I want to thank you for your honesty.”
We conclude that the questionnaire described above and used in this case
adequately probed the prospective jurors’ backgrounds and views in numerous relevant
areas and, together with the trial judge’s follow-up questions, provided an adequate basis
30
upon which the parties were able to exercise challenges for cause as well as peremptory
challenges. (See Boulerice, supra, 5 Cal.App.4th 463, 477 [“If there is sufficient
questioning to produce some basis for a reasonably knowledgeable exercise of the right
of challenge, voir dire by the trial judge alone does not deprive a defendant of the right to
adequate voir dire under the Sixth and Fourteenth Amendments”].) Moreover, as noted
above, consistent with Code of Civil Procedure, section 223, the trial court in this case
informed counsel that it would consider “request[s]” for “additional questions on a juror
by juror basis . . . individually as they come up,” but defense counsel did not act on that
offer, apparently because he did not believe any such additional questions were necessary
13
in order for him to exercise his peremptory and for-cause challenges. Defense counsel
employed only 14 of his 20 available peremptory challenges, and evidently was content
with the jurors selected. “ ‘The failure to exhaust peremptories is a strong indication
“that the jurors were fair, and that the defense itself so concluded.” ’ ” (People v. Dennis
(1998) 17 Cal.4th 468, 524 (Dennis).) Indeed, in view of the circumstance that the first
trial eventually deadlocked seven to five on the issue of penalty, there appears to be no
reason to question defense counsel’s apparent conclusion that the jurors would be fair to
defendant.
b. Challenge to examination for potential racial bias and the
possible adverse effect of pretrial publicity
Defendant claims that, in light of the circumstance that he is a Black man charged
with murdering two young White men in the early 1990s (which was, defendant asserts, a
time of heightened racial tension in the Los Angeles area), the voir dire process
13
In this and other respects, the present case is distinguishable from Stewart, supra,
33 Cal.4th 425, in which a trial court, over defense counsel’s objection, erroneously
granted the prosecution’s challenge for cause based solely upon problematically-phrased
jury questionnaire responses and without conducting an in-court voir dire examination of
the excused panelists.
31
inadequately probed prospective jurors’ potential racial biases and the possible effect of
pretrial publicity. We disagree.
As noted above, the questionnaire employed at the first trial specifically informed
the prospective jurors that a party or witness “may come from a different nationality,
racial or religious group,” and it asked: “Would that fact affect your judgment or the
14
weight and credibility you would give to his or her testimony?” One prospective juror
responded in writing, “I might — I try to control my prejudices but depending on what
the differences were I might ascribe more or less weight to that person.” Addressing that
prospective juror orally in open court, the trial judge referred the individual to his
response to the questionnaire inquiry and then stated: “I am going to give you
instructions on how to judge the credibility of a witness, how you can tell whether a
witness is telling the truth and telling a lie, and it has nothing to do with any racial
characteristics or ethnic characteristics or any different life style than yours. That is not
to be considered in determining whether a witness is telling the truth or not. [¶] Do you
think that you can follow that?” The prospective juror replied, “Yes, sir.” Defense
counsel thereafter exercised a peremptory challenge to excuse that prospective juror. If
14
As presented in the questionnaire, the question read in full: “A part(ies),
attorney(s) or witness(es) may come from a particular national, racial or religious group
or has a life style different from your own. Would that fact affect your judgment or the
weight and credibility you would give to his or her testimony?” (Italics added.) As
defense counsel observed at oral argument, in People v. Roldan (2005) 35 Cal.4th 646,
695 (Roldan), we observed that an identically phrased question was “not a model of
clarity.” Putting aside problems of grammar and agreement flowing from the awkward
italicized phrase, we note that the remainder of the question essentially tracks the
language of the California Standards of Judicial Administration, section 8.5(b)(18),
which proposes the following wording: “It may appear that one or more of the parties,
attorneys or witnesses come from a particular national, racial or religious group (or may
have a life style different from your own). Would this in any way affect your judgment
or the weight and credibility you would give to their testimony?” In any event, it does
not appear that any juror in the present case was confused by the language used.
32
counsel had believed that further inquiry was necessary in this instance or with regard to
other prospective jurors, he could have submitted additional questionnaire inquiries or
suggested additional oral questions. As noted above, defense counsel’s failure to do so
forfeits the claim on appeal. (Avena, supra, 13 Cal.4th 394, 413.)
Even if we were to agree that the voir dire examination was flawed, we would not
find any reversible error. Addressing this same issue in another capital case, People v.
Holt (1997) 15 Cal.4th 619, 661 (Holt), we rejected the claim of error, observing that
“[u]nless the voir dire by a court is so inadequate that the reviewing court can say that the
resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not
a basis for reversal.” Defendant asserts that Holt is distinguishable, in that counsel in that
case were permitted to participate directly in the voir dire process by asking questions of
prospective jurors, whereas in the present case the trial court foreclosed that direct form
of participation. As observed above, however, the trial court did not foreclose counsel
from suggesting additional questions to be put to specific prospective jurors, and defense
counsel apparently found no need to do so.
Relying
principally
upon
Taylor, supra, 5 Cal.App.4th 1299, defendant insists that
the trial court should have made further inquiry into possible racial bias against him.
Defendant argues that the court in Taylor found such bias under roughly analogous
circumstances and urges that we do so here as well.
The Court of Appeal in Taylor reviewed applicable federal and state authority
(including high court cases relied upon by defendant, Turner v. Murray (1986) 476 U.S.
28 (Turner) and Mu’Min, supra, 500 U.S. 415), concluding that “an interracial crime is a
‘special circumstance’ in which inquiry about racial prejudice must be made.” (Taylor,
supra, 5 Cal.App.4th at p. 1315.) The appellate court proceeded to reject the defendant’s
claim that the voir dire in that case “was improper because the [trial] court preceded some
of its questioning (including the voir dire on racial prejudice) with statements that
‘signaled’ the proper answer. It is not error for a judge to remind prospective jurors that
33
racial prejudice has no place in the courtroom. As Justice Kennedy observed in Mu’Min,
a trial judge may choose to ask what information a prospective juror has about a subject,
but ‘the judge can also evaluate impartiality by explaining the trial processes and asking
general questions about the juror’s commitment to follow the law and the trial court’s
instructions.’ (Mu’Min v. Virginia, supra, 500 U.S. at p. [451], dis. opn. of Kennedy, J.)”
(Taylor, supra, 5 Cal.App.4th at p. 1316.)
The court in Taylor continued: “Having said this, we must also say that the [trial]
court should have made further inquiry in the area of possible racial bias against
defendant. [¶] As we have discussed, the trial judge asked the prospective jurors if any
of them had any quarrel with the principle that no one should be found guilty because of
race, creed, color, religion or national origin. The judge also asked whether they would
put aside any biases and prejudices they may have had. But the court asked no questions
designed to elicit whether any juror actually held such bias. In a case such as this, where
there is a potential of racial or other invidious prejudice against the defendant, a further
inquiry should be made.” (Taylor, supra, 5 Cal.App.4th at p. 1316.)
In conclusion, the court in Taylor stated: “The failure to do so in this case is
harmless, for two reasons. First, the trial court repeatedly emphasized the importance of
juror neutrality and a fair trial. Second, both counsel were specifically invited to ask the
court to conduct further voir dire on any proper subject, including possible racial bias, but
were satisfied that it was not necessary to do so.” (Taylor, supra, 5 Cal.App.4th at
p. 1317.)
The same reasoning applies here. As in Taylor, supra, 5 Cal.App.4th 1299, 1317,
even assuming that the trial court should have asked additional questions designed to
elicit whether any prospective juror actually held a racial bias, any such error would have
been harmless for the reasons described. We cannot say that the voir dire examination
that was conducted was “so inadequate that . . . the resulting trial was fundamentally
unfair.” (Holt, supra, 15 Cal.4th 619, 661.)
34
Defendant also asserts that the trial court’s voir dire examination was insufficient
to reveal possible biases resulting from exposure to pretrial publicity concerning the
Subway crimes and defendant’s arrest. Once again, if defense counsel believed that
further inquiry was necessary with regard to any particular prospective juror, he could
have submitted additional questionnaire inquiries or suggested additional oral
questions — and his failure to do so forfeits that claim on appeal. (Avena, supra, 13
Cal.4th 394, 413.) In any event, as explained below, on the merits there is no basis for
defendant’s claim of error.
The juror questionnaire contained numerous inquiries related to the issue of
pretrial publicity. In addition to asking each prospective juror what, if anything, he or she
already had learned about the case or defendant, from what source such information had
been obtained, and whether that information made the prospective juror favor one side or
the other, the questionnaire asked: “33. What newspapers and periodicals do you read
frequently? [¶] (a) What portion(s) do you read? (Front page? Sports? Editorials?
Crime stories?) [¶] (b) Do you try to follow major crime stories? (Yes? No?) [¶]
Which stories did you follow? . . . . [¶] 34. What radio and television broadcasts have
you heard or seen frequently during the past year? [¶] (a) Did you follow any criminal
cases in the news? (Yes? No?) [¶] What cases? [¶] What did you learn about these
cases? [¶] 35. What are the most serious criminal cases you have followed in the media
during the last year? [¶] 36. Do you try to follow stories about the functioning of the
criminal justice system? (Yes? No?) . . . . [¶] 37. If the court instructs you not to read,
view, or discuss any news media coverage of this case, will you follow the court’s
instructions? [¶] . . . [¶] 41. Do you subscribe to or regularly read any newspaper, or
periodicals? If so, please state them . . . .”
Defense counsel appended to his motion for attorney-conducted voir dire copies of
12 newspaper articles concerning the Subway crimes, all of which were at that time at
least 14 months old. In denying that motion, the trial court observed that it had read each
35
of the completed juror questionnaires and found that “very, very few, if any of the
prospective jurors have detailed memory of this incident.”
Subsequently, the trial court questioned prospective jurors whose questionnaire
responses indicated knowledge of defendant’s case. Although defendant characterizes
that follow-up questioning as cursory and incomplete, the record reveals that the court
repeatedly probed whether any information obtained would cause the prospective juror to
be biased, and each assured the court that he or she would be fair and impartial. For
example, defendant highlights one prospective juror who ultimately sat as a juror at the
first trial. The juror had indicated in his written questionnaire responses that he would
have no difficulty keeping an open mind, but also noted that he had learned of the case in
the newspaper and on television. The trial judge, in follow-up questioning, observed that
the juror had not answered the specific questionnaire inquiry, “What, if anything, have
you already learned about this case or the defendant?” — and again posed that question
to the juror. The juror answered, “I don’t know anything about the defendant. I read it
when it first came out in the paper. That’s all. This is close to where I live.” The trial
judge asked whether the information received made the juror favor either the prosecution
or the defense, and the juror responded, “no.” When the trial judge subsequently asked,
“Do you try to follow stories about the functioning of the criminal justice system?,” the
juror responded, “I read ’em, yeah.” Once again, defense counsel did not request further
questioning and, in our view, defense counsel’s conduct was reasonable: the
questionnaire responses and further answers to follow-up questioning by the trial judge
dispelled any concern that the juror had been tainted by pretrial publicity.
As the high court observed in Mu’Min, supra, 500 U.S. 415, 427, “wide discretion
[is] granted to the trial court in conducting voir dire in the area of pretrial publicity. . . .”
Although defendant faults the trial judge for failing to ask specific questions concerning
the specific content of media publicity, the trial judge’s failure to do so in the presence of
other prospective jurors who had not been exposed to the same material was reasonable,
36
and doing otherwise would have risked exposing the others to the publicity. (Id., at
p. 425; see also People v. Cleveland (2004) 32 Cal.4th 704, 737 (Cleveland).) Failure to
ask such questions in a sequestered voir dire examination is constitutional error only if
that failure “render[s] the defendant’s trial fundamentally unfair.” (Mu’Min, supra, 500
U.S. 415, 426.) On this record, in which relatively mild publicity was at least 14 months
old, thereby minimizing its impact (see Dennis, supra, 17 Cal.4th 468, 524 [noting, in
context of change-of-venue determination, that passage of time can dispel the prejudicial
effect of pretrial publicity]), and where defense counsel failed to ask the court to pose any
additional question to any prospective juror, defendant cannot establish that the resulting
guilt phase trial was fundamentally unfair. Indeed, as we have observed, “ ‘The failure to
exhaust peremptories is a strong indication “that the jurors were fair, and that the defense
itself so concluded.” ’ ” (Ibid.) As explained above, in view of the circumstance that
after exercising only 14 of his 20 peremptory challenges, counsel ended up with a jury
that hung seven to five on the issue of penalty, there appears to be no reason to question
15
defense counsel’s apparent conclusion that the jurors would be fair to defendant.
15
We also reject defendant’s claim that it was error for the prosecution to use its
peremptory challenges to excuse prospective jurors who expressed reservations
concerning imposition of the death penalty. Assuming the prosecution so acted, it was
entitled to do so (People v. Champion (1995) 9 Cal.4th 897, 907) and did not thereby
deny defendant the right to a jury drawn from a representative cross-section of the
community. (People v. Pinholster (1992) 1 Cal.4th 865, 913.) We also reject
defendant’s similar claim that the exposure of prospective jurors to the questioning of
other jurors concerning their ability to impose the death penalty, combined with the
dismissal of some of those prospective jurors for cause or pursuant to peremptory
challenges, produced a more conviction-prone and death-prone jury, in violation of
defendant’s Sixth Amendment right to an impartial tribunal. (See People v. Carrera
(1989) 49 Cal.3d 291, 331, and cases cited.)
