PEOPLE v. BRYANT

Appellant, Donald Franklin Smith, Opening Brief

Cal.December 15, 2004

• TABLE OF CONTENTS • APPELLANT DONALD SMITH'S OPENING BRIEF 1 STATEMENT OF APPEALABILITY 1 INTRODUCTORY STATEMENT 1 • STATEMENT OF THE CASE 4 A. Guilt Phase 4 • B. Penalty Phase 7 C. Events Occurring After the Sentencing 8 • STATEMENT OF THE FACTS 9 GUILT PHASE 9 A. Crime Scene Evidence and Witnesses to the Murders of • Andre Armstrong, James Brown, Loretha Anderson, and Chemise English, and the Attempted Murder of Carlos English 9 B. Cause of Death 14 • C. The Motive - The Murder of Ken Gentry and the Shooting of Reynard Goldman 15 1. The Gentry Murder 16 • 2. The Assault on Goldman 18 D. The Bryant Family Organization 18 • E. Raids on Drug Houses 19 1. Pre-Homicide Searches 19 • a. De Haven A venue and Judd Street 20 • • b. 11442 Wheeler Avenue 20 • . c. 13031 Louvre Street 21 d. 13037 Lourve Street 22 e. Search of Stan and Jeff Bryant's Residences 22 • 2. Post-Homicide Searches 22 a. Adelphai Street and Fenton Street 22 • b. Carl Street 24 F. Andre Armstrong Post-Prison, Pre-Homicide Activities with Brown 24 • G. The Testimony of James Williams 28 H. The Shooting of Keith Curry and the Bombing of Curry's Car 33 • 1. The Arrest of Appellant in 1987 34 J. The Testimony of Settle 35 K. Miscellaneous Evidence 36 • PENAL TY PHASE 39 A. Prosecution's Case 39 • B. Defense Case 41 • • ii • • ARGUMENTS 43 • GUILT PHASE ARGUMENTS 43 I APPELLANT'S CONVICTION MUST BE REVERSED BECAUSE OF SEVERAL RELATED ERRORS ARISING FROM THE INTRODUCTION OF ACCOMPLICE TESTI-• MONY. THESE ERRORS, INDIVIDUALLY AND COLLECT- IVEL Y, HAD THE EFFECT OF DENYING APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW, AS GUAR- ANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH • THEY ALSO DEPRIVED APPELLANT OF HIS RIGHT TO A RELIABLE DETERMINATION OF THE FACTS IN A CAPITAL CASE AS GUARANTEED BY THE EIGHTH AMENDMENT 43 • A. THE CONVICTION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CORRO- BORATE ACCOMPLICE TESTIMONY 45 1. Introduction 45 • 2. Sufficiency of the Evidence Standard 45 3. The Motion Pursuant to Section 1118 46 • 4. Legal Principles Governing Accomplice Testimony 48 5. The Determination of Accomplice Status 52 6. Why Williams Must be Regarded as an Accomplice 54 • 7. The Reason the Accomplice Rule Applies to Williams 61 8. The Type of Corroboration Required 63 • a. General Principles Relating to Corroboration 63 b. Examples of Insufficient Corroboration 64 • c. Examples of Sufficient Corroboration 65 9. The Acts Relied on Herein are Insufficient for Corroborative • iii • Purposes 67 10. The Trial Court's Errors in Finding Williams was not an • Accomplice 69 B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT WILLIAMS AND TANNIS CURRY WERE • ACCOMPLICES AS A MATTER OF LAW 72 1. The Relevant Law 72 2. Prejudice 75 • C. THE TRIAL COURT ERRED IN REFUSING TO REOPEN JURy DELIBERATIONS, PURSUANT TO SECTION 1161, WHEN THE mRY HAD QUESTIONS ABOUT ACCOMP- LICE STATUS AND REASONABLE DOUBT, AFTER THE • JURy RETURNED A VERDICT AGAINST APPELLANT, BUT WHILE THE mRY WAS DELIBERATING THE CASE AS TO SETTLE 81 1. The Jury Questions and Hearing Below 81 • 2. The Relevant Law and Its Application to the Case 83 D. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY • THAT AN AIDER AND ABETTOR MA Y BE A PRINCIPAL IN THE OFFENSE IF THAT PERSON IS "EQUALLY GUILTY." 88 1. The Instructions Given and the Problem Created 88 • 2. The Relevant Law 89 E. THE COURT ERRED IN TELLING THE JURY THAT IT COULD CONVICT APPELLANT IF THERE WAS SLIGHT EVIDENCE TO CORROBORATE ACCOMPLICE TESTIMONY 92 • F. THE TRIAL COURT ERRED IN FAILING TO EXCLUDE TANNIS CURRY FROM THE INSTRUCTION GIVEN TO THE JURY CONTAINED IN CALJIC NO. 2.11.5 95 • 1. The Factual Basis for Including Tannis from CALJIC No. 2.11.5 95 iv • • 2. Prejudice 98 • 3. Summary 99 II THE DENIAL OF A DEFENSE MOTION TO SEVER • APPELLANT'S CASE FROM THAT OF JON SETTLE DENIED APPELLANT THE RIGHT TO A FAIR TRIAL, DUE PROCESS OF LAW, THE RIGHT TO COUNSEL, AND THE RIGHT TO A RELIABLE DETERMINATION OF A • CAPITAL CASE, AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS 100 A. Introductory Statement 100 • B. The Severance Motions and Hearings, Below 101 C. The Relevant Law 104 1. General Principles of Law Relating to Severance Motions 104 ;» 2. Particular Problems Relating to Joint Trials with a Pro Per Defendant 105 3. Prior Cases Discussing Pro Per Co-Defendants 108 • D. Specific Acts of Misconduct by Settle 109 1. Settle Commits PeIjury 110 • 2. Settle Engages in De Luna Error 113 3. Settle Argues Facts Not in Evidence 117 4. Settle's Shenanigans with Distad 119 • 5. Failure of the Trial Court to Take Specific Corrective Measures 120 E. Prejudice 122 • F. Summary 124 • v • III THE TRlAL COURT ERRED IN DENYING A DEFENSE MOTION TO SEVER APPELLANT'S CASE FROM THAT OF THE OTHER APPEALING DEFENDANTS. THIS ERROR • DENIED APPELLANT OF THE RlGHT TO A FAIR TRlAL, DUE PROCESS OF LA W, AND THE RlGHT TO A RELIABLE DETERMINA TION OF A CAPITAL CASE, AS GUARANTEED BY THE FIFTH, SIXTII, EIGHTH, AND FOURTEENTH • AMENDMENTS 126 A. The Motions and Hearings, Below 126 B. The Relevant Law 127 • C. Application of the Law 130 1. Admission of Evidence Not Otherwise Admissible Against Appellant 131 • (a) Evidence of the Curry Shooting 131 (b) Other Evidence not Admissible Against Appellant 133 • 2. Guilt by association 134 3. Misconduct of Others Defendants at Trial 135 4. Error in Instructions 139 • 5. Use of Restraints on Appellant During Trial 140 6. Appellant was Deprived of Right to be Tried Solely on the • Evidence Presented in the State's Case in Chief 141 7. Errors Arising in the Penalty Phase 142 8. Prejudice 143 • D. Summary 150 • VI • r HUt! t t Iii 11 , •• , 1 lVIP r .. '[ fJl .. • IV THE EVIDENCE OF THE ASSAULTS ON CURRY AND OTHER CRIMINAL ACTS OF APPELLANT AND OTHER • PERSONS WERE IMPROPERLY ADMITTED UNDER EVIDENCE CODE SECTIONS 210, 300,352 AND 1101. THE IMPROPER ADMISSION OF THIS EVIDENCE DEPRIVED APPELLANT OF THE RIGHT TO A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO , CONSTITUTION. IT ALSO VIOLATED APPELLANT'S RIGHT TO A RELIABLE DETERMINATION IN A CAPITAL CASE, GUARANTEED BY THE EIGHT AMENDMENT. 151 , A .. The Motions, Hearings, and Rulings, Below 151 1. The Hearings Relating to the Assaults on Curry 152 2. The Hearings Relating to Evidence of the High-Speed Chase • and the Cocaine in Appellant's Possession at the Time of his Arrest 155 3. Evidence of Criminal Acts of People Other Than Appellant 156 '. B. The Relevant Law 157 1. Evidence Code sections 210, 350, 352, and 1101 157 2. Due Process Prohibits the Introduction of this Evidence 160 • C. Application of Law to Facts 162 1. Failure in the Foundation for the Evidence of the Shooting and Bombing of Curry 163 • 2. The Failure to Meet Standards of Admissibility for the Evidence of the Shooting and Bombing of Curry 165 3. Evidence of the Cocaine in Appellant's Possession at the Time • of his Arrest and Evidence of the High-Speed Chase 168 a. Evidence Relating to the Cocaine 168 • b. Evidence Relating to the Chase 170 D. PrejUdice. 171 • VII • V THE TRIAL COURT ERRED IN FAILING TO PROPERL Y INSTRUCT THE JURy REGARDING THE PROPER USE OF • EVIDENCE RELATING TO OTHER BAD ACTS. TillS ERROR EVIDENCE DEPRIVED APPELLANT OF THE RIGHT TO A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENT, THE SIXTH AMENDMENT RIGHT TO • COUNSEL, AND THE EIGHT AMENDMENT RIGHT TO A RELIABLE DETERMINATION IN A CAPITAL CASE 175 A. Introduction 175 B. The Relevant Law 176 • C. Instructions Requested and Given 179 D. The Error in the Instructions Relating to the Incidents Involving • Curry 180 E. The Error in the Instructions Relating to the Gentry Shooting, the Goldman Shooting, to the Cocaine Found at the Arrest of Appellant and the Pursuit of Appellant 182 • F. The Failure to Limit the Jury's Consideration to the Defendant Who Committed the Specific Bad Acts 183 G. The Failure to Give Limiting Instructions, Sua Sponte, to • Other Evidence of Bad Acts 186 H. The Improper Use of Character Evidence in the Penalty Phase 188 I. Prejudice 189 • VI THE TRIAl., COURT ERRED IN ADMITTING NUMEROUS HEARSA Y STATEMENTS WIllCH DID NOT QUALIFY UNDER ANY TO THE HEARSA Y RULE. THE ADMISSION • OF TillS EVIDENCE DEPRIVED APPELLANT OF THE RIGHT TO CROSS-EXAMINE WITNESSES AND THE RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS. TillS ALSO DEPRIVED APPELLANT OF HIS RIGHT TO A • RELIABLE DETERMINATION OF THE FACTS IN A CAPITAL CASE AS GUARANTEED BY THE EIGHTH AMENDMENT 191 viii • • A. General Principles of Relevant Law 191 • B. The Statements of Armstrong to Detective Harley, Francine Smith, and Mona Scott, and the Motions Regarding Those Statements 194 • C. The Relevant Law Regarding Armstrong's Statement 196 1. Statements of Existing State of Mind 197 • 2. Declarations Against Interest 199 D. Application of the Law to Armstrong's Statement 200 1. Armstrong's Statement Consists of Multiple Levels of Hearsay 201 • 2. Statements of Existing State of Mind 201 3. Declarations Against Interest 203 • E. Statement of Gentry to Benny Ward 203 F. Statement of Winfred Fisher 205 G. Statement of Gentry to Newsome. 206 It H. Western Union Records 207 1. Written materials relating to drug transactions 208 • J. The Statement Of Armstrong's Address 212 K. The Taped Statement of Williams 213 L. The Statement of Johnson 214 • M. Prejudice 217 ix • VII THE PROSECUTION COMMITTED VARIOUS ACTS OF MISCONDUCT, VIOLATING APPELLANT'S RIGHTS • UNDER THE FIFTH, SIXTH, EIGHT AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION 221 A. General Principles Relating to Prosecutorial Misconduct 221 B. Presenting Arguments that Constitute Improper Appeals to • Emotion 222 C. Presenting Arguments Which the Prosecution Knew Had No Factual Basis 225 • D. The Use of Improper Legal Arguments 231 E. Prejudice 232 • VIII THE TRIAL COURT ABUSED ITS DISCRETION UNDER EVIDENCE CODE SECTION 352, DEPRIVING APPELLANT OF DUE PROCESS OF LA W, A FAIR TRIAL, AND A RELIABLE PENALTY DETERMINATION IN • VIOLATION OF THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS, BY ADMITTING INFLAMMATORY, GRUESOME, AND CUMULATIVE PHOTOGRAPHS OF THE VICTIMS' BODIES 236 • A. The Hearings, Motions, and Evidence Admitted Below 236 B. The Relevant Law 239 C. Application of the Law to the Facts of this Case 243 • D. Prejudice 245 E. Summary 246 • IX THE USE OF THE STUN BELT AND OTHER SECURITY MEASlJRES EMPLOYED BY THE TRIAL COURT, WITHOUT THE REQUIRED SHOWINGS OF NECESSITY INFRINGED ON APPELLANT'S CONSTITUTIONAL RIGHTS • UNDER THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS 247 x • • A. The Security Measures Taken at Trial 247 • B. The Relevant Law 250 C. Application of the Law to the Instant Case 254 • D. The Error Requires a Reversal 258 E. Summary 262 • X THE PRESENCE OF A HEARING IMP AIRED JUROR DENIED APPELLANT THE RIGHTS TO A JURY TRIAL, TO TRIAL COUNSEL, TO A FAIR TRIAL, AND TO A RELIABLE DETERMINATION IN A CAPITAL CASE, IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION 263 A. The Hearings Below 263 B. The Relevant Law 265 • C. Application of the Law to the Case 269 D. Prejudice 272 XI THE TRIAL COURT ERRED IN TELLING THE JURY THAT THE COST OF THE TRIAL WAS "ASTRONOMICAL." THIS ERROR DENIED APPELLANT THE RIGHTS TO A JURY TRIAL AND TO A RELIABLE DETERMINATION IN A CAPITAL CASE, IN VIOLAI10N OF TIIE FIFTH • AND EIGHT AMENDMENTS TO THE CONSTITUTION 273 A. The Trial Court's References To The Cost Of Trial 273 B. The Relevant Law 274 • C. Prejudice 276 XII THE TRIAL COURT INSTRUCTIONS IMPROPERL Y • ALLOWED THE JURY TO FIND GUlL T BASED UPON MOTIVE ALONE 278 • xi • XIII THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST TO LIMIT 1HE EVIDENCE THAT THE JURY • COULD CONSIDER AGAINST HIM TO EVIDENCE PRESENTED IN THE PEOPLE'S CASE IN CHIEF, PRIOR TO THE PEOPLE RESTING 282 A. The Motion Below 282 • B. The Relevant Law 283 C. Prejudice 286 • D. Conclusion 288 XIV 1HE CUMULATIVE EFFECT OF THE ERRORS WAS PREJUDICIAL AND REQUIRES A REVERSAL OF 1HE JUDGMENT OF CONVICTION 289 • PENALTY PHASE ARGUMENTS 294 XV THE TRIAL COURT COMMITTED REVERSIBLE ERROR • UNDER WITHERSPOON V. STATE OF ILLINOIS. (1968) 391 U.S. 510 AND WAINWRIGHT V. WITT (1985) 469 U.S. 412, VIOLATING APPELLANTS RIGHTS TO A FAIR TRIAL, IMPARTIAL JURY, RELIABLE PENALTY DETERMINATION AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND • FOURTEENTH AMENDMENTS, BY EXCUSING TWO PROSPECTIVE JURORS FOR CAUSE DESPITE THEIR WILLINGNESS TO F AIRL Y CONSIDER IMPOSING 1HE DEATH PENALTY 294 • A. The Relevant Law 294 B. Application of the Law to the Facts of the Case 297 C. Prejudice • 301 • xii • , n; flii!t'M' 'l!1 ttJ 1 i"i t .,pi li " ., 'Uhjf' r If 1 n oM J if I "III If tr 3i •• , '711.1 . r it • XVI THE TRIAL COURT IMPROPERLY COERCED A DEATH VERDICT AFTER THE JURy HAD TWICE DECLARED • ITSELF DEADLOCKED AND THEN ERRONEOUSLY SUBSTITUTED AN ALTERNATE WHEN THE JURy COULD NOT POSSIBL Y BEGIN ITS PENALTY DELIBERATIONS ANEW, THEREBY VIOLATING APPELLANT'S RIGHTS TO • A JURY TRIAL, DUE PROCESS OF LA W, AND A RELIABLE SENTENCING DETERMINATION UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION 302 • A. The Hearings Below 302 B. The Relevant Law Regarding Coerced Verdicts 309 C. The Improper Substitution of an Alternate Juror 13 Days into Deliberations Contributed to the Coercive Verdict in Violation of Due Process and the Right to a Jury Trial. 321 1. The Law Regarding Substitution of Jurors During Deliberations 322 2. Instructing the Jury to Begin Deliberations Anew was not a Viable Option Under the Facts of this Case. 324 , D. Prejudice 328 XVII lHE TRIAL COURT ERRED IN ROLING ON THE AUTOMATIC MOTION UNDER SECTION 190.4 TO MODIFY THE SENTENCE 332 • XVIII THE PROSECUTOR IMPROPERLY DISPARAGED THE MITIGATING EVIDENCE IN VIOLATION OF THE EIGHTI-I AND FOURTEENTH AMENDMENTS 337 • • • xiii • XIX THE TRIAL COURT ERRED IN REFUSING APPELLANrS REQUEST FOR AN INSTRUCTION ON LINGERING DOUBT. • THIS ERROR DEPRIVED APPELLANT OF THE RIGHTS TO DUE PROCESS OF LAW AND A RELIABLE JURy DETERMINATION OF THE CASE, IN VIOLATION OF FIFTH, SIXTH, EIGHT, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION 342 • A. The Requested Instruction 342 B. The Relevant Law 343 • C. Application of the Law to the Case and Prejudice 346 D. Summary 348 XX THE TRIAL COURT'S ERROR IN PERMITTING THE • INTRODUCTON OF NON-STATUTORY AGGRAVATION AT APPELLANT'S PENALTY PHASE DEPRIVED APPELLANT OF RIGHTS UNDER FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND CORRESPONDING • SECTIONS OF THE CALIFORNIA CONSTITUTION 349 A. The Possession of the Shanks is Not a Crime Involving the Use or Attempted Use of Force or Violence or the Express or Implied • Threat to Use Force or Violence 349 B. The Instructions Erroneously Directed the Jury that Appellant's Acts Were Crimes Involving the Express or Implied Use of Force or Violence or the threat of Force or Violence 352 • 1. The Instruction Created a Mandatory Presumption 354 2. The Instruction Improperly Escalated the Seriousness of the Incident by Defining the Incident as an Actual, Express Threat • or Implied Use of Force or Violence 355 C. The Errors Require Reversal ofthe Death Judgment 356 • xiv • • • • • • " • , XXI INSTRUCTING THE JURY PlJRSUANT TO CALJIC NO. 8.85 VIOLATED APPELLANT'S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS 358 A. The Trial Court's Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Administration of Capital Punishment 358 B. The Trial Court's Failure to Delete Inapplicable Statutory Mitigating Factors Precluded a Fair and Reliable Capital- Sentencing Determination 360 1. The Trial Court Should Have Deleted the Factors Enumerated in Penal Code Section 190.3, Subdivisions (d) through U) from CALJIC No. 8.85 Before Instructing the Jury. In the Alternative, the Trial Court Erred in Refusing a Requested Instruction that the Absence of Those Factors was not Aggravation 360 2. Use of the Phrase "if Applicable" in CALJIC No. 8.85 Does Not Cure the Constitutional Defect 364 C. The Trial Court's Failure to Instruct the Jury That it Could Not Consider Aggravating Factors Not Enumerated in the Statute Further Violated Appellant's Right to a Fair and Reliable Capital-Sentencing Determination 365 D. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as a Barrier to Consideration of Mitigation by Appellant's Jury E. Conclusion XXII INSTRUCTING THE JURY IN ACCORDANCE WITH CALJIC NO. 8.88 VIOLATED APPELLANT'S FIFTH, SIXTH, EIGHTH, 367 369 AND FOURTEENTH AMENDMENT RIGHTS 370 xv • A. In Failing to Infonn the Jurors That if They Detennined That • Mitigation Outweighed Aggravation, They Were Required to Impose a Sentence of Life Without Possibility of Parole, CALllC No. 8.88 Improperly Reduced the Prosecution's Burden of Proof Below the Level Required by Penal Code Section 190.3 and Reversal Is Required 371 • B. In Failing to Infonn the Jurors that They Had Discretion to Impose Life Without Possibility of Parole Even in the Absence of Mitigat- ing Evidence, CALllC No. 8.88 Improperly Reduced the Prosecu- tion's Burden of Proof Below the Level Required by Penal Code • Section 190.3 and Reversal Is Required 375 C. The "So Substantial" Standard for Comparing Mitigating and Aggravating Circumstances Is Unconstitutionally Vague and Improperly Reduced the Prosecution's Burden of Proof Below • the Level Required by Penal Code Section 190.3 376 D. By Failing to Convey to the Jury that the Central Decision at the Penalty Phase Is the Detennination of the Appropriate Punishment, CALJlC No. 8.88 Improperly Reduced the Prosecution's Burden • and Reversal Is Required 378 E. The Instruction Is Unconstitutional Because it Fails to Set Out the Appropriate Burden of Proof 379 • 1. The California Death Penalty Statute and Instructions Are Constitutionally Flawed Because They Fail to Assign to the State the Burden of Proving Beyond a Reasonable Doubt the Existence of an Aggravating Factor or of Proving Beyond • a Reasonable Doubt That the Aggravating Factors Outweigh the Mitigating Factors 379 a. In the Wake of Apprendi, Ring, and Blakely, Any Jury Finding Necessary to the Imposition of Death Must Be • Found True Beyond a Reasonable Doubt. 382 b. The Requirements of Jury Agreement and Unanimity 392 • XVI • • • • • • • • • • • 2. The Fifth, Eighth and Fourteenth Amendments Require that the State Bear Some Burden of Persuasion at the Penalty Phase 398 3. The Trial Court's Failure to Instruct on the Standard of Proof and Lack of need for Unanimity as to Mitigating Circumstances Resulted in an Unfair, Unreliable and Constitutional1y Inadequate Sentencing Detennination 401 4. Even If Is Constitutionally Acceptable to Have No Burden of Proof, the Trial Court Erred in Failing to So Instruct the Jury 403 5. The Absence of a Burden of Proof Is Structural Error Requiring That the Penalty Phase Verdict Be Reversed 403 F. The Instruction Violated the Sixth, Eighth, and Fourteenth Amend- ments to the United States Constitution By Failing to Require that the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors 405 G. The Failure to Instruct the Jury on the Presumption of Life Violated the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution 408 H. Conclusion 409 XXII THE PENALTY PHASE INSTRUCTIONS WERE DEFECTIVE AND DEATH-ORIENTED IN THAT THEY FAILED TO PROP- ERL Y DESCRIBE OR DEFINE THE PENALTY OF LIFE WITH- OUT POSSIBILITY OF PAROLE 410 XXIII CALIFORNIA'S CAPITAL-SENTENCING STATUTE IS UNCONSTITUTIONAL 417 A. Appel1ant's Death Penalty is Invalid Because Penal Code Section 190.2 is Impennissibly Broad. 418 B. Appellant's Death Penalty Is Invalid Because Penal Code section 190.3(A) as AppJied Allows Arbitrary and Capricious Imposition of Death In Violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments To The United States Constitution 422 xvii C. California's Use of the Death Penalty As a Regular Form of Punishment Constitutes Cruel and Unusual Punishment in Violation of the Eighth and Fourteenth Amendments D. Failing to Provide Intercase Proportionality Review Violates 428 Appellant's Eighth and Fourteenth Amendment Rights 430 E. The Absence of Intercase Proportionality Review Violates Appellant's Right to Equal Protection of the Law XXIV BECAUSE THE DEATH PENALTY VIOLATES'INTERNA- TIONAL LAW, BINDING ON THIS COURT, THE DEATH SENTENCE MUST BE VACATED :xxv THE CUMULATIVE EFFECT OF THE ERRORS WAS PREJUDICIAL AND REQUIRES A REVERSAL OF THE mDGMENT OF CONVICTION XXVI APPELLANT SMITH JOINS IN ALL ISSUES RAISED BY CO-APPELLANTS WHEELER AND BRYANT WHICH MAY ACCRUE TO APPELLANT SMITH'S BENEFIT CONCLUSION CERTIFICATE OF WORD COUNT 433 440 343 443 451 451 APPENDIX A - CHARGED CRIMES AGAINST SEVERED DEFENDANTS xviii • • • • • • • • • • • ~ Ii. I III ,i I~ - ty De it IMl t' ., we- 1 K cn. IF • TABLE OF AUTHORITIES • FEDERAL CASES Adams v. Texas (1980) 448 U.S. 38 295 Allen v. United States (1896) 164 U.S. 492 274 • Apodaca v. Oregon (1972) 406 U.S. 404 395 Apprendi v. New Jersey (2000) 530 U.S. 466 381,382,385,390,391 • Arizona v. Fulminante (1991) 499 U.S. 279 Atkins v. Virginia (2002) 536 U.S. 304 430,436,438,440 • Ballardv. Estelle (9th Cir. 1991) 937 F.2d 453 51 Beazley v. Johnson (5th Cir. 2001) 242 F.3d 248 441 Beckv. Alabama (1980) 447 U.S. 625 281,357 Berger v. United States (1935) 295 U.S. 78 106 Blakely v. Washington (2004) 124 S.Ct. 2531 381,382,387-390,439, , Blystone v. Pennsylvania (1990) 494 U.S. 299 368 Boyde v. California (1990) 494 U.S. 370 86,189,372,401 Brasfield v. United States (1926) 272 U.S. 448 318,319 • Bridges v. Wixon (1945) 362 U.S. 135 129 Brinegar v. United States (1949) 338 U.S. 160 161 • Brooks v. Kemp 762 F.2d 1383 276 Brown v. Louisiana (1980) 447 U.S. 323 395 • Bruno v. Rushen (9th Cir. 1983) 791 F.2d 1193 116 Bruton v. United States (1968) 391 U.S. 123 128, 139 • xix Bullington v. Missouri (1981) 451 U.S. 430 Burton v. United States (1905) 196 U.S. 307 Bush v. Gore (2000) 531 U.S. 98, 121 S.Ct. 525 Caldwell v. Mississippi (1980) 472 U.S. 320 California v. Brown (1987) 479 U.S. 538 California v. Green (1970) 399 U.S. 149 California v. Ramos (1983) 463 U.S. 992 Carella v. California (1989) 492 U.S. 263 Carter v. Kentucky (1981) 450 U.S. 288 Caspari v. Bohlen (1994) 510 U.S. 383 Chambers v. Mississippi (1973) 410 U.S. 284 Chapman v. California (1967) 386 U.S. 18 400 318 438 404,405,411,414,416 335,405 145 404 355 346 400 192,270 91, 11, 123, 144, 174, 189,218,245,260,272, 276,287,289,328,341, 357,375,405,416,450 Charfauros v. Board of Elections (9th Cir. 2001) 249 F.3d 941 438 Coker v. Georgia (1977) 433 U.S. 584 Coleman v. Calderon (1998) 50 F.3d 1105 Commonwealth of the Northern Mariana Islands v. Bowie (9th Cir. 2001) 243 F.3d 1083 Cool v. United States (1972) 409 U.S. 100 Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424 Cooper v. Sowders (6th Cir. 1988) 837 F.2d 284 xx 436 51 50 375 390 233 • • • • • • • • • • • • • • • • • • • • • • Copeland v. Washington (8th Cir. 2000) 969 F.3d 570 223 Crane v. Kentucky.(1986) 476 U.S. 683 260 Crawford v. Washington (2004) _ U.S. [124 S.Ct. 1354 192, 193, 196, 197 202,206,218 Darden v. Wainwright (1986) 477 U.S. 168 52,94,97,229,414 Davis v. Alaska (1974) 415 U.S. 308 193 Davis v. Georgia (1976) 429 U.S. 122 301 De Luna v. United States (5th Cir., 1962) 308 F.2d 140 115, 116 Delaware v. Van Arsdell (1986) 475 U.S. 673 218 Delli Paoli v. United States (1957) 352 U.S. 232 130 Delo v. Lashley (1993) 507 U.S. 272 408 Den ex demo Murray V. Hoboken Land and Improvement Co. (1855) 59 U.S. (18 How.) 272 393 Dix v. County of Shasta (9th Cir. 1992) 963 F.2d 1296 345 Donnellyv. DeChristoforo (1974) 416 U.S. 637 Drayden V. White (9th Cir. 2000) 232 F .3d 704 Duncan V. Louisiana (1968) 391 U.S. 145 Dyas v. Poole (9th Cir. 2002) 309 F.3d 586 Eddings V. Oklahoma (1982) 455 U.S. 104 Edelbacher v. Calderon (9th Cir. 1998) 160 F.3d 582 Edye v. Robertson (1884) 112 U.S. 580 Enmund v. Florida (1982) 458 U.S. 782 xxi 54,94,97,221,289 222 294,309 253,254,258,261 336,360,398 444 440 436 - " . • Estelle v. McGuire (1991) 502 U.S. 62 73, 160, 189, 190 Estelle v. Williams (1976) 425 U.S. 501 259,408 • Evitts v. Lucey (1985) 469 U.S. 387 374 Faretta v. California (1975) 422 U.S. 806 105,106,260 • Ferrier v. Duckworth (7th Cir. 1990) 902 F.2d 545 242 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 354 Ford v. Wainwright (1986) 477 U.S. 399 404,436,,437,444 • Francis v. Franklin (1985) 471 U.S.313 354 Franklin v. Lynaugh (1988) 487 U.S. 164 348 • Frazier v. Cupp (1969) 394 U.S. 731 230 Furman v. Georgia (1972) 408 U.S. 238 376,404,418 • Fredrick v. United States (9th. Cir. 1947) 163 F.2d 536 338 Gall v. Parker (6th Cir. 2000) 231 F.3d 265 222,339 Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 78 • Gardner v. Florida (1977) 430 U.S. 349 242,414,444 Gideon v. Wainwright (1963) 372 U.S. 335 373 • Giglio v. United States (1972) 405 U.S. 150 229 Gilmore v. Taylor (1993) 508 U.S. 333 51 Godfrey v. Georgia (1980) 446 U.S. 420 368,378,418,428 • Government of the Virgin Islands v. Toto (3d Cir. 1976) 529 F .2d 278 157 Gray v. Mississippi (1987) 481 U.S. 648 300,301 • xxii • ~~u:tul r TLty· kJ j l I it iIIi un • tiM! ••• 11 • 11 - 1 un .r I q • • • • • .. • • • Greggv. Georgia (1976) 428 U.S. 153 Griffin v. California (1965) 380 U.S. 609 Griffin v. United States (1991) 502 U.S. 46 Harbans v. LaMarque (N.D.Cal.,2004) WL 187498 Harmelin v. Michigan (1991) 501 U.S. 957 Harrington v. California, 395 U.S. 250 Harris v. Alabama (1995) 513 U.S. 504 Harris v. New York (1971) 401 U.S. 222 Harris v. Pulley (9th Cir.) 692 F.2d 1189 Hewitt v. Helms (1982) 459 U.S. 460 Hicks v. Oklahoma (1980) 447 U.S. 343 Hilton v. Guyot (1895) 159 U.S. 113 Hitchcockv. Dugger (1987) 481 U.S. 393 Holbrookv. Flynn (1985) 475 U.S. 560 Kotteakos v. United States (1946) 328 U.S. 750 Illinois v. Allen (1970) 397 U.S. 337 In re Winship (1970) 397 U.S. 358 Irvin v. Dowd (1961) 366 U.S. 717 Jackson v. Denno (1964) 378 U.S. 368 Jackson v. Virginia (1979) 443 U.S. 307 Jammal v. Van De Kamp (9th Cir. 1991) 926 F.2d 918 t n r , 1ii' 1iff AU 81 I ~17 360,405,430 114 394 232 396.407 289 367 110 431 345,376 51,345,354,372,374,376 429,430 336,340,343 256,258 128 252,259,260 45,75,92,281,403 266 127, 132 45,279,404 162,242 Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110 430 • xxiii • Jenkins v. United States (1965) 380 U.S. 445 274 • Jimenez v. Myers (9th Cir. 1993) 40 F.3d 976 311,313 Johnson v. Louisiana (1972) 406 U.S. 356 395 Johnson v. Mississippi (1987) 486 U.S. 578 51,356,359,395 • Kelly v. South Carolina (2002) 534 U.S. 246 411 Krulewitch v. United States (1949) 336 U.S. 440 128, 129 • Lashley v. Armountrout (8th Cir. 1992) 957 F.2d 1495 401 Leary v. United States (1969) 395 U.S. 6 161 • Lee v.Illinois (1986) 476 U.S. 530 49 Lilly v. Virginia (1999) 527 U.S. 116 50 Lincoln v. Sunn (9th Cir. 1987) 807 F.2d 805 289 • Lockett v. Ohio (1978) 438 U.S. 586 149,242,336,343,368, 410,416 Lockhart v. McCree (1986) 476 U.S. 162 344 • Locks v. Sumner (9th Cir.1983) 703 F.2d 403 311 Lowenfield v. Phelps (1988) 484 U.S. 231 311,312,315,318 • MacFarlane v. Walter (9th Cir. 1999) 179 F.3d 1131 222 Magill v. Dugger (11th Cir. 1987) 824 F.2d 879 443 Mak v. Blodgett (9th Cir. 1992) 970 F .2d 614 444 • Marsh v. Cupp (9th Cir. 1976) 536 F.2d 1287 274 Marshall v. Lonberger (1983) 459 U.S. 422 160 • Mattox v. United States (1895) 156 U.S. 242-243 192 xxiv • • Mayfield v. Woodford (2111) 270 F.3d 515 415 • Maynard v. Cartwright (1988) 486 U.S. 356 368,428 McCleskey v. Kemp (1987) 481 U.S. 279 436 • McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548 265 McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833 73,83,176 • McKenzie v. Daye (9th Cir. 1995) 57 F.3d 1461 441 McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 161 • McKoy v. North Carolina (1990) 494 U.S. 433 316,402 Menzies v. Procunier (5th Cir. 1984) 743 F.2d 281 233 Miller v. United States (1871) 78 U.S. 268 429 • Mills v. Maryland (1988) 486 U.S. 367 316, 368, 398-402407, 439 Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337 69 • Monge v. California (1998) 524 U.S. 721 395,395,396,433,439 Montana v. EglehojJ(1996) 518 U.S. 37 74 • Mooney v. Holohan (1935) 294 U.S. 103 229 Myers v. Ylst (9th Cir. 1990) 897 F.2d 417 400,407,439 • Nash v. United States (2nd Cir. 1932) 106 F.2d, 1006 181 Neal v. Puckett (5th Cir. 2001) 239 F.3d683 415 Nix v. Whiteside (1986) 475 U.S. 157 • Ohio v. Roberts (1980) 448 U.S. 56 192-194 • xx • Parkerv. Gladden (1996) 385 U.S. 363 254,265,330 Patterson v. New York (1977) 432 U.S. 197 74 • Tennardv. Dretke (2004) U.S. , 124 S.Ct. 2562 - - 335,339,343,368 Penry v. Johnson (2001) 532 U.S. 782 343 • Penry v. Lynaugh (1989) 492 U.S. 302 335,336,339 Person v. Miller (4th Cir. 1988) 854 F.2d 656 109 • Phelps v. United States (5th Cir. 1958) 252 F.2d 49 50, 73 Plyler v. Doe (1982) 457 U.S. 202 375 Pointer v. Texas (1965) 380 U.S. 400 192 • Pounders v. Watson (1997) 521 U.S. 982 256 Proffitt v Florida (1976) 428 U.S. 242 430 • Pulley v. Harris (1984) 465 U.S. 37 421,431,432 Reagan v. United States (1895) 157 U.S. 301 373 Rhoden v. Rowland (9th Cir. 1999) 172 F.3d 633 254 • Richardson v. United States (1999) 526 U.S. 813 396 Riggins v. Nevada (1992) 504 U.S. 127 258,259 • Ring v. Arizona (2002) 536 U.S. 584 381,407,408,439 Roberts v. Louisiana (1976) 428 U.S. 325 335 • Rock v. Arkansas (1987) 483 U.S. 44 260 Rodriguez v. Marshall (9th Cir. 1997) 125 F.3d 739 310 Sabariego v. Maverick (1888) 124 U.S. 261 429 • Sanders v. Lamarque (9th. 2004) 357 F.3d 943 328 xxvi • • Sandin v. Conner (1974) 515 U.S. 472 51 • Sandstrom v. Montana (1978) 442 U.S. 510 45,357 Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242 69 • Santosky v. Kramer (1982) 455 U.S. 745 391 Schadv. Arizona (1991) 501 U.S. 624 393 • Shafer v. South Carolina (2001) 532 U.S. 36 411 Shepardv. United States (1933) 290 U.S. 96 180 Simmons v. South Carolina (1994) 512 U.S. 154 411,412 • Skinner v. Oklahoma (1942) 316 U.S. 535 434 Smalls v. Batiste (2d Cir. 1999) 191 F.3d 272 310 • Smith v. Murray (1986) 477 U.S. 527 442 Smith v. Phillips (1982) 455 U.S. 209 232 Snyder v. Massachusetts (1934) 291 U.S. 97 193 • Spain v. Rushen (9th Cir. 1989) 883 F.2d 712 252,260 Spencer v. Texas (1966) 385 U.S. 554 73, 160 • Stanfordv. Kentucky (1989) 492 U.S. 361 428,440 Strickland v. Washington (1984) 466 U.S. 668 395,400 • Stringer v. Black (1992) 503 U.S. 222 359,368 Sullivan v. Louisiana (1993) 508 U.S. 275 94,260,373,403,404 Sumner v. Shuman (1987) 483 U.S. 66 335 , Thompson v. Oklahoma (1988) 487 U.S. 815 428,430 • xxvii • Townsend v. Sain (1963) 372 U.S. 293 406 Trop v. Dulles (1958) 356 U.S. 86 429,434 • Tucker v. Kemp (lIth Cir. 1985) 762 F.2d 1480 276 Tucker v. Zant (1Ith Cir. 1985) 724 F .2d 882 276 • Tuilaepa v. California (1994) 512 U.S. 569 360,388,423,431,432 Ulster County Court v. Allen (1979) 442 U.S. 140 161, 163, 170, 171 • United States v. Agurs (1976) 427 U.S. 97 232 United States v. Ajihoye (9th. 1992) 961 F.2d892 328 United States v. Antonelli Fireworks Co. (2d Cir. 1946) 155 F.2d 631 128 • United States v. Arteaga (9th Cir. 1997) 117 F.3d 388 207 United States v. Bailey (5th Cir. (1972) 468 F.2d 652 310 • United States v. Berry (9th Cir. 1980) 627 F.2d 193 290 United States v. Blecker (4th Cir. 1981) 657 F .2d 629 275 United States v. Brawner (D.C.Cir.1972) 471 F.2d 969 339 • United States v. Cestnik (lOth Cir. 1994) 36 F.3d 904 207 United States v. Denno (2nd Cir. 1965) 348 F.2d 12 106 • United States v. Duarte-Acero (1Ith Cir. 2000) 208 F.3d 1282 441 United States v. Durham (11 th Cir. 2002) 287 F.3d 1297 254 United States v. Durrive (7th Cir. 1990) 902 F.2d 1221 93 • United States v. Garza (5th Cir. 1979) 608 F.2d 659 114 United States v. Gray (5th Cir. 1980) 626 F.2d 494 92 • United States v. Hall (5th Cir. 1976) 525 F.2d 1254 92 xxviii • " l' -wr au dM i .. Ii I 11 IlfIF ']I (eli 1 • United States v. Hermanek(9th Cir.l999) 289 F.3d 1076 339 • United States v. Hitt (9th Cir. 1992) 981 F.2d 422 180, 184 United States v. Koon (9th Cir. 1994) 34 F.3d 1416 466 United States v. Kopituk (11th Cir.1982) 690 F.2d 1289 321 United States v. Lesina (9th Cir. 1987) 833 F.2d 156 374 United States v. Lewis (9th Cir. 1986) 787 F .2d 1318 162 • United States. v. Locascio (2d Cir. 1993) 6 F.3d 924 118, 119 United States v. Lorenzo (9th Cir. 1995) 43 F.3d 1303 310 • United States v. Mason (9th Cir. 1981) 658 F.2d 1263 315 United States v. McClinton (11 th Cir. 1998) 135 F 3d 1178 229 • United States v. McDonald (5th Cir. 1980) 620 F.2d 559 117 United States v. McKeon (2d Cir.1984) 738 F.2d 26 119 United States v. McLister (9th Cir. 1979) 608 F.2d 785 289 • United States v. Mitchell (9th Cir. 1999) 279 United States v. Myers (5th Cir. 1977) 550 F.2d 1036 160 • United States v. Necoechea (9th Cir. 1993) 986 F.2d 1273 290 United States v. Oglesby (7th Cir. 1985) 764 F.2d 1273 109 United States v. Ordonez (9th Cir. 1984) 737 F.2d 793 210 • United States v. Partin (5th Cir. 1976) 525 F.2d 1254 92 United States v. Patterson (9th Cir. 1987) 819 F.2d 1495 114 • United States v. Phillips (5th Cir. 1981) 664 F.2d 971 321 xxix • • United States v. Rodgers (4th Cir. 1961) 289 F.2d 433 312 United States v. Sacco (2nd Cir. 1977) 563 F.2d 522 109 • United States v. Sanchez (9th Cir.1999) 176 F.3d 1214 339 United States v. Smith (9th Cir. 1992) 962 F.2d 923 222 • United States v. Smyth (5th Cir. 1977) 556 F.2d 1179 275 United States v. Symington (9th Cir. 1999) 195 F.3d 1080 330 • United States v. Tootick (9th Cir. Cir. 1991) 952 F .2d 1078 143 United States v. Trutenko (7th Cir. 1973) 490 F.2d 678 275 United States v. Ullah (9th Cir.1992) 976 F.2d 509 330 • United States v. Veteto (l1th Cir. 1983) 701 F .2d 136 108 United States v. Wallace (9th Cir. 1988) 848 F .2d 1464 289 • United States v. Wills (9th Cir. 1996) 88 F.3d 704 310 United States v. Wilson (4th Cir. 1998) 135 F.3d 291 118,229 United States v. Young (1985) 470 U.S. 1 233 • Uphaus v. Wyman (1959) 360 U.S. 72 129 Viereck v. United States (1943) 318 U.S. 236 222,223 • Vitekv. Jones (1980) 445 U.S. 480 51 Wainwrightv. Witt (1985) 469 U.S. 412 294,295 • Walton v. Arizona (1990) 497 U.S. 639 381 Wardius v. Oregon (1973) 412 U.S. 470 373 Washington v. Texas (1967) 388 U.S. 14 270 • Weaver v. Thompson (9th Cir. 1999) 197 F.3d 359 309,310 xxx • I n Urt t r • Webster v. Reproductive Health Services (1989) 492 U.S. 490 405 • Wiggins v. Smith (2003) 539 U.S. 510 336,416 Williams v. Woodford (9th Cir. 2002) 306 F.3d 665 344 • Williamson v. United States (1994) 512 U.S. 594 49 Windham v. Merkle (9th Cir. 1998) 163 F.3d 1092 132 ~. Witherspoon v. Illinois (1968) 391 U.S. 510 294 Woodson v. North Carolina (1976) 428 U.S. 280 51,335,348,359 378,410,404,437 I. Zajiro v. United States (1993) 506 U.S. 534 128-130 Zant v. Stephens (1983) 462 U.S. 862 51, 330, 356, 359, 377,404,419,444 it Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455 375 Zschernig v. Miller (1968) 389 U.S. 429 440 CALIFORNIA CASES '. Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190 201 Belton v. Superior Court (1993) 19 Cal.AppAth 1279 104 It Bixby v. Pierno (1971) 4 Ca1.3d 130 404 Braxton v. Municipal Court (1973) 10 Cal.3d 138 404 • Calderon v. Superior Court (2001) 87 Cal.AppAth 933 105 Castro v. Superior Court (1970) 9 Cal.App.3d 675 134 Crump v. Northwestern National Life Insurance Co. (1965) 236 , Cal.App.2d 149 268 DaFonte v. Up-Right, Inc. (1992) 2 Ca1.4th 593 57 xxxi • Fuentes v. Workers' Compo Appeals Board (1976) 16 Ca1.3d 1 350 • Garden Grove School District v. Hendler (1965) 63 Ca1.2d 141 276 Hart V. Wielt (1970) 4 Cal.App.3d 224 276 • Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388 266 In re Anthony J. (2004) 117 Ca1.App.4th 718 284 • In re Estate of Wilson (1980) III Ca1.App.3d 242 404 In re Hamilton (1999) 20 Cal.4th 273 265 In re Hitchings (1993) 6 Ca1.4th 97 265 • In re Lucas (2004) 16 Cal.Rptr. 331 336 In re Marquez (1992) 1 Ca1.4th 584 443 • In re Sturm (1974) 11 Ca1.3d 258 406 In re Tarter (1959) 52 Ca1.2d 250 In re Young (2004) 32 Ca1.4th 900 256 • Izazaga v. Superior Court (1991) 54 Ca1.3d 356 373 People V. Adcox (1988) 47 Ca1.3d 207 422 • People v. Aikens (1988) 207 Cal.App.3d 209 325,326,329 People v. Alcalde (1944) 24 Ca1.2d 177 195, 198 People v. Allen (1986) 42 Ca1.3d 1222 436-438 • People V. Alverson (1964) 60 Ca1.2d 803 78,323 People v. Anderson (2001) 25 Cal.4th 543 241,245,385 • People v. Andrews (1989) 49 Ca1.3d 200 64,66,276 xxxii • 1"-13 tu lUI f J • • 1 People v. Arias (1996) 13 Ca1.4th at pp. 172-174 340,409,413 :" People v. Armstead (2002) 102 Cal.AppAth at p. 793 177 People v Bacigalupo (1993) 6 Ca1.4th 857 350,369 People v. Balcolm (1994) 7 Ca1.4th 414 158, 159 I- People v. Barraza (1979) 23 Ca1.3d 675 274,317,318,329 People v. Batts (2003) 30 Ca1.4th 660 226 It People v. Belton (1979) 23 Ca1.3d 516 64,283,284 People v. Benson (1990) 52 Ca1.3d 754 487 ,. People v. Berryman (1993) 6 Ca1.4th 1048 371 People v. Bigelow (1984) 37 Cal.3d 731 139 People v. Bittaker (1989) 48 CalJd 1046 cert. den 423 .~ People v. Blakeslee (1969) 2 Cal.App.3d 831 75 People v. Bolin (1998) 18 Ca1.4th 297 356,393 :1 People v. Bowley (1963) 59 Ca1.2d 855 64 People v. Boyce (1980) 110 Cal.AppJd 726 65 People v. Boyd (1985) 38 Ca1.3d 762 350,356,365 ,t People v. Bradford (1997) 15 Ca1.4th 1229 93,267 People v. Brady (1987) 190 Cal.AppJd 124 78 It People v. Brown (2003) 31 Ca1.4th 518 205 People v. Brown (2004) 33 Ca1.4th 382 324 " People v. Brown (1985) 40 Ca1.3d 512 375 People v. Brown (1988) 46 Ca1.3d 432 405 xxxiii • People v. Burgener (1986) 41 Ca1.3d 505 267,269,332 • People v. Burns (1952) 109 Cal.App.2d 524 240 People v. Burrell-Hart (1987) 192 Cal.App.3d 593 113 • People v. Burroughs (1984) 35 Ca1.3d 824 54 People v. Cabrera (1991) 230 Cal.App.3d 300 269 People v. Cain (1995) 10 Ca1.4th 1 96 • People v. Calpito (1970) 9 Cal.App.3d 212 231 People v. Cardenas (1982) 31 Ca1.3d 897 225 • People v. Carpenter (1997) 15 CaL4th 312 90,97 People v. Carter (1957) 48 CaL2d 737 285 People v. Carter (1968) 68 Ca1.2d 810 309 • People v. Castillo (1997) 16 Ca1.4th 1009 279 People v. Chambers (1964) 231 Cal.App.2d 23 127, 129, 133 • People v. Chavez (1958) 50 Ca1.2d 778 239 People v. Cicero (1984) 157 Cal.App.3d 465 57-58 People v. Clapp (1944) 24 Ca1.2d 835 64 • People v. Cleveland (2004) 32 Ca1.4th 704 105, 132, 135 People v. Coble (1976) 65 Cal.App.3d 187 200 • People v. Coffey (1911) 161 Cal. 433 49,53,56 People v. Coffman (2004) 34 Ca1.4th 1 114, 116, 117,286 • People v. Collie (1981) 30 Ca1.3d 43 186 xxxiv • • c .( Oil'll • • c People v. Collins (1976) 17 Ca1.3d 687 269,322,326 • People v. Compton (1971) 6 Ca1.3d 55 268 People v. Contreras (1983) 144 CaLApp.3d 749 225 • People v. Cooks (1983) 141 Cal.App.3d 224 63 People v. Costello (1943) 21 Ca1.2d 760 273 People v. Cox (1991) 53 Ca1.3d 618 96,257 People v. Crandell (1988) 46 Ca1.3d 833 116 People v. Crew (1991) 1 Cal.App.4th 1591 332 • People v. Croy (1985) 41 CaL3d 1 54 People v. Clllijo (1993) 6 Cal.4th 585 379 People v. Cummings (1993) 4 Ca1.4th 1233 107, 127 :. People v. Dail (1943) 22 Ca1.2d 642 49 People v. Dailey (1960) 179 CaLApp.2d 482 73 f People v. Davenport (1995) 11 Ca1.4th 1171 358,359 People v. Davis (1981) 29 Cal.3d 814 58 People v. DeSantis (1992) 2 Ca1.4th 1198 267,268 '. People v. Deletto (1983) 147 Cal.App.3d 458 91 People ex rei. Department of Public Works v. Graziadio (1964) 231 ,t Cal.App.2d 525 276 People v. Dewberry (1959) 51 Ca1.2d 548 280 People v. Diaz (1984) 152 Cal.App.3d 926 266 • People v. Dillon (1984) 34 Ca1.3d 441 420 xxxv • People v. Duarte (2000) 24 CaL4th 603 49,200 People v. Duncan (1991) 53 Ca1.3d 955 371,373,375,388,399 • People v. Duran (1976) 16 Ca1.3d 282 250,257 People v. Dyer (1988) 45 CaL3d 26 422 • People v. Edelbacher (1989) 47 Cal.3d 983 358,418 People v. Espinoza (1992) 3CaL4th 806 232,268 • People v. Estrada (1998) 63 Cal.AppAth 1090 106, 107,221 People v. Ewoldt (1994) 7 CaL4th 380 153, 154, 158, 159,165, 176 People v. Fairbank (1997) 16 CaL 4th 1223 381,383,404 • People v. Falconer (1988) 201 Ca1.App.3d 1540 63,64,68 People v. Farnam (2002) 28 Ca1.4th 107 358, 384, 431 • People v. Fauber (1992) 2 Cal.4th 792 53,406 People v. Fields (1983) 35 Ca1.3d 329 326,330 People v. Figueroa (1986) 41 CaL3d 714 354,355 • People v. Filson (1994) 22 Ca1.4th 1841 450 People v. Fitzpatrick (1992) 2 Cal.AppAth 1285 90, 97 • People v. Fong Sing (1918) 38 Cal.App. 253 202 People v. Ford (1964) 60 Cal.2d 772 54 • People v. Frye (1998) 18 Ca1.4th 894 232 People v. Gainer (1977) 19 Ca1.3d 835 273,309,316,317,329 People v. Gaines (1997) 54 Cal.AppAth 821 118 • People v. Garceau (1993) 6 Ca1.4th 140 64, 162 xxxvi • .. :Ai • People v. Garcia (1995) 41 CaLAppAth 1832 189 • People v. Gatlin (1989) 200 Cal.App.3d 39 146 People v. Ghent (1987) 43 CaL3d 739 441 • People v. Gibson (1976) 56 CaLApp3d 119 174 People v. Gionis (1995) 9 CaL4th 1196 221 People v. Glaser (1995) 11 CaL4th 354 60 4. People v. Glenn (1991) 229 Ca1.App.3d 1461 374 People v. Godwin (1995) 31 CaLAppAth 1112 97 I, People v. Gordon (1973) 10 Ca1.3d 460 52,55 People v. Gordon (1990) 50 Cal.3d 1223 411 People v. Graham (1978) 83 Cal.App.3d 736 73 It People v. Griffin (2004) 33 Ca1.4th 536 390 People v. Grubb (1965) 63 Ca1.2d 614 352 '. People v. Guiuan (1998) 18 Ca1.4th 558 49,50,56,74 People v. Gutierrez (2000) 78 CaLAppAth 170 204 it People v. Guzman (1988) 45 CaL3d 915 III People v. Hall (1964) 62 CaL2d 104 75 People v. Hamilton (1989) 48 Ca1.3d 1141 358 • People v. Hannon (1977) 19 CaL3d 588 78 People v. Hardy (1992) 2 Ca1.4th 86 70,96,106,114,115,122 It People v. Harrington (1871) 42 Cal. 165 251,252,260 People v. Harris (1981) 28 Ca1.3d 935 73 xxxvii • People v. Harris (1981) 28 Ca1.3d 935 351 People v. Harvey (1991) 233 Cal.App.3d 1206 211 • People v. Haslouer (1978) 79 Cal.App.3d 818 167 People v. Hawthorne (1992) 4 Ca1.4th 43 192,383 • People v. Hayes (1990) 52 Cal.3d 577 397,398,407 People v. Heard (2003) 31 Ca1.4th 946 296,301 People v. Henderson (1949) 34 Ca1.2d 340 66 • People v. Hernandez (2003) 30 Ca1.4th 835 198,386 People v. Hill (1998) 17 Ca1.4th 800 221,232,257,289,441 • People v. Hillhouse (2002) 27 Cal.4th 469 440 People v. Hinds (1984) 154 Cal.App.3d 222 193 • People v. Hines (1997) 15 Cal.4th 997 245 People v. Holloway (1990) 50 Ca1.3d 1098 265 People v. Holt (1984) 37 Ca1.3d 436 444 • People v. Huggins (1986) 182 Cal.App.3d 828 199 People v. Hughey (1987) 194 Cal.App.3d 1383 205 • People v. Hutchinson (1969) 71 Ca1.2d 342 266 People v. Isby (1947) 30 CaL2d 879,[186 P.2d 405 279 People v. Isenor (1971) 17 Cal.App.3d 324 104 • People v. Jackson (1993) 14 CaLApp.4th 1818 252 People v. Jackson (1996) 13 Ca1.4th 1164 375 • People v. Johnson (1980) 26 Ca1.3d 557 46 xxxviii • q~. I ! •. t'j 1 I •• " •• N I • People v. Johnson (1989) 47 Ca1.3d 1194 104 • People v. Johnson (1992) 3 CaL4th 1183 375 People v. Johnson (1993) 6 Ca1.4th 1 267,268 People v. Johnson (1998) 62 Cal.AppAth 608 111 1. People v. Jones (1962) 205 Cal.App.2d 460 231 People v. Jones (1970) 10 Cal.App.3d 237 106, 116 People v. Karis (1988) 46 Cal.3d 612 174 People v. Kaurish (1990) 52 Ca1.3d 648 345 1. People v. Keenan (1988) 46 CaL3d 478 104 People v. Kelley (1977) 75 Cal.App.3d 672 221 People v. Kelly (1967) 66 Cal.2d 232 166, 167 .~ People v. Kipp (1998) 18 Cal. 158 People v. Leach (1975) 15 Ca1.3d 419 200 '. People v. Livaditis (1992) 2 Cal.4th 759 192,253 People v. Lohman (197) 6 Cal.App.3d at 766 64 People v. Love (1960) 53 Ca1.2d 843 239 '. People v. Lucero (1988) 44 CaL3d 1006 358 People v. Lucky (1988) 45 Cal.3d 259 351 ft People v. Marcus (1978) 82 Cal.App.3d 477 78 People v. Markus (1978) 82 Cal.App.3d 477 79 l' People v. Marsh (1985) 175 Cal.App.3d 987 239,240 People v. Martin (1986) 42 CaL3d 437 406 • XXXIX • People v. Martinez (1982) 132 Cal.App.3d 119 63 People v. Martinez (1984) 159 CaLApp.3d 661 323 • People v. Mason (1991) 52 Ca1.3d 909 297,351,354 People v. Massie (1967) 66 Ca1.2d 899 104, 126-129 • People v. Mathews (1994) 25 Cal.App.4th 89 346 People v. Matteson (1964) 61 Ca1.2d 466 193 • People v. Medina (1990) 51 Ca1.3d 870 253 People v.Medina (1995) 11 Cal.4th 694 396 People v. Melton (1988) 44 Ca1.3d 713 358 • People v. Memro (1985) 38 Ca1.3d 658 46 People v. Mendoza (2000) 24 Ca1.4th 130 146, 147 • People v. Miller (1999) 69 Cal.App.4th 190 111 People v. Mizchele (1983) 142 Cal.App.3d 686 270 People v. Monge (1997) 16 Ca1.4th 8926 93 • People v. Moore (1954) 43 Ca1.2d 517 373 People v. Morales (1989) 48 Ca1.3d 527 420 • People v. Morris (1988) 46 Ca1.3d 1 46 People v. Morris (1991) 53 Ca1.3d 152 344 People v. Morton (1903) 139 CaL 719 • 64 People v. Murtishaw (1989) 48 Ca1.3d 1001 189 People v. Narvaez (2002) 104 CaLApp.4th 1295 65 • People v. Nauton (1994) 29 Cal.App.4th 976 106 xl • People v. Nesler (1997)16 Ca1.4th 561 267,272 4t People v. Nicolaus (1991) 54 Cal.3d 551 423 People v. Nigeria (1992) 4 Ca1.4th 599 198 People v. Norris (2002) 95 Cal.App.4th 475 283 it People v. OdIe (1988) 45 Ca1.3d 386 323 People v. Olivas (1976) 17 Ca1.3d 236 434 't People v. Ortiz (1978) 22 Ca1.3d 38 144 People v. Parmelee (1934) 138 Cal.App. 123 223 ~. People v. Patterson (1989) 49 Ca1.3d 615 54 People v. Peak (1944) 66 Cal.App.2d 894 376 People v. Pearch (1991) 229 Cal.App.3d 1282 54 i. People v. Perez (1981) 114 Cal.App.3d 470 225 People v. Phillips (1985) 41 Cal.3d 29, 711 P.2d 423 426 ,. People v. Pitmon (1985) 170 Cal.App.3d 38 58 People v. Pitts (1990) 223 Cal.App.3d 606 177,221,275 People v Poggi (1988) 45 Ca1.3d 306 246 il People v. Price (1991) 1 Ca1.4th 324 226 People v. Prieto (2003) 30 Cal.4th 226 385 !t People v. Ramirez (1990) 50 Ca1.3d 1158 352 People v. Ramos (1984) 37 Ca1.3d l36 73 :, People v. Ramos (1997) 15 Ca1.4th 1133 192 People v. Randle (1982) 130 Cal.App.3d 286 113 xli • People v. Rankin (1992) 9 Cal.AppAth 430 96 People v. Rayford (1994) 9 Ca1.4th 1 46 • People v. Reingold (1948) 87 Cal.App.2d 382 63 People v. Renteria (2001) 93 Cal.AppAth 552 269,323 • People v. Rice (1976) 59 Cal.App.3d 998 373 People v. Riel (2000) 22 CaL4th 1153 369 People v. Roberts (1992) 2 Ca1.4th 271 353 • People v. Robertson (1982) 33 Ca1.3d 21 354,357 People v. Robinson (1964) 61 CaL2d 373 64,65,73 • People v. Rodrigues (1994) 8 CaL4th 1060 63 People v. Rodriguez (1986) 42 Ca1.3d 730 52,309,319,342,437 • People v. Salas (1976) 58 Cal.App.3d 460 280 People v. Sam (1969) 71 Ca1.2d 194 168 People v. Samayoa (1997) 15 Ca1.4th 795 232 • People v. Sanders (1990) 51 Ca1.3d 471 70 People v. Santana (2000) 80 Cal.AppAth 1194 111 • People v. Satchell (1971) 6 CaL3d 28 54 People v. Scheid (1997) 16 Cal.4th 1 242 People v. Sheldon (1989) 48 Ca1.3d 935 315 • People v. Shipe (1975) 49 Ca1.App.3d 343 200 People v. Slaughter (2002) 27 Cal.4th 1187 344 • People v. Slocum (1975) 52 Cal.App.3d 867 104 xlii • Jill sttlN '" !~_ -I· $$ta •• ! I I. I 1 •• ,. P III 1 War .A • People v. Smith (1970) 4 Cal.App.3d 41 451 • People v. Smith (1973) 33 Cal.App.3d 51 240 People v. Smith (1998) 64 Cal.App.4th 1458 283 " People v. Snow (2003) 30 Ca1.4th, 43 344,385 People v. Solis (1993) 20 CaLApp.4th 264 53 .. People v. Son (2000) 79 Cal.App.4th 224 55 People v. Stanley (1995) 10 Ca1.4th 764 421 People v. Staten (2000) 24 Ca1.4th 434 241,245 • People v. Stewart (2004) 33 Ca1.4th 425 296,301 People v. Stone (1981) 117 Cal.App.3d 15 451 '. People v. SuIt); (1991) 53 Ca1.3d 1195 96 People v. Superior Court (Engert) (1982) 31 CaL3d 797 People v. Superior Court (Mitchell) (1993) 5 Ca1.4th 1229 389 ~, People v. Swearington (1977) 71 Cal.App.3d 935 177 People v. Szeto (1981) 29 CaL3d 20 63.64 11 People v. Talle (1952) 111 CaLApp.2d 650 78,223,232 People v. Tatum (2003) 108 CaLApp.4th 288 216 !, People v. Taylor (1990) 52 CaL3d 719 393 People v. Tarantino (1955) 45 Ca1.2d 590 309 People v. Terry (1964) 61 Cal.2d 137 345 People v. Thompson (1980) 27 CaL3d 303 46, 167 • xliii , . • People v. Thompson (1988) 45 Cal.3d 86 158 People v. Tobias (2001) 25 Cal.4th 327 49,56 • People v. Trevino (1985) 39 Cal.3d 667 283 People v. Tuilaepa (1992) 4 Ca1.4th 569 349,351,353,355 • People v. Turner (1984) 37 CaL3d 302 105, 107 People v. Underwood (1964) 61 Cal.2d 113 193 • People v. Valantine (1988) 207 Cal.App.3d 697 158, 164 People v. Valerio (1970) 13 Cal.App.3d 912 284 People v. Von Villas (1992) 11 Ca1.4th 17 450 • People v. Wagner (1975) 13 Ca1.3d 612 146 People v. Waidla (2000) 22 Ca1.4th 690 199 • People v. Walker (1988) 47 Ca1.3d 605 483 People v. Warren (1988) 45 Ca1.3d 471 226 People v. Watson (1956) 46 Ca1.2d 818 174,323 • People v. Wharton (1991) 53 Ca1.3d 552 347 People v. Wheeler (1978) 22 Cal.3d 258 396 • People v. Whitt (1990) 51 Ca1.3d 620 198, 199,202 . People v. Williams (1954) 128 Cal.App.2d 458 66 People v. Williams (1965) 233 Cal.App.2d 520 167 • People v. Williams (1969) 71 Ca1.2d 614 310 People v. Williams (1971) 22 Cal.App.3d 38-40 78,289 • People v. Williams (1997) 16 Ca1.4th 153 96 xliv • ___________________________________________________ 1_: ______________ _ ~_ i; s· \):U,~tJ!_- ,] II Q Hi !it It! filii at_till .. • .. People v. Wilson (1967) 66 Ca1.2d 749 410 People v. Woodard (1979) 23 Cal.3d 329 778,146,172,217,445 People v. Woods (1992) 8 Cal.AppAth 1570 89 • People v. Yeoman (2003) 31 Ca1.4th 93 158, 173 People v. Zapien (1993) 4 Ca1.4th 929 63,66 • People v. Zemavasky (1942) 20 Ca1.2d 56 450 Raven v. Deukmejian (1990) 52 Ca1.3d 336 93 In re Ricky B. (1978) 82 Cal.App.3d 106 64 • In re Sassounian (1995) 9 Cal.4th 535 496 Sheehan v. Scott (1905) 145 Cal. 684 199 '. Simms v. Pope (1990) 218 Cal.App.3d 472 404 Thomas v. Superior Court (1976) 54 Cal.App.3d 1054 108, 120 Wallace v. Oswald (1922) 57 Cal.App. 333 199 Westbrookv. MUahy (1970) 2 Ca1.3d 765 434 Williams v. Superior Court (1984) 36 Ca1.3d 441 104 '. OTHER STATE CASES Alford v. State (Fla. 1975) 307 So.2d 433 432 il Arnold v. State (Ga. 1976) 224 S.E.2d 386 377 Brewer v. State (Ind. 1980) 417 N.E.2d 889 432 Claudio v. State (Deleware, 1991) 585 A.2d 1278 321 l' Collins v. State (Ark. 1977) 548 S.W.2d 106 432 • Commonwealth v. Brown (1974 Pennsylvania) 321 P.Super. 431, 332 A.2d 828 265 • Commonwealth v. O'Neal (1975) 327 N.E.2d 662,367 Mass. 440 434 Hollandv. Com. (Va. 1949) 55 S.E.2d 437 279 • Johnson v. State (Nev., 2002) 59 P.3d 450 389 People v. Brownell (Ill. 1980) 404 N.E.2d 181 432 People v. Bull (Ill. 1998) 705 N.E.2d 824 428 • People v. Burnette (Colo., 1989) 775 P.2d 583 321 People v. Ryan (New York, 1966) 19 N.Y.2d 100,278 N.Y.S.2d 199, [224 N.E.2d 710] 321 • Smith v. State (1887) 55 Miss. 413 299 State v. Brown (Idaho App. 1998) 951 P.2d 1288 338 • State v. Busby (1985 La.) 464 So.2d 262 276 State v. Canedo-Asorga (1995) 79 Wash. App. 518,903 P.2d 504 109 State v. Castro (1998) 69 Haw. 633, 756 P.2d 1033 254 • State v. Dixon (Fla. 1973) 283 So.2d 1 432 State v. Doyle (Kan. 1968) 441 P.2d 846 279 • State v. Filiaggi (Ohio 1999) 714 N.E.2d 867 253 State v. Hayes (2001) 270 Kan. 535, 17 P.3d 317 265 • State v. Jordan (1956) 80 Ariz. 193,294 P.2d 677 276 State v. Majors (Kan. 1958) 323 P.2d 917 275 State v. Pierre (Utah 1977) 572 P.2d 1338 383,432 • State v. Simants (Neb. 1977) 250 N.W.2d 881 383,432 xlvi • - of • 1$ ilk q tHiullin . 1 en • State v. Stewart (Neb. 1977) 250 N.W.2d 849 383 • State v. Turner (1994) 186 Wis.2d 277,521 N.W.2d 148 265 State v. White (Del. 1978) 395 A.2d 1082 407 " Woods v. Commonwealth (Kentucky, 1941) 287 Ky. 312, 152 S.W.2d 997 321 State v. Bobo (Tenn.Crim.App 1989) 1989 WL 134712, 13 321 • State v. Caruthers (Tenn. 2000) 35 S.W.3d 516 108, 109, 122 State v. Dreiling (Kan. 2002) 54 P.3d 475,491 279 • State v. Ring (Az., 2003) 65 P.3d 915 389 State v. Whitfield (Mo. 2003) 107 S.W.3d 253 389 Woldt v. People (Colo.2003) 64 P.3d 256 389 I' Wrinkles v. State (Ind. 2001) 749 N.E.2d 1179 254 CONSTITUTIONAL AND STATUTORY AUTHORITY • United States Constitution United States Constitution, 5th Amendment passim United States Constitution, 6th Amendment passim • United States Constitution, 8th Amendment passim United States Constitution, 14 Amendment passIm • California Constitution Article I., section 16 265,272,294,323 • Article I, section 7 354,375,402 xlvii " • Article I, section 16 272,294,323 Article I, section 17 402 • Article I, section 24 402 United States Statutes • 21 U.S.c. section 848 • California Statutes Bus. & Prof. Code, section 6068 110 Cal. Rules of Court, rule 420 400 • Cal. Rules of Court, rule 421 438 CaL Rules of Court, rule 4.42 435 • CaL Rules of Court, rule 423 438 California Penal Code section 190.3 340,349,350,352-355,360-362, 364-366,368,371,372,375,376, 379,383,386,388,392,399-400, • 408,422,423,428,432,433,438 Code Civ. Proc. section 1209, subds. 256 Evidence Code section 210 151,157,244,247 • Evidence Code section 350 157, 163 Evidence Code section 352 133,151-152, 157, 162, 164, 166-171, 236,239,245,274 • Evidence Code, section 520 400 Evidence Code section 788 210 • Evidence Code section 1101 5, 151, 152, 14, 155, 157, 165, xlviii • • • • • • • • Evidence Code, section 1150 Evidence Code section 1220 Penal Code section 189 Penal Code section 190.2 Penal Code section 190.4 Penal Code section 1044 Penal Code section 1089 Penal Code section 1093 Penal Code, section 1096 Penal Code section 1111 Penal Code section 1127c Penal Code, section 1239 Penal Code section 1140 Penal Code section 1170 Rules Prof. Conduct, rule 5-200 Treaties 168, 169, 273,290,291 266 l32, 163 54 385,386,417-421,433 332,336,386,400,437 266 265 285 49,51,52,54,57,70,88,89 57 1 309 406 110 Article VII of the International Covenant of Civil and Political Rights 440 Other State Statutes Ala. Code section l3A-5-45(e) (1975) 382,407,432 Ark. Code Ann. section 5-4-603 382,407, xlix • Ariz. Rev. Stat. Ann. section 13-703 (1989) 383,407 Colo. Rev. Stat. Ann. section 16-11-103(d) (West 1992) 382 • Conn. Gen. Stat. Ann. section 53a-46a 382,407,431 Del. Code Ann. tit. 11, section 4209(g)(2) (1992) 382,432 • Fla. Stat. Ann. section 921.141(3) (West 1985) 407,432 Ga. Code Ann. section 17-10-3 5( c )(3) (Harrison 1990) 382,407,431 Idaho Code section 19-2827(c)(3) (1987) 382,407,431 • Ill. Ann. Stat. ch. 38, para. 9-1(f) (Smith-Hurd 1992) 383 Ind. Code Ann. sections 35-50-2-9(a) 383 • Ky. Rev. Stat. Ann. section 532.075(3) (Michie 1985) 383,407,431 La. Code Crim. Proc. Ann. art. 905.9.1(1) 383, 407, 431 • Md. Ann. Code art. 27, sections 413 383,407,432 Miss. Code Ann. section 99-19-105(3) 383,432 Mont. Code Ann. section 46-18-310(3) (1993) 407,432 • Neb. Rev. Stat. sections 29-2521.01,03,29-2522(3) (1989) 407,432 Nev. Rev. Stat. Ann. section 177.055 (d) (Michie 1992) 383,407,432 • N.H. Rev. Stat. Ann. section 630:5(XI) 407,432 N.M. Stat. Ann. section 31-20A-4(c)(4) (Michie 1990) 383,407,432 N.C. Gen. Stat. section 15A-2000(d)(2) (1983) 432 • Ohio Rev. Code Ann. section 2929.05(A) (Baldwin 1992) 383,432 Okla. Stat. Ann. tit. 21, section 701.11 383,407,432 • 42 Pa Cons. Stat. Ann. section 9711 383,408,432 • ,~ t ±lid j ~!1 r _ :II '8i11 111\ , In" T , r - ) • • S.C. Code Ann. section 16-3-20(c) (Law. Co-op. 1992) 383,407,432 S.D. Codified Laws Ann. section 23A-27 A-5 383,408,432 Tenn. Code Ann. section 13-206(c)(1) 383,408,432 Va. Code Ann. section 17.1l0.1C(2) (Michie 1988) 383,408,432 Wash. Rev. Code Ann. section 10.95.130(2) 383,432 • Wyo. Stat. section 6-2-103 383,408,432 Tenn. Code Ann. section 39-13-204(f) (1991) 383,408,432 Tex. Crim. Proc. Code Ann. section 37.071(c) 383,408,432 • Wash. Rev. Code Ann. section 10.95.060(4) 383,432 PRIMARY AUTHORITY if Deuteronomy 17:6 45 Numbers 35:30 45 it SECONDARY AUTHORITY American Bar Association Standards for Criminal Justice, The Prosecution Function, Standard 3-5.5 (3d. ed, 1993) 229 Amnesty International, "The Death Penalty: List of Abolitionist and $, Retentionist Countries" (Dec. 18, 1999), on Amnesty International website [www.amnesty.org].) 428 Bassiouni, Symposium: Reflections on the Ratification of the Inter- national Covenant of Civil and Political Rights by the United States Senate (1993) 42 De Paul L.Rev. 1169 440 Bar Association's Model Code of Professional Responsibility Model Code, DR 2-1l0(B) III • Bauman, Neil, Ph.D, Speechreading (Lip-reading) (2000) http://www.hearinglosshelp.com/speechreading.htm.) 271 • Ii • Bender, Computer Law (1997) 207 • Bowers, Research on the Death Penalty: Research Note (1993) 27 Law & Society Rev. 157, 170 413 Brinkham, Beth, The Presumption of Life: A Starting Point for a • Due Process Analysis of Capital Sentencing (1984) 94 Yale LJ. 351 408 Dahlberg, "The React Security Belt: Stunning Prisoners and Human Rights Groups Into Questioning Whether Its Use is Permissible Under the United States and Texas Constitutions" (1988) 30 St. • Mary's L.J. 239 253 2 Doyle, Silver Blaze, in The Annotated Sherlock Holmes (Baring- Gould ed. 1967) pp. 277, 280 75 • Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases (1993) 79 Cornell L.Rev. I, 10 401 Ethics Newsline, March 10,2003, Vol. 6, No. 10, http://www.globalethics.org/newsline/members/issue.tmpl?articl • eid=03100316345928 449 Garvey, Stephen P., Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum.L.Rev. 1538, 1563 344 • Geimer, William S., & Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am.J.Crim.L. 1,28 344 Goldstein, The State and the Accused: Balance of Advantage in • Criminal Procedure (1960) 69 Yale LJ. 1149, 1180-92 373 Goodpaster, The Trial For Life: Effective Assistance Of Counsel In Death Penalty Cases (1983) 58 N.Y.D.L.Rev. 299 443 • Graham, Michael H., Modern State and Federal Evidence (1988) 207 C. Haney, L. Sontag, & S. Costanzo, Deciding to Take a Life:Capital Juries, Sentencing Instructions, and the Jurisprudence • of Death (1994) 415 iii • • Haney, Hurtado & Vega, Death Penalty Attitudes: The Beliefs of Death Qualified Californians (1992) 19 CACJ Forum No.4 413 • "Innocence and the Death Penalty" http://www.deathpenaltyinfo.org/artic1e.php?did=412&scid=6 348 Jefferson, Bernard, California Evidence Benchbook (3d ed.) 158, 198 • Linguistics Theory, Foundations, and Modem Development, http://www.geocities.comlAthens/Acropolis/1470/chap-2-4-4.html 270 National Prosecution Standards (2d ed.), issued by The National District Attorney's Association 229 Peiris, Corroboration In Judicial Proceedings: English, South Afri can And Sri Lankan Law on The Testimony of Accomplices, 30 INT'L. & COMPo L. Q. 682 (1981.) 74 Posner & Shapiro, Adding Teeth to the United States Ratification of the Covenant on Civil and Political Rights: The International Human Rights Conformity Act of 1993 (1993) 42 De Paul L.Rev. ;:. 1209 440 Ramon, Bronson & Sonnes-Pond, Fatal Misconceptions: Convin ing Capital Jurors that LWOP Means Forever (1994) 21 CACJ Forum No.2 413 ;, Quigley, Criminal Law and Human Rights: Implications of the United States Ratification of the International Covenant on Civil and Political Rights (1993) 6 Harv. Hum. Rts. J. 59. 441 • Sacramento Bee (March 29, 1988) 413 Shatz & Rivkind, The California Death Penalty Scheme: Requiem for Furman? 72 N.Y.U.L.Rev. 1283 409,432 • Silver, Truth, Justice, and the American Way: The Case Against the Client Perjury Rules, (1994) 47 Vand.L.Rev. 339,424-426 111 Webster's Unabridged Dictionary (2d ed. 1966) 378 • 1978 Voter's Pamphlet, p. 34, "Arguments in Favor of Proposition 7 419 !iii • Soering v. United Kingdom: Whether the Continued Use of the Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement 339 San Diego Source, March 1, 2002, http://www.sddt.comlCommentary/articie.cfm?Commentary_ID=10 9&SourceCode=2002030 1 tza Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing (2003) 54 Ala.L.Rev. 1091, 1126-1127 "Terry Nichols Receives 161 Life Sentences," Associated Press/August 9,2004 http://www.rickross.comlreference/mcveighlmcveigh3 7.html Welsh S. White, Effective Assistance Of Counsel In Capital Cases: The Evolving Standard Of Care 1993 U. Ill. L. Rev. 323 7 J. Wigmore, (1978) Evidence Witkin, California Evidence, 3 Witkin, Cal. Crim. Law 3d (2000) 7 Witkin, California Procedure. 4th (1997) 3 Wright, Federal Practice and Procedure: Criminal, § 555, p. 273 (2d. ed. 1982) JURY INSTRUCTIONS BAJI No. 15.40 268 CALJIC No. 1.02 CALJIC No. 2.03 428 449 443 443 49, 74, 159 204,210,285 286 268 113 343 279 CALJIC No. 2.11.5 5, 95, 96, 98, 99 CALJIC No. 2.50 176,177,179 CALJIC No. 2.51 278-280 liv • • • • • • • • • • • • CALJIC 3.00 88, 89 • CALJIC No. 3.12 67 CALJIC No. 3.16 72, 72 CALJIC Nos. 3.10 64,88 CALJIC No. 3.18 64, 75 :It CALJIC No. 8.80 343 CALJIC 8.85 142,188,328,358-361,364-369 CALJIC 8.87 352,392 It CALJIC 8.88 325,364,365,367,370-373 375,376,378,384,386,391, 401,410 ~, CALJICNo.17.51 269,272 DOCKETED CASES People v. Adcox, No. S004558 424 People v. Allison, No. S004649 424 "I People v. Anderson, No. S004385 425,427 People v. Ashmus, No. S004723 427 People v. Avena, No. S004422 427 II People v. Bean, No. S004387 426,427 People v. Belmontes, No. S004467 424,426 People v. Benson, No. S004763 424,426 Iv • People v. Bonin, No. SOO4565 426 People v. Brown, No. SOO4451 424,427 • People v. Cain, No. SOO6544 426,427 People v. Carpenter, No. SOO4654 425,426,427 • People v. Carrera, No. SOO4569 423,425 People v. Clair, No. SOO4789 426 • People v. Coddington, No. SOO8840 424,427 People v. Comtois, No. SO 17116 427 People v. Davis, No. S014636 425 • People v. Deere, No. SOO4722 426 People v. Dunkle, No. S014200 425 • People v. Edwards, No. SOO4755 424,427 People v. Fauber, No. SOO5868 425,426,427 People v. Freeman, No. SOO4787 423,425,427 • People v. Frierson, No. SOO4761 423 People v. Ghent, No. SOO4309 424,427 • People v. Hamilton, No. SOO4363 425 People v. Hawkins, No. S014199 424 • People v. Howard, No. SOO4452 424,426 People v. Jackson, No. S010723 426 People v. Jennings, No. SOO4754 424 • People v. Kimble, No. SOO4364 426 Ivi • • People v. Kipp, No. SOO4784 426 People v. Livaditis, No. SOO4767 425 People v. Lucas, No. SOO4788 423,425 • People v. Lucero, No. S012568 427 People v. McLain, No. SOO4370 424,427 People v. McPeters, No. SOO4712 425 People v. Melton, No. SOO4518 426 People v. Miranda, No. SOO4464 424 1. People v. Morales, No. SOO4552 423,424 People v. Os band, No. SOO5233 424 :. People v. Padilla, No. S014496 425 People v. Reilly, No. SOO4607 426 People v. Samayoa, No. SOO6284 426 •• People v. Scott, No. S010334 426 People v. Stewart, No. S020803 424 I' People v. Visciotti, No. SOO4597 424. People v. Waidla, No. S020 161 425 I. People v. Webb, No. SOO6938 425 People v. Williams, No. SOO4365 424 People v. Zapien, No. SOO4762 423,425 • lvii IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, No. A711739 Plaintiff and Respondent, vs. STANLEY BRYANT, DONALD FRANKLIN SMITH, and LEROY WHEELER Defendants and Appellants. California Supreme Court No. S049596 APPELLANT DONALD SMITH'S OPENING BRIEF STATEMENT OF APPEALABILITY This is an automatic appeal from a verdict and judgment of death. (Cal. Const., art. VI, § 11; Pen. Code, § 12391, subd. (b).) mTRODUCTORYSTATEMENT Appellant Donald Smith and co-appellants Stanley Bryant and Leroy Wheeler were sentenced to death after being convicted of four counts of murder. A fourth defendant, Jon Settle, tried for the same offenses in the same trial, later entered a guilty plea to four counts of voluntary manslaughter after the jury was deadlocked eleven to one on his guilt. The prosecution's theory was that Bryant's2 family operated a large-scale narcotics organization, which employed the other defendants. The victims were 1 Unless otherwise indicated all statutory references are to the California Penal Code. 2 Many of the people involved in the case are members of the Bryant and Settle families. Several witnesses, not related to appellant, also had the last name "Smith." As used herein "appellant" refers to Donald Smith. Co-defendants Bry- ant, Wheeler, and Settle are referred to by their last name. Other people with the • • • • • • • • • • • • • • killed when one of them, Andre Armstrong, a fonner Bryant family employee, went to speak to Bryant about compensation for having "taken the rap" for a mur- der and an assault Armstrong had committee for the Bryant family. Ten other defendants, four of whom were originally were charged with of- fenses which made them eligible for the death penalty, were severed from the case3• The evidence against appellant consisted primarily of the accomplice testi- mony of James Williams, originally a capital defendant, who received immunity for his testimony. Commenting on the weakness of the case against appellant, the trial judge noted several times that apart from Williams's testimony, no evidence linked appellant to the offense nor was there corroboration for Williams's testi- mony. A substantial portion of the trial involved proving the scope of the narcotics organization. Because there was no physical evidence linking appellant to the crime, the vast majority of the evidence and exhibits at trial did not relate to appel- lant's guilt. Evidence connecting appellant to the organization came primarily from Williams and was insubstantial, especially when compared with not only the other defendants in this appeal, but also to other severed defendants. As a result, large portions of the trial not relevant to appellant are only summarized as it becomes relevant to specific issues raised by appellant. Many of the errors at trial were a result of the fact that the case was simply too big to try, echoing concerns expressed by one of the early judges assigned to the matter. 3 Appendix A consists of a list of the severed defendants originally charged in this case. The defendants who were also charged with the murders and with death- eligible special circumstances include Tannis Curry, Antonio Johnson, Nash New- bill, and James Williams. Tannis Curry, Bryant's ex-wife, is at times referred to by her first name to avoid confusion with Keith Curry, her second husband, an- other witness in this case. 2 The case was tainted by the fact of a joint trial with other defendants, against whom there was a disproportionately large amount of evidence, by the court room misconduct of Settle, who represented himself, by the improper admis- sion of hearsay, by the improper admission of evidence of other crimes committed by appellant and other people, much of this evidence introduced as a result of the joint trial, and by the incorrect jury instructions given to explain the purpose of "other crimes" evidence. The prejudice was compounded by the misconduct of the prosecutor con- tributing to, or capitalizing on, these errors. As will be shown, many of the errors were interrelated, increasing the level of prejudice. 3 • • • • • • • • • • • • • • • '. • • STATEMENT OF THE CASE A. Guilt Phase Appellant and co-defendants Bryant, Wheeler, and Settle were tried for four counts of first degree murder and one count attempted murder. (Pen. Code § 187, subd. (a), counts 1 through 4, inclusive, and Pen. Code §§ 664/187, subd. (a), Count 5).4 (CT 1696-1705,4770-4771,4744-4756, 4780-4788.) The multiple- murder special circumstance of section 190.2, subdivision (a), paragraph (3) was alleged as to each defendant. (CT 4946-4954.) James Williams and Tannis Curry, Bryant's ex-wife, were both originally charged as capital defendants for the same crimes and special circumstances as appellant. They were granted immunity in exchange for their testimony. (CT 4968-4973,5254, RT 12278, 13051-13052, 16093-5-16093-6.) At trial, there were several errors relating to accomplice testimony, includ- ing the following: 1. There was insufficient evidence to corroborate accomplice testimony (Argument I-A); 2. The court failed to correctly instruct the jury that Williams and Tannis were accomplices as a matter of law or that Tannis may have been an accomplice (Argument I-B); 3. The court erred in failing to re-open jury deliberations when the jury submitted a question regarding the determination of accomplice status, a question that related to the testimony of Williams and applied to appellant, after the jury had convicted appellant but was still deliberating as to Settle,. (Argument I-C); 4 Appellant was also charged with other offenses, eventually severed from the in- stant trial, including conspiracies to commit murder (Pen. Code §§ 1821187, subd. (a)), to operate a major narcotic sales business (Health & Saf. Code § 11352), to flee to avoid prosecution (Pen. Code § 32), and to sell or transport a controlled. substance (Health & Saf. Code § 11352(a)). Similar counts were alleged against Bryant, Wheeler, and Settle. 4 4. The court erred in instructing the jury that an aider and abettor may be a principal in the offense only if that person is "equally guilty." (Argument I-D); 5. The court erred in telling the jury that only "slight" evidence was needed to corroborate accomplice testimony. (Argument I-E) 6. The court erred in failing to exclude Tannis Curry from the instruction given to the jury in CALJIC No. 2.11.55• (Argument I-F) The trial court severed the non-capital defendants and all counts other than the murders and the attempted murder from this case. (CT 10749, 11162; RT 4105,4251.) After the court granted Settle's request for self-representation, the court de- nied a request by Bryant and appellant to sever Settle's case. (CT 13756; RT 6071-6088,6129,6144.) (Argument II.) The court also denied appellant motion requesting that his case be severed from that of Bryant and Wheeler. (CT 1917, 2743-2745, RT 4592-4595.) (Ar- gument III.) Over defense objections, the prosecution was allowed to introduce evidence under Evidence Code section 1101 of other bad acts of appellant, including evi- dence that appellant had shot Keith Curry, Bryant's ex-wife's second husband, and the fact that appellant was arrested in possession of a large amount of cocaine after a high-speed chase. (Argument IV.) The jury was given improper instructions as to how it could use evidence of other bad acts of appellant and the other defendants. (Argument V.) Throughout the trial, numerous items of hearsay evidence were introduced, although there were no exceptions that would have allowed for the introduction of this evidence. (Argument VI.) Over appellant's objections, the prosecution was allowed to introduce grue- some photographs of the death scenes of the victims. (Argument VII.) 5 CALJIC No 2.11.5 instructs the jury not to speculate as to why other people who may have been involved in the offense were not being brought to trial. 