37
B. Guilt Phase Claims
1. Exclusion of evidence of third-party culpability
and impeachment evidence
Defendant contends that the trial court erred by excluding his proffered evidence
of third-party culpability and impeachment evidence concerning prosecution witnesses
Williams and Aldridge. The proffered evidence was as follows. First, approximately 10
days after defendant was arrested, Williams and Aldridge were stopped and arrested by
the Beverly Hills police at 1:30 a.m. (approximately the same time as the Subway
crimes), and subsequently each was convicted of a misdemeanor, possessing a concealed
handgun. Second, defendant asserts that the trial court excluded evidence of a police
report that, according to defendant, contained information that a civilian witness — one
“Ralph Dudley” — reported to a police officer that he had seen a gray Mustang (like
Williams’s car) in the alley behind the Subway shop at the time of the crimes. As
explained below, we conclude that the trial court did not err in excluding evidence of the
handgun conviction. Moreover, because the appellate record does not support
defendant’s claim that the trial court “excluded” any police-report evidence, we must
reject that aspect of the claim on appeal.
a. Evidence that Williams and Aldridge suffered convictions for
possession of a concealed handgun
Defense counsel sought to introduce evidence of Williams’s conviction for
possession of a concealed handgun for, as counsel explained, “dual purposes”: first, as
evidence of third-party culpability in the Subway crimes and, second, as impeachment of
Williams’s credibility. The trial court ruled against introduction of the evidence for
either purpose, reasoning, with regard to third-party culpability, that the evidence was
inadmissible under our decisions in People v. Sandoval (1992) 4 Cal.4th 155 (Sandoval),
and People v. Alcala (1992) 4 Cal.4th 742 (Alcala), but that the court would reconsider
that determination “subject to other evidence coming in.” Turning to the use of the
38
proffered handgun conviction as impeachment evidence, and after hearing an offer of
proof concerning the proposed testimony of Williams (which set forth, in broad outline,
his subsequent testimony described above), the trial court reasoned that, although the
misdemeanor conviction “may [reflect] a crime of moral turpitude,” whatever “slight
relevance” and probative value the proposed evidence had with respect to Williams’s
veracity was outweighed by the prospect of “confusing the issues to the jury, especially
in light of the third-party culpability aspect, even though I would instruct the jury [not to
consider the evidence for any purpose other than impeachment].”
Defense counsel subsequently made the same “dual purposes” motion concerning
Aldridge’s handgun conviction, and the trial court, after hearing a further offer of proof
(which set forth, in broad outline, Aldridge’s subsequent testimony described above),
denied the motion as to both proposed uses of the proffered evidence.
As explained below, the trial court rulings were correct.
With regard to third-party culpability, we note that Sandoval, supra, 4 Cal.4th 155,
176, and Alcala, supra, 4 Cal.4th 742, 792, both followed People v. Hall (1986) 41
Cal.3d 826 (Hall). In Hall, we recognized that third-party culpability evidence is
admissible if it is “capable of raising a reasonable doubt of [the] defendant’s guilt,” but
also observed: “[W]e do not require that any evidence, however remote, must be
admitted to show a third party’s possible culpability. . . . [E]vidence of mere motive or
opportunity to commit the crime in another person, without more, will not suffice to raise
a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the crime.” (Hall, supra,
41 Cal.3d at p. 833, italics added.) As we also explained in Hall, in making these
assessments “courts should simply treat third-party culpability evidence like any other
evidence: if relevant it is admissible ([Evid. Code] § 350) unless its probative value is
39
substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid.
16
Code] § 352).” (Hall, supra, 41 Cal.3d at p. 834.)
In reviewing an assessment made by a trial court under Evidence Code section
352, we shall not disturb the ruling on appeal absent a finding that the trial court abused
its discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373 (Lewis).) We find no
such abuse of discretion here. The crimes for which Williams and Aldridge were arrested
approximately 10 days after defendant’s arrest had at most very slight probative value
concerning the issue of third-party culpability. Contrary to defendant’s claim that this
evidence supported an “obvious inference . . . that Williams and Aldridge were on a
robbery spree which may have included the Subway . . . crimes,” the proffered evidence
did not directly or even circumstantially link Williams or Aldridge to the Subway crimes.
Their firearms were shown by ballistics evidence not to have fired the bullets discharged
during the Subway shootings. By contrast, as we have noted, defendant’s gun was
determined to have fired the bullets that killed the Subway victims. In view of this
evidence, the trial court reasonably concluded that the proffered arrest evidence was
insufficient to raise a reasonable doubt that Williams and/or Aldridge, instead of
defendant, committed the Subway crimes.
The trial court’s ruling concerning impeachment also was correct. It is clear, as
defendant argues, that Williams and Aldridge were key prosecution witnesses and that
defendant had a strong interest in impeaching them, both in order to blunt their damaging
testimony and in order to promote his own theory that they, not he, were the perpetrators
of the Subway crimes. We also agree with defendant that the misdemeanor convictions
16
Section 352 provides: “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create the substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
40
suffered by Williams and Aldridge reflected a crime of moral turpitude and therefore
were relevant to the witnesses’ honesty and veracity. (See People v. Wheeler (1992) 4
Cal.4th 284, 295-296.) Admission of such evidence, however, is subject to the trial
court’s discretion to exclude it under Evidence Code section 352. As noted above, a trial
court’s broad latitude in this respect will not be upset on appeal absent a showing of
abuse of discretion. (Lewis, supra, 26 Cal.4th 334, 372-373.)
We discern no such abuse of discretion. As the trial court observed, the slight
relevance and probative value of the evidence with respect to the veracity of Williams
and Aldridge were outweighed by the prospect of confusing the issues — in particular,
the jury might use that evidence not only with regard to veracity, but also (despite the
trial court’s possible limiting instructions concerning third-party culpability evidence) for
a purpose that the court had determined would be improper under the circumstances.
We similarly reject defendant’s various claims that the trial court’s exclusion of
the proffered evidence violated his federal constitutional rights to present a defense, to
confront and cross-examine witnesses, and to receive a reliable determination on the
charged capital offense. There was no error under state law, and we have long observed
that, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe
on the accused’s [state or federal constitutional] right to present a defense.” (Hall, supra,
17
41 Cal.3d at p. 834; see also Lewis, supra, 26 Cal.4th at pp. 373-374.)
17
At oral argument, counsel for defendant suggested that the United States Supreme
Court’s recent grant of certiorari in State v. Holmes (S.C. 2004) 605 S.E.2d 19 (see
Holmes v. South Carolina (Sept. 27, 2005, No. 04-1327) ___ U.S. ___ [2005 WL
770216]) assists him. We disagree. In Holmes the prosecution offered forensic evidence
that linked the defendant to the rape and murder of an elderly woman. The evidence
included DNA samples found on the defendant’s underwear, and a palm print found on
the inside of the victim’s front door. The trial court denied admission of extensive third-
party culpability evidence from numerous witnesses. Some of those witnesses would
have testified that another person, “Jimmy,” was close to the crime scene at the time of
the crime. Other witnesses would have testified that Jimmy had acknowledged to them
(footnote continued on following page)
41
Finally, even if we were to assume that the trial court erred in excluding the
proffered evidence, any state-law error would be harmless under the “reasonable
probability” test of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) and, indeed,
any federal constitutional error would be harmless under the “beyond a reasonable doubt”
test of Chapman v. California (1967) 386 U.S. 18, 23-24 (Chapman). Strong evidence
linked defendant to the crimes. Defendant had been employed at the Subway shop and
knew its procedures, the location of the safes and the backdoor exit, and the general
layout of the premises. He needed money and had talked of robbing the shop and killing
its staff — indeed, he even admitted discussing the robbery with Williams and Aldridge
in the context of pointing out problems with their own alleged suggestions for the
robbery. James, after initially failing to do so, identified defendant as the man she had
seen in the shop immediately prior to the shootings. Defendant conceded being at the
scene of the crime immediately after the shootings (and indeed while one of the victims
(footnote continued from preceding page)
the defendant’s innocence and his own guilt in the crime. A final witness would have
testified that Jimmy had confessed to the crimes, that the witness had been pressured to
testify falsely against the defendant at the defendant’s trial, and that the authorities had
“manufactured” the DNA and palm print forensic evidence described above. The South
Carolina Supreme Court (with one justice dissenting) explained that under South
Carolina law “where there is strong evidence of an appellant’s guilt, especially when
there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt
does not raise a reasonable inference as to the appellant’s own innocence” (State v.
Holmes, supra, 605 S.E.2d at p. 24), and went on to conclude that because of the strong
evidence of the defendant’s guilt in that case, the exclusion of third-party culpability
evidence was proper. Hence, as reflected in Holmes, South Carolina law apparently
precludes a criminal defendant from introducing evidence of a third party’s culpability
whenever other evidence, especially forensic evidence, strongly supports the defendant’s
guilt. This very restrictive rule concerning a defendant’s ability to present evidence of
third-party culpability — described as “unique” in the petition for certiorari in Holmes —
does not apply in California, and the high court’s grant of certiorari in Holmes does not
affect our analysis of the claims presented in the current appeal.
42
still was alive), and his fingerprints were found on a bag containing the final purchase
entered into the shop’s register. The bullets that killed the two Subway victims were
fired from defendant’s gun. On the day after the crimes, defendant attempted to pay
hundreds of dollars of rent in cash and also offered a $25 deposit in $1 bills. He then
bragged, both to his friend Aldridge and to his coworker Ostrander, about his role in the
robbery and killings. In view of this evidence, even if the jury had been informed of the
handgun convictions suffered by Williams and Aldridge (and indeed, even if the jury
were to credit defendant’s testimony and infer from it that Williams, and possibly
Aldridge as well, also was present during the crimes), we cannot conclude that would
have raised a reasonable doubt among the jurors regarding defendant’s guilt of the
Subway shop crimes. We conclude that a different result would not have been
reasonably probable absent the trial court’s exclusion of the proffered evidence and,
indeed, that any alleged error would have been harmless beyond a reasonable doubt.
b. Evidence that a witness saw Williams’s car at the scene of the crime
Los Angeles Police Detective Peggy Moseley assisted in the crime investigation
and assembled case-related materials in a so-called murder book — a compilation of
reports, including leads and tips, relating to the Subway shop crimes. Moseley, called as
a defense witness, testified that the book totaled approximately 1,200 pages contained in
three volumes, and that she periodically reviewed the book “to sift information” and
“follow up on clues and evidence” in the case. Defense counsel asked: “In doing so do
you recall receiving or becoming aware of any information that someone had imparted to
the Los Angeles Police Department the fact that there had been a gray Mustang lurking in
the area of this particular Subway sandwich shop?” At that point, the prosecutor
successfully objected on hearsay grounds.
Defense counsel thereafter asked: “Did you personally conduct any interviews
with anyone who indicated the presence of a gray Mustang at the scene?” Detective
43
Moseley replied, “Not that I recall.” Defense counsel asked: “Do you recall a witness by
the name of Ralph Dudley?” Moseley replied, “No, I don’t.” Defense counsel made no
offer of proof to establish that any admissible evidence supported an assertion that
“Ralph Dudley” or any other witness had reported observing a gray Mustang near the
crime scene, and instead stated that he had no further questions. After brief cross-
examination, Moseley was excused.
Defendant now claims that the trial court erroneously “granted the prosecutor’s
motion to exclude” this evidence and “prevented defense counsel from questioning
Detective Moseley about Ralph Dudley’s sighting of the gray Mustang in the alley
behind the Subway.” The record, however, does not support this characterization.
Instead it shows simply that counsel was allowed to question Detective Moseley about “a
witness by the name of Ralph Dudley” and that the detective did not recall any such
witness. Nor does the record support defendant’s contention that “Ralph Dudley,” or
18
anyone other than defendant, made a “sighting” of a gray Mustang at the crime scene.
Because there was no offer of proof in this regard, there is no basis in the appellate record
upon which to conclude that the “murder book” contained a report concerning an
observation by “Ralph Dudley,” or anyone else, of such a car near the scene of the crimes
and at the time they were committed. Accordingly, we reject defendant’s claim that the
trial court erroneously “excluded” any such evidence at the guilt phase of the trial. As far
as we can discern, no such evidence was offered or excluded.
18
In his reply brief, defendant claims, without citation to the record, that “Ralph
Dudley is identified in a police report provided to the defense in discovery. According to
the police report, Mr. Dudley reported seeing the gray Mustang as defense counsel stated
in the trial court.”
44
In any event, assuming that the challenged evidence in fact did exist and that the
trial court (erroneously) excluded it, for the reasons discussed in part II.A.1.a, any error
would have been harmless under both the Watson standard and the Chapman standard.
2. Admission of testimony concerning probable relative positions of the
victims and the shooter
Christopher Rogers, M.D., a board-certified forensic pathologist and deputy
medical examiner employed by the Los Angeles County Coroner’s Office, testified that
he had performed “hundreds” of autopsies involving gunshot wounds and had been
qualified as an expert witness on approximately 200 occasions. Dr. Rogers testified that,
in his opinion, each victim died of a bullet wound to the top of the head fired at very
close range or while the firearm was in direct contact with the victim. He also described
the trajectories of the shots. Defense counsel did not object to this evidence, and
defendant does not now assert any error with respect to that aspect of Dr. Rogers’s
testimony.
Dr. Rogers further testified — over defense objection — concerning the probable
respective positions of the shooter and the two victims at the time of the shootings. On
direct examination, Dr. Rogers was asked to consider the height of defendant (5 feet 10 to
11 inches), the height of victim James White (6 feet 1 inch), and the location and
trajectory of the entry wound in White’s forehead, and to consider three possible
scenarios relating to that victim. First, assuming White had been standing, Dr. Rogers
testified that the shooter’s hand might have been positioned essentially even with and
slightly above the victim’s head — which would have meant that the shooter either had
held the gun over his head or stood on something so as to be higher than the victim’s
head. Second, assuming White had been lying on the floor at the time of the shooting,
Dr. Rogers testified that, based upon the physical evidence, the shooter might have been
lying on the floor or crouched next to him. Third, assuming that White had been shot
45
while he was kneeling on the floor, Dr. Rogers testified that shooter would have been
standing next to him.