5 • • • • • • • • • • • • • ,. • I • " '" til r miliU Through out the trial, the prosecution engaged in various forms of miscon- duct, including, but not limited to, making misrepresentations to the court, arguing facts for which there was no basis in the evidence, and engaging in an appeal to the fears and emotions of the jury. (Argument VII.) The trial court erred in admitting evidence of gruesome and inflammatory death photographs of the victims' bodies. (Argument VIII.) Over appellant's objections, he was required to wear a "REACT" stun belt, although there was no showing of necessity for that device at to appellant. (Ar- gument IX.) The trial court erred in refusing to make inquiries into the ability of a hear- ing-impaired juror to hear the testimony and arguments presented in this case. (Argument X.) The trial court committed error in repeatedly informing the jury as to the expense of the triaL (Argument XL) The instructions given to the jury improperly allowed the jury to find guilt based only upon a finding of motive. (Argument XII.) The trial court erred in not instructing the jury to limit its consideration of the evidence against appellant to the evidence that had been introduced in the prosecution's case in chief. (Argument XIII.) The jury found appellant guilty of four counts murder and one count of at- tempted murder. Counts 1 and 2 were found to be murder in the second degree. Counts 3 and 4 were found to be murder in the first degree. The jury found the special circumstance allegation of multiple murders to be true. (CT 15270-15275, 15406-15407, 15419-15424; RT 17074-17076.) The jury also found co-defendants Bryant and Wheeler guilty of four counts of first degree murder and one count of attempted murder, fmding to be true the multiple-murder special circumstance. (CT 15248-15249, 15260-15269, 15276-15277, 15403-15418; RT 16930-16931, 17070-17072, 17072-17074.) 6 h .• ROO The jury was unable to reach a verdict on any counts alleged against Settle, and a mistrial was declared as to Settle. (CT 15443, 15454; RT 17137-67 to 17137-69, 17137-70.) B. Penalty Phase The trial court erred in excusing two prospective jurors for cause despite their willingness to fairly consider imposing the death penalty. (Argument XV.) The trial court improperly coerced a death verdict after the jury had twice declared itself deadlocked and then erroneously substituted an alternate when a juror had to be excused, and it was not practicable for the jury to begin its penalty deliberations anew. (Argument XVI.) The trial court erred in ruling on the automatic motion under section 190.4 to modify the sentence. (Argument XVII.) The prosecutor engaged in misconduct in denigrating the mitigating evi- dence presented by the defense. (Argument XVIII.) The trial court committed numerous instructional errors relating to the jury's decision to impose the death penalty. (Arguments XIX-XXIII.) The jury returned verdicts of death for Wheeler and Bryant for each of the four counts of first degree murder. (CT 15252-15259, 15789-15794, 15851-15852, 15855-15858; RT 18674-18675, 18747-18749.) Thereafter, the jury returned a verdict of death for appellant for Counts 3 and 4. Appellant was given two consecutive sentences of fifteen-years to life in prison for the second degree murders and a term of nine years for the attempted murder. The court imposed the death penalty for Bryant, Wheeler, and appellant. (CT 15250-15251, 15853-15854; 15858-15859, 16218-16226, 16230-162321, 16241, 16235-16254; RT 18825-18829, 18761-18762, 18805-18811, 18761- 18762, 18823-18829.) 7 • • • • • • • • • • • • • • • • • • • C. Events Occurring After Sentencing The trial court denied the automatic motion to reduce the death penalty to life in prison. On January 9, 1996, Settle pled guilty to four counts of manslaughter and one count of attempted murder and received a total sentence of twenty-one years and four months in prison. He was granted 2,452 days custody credits. (CT 16171, 16179, 16233.) Antonio Johnson and Nash Newbill, two of the original capital defendants, plead guilty to conspiracy to commit a crime, and were sentenced to five years in prison. Johnson received 44 days custody credits, and Newbill received 2123 days custody credits. (RT 16227-16228.) 8 STATEMENT OF THE FACTS GUILT PHASE A. Crime Scene Evidence and Witnesses to the Murders of Andre Arm- strong, James Brown, Loretha Anderson, and Chemise English, and the At- tempted Murder of Carlos English On August 28, 1988, Lucila Esteban was living at 11433 Wheeler Avenue in Lake View Terrace. At around 5:00 p.m. she saw a man holding a rifle and run- ning down the driveway of the house at 11422 Wheeler, across the street from her house, to a red car. The man shot into the passenger side of the car, ran to driver's side, shot out the window, got in the car, and drove away. (RT 8436-8437, 8439- 8440, 8445-8446.) Earlier, Esteban had noticed the red car slowly driving down the street, as if the driver was looking at the numbers of the houses, before stopping at 11442 Wheeler. (RT 8438-8439, 8454.) After the red car drove off, Esteban saw a white EI Camino pull up to the space where the red car had been parked. The driver of the EI Camino went into 11422 Wheeler, returned carrying some packages, and drove off. (RT 8447- 8448.) Esteban then saw an older green car pull out of the garage area of the house. (RT 8449.) Manuel Contreras was visiting his sister who lived next door to Esteban. He heard a noise that he thought was a car getting a flat tire. (RT 8501, 8506 8521.) A few minutes later he heard what he thought was a shotgun being fired four times. (RT 8501.) Going to the front of the house, he saw a black male with a shotgun near the driver's side of a red car. (RT 8502-8503, 8505.) The man was over six feet tall, with short hair, between 20 and 30 years old, and of "medium size." (RT 8503.) 9 • • • • • • • • • • • • • • • • • • After the red car drove away, Contreras saw a heavy black man with long hair and a mustache and beard come out of the house, get into a white El Camino, and drive off in the same direction as the red car. (RT 8506-8508B.) After the El Camino left, a green car came out of the garage, with two peo- ple in the front seat and two people in the back seat of the car. The people in the back looked like they were holding onto and leaning against each other. (RT 8510A.) Jennifer Daniel lived on the cuI de sac adjacent to the 11400 block of Wheeler Avenue. (RT 11847-11848.) Daniel was sitting on her front porch, when she heard what sounded like three muffled gunshots coming from inside 11442 Wheeler. CRT 11849-1850.) About a minute later, she heard a second series of shots that did not sound muffled, but sounded like it was coming from outside. (RT 11851-11852.) Daniel looked down the street and saw one car backing out of the driveway, and a red car coming down the street from the direction of 11442 Wheeler Avenue. (RT 11852-11853.) Daniel tried to get the license plate of the red car, a Toyota Camry, only managing to get three digits, 2, F, and P, which she gave to the police. (RT 11860-11861, 11856-11858, 11869.) She described the driver as a black male, with short hair, a white T-shirt, with a medium build, towards the skinny side, be- tween 18 and 30 years old. (RT 11833-11859.) She identified a photograph of Wheeler as the person that she saw driving the car. She also identified Bryant as that person6• (RT 11862-11865.) At around 5 :00 p.m., Dwayne Brown was in his yard at 11311 Osborne Street with Kim Brown, a friend, when a neighbor came by and asked if he knew who owned a car that was parked in her driveway. (RT 8567-8570.) Dwayne 6 She testified she did not get a good look at the driver. On two prior occasions, she was unable to make an identification from pictures she was shown. (RT 11881-11883.) The first identification was of Bryant, the morning she testified, seven years after the murder. (RT 11884.) She was positive, but mistaken, that Bryant was the person she saw. (RT 11893.) 10 went over to the car which was the red car seen at Wheeler Avenue. The rear window had been smashed out. Dwayne noticed three bodies in the car, later iden- tified as Carlos English, Chemise English, and Loretha Anderson. A lot of blood was in the car. (RT 8570-8572, 8575-8576.) Carlos woke up and started crying, and Kim pulled him out of the car. (RT 8573.) Carlos had blood and scratches on him. (RT 8574.) Officers Lynn Blees and Carol Posner were the fITSt Los Angeles Police Department (LAPD) officers to respond to a call regarding 11442 Wheeler Ave- nue. (RT 8534.) They were told there had been shooting, and that a man had fired shots into a red car, got in the car, and drove off. (RT 8533-8534.) Shattered ve- hicle glass was found in the street. (RT 8535.) A large pool of blood was on the front porch of 11442 Wheeler Avenue. (RT 8535-8537.) A steel-grate type of door was open, and Bless saw what ap- peared to be a large chunk of scalp, several bullet holes, and hair in the entry area. (RT 8538.) A piece of glass recovered from Wheeler Avenue was compared glass from the red car at Osborne Street, was found to have similar characteristics, and could have come from the same source. (RT 12005-12006.) Detective Vojtecky of the LAPD also responded to Wheeler Avenue, which he described as heavily fortified. The front door had a metal grate, which opened into a 4 by 4-foot porch area, with another metal door at the entrance of the house, forming a sally port between the two doors. (RT 8603-8604, 8611, 8613-8614.) Vojtecky observed the blood on the porch, bloody shoe prints, drag marks from the blood on the porch, into the sally port, and into the rear of the house near the garage. He also observed the piece of scalp and hair lying in the sally port area. (RT 8214, 8586, 8593-8594, 8591, 8597-8598, 8601-8603, 9598-9599.) Bullet fragments and expended shotgun casings were found inside the house. (RT 8599- 8600.) 11 • • • • • • • • • • • • • • • • • • • • • Blood spatterings were on the wall, and there were two large pools of blood near the front door. (RT 8600.) An empty, open safe was in the closet. (RT 8600.) A bullet hole was observed in the shower door. (RT 8601.) Some of the blood at the front door and the piece of scalp were later deter- mined to have belonged to James Brown, also known as Tommy Hull, one of the victims. The piece of scalp had been blown off Brown's head by a gunshot blast. Other blood was consistent with blood from Andre Armstrong, another victim. (RT 8335-8336,8362, 8365-8366,8751, 13538-13587.) Expended shotgun casings and .45 caliber casings were in the living room near the hallway, the entryway, and the kitchen. (RT 8621-8624.) Fragments from other bullets and shotgun rounds were also found in the house, including fragments found in the sally port and double-O buckshot pellets in a linen closet along the west side of the hall. (RT 8624-8625.) The trajectory of the pellets in the linen closet indicated that the shotgun had been fired in the bathroom with the pellets going through the shower wall. (RT 8625.) No toothpaste, cosmetics, or similar items were found in the bathroom. (RT 8654-8655) The refrigerator was mostly empty and no foodstuffs were in the cabinets. (RT 8655.) A list of phone and beeper numbers with initials and/or names was found on the wall of the kitchen. (RT 8699.) A document referred to as "a ninety-minute schedule," a list of names, was found on a piece of paper on the wall of the living room. (RT 8694.) Other items of property seized at Wheeler Avenue included various papers in different parts of the house. Identification papers, a bank book, and a gas bill for Anthony Arceneaux with address 11236 Adelphia was found. Also found was mail addressed to Jeff Bryant, a piece of paper with name "Tommy" and a phone number, post-its with numerical notations, mail addressed to William and Andrew Settle and Nash Newbill,. (RT 8694-8698, 8708-8709, 8762-8763, 8778-8780.) 12 A shotgun wadding and three copper-jacketed .38 or .357 caliber rounds were recovered from the floor of the Camry. CRT 8674-8775.) On September 1, 1988, Vojtecky went to Lopez Canyon, about 4.7 miles from the Wheeler A venue residence, where he saw two badly decomposed bodies, later identified as Armstrong and Brown. One of the bodies had an injury to the skull. The hair on that body was similar in length and texture to the scalp found at Wheeler Avenue. CRT 8712-8714.) On Armstrong's body they found his address book, which contained the Wheeler Avenue address along with the name Stan Bryant, and phone numbers later connected to various people in the case. CRT 8746-8749.) On Brown's body they found a piece of paper with the Wheeler Avenue address and a phone number, later traced to William Settle for the Wheeler Ave- nue residence. CRT 8749, 11089-11090.) Bryant's name and phone number for his Judd street address appear in Brown address book. CRT 8754.) .. Anthony Paul, a firearms examiner, examined the photographs of Ander- son. The abraded marks and scarring on Anderson were consistent a shotgun hav- ing been fired through the window of the car, causing the glass to become "secon- dary missiles," striking Anderson. (RT 13154-13155.) Paul examined five shell casings and an expended shotgun casing found in the entrance way of the Wheeler Avenue house and two in a trash can in the dining room. CRT l3162-l3164.) The casings recovered from the scene had been fired through three different shotguns. (RT l3163-l3166, l3175-l3177, l3185-l3186.) He examined the three projectiles recovered from the Camry and two pro- jectiles recovered from the body of Anderson. He determined that all were fired through the same gun. CRT l3173-13175.) 13 • • • • • • • • • • • • .. • • • • • • • • • j t g- r f a,i- t it Q Ii • ' !1 -ii!5 - 'WiT 11 ,,-.' i ,- iii n I 11' B. Cause of Death Dr. James Ribe, conducted the autopsies on Armstrong, Brown, English and Anderson. (RT 8280-8282, 8295.) English died from a bullet wound to the nape of the neck. The gun would have been less than 12 inches away from Eng- lish when it was fired. (RT 8288-8289, 8299.) Ribe removed numerous buckshot projectiles from Anderon's side and two handgun bullets from her body. (RT 8302-8303.) Ribe also observed "blast abra- sions" caused by a shotgun blast, on her face and arm and two shotgun wounds. A shotgun wound to the right side of her abdomen was "fatal." He testified it was fired from less than four feet away. (RT 8305-8307, 8315, 8521.) Armstrong was in "moderate state" of decomposition, with partial destruc- tion of his eyeballs and distortion of his facial features, early mummification of his skin, extensive slipping of top layer of skin, and extensive maggot activity. (RT 8337-8338.) Because of the state of the body, it would not have been possible to see a gunshot wound on his abdomen. (RT 8339.) Armstrong had a shotgun wound to the right side of his head above the ear, fired from close range, and a piece of his scalp had been blown away (RT 8340, 8341, 8354.) Two pieces of wadding from a shotgun were found in Armstrong's head. (RT 8343.) He also had a fatal shotgun wound to the center of his chest. (RT 8344-8345, 8347.) An exit hole in Armstrong's back was probably caused by a handgun. (RT 8346.) Brown had both entrance and exit wounds to his back. (RT 8353.) There was a contact wound to Brown's chest, with the bullet exiting his back after pass- ing through his heart and lung. CRT 8369-8371.) The wounds to his back con- sisted of a wider spread of shotgun pellets, indicating the shotgun was further away when fired. CRT 8353.) 14 c. The Motive - The Murder of Gentry and the Shooting of Goldman On May 27, 1982, Ken Gentry was fatally shot at an apartment complex at 12601 Pierce Street in Pacoima. On April 23, 1982, Reynard Goldman was shot and injured while leaving his house. (RT 9257,9284-9285.) Armstrong, Bryant and Bryant's brothers, Jeff and Roscoe Bryant, were ar- rested for the Gentry homicide, although only Armstrong was tried for the crime. (RT 8790-8791, 8803-8804, 8808-8809, 9144-9146.) He was convicted of first degree murder for the shooting of Gentry and assault with a deadly weapon on Goldman. (RT 9398-9400.) After the conviction was reversed on appeal, he pled guilt to voluntary manslaughter and assault with a deadly weapon and was sen- tenced for a term of nine years. (RT 9401-9402.) On July 16, 1988, Armstrong was paroled from Folsom Prison into the cus- tody of Missouri law enforcement officers. On July 21, 1988, Armstrong was re- leased from custody in Missouri. (RT 9403-9404.) Armstrong had $13 on him and was living in a 1970's Cadillac when he was arrested. (RT 8813, 9324-9335.) There was nothing to indicate that he had re- ceived $15,000.00 shortly before his arrest, as he had no cash, jewelry, bankbooks, or other significant property. (RT 8814-8815.) Detective Harley investigated the homicide of Charles Gentry, Ken Gen- try's father, about a year after Ken Gentry's homicide. He interviewed Armstrong to see if the two crimes were connected '. Armstrong told Harley that the Bryants had paid him $2,000 to shoot Goldman and $15,000.00 to kill Gentry (RT 9405- 9408, 9439-9440, 9442.) 1 People's Exhibit No. 74, a tape of the Armstrong interview, was played for the jury. (RT 9415, 9417.) 15 • • • • • • • • • • • • • • • • • • • • 1. The Gentry Murder Barron Ward was with Gentry when Gentry was shot. (RT 9009.) Gentry was working on his car, when a Volkswagen drove into the parking lot. (RT 9010-9012.) Barron approached the VW to see if the passenger wanted some "weed." As he got near the car, the driver pulled a gun and pointed it at Barron who ran away. (RT 9012-9014.) Barron heard several shots. (RT 9014, 9019.) About two minutes later, he returned to the front of the apartment, where he saw Gentry lying on the ground. (RT 9014, 9016.) About 15 or 20 minutes later, Barron saw a green Cadil1ac go by. At trial, he testified that he did not remember seeing Bryant, although earlier he had identi- fied Bryant as the driver of the Cadillac, calling him Jeff. (RT 9020-9023, 9033- 9034, 9047-9048.) Barron previously had expressed reluctance about testifying because of possible harm that might befall him if he were to become a witness. (RT 9027-9028, 9045-9047.) Benny Ward was also with Gentry when Gentry killed. (RT 8923-8924.) When interviewed, Ward said that prior to the shooting Gentry said, "There goes those niggers that I got a beef with. It Benny saw a Bryant in a brown Cadillac go- ing westbound on Pierce Street. (RT 8986-8987.) At trial, Ward did not recall seeing the Cadillac or hearing Gentry making these statements. He testified that the officers who interviewed him were "feeding" him information that they wanted him to say. (RT 8926-8927-8940.) Before the shooting, Gentry's stepsister, Sofina Newsom, saw a Cadillac and a Volkswagen slowly drive by on Pierce Street near the parking lot where Gentry was working on his car. (RT 9148, 9155-9156, 9157-9159-9160, 9187- 9188, 9199-9200.) Bryant was driving the Cadillac. (RT 9158, 9172-9173.) Shortly after Gentry was shot, Newsome saw Jeff and Bryant drive by the parking lot. (RT 9166-9176.) Previously, Gentry had told Newsome about being involved in a bad dope deal. Gentry said that he had vandalized Roscoe Bryant's van. (RT 9170.) t6 Rhonda Miller identified Annstrong in a line-up as the person who left the scene in a VW after Gentry was shot. (RT 9066-9067, 9069-9071, 9090-9091, 9093.) Before the preliminary hearing in the Annstrong case, Miller was visited by two women, Rochelle (Rolo), Jeff Bryant's fonner girlfriend and Tannis Curry, who was married to Bryant at that time. Rochelle gave Miller an envelope of money, saying it was from Jeff. At first, Miller refused to take the money, later accepting it when Alvin Brown, Miller's boyfriend, got mad that she refused the money. (RT 9094-9100, 9098-9103, 13056.) At Annstrong's preliminary hearing, Miller recanted her identification of Armstrong. (RT 9104.) At trial in this case, she testified that that recantation was not the truth. (RT 9105.) On June 3, 1982, Detectives David Stachowiski and Larry Tucker inter- viewed G.T. Fisher. (RT 8640-8641.) Fisher said that he, Gentry, and Michael Flowers were friends, they had bought some bad dope from Roscoe Bryant, and they went back to get a refund, which Roscoe refused to give them. In retaliation, about a week before Gentry was shot, they stole Roscoe's van and "trashed" it. They were seen taking the van. (RT 8642-8648.) In another interview, Fisher said Bryant drove by with Annstrong before the Gentry homicide, and that he saw Bryant nod in Gentry's direction and point out Gentry to Armstrong. (RT 9370-9372.) At trial, Fisher denied making these statements. (RT 8883-8887, 8895, 8899, 8957-8958.) Vojtecky was present dur- ing an interview ofG.T. Fisher on February 22, 1995, when Fisher expressed con- cerns about testifYing. (RT 9369-9370.) Detective Tucker testified that he interviewed Flowers who repeated Fisher's story. (RT 8860-8862.) At trial, Flowers also denied making the state- ment. (RT 8828-8829,8830-8839.) 17 • • • • • • • • • • • • • • • • • • ~ ,,"w iliA f' j ,- -.11it 1 tit 2. The Assault on Goldman Reynard Goldman knew Bryant and Jeff. He used to buy cocaine from Jeff. (RT 9243-9244, 9246-9247.) When Goldman quit using cocaine, he owed $50 to Jeff. (RT 9250-9251.) Although Goldman made efforts to pay Jeff, he was unable to do so, and eventually Jeff accused Goldman of avoiding him. Jeff said that Goldman should either pay him or get a gun. (RT 9252-9253, 9290.) About a week later, as Goldman was leaving his house, a man who had been sitting in front of his house fired several shots at Goldman, hitting Goldman in the head and ann. (RT 9253-9254, 9257-9258.) He identified a photograph of Annstrong as the person who shot him. (R T 9285-9255.) Before the preliminary hearing on the Goldman/Gentry case and th.e trial in this case, people associated with the Bryant family attempted to dissuade GQldman from testifYing. (RT 9261-9266,9304-9305-9308.) D. The Bryant Family Organization In late 1984, LAPD Detective Dumelle became aware of the Bryant family, which had become the focus of the narcotics division's attention in the Northeast San Fernando Valley. (RT 9635-9636, 9663.) The organization employed be- tween 150 and 200 people. Its members included Jeff, Stan, Roscoe, and Ely Bry- ant, Antonio Johnson, William Johnson (AKA Amp), Ladell Player, Lawrence Walton, and members of the Settle family. (RT 9635-9636, 9703-9704, 9952- 9953,9891.) Jeff Bryant headed the organization. (RT 9662-9663.) Detective Lambert believed that Bryant ran the organization when Jeff was in prison. (RT 9944- 9945.) Nash Newbill was a high-ranking member of the organization. On New- bill's business card he was described as the manager of Neighborhood Billiards at 13179 Van Nuys Boulevard, owned by John Bryant. (RT 9949, RT 9606.) In an 18 d. interview with the police in 1992, Bryant gave Neighborhood Billiards as his business address. (RT 9341.) At the time of the murders, 11442 Wheeler Avenue had been quit claimed to Nash Newbill. (RT 9916.) Prior to trial, William Settle had entered a guilty plea, admitting to being the bookkeeper for the Bryant organization. (RT 9937.) The people who worked for the Bryant family got paid vacations, $1,000.00 per week, and use of a company car. They were told not to dress in a flashy man- ner, so as to avoid attracting the attention of the police. CRT 11216, 11219, 11242.) Alonzo Smith8, who had worked at one of the drug houses run by the Bry- ants, told the police that Bryant and his brother, Ross, kept the competition away. (RT 11217.) Alonzo said that Bryant treated Wheeler like a brother. CRT 11219.) He said that Bryant was running the operation in 1988, while leffwas in custody. (RT 11222, 11231.) If people wanted to purchase drugs, they would pay for the drugs at one lo- cation, and then be directed to another location where they would pick up the drugs. (RT 10547-10550.) There were also "roving sales" locations that would be shifted in order to avoid detection. A dealer would call the pool hall to report when he moved his location. (RT 10559-10560, 10691-10692.) A company car, a little red Toyota, was used to make quarter kilo deliveries to purchasers. CRT 10584-10585.) E. Raids on Drug Houses 1. Pre-Homicide Searches In 1985, names of the Bryant family "continually popped up" during an in- vestigation by Detective Uribe and his partner, Detective Dumelle, into "rock 8 Alonzo Smith is not related to appellant Donald Smith. CRT 10468.) 19 • • • • • • • • • • • • • • • • • • • • • houses" in the Lake View TerracelPacoima area. Typically all of the rock houses were "well fortified," with electronically controlled cages at the front of the house. (RT 9536-9537.) a. De Haven Avenue and Judd Street On June 27, 1984, residences at 10743 and 10731 DeHaven Avenue in Pa- coima were searched. (RT 9582.) At 10743 De Haven, Jeffs residence, the po- lice recovered a small amount of a substance resembling cocaine and close to $6,500 in currency. (RT 9583, 9594, 9598.) At 10731 DeHaven, Eli Bryant's residence, they found a safe in the bedroom containing $20,000. On April 18, 1985, Dumelle obtained search warrants for Jeff Bryant's house, where he found a half kilo of white powder used to cut narcotics. Also found were tax documents and payment books for the three houses at 13031 and 13037 Louvre and 11442 Wheeler Avenue. (RT 9636-9637, 9596, 9598, 9638- 9640.) h.11442 Wheeler Avenue On January 12, 1985, Ernest Guzman, a narcotics detective, served a search warrant on 11442 Wheeler Avenue, a single-family residence with bars on all the windows and the front door equipped with a black steel-grated door. (RT 9983.) A SWAT team gained entrance by prying open the front door. (RT 9984.) After passing through the front door, one had to pass through a second steel-grated door. Guzman found 46 bin dIes of a substance resembling cocaine in the toilet. A carton labeled battery acid was in the bathroom. (RT 9985, 9987-9988.) Be- cause of the scarcity of furniture, clothes, and food, it appeared that nobody was living in the house. (R T 9986.) 11442 Wheeler Avenue was searched again on March 22, 1985. (RT 9647- 9649.) Inside the house there were a couple of crock-pots tipped over with an oily substance around them. Also found were "pays and owes," documents retlectiug 20 narcotic transactions. Kenny Reaux was in the house. (RT 9652.) Again, the residence had sparce furnishings and/or food. (RT 9653.) Cocaine found in the crock-pot weighed close to four ounces. (RT 9660.) The use of a crock-pot and hot oil as a means of destroying evidence and the cages in the entrance to the houses were unique features to houses associated with the Bryants. The Bryant rock houses were also unique in that people did not live in the houses, which were used only for business. (RT 9657, 9643, 9791- 9793.) c. 13031 Louvre Street At the search of Jeff's residence on June 27, 1984, Jeffs vehicle was stopped and searched and keys were seized. (RT 9588, 9590, 9596, 9596-9577.) The police then went to 13031 Louvre Street, which they could enter with the keys taken from Jeff. The front wooden door was covered with a steel frame with black screening material. (RT 9589,9590,9596-9597.) The house was heavily barredand fortified. (RT 9588-9589, 9591.) In the house, the police found baggies of cocaine, a crock-pot with hot oil with about 75 individual bindles in the oil, and papers in Jeff Bryant's name. (RT 9591, 9593, 9597.) There was little furniture and no clothes, food, or cooking utensils in the residence. (RT 9593.) Danny Miles, the person in the house did not have any keys on his person, and had been locked in the house. (RT 9594.) At that time, Jeff and Florence Bryant owned the residence. (RT 9597- 9598.) On March 5, 1985, the residence at 13031 Louvre Street was raided again. The house had a cage at the front door, which the SWAT team removed. (RT 9550-9552.) Kenny Reaux was in the residence. (RT 9552.) The police found a spilled crock pot containing cocaine and Wesson oiL (RT 9553-9554.) There was no food, pots or pans, or clothes in the house. (RT 9553.) "Pays and owes" were found in the house. (RT 9554.) 21 • • • • • • • • • • • • • • • • • • • '. • • In 1985, Edward Kadar, a carpenter, was hired by Antonio Johnson to work on two houses on Louvre Street and one on Wheeler Avenue, which had been raided by the police with a battering ram. Kadar strengthened the fortifications on the house. Kadar was paid by Bryant, who also had a locksmith work on the house. (RT 9676-9678,9680-9682, 9683-9687.) d. 13037 Louvre Street On February 6, 1985, a search warrant was served on l3037 Louvre Street, a "rock house," with the windows and doors heavily barred and an electronically controlled cage on the front of the house. The SWAT team used a battering ram to enter through a bedroom wall. (RT 9641-9642, 9644.) Inside the house, the po- lice found equipment to convert powder cocaine into rock cocaine. (RT 9644- 9645.) Also found were IIpays and owes." (RT 9646.) The property was in Jeff's name. (RT 9646.) Shortly after the entry into the house by the police Antonio Johnson arrived at the house, saying that it was his residence. (RT 9647.) e. Search of Stan and Jeff Bryant's Residences On April 18, 1985, warrants were served on Jeff and Bryant's houses. (RT 9539.) At Bryant's house the police recovered a calendar with Roman numerals and writing on it, similar to one recovered during an earlier raid at 10301 Louvre Street. (RT 9540, 9543.) Also recovered were papers relating to the arrest of Reaux at 11442 WheelerAvenue. (RT 9540-9543, 9545-9548.) 2. Post-Homicide Searches a. Adelphia Street and Fenton Street On September 29, 1988, the residence at 11236 Adelphia was searched. (RT 9787-9790.) At the front door of the location there was a caged area similar 22 to the one at Wheeler Avenue. (RT 9790-9791.) The Adelphia house was listed under the name of Eddie Barber, a high-ranking member of the organization. Inside the residence the police found a metal pot containing oil, a triple- beam scale, and a slip of paper with phone numbers. (RT 9781, 9794.) Also found were baggies containing cocaine, and inventory records of drug sales. (RT 9795-9800.) During surveillance at the Adelphia residence and a house on 11649 Fenton Street, it was observed that people would go to the door at Fenton, stay a short pe- riod, and then go to Adelphia, where they would also go to the front door for a short period, before returning to their cars. (RT 9785-8787.) Papers found at Adelphia corresponded to papers recovered from the house at Fenton Street, containing inventory control information. The buyer would pay money at a residence on Fenton Street, receive a post-it note, and pick up the drugs at Adelphia. (RT 9800-9805,9813.) Narcotics recovered at Adelphia, particularly the 'li ounce quantities, had rounded edges as if they were cut like a cookie. If you put two together, they were the approximate size of the bottom of a Pyrex beaker. (RT 9836-9827.) On September 29, 1998, a search warrant was also served at the 11649 Fen- ton Avenue residence, also a fortified residence with a caged area at the front door. (RT 9695, 9697-9698.) In the living room was a table with several telephones, currency, and various papers. (RT 9698-9699.) Lawrence Walton was arrested inside the residence. (RT 9699, 9831.) The Fenton property was in the name of Eddie Barber. (RT 9835.) $1,407 was seized. (RT 9798-9799.) Fenton was the "slip" house, where money was taken in. As money accumulated, it would be picked up and taken to 11442 Wheeler Avenue. (R T 9823.) 23 • • • • • • • • • • • • • • • • • • • b. Carl Street On October 14, 1988, a residence at 11943 Carl Street was searched. CRT 9806.) The front entrance of Carl Street had an iron door that led into an alcove, fonning a cage with another door. CRT 9814.) In the house, a notebook was found containing financial records showing an accounting of money taken in. CRT 9816.) Also seized were papers in a fonn similar to inventory and accounting documents seized at other locations. (RT 9820-9821.) Some of the papers found had the notation "SLM" which Detective Lam- bert testified stood for "Slim," Wheeler's moniker. CRT 9828.) Another had the , notation "SB," for Bryant, indicating he withdrew $1,000. CRT 9829-9830.) Lambert identified Exhibit 96 as a page from the material seized at Carl Street, showing drug transactions. Lambert testified that "L" on the document stands for Wheeler. (RT 9958-9959.) Other papers included utility and phone bills in the names of people in the Bryant organization and delinquent parking notices in the names of Nash Newbill and Antonio Johnson. (RT 10138-10140, 10148-10151.) No clothing was found at the Carl Street location. (RT 9820.) Items asso- ciated with drug sales and manufacture were found at Carl Street. (RT 9832-9833, 9836.) The houses on Wheeler, Fenton, Carl, and Adelphia and a house on Van- port Street9, are within a three-to-four square mile area of each other. (RT 9811.) F. Andre Armstrong - Post-Prison, Pre-Homicide Activities with Brown After Annstrong was released from prison, he stayed with his sister Deborah Marshall in St. Louis. (RT 10471-10473.) Although she did not know anyone in 9 Another drug house with traits similar to the other Bryant houses. One witness testified that she transported containers to that house for Settle. For a while the house was in Settle's name. (RT 9106-9108, 9747-9750, 9757-9758, 10661- 10663.) 24 the Los Angeles area, when she got her phone bill for that period, there were sev- eral calls to Southern California. (RT 10474.) Delores Brown, Armstrong's mother, was also living in St. Louis. CRT 10510- 10513.) Before Armstrong left for Los Angeles, he told her that he was going back to Los Angeles because he had some money coming to him. CRT 10513.) Angela Armstrong, Armstrong's other sister, last saw Armstrong in August of 1988. CRT 10517.) Earlier that year she had received Western Union money or~ ders totaling about $2,000 from a person named Stan that she did not know. CRT 10517-10518,10524.) Armstrong had called her from prison and told her that Stan would be sending her the money. CRT 10525.) Valerie Mitchell met James Brown, whom she knew as Tommy Hull, when she was living in Marina, California in 1988. She was dating him on an "off and on" basis. CRT 11366~11368.) Mitchell later found out that he was selling co- caine. CRT 11369-11370.) When she started dating Brown, he gave her a list of names and phone numbers to call if he was ever arrested, which she put in her telephone book. CRT 11731-11372.) That list had the names and phone numbers for "Drew" and "Stan." (RT 11372-11373.) Albert Owens was stationed at Ford Ord in February of 1988, when he met Brown, who was selling cocaine at the time. CRT 11464-11466.) Owens drove Brown to Los Angeles. Before they left for Los Angeles, Brown made a phone call, addressing the person on the other end of the line as "Stan," and telling him what time they would arrive, and CRT 11466-11467.) When they arrived in Los Angeles, Brown directed Owens to 7654 Laurel Canyon, George and Alonzo's Smith's apartment. (RT 11467-11469.) Brown then made another phone call, again addressing the person called as Stan, and say- ing that they were there. (RT 11470.) About half an hour later a man identified by Owens as Andrew Settle arrived at the apartment with a bag containing baggies of cocaine weighing nine ounces, which he handed to Brown, who gave the man $4,500. (RT 11471-11475.) 25 • • • • • • • • • • • • • • • • • Owens made about three other trips to Los Angeles with Brown, with Brown making call to someone named Stan before leaving, and Andrew Settle arriving to make the delivery after they arrived in Los Angeles. (RT 11476-11478, 11480- 11482, 11510-11518.) Andrew (Drew) Greer was a friend of Brown and Armstrong. (RT 11568- 11570.) After Greer was released from prison, he joined Brown in Marina, where Brown was living. (RT 11574-111578.) Greer met Armstrong about two or three weeks before the murders. (RT 11604.) When he first met Armstrong, Arm- strong was living with Tannis Curry. (RT 11605-11609.) Owens made two trips to Los Angeles to pick up cocaine with Greer. Brown would call Stan, and Greer and Owens would go to Los Angeles to pick up the co- caine, calling Andrew Settle when they arrived, and getting cocaine from him. When they returned to Marina, they gave the cocaine to Brown. (RT 11520- 11525, 11585, 115852-11585.) Greer made other trips to Los Angeles. On the second trip he also brought a .45 automatic from Brown, who instructed them to give it to Stan. (RT 11590- 11592.) On a couple of occasions, Owens drove Brown to Western Union so Brown could send money to someone named Stan. (RT 11541.) Greer also took Brown to a Western Union office to pick up money from Stan. (RT 11599-11603.) When Brown moved into the apartment in Marina, he moved in with Ander- son (Kitty) and her two children, Chemise and Carlos English. (RT 11527- 11528.) Armstrong said that Brown was going about his drug operation all wrong be- cause he was dealing on a small level, and they should be dealing in bulk. He thought they should move to Los Angeles. (RT 11530-11531.) Armstrong told Greer that Bryant owed him money for a "hit" that Armstrong had done for him, and that he was going to get that money. (RT 11607.) 26 When Tannis left Northern California, she left with Armstrong. (RT 11608.) A couple days later, Greer, Brown, Anderson, and her two children moved to Southern California. (RT 11609.) Brown made arrangements with Bryant for them to move into the Laurel Canyon apartment. (RT 11610~11611.) On Friday, August 26, 1988, they drove to Los Angeles in a U-Haul and a Toyota. (RT 11609-11613.) Greer, Anderson, Brown, and the children went to Beverly Garden Hotel in Universal City. (RT 11614-11616.) The next morning, Brown and Anderson picked Greer up in the red VW, and they went to Neighbor- hood Billiards to try to find Bryant. (RT 11616-11618.) They stayed at the pool hall 20 minutes before leaving. While they were there someone in a white Audi came and spoke to Brown. That person was driving a car similar to a car later identified as belonging to Wheeler. (RT 11620-11622.) The next morning Armstrong and Brown picked up Greer, and they went to Tannis's apartment. (RT 11623-11624.) Armstrong called Bryant. He told the others that they were supposed to go meet Bryant at about 4:00 and pick up $500 to clean up the apartment. (RT 11629-11630, 11636.) Armstrong told Tannis to get some guns, and Tannis went and got a pistol, which she put in her purse. (RT 11631.) They then went to Tannis's aunt's apartment. They remained there a short time before leaving. Armstrong told Tannis to follow them. When they got in the car, they saw that Tannis had gone back into her aunt's apartment. When Greer told them that Tannis was not following them, Armstrong said that everything was "cooL" (RT 11633-11634.) Greer decided that he wanted to go back to Laurel Canyon rather than going to meet Bryant. (RT 11634.) Armstrong and Brown took Greer back to Laurel Canyon. When they got there, Anderson came out on the porch, saying that the kids were hungry. Brown told them to get in the car, and they would get something to eat. They got in the car and drove off without Greer. (RT 11635-11636.) 27 , ., • • • • • • • • " • • • • • • • • .. • • Ulii· tr That was the last time that Greer saw them. (RT 11636-11367.) G. The Testimony of James Williams James Williams, He denied being involved in the homicides. (RT 12387.) In 1988, Williams was started working as a member of an organization he referred to as "the family." (RT 12109-12110.) Williams joined the organization when his best friend, Lamont Gillon, introduced him to Nute (Nash Newbill), who hired him to work at the pool hall. (RT 12115-12118.) Williams testified that when he joined the organization Bryant was the boss. (RT 12110-12111.) Williams met Wheeler, whom he also knew as "Slimm," when they were in seventh grade. (RT 12111-12112.) Wheeler was a member of the organization when Williams joined. (RT 12112.) Williams also recognized appellant, although he did not know appellant's last name in August of 1988. He had seen appellant on two or three occasions. (RT 12113-12114.) He had not met Settle prior to Au- gust 28, although he had heard Settle's name mentioned. (RT 12114.) Williams's first job at the pool hall was directing addicts to spots where they could pick up drugs. (RT 12120.) Later, Newbill promoted Williams and Gillon to the count house on Wheeler Avenue, where he worked until August 28th. If someone wanted to purchase drugs, they would go to the count house. Williams would count the money, and then he would make a call and direct the customer to meet with the person on the other end of the phone at another location. Later, Williams would get a call saying the buyer had arrived, and Williams would make a note of the competed purchase. (RT 12130-12131, 12141, 12149.) Arceneaux and Wheeler were also working in the count house at that time . (RT 12132.) Williams had met Bryant while working at the pool hall. Bryant would usually come to the count house on Sundays at around 2:00 p.m. (RT 12148.) The Wheeler house was only used for large quantities of nine ounces of co- came or more. (RT 12151-12152, 12158-12159.) The customers buying at 28 Wheeler were not directed to another location. Rather, the drugs would be deliv- ered to them, after they left the count house. (RT 12154M I2155.) The ledgers and records of drug transactions found at Carl Street and Wheeler A venue were the types of forms that Williams filled out working at the count house. (RT 9842-9843, 12155 M I2157.) Williams would write down the customer's name, the amount purchased, and initial the form. (RT 12158.) On the ledgers "Amp" is Amp Johnson, "S.L.M." is SHmm (Wheeler), and "Will" was William Settle. (RT 12161-12164.) When Williams was working at Wheeler Avenue, they had a "company car" that would pick him up at the pool hall and take him to and from work. (R T 12177, 12179.) Wheeler picked Williams up for work on August 28th at the pool hall in Wheeler's Audi. (RT 12179-12180.) The list of phone and beepers numbers found on the wall of the kitchen at Wheeler Avenue (ante, at p. 12, RT 8699) was in case someone working at the house had to contact a "family" member. (RT 12213-12215.) On Tuesdays, which were the paydays, Williams would get his money from the safe. Some of the other people would come by the house for their money. (RT 12228-12230.) On two or three occasions, appellant came and picked up money. Wil- liams did not know what appellant did in the organization. (RT 12230.) People involved in the narcotics end of the business made more than the $500 per week that Williams and the other people in the count house made. (RT 12231.) Appel M lant made $1,000 per week. (RT 12231.) Prior to August 28th, the only contact Williams ever had with appellant was when appellant stopped by the house to pick up money. (RT 12234.) About a month after Williams started working, the procedure for answering the door was changed. Bryant gave Williams a silver .45, telling him he was to be armed when he answered the door. (RT 12235-12236.) 29 , . • • • • • • • • • • • • • • • A couple of weeks prior to August 28th, Williams attended a meeting that Bryant ran at the pool hall. Bryant told everyone what changes would be made. The pool hall would be shut down, and customers would take their money to one house where they would get a slip of paper that they could redeem for drugs at a second house. (RT 12243-12244.) People would work ninety-minute shifts at the pool hall, to make sure that all the customers got news of the new system. The "ninety minute-schedule" found at Wheeler Avenue (ante, at p. 12) was the sched- ule of these work shifts. (RT 10713, 10758, 12244-12245.) Williams worked one of the 90-minute shifts, telling people that in the fu- ture they should go to a house on Fenton Street. (RT 12245.) Once a location had $1,000, they would call Williams, and part of Wil- liams's new duties included going to collect money to take it to Wheeler Avenue. (RT 12246-12247.) On August 28th Williams worked his normal shift at the pool hall and then went to work at Wheeler Avenue. (RT 12253.) Wheeler gave Williams a lift to the house. (RT 12282-12284) At around 2:00 p.m., Bryant called and said he was coming over. (RT 12285-12286.) Bryant arrived in a blue Hyundai, which he parked in the garage. (RT 12286~12287.) Bryant went into the bedroom. (RT 12286.) At one point, as directed to by Bryant, Williams called Arceneaux, who was supposed to relieve Williams on the next shift, and told Arceneaux not to come in. (RT 12289-12290.) Eventually Wheeler, appellant, and Settle showed up separately, all going into the back room with Bryant. (RT 12292, 12299-12300, 12294, 12300, 12302- 12303.) Williams testified that it was unusual for appellant to show up at the Wheeler Avenue house. (RT 12294.) Bryant took a money counting machine and an adding machine that had been in the Wheeler Avenue residence to the garage. (RT 12294.) When he came back he was carrying a duffel bag, which he took to the back room. (RT 12295.) 30 • A while later a gun went off in the back of the house. Bryant came out and asked whether Williams thought that the neighbors could have heard the shot. (RT 12304-12305.) At one point, Williams heard a shotgun being cocked, and he turned around and saw Settle with a shotgun. (RT 12305-12306.) Williams never asked what was going on because he figured that it was none of his business. (RT 12307.) Some time later, appellant, Bryant, and Wheeler came out into the living room. Bryant told Williams that he was expecting some company. Williams was to stand by the window, and holler when the men arrived. When told to do so, Williams was to let Bryant out of the house, using the buzzer in the kitchen. (RT 12307-12310.) Williams saw that Wheeler and appellant each had a gun. (RT 12311.) Bryant then told Williams that after Williams buzzed Bryant out the door, Williams was to go the front of the house, where there would be a green car that he should move to the garage. He was then supposed to walk off the property and take a bus to the pool hall, looking around to see if anyone was looking at what was happening. (RT 12312-12314, 12317-12318, 12311-12312, 12318-12321.) Williams testified that he had an idea of what was going on, but thought that it was too late to say anything because he was flin too deep" and it would not be safe. (RT 12321-12322.) Williams also heard Bryant and Wheeler talking about going to a 7-11. (RT 12324.) Soon after that, Williams was in the kitchen, and someone shouted out that the people were there. (RT 12328.) Williams saw two men walking to the house. When the men got to the front door, Williams heard someone buzz them in. (RT 12331-12333.) Bryant said he had to get some groceries from the car, and called out for Williams to buzz him out, which Williams did (RT 12333-12334.) As Williams started walking out the back, he heard gunshots and a scream. (RT 12335-12337.) Williams went out the garage, past a blue Hyundai. As he got 31 • • • • • • • • • • • .;' n.t'j tll-Q)ilil" ,[ ~ ;~"_~~ __ ,_) Yi_Uwt __ iJdJ\J_,_,H_'ld_iJlili ___ "C.· "'i'i."""T_,n_Milllil'J_' _11_r4_· .... ' _.st_.II_. __ iIOIio'_ii"_-U_.lO!oIt_*_I_' ______ _ • , • • • • '. • , • to the sidewalk:, he almost ran into Wheeler, who was holding a shotgun. (RT 12337-12339.) Wheeler was moving "pretty fast." (RT 12339.) Williams found the green car, which he moved to the garage. (RT 12340- 12342.) As Williams was getting into the green car, he heard Wheeler say, "A bitch in the car. Get out of the car, bitch." (RT 12342.) Williams then heard the sound of glass breaking. (RT 12343.) When Williams got to the garage with the green car, Bryant was standing next to the Hyundai. (RT 12343-12342.) As Williams was walking to the bus stop, Wheeler drove past him in a red car. He then noticed Bryant driving the blue Hyundai. Settle and Smith then drove by in the green car that Williams had pulled up to the garage. All of them went in the direction of Kagel Canyon to the foothills. (RT 12352-12356.) Several days after these events, Williams moved back home to Harrisburg, Pennsylvania. (RT 12366-12367.) Before he left, William Settle told him it was going to be "hot," and Bryant had suggested that Williams take a vacation out of town for about six months. (RT 12367-12368.) William Settle told him that he had been identified at the scene on Wheeler Avenue. He told Williams to contact him, and they would give him the money they owed him. (RT 12368.) He also said that if Williams needed anything they would send it to him. (RT 12368, 12370.) After Williams made reservations to leave, he called William Settle, and they arranged for Lamont to pick up $2,000.00 for Williams. (RT 12369-12370.) William Settle also sent Williams $500 after Williams moved back to Pennsyl- vania. (RT 12370-12373.) In Pennsylvania, Williams got a job. He stole some money, forging his boss's signature on time cards. (RT 12386.) He was dealing cocaine in Harris- burg, and was convicted for possession of cocaine and possession of a firearm. (RT 12531-12532, 12386-12387.) After he was arrested in Pennsylvania, the Harrisburg police told Williams that he was wanted in Los Angeles on six murders. (RT 12373.) Williams said 32 that he had not killed anyone, and he agreed to be interviewed. (RT 12374.) At that time he told them that Bryant, Wheeler, "Don," and Johnny were the people who were involved. He did not know "Don's" last name. (RT 12374, 12775- 112778, 12780.) Williams testified that he thought he would not have received immunity if the police thought he was the shooter. (RT 12552.) H. The Shooting of Keith Curry and the Bombing of Curry's Car In 1984, the year he started selling cocaine, Keith Curry met Tannis Bryant, who said she was married to Bryant, but she was thinking of leaving him. (RT 11316-11317, 11330-11332.) She left Bryant in 1985 and moved into an apart- ment on Clyborne. Curry started spending three or four night a week with Tannis. (RT 11317-11318.) One morning, after spending the night with Tannis, Curry got in his car and started to back up, when a pipe bomb that had been placed under the car exploded, injuring Curry on his thigh (RT 11318-11319, 11787-116789.) Sometime after that, Curry married Tannis. (RT 11323.) On September 28, 1987, Curry was driving his car on Vanport, when he no- ticed someone behind him flashing his lights. (RT 11320-11321.) Curry pulled over, and saw that appellant was the driver of the other car. He had met appellant through Tannis. Appellant was married to Tannis's sister, Elaine. (RT 11322- 11323.) Curry had never had any problems with appellant. (RT 11323, 11327.) Appellant started talking to Curry, asking him how he was. Appellant appeared calm. (RT 11324.) Curry heard two shots coming from appellant's car and real- ized that he had been shot in the neck and ann. (RT 11324-11325.) Curry was not aware of anyone being angry with him at the time that his car was blown up or when he was shot by appellant. (RT 11326.) 33 • • • • • • • • • • • • • • • • • • • Tannis testified that she remembered the incident where Curry's car was blown up, but she denied speaking to Bryant about that incident, and denied that Bryant told her that he put the bomb under Curry's car. CRT 13058, 13082-13083.) In April of 1986, Gwendolyn Derby was at Mis Liz's Beauty shop. She knew Tannis Curry. (RT 13095-13096.) Tannis told Derby that her ex-husband admitted that he had placed a pipe bomb underneath her current boyfriend's car. Tannis said her ex-husband had said he would do it again until the boyfriend was dead. CRT 13097-13098.) At the time of this trial, Pierre Marshall was serving a 30-year sentence in federal prison for narcotics offenses. CRT 11748,11757.) Marshall knew Curry, and knew that Curry was involved with Tannis. (RT 11749.) Marshall heard there were rumors that something might happen to him be- cause he had dated Rochelle (Rolo) Bryant on one occasion, so he met Bryant at a Burger King to discuss those rumors. (RT 11749-11751,11753.) Marshall denied that Bryant recounted a list of things he had done to Keith Curry. (RT 11752-11753.) Marshall also denied that Bryant made motions mim- icking a person who had been paralyzed. (RT 11752.) Vojtecky testified that in May of 1992, he interviewed Marshall regarding the Burger King meeting. Marshall told Vojtecky that when Marshall sat down at the table, Bryant began holding his hands in a defonned fashion around his head, mimicking, laughing, and saying, "Remember how that nigger got paralyzed." Marshall told Vojtecky that he knew that Bryant was talking Keith Curry. CRT 11791-11792.) I. The Arrest of Appellant in 1987 On September 29, 1987, Sergeant Charles Lofton of the Highway Patrol was working with his partner Michael Vandemark. In the early morning hours, he saw a white Renault, driven by appellant, speeding and weaving on the 101 free- way. Lofton activated his lights to stop the Renault, and the Renault pulled off the 34 freeway at Tampa. After the Renault stopped, Loften got out of his car to ap- proach the car, when the car took off going northbound on Tampa Avenue. (RT 10099-10101, 10109-10110.) Lofton began a high-speed pursuit of the Renault through various portions of the San Fernando Valley. (RT 10102-10104.) At various times, Lofton and Vandemark saw plasticbaggies, a white pow- dery substance, and bits of paper being thrown from appellant's car. Appellant was holding a notebook book, tearing out pages, and throwing them out of the window. (RT 10105, 10123-10125.) After about 40 minutes, Lofton rammed the Renault's rear, causing both cars to stop. (RT 10108-10109.) Inside appellant's car, Lofton found a .357 revolver and a quarter of a kilo of rock cocaine in 18 smaller plastic baggies. (RT 10112-10114.) When Lofton fIrst saw appellant, they were about 15 miles from Pacoima, heading away from Pacoima. (R T 10 II 7.) It was stipulated that Curry was shot at 9:05 p.m. on September 28, 1987. Appellant arrested fIve hours later. At that time, he had a revolver with no live rounds, but one expended casing. Appellant was not in Los Angeles County when the bomb went off under Curry's car. (RT 13656-13657, 13660.) .T. The Testimony of Settle Jon Settle described his family and job as a mechanic. (RT 15531-15533.) During one period when he was injured, his brother, William, made him an offer, which Jon accepted. Under the deal they reached, Settle could live in William's house, while William used Settle's house on Vanport to sell drugs. (RT 15333.) The day of the murders, Bryant called Settle about buying an old car. (RT 15615.) Bryant also said that he needed some brakes on his Toyota. Bryant asked Settle what cars were available as a loaner, and Settle told him that a Pontiac Bon- neville was available for $900. Later, Bryant and Wheeler went to Settle's in a red jeep, and they dropped off the Toyota for Settle to work on. (RT 15539-15540.) 35 • • • • • • • • • .. • • • • • • • • • • About an hour and a half later, Frank Settle and Wheeler arrived in the Jeep, picked up the Toyota, and paid Settle for working on the Toyota. (RT 15540-15541, 15556-15558J The Toyota was the car that Williams had previously identified as the "company car," which the police found parked in front of the Wheeler Avenue residence the evening after the murder. (RT 12179, 14373.) Settle testified that he was never in the Wheeler Avenue house. (RT 15541.) After the murders, nothing changed in Settle's life. He was still fixing cars. He got married in September, and when he returned from his honeymoon he found that his house was boarded up and the police had served a warrant on his house. His brother, Kenny, an attorney, told him the search was for weapons. (RT 15544- 15546.) Kenny told him not to get involved because there were so many people in- volved in the case he would spend years in jail waiting for trial. Settle knew Bryant for about 20 years. (RT 15592.) Settle thought Wil- liam Settle was the bookkeeper for the organization. (RT 15592-15593, 15597.) Settle testified that he received $2,500 for putting his house up for appel- lant's bail after appellant was arrested in 1987. (RT 15605.) K. Miscellaneous Evidence Western Union records reflect that between January and March of 1988, a person named Stan Bryant, whose address was listed as 12719 Judd Street, Pa- coima, sent money orders for $2,100 to Anna Armstrong. Other money orders were sent to James Brown and other people associated with the Bryant organiza- tion. (RT 10448-10450, 10452, 10456-10463.) Armstrong's address book had Bryant and Ross Bryant's address and phone number, as well as the address and phone number for 11442 Wheeler Avenue. (RT 10729-10731, 10730, 11089-11090, CT 16823.) The book also has the num- 36 4M___________________________________________________________________________~ ber for the pool hall as well as the numbers for appellant, Tannis Curry, Mona ScottlO, and Francine Smithll. (RT 10731-10738,10741.) After appellant was arrested for the Curry assault, the bail was set at $200,000. Appellant's residence was listed as 11100 Strathem, apartment 8. Bry- ant was listed as a reference to secure appellant's presence. (RT 11399-11403.) Along with appellant's family, Settle put up properties for the bail, with the pre- mium paid by Donald Smith, Sr., appellant's father. (RT 11403-11404, 11412- 11414, 11415-11417.) The signature on the bail indemnity papers matched Set- tle's handwriting. (RT 13024, 13026-13027) Judicial notice was taken that on January 21, 1989, during the preliminary hearing, Wheeler and Bryant were ordered to provide handwriting exemplars for comparison to documents in this case, and that they refused to do so. (RT 13023.) Phone bills revealed the following phone calls in 1998: From appellant's house to Bryant's house there were 16 calls in January, 6 calls in February, 24 calls in March, 12 calls in April, 8 calls in May, 4 calls in June, 24 calls in July, and 11 calls in August. The last call was on August 27th at 7:16 p.m. (RT 13457-13458.) From Bryant's house to appellant's house there were 25 calls in January, 7 calls in February, 11 calls in March, 11 calls in April, 17 calls in May, 12 calls in June, 30 calls in July, 21 calls in August, and 19 calls in September. (RT 13458- 13459.) 10 Mona Scott was a friend of Armstrong. (RT 9493.) Bryant gave her money to cover expenses that she incurred receiving calls from Armstrong when he was in prison. He also gave her money to pay for expenses so she could visit Armstrong. (RT 9496-9499,9501-9504.) 11 Bryant arranged and paid for Francine Smith to visit Armstrong in prison. Af- ter she attempted to buy drugs at the Lourve Street drug house with altered cur- rency, she was beaten up. Bryant, who was standing nearby when she was beaten, later told her she was lucky to be alive, because if he had not know her so well she would be dead. (RT 9447-9450.) 37 • • • • • • • • • • • • • • • • • • t , • The month that Armstrong was released from prison (July), there were fifty-four calls that month between Bryant's and appellant's residences. (RT 13459-13460.) From appellant's house to 11442 Wheeler Avenue, there were 3 calls in February, 9 calls in March, 7 calls in April, 20 calls in May, 10 calls in June, 9 calls in July, 11 calls in August. The last call was August 28th at 12:44 a.m. 12 (RT 13466-13467.) From 11442 Wheeler Avenue to appellant's house there were 4 calls in January, 8 calls in February, 7 calls in March, 7 calls in April, 14 calls in May, 21 calls in June, 21 calls in July, 25 calls in August. (RT 13458-13459.) The last call was on August 27th at 8:39 p.m. (RT 13468-13469.) From Wheeler's car phone there were numerous calls in July and August to Bryant, to 11442 Wheeler Avenue, to the pool hall, and various family members. (RT 13474-13477.) There were 4 calls from Wheeler's phone to Neighborhood Billiards on September 1st, the day the bodies were discovered in Lopez Canyon. (RT 13478.) On the day that Armstrong was released from prison, and the day that Arm- strong's sister picked up a money order at Western Union, there was a series of phone calls between the following locations Armstrong's mother's home, Bryant's residence, appellant's house, Armstrong's sister's house, and Wheeler Avenue. (RT 13480-13486.) Calls were also made between appellant's residence and Armstrong's mother's and sister's houses and the residence when Armstrong and Brown were living in Salinas. (RT 13486-13488.) 12 According to the schedule, Wheeler would have been working that shift at that time. (RT 13468.) Gillon or Arceneaux would have been on duty at time of two other calls from appellant's house to 11442 Wheeler Avenue. (RT 13510.) 38 Between August 26th and August 28th there were a series of phone calls between Bryant, appellant, Wheeler's residences and the Wheeler Avenue house. (RT 13389-13398.) Wilbert Babineaux the father of Tannis and Attella, appellant's wife. (RT 13514.) In 1982, Karen Flowers had been dating Annstrong and Gentry. The phone number that she had for Armstrong was appellant's telephone number. (RT 15035-1538,16011-16012.) On September 3, 1988, Mike Macarelli was a car salesman at North Holly- wood Toyota. (RT 12845-12846.) He took a blue 1988 Hyundai in trade on a 1988 red or burgundy Toyota Corolla. (RT 12847-12848.) The purchase contract for the car was found at 11943 Carl Street. (RT 12847-12848.) Keith Seals, the finance manager of North Hollywood Toyota, identified Bryant, Wheeler, and Antonio Johnson as the men that were present when the transaction was made. (RT 12851-12852.) Seals had the Hyundai detailed before the police borrowed it. (RT 12869- 12870.) Later, William Lewellen, a criminalist with the LAPD's Scientific Inves- tigation Division, applied luminol and phemolpthalein to the Hyundai. He noted a presumptive positive reaction indicating the presence of blood in the area of the rubber inlay on the floor mat. (RT 12872-12877.) PENALTY PHASE A. Prosecution's Case On October 16, 1991, Scott Maus a deputy sheriff assigned to the L.A. County jail, went to the lower TV room, in response to a message regarding a fight between inmates. Arriving there he saw appellant and two other inmates, Holiday and Furnace, fighting. Furnace was holding Holiday so he could not get away, and appellant was hitting Holiday. (RT 17452-17455, 17463.) Holiday had a bloodied nose and three fresh puncture wounds to his back. (RT 17457.) Two 39 • • • • • • • • • • • • • • • • , • • metal shanks were found in the toilet, about six to eight feet from the area where the three were fighting. (RT 17459-17461, 17478-17480.) Maus did not see appellant with the shanks, nor did he see appellant near the area where the shanks were found. (RT 17469-17470.) On another occasion, a broken and sharpened CD, which could be used as a shank, was found under the mattress in appellant's cell. (RT 17490-17495.) On July 30, 1982, Roselyn Lubel was living at 8735 Cedros Avenue in Panorama City. When she returned to her house at around 5:20 p.m., she noticed that the door was ajar. (RT 17500-17502.) Opening the door to her bedroom, she saw a man in that room. (RT 17502-17503.) The next thing she knew was that she was sitting on her couch. She was bruised and her head was bleeding. (RT 17503-17504, 17581.) Later, the police later returned some jewelry to her which had been missing from her house. (RT 17504.) (RT 17505.) Hazel Cohen testified that she dropped off her mother, Roselyn Lubel, and her grandmother, in front of their residence. When she returned from parking the car, she saw appellant standing in the door of her mother's condominium. Cohen looked into the condo and saw that her mother was hurt. Appellant ran off. Cohen's mother and grandmother were lying on the floor. (RT 17576-17577.) Appellant was detained by some neighbors a short distance away. (RT 17577-17578.) Lubel's property was in his pockets. (RT 17509.) Appellant had been previously convicted for an assault against Darla Faile, a twenty-three-year old female, in her apartment at 8936 Cedros Avenue, around midnight on December 16, 1982. (RT 17509-17510.) Mark Moffet, a deputy at the Los Angeles County Jail, searched appellant's cell on June 5, 1991, and found a shank made from a melted plastic cup. (RT 17527-17529.) Appellant also had a school card in the name of another inmate who had been released. That card was contraband as to appellant. (RT 17531- 17536.) 40 B. Defense Case Dr. Hoagland is a clinic psychologist. He does psychological and neuro- cognitive assessments, evaluating mental status and emotional status and intellec- tual or cognitive abilities. (RT 18132-18134.) He did an assessment of appellant. (RT 18135.) He administered a Wechsler Adult Intelligence Test on appellant. The aver- age score is 100. Below 90 is considered subnormal. Appellant's verbal was 85, his visual and visual motor skills were 88, and his full scale I.Q. was 84. Overall, appellant was in the low 12 or 13th percentile. (RT 18136-18137.) He also obtained appellant's school records from third grade, and found the results corresponded to the results he obtained in tests he did on appeallant. These reflected the following results: verbal was 86, motor I.Q. was 94, full scale I.Q. was 89. (RT 18138-18139.) In the fIrst grade appellant tested high. Although the test used is now con- sidered to be obsolete. (RT 18139-18140.) Appellant also is dyslexic. (R T 18141.) Appellant told him that he did not learn to read until the 7th grade. (RT 18141.) Appellant's current phonic skills were on a second grade level. (RT 18141.) Appellant's current spelling and writing skills are in the bottom 1 percentile. He has poor math skills. (RT 18142.) Appellant also suffered from an attention defIcit hyper-activity disorder, a neurological condition resulting from a defIciency of chemicals in the frontal lobe of the brain. This condition makes it diffIcult to concentrate. It also causes a per- son to have little control over impulses. (RT 18143-18144.) Appellant's early re- cords display many symptoms of this condition. (RT 18144-18147.) Appellant also displayed other areas of neurocognitive defIcits, such as im- paired memory functioning, a retarded ability to hear and integrate words, and other symptoms. (RT 18148-18149.) 41 • • • • • • • • • • • • • • , • , • t • • Hoagland summarized that appellant is of subnonnal intelligence, dyslexic, with ADHD, with deficits in his cognitive functions. (RT 18149-18150.) He also perfonned a mUlti-phasic personality inventory and a Rorshach test. Appellant's pychopathological and emotional difficulties were so severe that he is vulnerable to psychotic deterioration. He may become disorganized and have delusions or hallucinations. He was also seriously anxious and depressed. He is introverted, shy, lacking in confidence, and socially withdrawn. (R T 18151- 18155.) Donnette Smith, appellant's sister, lived with her paternal grandparents, and appellant lived with their maternal grandparents when they growing up. (RT 18312-18313.) She moved back with their parents when she was six and appellant was four. (RT 18313.) Their father was in the military, and they just saw him at night. (RT 18315.) Later they moved to Pacoima, when their father was stationed in Green- land. (R T 18317.) She testified that she was molested by their father when she was young. (RT 18318.) Once appellant's father was beating appellant while appellant was tied to and hanging from a pole in the garage. Appellant was naked and their father was beating him with extension cord all over his body, back, buttocks legs. (RT 18321-18322.) He also beat appellant with a belt buckle, once cutting appellant's penis with the belt buckle. (RT 18322.) The beatings took place at least once a week. (RT 18323.) Appellant also saw his sister being molested by their father. (RT 18323.) 42 ------------------------------_ .. ' ARGUMENTS GUILT/INNOCENCE PHASE ARGUMENTS I APPELLANT'S CONVICTION MUST BE REVERSED BECAUSE OF SEVERAL RELATED ERRORS ARISING FROM THE INTRODUCTION OF ACCOMPLICE TESTIMONY. THESE ERRORS, INDIVIDUALLY AND COLLECTIVELY, HAD THE EFFECT OF DENYING APPELLANT DUE PROCESS OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS THEY ALSO DEPRIVED APPELLANT OF HIS RIGHT TO A RELIABLE DETERMINATION OF THE FACTS IN A CAPITAL CASE AS GUARANTEED BY THE EIGHTH AMENDMENT Appellant's conviction must be reversed because of several related errors arising from the introduction of accomplice testimony_ Williams's testimony was the only evidence connecting appellant to the murders. Even though Williams, who testified against appellant under a grant of immunity, was originally charged as a co-defendant with the same murders in which he later implicated appellant, the trial judge concluded that Williams was not an accomplice as a matter of law for purposes of the rule that accomplice testimony is not sufficient to sustain a conviction unless it is corroborated. The trial judge therefore erroneously denied appellant's motion for judgment of acquittal, even though he conceded the corroboration requirement was not satisfied. Appellant contends that applying the proper legal defmition of "accomplice," and thereby triggering the corroboration requirement, there was not sufficient evidence to sustain appellant's conviction. The trial judge instead decided that whether Williams was an accomplice was a question for the jury. The jury instruction, however, improperly suggested that Williams would have to be "equally guilty" for the jury to treat him as an 43 • • • • • • • • • • • • • • • • • • • • ]m -, t f i accomplice. Because the definition of "accomplice" was too narrow, there was a substantial danger the jury did not find Williams to be an accomplice and did not apply the corroboration requirement. The jury was also improperly instructed that if it found Williams was an accomplice, only "slight" evidence was required to corroborate Williams's testimony, which relieved the prosecution of its burden to prove appellant's guilt beyond a reasonable doubt. The significance of this Issue, and the jury's confusion about it, was underscored by the jury's questions -- after it had convicted appellant but was still deliberating as to Settle's guilt -- about the definition of accomplice and the reasonable doubt standard. The trial judge refused to reopen the case when the jury's questions exposed its misunderstanding of the law governing the issue that was dispositive of appellant's guilt or innocence. When the judge gave legally correct clarifYing instructions, the jury hung as to Settle's guilt, and he later pled guilty to manslaughter. Appellant was sentenced to death. Finally, Tannis Curry, Bryant's ex-wife was either an accomplice as a matter oflaw or may have been an accomplice. However, none of the instructions given to the jury ever explained this fact or informed the jury as to the consequences of her possible accomplice status. Therefore, if the jury found that Williams was an accomplice, it could have found corroboration for his testimony in the testimony of another accomplice, contrary to the rules governing corroboration of accomplice testimony. These errors denied appellant due process of law and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the Constitution. They also deprived appellant of his right to a reliable determination of the facts in a capital case as guaranteed by the Eighth and Fourteenth Amendments to the Constitution. 