Dr. Rogers conceded that each of the three described posture scenarios was
possible, but the first two would have meant that the shooter had been in an awkward
position. Hence, in his opinion, those scenarios were less likely than the third theory, that
victim White was kneeling next to the shooter, who would have been standing and
holding the gun “in a somewhat natural position” at waist level. On cross-examination,
Dr. Rogers acknowledged that, based upon the evidence, there were a “multitude of
different positions that could have been assumed by the decedent and the person
inflicting the injury.”
During closing argument, the prosecutor asserted that Dr. Rogers’s testimony
corroborated Dennis Ostrander’s description of defendant’s bragging about how he had
carried out the shootings and that James White must have been shot while he was on his
knees, “praying for his life.”
Defendant now contends that this aspect of Dr. Rogers’s testimony improperly
was admitted and requires reversal of the guilt-phase judgment for the following reasons:
(1) the expert testimony was not relevant and in any event was not the proper subject of
expert testimony, because the jurors were capable of drawing their own conclusions
about the manner of the shootings; (2) even if the testimony was relevant and helpful to
the jury, the prosecution failed to lay a proper foundation for that expert opinion; and
(3) the trial court’s admission of this testimony was an abuse of discretion under
Evidence Code section 352 and violated his state and federal constitutional rights.
A trial court’s determination to admit expert evidence will not be disturbed on
appeal absent a showing that the court abused its discretion in a manner that resulted in a
miscarriage of justice. (People v. Catlin (2001) 26 Cal.4th 81, 131; People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124-1125.) Here, there was no such abuse of discretion. As the
trial court recognized, the challenged evidence was relevant to prove one of the
46
prosecution’s theories of the homicides — that of premeditated and deliberated murder.
An execution-style shooting of a kneeling victim clearly supported that theory and was
relevant to prove it. (Cf. People v. Bolin (1998) 18 Cal.4th 297, 320.) The challenged
evidence also was relevant to corroborate the testimony of prosecution witnesses
19
Williams, Aldridge, and Ostrander.
A closer question is whether the testimony properly was the subject of expert
opinion evidence. Evidence Code section 801 limits such evidence to that which is
“[r]elated to a subject . . . sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.” As defendant observes, in considering this
testimony the trial court stated: “I have to say that based upon the proffered offer of
proof that the People have made that it doesn’t take too much expertise to render an
opinion as to the position of the bodies based upon the medical evidence. In fact, it is
something that almost a lay person, given these facts, could render.” (Italics added.) The
trial court ultimately allowed the expert testimony.
We find no error. Victim James White was discovered lying facedown in a pool
of blood on the Subway shop’s floor. As the People observe, unassisted by Dr. Rogers’s
challenged testimony and “[r]elying on intuition alone, the jurors might reasonably have
had no idea how his fatal wound was inflicted,” but Dr. Rogers’s testimony provided the
jurors with an informed context, letting them know that, “although the shooter might
have assumed any number of positions when necessarily placing the gun perpendicular to
19
As noted above, Williams and Aldridge earlier testified that, prior to the
commission of the Subway crimes, defendant had told them he would kill any witnesses
“execution style” by shooting them in the head. Aldridge further testified that defendant,
speaking of the Subway victims, bragged that he had “blown them away” by shooting
them in the head. Ostrander testified that defendant bragged he had “popped those two
kids” in the head even though they had pleaded, “ ‘Please don’t shoot me. Don’t shoot
me.’ ”
47
the crown of the victim’s head, the least awkward position would be that of the victim
kneeling.” This evidence indeed would “assist the trier of fact” (Evid. Code, § 801, subd.
(a)), both in determining whether the killing was premeditated and deliberated, and in
assessing the credibility of the prosecution witnesses who testified concerning
defendant’s precrime statements that he planned to execute witnesses and his postcrime
statements that he shot the kneeling victims.
Nor do we find that the prosecution failed to lay a proper foundation for the
challenged aspect of Dr. Rogers’s testimony. The witness clearly was qualified to testify
concerning gunshot wounds and to render the quite limited opinion that he eventually
proffered: that, in view of the location of the wounds and their trajectories, of the three
general scenarios presented — the shooter standing next to a standing victim, the shooter
lying or crouched near a lying victim, or the shooter standing near a kneeling victim —
the last was the least awkward and most likely. Contrary to defendant’s suggestions that
such testimony could be given only by one qualified as a crime-scene reconstructionist,
the opinion evidence here at issue did not require that the witness have expertise beyond
that which was shown — that is, that he was an experienced pathologist who possessed
extensive familiarity with gunshot wounds. The trial court did not abuse its discretion in
finding Dr. Rogers qualified to give the challenged opinion. (People v. Farnam (2002)
28 Cal.4th 107, 162 [“Error regarding a witness’s qualifications as an expert will be
found only if the evidence shows that the witness ‘ “ ‘clearly lacks qualification as an
expert.’ ” ’ ”]; People v. Davenport (1995) 11 Cal.4th 1171, 1207.)
Finally, we reject defendant’s contention that the trial court should have concluded
that the challenged testimony was more prejudicial than probative, and hence that its
introduction was barred under Evidence Code section 352 and violated defendant’s state
and federal constitutional rights. Evidence is not “unduly prejudicial” under the
Evidence Code merely because it strongly implicates a defendant and casts him or her in
a bad light, or merely because the defendant contests that evidence and points to
48
20
allegedly contrary evidence. Instead, undue prejudice is that which “uniquely tends to
evoke an emotional bias against a party as an individual, while having only slight
probative value with regard to the issues.” (People v. Crittenden (1994) 9 Cal.4th 83,
134 (Crittenden); see also People v. Garceau (1993) 6 Cal.4th 140, 178.) As noted
above, the challenged evidence was highly relevant to the prosecution’s theory of
premeditated and deliberated murder and also relevant as corroboration of the three
prosecution witnesses who testified concerning defendant’s stated plan to execute
witnesses and his boasts of having shot the victims in the head. Evidence of deliberate,
premeditated killing often is very disturbing, but the jury properly was instructed not to
be influenced by passion, sympathy, or prejudice and to conscientiously consider and
weigh the evidence in applying the law. The trial court acted within its discretion in
finding that the probative value of the evidence outweighed the risk of prejudice.
(Crittenden, supra, 9 Cal.4th at p. 134 [finding that the trial court “reasonably could
determine that the probative value of the [crime scene photographs of victims]
outweighed their potentially prejudicial effect”].) We discern no error.
3. “Readback” of testimony
During guilt-phase deliberations, the jury sent a note to the court requesting that
three portions of the testimony be “re-read”: (1) The prosecution’s fingerprint expert’s
testimony “regarding the position of fingerprints on the bag. Also, the number of prints
20
Relying upon the evidence of the footprint found on the shop counter and the
testimony of witness . . . James, defendant theorizes that the shooter indeed fired while
the victims were in a standing position and not while one or both were kneeling. Such a
scenario, defendant observes, “clearly does not match the cold ‘execution style’ killings
described by the prosecution witnesses and supported by the coroner’s opinion . . . .”
But, as noted above, James testified that she heard “the noise” (that is, apparently, the
first shot) and thereafter “immediately saw the customer either run around the counter or
jump on the counter and over.” Contrary to defendant’s suggestion, this testimony does
not support the theory that the shooter fired while standing on the counter.
49
and whether put on at the same time.” (2) “Testimony of [defendant] regarding whether
Tai [Williams] was home when [defendant] returned home on Sunday morning.”
(3) “Whether [defendant] had the gun Sunday morning after he returned home.” After
reading the jury’s communication to the parties in open court (but without the jury
present), the trial judge observed that, as to the second request, the reporter had advised
that there was no such testimony. Counsel for both parties concurred, and the court
stated it would so advise the jury. Concerning the other two requests, the court
commented: “I take it all the testimony has been found as to those items and the jury and
alternates will be read those in the jury room.” The court then asked, “Now, does counsel
wish to be present during the reading or rereading of the testimony?” Counsel for both
parties answered in the negative and, after defense counsel consulted with defendant,
defendant also stated he did not wish to be present.
The jury returned to the courtroom, and the trial court explained that, “after a
thorough search, and after discussion with counsel, I can tell you right now that there was
no testimony of [defendant] regarding whether Tai [Williams] was home when
[defendant] returned home on Sunday morning.” The court advised the jury that the
other two requested items would be read back. At the trial court’s direction, the reporter
thereafter entered the jury room, spent approximately 20 minutes reading back testimony,
and then left the jury room, at which time deliberations resumed. The reporter’s
transcript reveals that the testimony read back to the jury in response to the jury’s third
question (“Whether [defendant] had the gun Sunday morning after he returned home”)
was the following: “Volume 11, page 1176, line 19 to line 24 [(an excerpt from defense
counsel’s redirect examination of defendant) and] page 1069, line 23 to page 1073, line
17 [(from the prosecution’s cross-examination of defendant)].”
Defendant contends the trial court’s statement concerning the first and third
questions — “I take it all the testimony has been found as to those items and the jury and
alternates will be read those in the jury room” — reveals that the trial court “let the court
50
reporter decide which testimony was responsive to the jurors’ questions” and failed to
participate in the planning and supervision of the readback. Thus, defendant argues, the
trial court abdicated control over the readback process in violation of section 1138, which
provides that, when a jury requests a readback of testimony, “the information required
must be given in the presence of, or after notice to, the prosecuting attorney, and the
defendant or his counsel, or after they have been called.” Relying upon People v. Litteral
(1978) 79 Cal.App.3d 790, 794 (Litteral) (finding reversible error under section 1138 and
admonishing trial courts to exercise “strong supervision” over such matters), defendant
argues that reversal is warranted.
As we recently observed in Roldan, supra, 35 Cal.4th 646, 729, Litteral, supra, 79
Cal.App.3d 790 — a case in which a trial court refused a jury’s request for a readback of
testimony — is distinguishable. Moreover, as we also observed in Roldan, a claim of
error in the selection of the testimony read back to a jury, as well as any alleged
impropriety or failure to comply with section 1138, is waived by defense counsel’s
failure to object at the time the trial court directed the readback. (Roldan, supra, 35
Cal.4th at pp. 729-730.) But even if we were to overlook the absence of an objection, we
conclude defendant’s claim is without merit.
Viewing the record in context, we question whether the record supports
defendant’s theory that the trial court let the court reporter decide which testimony was
responsive to the jurors’ questions. As the People observe, within a few minutes of the
trial court’s comment made outside the presence of the jury (“I take it all the testimony
has been found as to those items . . .”), the court, in addressing the jury, implied that, with
regard to its second request, the court personally had determined that no such testimony
existed: “After a thorough search, and after discussion with counsel, I can tell you right
now that there was no [such] testimony . . . .” In view of the court’s latter comment, the
People contend it is doubtful that the trial court abdicated its responsibility concerning
the first or third item requested for readback. Defendant, on the other hand, argues that,
51
when viewed in context, the trial court was not representing that it had read any of the
prior testimony under consideration, and that its comment merely relayed to the jury the
prior “representations [made to the court by] counsel and the court reporter that this
portion of the testimony requested does not exist.”
We need not resolve this fact-specific dispute, because it is well established that
“ ‘[a] conviction will not be reversed for a violation of section 1138 unless prejudice is
shown’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 1027 (Jenkins)) and, as explained
below, in the present case there can be no such showing: if the trial court failed to
monitor the readback of testimony as closely as it should have, any resulting error would
have been harmless.
Defendant argues that too much testimony was read back in response to the jury’s
third question, some of which was “not relevant to the jurors’ request,” and that other
“relevant and responsive” testimony was withheld. As the People observe, the material
that defendant now asserts should not have been part of the material that was read back
spanned three and one-half transcript pages of the prosecutor’s cross-examination of
defendant. All of that challenged material directly related to the time period concerning
which the jury inquired — namely, “after [defendant] returned home” to Tai Williams’s
apartment on Sunday morning. The readback material established that defendant was in
Williams’s apartment from approximately 2:20 a.m. to 6:00 a.m., during which time he
was fearful that Williams might kill him, and — in the sole passage that defendant
concedes properly was read back to the jury — that defendant had his firearm with him at
that time.
Defendant claims that parts of the passages read back, although pertinent to the
time period concerning which the jury inquired, included material not directly related to
the jury’s specific question. Some of the questions and answers read back to the jury
concerned whether defendant, during that time, thought about providing help for the two
severely wounded victims whom he had observed at the Subway crime scene or
52
considered calling the police. The material also contained a passage reflecting that, after
defendant at one point stated he had been tired upon returning to the apartment in the
early morning hours, the prosecutor asked, “Killing people wears you out, doesn’t it?”
Defendant argues that “[t]he repetition of this cross-examination, and particularly the
gratuitous remark about killing people,” was improper, and that “[t]his was not a
balanced presentation of relevant testimony.”
As we have observed, section 1138 “does not forbid giving the jury more than it
requests so [that] it also receives the context” of the testimony. (People v. Hillhouse
(2002) 27 Cal.4th 469, 506, italics added.) But even assuming that some of the testimony
should not have been included in the readback, a violation of section 1138 ordinarily will
not result in reversal of a conviction unless prejudice is shown (Jenkins, supra, 22 Cal.4th
900, 1027) — and here there was no prejudice. Earlier in the trial, the jury properly had
heard the entire cross-examination of defendant, many parts of which forcefully
emphasized the same points of which defendant now complains. In view of the
substantial other evidence of defendant’s guilt, it simply is not plausible that the
repetition of some of those passages in response to the jury’s request for a readback of
testimony contributed significantly to the jury’s verdict. Any state law error in this
regard would have been harmless under the “reasonable probability” test of Watson,
supra, 46 Cal.2d 818, 836 and, indeed, any alleged federal constitutional error also was
harmless under the “beyond a reasonable doubt” test of Chapman, supra, 386 U.S. 18,
21
23-24.
21
We reject defendant’s additional claim that any error was structural in nature and
requires reversal per se. (See Arizona v. Fulminante (1991) 499 U.S. 279, 306-309
[regular “ ‘trial error’ ” can be “qualitatively assessed in the context of other evidence
presented in order to determine whether its admission was harmless beyond a reasonable
doubt”; by contrast, “structural” error is a “defect[] in the constitution of the trial
mechanism, which def[ies] analysis by ‘harmless-error’ standards” (italics added)].)
(footnote continued on following page)
53
Defendant
finally
contends
that in one other respect — regarding the brief excerpt
that was read back from defense counsel’s redirect examination — “the readback process
resulted in the jury not receiving testimony which was relevant and responsive to the
request.” We disagree. In that readback passage, defense counsel stated: “In response to
[the prosecutor’s] questions, you have indicated for us that you did have the gun in the
apartment in the period between [two o’clock] or three o’clock in the morning and
somewhere around six o’clock in the morning when you left.” Defendant responded,
“Yes, sir.” But, defendant complains, the readback testimony did not include the very
(footnote continued from preceding page)
Riley v. Deeds (9th Cir. 1995) 56 F.3d 1117 (Riley), upon which defendant relies
for the contrary conclusion, is distinguishable. In that case, at a time when the state
(Nevada) trial judge was absent from the court, a deliberating jury asked for readback of
the crime victim’s testimony. The judge’s law clerk convened the court, explained that
the reporter would read back the victim’s testimony, and instructed the jury foreman to
raise his hand when the jury had heard enough. The testimony was read back and, at the
conclusion of the readback of the direct examination, the foreman raised his hand and the
readback ended. (Id., at p. 1119.) The appellate court observed: “In this case, the judge
was not present when the jury requested that the testimony be read back, nor does the
record reflect he was consulted about the matter. From what we can tell from the record,
the judge’s law clerk made the decision to grant the jury’s request to read back the
testimony. The jury was then given effective control of what testimony and how much of
it would be read. The victim’s testimony was read until the jury foreman decided the jury
had heard enough.” (Id., at p. 1120.) In this setting, the appellate court found “a
complete abdication of judicial control over the process” (id., at p. 1121) and reversed
without an assessment of prejudice. (Ibid.)
In the present case, by contrast, the trial judge was present when the jury requested
that the testimony be read back, and was consulted concerning that matter. The trial
court made the decision to grant the jury’s request to read back the testimony; the jury
was not given control of what testimony would be read back or how much of it would be
read back, and by no means can it reasonably be said that the record reflects “a complete
abdication of judicial control over the process.” (Riley, supra, 56 F.3d 1117, 1121.)
Riley, therefore, is distinguishable. Indeed, as the Ninth Circuit itself has recognized,
“Riley was limited to the particular facts of that case . . . .” (United States v. Arnold (9th
Cir. 2001) 238 F.3d 1153, 1155.)
54
next question and answer posed on redirect examination: “Did you have it during the
hours of, say, [eleven] o’clock on Saturday night and the time when you returned to that
apartment?” “No, sir.” Contrary to defendant’s assertion that failure to read back the
latter passage was error, this testimony appears to have been outside the scope of the
jury’s third question, which focused upon whether defendant had his gun in his
possession after he returned to Williams’s apartment. The jury did not ask whether
defendant had possession of his gun immediately prior to his arrival at the apartment.
Defendant fails to point to any other evidence pertaining to the jury’s question but not
included in the readback testimony. In sum, we perceive no error and, in any event, no
prejudice.
4. Reasonable doubt and burden-of-proof instructions
Defendant claims that the standard “reasonable doubt” instruction (CALJIC
No. 2.90), which at the time of trial in this case employed phrases such as “moral
evidence” and “moral certainty,” is “incomprehensible to a modern jury” and that its use
here compels reversal of the judgment. We repeatedly have rejected this claim (e.g.,
People v. Maury (2003) 30 Cal.4th 342, 429 (Maury); People v. Seaton (2001) 26 Cal.4th
598, 668; People v. Ray (1996) 13 Cal.4th 313, 346-347; People v. Jennings (1991) 53
Cal.3d 334, 385-386 (Jennings)) and do so here as well.
We conclude likewise concerning defendant’s related claim that the combination
of two other standard instructions (CALJIC Nos. 2.01 and 8.83, both relating to
circumstantial evidence) improperly lightened the prosecution’s burden of proof. We
repeatedly have rejected similar challenges to those instructions and do so here as well.
(E.g., Maury, supra, 30 Cal.4th 342, 428; People v. Hughes (2002) 27 Cal.4th 287, 346-
347; People v. Milwee (1998) 18 Cal.4th 96, 160; see also Jennings, supra, 53 Cal.3d
334, 385-386 [rejecting joint challenge to CALJIC Nos. 2.90 and 2.01].)
55
5. Asserted
cumulative error
Defendant
claims
that
alleged cumulative error during jury selection and at the
guilt and special circumstances phase of the trial requires reversal of the guilt phase
judgment and the special circumstances findings. We have found no error, but, even
assuming error (and, indeed, cumulative error), for the reasons set forth in part II.B.1.a
any such improprieties would have been harmless under the “reasonable probability” test
of Watson, supra, 46 Cal.2d 818, 836, and even under the “beyond a reasonable doubt”
test of Chapman, supra, 386 U.S. 18, 23-24.
C. Penalty Phase Claims
As noted earlier, the initial penalty phase proceedings ended in a mistrial after the
jury deadlocked seven to five in favor of imposing a sentence of death. Nine months
later, after the trial court relieved defendant’s former trial counsel due to a conflict and
appointed replacement counsel, the court empanelled a new jury to retry the penalty
phase. From that jury’s verdict and the resulting judgment of death, defendant raises the
following claims.
1. Asserted errors during jury selection
Reprising claims similar to those raised and rejected with regard to the guilt and
special circumstances phase of the trial (ante, pt. II.A), defendant raises a number of
challenges to the penalty-phase jury selection process. We do not find any of them
meritorious.
Defendant suggests the trial court was unaware of its discretion to conduct oral
voir dire as necessary and to allow attorney participation and questioning as appropriate.
The record does not support defendant’s position. At the retried penalty proceedings (as
in the first trial), the court made it clear that counsel were free to seek to question the
prospective jurors. Specifically, in response to questions whether, with respect to the voir
dire procedures, if there arose “some follow-up questions that counsel may deem
appropriate based on the questionnaire, do we ask to approach the bench?” and “May we
56
ask to approach if we deem it appropriate?,” the court responded, “Of course” and also
advised counsel, “I may or may not ask if you wish to inquire.”
Nor does the record support defendant’s claim that the voir dire examination
conducted by the trial court in the retried penalty proceedings was inadequate.
The questionnaire employed at the first trial was reused after being modified
slightly to eliminate two subquestions concerning each prospective juror’s ability to
return a guilty verdict or a finding of special circumstances — issues previously resolved
by the first jury. As in the first trial, the judge conducted an in-court voir dire
examination of every prospective juror and asked each whether he or she wished to
change any response made in the written questionnaire. The court further questioned all
prospective jurors who failed to respond to any questionnaire inquiry or who gave
ambiguous, conflicting, or otherwise problematic answers to questionnaire inquiries.
Finally, the court also asked each prospective juror two questions concerning his or her
22
attitude concerning the death penalty.
Defendant claims this process was inadequate because the questionnaire was
lengthy, its administration allegedly was rushed, and the trial court conducted what
defendant characterizes as a hasty and superficial voir dire examination that did not
produce information sufficient for defense counsel to make (and for the court to rule
22
Without significant variation, the two questions asked of all prospective jurors
were as follows:
(1) “Do you have such conscientious objections to the death penalty that
regardless of the evidence in this case you would automatically, in every case, vote for a
verdict of life imprisonment without the possibility of parole and never vote for death?”
(2) “Do you have such conscientious opinions regarding the death penalty, or at
this phase of the trial, and regardless of the evidence, you would automatically, and [in]
every case, vote for a verdict of death and never vote for a verdict of life imprisonment
without the possibility of parole?”
57
upon) challenges for cause. Defendant additionally argues that the court’s voir dire
examination was defective insofar as it related to potential racial prejudice among
potential jurors.
Because defendant failed to object to or suggest modifications to the
questionnaire, he has forfeited any challenges to its length and allegedly undue
complexity or any other aspect of its content. (Avena, supra, 13 Cal.4th 394, 413.) Even
if we were to overlook that procedural failing, we would find defendant’s challenges
lacking in merit.
Contrary to defendant’s arguments, there is no evidence that prospective jurors
were unduly rushed in completing the questionnaire. They appear to have been given the
questionnaire at approximately 11:30 a.m. and were told that they could return it at noon,
or 1:30 p.m. at the latest. Resulting questionnaire inquiries that any prospective juror
failed to answer were addressed by the judge during the voir dire examination of that
prospective juror and, as in the first trial, in some instances the exchange disclosed that
the prospective juror had not been confused by the question, but simply had left
responses blank in lieu of responding “no” or “inapplicable.” In other instances, the
exchange revealed that the prospective juror needed more information before answering.
Although the trial court declared that counsel were free to seek to pose follow-up
questions to the prospective jurors, defense counsel did not attempt to do so. At the end
of the selection process, instead of stating dissatisfaction with the final jury, counsel
announced that defendant “accept[ed] the jury as constituted” — indicating defense
counsel’s apparent satisfaction with the voir dire examination and with the resulting jury.
We conclude that the described questionnaire sufficiently probed the prospective jurors’
backgrounds and views in numerous relevant areas and, together with the trial court’s
follow-up questions, provided an adequate basis upon which the parties were able to
exercise challenges for cause as well as peremptory challenges.
58
We reach the same conclusion concerning defendant’s specific claim that the voir
dire process inadequately probed the possible racial bias of prospective jurors. As
observed earlier, the questionnaire informed the prospective jurors that a party or witness
“may come from a different nationality, racial or religious group,” and it asked: “Would
that fact affect your judgment or the weight and credibility you would give to his or her
23
testimony?” In addition, in response to defense counsel’s request that the court’s voir
dire examination “address the . . . fact that my client is Black and the fact that the victims
in this case are White,” the trial court agreed to do so, thereafter addressing the group of
prospective jurors as follows: “Now, one thing I will mention is the defendant, as you
can see, is an African-American. The victims in this case are White. Now race is not an
issue at a penalty trial and is not to be considered by you. [¶] Is there anyone on the
panel before me that would ignore this dictate? [¶] Negative response.” The trial court
repeated the essence of this admonition and question at least five more times prior to the
conclusion of the voir dire process.
Defendant
relies
upon
Turner, supra, 476 U.S. 28, 36-37, in which the high court
reversed a death judgment of a Black defendant convicted of killing a White victim,
because the trial court erroneously had declined to ask any question during the voir dire
examination concerning possible racial prejudices of the prospective jurors. Here, by
contrast, the trial court probed that issue on two occasions, once in the questionnaire and
again — at defense counsel’s specific request — during the voir dire examination of the
prospective jurors. If defense counsel believed that further inquiry was necessary, he
could have submitted additional questionnaire inquiries or suggested additional oral
questions. Again, defense counsel’s failure to do so forfeits this aspect of the claim on
appeal. (Avena, supra, 13 Cal.4th 394, 413.)
23
See ante, footnote 14.
59
In any event, even if we were to overlook defendant’s failure to preserve the issue,
we would not find any reversible error. The voir dire examination concerning possible
racial prejudice was not “so inadequate that . . . the resulting trial was fundamentally
unfair . . . .” (Holt, supra, 15 Cal.4th 619, 661.) Even if we were to accept defendant’s
position that the group questions posed by the trial court to the various panels were not
the most effective means of ferreting out possible racial prejudices and that the court
should have inquired further concerning possible racial bias (see Taylor, supra, 5
Cal.App.4th 1299, 1316), we would conclude that the court’s failure to do so here was
harmless. As in Taylor, “the trial court repeatedly emphasized the importance of juror
neutrality and a fair trial,” and “both counsel were specifically invited to ask the court to
conduct further voir dire on any proper subject, including possible racial bias, but were
24
satisfied that it was not necessary to do so.” (Id., at p. 1317.)
2. Evidence that Williams and Aldridge were convicted of charges of
concealment of a handgun and that a witness observed Williams’s car at
the scene of the crime
As noted above in connection with the guilt phase of the trial, defendant claimed
that the trial court improperly excluded evidence that, approximately 10 days after
defendant’s arrest, Williams and Aldridge were arrested in the early morning hours in
Beverly Hills and subsequently were convicted of carrying concealed handguns in their
24
We note that at one point in the voir dire proceedings the trial court misspoke.
Instead of telling one group of six prospective jurors that they were not to consider race
in reaching their decision, the court said, “You all understand that race is not to be
considered until reaching the penalty.” (Italics added.) Of the six prospective jurors to
whom the comment was directly made, one ultimately was selected to serve on the jury.
In its subsequent admonishments the court properly and repeatedly advised, as it had
earlier, that race had no place in the decisionmaking process. Trial counsel for defendant
apparently either overlooked the court’s misstatement or thought it unworthy of mention,
and appellate counsel likewise did not raise the issue. Viewing the record as a whole, the
trial court’s single and obvious misstatement was harmless error.
60
car. (Ante, pt. II.B.1.) Defendant asserts that the court made the “same ruling” at the
penalty phase retrial, thereby “prohibiting any defense questioning concerning Tai
[Williams’s] and Tommy [Aldridge]’s gun possession arrests.”
The reporter’s transcript page cited by defendant for the proposition that the trial
court made such a ruling during the retrial of the penalty phase contains no such passage
or ruling, nor does our review of the record of the penalty-phase retrial reveal such a
ruling. Indeed, the record reveals that defense counsel was permitted to cross-examine
Aldridge concerning the essence of the firearm-concealment charges, resulting in the
witness’s acknowledgment that he and Williams had carried their guns with them to
Beverly Hills and, the witness conceded, “ran into problems with having our guns
illegally stored in the car.” Accordingly, we reject the claim that the trial court excluded
any such evidence.