44 ., • . r A. THE CONVICTION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CORROBORATE ACCOMPLICE TESTIMONY "On the testimony of two or three witnesses a man shall be put to death, but no one shall be put to death on the testimony of only one witness." Deuteronomy 17:6, Numbers 35:30 1. Introduction Appellant's convictions must be reversed because there was not sufficient evidence to corroborate James Williams's testimony13. The trial court applied the wrong legal standard in ruling that Williams was not an accomplice for purposes of the rule requiring corroboration of accomplice testimony. As the trial court recognized, apart from Williams's testimony, there was no evidence connecting appellant with the offense itself, as required by the rules governing accomplice testimony. The evidence was therefore insufficient to sustain appellant's conviction, and the trial court erred in denying appellant's motion for judgment of acquittal. 2. Sufficiency of the Evidence Standard The presumption of innocence and the Due Process Clause of the Fourteenth Amendment to the United States Constitution require that the People prove every element of the crime charged, beyond a reasonable doubt. (See Pen. Code, § 1096; Sandstrom v. Montana (1978) 442 U.S. 510, 520; In re Winship (1970) 397 U.S. 358, 364.) The federal standard for sufficiency of evidence is set out in Jackson v. Virginia (1979) 443 U.S. 307, 319: 13 Because Williams was the main witnesses against appellant, this section of the brief focuses on his testimony and accomplice status. However, as will be discussed, Tannis Curry was also an accomplice and the same principles apply to her as welL 45 t ~, • • • • • • • • • • • • , • , • • • • , • • "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfmder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." This standard is applicable to California cases. (People v. Johnson (1980) 26 Ca1.3d 557, 578.) On appeal, the court must review the entire record in a light favorable to the judgment below and determine whether substantial evidence supports the conclusion of the trier of fact that the prosecution sustained its burden of proving each element of the crimes charged. (People v. Rayford (1994) 9 Ca1.4th 1, 23.) To be "substantial," the evidence must reasonably inspire confidence. (People v. Morris (1988) 46 Cal.3d 1, 19, overruled on other grounds, In re Sassounian (1995) 9 Ca1.4th 535, 544, fn. 5.) A finding based on conjecture or surmise cannot be affirmed. (People v. Memro (1985) 38 CaL3d 658, 694-695.) Even a strong suspicion is insufficient to support a fmding of guilt. (People v. Thompson (1980) 27 Ca1.3d 303,324.) 3. The Motion Pursuant to Section 1118 After the close of the prosecution's case, appellant made a motion for a judgment of acquittal pursuant to section 1118.1 In the written motion, appellant explained that Williams was an accomplice because he did various acts facilitating the murder, and he did these acts with the requisite knowledge and intent. These acts included opening the door to allow Bryant to leave before the shooting started, backing the car into garage after the murders, and serving as a lookout for witness as he left the scene. (CT 14967.) 46 The defense asked the court to take judicial notice of the fact that the prosecution filed the same charges against Williams that it had filed against appellant. Mr. Novotney, one of appellant's trial attorneys, explained that the test of an accomplice is "liable to prosecution," which is what happened, "he was prosecuted." (RT 14446-14447) The court rejected the argument that Williams was an accomplice merely because he was charged in the offense. (RT 14448-14449) Instead, the court stated three times that an accomplice is someone who is also guilty of the offense for which the defendant is charged. (RT 14448). The defense also argued that Williams was an accomplice because he was an aider and abettor. (RT 14451.) The defense argued that, other than Williams's testimony, there was no evidence connecting appellant to the offenses for which he was being tried, as distinguished from other offenses like the drug offenses or the Curry shooting. (RT 14451.) In particular, the defense pointed out, there was no fingerprint evidence, no evidence of flight, no admissions, no weapons traced to appellant, and no proof that appellant was even present at the time of the crime. (RT 14451.) The defense argued that the phone calls at most showed that appellant was an accomplice to drug sales. (RT 14451-14452.) The prosecution maintained that Williams was not an accomplice because he testified that he had no knowledge of what the others were planning to do. (RT 14452.) The prosecution further argued that if Williams was an accomplice the evidence of the phone calls to appellant and the fact that appellant was one of the people that Bryant would rely on to commit homicides was sufficient corroboration of Williams's testimony. (RT 14453.) The defense replied that Williams's testimony that he did not want to be there because he knew that something was going to happen showed sufficient knowledge to make him an aider and abettor. (RT 14454.) The court denied the motion for judgment of acquittal, stating that it could not be said that Williams was an accomplice as a matter of law, because there was 47 • • • • • • • • • • • • • • , • • • • • • • not sufficient evidence to show that Williams shared the requisite intent. (RT 14455.) The court believed the evidence was in conflict, and the jury could find Williams to be either an accomplice or an "innocent dupe." (RT 14454.) Although the court denied the motion for judgment of acquittal, it agreed that the case against appellant was "very close", and that, apart from Williams's testimony, the only evidence against appellant was the Curry shooting and the phone calls between appellant's apartment, the Wheeler Avenue house, and Bryant's residence. The court added that if you took Williams's testimony out of the picture and asked whether "of all the people in the world" one would suspect appellant based on the other evidence, the answer would be "no." (RT 14456- 14457.) The court reiterated its belief that if one did not consider the testimony of Williams, there was not enough evidence to believe that appellant was involved. (RT 14457-14458.) In particular, the court stated "So it may well be that if Mr. Williams is an accomplice, I think your argument is a good argument. I really do. I don't think you can add these things up and say this is corroboration that Smith committed the homicide. It would tend to submit a link. But I cannot, in all honesty, say in my own mind I could go out and look for Mr. Smith." (RT 14458, italics added.) Indeed, the court agreed that there was nothing, other than Williams's testimony, to indicate that appellant had ever gone to the Wheeler Street address. (RT 14457.) The court concluded that "to be honest" it was making the ruling that it did because it did not believe that Williams was an accomplice as a matter of law. If the jury did fmd that Williams was an accomplice, however, the court believed the jury would have to acquit. (RT 14458.) 4. Legal Principles Governing Accomplice Testimony Accomplice testimony, for good reason, has historically been viewed with great suspicion. Thus, although the rules of evidence generally provide that the 48 testimony of anyone witness is sufficient proof of any fact, there is an exception for accomplice testimony. Penal Code section 1111 states: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof .... " The purpose of section 1111 is to prevent convictions based solely on un- trustworthy evidence. (7 J. Wigmore, Evidence, (1978 Chadbourn ed.) § 2056.) "The requirement of section 1111 of the Penal Code that accomplice testimony must be corroborated is a convincing indication of the leg- islative intent and policy that such evidence is to be regarded as un- trustworthy and not to be believed unless fortified by other evidence tending to connect a defendant with the commission of the offense charged." (People v. Dail (1943) 22 Cal.2d 642,655.) The distrust of accomplice testimony is particularly well-placed when the accomplice testifies in the expectation of immunity. (People v. Tobias (2001) 25 Cal.4th 327, 331; People v. Coffiy (1911) 161 Cal. 433, 438.) First and foremost accomplices are distrusted because they have an over- whelming motive to shift blame to their co-perpetrators to save their own skin. (People v. Guiuan (1998) 18 Ca1.4th 558, 574-575 (conc. opn. of Kennard, J.) See also Williamson v. United States (1994) 512 U.S. 594, 601 (1994) - noting that an accomplice's strong motivation "to implicate the defendant and to exonerate him- self," makes his "statements about what the defendant said or did ... less credible ... " (citing Lee v. Illinois (1986) 476 U.S. 530, 541; see also People v. Duarte (2000) 24 Ca1.4th 603) Cases such as Williamson and Lee have specifically noted that the state- ments made by a co-defendant at the time of his arrest are particularly untrust- worthy because that is when the desire to exonerate himself and the motive to be- gin fabrication arises. It is for this reason that confessions that cast most of the 49 • • • • • • • • • • • • , • • • • • • • • • blame on others are considered to be highly unreliable 14. (E.g. see Lilly v. Vir- ginia (1999) 527 U.S. 116, 117.) In her concurring opinion in People v. Guiuan, supra, 18 Ca1.4th 558, Jus- tice Kennard explained: "'A skeptical approach to accomplice testimony is a mark of the fair administration of justice. From the Crown political prosecutions, and before, to recent prison camp inquisitions, a long history of human frailty and governmental overreaching for conviction justifies dis- trust in accomplice testimony.'" (Citation.) (Jd., at p. 570, quoting Phelps v. United States (5th Cir. 1958) 252 F.2d 49.) Because accomplices are liable to prosecution for the same offense, they have a powerful motive to aid the prosecution in convicting a defendant, with the hopeful expectation that the prosecution will reward the accomplice's assistance with immunity or leniency. (Jd. at p. 572, Kennard, J., concurring) Accomplices are rarely persons whose veracity is above suspicion; their participation in the charged offense is itself evidence of bad moral character. (Id. at p. 574.) (Ken- nard, J., concurring) Moreover, an accomplice's first hand knowledge of the de- tails of the crime allows for the construction of plausible falsehoods not easily dis- proved. (Id. at p. 575 (Kennard, J., concurring) The danger of obtaining crucial testimony from criminals was similarly noted in Commonwealth of the Northern Mariana Islands v. Bowie (9th Cir. 2001) 243 F.3d 1083 where the court noted that "because of the perverse and mercurial nature of the devils with whom the criminal justice system has chosen to deal, each contract for testimony is fraught with the real peril that the proffered testi- mony will not be truthful, but simply factually contrived to "get" a target of sufficient interest to induce concessions from the govern- ment." (Jd., at p. 1124.) 14 At the time that Williams first blamed appellant, he was a suspect and defendant under arrest. He was confessing to selling drugs, while blaming others for the murder. 50 Testimony from accomplices and "snitches" who receive a deal for their testimony has been a frequent cause of wrongful convictions, as the Innocence Project has illustrated in its study of cases in which the defendant was later exonerated by DNA tests. (Id., at p. 1124, fn. 6.) The long-standing rule that a conviction must not rest on accomplice testimony alone is thus supported by empirical evidence. The law properly requires corroboration to sustain a conviction. Because Section 1111 is designed to prevent the conviction upon suspect evidence, the lack of corroboration enhances the possibility that an innocent person may be unjustly convicted and sentenced to death in violation of Eighth and Fourteenth Amendments which has greater reliability requirements in capital cases. (Woodson v. North Carolina (1976) 428 U.S. 280, 305; Gilmore v. Taylor (1993) 508 U.S. 333, 334.) (1976) 428 U.S. 280; Johnson v. Mississippi (1987) 486 U.S. 578, 584-85; Zant v. Stephens (1983) 462 U.S. 862, 879.) Furthermore, depriving appellant of the protection afforded under the principles discussed above is a misapplication of a state law that constitutes a deprivation of a liberty interest in violation of the Due Process Clause of the Fourteenth Amendment to the federal constitution. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346; Coleman v. Calderon (1998) 50 F.3d 1105,1117; Ballardv. Estelle (9th Cir. 1991) 937 F.2d 453, 456.) Appellant has a constitutionally protected liberty interest of "real substance" in Penal Code section 1111 because it provides that "no conviction shall be had" on uncorroborated accomplice testimony. (See Sandin v. Conner (1974) 515 U.S. 472, 478). To uphold his conviction, when there was no proper corroboration for the accomplice testimony, would be arbitrary and capricious and thus violate due process. (Vitek v. Jones (1980) 445 U.S. 480 ["state statutes that may create liberty interests are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment.]; Hicks v. Oklahoma, supra, 447 U.S. 343.) 51 • • • • • • • • • • • • , • • • • • Indeed, Judge Horan denied appellant's motion to dismiss, even though he believed there was no corroboration for Williams's testimony because he errone- ously defined "accomplice" as somebody who was guilty of the same offenses. (RT 14448-14449.) Had he not applied this incorrect legal standard, i.e. had ap- pellant's right under section 1111 been recognized, the case against appellant would have been dismissed. Finally, the error described above so infected the trial with unfairness as to render the convictions a denial of due process of law. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643; Darden v. Wainwright (1986) 477 U.S. 168, 181-182.) 5. The Determination of Accomplice Status Penal Code section 1111 defmes an accomplice as " ... one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." "Liable to prosecution" means "properly liable," which requires that there is "probable cause" to believe that the person has committed the offense in issue. (People v. Rodriguez (1986) 42 Ca1.3d 730, 7591 People v. Cowan (1940) 38 Cal.App.2d 231,242.) Contrary to the trial court's ruling, a witness need not be "also guilty" of the same offense with which the defendant is charged to be considered an accom- plice. Even a person who has been tried and acquitted of the same offense as the defendant may still be an accomplice for purposes of section 1111: "The test is not whether she (the alleged accomplice) was subject to trial and conviction at the time she testified, but whether, at the time the acts were committed, and as a result of those acts, she became 'liable to prosecution for the identical offense charged against the defendant.'" (People v. Gordon (1973) 10 Ca1.3d 460, 469, citation omitted). Under the narrowest view, an accomplice must have" guilty knowledge and intent with regard to the commission of the crime." (People v. Gordon, supra, 10 52 Ca1.3d 460, 466 -467.) As will be shown (infra, at p. 55), Williams knew that a crime was going to happen and continued to follow Bryant's instructions that would help bring the crime to fruition. Furthermore, to be charged with an identical offense, the witness need not be the actual perpetrator, but may be a principal under section 31; that is, the direct perpetrator or an aider or abettor. (People v. Fauber (1992) 2 Ca1.4th 792, 833.) At common law, an "accomplice" includes all particeps criminis, whether they be principals in the first or second degree, or mere accessories before, or after the fact. (People v. Coffey, supra, 161 Cal. 433, 439.) Section 31 takes an expansive view of who is subject to prosecution for an offense: a principal in the offense includes "all persons concerned in the commission of a crime ... , and whether they directly commit the act constituting the offense, or aid and abet in its commission .... " This has been the definition of an accomplice for almost a century. (People v. Coffey, supra, 161 Cal. at 440.) Because a person who is an accomplice to one crime, may be properly convicted of any offense that is a foreseeable result of the crime that the accomplice intended to aid, a person is "liable to prosecution" even if it could ultimately be proven that he did not have the pre-knowledge and specific intent needed for the charged offenses ultimately committed. As explained in People v. Croy (1985) 41 CaL3d I, n[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, is sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator." (Id., at p. 12, fn.) In People v. Solis (1993) 20 Cal.AppAth 264, after a confrontation with some rival youths, the defendant went driving around the area where the 53 • • • • • • • • • • • • • • • • • • • • confrontation had occurred. As they drove past some youths, appellant's accomplice, whom appellant knew was anned, leaned out the window and fired shots, killing one person. Solis admitted knowing that the shooter had a gun, but denied knowing that the shooter would use it for any purpose other than to shoot in the air to scare the opposing gang. (Id., at p. 267-269.) Solis was nevertheless convicted of second-degree murder, based on a theory of aiding and abetting. Hence, if it is reasonably foreseeable that a serious crime may result from what commences as another offense, even if that offense is merely a misdemeanor, then the criminal accessory may be held responsible for the eventual felony, including murder. (Id, at p. 273.) Also relevant to the instant case, a person can be convicted of second degree felony murder for "a homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the ... felonies enumerated in Pen. Code section 189) .... " (People v. Pearch (1991) 229 Cal.App.3d 1282, 1296, quoting People v. Ford (1964) 60 Ca1.2d 772, 795 overruled on other grounds in People v. Satchell (1971) 6 Ca1.3d 28.) Whether a felony is inherently dangerous is detennined by viewing the felony in the abstract, not by focusing on the particular facts of the case. (People v. Pearch, supra, 229 Cal.App.3d at 1296, People v. Patterson (1989) 49 Ca1.3d 615, 621.) People v. Burroughs (1984) 35 CaL3d 824 described an inherently dangerous felony as one which "cannot be committed without creating a substantial risk that someone will be killed." (Id., at p. 833.) Subsequently, in People v. Patterson, supra, 49 Ca1.3d 615, 627, the Supreme Court adopted a new standard holding an inherently dangerous felony !lis an offense carrying 'a high probability' that death will result. " 6. Why Williams Must be Regarded as an Accomplice Under the foregoing principles, Williams must be regarded as an accomplice as a matter of law. First, the language of section 1111 provides that a 54 is an accomplice if he is "liable to prosecution" for the identical offense charged against the defendant. Williams was originally charged with precisely the same crimes and special circumstances as appellant. (CT 4968-4973.) Williams was not only "liable" to prosecution for the murders, he was actually prosecuted. The prosecution of Wil- liams was terminated only when the state made a strategic decision to allow Wil- liams to testify in exchange for immunity. Williams was therefore a defendant charged with the identical crimes until he reached an agreement to testify. Likewise, if the test of accomplice status requires that the witness had "guilty knowledge and intent with regard to the commission of the crime" (People v. Gordon, supra, 10 Ca1.3d 460, 466 -467), Williams qualifies as an accomplice. When he was interviewed in Pennsylvania, Williams admitted that before the murders happened he "had an idea" that something was going down because everyone was walking around with gloves on cocking guns. (4 SUPP CT 45.) Likewise, when interviewed by an investigator for the District Attorney's Office, Williams said that he knew a killing was going to happen "at this time [prior to the shooting]" and he believed "someone was going to die." (RT 14914, 14919.) Nonetheless, he continued to help Bryant by serving as a lookout before and after the murder, buzzing Annstrong and Brown into the sally port area, and moving the car. Having been charged with the crime, and having assisted in the crime, with knowledge that it was going to occur, Williams is an accomplice as a matter of law. That Williams may have been afraid of the other defendants is not relevant because it is well-established that duress is not a defense to murder. (People v. Son (2000) 79 Cal.App.4th 224,233.) The trial court's insistence that Williams must be "guilty" of murder to be an accomplice is not only directly contrary to Gordon, supra, it also defeats the very purpose of the statute -- to ensure that the testimony of erstwhile defendants, 55 • • • • • • • • • • • • • • • • • • • • • who have been granted immunity or other favorable treatment by the prosecution, is taken with a healthy grain of salt. The trial court's construction of the statute would allow the prosecution to control whether their cooperating witnesses would be treated as accomplices and whether their testimony would be subject to the corroboration requirement and cautionary instructions. As long as the prosecutor dropped charges against the witness, he or she could not be "guilty" of the same offenses as the defendant, and his or her testimony would be accorded the same weight as any other witness. This would perversely treat as most credible those witnesses who received the most favorable treatment in exchange for their testimony exactly the opposite of what the statute and common law intended. (People v. Tobias, supra, 25 Ca1.4th at p. 331; People v. Guiuan, supra, 18 Ca1.4th at p. 570; People v. Dail, supra, 22 Ca1.2d at p. 655; People v. Coffey, supra, 161 Cal. 433, 438.) This is precisely the issue that confused the jury (infra, Argument I-C), as evidenced by its question after returning the verdict as to appellant, but while continuing deliberations as to Settle, asking whether someone who had once been charged with a crime but was not tried was an accomplice. At the time the verdict was reached as to appellant, the jury did not understand this crucial principle. The trial court also reasoned that Williams was not an accomplice as a matter of law because he denied having advanced knowledge that the murders would occur. To treat the witness' self-serving exculpatory statements as dispositive of his accomplice status is also inconsistent with the purpose of the statute. Indeed, if this were the standard, then neither Bryant, Wheeler, nor Settle would be accomplices, because they all denied their guilt. In fact, apart from Williams's self-serving testimony, the evidence against him would have been at least as strong as, if not stronger than, the evidence against appellant. Williams worked for the Bryant family dealing drugs, and he admitted being present at the murders. The jury rejecting his self-serving 56 testimony would place Williams in the same situation as if he had not testified. In such a case the evidence would show that Williams was a drug dealer for an organization that employed its dealers (Wheeler and Settle) to commit murder. Other facts also point to Williams's guilt. He fled immediately after the murder, showing consciousness of guilt (Pen. Code § 1127c.),· and knowing a murder was about to happen he acted as a lookout for Armstrong and Brown prior to the murders, buzzing them into the sally po~ and helping move the cars to transport the bodies while the murder was going on. Thus, had the prosecution not given Williams immunity he would not only have been "liable to prosecution," he could have been convicted of these offenses. Even if the evidence were not sufficient to establish Williams's direct knowledge of the murders, he should have been deemed an accomplice as a matter of law either because (1) he was an accomplice to other, related offenses for which appellant was also tried and/or (2) because the murders were a natural and probable consequence of William's involvement in the Bryant criminal organization. Section 1111 defines accomplice status according to the offense "charged against" the defendant as opposed to "the offense for which the defendant is tried." In this case, appellant was charged not only with murder but also with one count of operating a narcotics ring based on his participation in the drug business (Pen. Code § 182, Health and Saf. Code § 11352) and one count of conspiracy to avoid prosecution and/or conceal a crime (Pen. Code § 32/182) based on the post- homicide events, including Williams leaving town to help cover up the murder. (CT 4807-481 L) It was undisputed that Williams was selling drugs for Bryant, i.e. participating in the narcotics ring, and that he left town after the murders to thwart prosecution for the crimes. He was therefore liable to prosecution for the same offenses charged against appellant, Le., he is an accomplice. The words in the statute must be given "their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2 Ca1.4th 593, 601; see also People v. Cicero 57 • • • • • • • • • • • • • , • • • • , • • (1984) 157 Cal.App.3d 465, 477; People v. Pitmon (1985) 170 Cal.App.3d 38,49- 50 - e'Whenever possible, we must give effect to every word in a statute and avoid a construction making a statutory term surplusage or meaningless."].) This court may not substitute "is liable to prosecution for the identical of- fense charged against" with the phrase "is liable to prosecution for the identical offense for which the defendant is being tried." To re-write the statute in this manner would render the phrase "charged against" meaningless 15. This case presents compelling reasons to follow the literal interpretation of the "charged against" language to include the original offenses charged against appellant, including the charge of participating in the narcotics organization: The only reason the court severed the narcotics ring offense from the murders was be- cause of the practical problems of trying so many defendants together. (RT 3923- 3933,3943,3974-3978,3796.) It was purely fortuitous that the court, in addition to severing out the non- capital defendants, also severed the counts involving sales of narcotics. If the court had severed only the parties, the case against appellant would have consisted of four counts of murder, one count of attempted murder, and one count of partici- pating in a narcotics ring. In that situation, Williams would have been an accom- plice because of his role in the operation of the narcotics ring. If the murder and drug charges had been tried jointly, Williams's credibility could not have been "bifurcated" so that he was considered an accomplice when he testified as to one 15 In the alternative, if there is some question as to the meaning of section 1111, this Court should interpret the section in a manner favorable to appellant. It is an- other basic rule of statutory construction that in criminal law any doubts as to the meaning of a statute must be resolved in the defendant's favor. (In re Tarter (1959) 52 Ca1.2d 250, 257. "[W]hen language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more fa- vorable to the offender will be adopted. The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute." (see also People v. Davis (1981) 29 Ca1.3d 814, 828-829.) 58 crime but not when testifYing as to another17• It is therefore purely arbitrary for Williams to be stripped of his accomplice status, and accorded greater credibility as a witness, solely because some charges in the case were severed before trial as a matter of case-management convenience. Such a result would be inconsistent with Gordon, supra, which establishes that accomplice status is determined as of the time of the crime, not the triaL Such a result would be inconsistent with the very essence of the accomplice rule, which evaluates a witness's testimony on the basis of his actions, rather than on the fortuity of a chance procedural event or condition affecting pre-trial motions. Williams was an accomplice based on his role in the Bryant drug organization, and he remained an accomplice notwithstanding the severance of that one charge. Williams's status as an accomplice is even more apparent when his conduct is evaluated under the principles relating to aiding and abetting. As explained above, the trial court held that Williams was not an accomplice because he denied knowledge of the plan to kill Armstrong and Brown. However, under the principles of accomplice liability, even without this specific knowledge, Williams could have been convicted of murder under the theory that the homicides were a natural and probable consequence of serving as a lieutenant in a major drug carteL The question in this case is whether being engaged as a narcotics dealer in one of the largest narcotics rings in Southern California, in which killings, beatings, threats, and witness intimidation were routine business practices - as the 17 When he testifies that he buzzed Armstrong in, was he describing letting in a drug customer or a murder victim? When he testified about the company car, was he testifYing about going to work in the count house or his actions on the day of the murder? What standard should the jury use in evaluating this testimony? 59 • • • • • • • • • • • • • • • • • • • • • prosecution argued (RT 16430S-16430T) - was likely to result in someone's death. Williams went to work at the drug house that day intending to sell narcotics as part of the most violent drug organization in the city. While he was there, a turf war over the business came to fruition and some people were murdered. Such violent disputes are arguably a natural and probable consequence of the type of business in which Williams was knowingly employed. Further, even if the specific intent for first degree murder cannot be vicariously attributed to Williams as an accomplice, he could still be liable for second degree murder if the murders were a direct result of the commission of a felony inherently dangerous to human life -- participation in a violent, large-scale narcotics trafficking organization, where fireanns are tools of the trade. (People v. Glaser (1995) 11 Ca1.4th 354,358.) It must be remembered that appellant was convicted of two counts of second degree murder. If Williams could have been convicted of second degree felony murder rule for participating in a felony inherently dangerous to human life selling narcotics as part of a major drug cartel - then he is guilty of the identical offense for which appellant was convicted. Consequently, even accepting Williams's testimony in full, he would still be an accomplice as a matter of law because is guilty of the same offense for which appellant was convicted. Contrary to the trial court's view, it is not necessary that a jury ultimately fmd - by conviction -- that both the witness and the defendant have identical liability for each and every charge. This would lead to the absurd results, described above, wherein the jury would be asked to treat the witness's testimony skeptically as to some charges but not others. For example, appellant was not convicted of the same offenses as Wheeler and Bryant Can it seriously be contended that appellant is not an accomplice in this offense? 60 Likewise, in the penalty phase, the jury was instructed that in the Gentry murder, Annstrong was an accomplice as a matter of law. (RT 15834.) Ann- strong was the actual shooter in that murder. However, if one were to apply the overly strict standard of "identical offense" that the trial court applied with respect to Williams, Annstrong would not be an accomplice of the people who hired him to commit murder because ultimately Annstrong was only convicted of voluntary manslaughter. Therefore, it must be recognized that if a witness is an accomplice to some of the charged counts, he must be regarded as an accomplice for the case as a whole. In this case, Williams was charged with the identical offenses as appellant. There was enough evidence so that he could have been convicted of the identical offenses. He was without a doubt an accomplice in many of the other offenses that were originally charged against the appellants in this case and the original, severed defendants. His role as an accomplice to those offenses, under an aiding and abetting/natural and probable consequences test, could have supported a con- viction for the same offenses for which appellant was ultimately convicted. Therefore, he must be regarded as an accomplice. 7. The Reason for the Accomplice Rule Applies to Williams. All the reasons for distrusting accomplice testimony apply to Williams: As noted, accomplices are distrusted because they have an overwhelming motive to shift blame to others in order to save themselves. Williams testified that he thought he would not have received immunity if the police thought he was the shooter. (RT 12552.) At that time, he then cast blame on the others. On another occasion, Williams told people that if he had known that no one had identified him he would never have given a statement to the police. (RT 11916.) Therefore, he only reason Williams decided to talk was because he 61 • • • • • • • • • • • ,on: ill [:!IJi U til . H 1 • • • • • • • • • • • t i .