Even assuming that the trial court improperly excluded evidence related to the
concealed handguns, for the reasons discussed in part II.B.1.a above and because defense
counsel in fact cross-examined Aldridge on the subject and elicited the testimony
described, any state-law error was harmless under the “reasonable possibility” standard of
People v. Brown (1988) 46 Cal.3d 432, 448 (Brown), and any federal constitutional error
was nonprejudicial under the “beyond a reasonable doubt” standard of Chapman, supra,
386 U.S. 18, 23-24.
Defendant also reprises his claim that the trial court improperly excluded evidence
that witness “Ralph Dudley” observed Williams’s car at the scene of the crime. As
explained below, the record shows that, at the retried penalty proceedings (as at the first
trial), defendant never offered evidence concerning “Ralph Dudley” or any other such
witness and the trial court never excluded any such evidence.
The record reveals that during cross-examination of Aldridge, defense counsel
established that the witness remembered testifying at the preliminary examination, and
counsel then proceeded to read aloud a question that had been asked of Aldridge at that
61
time: “Question: Did you know that Tai Williams’s car was seen in the alley the night of
the murders —.” At that point the prosecutor successfully objected on the ground that
defense counsel’s inquiry “assumes facts not in evidence.” When defense counsel
immediately thereafter asked the witness where he was at 1:30 a.m. on the day of the
crimes, the prosecutor approached the bench and, outside the presence of the jury,
objected to “this entire line of questioning. This is dealing with third party . . .
culpability. That’s where he is going . . . .” Defense counsel made an offer of proof that
defendant would testify (as he had at the first trial) that he was at the crime scene shortly
after the shootings and saw Williams’s distinctive gray Mustang departing from the alley
behind the Subway shop, and that defendant “believes that Tommy Aldridge was with
Tai Williams in the car that night.” Defense counsel’s offer of proof did not mention any
witness named “Ralph Dudley” or an alleged sighting by that witness or by any such
other witness (other than defendant himself) of a gray Mustang at the crime scene at the
time of the crimes.
The trial court, citing Hall, supra, 41 Cal.3d 826, and Alcala, supra, 4 Cal.4th 742,
agreed that defendant “does have a right to present evidence of third party culpability if it
is capable of raising a reasonable doubt about defendant’s own guilt,” but also concluded,
as it had at the first trial, that defendant’s offer of proof presented insufficient “direct or
circumstantial evidence linking the third person[s] to the actual perpetration of the
crime,” sustaining the prosecutor’s objection on that basis. As it had in similar
circumstances at the first trial, however, the court added: “If, upon the testimony, your
offer of proof through your client there is other evidence, I can change my [ruling].”
Defense counsel responded, “[t]hat’s fine,” and, when proceedings resumed before the
jury, he withdrew his last question (concerning whether Aldridge knew that Williams’s
62
25
car had been seen at the crime scene) and announced he had no further questions.
Accordingly, we reject defendant’s contention that the trial court erroneously “excluded”
evidence of “Ralph Dudley’s” alleged sighting of a gray Mustang at the crime scene. As
explained above, the defense offered no such evidence at the retried penalty phase of the
proceedings, and the trial court did not exclude any such evidence.
In view of that determination, defendant’s various claims that the trial court’s
“exclusion” of his proffered evidence violated his Eighth Amendment right to a reliable,
individualized capital-sentencing determination necessarily fails as well. (Hall, supra, 41
Cal.3d at p. 834; Lewis, supra, 26 Cal.4th at pp. 373-374.)
Finally, even assuming that the challenged evidence in fact existed and that the
trial court improperly excluded it, in view of the other strong evidence that linked
defendant to the charged offenses any state-law error would have been harmless under
the “reasonable possibility” standard of Brown, supra, 46 Cal.3d 432, 448 and any
federal constitutional error would have been nonprejudicial under the “beyond a
reasonable doubt” standard of Chapman, supra, 386 U.S. 18, 23-24.
3. Admission of testimony concerning probable relative positions of the
victims and the shooter
We concluded earlier that the trial court did not err in allowing Dr. Rogers, a Los
Angeles County deputy medical examiner, to testify regarding the probable relative
positions of the shooter and the victims. Dr. Rogers gave similar testimony at the retried
penalty proceedings, at which time he again considered three possible scenarios for the
wound suffered by victim James White: the shooter may have shot the victim while both
25
Immediately thereafter, upon resumption of redirect examination, the prosecutor
asked Aldridge, “Were you just relaying what the defendant told you [about Williams’s
car being seen at the crime scene] . . . whether it’s true or not, merely what he said?” The
witness responded, “Correct.”
63
were in a standing position (in which event the shooter may have stood on a chair or on
the countertop); the shooter may have crouched or knelt next to the victim; or the shooter
may have stood next to a kneeling victim. Dr. Rogers again testified that White’s wound
was consistent with the third scenario, but that “just based on the wound, I can’t really
determine which of those occurred.”
Defendant contends the evidence was irrelevant. We disagree. Evidence
suggesting that at least one of the victims could have been shot while kneeling was
relevant to aggravation of penalty under section 190.3, factor (a). For reasons previously
discussed, we also reject defendant’s claims that the evidence was not a proper subject of
expert testimony and that it was given without proper foundation. Finally, we again
reject defendant’s contention that the trial court should have concluded that the
challenged testimony was more prejudicial than probative and hence that its introduction
was barred under Evidence Code section 352 and violated defendant’s state and federal
constitutional rights. As we have explained, evidence is not “unduly prejudicial” under
the Evidence Code merely because it strongly implicates a defendant and casts him or her
in a bad light or merely because the defendant contests that evidence and points to
allegedly contrary evidence. Here, the challenged evidence was highly relevant to the
prosecution’s theory of premeditated and deliberated murder, and to corroboration of the
testimony of the three prosecution witnesses who recounted defendant’s stated intention
to execute witnesses and his boasts of having shot the victims in the head. And, as noted
above, the evidence also was relevant in aggravation of penalty as a circumstance of the
crime. The trial court acted within its discretion in concluding that the challenged
evidence was more probative than prejudicial. (Crittenden, supra, 9 Cal.4th 83, 133-
26
134.) We discern no error, statutory or constitutional.
26
Defendant also reasserts a claim raised and rejected earlier (pt. II.B.3), concerning
the readback testimony relating to whether defendant possessed his gun after he returned
(footnote continued on following page)
64
4. Victim-Impact evidence
Without objection, the parents and twin sister of Brian Berry, as well as the mother
of James White, testified extensively at the retried penalty proceedings concerning certain
attributes of each victim and the effects of the murders upon them and their families.
Much of the testimony, which covers 37 transcript pages, was delivered in lengthy
27
narratives, portions of which we reproduce below.
Brian Berry’s father, Jan Stephen Berry, began with a detailed account of how he
and his wife learned of their son’s death:
“It was eight o’clock on Sunday morning, the 30th of June, and we were awakened
by a knocking by the sheriff at our cabin door in Big Bear. All he told us was to call
home about a death in the family. [¶] . . . [M]y first thought was that it was probably
news of one of my parents. I said that to Terry [his wife], but as I said it to her she
started to cry and said, oh, my God, our children. That was unthinkable to me, and I
couldn’t give it any consideration or credence at all. [¶] We had been together just that
Saturday before kidding around at home, having fun, and enjoying grandma’s visit from
(footnote continued from preceding page)
to Williams’s apartment immediately after the Subway crimes were committed. Namely,
defendant contends that the allegedly improper material that was read back at the first
trial “contributed to the convictions in a capital case, [and hence] the judgment is not
sufficiently reliable to satisfy the Eighth Amendment. (Beck v. Alabama [(1980)] 447
U.S.625, 637-638.” We disagree. For the reasons set forth in part II.A.1.a, any error was
nonprejudicial as to the guilt convictions and special circumstance findings, and we
perceive no basis upon which to conclude that the resulting penalty judgment is
unreliable under the Eighth Amendment.
27
Essentially the same testimony, covering 39 transcript pages, had been admitted,
without objection, at the first penalty-phase trial. The sole substantive difference in the
testimony given at the two proceedings is that, in the retried penalty proceedings, two of
the witnesses — Brian Berry’s father and James White’s mother — testified briefly
concerning the mental images they held of the victims kneeling and pleading for their
lives before they were executed. (See post, at pp. 67 & 71.)
65
Northern California. Everybody was fine. [¶] We didn’t have a phone in the cabin so
we drove to a phone booth outside a little restaurant on Highway 18. Terry and I
squeezed into the phone booth, and I placed a call to our home. [¶] It was a little breath
of sunshine and heaven when Shannon [his daughter] answered the phone. I said Hi
Shannon so her mom could hear her voice and know that she was okay. I groped for
words to ask what had happened. [¶] Shannon said that Brian had been killed. And I
was stunned, I couldn’t believe what I had heard. I asked if there had been a traffic
accident. She said no. Then I continued to try and ask questions as she struggled to try
and tell me what had happened. [¶] After several repeats and repeats and repeats I could
understand what she was trying to tell us. She was trying to tell us that Brian had been
killed, he had been murdered at the Subway Sandwich Shop where Jimmy [James White]
had worked. Jimmy had been killed also. [¶] Numb and shaken I told her that I loved
her, that we’d be home as soon as we could. [¶] Terry and I stood in that little tiny
phone booth screaming and crying for a long while. Finally, we went back to our car and
we sat and cried and screamed and carried on trying to comprehend what we had been
told. It was a long time before we could get ourselves together enough to drive back to
the cabin. [¶] When we finally headed home, it was in numb shock and disbelief. How
could this be? It couldn’t possibly be true.”
Mr. Berry also described the impact of his son’s death on the family:
“Words absolutely fail to convey the devastation. It’s like trying to describe
seeing to a blind person or music to someone who can’t hear. [¶] We hear terrible things
on the news every day. You just can’t imagine what the impact is until it is our leg
amputated or our 18 year-old-son killed. It is pain like I have never known before in my
life. [¶] His dreams of life and adventure gone. We struggled to help him learn and
grow. For what? The sharing of his joys and sorrows, gone. All his potential, gone. The
hope of someday his children to love and share, gone. The friends he had yet to make
we’ll never know the extent of this loss. The friends left behind, empty and hurting and
66
asking why. [¶] Our family torn apart, struggling to accept an unacceptable loss. [¶]
His twin sister alone after being there for each other all their lives. They were so
different from one another, yet such good friends. [¶] Even though he was 18 years old
and now an adult, as a father you always feel that you are there to protect your children
and it is very difficult to think that at the time when he most needed somebody I couldn’t
be there to help him. How can I ever escape the image of my son’s terror as he
defenselessly pleaded for his life and not by accident, not in anger, not in fear, but for a
few hundred dollars someone could look my son in the eye, and without feeling or mercy,
in a point-blank range shoot him in the face, then put the gun against the side of his head
and shoot him again.[28] [¶] The family and friends and church family and counseling
and prayer, books. Almost three years the grief goes on, and I guess it will the rest of my
life.”
Brian Berry’s twin sister, Shannon, described the telephone conversation in which
she had revealed her brother’s murder to her parents, the especially close relationship she
had had with her brother, and the impact of her brother’s death upon her:
“I can’t even say everything that it’s impacted. It impacted everything. From
going to having a built-in best friend, I’m alone. I don’t have my brother, my other half.
My birthdays aren’t a celebration anymore. I can’t share them with the person I shared
28
Contrary to defendant’s claims, the testimony concerning Mr. Berry’s mental
image of his son “pleading” for his life prior to being executed at point-blank range, as
well as Mrs. White’s additional testimony concerning her own mental image of her son
pleading while “on his knees” before being executed (see post, p. 71), was reasonably
based upon the evidence. That evidence included: (a) the testimony of the deputy
medical examiner, Dr. Rogers, who explained that White’s wound was consistent with
having been shot while in a kneeling position; (b) the testimony that defendant had told
his friends that, in carrying out the planned robbery, he would need to execute any
witnesses; and (c) the testimony of Ostrander, who recounted that defendant had told him
that he had “popped” the victims by shooting them in the head while they pleaded not to
be shot.
67
them with for 18 years. Instead of celebrating birthdays I have to mourn on them. [¶]
All the things that I want to share with him I have to go to the cemetery. I bought a new
car, and I took it to the cemetery to show my brother. [¶] There [are] so many things that
we had left to share: getting married and having kids. And having family barbeques.
And all those things that brothers and sisters are supposed to do together. [¶] And I think
about when my parents die, I always expected him to be there for me and for me to be
there for him, and now I’m all alone. [¶] I have this huge empty hole inside of me, and
I’m searching for something to fill it. I have five animals now because nothing can fill
that hole. [¶] I have fallen two years behind in college because school isn’t important
anymore. Things that used to matter to me don’t. My life is revolving around court date
after court date, trial after trial. [¶] I have been through therapy for three years. I went
through a session of teenage grief group. I have been to Compassionate Friends. I have
been to support groups in therapy. Nothing makes it better. Everything that used to be is
gone. Nothing is the same and nothing ever will be. [¶] My friends don’t know how to
relate to me. I’m 21 years old, and I feel like I’m 40. [¶] Things that young people are
supposed to care about don’t matter. My world is gone.”