- i Iii f t , thought that he had been identified as being involved in the murder and that by giving a statement shifting the blame to others he could be off the hook. Williams was not a savory character. At best, he was a long time drug dealer. Apart from his days of dealing for the Bryants, he has two felony convictions for narcotics and having a gun during a narcotics offense. (RT 12277- 12278.) After he fled California, Williams got a job, at which he stole money by forging his boss's signature on time cards. (RT 12386.) Williams was facing the death penalty, charged with four counts of murder. His statement to police minimized his own responsibility, claiming that he did not know the murders were going to happen, that he just happened to be there, and that he had no role in the murder except as an unwilling aid He shifted all of the blame to appellant, Bryant, Wheeler, and Settle. In exchange for his testimony, Williams received immunity from prosecution. This is precisely the type of case for which the rule requiring corroboration for accomplice testimony was created. As the defense argued, one must consider what would have happened if Williams had not made the statement in Pennsylvania, but had asserted his right to silence, and remained a defendant. (RT 16698-16699.) Had this happened, there would have been sufficient evidence to convict Williams of four counts of murder. This is true whether or not Williams had taken the stand on his own behalf, as the jury could have rejected his denial of guilt in the same manner in which they rejected the denial of guilt testified to by Bryant and Wheeler. If the reason accomplice testimony is suspect is because the accomplice has a vested interest in minimizing his role, there was never a clearer illustration of that than James Williams, a man who escaped death because he minimized his role. By relying on the very story that Williams gave to save his skin as the reason not to consider him an accomplice, the trial court stood the accomplice testimony rule on its head. To determine accomplice status based on the 62 self-serving statement ignores the reason for distrusting that statement, and en- shrines the accomplice's self-serving statement as accepted truth. Based on the foregoing, the trial court erred in failing to find Williams an accomplice as a matter of law. 8. Williams's testimony Was Not Sufficiently Corroborated Judge Horan was correct in concluding that if Williams was an accomplice, his testimony was not sufficiently corroborated to sustain appellant's conviction. Appellant's motion for judgment of acquittal therefore should have been granted and the conviction must be reversed. a. General Principles Relating to Corroboration The prosecution has the burden of producing independent evidence to cor- roborate the testimony of an accomplice. (People v. Cooks (1983) 141 Cal.App.3d 224.) The accomplice's testimony must be sufficiently substantiated so as to es- tablish his credibility and satisfy the jury that he is telling the truth. (People v. Rodrigues (1994) 8 Ca1.4th 1060, 1128; People v. Szeto (1981) 29 Ca1.3d 20, 27; People v. Martinez (1982) 132 Cal.App.3d 119, 132.) The corroborative evidence "must relate to some act or fact which is an element of the crime" so that it directly connects the defendant to the charged of- fense. (See e.g, People v. Rodrigues, supra, 8 Ca1.4th 1060, 1128; People v. Zapiens (1993) 4 Ca1.4th 929, 982). It must be sufficient, without aid from the testimony of the accomplice, to implicate the defendant. lfthe remaining evidence requires interpretation and direction by the accomplice's testimony to give it value, the corroboration is not sufficient. (People v. Reingold (1948) 87 Cal.App.2d 382, 392-393; People v. Falconer (1988) 201 Ca1.App.3d 1540, 1543.) Corroboration of an accomplice's testimony as to non-inculpatory facts is also insufficient because "if there is no inculpatory evidence, there is no corrobo- ration, though the accomplice may be corroborated in regard to any number of 63 • • • • • • • • • • • • • • • • • • • " • • 'M111 U!,(J t L ut ," -" f fI i1 .Jit i 1? 1 j facts sworn to by him." (People v. Lohman (197) 6 Cal.App.3d at 766, quoting People v. Morton (1903) 139 Cal. 719, 724.). Evidence that only gives rise to a suspicion, even a "grave" suspicion, of guilt will not corroborate an accomplice's testimony. (People v. Szeto, supra, 29 Ca1.3d at p. 43; see CALJIC Nos. 3.10-3.13, 3.18.) Extrajudicial statements of accomplices are also insufficient to corroborate accomplice testimony because, although the out-of-court statement is not part of the testimony, it still "comes from a tainted source." (People v. Andrews (1989) 49 Ca1.3d 200,214; People v. Belton (1979) 23 Ca1.3d 516, 524-526.) Therefore, Williams's prior statements therefore may not be considered as corroboration. (People v. Andrews, supra, 49 Ca1.3d 200 citing People v. Bowley (1963) 59 Ca1.2d 855, 859.); Likewise, accomplices cannot corroborate each other. (People v. Garceau (1993) 6 Ca1.4th 140, 182, citing People v. Clapp (1944) 24 Ca1.2d 835, 837.) Thus, the testimony of Settle, Bryant, or Wheeler cannot be used to corroborate Williams. As will be discussed (infra Argument I-F), Tannis Curry, Bryant's ex- wife, who may have been involved is setting up Armstrong for murder, was also an accomplice, so evidence originating from her may not be considered as cor- roboration for Williams's testimony. b. Examples of Insufficient Corroboration Association with other people involved in the crime is not sufficient cor- roboration. "It is not with the thief that the connection must be had, but with the commission of the crime itself." (People v. Robinson (1964) 61 Ca1.2d 373, 400, In re Ricky B. (1978) 82 Cal.App.3d 106,111.) Thus, in People v. Falconer, supra, 201 Cal.App.3d several intruders at- tempted to steal marijuana plants from the victim. One of the intruders testified that the defendant had planned the raid and did several acts in furtherance of the plan, returning with the others to commit the robbery. (Id., at p. 1542.) The cor- 64 roborating evidence established that the defendant was the father of one of the in- truders, that he visited the victim's residence before the robbery, and knew the vic- tim grew marijuana. (ld., at p. 1543.) This evidence was held insufficient as a matter of law to corroborate the accomplice's testimony because it only connected the defendant with the perpetrators, not with the crime. (ld., at pp. 1543-1544.) Similarly, in People v. Robinson, supra, 61 CaL2d 373 the only evidence inCUlpating the defendant were his fingerprints on a car involved in the offense, the fact that he gave conflicting and evasive replies when accused of involvement in the offense, and an adoptive admission, which implicated him. This Court held that none of those three items, independently or cumulatively, were sufficient to corroborate the statements of the accomplice. (ld., at p. 398.) "Evidence of mere opportunity to commit a crime is" also "not sufficient corroboration." (People v. Boyce (1980) 110 CaLApp.3d 726, 737.) Thus, evi- dence that the defendant knew the victims, their schedules, and where they lived, that he was a friend of one of the participants in the scheme, and that he had been to his home at about the same time that the stolen goods were delivered was not sufficient corroboration, because it established only that he had the opportunity to commit the offenses. (ld., atp. 736-737.) c. Examples of Sufficient Corroboration Accomplice testimony may be corroborated by "direct physical evidence that does not rely on witness credibility." (People v. Narvaez (2002) 104 Cal.App. 4th 1295, 1305.) In Narvaez, evidence that the defendant, who had no apparent source of money, had gone on a spending spree in Las Vegas and was found to be in possession of large amounts of cash bundled in the same manner as money sto- len in the robbery was sufficient corroboration. (ld., at p. 1305.) 65 • • • • • • • • • • • -«hi: 87 • • • • • • t , • • • i ~ tWIn I I FYI Although Narvaez stated that the relationship of the parties may be considered in determining whether there is sufficient corroboration for accomplice testimony, it did not say that such evidence was sufficient by itself. 18. In People v. Andrews, supra, 49 Ca1.3d 200, 211 sufficient corroboration was found where the defendant's fmgerprints were found on the floor of the murder scene an inch from the body, and the defendant admitted his guilt to other people. (Id., at p. 211.) In People v. Zapien, supra, 4 Ca1.4th 929, 982 corroborating evidence included the fact that the defendant was seen shortly after the murder with blood on his person, he left town on a bus, the victim's car was found abandoned at the bus station, and the defendant's fmgerprint was found on the gearshift lever, indicating that he was the last person to have driven the vehicle. (Id., at pp. 982- 983.) Sufficient corroboration thus generally consists of physical evidence - such as possession of stolen property or fmgerprints -- or admissions that connect the defendant to the particular crime. The allegedly corroborating evidence presented in this case, as the judge correctly observed, fell far short. 18 Narvaez cited two cases, People v. Henderson (1949) 34 Ca1.2d 340 and People v. Williams (1954) 128 CaLApp.2d 458 for the proposition that evidence concerning the relationship of the parties "may be taken into consideration by the jury in determining the sufficiency of the corroboration of an accomplice's testimony" (Narvaez , at p. 1205). However, in both cases there was other corroboration beyond the relationship of the parties. In Henderson, witnesses testified that the defendant and accomplice were together most of the day preceding the attempted robbery and a few hours before the robbery. A non- accomplice witness testified that she sold the type of gun used in the robbery to the defendant and it was taken from her home shortly before the robbery. (Henderson, supra, at p.343.) Thus, Henderson was connected to facts relating to the offense the weapon used. In Williams, the defendant's car, loaded with stolen goods, was found at the scene of the burglary, he attempted to avoid detection, gave an assumed name when apprehended, and he was in possession of other stolen goods. 66 9. The Acts Relied on Herein are Insufficient for Corroborative Purposes In this case, the acts relied on by the prosecution as corroboration for ac- complice testimony merely tended to connect appellant to the other defendants and to the victims, but not to the offense. As explained above, the sufficiency of the corroborative evidence is deter- mined by viewing the case without the accomplice testimony. (Ante, at p. 63, CALJIC No. 3.12) If the remaining testimony does not implicate the defendant in the charged crimes, the corroborative evidence is insufficient. Of the scores of non-accomplice witnesses presented, very few had any relevance to appellant. Most of the trial involved the details of the drug business, such as the arrests at the other crack houses and the manner in which the business operated. This evidence proved the ultimate motive - protecting the business from a takeover. It also connected the Wheeler A venue house to the Bryant family in the similarity of the way in which Bryant family houses were run. None of this connected appellant to the offense. Apart from the suspect testimony of Williams there are four possible items of evidence which arguably corroborate his testimony: 1. Evidence of the Curry shooting; 2. Evidence arising from appellant's arrest, particularly the possession of cocaine; 3. Evidence relating to phone calls between appellant, Armstrong, Bryant, and the Wheeler Avenue drug house; and 4. Evidence that Settle may have helped bail appellant out of jail. Appellant contends some of the evidence, such as evidence of the Curry shooting or the drugs possessed by appellant at the time of his arrest were inadmissible. (See Section IV, below.) However, even if properly admitted, individually and/or collectively, this evidence only connects appellant to the parties, not to the offense. For example, the evidence of the Curry shooting suggests that appellant may have worked for Bryant, but it does not connect him to this particular crime. The connection to this crime is particularly important because the Bryants had 67 • • • • • • • • • • • • • • • • • • • • • • other people who did this type of work,19 as seen by the fact that there was no claim that appellant was involved in the bombing or second shooting of Curry, the beating on Francine Smith, or any of the other acts of violence attributed to the family. Establishing that appellant was one of 150 to 200 employees of the Bryant family (RT 9891), many of whom allegedly committed acts of violence for them, does not show appellant committed this offense. Similarly, the evidence that appellant possessed cocaine and that Settle bailed him out of jail may suggest that appellant worked for Bryant but does not connect him to this offense. Finally, the fact that appellant made phone calls to Armstrong and Bryant, Wheeler, and the Wheeler Avenue and that Armstrong used appellant's phone number as his own20 only proves that appellant was selling drugs for the organization and that he, Bryant, Wheeler, Armstrong, and other people knew each other; it establishes no connection to the crime. Thus, all of the evidence mentioned above is merely four ways of showing that appellant knew the various parties involved in this case and had some association with them. However, as Judge Alex Kozinsky has explained, "Saying the same thing twice gives it no more weight." (Hammer v. Gross (9th Cir., 1991) 932 F.2d 842, 852.) This case is therefore similar to People v. Falconer, supra, 201 Cal.App.3d 1540, where evidence showing only a relationship between the parties was deemed to be insufficient corroboration. 19 Antonio Johnson, one of the original capital defendants, for example, was a long time member of the family according to his probation report. His fingerprints were found at the Wheeler Avenue residence. (RT 13282-13283.) At a minimum, he helped clean up after the murders. There were also "strong suspicions" that he may have been involved in other acts of violence for the family. (CT 16327.) Newbill, another of the original capital defendants, was also a major participant in the Bryant organization; his fmgerprints were also found at the murder scene. 20 The testimony of Karen Flowers. 68 In fact, even the evidence of appellant's relation to the Bryant organization was comparatively weak. Appellant was not one of the people on the list of em- ployees found at Wheeler Avenue. His name was not on the ninety-minute sched- ule of work shifts for Wheeler Avenue. Compared to others, whose names popped up continually in the course of the trial, appellant is most notable for the lack of evidence connecting him to the family. His name was not on any of the paper- work, such as utilities bills, deeds, invoices, receipts, work orders, or any other paper work connected to the business. The association evidence in the form of phone calls and evidence of prior relationships between Smith and other people involved in the case is analogous to gang membership, which is insufficient to serve as a basis for liability. (See Mitchell v. Prunty (1997) 107 F.3d 1337, 1342, [evidence of gang membership in itself is not proof of guilt as an aider and abettor] overruled on other grounds in Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242.) Again, all this evidence does is connect appellant to a large class of poten- tial suspects, not to the offense itself. For the foregoing reasons, appellant submits that there was insufficient evidence to corroborate the accomplice testimony. 10. The Trial Court's Errors in Finding Williams was not an Accomplice In ruling that Williams was not an accomplice as a matter of law, the trial court applied an incorrect legal standard, stating three times that an accomplice is someone who is also guilty of the same offense as the defendant. As discussed above, this defeats the purpose of the accomplice testimony rule by exempting from the rule those who receive the most favorable treatment - having all charges dropped -- in exchange for their testimony. The trial court's reliance on Wil- liams's self-serving, exculpatory testimony to conclude that Williams was not an accomplice is similarly contrary to the purpose of the rule. Accomplice testimony is suspect and thus requires corroboration precisely because the law recognizes that co-perpetrators have a powerful incentive to minimize their own culpability 69 • • • • • • • • • • • • • • • • • • • • • • 111 1 r t I. recognizes that co-perpetrators have a powerful incentive to minimize their own culpability and incriminate others, particularly when they are receiving favorable treatment - such as complete immunity from prosecution -- in exchange for their testimony. Similarly, Judge Horan stated that Williams was not an accomplice because there was not sufficient evidence to show that he shared the requisite intent. (RT 14455.) However, "sufficient evidence" is the standard to be applied in determining whether there is enough evidence to sustain a verdict. It is not the standard for the determination of accomplice status under section 1111. Rather, the statutory test for an accomplice is whether the person is "liable to prosecution, i.e., whether there is probable cause to believe he is an accomplice. (Ante, at p. 52-53.) Finally, the trial court's rationale that there was not sufficient evidence that Williams shared the requisite intent was also legally incorrect for another reason. (RT 14454.) Because Williams could have been found guilty of the offenses for which appellant was convicted as an aider and abettor or under a second-degree felony murder theory, he did not have to have the specific intent required for first degree murder. In summary, Williams should have been treated as an accomplice. He was charged with the same offenses as appellant, and the only reason he was not tried with appellant was because he entered a deal, receiving immunity in exchange for his testimony minimizing his own role in the offenses while incriminating appellant. This is precisely the type of case to which the accomplice testimony rule is intended to apply. The trial court correctly concluded that if Williams was found to be an accomplice the jury would have to acquit appellant, as there was insufficient evidence to corroborate his testimony. (ante, at p. 48; RT 14458.) Deference is due to the trial court's conclusion in this type of matter because of the fact that he trial court saw the testimony and because of " '[its] 70 powers of observation, their understanding of trial techniques, and their broad judicial experience' ". (People v. Hardy (1992) 2 Ca1.4th 86, 160; People v. Sanders (1990) 51 Ca1.3d 471,501.). Because Williams was an accomplice, and because there was no corroboration, convictions must therefore be reversed. 71 • • • • • • • • • • • • • • • • • • • • • B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURy THAT WILLIAMS AND TANNIS CURRy WERE ACCOMPLICES AS A MATTER OF LAW As shown in the prior section, Williams must be regarded as an accomplice as a matter of law. Consequently, the trial court erred in refusing instructions requested by the defense pursuant to CALnC No. 3.16 that would have infonned the jury that Williams was an accomplice as a matter of law and required the jury to find corroboration relating to the offense. (RT 16208.) Similarly, as will be shown, Tannis Curry was an accomplice as a matter of law, and therefore the court erred in not infonning the jury of that fact. 1. The Relevant Law The defense requested that the jury be instructed that Williams was an accomplice as a matter of law. The court denied this request, stating that there was a dispute in the evidence as to "when he came upon the knowledge" that the murders were occurring or going to occur. (RT 16208-16209.) Regardless of when Williams "came upon the knowledge," he met the statutory definition of "accomplice:" He was liable to prosecution for the offenses charged against appellant, and he knew the murders were happening when he was helping facilitate them. Similarly, Tannis was originally charged as a capital defendant. She was not only "liable to prosecution for the identical offense," she was prosecuted, before receiving immunity. It appears that Tannis was supposed to go with Annstrong to the fatal meeting as Annstrong's backup. Tannis's role appears to be the identical role that the prosecution has assigned to appellant, luring Armstrong to his death as a guarantee that he would be safe because of her presence. (RT 13841-13842, 1655l.) As a result, Tannis must be regarded as an accomplice as a matter oflaw. 72 CALJIC No. 3.16 must be given by the trial court when a witness is an ac- complice as a matter of law. Failure to give this instruction allows a jury to con- vict without the needed corroboration. (People v. Robinson, supra, 61 Ca1.2d 373, 394-396; People v. Dailey (1960) 179 Cal.App.2d 482,485-486.) It has long been established that trial court must properly instruct the jury on the correct principles of law which are necessary to the correct factual resolu- tion of the case: " 'The general rule is that the trial court must instruct the jury on the general principles of law relevant to the issues raised by the evi- dence, even though not requested to do so, but need not instruct on its own motion on specific points developed at the triaL' [Citation.]" (People v. Harris (1989) 47 CaL3d 1047, 1096; People v. Sedeno (1974) 10 Ca1.3d 703, 715.) When a judge fails in his or her duty to assure the jury's proper conduct and determination of questions of law involving "constitutional requirements," the due process clause of the Fourteenth Amendment is implicated. (McDowell v. Calderon, (9th Cir. 1997) 130 F.3d 833 at 839; Estelle v. McGuire (1991) 502 US 62.) The practice of instructing the jury to be skeptical of accomplice testimony was developed to ensure the fairness of the trial and the reliability of the verdict. (Phelps v. United States, supra, 252 Fold 49, 52; People v. Graham (1978) 83 Cal.App.3d 736, 742.) "Fundamental fairness" is the essence of the due process protection pro- vided by our state Constitution. (See People v. Ramos (1984) 37 CaL3d 136, 153). The "Due Process Clause" of the federal constitution similarly "ensures funda- mental fairness in the determination of guilt at trial." (Albright v. Oliver (1994) 510 U.S. 266, 283; accord United States v. Valenzuela-Bernal (1982) 458 U.S. 858,872; Spencer v. Texas (1967) 385 U.S. 554, 563-564.) Thus, although the administration of justice is generally left to the individ- ual states, the action complained of will constitute a violation of the Due Process . 73 • • • • • • • • • • • • • • • • • • • • • • Clause because if "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamentaL" (internal quotations marks omitted.) (Montana v. EglehojJ(l996) 518 U.S. 37, 43; Patterson v. New York (1977) 432 U.S. 197,201-202.) The historical role of the accomplice cautionary instruction is well docu- mented. (See People v. Guiuan, supra, 18 Ca1.4th 558, 572-573.) The concept is recognized as an important component of the defendant's right to a fair trial and to a reliable jury verdict. (Ibid.) Even those states that do not require corroboration of accomplice testimony to sustain a conviction do follow the common Jaw requirement that the jury must be instructed to review the uncorroborated testimony of an accomplice with cau- tion. (O'Meally, Edmund J., Survey of Maryland Court of Appeals Decisions, Maryland Law Review (1983) p. 573, :tn. 20, citing 7 1. Wigmore, Evidence, su- pra, § 2060, at 451). Thus, it is universal that some form of instruction should be given to the jury when it is considering accomplice testimon/o. In this case, be- cause the jury was not told that Williams was an accomplice, the jury did not have to find corroboration or view his testimony with caution. Because some form of prophylactic measure is universally required for ac- complice testimony, the failure to instruct the jury in this case that Williams was an accomplice as a matter of law "offends [ a] principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." The failure to inform the jury that Williams was an accomplice as a matter of law therefore violated due process. 20 In fact, the universally recognized need to question accomplice testimony ex- tends beyond American jurisprudence. (See Peiris, Corroboration In Judicial Pro- ceedings: English, South African And Sri Lankan Law on The Testimony of Ac- complices, 30 INT'L. & COMPo L. Q. 682 (1981.)) 74 Furthennore, the error described above so infected the trial with unfairness as to render the convictions a denial of due process oflaw. (Ante, at p. 52.) This error also deprived appellant of a jury detennination of his guilt or innocence, as guaranteed by the Sixth Amendment to the Constitution, because the jury was not properly instructed to make the factual detenninations necessary for a conviction. (In re Winship, supra, 397 U.S. 358.) 2. Prejudice It is well established that an error in an instruction will require a reversal when the jury is misdirected or misled upon an issue vital to the defense and the evidence "does not point unerringly to the guilt of the person accused." (People v. Rogers (1943) 22 Ca1.2d 787,807.) In this case, because Williams's testimony was central to the prosecution's case, it was essential that the jury be correctly instructed as to his status. Whether Williams was an accomplice detennined whether the jury would follow the cor- roboration requirement and whether it would treat Williams's testimony with the skepticism required by CALJIC No. 3.18. As the trial court acknowledged, the case against appellant was "very close," and there was no evidence to corroborate Williams's testimony. (ante, at p.48). Indeed, the lack of evidence connecting appellant to the murders is striking. "The absence of evidence, like Sherlock Holmes' curious incident of the dog in the nighttime which did not bark, may have as great an impact on the substantiality of a case as any which is produced, for the absence of evidence which would nonnally be forthcoming can undermine the solidity of the proof relied on to support a finding of guilt." People v. Blakeslee (1969) 2 Cal.App.3d 831, 839, citing People v. Hall (1964) 62 Ca1.2d 104, 111, referring to (2 Doyle, Sil- ver Blaze, in The Annotated Sherlock Holmes (Baring-Gould ed. 1967) pp. 277, 280.) 75 • • • • • • • • • • • • , ... ,. • • • • What evidence would nonnally be forthcoming that is lacking from this case? It is true that appellant is related to Bryant by marriage. This may explain a certain level of contact between them. However, appellant's name is largely ab- sent from the evidence concerning the Bryant family business. For example, Detective Lambert prepared chart of Bryant organization. Al- though he placed most of the players in the organization, he did not include appel- lant in this group. (RT 2430.) Similarly, Detective Dumelle identified an impres- sive number of people associated with the Bryant family. Appellant's name was not among them. (RT 9635-9636, 9663, 9703-9704,9952-9953, 9949.) The evidence regarding appellant's purported role in the Bryant family or- ganization paled in comparison to the evidence concerning other people, some charged, some not charged, some originally charged as capital defendants, some granted immunity. Walton, one of the drug dealers for the family, recognized appellant, but did not know anything else about him, and never saw him with the other people in- volved in this case. (RT 10705-10709.) Walton was present at a meeting at the pool hall to discuss changes in the manner of operations. (RT 10689-10690.) Appellant was in the pool hall at the time, but Walton was uncertain if appellant was involved in the meeting. (RT 10690, 10709-10710.) While all those participating in the meeting initialed the ninety-minute schedule, appellant's name is not on the schedule. (RT 8694, 10690, 12248.) This creates a strong inference that appellant was not involved in the meeting, lessening further his involvement with the organization. Similarly, appellant's phone number is not on the beeper list found on the kitchen wall of Wheeler Avenue, a list which contained many of the other partici- pants in the organization. (RT 8696, Item 30 of Exhibit 39.) A photo album re- covered from Wheeler contained pictures of many of the employees of the Bryant family. (RT 12008-12011.) Appellant's picture was not in the album. 76 Other than Williams, none of the witnesses tied appellant to the Bryant drug business; none of the slew of witnesses who testified about the organization had seen appellant at any of the drug houses. Ladell Player and Reynard Tillman were shown hundreds of pictures of people, many of whom (including Bryant, Wheeler, Settle, Nash, Johnson, A. Set- tle, and Tannis) they were able to identifY by name and the person's role in or- ganization. (RT 10341-10342, 10373-10374.) In contrast, they did not know ap- pellant and were not able to place appellant as a member of the organization. (R T 10353, 10376-10377, 15813-15814.) Appellant's name is not on the trail of deeds or bills related to any of the properties associated with the Bryant business. Appellant was not arrested or ever seen in any of the "uniquely Bryant" crack houses. The lack of evidence concerning the crime itself is similarly deafening in its silence. Although, according to Williams, appellant arrived at Wheeler Avenue separately from the others. (RT 12294), no one saw him arrive. No one identified him leaving. The prosecution's theory was that appellant left the scene in the car containing the bodies of Armstrong and Brown. What happened to the car in which appellant allegedly arrived is not known. Although Williams testified that appellant had been in the Wheeler Avenue residence before, nothing in the house could be traced to appellant. There was no physical evidence connecting appellant to the scene, such as fingerprint evidence, documents, or other real evidence. No traces or objects from the crime scene were ever linked to appellant. No weapons connected with Wheeler Avenue were traced to appellant -- unlike Bryant21 . 2l An expended A5-caliber casing was found in the garbage can in the kitchen at Wheeler Avenue. (RT 8624.) Ballistics indicated that it was fired from People's Exhibit No. 152. (RT 13166-13172.) Greer identified that gun as a gun that he brought to Los Angeles from Brown to give to Bryant. (RT 11590-11592.) 77 • • • • • • • • • • • • • , • • • Thus, as Judge Horan recognized, the prosecution's case against appellant depended almost entirely on Williams's testimony. Judge Horan believed.the jury would have to acquit if it found Williams to be an accomplice. (RT 14457-14458.) Because Williams's accomplice status was a dispositive issue in the case, the fail- ure to instruct that Williams was an accomplice as a matter of law was highly prejudicial. Moreover, the prosecutor exploited the trial court's error by arguing to the jury in closing that in order for Williams to be an accomplice he had to be guilty of the same crimes as the defendants. (RT 16505.) For the reasons explained above (ante, at p. 52-53) this was an incorrect statement of the law. A prosecutor's closing argument is an especially critical period of trial. (People v. Alverson (1964) 60 Ca1.2d 803, 805.) Since it comes from an official representative of the People, it carries great weight and must therefore be reasonably objective. (People v. Talle (1952) 111 Cal.App.2d 650111 Ca1.App.2d at p. 677.) Thus, when a prosecutor exploits errors from trial during closing argument, the error is far more likely to be prejudicial to the defendant. (See, e.g., People v. Woodard (1979) 23 Ca1.3d 329,341; People v. Brady (1987) 190 Cal.App.3d 124, 138; People v. Hannon (1977) 19 Cal.3d 588, 603; Garceau v. Woodford (9th Cir. 2001) 275 F3d 769, 777.) The jury deliberated 19 days before reaching a verdict on appellant's case22, and requested a readback of Williams's testimony - both further indications of how close the case against appellant was and how vital Williams's testimony was. (See People v. Williams (1971) 22 Cal.App.3d 38-40; People v. Marcus (1978) 82 CaLApp.3d 477,480). 22 (RT 162875, 162877, 162880, 162883-16892 16940-16944, RT 16960-1, 16960-3, 16960-5, 16961, 162996-16992, 17008-1, 17008-3, 17008-5, 17028, 17033, 17035, 17036-7, 17038, 17040-17047.) 78 The importance of Williams's accomplice status was underscored, as discussed further in Section I-C, infra, by the jury's questions, after convicting appellant but still deliberating as to Settle, which show that it did not understand the instructions defining "accomplice." Jury questions during deliberations, relating to crucial issues in the case, are compelling indicia of prejudice. (People v. Markus (1978) 82 Cal.App.3d 477,482.) The jury in this case asked specifically about the effect of the prosecution dropping charges against a witness originally charged with the same crime as the defendant, and whether lack of corroboration constituted reasonable doubt. (RT 17105H, 17105N, CT 15440-4 L) The trial court acknowledged that the jury's questions appeared to relate to Williams. (RT 17195K.) After the trial court correctly answered that whether a person was an accomplice depended on the facts surrounding the crime, not the charging decisions of the District Attorney (RT 17105H), the jury was unable to convict Settle and hung. The jury was ignorant of these principles when deliberating as to appellant. Furthermore, even if this Court does not agree that Williams is an accom- plice, it cannot be denied that the reasons that make accomplice testimony suspect apply to Williams. A confirmed criminal, present and engaging in nefarious con- duct at the scene of quadruple homicide, in the illegal employ of the ring-leader who orchestrated the murders, working his way up the cartel's ladder, with a mo- tive to minimize his role and implicate others, and receiving immunity from capi- tal charges in exchange for his testimony, Williams is not a pillar of veracity. The net result is the testimony of Williams is highly suspect, even if he is not an accomplice, and any evaluation of the strength of the case must be made with the recognition that regardless of Williams's actual legal status, all the rea- sons that apply to making accomplice testimony suspect apply to Williams. The failure of the trial court to instruct the jury that Williams was an ac- complice as a matter of law was therefore prejudicial error, depriving appellant of 79 • • • • • • • • • • • • • , • the right to a reliable jury detennination of the issues and the right to due process of law. The conviction and sentence entered below must be reversed. 80 C. THE TRIAL COURT ERRED IN REFUSING TO REOPEN JURY DELIBERATIONS, PURSUANT TO SECTION 1161, WHEN, AFTER THE JURY RETURNED A VERDICT AGAINST APPELLANT, BUT WHILE THE JURY WAS DELffiERATING AS TO SETTLE, THE JURY HAD QUESTIONS ABOUT ACCOMPLICE STATUS AND REASONABLE DOUBT. The trial court erred in refusing to reopen jury deliberations when the jury's questions, after it had convicted appellant but was still deliberating as to Settle, demonstrated that the jurors had not understood the court's instructions defming . "accomplice," an issue that the court acknowledged was pivotal to a determination of appellant's guilt or innocence. 1. The Jury Questions and Hearing Below After verdicts were returned as to appellant, while the jury was deliberating as to Settle, the jury sent several notes to the court. The fIrst note asked, "If somebody is charged with a crime but not brought to trial, is he automatically an accomplice in that crime?" CRT 17105H, CT 15440.) In the same note, the jury asked, "Can there be aiding and abetting after the crime was committed?" (CT 15440.) The same day the jury sent a note stating: "I. Page 56 of the instruction states 'A defendant cannot be guilty based upon the testimony of an accomplice unless such testimony is corroborated by other evidence. Doesn't this constitute reasonable doubt if there is no corroboration of same in your mind? II. "If you have reasonable doubt, you are required to vote not guilty. Is that the law?" (CT 15441, RT 17105N.) The defense requested that the deliberations as to appellant be reopened because the jury misunderstood the law on the issue most critical to appellant's defense. (RT 17105E.) Discussing the jury's questions, the court stated that it thought that a person would be an accomplice based on the facts that existed surrounding the crime, not 81 • • • • • • • • • • • • • • • f I r 1 ill r i 1 I. f n' . - ... t- -. 