Brian Berry’s mother, Terry Lynn Berry, described the conversation in which her
daughter told her parents of the murders, the close relationship she had with her son, her
son’s many exceptional qualities, and her pride in him. Finally, she described the impact
of her son’s death on herself and her family:
“I don’t know how a mom can put into words what it’s like to have a child
murdered. There are no words that can fully explain the impact. And no one can truly
understand unless you, too, have a child die. [¶] Brian had many goals and many dreams
for his future. He will never be able to fulfill those goals. His life was taken away from
him. The possibility of marriage and children, all gone. His career and goals and plans
will never become a reality. [¶] Brian and Shannon had always planned to spend time
together when they had families of their own. They would go on vacations together,
68
summer barbeques, all of those precious family things that people always do, and she
doesn’t have anybody to share that with now. [¶] When the future for your child has
been destroyed, then all the hopes and dreams that you have for your child and yourself
are gone. [¶] Brian Berry and James White were childhood friends. They became
friends in the fourth grade. Their friendship remained strong through elementary, junior
high and senior high school. They were like brothers. They had plans to share an
apartment and life’s experiences together, but instead, they died together. [¶] Brian was
one of my dearest friends. When I needed a shoulder to lean on, or someone to talk to, he
was there for me. We had our special time when he would come home from work, and
we’d sit on the porch and we would share the day’s events and feelings about good things
or bad things. But that was a very special time for me and these, too, are gone. I don’t
have those precious times anymore. [¶] When your child dies, a large part of you dies
too. The hole that’s left in your heart never heals. The emptiness cannot be explained
but only experienced. So many lives have been devastated by Brian[’s] and Jimmy’s
tragic and senseless death[s]. My life has been destroyed. [¶] Yesterday was Mother’s
Day. I should have been able to be at home with both of my children to celebrate the joy
of being a mom, but instead I had to go to the cemetery to thank Brian for 18 years. I,
too, have been in and out of therapy for the last two and a half years, but I still can’t find
any joy. I find only sorrow and pain. I have become a member of Compassionate
Friends hoping to find some peace and understanding, but that’s difficult too. [¶] I wish
I could tell you many stories about my darling Brian, my beloved son, so that you would
know and understand the love that we share. And I pray that no other family will ever
stand before you as we have and that you may never know the pain and heartache that we
live with each and every day.”
Thereafter, James White’s mother, Mrs. Kristine White, testified. The prosecutor
asked her to describe how she learned of her son’s fatal injury. Because her son did not
die immediately from his wound, the police took Mrs. White and her daughters to the
69
hospital where James was being treated. Mrs. White described in detail holding her son
in that setting, talking to him, and crying as he died. She then described her emotional
reactions immediately after his death, explaining that she kept her son’s possessions in
his room and that she sleeps with his teddy bear for comfort. Asked by the prosecutor to
describe the impact of her son’s death upon herself and her family “at this time,” Mrs.
White testified:
“Even though the boys are gone, James is gone, they are still here (indicating) with
us always. [¶] You miss them always. Every part of your life is touched by that missing
family. [¶] You still love them. That love still goes on. You search for ways to express
it even though they are not there so you talk to the air, you talk to his teddy bear, you talk
to them when things remind you of them and hope that they can hear you. [¶] I miss his
love. I miss his big smiles and his hugs. I miss the fun and the companionship. [¶] I
miss the dirty socks on the floor that I was forever complaining about and picking up.
The holidays, birthdays, special things are never going to be the same. Life will never be
the same. [¶] You go shopping and looking at a box of Ritz crackers, it’s Jimmy. [¶]
Songs you hear on the radio. Roxanne I can remember him singing. His sisters wear his
clothes, T-shirts to sleep in. Jackie, who was eight at the time, now 11, has an old tennis
shoe that she dug out of her trash and keeps in the drawer. She doesn’t know that I know
she has it there. Old empty gum wrappers she has in a drawer. [¶] I’m an elementary
[school] principal and every little blond boy that’s slightly pigeon-toed reminds me of my
son. [¶] I try to picture what he’d be like at 22 now: If his face would be different. If
you would be able to see that moustache that you could hardly see before. If he would
still be as skinny. [¶] He’d probably be going to Northridge now working on his
teaching credentials. He wanted to be a history teacher in high school. I think he would
have been a good one. [¶] Forgive me for having notes. It’s real hard being up here and
there [are] so many things I want to share with you. [¶] I worry about my mom and my
dad who loved him dearly. My dad was more like a father to him than anyone else in the
70
world. [¶] It is hard even to go to church because everything in church reminds you
when you cry in front of strangers, and I hate to cry in front of strangers, and here I am
crying in front of you. [¶] You feel out of sync with the world. You spend a lot of time
alone. You become more and more like a hermit because your friends don’t understand.
My family is the only one that does, and the Berry’s, and the boys’ friends. [¶] I cry
reading stories in the newspapers. I can’t watch TV like “Rescue 911” because those are
real people, and I start thinking about the person, what they went through, the families,
what they are going through. [¶] Your friends expect you to be over it. They don’t
realize that you never are. [¶] In life you look forward to certain things happening.
Jenny is 15 now. She was with me here the other day. I am still trying to screen things
from her as far as all of this. [¶] I had looked forward to her dating and seeing Jimmy
being the big brother and teasing her about it. Jackie is graduating from 6th grade.
Jimmy should have been there for that. [¶] I looked forward to him getting married,
becoming a father. He would have been a great dad. He was a wonderful brother, a
wonderful son. He would have been a great teacher and helped lots of other people in the
world. [¶] This trial itself, the whole legal process, is very bewildering. I sit here and
listen to the facts of the case and know it’s my son, my little boy. [¶] All of these things
that you have heard about replay in our minds like videotape, the events of what
happened at Subway. I can see James and what his terror must have been like in seeing
his best friend shot. How afraid he must have been on his knees asking for his life.[29] I
can feel the gun to his head. To this day I don’t understand how I slept so soundly and
didn’t know. You’d think that you would. [¶] I don’t understand anybody being able to
do that. [¶] I can hear him moaning as he lay on the ground and bled from his wound
and there wasn’t anybody there to help him. [¶] Jackie, the 11 year old, asked me a
29
See ante, footnote 28.
71
couple of weeks ago if I ever wished that I was dead so that I could be with Jimmy. I had
to tell her yes. But she had to have that thought herself to be able to ask me. This is an
11 year old girl. [¶] She believes like I do, that there is life after this one. And
sometimes I long to be there because I miss my son so much. [¶] I wonder if he will
look the same in heaven. I wonder if I will be able to hug him. [¶] They have that
saying that time heals all wounds. That’s not true. You just go on hurting. You just go
on missing, longing. It never goes away. It still feels like a nightmare. Sometimes I
wish I could just turn the clock back and it would all go away. It seems like yesterday
and it’s been three years. [¶] I can close my eyes, and I can see him so clearly walking
into the room with his big smile and saying, ‘Hi Mom, I’m going to Brian’s,’ and holding
out his hands to give me a hug. [¶] There really aren’t words to express what it’s like to
go through what we have, and I pray that none of you will ever know what it’s like. With
all my heart I pray that for you. [¶] That’s it.”
Beyond the representative passages quoted above, each of the four witnesses gave
additional, similar testimony concerning various other aspects of their grief. And, in the
course of the above testimony, the prosecution also introduced — again without
objection — 22 photographs of the victims taken while they were alive. Most of the
30
photos showed the victims with their families, many depicting them in early childhood.
The prosecutor, in his closing argument, referred to the suffering of the Berry and
White families and contrasted that with what he asserted was a lack of “remorse” or
“humanity” on the part of defendant. The prosecutor also argued that, whereas defendant
could receive visits from his family while he was in prison, the victims’ families could
“visit” their sons only at the cemetery and asserted that the jury should “take that into
account.”
30
The same 22 photographs had been introduced at the first penalty phase trial.
72
Defendant acknowledges that so-called victim-impact evidence may be introduced
at penalty-phase proceedings under the federal Constitution (Payne v. Tennessee (1991)
501 U.S. 808 (Payne)) and that we also have found such evidence (and related “victim
character” evidence) admissible as a “circumstance of the crime” under section 190.3,
factor (a). (Roldan, supra, 35 Cal.4th 646, 730-731; People v. Panah (2005) 35 Cal.4th
395, 494-495 (Panah); People v. Benavides (2005) 35 Cal.4th 69, 107 (Benavides);
People v. Brown (2004) 33 Cal.4th 382, 396-398 (Brown II); People v. Pollock (2004) 32
Cal.4th 1153, 1181 (Pollock); People v. Edwards (1991) 54 Cal.3d 787, 832-836
(Edwards).) Defendant contends, however, that the testimony and photographic evidence
described above should have been excluded because it was partially irrelevant, largely
cumulative, and “so unduly prejudicial that it render[ed] the trial fundamentally unfair”
(Payne, supra, 501 U.S. 808, 825) and/or constituted “ ‘irrelevant information or
inflammatory rhetoric that divert[ed] the jury’s attention from its proper role or invite[d]
an irrational, purely subjective response . . . .’ ” (Edwards, supra, 54 Cal.3d at p. 836;
see also Roldan, supra, 35 Cal.4th at pp. 732-733; Panah, supra, 35 Cal.4th at pp. 494-
31
495; People v. Taylor (2001) 26 Cal.4th 1155, 1172.)
31
In making these arguments and advancing his claim that “[t]estimony or photos
revealing admirable aspects of the victims’ character, and/or indicating that the victim’s
loss will be unusually difficult for the family or community are especially prejudicial and
inappropriate,” petitioner relies upon Smith v. State (Tex.Crim.App. 1996) 919 S.W.2d 96
(Smith). Defendant asserts in his opening brief that the appellate court in Smith “found
reversible error when the trial court had allowed the victim’s sister and one of the
victim’s friends to testify about the victim’s good qualities, her education and ambitions
and the effect her death had on her students.” (Citing Smith, supra, at p. 97, italics
added.) In his reply brief, defendant repeats the same assertion concerning the Smith
case. This characterization of the Smith decision is misleading. Although the court in
Smith found introduction of such evidence to be error under the applicable state statute
(id., at p. 102), it did not find that the error warranted reversal, but instead that the error
was harmless. (Id., at p. 103.) Moreover, two years later, the Texas court reconsidered
Smith and reversed that decision on the question of error, stating in Moseley v. State
(footnote continued on following page)
73
In
Payne, the high court held that the Eighth Amendment does not per se bar
introduction of victim-impact testimony. Such testimony in Payne consisted of a single
response to a question posed to a witness who was the mother and grandmother of the
two victims. The witness was asked how a surviving young child had been affected by
the murders of his mother and sister, which had been committed in his presence. The
witness responded: “ ‘He cries for his mom. He doesn’t seem to understand why she
doesn’t come home. And he cries for his sister Lacie. He comes to me many times
during the week and asks me, Grandmamma, do you miss my Lacie. And I tell him yes.
He says, I’m worried about my Lacie.’ ” (Payne, supra, 501 U.S. 808, 814-815.)
Upholding
the
introduction
of this evidence and the prosecutor’s subsequent
argument based upon it, the high court in Payne reasoned that, just as a jury must be
allowed to consider mitigating evidence introduced by a defendant, the prosecution “has
a legitimate interest in ‘counteracting’ ” that mitigating evidence, and hence a jury also
should be allowed to consider in aggravation “the specific harm caused by the crime in
question.” (Payne, supra, 501 U.S. 808, 825.) The court rejected the view that such
evidence often or even generally “leads to the arbitrary imposition of the death penalty,”
but observed that if, in a given case, such evidence “is so unduly prejudicial that it
renders the trial fundamentally unfair,” such a sentence will be overturned on
constitutional due process grounds. (Ibid.)
Addressing this point shortly after Payne was decided, we concluded in Edwards,
supra, 54 Cal.3d 787, that photographs of crime victims while they were alive properly
(footnote continued from preceding page)
(Tex.Crim.App. 1998) 983 S.W.2d 249, 262: “We take this opportunity to announce a
consistent, if not always clear-cut rule to be followed in future cases: Both victim impact
and victim character evidence are admissible, in the context of the mitigation special
issue, to show the uniqueness of the victim, the harm caused by the defendant, and as
rebuttal to the defendant’s mitigating evidence.”
74
had been admitted under Payne and as “circumstances of the crime” under section 190.3,
factor (a). We explained that the quoted phrase (“circumstances of the crime”) “does not
mean merely the immediate temporal and spatial circumstances of the crime,” but
“[r]ather . . . extends to ‘[t]hat which surrounds materially, morally, or logically’ the
crime.” (Edwards, supra, 54 Cal.3d at p. 833.) We also cautioned, however, that
allowing such evidence under factor (a) “does not mean that there are no limits on
emotional evidence and argument,” and we quoted with approval our pre-Payne
observations that (1) “ ‘the jury must face its obligation soberly and rationally, and
should not be given the impression that emotion may reign over reason,’ ” and that
(2) although a court should “ ‘allow evidence and argument on emotional though relevant
subjects that could provide legitimate reasons to sway the jury to show mercy or to
impose the ultimate sanction,’ ” still, “ ‘irrelevant information or inflammatory rhetoric
that diverts the jury’s attention from its proper role or invites an irrational, purely
subjective response should be curtailed.’ ” (Edwards, supra, 54 Cal.3d 787, 836, quoting
People v. Haskett (1982) 30 Cal.3d 841, 864.)
In this vein, defendant relies upon the decision of the Oklahoma Court of Criminal
Appeals in Cargle v. State (1996) 909 P.2d 806, which stated: “The more a jury is
exposed to the emotional aspects of a victim’s death, the less likely [its] verdict will be a
‘reasoned moral response’ to the question whether a defendant deserves to die; and the
greater the risk a defendant will be deprived of Due Process.” (Id., at p. 830.)
One extreme example of such a due process infirmity is Salazar v. State
(Tex.Crim.App. 2002) 90 S.W.3d 330. In that murder trial, the court admitted a 17-
minute “video montage” tribute to the murder victim — approximately 140 photographs
set to emotional music, including “My Heart Will Go On,” sung by Celine Dion and
featured prominently in the film Titanic. (Id., at pp. 333-334.) Reversing a lower
appellate court decision finding the presentation admissible, the Texas Court of Criminal
Appeals remanded for an assessment of prejudice. In so ruling, the state high court
75
observed, among other things, that “the punishment phase of a criminal trial is not a
memorial service for the victim. What may be entirely appropriate eulogies to celebrate
the life and accomplishments of a unique individual are not necessarily admissible in a
criminal trial” (id., at pp. 335-336), and that “ ‘we caution that victim impact and
character evidence may become unfairly prejudicial through sheer volume. Even if not
technically cumulative, an undue amount of this type of evidence can result in unfair
prejudice . . . . Hence, we encourage trial courts to place appropriate limits upon the
amount, kind, and source of victim impact and character evidence.” (Id., at p. 336, italics
32
in original.)
We need not, and do not, decide in this case whether evidence of the nature and
extent presented below properly was admitted at the penalty phase of this capital trial.
Defense counsel knew that most of this same evidence had been received at the first trial
(see ante, fns. 27 & 30), and hence easily could have brought an in limine motion to
restrict the admission of this evidence. By failing to do so, or to object when the
testimony and the photographs were offered at the retried penalty proceedings, defendant
has waived the issue on appeal. (Evid. Code, § 353, subd. (a); Roldan, supra, 35 Cal.4th
646, 732; Benavides, supra, 35 Cal.4th 69, 106; Pollock, supra, 32 Cal.4th 1153, 1181-
33
1182; People v. Crew (2003) 31 Cal.4th 822, 845.)
32
After remand, the Texas Court of Criminal Appeals found the error prejudicial and
ordered a new sentencing trial. (Salazar v. State (Tex.Crim.App. 2003) 118 S.W.3d 880.)
33
Defendant also contends that, because the family members were not physically
present at the scene when the crimes were committed, their resulting testimony did not
constitute evidence of the circumstances of the crimes under section 190.3, factor (a).
This claim also was not raised below and similarly is forfeited on appeal. In any event,
we never have required such a nexus. (See Brown II, supra, 33 Cal.4th 382, 398 [“We
find no authority for such a rule, which would eliminate the vast majority of victim
impact evidence in murder cases — a result inconsistent with the underlying rationale of
Payne . . . . ”]; see also Pollock, supra, 32 Cal.4th 1153, 1183.) Defendant further
suggests that victim-impact evidence must be limited to facts or circumstances known to
(footnote continued on following page)
76
5. Routine instructional and constitutional challenges
a. Refusal to instruct on “lingering doubt”
Defendant submitted, and the trial court rejected, two alternative special
instructions that specifically would have informed the jury that it was permitted to
consider, in mitigation of penalty, any lingering doubt as to defendant’s guilt. In denying
this request, the trial court observed that defense counsel would not be precluded from
“arguing lingering doubt.” Subsequently, in closing arguments, the prosecutor asserted
that the jury should have no lingering doubt concerning defendant’s guilt, and urged the
jury to “ignore” any argument that defense counsel might make to the contrary. Defense
counsel thereafter argued forcefully (without objection, and contrary to what the
prosecutor had urged) that the jury could and should have a lingering doubt about
defendant’s guilt. Indeed, counsel spent half of his argument reviewing the guilt-phase
evidence in an attempt to raise doubts regarding the earlier determination of guilt and
strongly asserted that the jury should act upon such doubt by viewing it as an important
factor that weighed against a punishment of death. Subsequently, the court instructed the
jury, pursuant to section 190.3, factor (k), to consider in determining the appropriate
penalty “any other circumstance which extenuates the gravity of the crime even though it
is not a legal excuse for the crime and any sympathetic or other aspect of the defendant’s
character or record as a basis for [a] sentence less than death . . . .”
(footnote continued from preceding page)
the defendant at the time of the crimes. Again, this claim, not raised below, is forfeited
on appeal. In any event, we have approved the admission of such evidence in
circumstances in which the defendant had no prior knowledge of the victim. (Brown II,
supra, 33 Cal.4th at pp. 389, 397-398.) As the People observe, although defendant may
not have known the precise dimensions of the tragedy his actions would leave behind, the
profound harm to surviving family members and friends was “so foreseeable as to be
virtually inevitable.” (Payne, supra, 501 U.S. 808, 838 (conc. opn. of Souter, J.).)
77
We repeatedly have rejected claims that, under either state or federal law, a trial
court must instruct concerning lingering doubt, whether on the court’s own motion or in
response to a specific request. (E.g., People v. Slaughter (2002) 27 Cal.4th 1187, 1219
[failure to instruct on own motion]; People v. Millwee (1998) 18 Cal.4th 96, 165-166
(Millwee) [same]; People v. Brown (2003) 31 Cal.4th 518, 567-568 [refusal of requested
instructions]; People v. Lawley (2002) 27 Cal.4th 102, 166 [same]; People v. Staten
(2000) 24 Cal.4th 434, 464 [same]; People v. Hines (1997) 15 Cal.4th 997, 1068 [same];
People v. Sanchez (1995) 12 Cal.4th 1, 77-78, and cases cited [same].) We perceive no
reason to reconsider those determinations here. Moreover, we observe that, consistent
with defense counsel’s closing arguments, the jury was allowed under the factor (k)
instruction to consider in mitigation any lingering doubt it may have had. (See, e.g.,
People v. Brown, supra, 31 Cal.4th at pp. 567-568; People v. Lawley, supra, 27 Cal.4th at
p. 166; People v. Hines, supra, 15 Cal.4th at p. 1068; People v. Sanchez, supra, 12
Cal.4th at p. 77.)
b. The asserted need for jury unanimity based upon findings,
beyond a reasonable doubt, concerning the presence of one or
more aggravating factors
Defendant contends that a death judgment is invalid under the federal Constitution
unless the jury finds beyond a reasonable doubt that a particular aggravating factor exists,
unanimously agrees upon the applicable aggravating factor or factors, and submits
written findings specifying the applicable aggravating circumstances. Defendant
concedes that we repeatedly have considered, rejected, and declined to reconsider these
and related claims in numerous prior decisions (e.g., Millwee, supra, 18 Cal.4th 96, 164
[declining the defendant’s request to reconsider our “prior decisions — too numerous to
cite here” upholding the statutory scheme against the same challenges]), but argues that
the high court’s decision in Ring v. Arizona (2002) 536 U.S. 584, viewed together with its
earlier decision in Apprendi v. New Jersey (2000) 530 U.S. 466, requires us to reconsider
78
our prior determinations. In his reply brief, defendant acknowledges that we declined to
do precisely that in post-Apprendi decisions (e.g., People v. Ochoa (2001) 26 Cal.4th
398, 453-454) and in two post-Ring decisions (People v. Prieto (2003) 30 Cal.4th 226,
275 (Prieto); People v. Snow (2003) 30 Cal.4th 43, 126, fn. 32), but requests that we
reconsider and provides copious argument for his position. We decline to do so. (See
People v. Dickey (2005) 35 Cal.4th 884, 930-931; Panah, supra, 35 Cal.4th 395, 499-
500; People v. Young (2005) 34 Cal.4th 1149, 1207-1208; Cleveland, supra, 32 Cal.4th
704, 765; People v. Martinez (2003) 31 Cal.4th 673, 700-701; People v. Nakahara (2003)
30 Cal.4th 705, 721-722; Maury, supra, 30 Cal.4th 342, 440, fn. 25.)
c. Other structural challenges
Defendant advances some of the standard challenges to the constitutionality of the
California death penalty statute. We reject them for the same reasons that repeatedly
have led us to reject identical claims. (See, e.g., Panah, supra, 35 Cal.4th 395, 499-500.)
First, section 190.3 adequately narrows the class of death-eligible offenders. (E.g.,
People v. Griffin (2004) 33 Cal.4th 536, 596; Prieto, supra, 30 Cal.4th 226, 276; People
v. Samayoa (1997) 15 Cal.4th 795, 863.) Second, section 190.3, factor (a) is not
impermissibly overbroad facially or as applied. (E.g., Brown II, supra, 33 Cal.4th 382,
401; Lewis, supra, 26 Cal.4th 334, 394; Jenkins, supra, 22 Cal.4th 900, 1050-1053.)
Finally, the statute is not unconstitutional because (with the exception of evidence of
other crimes) it lacks a requirement that the jury make written findings or be given
“burden of proof” or “standard of proof” instructions concerning aggravating and
mitigating circumstances in reaching a penalty determination; nor is the statute infirm for
failing to require that all aggravating factors be proved beyond a reasonable doubt, that
such factors must outweigh factors in mitigation beyond a reasonable doubt, or that death
must be found to be an appropriate penalty beyond a reasonable doubt. (E.g., People v.
Kraft (2000) 23 Cal.4th 978, 1078-1079; People v. Welch (1999) 20 Cal.4th 701, 767.)
79
6. Asserted
cumulative error
Defendant contends that alleged cumulative error at each trial requires reversal of
the penalty judgment. We previously have rejected a similar contention insofar as the
guilt and special circumstances phase of the trial is concerned. We have not found any
error at the penalty phase of the proceedings, but even assuming error (and, indeed,
cumulative error), any such improprieties would have been harmless under the
“reasonable possibility” test of Brown, supra, 46 Cal.3d 432, 448, and under the “beyond
a reasonable doubt” test of Chapman, supra, 386 U.S. 18, 23-24. The record reflects that
defendant received a fair trial.
III. CONCLUSION
The judgment is affirmed in its entirety.
GEORGE, C.J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.*
* Associate Justice, Court of Appeal, First Appellate District, Division Three, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
80
CONCURRING OPINION BY MORENO, J.
I concur in the majority opinion. The majority correctly concludes that defendant
has waived the issue of whether the nature and extent of the victim impact evidence
presented was properly admitted, because defense counsel failed to bring an in limine
motion to restrict admission of the evidence. (Maj. opn., ante, at p. 76; see People v.
Pollack (2004) 32 Cal.4th 1153, 1180 [trial counsel successfully moved to limit the scope
of the victim impact testimony before the commencement of such testimony].) Although
the majority does not decide the merits of defendant’s claim, I write separately to express
my view that a certain type of testimony by the victims’ families in this case was not
properly admissible as victim impact evidence.
The proper purpose of victim impact evidence was set forth in Payne v. Tennessee
(1991) 501 U.S. 808 (Payne). In approving the very brief victim impact testimony in that
case, the court stated: “ ‘[T]he State has a legitimate interest in counteracting the
mitigating evidence which the defendant is entitled to put in, by reminding the sentencer
that just as the murderer should be considered as an individual, so too the victim is an
individual whose death represents a unique loss to society and in particular to his
family.’ ” (Id. at p. 825.)
The court in Payne, although overruling Booth v. Maryland (1987) 482 U.S. 496
(Booth) to the extent that it mandated exclusion of victim impact evidence, left intact
Booth’s holding that “the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate sentence violates the Eighth
1
Amendment.” (Payne, supra, 501 U.S. at p. 830, fn. 2; see also People v. Pollack, supra,
32 Cal.4th at p. 1180.) Booth, in explaining why the admission of such characterization
and opinion evidence was unconstitutional, stated: “One can understand the grief and
anger of the family caused by the brutal murders in this case, and there is no doubt that
jurors generally are aware of these feelings. But the formal presentation of this
information by the State can serve no other purpose than to inflame the jury and divert it
from deciding the case on the relevant evidence concerning the crime and the defendant.”
(Booth, supra, 482 U.S. at p. 508.)
In the present case, I find parts of the victim impact testimony crossed the line
between proper victim impact testimony and improper characterization and opinion by
the victim’s family. The prime example was that of Brian Berry’s father, Jan Stephan
Berry, who testified: “ ‘Even though [Brian] was 18 years old and now an adult, as a
father you always feel that you are there to protect your children and it is very difficult to
think that at the time when he most needed somebody I couldn’t be there to help him.
How can I ever escape the image of my son’s terror as he defenselessly pleaded for his
life and not by accident, not in anger, not in fear, but for a few hundred dollars someone
could look my son in the eye, and without feeling or mercy, in a point-blank range shoot
him in the face, then put the gun against the side of his head and shoot him again.’ ”
(Maj. opn., ante, at p. 67, fn. omitted, italics added.) The above passage is only
minimally related to the valid purpose of reminding the jury “ ‘that the victim is an
individual whose death represents a unique loss to society and in particular to his
family.’ ” (Payne, supra, 501 U.S. at p. 825.) Rather, it is quite plainly “the admission
of a victim’s family members’ characterizations and opinions about the crime [and] the
defendant,” which violates the Eighth Amendment. (Payne, supra, 501 U.S. at p. 830, fn.
2.)
A similar statement was made by James White’s mother, Kristine White. As she
stated: “ ‘All of these things that you have heard about replay in our minds like
2
videotape, the events of what happened at Subway. I can see James and what his terror
must have been like in seeing his best friend shot. How afraid he must have been on his
knees asking for his life. I can feel the gun to his head. To this day I don’t understand
how I slept so soundly and didn’t know. You’d think that you would. [¶] I don’t
understand anybody being able to do that. [¶] I can hear him moaning as he lay on the
ground and bled from his wound and there wasn’t anybody there to help him.’ ” (Maj.
opn., ante, p. 71, fn. omitted; italics added.)
The
above
statement,
again, is only minimally related to the purpose of victim
impact evidence discussed above. Rather, it allowed the parent of the victim to invoke an
imagined version of the crime, the version that was the most horrific, and that was in
1
alignment with the prosecutor’s theory of the murders. Although the above statement
may have been couched in the language of victim impact testimony, i.e., in terms of a
“videotape” running in the mind of the victim’s mother, that “videotape” was in fact a
simile for a series of recurrent thoughts she had based on things she had “heard about.”
Those thoughts in turn were essentially characterizations of and opinions about the crime
and defendant, the primary effect of which would be to “inflame the jury” (Booth, supra,
482 U.S. at p. 508) in order to elicit from it the maximum penalty.
In fact, I would hold as a general rule that testimony of victims’ friends and family
regarding their imagined reenactments of the crime be excluded. Such testimony is too
far removed from victim impact evidence’s central purpose of explaining the loss to the
family and society that resulted from the victim’s death, and can too easily lend itself to
improper characterization and opinion of the crime and defendant, to pass muster under
1
Although the majority is correct that White’s statement is not inconsistent with the
evidence at trial, neither does that evidence, chiefly Dennis Ostrander’s account of what
defendant told him about the crimes, compel the conclusion that the murders occurred in
the manner that White, and the prosecutor during closing argument, described them.