4 by what happens later, and that a person shown to be a principle is an accomplice whether or not he was charged. The court also opined that the District Attorney could not control who is an accomplice through the charging process. (RT 17105H.) The court suggested that the jury appeared to be trying to determine if Williams was an accomplice. (RT 1710SK.) As to the question of whether one could aid and abet an offense after the crime occurred, the court noted that there were possibilities where this could occur if someone agreed to the act before the crime, in order to facilitate the crime. (RT 171051 -17105J.) The court stated that it could ask the jury if this was what it was trying to determine, and thereafter would be able to answer the question giving the jury the specific guidance that it needed. The prosecution was opposed to this idea, while appellant's counsel stated that the defense favored that inquiry. (RT 1710SK.) Subsequently, the court answered the jury's questions as follows: To the question whether a person had to be charged in order to be an accomplice, the court informed the jury that the fact that a person is not brought to trial does not mean that person is not an accomplice, and that a person is an accomplice based on his actions, not whether he is tried. (RT 1710SS.) To the question whether a person can be an accomplice based on actions after the crime, the court informed the jury that if the person agreed to commit those acts before the crime, intending to facilitate the crime, the person would be an accomplice. (RT 17105S-17105U.) To the question regarding reasonable doubt, the court repeated the reasonable doubt instructions given earlier, informing the jury that reasonable doubt is not doubt based on speculation, bias, emotion, or other factors. (RT 1710SW.) To the question whether a reasonable doubt required corroboration, the court stated that this was a rule of law, not relating to reasonable doubt. In this 82 regard, the court explained that if the jury thought a witness was an accomplice, and believed that accomplice beyond a reasonable doubt, the rule of law precluded a conviction. (RT 17105X.) The court answered in the affIrmative the question whether a juror had to vote not guilty if that juror had a reasonable doubt. (RT 17105Y.) After the court answered these and other questions from the jury, appellant's attorney again asked that the deliberations be reopened as to appellant, as it was "painfully clear" that the jury had not understood the law regarding accomplice testimony, which had been appellant's sole defense. (RT 17105BB- 17105CC.) The court denied the request stating that it seemed that one juror was having problems with the issue of corroboration, on the assumption that Williams was an accomplice. (RT 17105CC) 2. The Relevant Law and Its Application to the Case Section 1161 provides, in pertinent part "When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict ... " The language of the statute makes its purpose clear: If after a verdict it becomes likely that the jury may have been mistaken in its understanding of the law, the case should be re-opened. Section 1161 is more than a minor statutory provision. When the language of a jury's request for guidance demonstrates that the jurors are confused about the law due process requires the court to clarify that law for the jury. (McDowell v. Calderon, supra, 130 F.3d 833, 837.) The statute retlects the fact that in dealing with complex issues of law a lay JUry may become confused or misapprehend the law. A defendant's fate, especially in a capital case, should not be set in stone once a verdict is read, when 83 • • • • • • • • • • • • • • • • • it becomes clear, before the jury is discharged, that the verdict was likely based on a misunderstanding of the law. The significance of the questions posed by the jury cannot be overstated in this case. As discussed above, the central issue in appellant's case was whether Williams was an accomplice for purposes of the corroboration requirement and cautionary instruction. Judge Horan believed that if Williams was treated as an accomplice, there was not sufficient evidence to sustain a conviction. The jury's question shows they did not understand the very concepts on which a determination of appellant's guilt or innocence depended. Indeed, when the law was explained correctly, the jury was unable to convict Settle whose guilt or innocence was similarly highly dependent on Williams's testimony. When deliberating appellant's fate, the jurors did not even understand that "If you have reasonable doubt, you are required to vote not guilty." (CT 15441, RT 17105N.) They did not know whether the fact that the prosecution had dropped charges against a person precluded him from being an accomplice and thus eliminated the need for corroboration. The court answered correctly that the prosecutor's decision whether to try a person does not influence whether that person was an accomplice. When informed of the proper principles of law, the jury was not able to convict. If the proceedings had been reopened as to appellant, after this important clarification of the law, the jury would likely have concluded - as at least one juror apparently did with respect to Settle -- that Williams was an accomplice and there was not sufficient corroboration of his testimony. Finally, the jury did not understand whether acts performed after the shooting can make one an accomplice. This was a critical issue with respect to Williams. While deliberating as to appellant, the jury was apparently under the misapprehension that Williams was not an accomplice because when he moved 84 the car and served as a lookout after the shooting, the crime was "over" the shots had been fIred. Believing that Williams was not an accomplice because he did not help the others until the crime was complete, these jurors could have voted to convict appellant based on Williams's testimony alone, even if they believed his testimony was not corroborated. As Judge Horan explained after appellant was convicted, a person who agreed before the crime to facilitate its commission by assisting after the fact would be an accomplice. This issue was crucial because Williams admitted he knew something was going to happen, that people were going to be killed CRT 12321-12322); and that Bryant gave Williams instructions on how to help with the crime after the shooting - move the car, see if anyone is watching. Following the court's correct instruction, at least one juror apparently concluded that Williams was an accomplice and, fmding no corroboration of his testimony, voted to acquit Settle. Each of the jury's questions reveals a misunderstanding of the law that was potentially dispositive of the case. If the trial court had properly granted appellant's motion to reopen deliberations, thereby ensuring that the jury was applying the correct law, appellant could well have been acquitted. It is important to note that the trail court's reasoning at the time that it denied the motion was not rationaL In particular, Judge Horan denied the request to re-open deliberations, stating that it seemed that one juror was having problems with the issue of corroboration, on the assumption that Williams was an accomplice. (RT 17105CC) This was not what the jury was asking. The jury questions did not have to do with the level of corroboration if Williams was an accomplice. Rather, the questions were directed to determining whether someone was an accomplice. This is clear from the question about whether the decision to try a person was relevant to the determination of whether he was an accomplice. 85 • • • • • • • • • • • ~ t .0. PV • • • • • • • • • ;I,;n ij !i. • PF! S_ 3' f Ii XUI,t 1M f t l II Likewise, the question as to whether acts perfonned after the crime could make a person an accomplice is more relevant to the detennination of accomplice status, rather than the question of whether there was corroboration. In fact, this reasoning of the trial court is in conflict with the court's earlier statement that it believed the jury appeared to be trying to detennine if Williams was an accomplice. (RT 17105K.) It was only after the request for re-opening deliberations had been argued that Judge Horan changed his view as to the purpose behind the jury's questions, adopting a view that would make the questions relevant to corroboration, as op- posed to the detennination of accomplice testimony. Misleading or ambiguous instructions violate due process where there is a reasonable likelihood that the jurors misunderstood the applicable law. (Boyde v. California (1990) 494 U.S. 370, 381-381.) In this case, the jurors' questions dem- onstrate a more than reasonable likelihood that the jury did not understand the law as had originally been explained to them in the instructions they had received. As noted above, the presumption of innocence and the Due Process Clause require that the People prove every element of the crime charged beyond a reason- able doubt. (Ante, at p. 45.) Here, the jury's question shows they did not under- stand the correct application of the reasonable doubt standard. The failure to properly instruct the jury also deprived appellant of a jury detennination of his guilt or innocence in violation of the Sixth Amendment right to a jury trial. (ante, at p. 45.) Similarly, the jury's patent confusion concerning several instructions crucial to the outcome of the case undennines the reliability required for death verdicts, contrary to the Eighth and Fourteenth Amendments. (Ante, at p. 51.) Furthennore, the error described above so infected the trial with unfairness as to render the convictions a denial of due process of law. (Ante, at p. 52.) Finally, as noted above (ante, at p. 51-52), depriving appellant of the pro- tections afforded under the principles discussed above is itself is a deprivation of due process, because a misapplication of state law leads to a deprivation of a lib- 86 erty interest, in violation of the Due Process Clause, when that right is of "real substance." Because appellant had a compelling interest in having the jury deliberate with a clear and accurate understanding of the law applicable to crucial issues in the case, the court's refusal to re-open deliberations under section 1161 deprived appellant of a state right of real substance, thereby violating appellant's right to due process oflaw. The judgment entered below therefore must be reversed. 87 • • • • • • • • • • • • • t • • • • • " • D. THE TRIAL COURT ERRED IN INSTRUCTING THE JlJRY THAT AN AIDER AND ABETTOR MAY BE A PRINCIPAL IN THE OFFENSE IF THAT PERSON IS "EQUALLY GUILTY." The trial court erred in instructing the jury that an aider and abettor may be a principal in the offense if that person is "equally guilty." This instruction had the effect of removing the issue of Williams's status as a principal in the offense from the jury's consideration, thereby depriving appellant of the rights to a trial by jury and to due process of law by lessening the degree of proof required to convict appellant. 1. The Instructions Given and the Problem Created In this case, the jury was told that an accomplice is someone "who is subject to prosecution for the identical offense charged against the defendant. .. by reason of aiding and abetting." (CALnC NO. 3.10, given at CT 15510.) Thejury was also told that persons who are regarded as principals and "equally guilty" include those who aid and abet. (CALJIC No. 3.00, given at CT 15507.) Taken together, these instructions could have led the jury to believe that Williams had to be "equally guilty" to be an accomplice. This misstates the law because someone could be charged with the same offense, but ultimately not found guilty and still be an accomplice. Likewise, someone could aid and abet an offense, and therefore be a principal, but be guilty of a lesser offense, i.e., not equally guilty. It is true that section 1111 defines an accomplice as someone "liable to prosecution for the identical offense." But this is not the same as "equally guilty". "Guilt" is different from "liable to prosecution," and the standards that determine those two concepts, as well as the parties that make those two determinations, are different. For example, someone may be "guilty" of the crime, in that he actually committed the offense, and yet not prosecuted because the District Attorney determined that there was not enough legally admissible evidence to pursue the 88 case. Al Capone and others figures from history were clearly guilty, but not "liable to prosecution" due to a lack of admissible evidence. Conversely, someone may be "liable to prosecution" because there is sufficient admissible evidence to believe he committed the offense, i.e. probable cause, and he may be tried and acquitted. He would not be "equally guilty," although he would be an accomplice under section 1111. (Ante, at p. 53.) Likewise, for any number of reasons, the District Attorney may decide to accept a plea to a lesser offense, thereby rendering the other defendant "guilty" of a lesser crime. In fact, this is precisely what happened to Settle who was allowed to plead to manslaughter after the jury was unable to reach a verdict as to his guilt. Thus, in the end, Settle was "guilty" of a lesser crime, but he was "liable to prosecution" for the identical offenses as appellant, Bryant, and Wheeler, having sat at the same defense table with them for six years. Because someone can be "liable to prosecution" for, but not "equally guilty" of, the relevant offense, the instruction incorrectly told the jury how to determine accomplice status. 2. The Relevant Law It appears that the only case to deal with this issue has been People v. Woods (1992) 8 CaLApp.4th 1570. In that case, the Court of Appeal explained that because an accomplice may be convicted of a lesser offense than the perpetrator based on the natural and probable consequences doctrine, the "equally guilty" language ofCALJlC 3.00 is misleading and inaccurate. In Woods, the court explained that under section 31 an aider and abettor is liable vicariously for any crime committed by the perpetrator that is a reasonably foreseeable consequence of the criminal act originally contemplated by the perpetrator and the aider and abettor. As a result, an aider and abettor could be guilty of a lesser crime than the crime that the perpetrator eventually committed. 89 • • • • • • • • • • • • , J • • • • • This would occur if the ultimate cnme committed was not a reasonably foreseeable consequence of the act aided and abetted. (Id., at p. 1577.) In this case, the jury could have found that Williams was aiding and abetting in the narcotics organization. Even if they did not find first degree murder to be a reasonably foreseeable consequence of the sale of cocaine, a jury could still conclude that Williams was a principal to second degree murder for engaging in an act inherently dangerous to human life. (Ante, at p. 54.) Williams would therefore be a principal in the offense for which appellant was convicted, and yet not "equally guilty" of all offenses. The fact that appellant did not object to this instruction below does not preclude him from raising this issue at this time. Under section 1259, an appellate court may review "any instruction given ... even though no objection was made ... if the substantial rights of the defendant were affected thereby." (People v. Carpenter (1997) 15 CaL4th 312, 380-381; People v. Fitzpatrick (1992) 2 CaLApp.4th 1285, 1291.) Furthermore, as noted above (ante, at p. 71-72), a trial court must correctly instruct the jury on general principles of law relevant to the issues raised by the evidence, even though not requested to do so. In this case, those principles include correctly instructing the jury on all aspects of accomplice and principal liability. This is especially important on the issues having any type of relationship to the status of Williams, the prosecution's star witness. Because the trial court incorrectly narrowed the defmition of accomplice, the jury may have determined that Williams was not an accomplice because he was not "equally" guilty, in either a legal or moral sense. The jury could then have convicted appellant because it believed that Williams's testimony did not need to be corroborated. However, had the jury been correctly instructed it would likely have reached a different conclusion, deciding that Williams was an accomplice and 90 _____________________________________ iF" concluding, as Judge Horan did, that there was no other evidence connecting ap- pellant to these crimes,so that he must be acquitted. This error had the effect of improperly lessening the prosecution's burden of proof Because accomplice testimony requires a greater level of proof, to ex- clude Williams from that category, thereby eliminating the need for corroboration, lowered the standard required for conviction and allowed appellant to be convicted solely on Williams's testimony. "An error in instruction which significantly misstates the requirement that proof of guilt be beyond a reasonable doubt 'compels reversal unless the review- ing court is 'able to declare a belief that it was harmless beyond a reasonable doubt.' " (People v. Deletto (1983) 147 Cal.App.3d 458, 472 quoting Chapman v. California (1967) 386 U.S. 18,24.) The error in this case cannot be deemed harmless beyond a reasonable doubt because, as Judge Horan recognized, whether Williams was found to be an accomplice likely determined whether appellant was convicted or acquitted. Because this instruction misstates the principles of law to be applied to an issue that was dispositive of appellant's guilt or innocence, the reliability of the ultimate determination of guilt was also undermined, in violation of the Eighth and Fourteenth Amendments. (Ante, at p. 51.) Furthermore, the error described above so infected the trial with unfairness as to render the convictions a denial of due process oflaw. (Ante, at p. 52.) Finally, as noted above (ante, at p. 51), depriving appellant of the protec- tions afforded under the principles discussed above is itself is a deprivation of due process of law, because a misapplication of a state law on this crucial issue vio- lated a right of "real substance" and therefore deprived appellant of due process of law. The judgment of conviction entered below must accordingly be reversed. 91 • • • • • • • • • • • • • • • • • • • • E. THE COURT ERRED IN TELLING THE JURY THAT IT COULD CONVICT APPELLANT IF THERE WAS SLIGHT EVIDENCE TO CORROBORATE ACCOMPLICE TESTIMONY The trial court erred in telling the jury that the evidence needed to corroborate accomplice testimony "is sufficient .. even though it is slight and entitled, when standing alone, to little consideration." (CT 15514.) This is because this instruction allowed the jury to convict on a standard lower than the beyond a reasonable doubt standard required for criminal convictions. "The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship, supra, 397 U.S. 358, 364.) In United States v. Gray (5th Cir. 1980) 626 F.2d 494, the court instructed that once a conspiracy was proved, the government need only introduce "slight evidence" of a particular defendant's involvement. Although the instruction given also stated that the prosecution still had to establish beyond a reasonable doubt that each member had the requisite intent to join the conspiracy and that mere association was insufficient, the Court of Appeal held that the instruction was reversible error as it could "only be seen as suffocating" the reasonable doubt requirement. (Id. at p. 500.) Likewise, in United States v. Hall (5th Cir. 1976) 525 F.2d 1254, the court . reversed a conviction where the court gave a "slight corroboration" instruction similar to the one in Gray. The court stated that the "slight evidence" language "should not be used in the charge to a jury .... Despite the lack of provable prejudice to defendant's case because of other instructions giving the reasonable doubt standard, however, the erroneous instruction reduced the level of proof necessary for the government to carry its burden by possibly confusing the jury about the proper standard or even convincing jury members that a defendant's participation in the conspiracy need not be proved beyond a reasonable doubt." (Id. At pp. 1255-1256; see United States v. Partin (5th Cir. 1976) 525 F.2d 1254.) 92 ---------------------------------------------------------------------:,~ Not even an instruction telling the jury that "substantial evidence" of cor- roboration is required passes constitutional muster. As explained in United States v. Durrive (7th Cir. 1990) 902 F.2d 1221, 1229, th. 6: "It would be improper for a district court to charge a jury that only substantial evidence is needed to connect a person with a conspiracy. Such an action would only confuse the jury and would likely under- mine the fundamental requirement of proof of guilt beyond a reason- able doubt for all elements of a crime ... [W]e ... admonish district courts against giving any instructions that could dilute the govern- ment's burden." Applying these principles to this case, the issue is whether the language "slight and entitled to little consideration" violates appellant's rights to due proc- ess, a fair trial, a jury trial, and fundamental fairness under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and similar provisions of the California Constitution. This Court is bound by the holdings of the Supreme Court in Winship that due process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime with which a defendant is charged. As explained in People v. Monge (1997) 16 Ca1.4th 826, at 844 "cogent reasons must exist before we will construe the Constitutions differently" and "depart from the construction placed by the Supreme Court of the United States." (Id., at p. 844, quoting Raven v. Deuk- mejian (1990) 52 Ca1.3d 336, 353, internal quotations omitted.) Although the decisions of lower federal courts are not "binding" on this court, they do "provide persuasive ... authority." (People v. Bradford (1997) 15 Ca1.4th 1229, 1292.) Pursuant to the above-referenced federal authorities, it was error of consti- tutional magnitude for the trial court in the instant case to instruct the jury that the evidence required to corroborate accomplice testimony need only be "slight, and entitled, when standing alone to little consideration," because this impermissibly 93 • • • • • • • • • • • • • • , • • • • • ij r I!IJ 1'- l I f.J: 1 tr relieved the prosecution of its duty to prove appellant's guilt "beyond a reasonable doubt." Therefore, reversal is required per se, without a showing of prejudice. (Sullivan v. Louisiana (1993) 508 U.S. 275, 280-282.) Even if, a showing of prejudice were required, it would be met in this case. As the trial judge correctly acknowledged (ante, at p. 48), there was virtually no evidence, other than Williams's testimony, linking appellant to the crime. Thus, if the jury had been properly instructed, they might well have failed to convict. Furthermore, given the sound reasons for treating accomplice testimony with great caution, allowing the jury to convict with only "slight" corroborative evidence defeats the Eighth Amendment requirement of heightened reliability in capital cases. (Ante, at p. 51.) Furthermore, the error described above so infected the trial with unfairness as to render the convictions a denial of due process of law (Donnelly v. DeChristoforo, supra, 416 U.S. 637,643; Darden v. Wainwright, su- pra, 477 U.S. 168, 181-182.) Finally, as discussed above (ante, at p. 51-52), depriving appellant of the protections afforded under the principles discussed above is a misapplication of state law that constitutes a violation of a right of "real substance," and is thus a deprivation of a liberty interest protected by the Due Process Clause. As noted, the most crucial question in this case, if the jury found Williams to be an accomplice, was whether his testimony was sufficiently corroborated. Having the jury correctly instructed as to the nature of the needed corroboration was therefore crucial to appellant's case and must be regarded as a matter of "real substance. " For the foregoing reasons, the judgment of conviction entered below must be reversed. 94 F. THE TRIAL COURT ERRED IN FAILING TO EXCLUDE TANNIS CURRY FROM THE INSTRUCTION GIVEN TO THE JURY CON- TAINED IN CALJIC NO. 2.11.5 1. The Factual Basis for Including Tannis from CALJIC No. 2.11.5 The trial court erred in failing to exclude Tannis Curry from the instruction contained in CALJIC No. 2.11.5. CALJIC No. 2.11.5: "There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on triaL "There may be many reasons why that person is not here on triaL Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he or she has been or will be prosecuted. Your duty is to decide whether the People have proved the guilt of the defendants on triaL" This instruction was given to the jury, along with a modification added to the end, "The second paragraph of this instruction does not apply to the testimony or prior statements of James Williams." CCT 15477; RT 16387-16388.) How- ever, Tannis was not mentioned in instruction or the modification. Like Williams, Tannis should have been excluded from the instruction. It cannot be doubted that she "may have been involved in the crime" for which ap- pellant was being tried and may have even been an accomplice as a matter oflaw. It appeared that she was a lure for Annstrong. It was planned that Tannis would go with Annstrong and Hull to the fatal meeting with Bryant. Apparently, Tannis was the only one in the Armstrong camp to be armed. At the last minute, for some unexplained reason, Tannis did not follow Annstrong and the others, as had been planned. CRT 11631-11634.) As a possible lure, Tannis served the same role which the prosecution ar- gued that appellant played. CRT 16493, 16551.) Furthermore, Tannis, originally charged as a capital defendant, received immunity in exchange for her testifying. Therefore, Tannis comes within the • • • • • • • • • • 95 • • • • • • • • • • • defmition of an accomplice as someone who is properly liable to prosecution. (Ante, at p. 52.) Indeed, even if Tannis was not an accomplice, she should have been ex- cluded from this instruction because people who should be excluded from the in- struction is wider than "accomplices," covering anyone who "may have been in- volved." The purpose of the CALJIC No. 2.11.5 is to discourage the jury from ir- relevant speculation about the reasons for not prosecuting all those who might have participated in the offenses. (People v. Cain (1995) 10 Ca1.4th 1, 35; People v. Cox (1991) 53 Ca1.3d 618,668.) In People v. Sully (1991) 53 Ca1.3d 1195 this Court recognized that this in- struction must be clarified when an accomplice testifies. Thus, CALJIC No. 2.11.5 should not be given when a non-prosecuted participant testifies because the jury is entitled to consider the lack of prosecution in assessing the witness's credi- bility. (People v. Williams (1997) 16 Cal.4th 153, 226; People v. Rankin (1992) 9 Cal.AppAth 430,437; People v. Hardy, supra, 2 Ca1.4th 86, 189.) This is particularly important when the unjoined perpetrator has been given immunity, where the witness's motive to testifY and interest may be the reason why he is not being prosecuted. Unless CALJIC No. 2.11.5 is modified to inform the jury that the instruction does not apply to a witness who has received a benefit, the instruction prevents the jury from properly considering factors which bear on that witness's credibility. As explained above, extrajudicial statements of accomplices may not be used to corroborate accomplice testimony. (Ante, at p. 64.) Apart from the suspect testimony of Williams, the most important part of the prosecution's case against appellant is the evidence of the Curry shooting, evi- dence which makes appellant a heavy for Bryant. Tannis's extrajudicial state- ments proved Bryant's motive to kill Curry, a fact which the trial court believed was an essential "underpinning" in the case against appellant. (Infra, at p. 133.) 96 •• Tannis's credibility is crucial to the prosecution, and the jury must properly instructed as to how to evaluate her testimony. Excluding her from this instruction has the effect of telling the jury that they cannot consider the fact of her immunity, which was a proper factor for their consideration. As noted above (ante, at p. 73), a trial court must instruct the jury on the correct principles of law raised by the evidence, and errors in instructions may be raised on appeal without an objection by trial counsel. (People v. Carpenter, su- pra, 15 Ca1.4th 312, 380-381; People v. Fitzpatrick, supra, 2 Cal.AppAth 1285, 1291; People v. Godwin (1995) 31 Cal.AppAth 1112, 1116.) Therefore, the fact that the defense did not object to excluding Tannis from this instruction does not preclude appellant from raising this issue in this appeal. This question could have serious implications on the credibility of the wit- ness and therefore the reliability of the ultimate determination of guilt. Therefore, this error lessened the reliability of the outcome of the trial by increasing the pos- sibility that the jury may improperly not consider the impact of immunity on Tan- nis. This would violate the reliability requirements mandated under Eighth and Fourteenth Amendments. (Ante, at p. 51.) Furthermore, the error described above so infected the trial with unfairness as to render the convictions a denial of due process of law (Donnelly v. DeChristo- foro, supra, 416 U.S. 637, 643; Darden v. Wainwright, supra, 477 U.S. 168,181- 182.) Finally, because a misapplication of a state law leads to a deprivation of a liberty interest, a violation of the Due Process Clause when that right is of "real substance" (Ante, at p. 51-52), depriving appellant of the protections afforded un- der the principles discussed above is itself is a deprivation of due process of law. Correct jury instructions as to how prosecution witnesses' testimony is to be viewed are surely a matter of "real substance," particularly in a case such as this where anything that may affect the determination of accomplice status is cru- 97 • • • • • • • • • • • • • • • • • • • , • cial to the case, as Judge Horan believed this evidence was. Therefore, this error had the effect of depriving appellant of due process of law. From the foregoing it is clear that the court erred in not including Tannis in the final paragraph of CALJIC No.2,! 1.5. 2. Prejudice The failure to correctly modify CALJIC No. 2.1 1.5 must be viewed as prejudicial. It is particularly important that the jury be meticulously instructed on all principles relating to credibility issues when it comes to Tannis for the following reasons: First, whether or not he was an accomplice, the jury may have qualms about sending someone to death on the word of a character like Williams. There- fore, a finding that appellant was the "hit man" for the family would go a long way in convincing them of appellant's gUilt23 • However, as will be shown, the crucial logical unQerpinning of this evi- dence, in the eyes of the trial court, was evidence originating from Tannis. (Infra, at p. l33.) Her status and credibility are therefore crucial to the case. If the jury is not properly instructed on how to deal with her testimony, if the jury improperly speculates as to why she was not being tried, the case against appellant undergoes a radical transformation. As noted previously, this was a very close case, with the court commenting on the weakness of the evidence. The lack of evidence against appellant as de- tailed above weighs heavily in finding that errors in instructions will be prejudi- cial. 23 As will be explained below in Section IV, the admission of the evidence of the Curry shooting was an error in its own right. 98 Because this error allowed the jury to evaluate Tannis's testimony without considering the fact that she was given immunity, it had the effect of lessening the State's obligation to prove appellant guilty beyond a reasonable doubt. As previously noted (ante, at p. 91), an error in instruction which signifi- cantly misstates the requirement of proof of guilt by beyond a reasonable doubt "compels reversal unless the reviewing court is 'able to declare a belief that it was harmless beyond a reasonable doubt." Because of the closeness of this case and the importance of Tannis's testi- mony, it is not possible to reach such a conclusion. 3. Summary From the foregoing, the trial court erred in failing to exclude Tannis Curry from the instruction given to the jury contained in CALJIC No. 2.11.5. The failure to correctly instruct the jury in this area constitute prejudicial error, mandating a reversal of the judgment of conviction entered below. 99 • • • • • • • • • • • • • , • • • • • • • II THE DENIAL OF A DEFENSE MOTION TO SEVER APPELLANT'S CASE FROM THAT OF JON SETTLE DENIED APPELLANT THE RIGHT TO A FAIR TRIAL, DUE PROCESS OF LAW, THE RIGHT TO COUNSEL, AND THE RIGHT TO A RELIABLE DETERMINATION OF A CAPITAL CASE, AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS A. Introductory Statement24 After Jon Settle exercised his right to self-representation under Faretta v. California (1975) 422 U.S. 806, the defense made several motions for a severance. (CT 13756; RT 6071-6088, 6129, 6144.) The denial of those motions deprived appellant of a fair trial, due process of law, the right to counsel, and the right to a reliable capital sentencing determination, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution. As will be shown, when the request for a severance was made, the defense predicted that Settle would not abide by rules which govern the conduct of attor- neys. The court stated it could and would prevent Settle from any engaging in any misconduct. Thereafter, Settle engaged in a series of actions that would have been re- garded as misconduct, had they been done by an attorney. Nonetheless, when this occurred, the court failed to admonish him or attempt to alleviate any potential prejudice to appellant, for fear of infringing on Settle's rights. As a result, the failure to sever Settle's case had the effect of denying appel- lant the fundamental constitutional rights listed above. 24 This section only discusses those severance issues related to the fact that Settle elected to represent himself. Had Settle not represented himself, there still would have been the need to sever appellant's case. Other severance issues related to Settle are discussed below in the section dealing with the error in not severing ap- pellant's case from that of the Bryant and Wheeler. 