3
the Eighth Amendment. Of course, if the victim impact witness actually witnessed the
crime occurring, such testimony would be admissible. (See People v. Fierro (1991) 1
Cal.4th 173, 234-235.)
Because defendant has waived the issue on appeal, there is no occasion to decide
whether the above erroneous admissions were prejudicial, nor whether there are other
parts of the victim impact testimony in this case that should have been excluded.
MORENO, J.
I CONCUR:
KENNARD, J.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Robinson
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S040703
Date Filed: December 15, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Ronald S. Coen
__________________________________________________________________________________
Attorneys for Appellant:
Susan K. Marr, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka,
Assistant Attorney General, Sharlene A. Honnaka and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Susan K. Marr
9462 Winston Drive
Brentwood, TN 37027
(615) 661-8760
Analee J. Brodie
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 576-1337
Opinion Information
| Date: | Docket Number: |
| Thu, 12/15/2005 | S040703 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Analee J. Brodie, Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA |
| 2 | Robinson, James (Appellant) San Quentin State Prison Represented by Lynne S. Coffin Attorney at Law 244 Miller Avenue Mill Valley, CA |
| 3 | Robinson, James (Appellant) San Quentin State Prison Represented by California Appellate Project - Sf Michael Millman, Executive Director 101 Second Street, Suite 600 San Francisco, CA |
| 4 | Robinson, James (Appellant) San Quentin State Prison Represented by Susan Kerans Marr Attorney at Law 9462 Winston Drive Brentwood, TN |
| 5 | Robinson, James (Appellant) San Quentin State Prison Represented by Jeffrey S. Ross Pillsbury Winthrop Shaw Pittman, LLP 50 Fremont St. San Francisco, CA |
| Disposition | |
| Dec 15 2005 | Opinion: Affirmed |
| Dockets | |
| Jun 17 1994 | Judgment of death |
| Jun 29 1994 | Filed cert. copy of Judgement of Death Rendered 6-17-94. |
| Feb 19 1999 | Filed: Applt's Applic. for appointment of Counsel. |
| Feb 22 1999 | Order appointing State Public Defender filed Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant James Robinson, Jr. for the direct appeal in the above automatic appeal now pending in this court. |
| Apr 29 1999 | Received letter from: Los Angeles County Clerk, dated 4-14-99, Advising Record Was mailed to Appellate Counsel on 3-24-99. |
| Jun 23 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jun 24 1999 | Extension of Time application Granted To Applt To 8-26-99 To request Corr. of Record. |
| Aug 25 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Aug 26 1999 | Extension of Time application Granted To 10/25/99 To Applt To request Corr. of Record. |
| Nov 8 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Nov 17 1999 | Extension of Time application Granted To 12/27/99 To Applt To request Corr. of the Record. no further Extensions of time Are Contemplated. |
| Dec 28 1999 | Received copy of appellant's record correction motion Request for correction and completion of the record (20 pp.; filed in superior court) |
| Aug 28 2000 | Filed: Request for appointment as private counsel (by SPD Susan Marr) |
| Aug 29 2000 | Counsel's status report received (confidential) from State P.D. |
| Oct 10 2000 | Motion to withdraw as counsel filed Declaration and mtn to withdraw as counsel of record (SPD) |
| Oct 20 2000 | Filed: Amended declaration of service (for mtn. to withdraw as counsel of record) |
| Oct 27 2000 | Filed: Supplemental declaration of service in support of request for appointment as private counsel (by atty Susan Marr) |
| Nov 1 2000 | Order filed: Good cause appearing, the applic. of appointed counsel for permission to withdraw as atty of record for applt, filed 10-10-2000, is granted. The order appointing the State Public Defender as counsel of record for applt, filed 2-22-1999, is hereby vacated. Susan K. Marr is hereby appointed as atty of record to represent applt for the direct appeal in the above automatic appeal now pending in this court. The State Public Defender is directed to deliver to Susan K. Marr, within 30 days from the filing of this order, the entire case file relating to applt Robinson's appeal currently in the State Public Defender's possession, including, but not limited to, the reporter's and clerk's transcripts, all case files and documents obtained from applt's trial counsel, and all other case-related documents, including copies of all documents filed in this court. |
| Dec 7 2000 | Record on appeal filed C-17 (4,582 pps.) and R-20 (2,937 pps.) including material under seal; Clerk's Transcript includes 3,739 pages of Juror Questionnaires. |
| Dec 7 2000 | Appellant's opening brief letter sent, due: 1/16/2000 |
| Dec 12 2000 | Filed: Second supplemental clerk's transcript (volume 1 of 1; 29 pages) |
| Jan 12 2001 | Application for Extension of Time filed To file AOB. (1st request) |
| Jan 18 2001 | Extension of Time application Granted To 3/19/2001 to file AOB. |
| Mar 23 2001 | Application for Extension of Time filed To file AOB. (2nd request) |
| Mar 27 2001 | Extension of Time application Granted To 5/18/2001 to file AOB. |
| May 25 2001 | Application for Extension of Time filed To file AOB. (3rd request) |
| May 25 2001 | Counsel's status report received (confidential) from atty Marr. |
| May 29 2001 | Extension of Time application Granted to 7/17/2001 to file AOB. |
| Jul 13 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Jul 13 2001 | Counsel's status report received (confidential) from atty Marr. |
| Jul 17 2001 | Extension of Time application Granted To 9/17/2001 to file AOB. |
| Sep 12 2001 | Counsel's status report received (confidential) from atty Marr. |
| Sep 12 2001 | Application for Extension of Time filed To file AOB. (5th request) |
| Sep 18 2001 | Extension of Time application Granted To 11/16/2001 to file AOB in light of counsel Susan Marr's representation that she anticipates filing the AOB by early January 2002. |
| Nov 16 2001 | Request for extension of time filed To file AOB. (6th request) |
| Nov 16 2001 | Counsel's status report received (confidential) from atty Marr. |
| Nov 20 2001 | Extension of time granted To 1/15/2002 to file AOB. Counsel anticipates filing the brief by "early January 2002". No further extensions of time are contemplated. |
| Jan 15 2002 | Request for extension of time filed To file AOB. (7th request) |
| Jan 15 2002 | Counsel's status report received (confidential) from atty Marr. |
| Jan 18 2002 | Extension of time granted based upon counsel Susan K. Marr's representation that she anticipates filing the AOB by 3-15-2002, the request for an ext. of time is granted to that date. After that date, no further extension is contemplated. |
| Mar 19 2002 | Counsel's status report received (confidential) from atty Marr. |
| Mar 19 2002 | Request for extension of time filed To file AOB. (8th request) |
| Mar 21 2002 | Extension of time granted To 4/18/2002 to file AOB. Counsel anticipates filing the brief by that date. No further extension of time is contemplated. |
| Apr 19 2002 | Request for extension of time filed To file AOB. (9th request) |
| Apr 23 2002 | Extension of time granted To 5/17/2002 to file AOB. Counsel anticipates filing the brief by 5/17/2002. No further extension will be granted. |
| May 16 2002 | Request for extension of time filed To file AOB. (10th request) |
| May 20 2002 | Extension of time granted To 5/31/2002 to file AOB. Counsel anticipates filing that brief by 5/31/2002. No further extension will be granted. |
| Jun 7 2002 | Counsel's status report received (confidential) from atty Marr. |
| Jun 12 2002 | Compensation awarded counsel Atty Marr |
| Jun 25 2002 | Received: proof of service for status report. |
| Aug 21 2002 | Letter sent to: atty Marr regarding default for failure to file AOB. Counsel to respond by return mail indicating that she will submit brief, together with an application for relief from default, on or before 8-30-2002. |
| Sep 3 2002 | Received letter from: attorney Susan Marr, dated 8-23-2002, in response to court's letter of 8-21-2002. |
| Sep 13 2002 | Application for relief from default filed To file appellant's opening brief. |
| Sep 13 2002 | Application to file over-length brief filed (405 pp. appellant's opening brief submitted under separate cover) |
| Sep 16 2002 | Order filed Appellant's request for relief from default to file appellant's opening brief and application to file oversized brief are granted. |
| Sep 16 2002 | Appellant's opening brief filed (405 pp.) |
| Oct 10 2002 | Request for extension of time filed to file respondent's breif. (1st request) |
| Oct 17 2002 | Extension of time granted To 12/16/2002 to file respondent's brief. |
| Dec 18 2002 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Dec 23 2002 | Extension of time granted To 2/13/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Analee J. Nations's representation that she anticipates filing that brief by 2/13/2003. After that date, no further extension is contemplated. |
| Jan 24 2003 | Compensation awarded counsel Atty Marr |
| Feb 5 2003 | Respondent's brief filed (124 pp.) |
| Feb 25 2003 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Feb 27 2003 | Extension of time granted to 4/25/2003 to file appellant's reply brief. |
| Apr 28 2003 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Apr 30 2003 | Extension of time granted to 6/24/2003 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 60 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. |
| Jul 1 2003 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Jul 3 2003 | Extension of time granted to 7/1/2003 to file appellant's opening brief. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 7/1/2003. After that date no further extension is contemplated. |
| Jul 11 2003 | Application for relief from default filed to file appellant's reply brief. |
| Jul 11 2003 | Application to file over-length brief filed to file appellant's reply brief. (245 pp. brief submitted under separate cover) |
| Jul 16 2003 | Order filed granting appellant's application for relief from default to file reply brief and application to file oversize brief. |
| Jul 16 2003 | Appellant's reply brief filed (245 pp.) |
| Aug 5 2003 | Compensation awarded counsel Atty Marr |
| Oct 25 2004 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Jeffrey S. Ross is hereby appointed to represent appellant James Robinson, Jr., for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. |
| Mar 23 2005 | Counsel's status report received (confidential) from atty Ross. |
| Mar 23 2005 | Counsel's status report received (confidential) from atty Ross. |
| Apr 4 2005 | Compensation awarded counsel Atty Ross |
| Aug 10 2005 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the October calendar, to be held the week of Oct. 3, 2005, in Los Angeles. 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. |
| Aug 16 2005 | Letter sent to: counsel advising that October calendar will be held at a special oral argument session in Redding, at the City Hall Council Chambers, rather than in Los Angeles. |
| Aug 31 2005 | Case ordered on calendar 10/5/05, 9am, in Redding, City Hall |
| Sep 9 2005 | Received: focus letter from A.G. Analee J. Brodie. |
| Sep 14 2005 | Counsel's status report received (confidential) from atty Ross. |
| Sep 14 2005 | Filed letter from: attorney Susan K. Marr, dated 9/12/2005, re focus issues for oral argument. |
| Sep 27 2005 | Received: appellant's list of additional authorities for oral argument. |
| Oct 5 2005 | Cause argued and submitted |
| Oct 12 2005 | Compensation awarded counsel Atty Marr |
| Nov 2 2005 | Counsel's status report received (confidential) from atty Ross. |
| Dec 15 2005 | Opinion filed: Judgment affirmed in full Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan (CA 1/3 assigned) JJ. Concurring Opinion by Moreno, J. -- joined by Kennard J. |
| Dec 30 2005 | Rehearing petition filed by appellant. (4,810 words; 14 pp.) |
| Jan 5 2006 | Time extended to consider modification or rehearing to 3-3-2006, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jan 31 2006 | Counsel's status report received (confidential) from atty Ross. |
| Feb 22 2006 | Rehearing denied Petition for rehearnig DENIED. |
| Feb 22 2006 | Remittitur issued (AA) |
| Feb 23 2006 | Related habeas corpus petition filed (post-judgment) No. S141320 |
| Mar 2 2006 | Filed: acknowledgment of receipt of remittitur. |
| May 4 2006 | Counsel's status report received (confidential) from atty Ross. |
| Jun 14 2006 | Received: letter from U.S.S.C., dated 06/06/2006, advising that the petition for writ of certiorari was filed on 05/23/2006, and placed on the docket 06/06/2006 as No. 05-11356. |
| Jul 7 2006 | Counsel's status report received (confidential) from atty Ross. |
| Sep 26 2006 | Counsel's status report received (confidential) from attorney Jeffrey S Ross. |
| Oct 16 2006 | Received: letter from U.S.S.C., dated October 10, 2006; cert petn was denied. |
| Nov 16 2006 | Counsel's status report received (confidential) from atty Ross. |
| Jul 17 2007 | Filed: declaration from atty Ross (confidential) |
| Jul 17 2007 | Filed: declaration from atty Ross. (confidential) |
| Jul 18 2007 | Compensation awarded counsel Atty Ross |
| Oct 22 2007 | Counsel's status report received (confidential) from atty Ross. |
| Oct 23 2007 | Related habeas corpus petition filed (post-judgment) Amended (No. S141320) |
| Dec 18 2007 | Filed: confidential declaration of attorney Jeffrey S. Ross. |
| Dec 19 2007 | Compensation awarded counsel Atty Ross |
| May 14 2009 | Compensation awarded counsel Atty Ross |
| Sep 8 2009 | Motion to withdraw as counsel filed motion of Jeffrey S. Ross to withdraw as habeas corpus counsel. |
| Sep 17 2009 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for condemned inmate James Robinson, Jr., filed September 8, 2009, is granted. The order appointing Jeffrey S. Ross as habeas corpus/executive clemency counsel of record for condemned inmate James Robinson, Jr., filed October 25, 2004, is hereby vacated. Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for condemned inmate James Robinson, Jr. |
| Briefs | |
| Sep 16 2002 | Appellant's opening brief filed |
| Feb 5 2003 | Respondent's brief filed |
| Jul 16 2003 | Appellant's reply brief filed |