100 ----------------------------------'", B. The Severance Motions and Hearings, Below After Settle exercised his right to represent himself, Mr. Jones, counsel for Bryant, made a motion to sever Settle's case. (RT 6129.) Recognizing that Settle had the right ''to go to hell in a hand basket while singing 'I did it my way,'" 25 Mr. Jones expressed conce01 that Settle, as a pro per, was going to take Bryant to Hades in the same basket. (RT 6135-6137.) The court stated that Settle's defense was he was not at the scene of the murder, a fact which Settle confIrmed. (RT 6140-6141.) Settle indicated that his defense would be "extremely antagonistic" to the other defendants, and that it might affect their right to a fair trial, because he intended to "assign the proper re- sponsibility to the respective defendants." (RT 6143-6144.) Mr. Novotney joined the severance motion. (RT 6144.) Deputy District Attorney McCormick stated that the suggestion Settle would create an inconsistent defense was not well founded, because it is some- thing that could not be known until later. Therefore, the court could not get past the fIrst prong of the antagonistic defense standard, because there was no showing of that factor. (RT 6145-6146.) Mr. Gregory, appellant's second counsel, pointed out that attorneys are un- der ethical guidelines and subject to sanctions if those guidelines are violated. In contrast, a pro per defendant in a capital case is not under that type of constraint. In a rhetorical question, Mr. Gregory asked whether the court would fme Settle if Settle violated the ethical restraints that would normally be imposed on attorneys. Because of this factor, Mr. Gregory argued there was a serious danger to the fair trial of the other defendants. (RT 6147-6148.) The court denied the motion, citing the role of joint trials, judicial effI- ciency, and the burden on the prosecution and witnesses of multiple proceedings. (RT 6192-6193.) The court also noted that joint trials have been viewed as serv- 25 Slightly misquoting People v. Nauton (1994) 29 Cal.App.4th 976, 981. 101 • • • • • • • • • • • • • • • • • • • • • ing the interest of justice "by avoiding inconsistent verdicts," which is particularly important in capital cases. (RT 6193.) . As to the concerns of the defense regarding what Settle might do as pro per, the court stated that was always the danger in multiple defendant cases, and the court assumed that Settle would abide by the rules of law. (RT 6195.) This issue was raised again, after Settle made a motion for protective cus- tody based on his accusations that he was in danger from the other defendants. The defense had expressed concern because of the possibility that Settle might fabricate evidence if it was in his interest. Ms. Gulartie, Bryant's other attorney, explained that the defense had the right to know who made those threats. If the information was true, the defense needed to know it for trial. On the other hand, if the information was not true, the defense needed to know it because it should know if Settle would fabricate evidence. (RT 6378-6379.) At this time, Mr. Harris, counsel for Wheeler, informed the court that he be- lieved the court was "sadly mistaken" if the court believed it could' prevent Settle from engaging in misconduct. The court informed Mr. Harris that Mr. Harris was sadly mistaken ifhe believed that the court could not prevent Settle from engaging in misconduct. (RT 6381.) Mr. Harris explained that with Settle acting as his own attorney, he may make statements that could not be cross-examined, and it would not be possible to "unring" the bell. (RT 6381.) The court stated that the matter was a "simple thing," in that Settle had to comply with court's orders or he would lose his pro per status. (RT 6381.) During the voir dire of the jury, Mr. Jones expressed concern over Settle's input in joint challenges, stating that since Settle did not appear to know what he was doing it would hinder the process for the other defendants. Mr. Jones re- quested that the court allow Mr. Leonard, Settle's standby counsel, to be involved in jury selection. The court stated that it would "love" to have Mr. Leonard in- volved, but it was not going to do have Mr. Leonard involved in a "quasi-active 102 role." The court noted that Settle was pro per, and the court could not bring stand- by counsel into the proceeding. (RT 6588-6589.) From start to finish Settle engaged in misconduct, as counsel for the other defendants predicted. When this happened, for fear of prejudicing Settle's case, the court failed to admonish him or make any attempt to minimize any impact that the misconduct may have had. Settle engaged in improper conduct from his Opening Statement on, prompting the court to admonish him for improper argument. (RT 8158, 8178.) Later, prior to Settle beginning his Closing Argument to the jury, Mr. Novot- ney asked the court to "review" Settle's argument to make sure that he would not be arguing facts not in evidence. The court refused this request, saying that if Set- tle engaged in such conduct the court would admonish the jury. (RT 16588- 16589.) This issue was raised several other times during trial. Because some of the renewals of this motion related to specific acts of misconduct on the part of Settle, the procedural facts surrounding the renewals of this motion are discussed below in the subsections dealing with specific misconduct. (infra, at pp. 110-120, Argu- ment II-D. )26 26 In addition to the specific acts of Settle complained of herein, Settle engaged in other acts of misconduct. For example, Settle engaged in various forms of gamesmanship, "futzing" around, in the words of Mr. Jones (RT 15800-15801), in his tactics and decision as to whether or not to testifY. Because these actions did not prejudice appellant, they are not raised as part of this issue. These incidents are indicative, however, of the trial court's inability to control Settle's actions. The details of these actions of Settle are discussed in Section II of Wheeler's Opening Brief. Appellant specifically incorporates that portion of Wheeler's Opening Brief as a part of this argument. 103 • • • • • • • • • • • • , C. The Relevant Law Initially, it ~hould be noted that severance motions in capital cases should receive heightened scrutiny for potential prejudice. (People v. Keenan (1988) 46 Ca1.3d 478,500.) Furthermore, it is important to bear in mind the fact that a trial court judge is charged with the authority, power, and duty to control the proceedings ''with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (penal Code § 1044.) This includes the responsibility to guard against "any conduct calculated to obstruct justice." (People v. Slocum (1975) 52 CaLApp.3d 867,883.) Under both the general rules relating to the severance of cases and the specific rules relating to pro per co-defendants, the trial court failed to live up to its obligations in this area. 1. General Principles of Law Relating to Severance Motions Section 1098 provides that when two or more defendants are jointly charged with an offense, they must be tried jointly, unless the court, in its discretion, orders separate trials. In determining whether a motion to sever ( or consolidate) has been properly denied, an appellate court must initially look at the facts as they were developed when the motion was heard. (People v. Isenor (1971) 17 Cal.App.3d 324, 334, see also People v. Johnson (1989) 47 CaL3d. 1194, 1230.) However, joinder laws must never be used to deny a criminal defendant's right a fair trial. (Williams v. Superior Court (1984) 36 Ca1.3d 441, 451-452.) Regardless of any statutory preference for joint trials, a court retains the power to sever cases, otherwise properly joined, "in the interests of justice." (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1285.) Although this Court in People v. Massie (1967) 66 Cal.2d 899 identified several factors that should be considered in considering a severance motion, no 104 court has ever intimated that those factors are exclusive. (Calderon v. Superior Court(2001) 87 Cal.AppAth 933, 938) Therefore, any facts which may have impinged on appellant's right to a fair trial may be considered. Even if it is determined that under the facts as they appeared at the time, the trial court had not abused its discretion in denying separate trials, the denial of a sev- erance may still require a reversal if the reviewing court determines that "because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law." (People v. Cleveland (2004) 32 Cal. 4th 704, 726; People v. Turner (1984) 37 Cal.3d 302,313.) Appellant submits that the facts known at the time that the request for a severance was made indicate that the trial court abused its discretion. Further- more, events occurring after the motion also contributed to the denial of appel- lant's right to a fair trial. Therefore, a reversal of appellant's conviction is re- quired under both standards. 2. Particular Problems Relating to Joint Trials with a Pro Per Defendant In addition to the general rules governing the issue of severances (infra, Argument III -B), unique concerns are raised when one defendant opts for self- representation. These concerns are heightened in the setting of a capital trial, thereby presenting particular conflicts of competing rights and interests. As will be shown, according to the trial court, Settle engaged in a pattern of "gamesmanship" during the trial. This may have served Settle's interest: His Faretta rights outweighed the State's interest in an accurate trial. But Settle's right of self-representation cannot defeat appellant's right to a fair trial. The fact that a State's interest in judicial economy cannot be used to deny a defendant his right to a fair trial (ante, at p. 104), is particularly true where the cost of a second trial is mandated not by the desires of the defendant, but by the conflicting rights of the pro per. 105 • • • • • • • • • • • • • • • ., Faretta recognizes that in most cases a defendant would be better served by having an attorney. Nevertheless, Faretta recognizes a right to self-representation on the premise that it is the defendant who will have to bear the consequences of his own decision. His choice may be to his detriment, but it remains his 'choice. (Faretta, at p. 834.) Thus, Faretta holds that personal autonomy "requires that [a criminal de- fendant] be allowed to go to jail under his own banner if he so desires and if he makes the choice 'with eyes open.'" (United States v. Denno (2nd Cir. 1965) 348 F.2d 12, 15, quoted in Faretta, dis. opn. p. 849.) As the dissent in Faretta points out, however, the emphasis on personal autonomy ignores the principle that the State's interest in a criminal prosecution "is not that it shall win a case, but that justice shall be done." (Faretta, dis. opn., at p. 849, quoting Berger v. United States (1935) 295 U.S. 78, 88.) In a multi-defendant case in which one defendant elects to go pro per, the danger is not only that he may go to prison under his own banner, nor that justice may not be accomplished in the pro per's case. Rather, the danger is that justice will be denied to the unwilling co-defendant, led to prison under the pro per's proudly held banner. In short, while the proverb regarding having a fool for a client has been ele- vated to a constitutional right (Faretta, dis. opn. p. 853; People v. Nauton (1994) 29 Cal.AppAth 976, 981), there is no right for one party to impose a fool as co- counsel for his co-defendant. Following the principle that "the direction of a blow is less important than the wound inflicted," the law recognizes that the conduct of counsel for a co- defendant can violate a defendant's constitutional rights (see People v. Hardy, su- pra, 2 Cal. 4th 86, 157; People v. Estrada (1998) 63 Cal.App.4th 1090, 1095-1096 [co-defendant reference to facts not in evidence and defendant's failure to testifY at preliminary hearing requires reversal]; People v. Jones (1970) 10 Cal.App.3d 237,243-244.) The same principle applies with greater force when a co-defendant 106 represents himself, posing an even greater danger that the defendant's constitu- tional rights will be violated. Because a co-defendant's antagonistic actions may mirror those of a prose- cutor, it has been held that "the analysis applicable to prosecutorial misconduct, if not a perfect template, is at least a useful guide for the review of misconduct committed by counsel for a co-defendant." (People v. Estrada, supra, 63 Cal.App.4th 1090, 1096.) Indeed, Mr. Leonard, Settle's former attorney, referred to Settle at sentenc- ing as the "fourth prosecutor." (CT 7085 in Vol 24 ofCT 24 of24.) While antagonistic defenses alone do not compel a severance, they are a factor in determining whether a severance should be granted. (People v. Turner, supra, 37 Ca1.3d 302, 312; People v. Cummings (1993) 4 Cal.4th 1233, 1286.)· This case presented more than a simple potential for antagonistic defenses. Because Settle represented himself, and there was a clear conflict between the defendants, defense counsel could not cooperate or coordinate with Settle. F or example, during jury selection, the court chided counsel for appellants for passing a note to Settle. The court stated that Settle believed he had a conflict with appellants, and it was inappropriate for defense counsel to advise him. (RT 7518- 1519,7522-7523.) Later in the trial, Mr. Gregory explained to the court that Settle had asked Mr. Gregory for advice in the past, and Mr. Gregory had declined because he was representing appellant. (RT 15525-15526.) The court agreed, stating, "That is what I have told all counsel. It is a horrible idea from the beginning of the case to consult with Mr. Settle at alL I pointed that out." (RT 15526.) Although there is no constitutional right to have a co-counsel with whom one's attorney may cooperate, the state should not be able to create a situation, through denial of a severance, where it is affirmatively inappropriate to consult with co-counsel. 107 • • • • • • • • • • • ~\'II#'.iIIIl!IlIIJ' ~~ __ ~~_' __ '_$Ii;_'_' iio"" ..... _ ......... n ........ ' r_u .... ' _,_, ... '.... 1'1. ... ,_, .""' .... mu... '1.... tt .... ' .... H.... ' .... ,... ' .... ' _U __ t ..... _______ u _____ n_n .... ' .... ' ___ .-M_' -" • , 3. Prior Cases Discussing Pro Per Co-Defendants When a co-defendant chooses to represent himself in circumstances that threaten to violate the co-defendants' due process rights, the remedy of the repre- sented co-defendants is not to deny another's constitutional right to self- representation, but rather to grant a severance. (Thomas v. Superior Court (1976) 54 Cal.App.3d 1054, 1059, fn. 6.) As the dissent in Thomas noted, at p. 1061, a felony trial in which a defen- dant is representing himself is a veritable breeding ground for interruptions, dis- ruptions and endless admonitions to the jury to disregard improper questions or statements by the defendant27 . Similarly, noting that the joint trial of a pro se defendant and a represented co-defendant is "pregnant with the possibility of prejudice," the Tennessee Su- preme Court in State v. Caruthers (Tenn. 2000) 35 S.W.3d 516, quoting United States v. Veteto (11th Cir. 1983) 701 F.2d 136, reversed the conviction and death sentence of a defendant who had been tried along with a pro per co-defendant. Citing several non-capital federal cases, the Tennessee Court held that, although such joint trials are not prejudicial per se, the trial court should employ "certain precautionary measures ... to minimize the possibility of prejudice," including the appointment of standby counsel, warning the pro se defendant he will be held to the rules of law, and instructing the jury that remarks made by the defendant in his role as a lawyer are not evidence. (Caruthers, supra, at 553 citing United States v. Veteto, supra, 701 F.2d 136, 138-139). In some cases, the court recognized, "even these protective measures will not be sufficient to prevent 'the possibility of preju- dice from ripening into actuality. '" (Ibid.) 27 The dissent in Thomas did not disagree with the fact that a pro per defendant represents a danger of denying a co-defendant a fair trial. Rather, the dissent be- lieved that the co-defendant should not have been granted pro per status in that situation. 108 Thus, in Caruthers, the Court found that, the precautions the trial court had attempted to employ did not prevent prejudice. In particular, the court found that the conduct of the pro per defendant prejudiced the co-defendant in Caruthers be- cause the pro per engaged in offensive mannerisms in front of the jury and elicited incriminating evidence from witnesses. (Caruthers, at p. 553-554.) Similarly, in United States v. Oglesby (7th Cir. 1985) 764 F.2d 1273 the Eleventh Circuit adopted the reasoning of Veteto in recognizing the dangers of a co-defendant going pro per and the need for protective measures28. Here, as in Caruthers, the trial court's precautions were not sufficient to avert prejudice to the pro per's co-defendant. In this case, the trial court was afraid to enforce its own rules. Thus, while Settle was warned that he would be held to the rules of law, the court failed to take any remedial action when Settle actually engaged in miscon- duct that was highly prejudicial to appellant, for fear of infringing on Settle's right to represent himself. (RT 15473, 15800-15801.) Severance was the only solution to this Catch-22. D. Specific Acts of Misconduct by Settle In addition to the improper argument in his opening statement (ante, at p. 104), Settle engaged in the following acts of misconduct, none of which the court took any action to prevent or correct. 28 Several other cases, while espousing similar principles have failed to find preju- dice from the failure to sever the pro per's case from that of the represented defen- dant. (See People v. Miller (4th Cir. 1988) 854 F.2d 656 - no prejudice found where trial court "strictly policed" the pro per's conduct; United States v. Sacco (2nd Cir. 1977) 563 F.2d 522 - no prejudice because everything done by the pro per defendant was eXCUlpatory for both defendants; State v. Canedo-Asorga (1995) 79 Wash.App. 518, 903 P.2d 504 - represented defendant did not contend that any ramifications of prejudice actually resulted. 109 • • • • • • • • • • • • t • 1. Settle Commits Perjury Before Settle testified, Mr. Jones, counsel for Bryant, warned that if Settle testified "all hell would break loose." (RT 15505.) Mr. Gregory, co-counsel for appellant, expressed concern that if Settle testified in a narrative, the rules of evidence would not be followed. The court simply indicated, incorrectly, as it turned out, that those rules would be complied with. (RT 15524-15525.) Settle testified, denying that he was ever in the Wheeler house, and deny- ing any involvement in the offenses. (RT 15541.) However, when Settle later entered his guilty plea, a factual basis for the plea was found, with the court stating there was a "strong likelihood that the de- fendant [Settle] was involved inside the house with the two male victims .... " (R T 19.) Both of these could not be true. Thus, there is a "strong likelihood" that Settle lied at trial, i.e. committed perjury. Although "[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. .. that privilege cannot be construed to include the right to commit perjury. [Citations.]" (Harris v. New York (1971) 401 U.S. 222, 225-226.) If Settle had been represented by counsel, his attorney could not have knowingly assisted him in doing so. The California Rules of Professional Conduct require an attorney to "employ, for the purpose of maintaining the causes confided to the [ attorney] such means only as are consistent with truth" and prohibits him from seeking "to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law." (Rules Prof. Conduct, rule 5-200; see also Bus. & Prof. Code, § 6068.) When an attorney knows that his client is going to commit perjury, coun- sel may call the client to testify in a narrative manner but may not rely in closing 110 argument on any of the defendant's false testimony. (People v. Johnson (1998) 62 Cal.AppAth 608 Id., at pp. 620-631.) California has adopted the narrative approach as the best means of recon- ciling the right of a defendant to testify, the duty of representation, and the ethical obligations of attorneys as officers of the court. 29 (Id., at p. 629, citing People v. Guzman (1988) 45 Cal.3d 915.) However, the narrative approach cannot work if the defendant, proceed- ing pro per, commits perjury as a witness and then argues the false facts as his own attorney. Even if the trial judge had believed Settle was committing perjury, he could not risk impugning Settle's defense in front of the jury. A court may com- ment on the evidence and credibility of witnesses as necessary for the proper de- termination of the case. However, there is a fine line which the court should not cross beyond which it is considered misconduct by disparaging or discrediting the defense or creating an impression it is allying itself with the prosecution. (People v. Santana (2000) 80 Cal.AppAth 1194, 1206-207.) Thus, a court may comment on testimony, "so long as its remarks are ac- curate, temperate, and 'scrupulously fair.'" [Citation.] (People v. Miller (1999) 69 Cal.AppAth 190,203-204.) But in doing so, the court should not express its views on the ultimate issue of guilt or otherwise "usurp the jury's exclusive function as the arbiter of questions of fact and the credibility of witnesses." (Jdid.) This places the trial court in an untenable position. Unable to rely on any prophylactic measure to remedy Settle's perjury, if Judge Horan believed that Set- 29 Other approaches discussed in Johnson are not possible when the defendant is pro per. (e.g. - persuading the client not to commit peIjury (Nix v. Whiteside (1986) 475 U.S. 157, 166), withdrawal from representation (Rules, rule 1.l6(a)(1); American Bar Association's Model Code of Professional Responsibility Model Code, DR 2-110(B)(2)), and/or disclosure to the court (Silver, Truth, Justice, and the American Way: The Case Against the Client Perjury Rules, (1994) 47 Vand. L.Rev. 339,424-426).) ill • • • • • • • • • • • • • • • ) ) , tle was committing perjury, he was also unable to comment on that fact as that would convey to the jury the fact that the court thought Settle was lying, which would necessarily imply that he believe Settle was guilty. Thus, all mechanisms designed to combat perjury are disabled when a co- defendant represents himself. Because the trial court was afraid to interfere with Settle's testimony, his right to testify became a "right" to commit perjury and "corrupt [ ed] ... the truth- seeking function of the trial process." (Cf United States v. Agurs (1976) 427 U.S. 97, 103 30) The trial court also hamstrung the defense in its efforts to question certain allegations made by Settle, thereby preventing the defense from revealing possible perjury in which Settle had likely engaged. As explained above (ante, at p. 102), at one point Settle requested that he and his family be given protective custody because of threats originating from the Bryant family. (CT 14252.) The defense requested that it be allowed to question Settle about the ba- sis of that allegation, arguing that its veracity had an impact on other rulings of the Court. The court denied this request. (RT 6378-6380.) However, just as the defense is entitled to a trial free of perjured testi- mony to the jury, the defense should be entitled to rulings from the trial court not tainted with false and/or untested allegations. Although this request occurred before trial, during the hearing on Settle's request regarding security for his family, it remained crucial for the defense to de- termine the veracity of these allegations. Because Settle eventually testified to 30 Although Settle is not a "state actor," and while the prejudice to appellant arose from state inaction, in the form of the failure of the court to grant a severance, rather than state action, in the form of as prosecutorial misconduct, the end result is the same in that appelJant was deprived of his right to a trial conducted free of pelJury. 112 (and argued) matters that were-detrimental to the defense, the jury was entitled to know if Settle was willing to lie to the Court, as he later proved to be. Likewise, it is permissible to impeach a witness with evidence that the witness been willing to make allegations against others about in the past. (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 600; People v. Raruile (1982) 130 Cal.App.3d 286.) Therefore, this evidence would have been relevant to impeach Settle when he later testified, incriminating the other defendants. Unable to question the veracity of Settle, the defense is unable to impeach Settle when the need arose. Thus, the defense should have been allowed more leeway in questioning Settle at the time that he made the allegations regarding danger to his family from the Bryant organization. 2. Settle Engages in De Luna Error In his Opening and: Statement and Closing Arguments Settle agam demonstrated that it was the court that was "sadly mistaken" when it believed that it could prevent Settle from engaging in misconduct. In his first appearance before the jury, Settle explained that he was representing himself because a trial is a truth seeking process and the best way to get to the truth is through the defendant. He further acknowledged that a defendant has a right to remain silent, but he was going to give up that right to answer any questions. (RT 8157-8158.) At the start of his Closing Argument, Settle stated that the other three defendants and Williams were the ones who were involved in the killing. (R T 16592.) Almost immediately thereafter, Settle repeated the argument, "I'm here representing myself because it is a truth-seeking process, and I feel that the best way to get to the truth is through the defendant." (RT 16592-16593.) 113 • • • • • • • • • • • • • Settle thus invited the jury to infer that the defendants who appeared with lawyers and/or who did not testify were guilty. Donald Smith was the only non- testifying defendant. This incident occurred minutes after the trial court rejected defense counsel's request for a preview of Settle's argument, reasoning that it could admonish Settle if he engaged in misconduct. (RT 16588-16589.) Although an admonition would not have been sufficient, because "one 'cannot unring a bell,'" (United States v. Garza (5th Cir. 1979) 608 F.2d 659, 666, citations omitted), the court failed even to do that much. If the prosecution had made such an argument it would have been patently improper. The right against self-incrimination includes the right to not testify and the right that no comment shall be made to the jury on the fact that the defendant has not testified. (Chapman v. California, supra, 386 U.S. at 20-21; Griffin v. California (1965) 380 U.S. 609, 613-614.) To allow comment on silence " .. .is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." (Griffin v. California, supra at 614.) The right to have no inference of guilt drawn from one's failure to testify also bars one co-defendant from commenting on another defendant's silence. This rule was recently re-affmned in People v. Coffman (2004) 34 Ca1.4th 1, 81, where the court held that an attorney for one defendant may not question another defendant about the second defendant's invocation of his right to silence after arrest. Settle's comment that he was representing himself because that is the best way to aid the truth-seeking process immediately followed his comments that the other defendants were the ones who were involved in the killing. CRT 16592- 16593.) This direct contrast clearly was an attempt to benefit himself at the expense of the other defendants. This is exactly the type of inference that was disapproved of in United States v. Patterson (9th Cir. 1987) 819 F.2d 1495, 1506, cited with approval in People v. Hardy, supra, 2 Ca1.4th at p. 157.) 114 Furthermore, these comments were an attempt to implicitly urge the jury to draw a prohibited inference of guilt of appellant and the others by means of a direct comparison of his innocence as reflected in his testimony, in contrast to the others' guilt, which he hadjust previously alluded to. This is distinguishable from Hardy, where the court did not fmd error because this was not the inference the attorney in Hardy was attempting to make. (Id., at p. 160.) In De Luna v. United States (5th Cir., 1962) 308 F. 2d 140, one defendant testified on his own behalf, while the other defendant asserted his right not to testify. In argument, the attorney for the testifying defendant made several references to the fact that only his client testified, saying at one point, "Well, at least one man was honest enough and had courage enough to take the stand and subject himself to cross-examination ... " (Id., at 142, fu. 1). At that stage of the argument, the attorney did not mention the non-testifying defendant by name. There was only the implied comparison between the two defendants. Nonetheless, that implied comparison deprived the non-testifying defendant of his right to a fair trial. Noting the tension between the testifying defendant's right to present a defense and the non-testifying defendant's right to have a trial free from improper comments on silence, the court concluded that the only way to ensure each defendant justice was to try them separately. (Id. at 143, 155) In People v. Hardy, supra, 2 Cal. 4th 86 the court found that the comments by the testifying counsel did not constitute a comment on the other defendant's silence. In reaching this conclusion, this Court gave deference to the trial judge ''who was sensitive to defendants' Griffin claim," but concluded that "All [the attorney] is saying is that [the testifying defendant] has nothing to hide and that's why he got up on the witness stand and testified." Thus, this Court stated the attorney was "not insinuating defendants were guilty because they remained silent," the impermissible inference under Griffin. (Hardy, supra, at p. 160.) Furthermore, in the preceding section of the opinion, the Hardy Court had held that although the statements of the prosecutor had constituted Griffin error, 115 n • • • • • • • • • • • • • • • the comments were not prejudicial because of the overwhelming evidence against the defendant, including, but not limited to the evidence of "an interlocking web of admissions from numerous persons," including evidence of the non-testifYing defendant's admissions and other evidence implicating the defendant in the offenses. (Hardy, supra, at p. 154.) Coffman must be distinguished from this case because in that case it was held that the remark, although error was a "brief and mild reference" which was unlikely to cause prejudice in view of the overwhelming evidence. (People v. Coffman, supra, at p. 82.) The trial court in this case faced an even greater dilemma than the trial judge in De Luna, because Settle was representing himself. While any attorney -- prosecutor or defender would know that comments on silence are strictly forbidden, Settle, proceeding pro per, could not be expected to know the rules. He therefore strayed quickly into forbidden territory, arguing overtly that the other defendants were guilty and citing as confIrmation the fact that he alone was representing himself and giving up his right to remain silent, in order to bring out the "truth." While this Court suggested in Hardy that a trial court could restrain a co- defendant's counsel from commenting on other defendants' failure to testifY, the trial court in this case failed to take any steps to remedy the situation as it might have done if the comment had been made by Settle's attorney31. (see also People v. Jones supra, 10 Cal.App.3d 237,243-244.) Settle's misconduct not only violated appellant's right not to testifY, it also violated his right to counsel. Just as no adverse inference may be drawn from a defendant's exercise of his right to remain silent, "comment which penalizes exercise of the right to counsel is also prohibited." (People v. Coffman, supra, at p. 62; People v. Crandell (1988) 46 Ca1.3d 833,878); Bruno v. Rushen (9th Cir. 1983) 791 31 In De Luna the court rejected this approach, suggesting that if one attorney's duty required him to comment on the silence of another defendant, the only solution to the conflict of rights was separate trials. (Id, at p. 155.) 116 1193, 1195; United States v. McDonald (5th Cir. 1980) 620 F.2d 559, 564 ("It is impennissible to attempt to prove a defendant's guilt by pointing ominously to the fact that he has sought the assistance of counsel.") To say that Settle was representing himself because he believed the best way to get to the truth was through self-representation asks the jury to draw a positive inference from his self- representation, which, necessarily, creates a negative inference towards those who exercise their right to counsel. Any such "evidentiary use" of a defendant's exercise of his right to counsel- whether by a prosecutor or a co-defendant -- is a violation of the Sixth and Fourteenth Amendments. (People v. Coffman, supra, at p. 73) Again, while admonitions to the jury would not have been effective to cure such an egregious violation of appellant's right to counsel, the trial court here made no attempt to remedy in Settle's misconduct. 3. Settle Argues Facts Not in Evidence Settle again crossed ethical lines when he argued facts that were not in evi- dence. In one instance Settle argued to the jury that appellant's job at the Carl Street rock house was to put the cocaine into packages after it was weighed out. This was allowed over an objection by appellant's trial counsel that there was no evidence as to this fact. (RT 16612-16613.) The motion to sever was renewed, and a motion for a mistrial was made after Settle's summation to the jury. Appel- lantjoined in that motion. (RT 16634-16635.) These assertions tied appellant to the Bryant family organization and thereby corroborated Williams's testimony, but they were not based on facts "in evidence. " When the defense objected to Settle's argument, the trial court acknowl- edged the fact that "from time to time" Settle lapsed into arguments for which there was no evidence in the record. (RT 16626.) Nonetheless, contrary to its promise to do so, the court failed to prevent Settle from such misconduct. 117 • • • • • • • • • • • • • t , • ) • • Similarly. Settle argued that it was either himself or appellant who killed Brown. (RT 16631.) In fact, there was no evidence as to which person among Wheeler. appellant, or Settle shot either Armstrong or Brown. Settle was again arguing facts not in evidence, this time in an effort to shift blame to appellant. Be- cause the jury was unable to reach a verdict on Settle, it appears that at least one member of the jury was persuaded by Settle's improper argument. Arguing facts not in evidence deprives a defendant of a fair trial and vio- lates "a fundamental rule known to every lawyer." (United States v. Beckman (8th Cir. 2000) 222 F.3d 512; United States v. Wilson (4th Cir. 1998) 135 F.3d 291, 298; 3 Wright, Federal Practice and Procedure: Criminal, § 555, p. 273 (2d. ed. 1982). The error is more egregious when the party making the argument implies ftrst-hand knowledge of the facts, thereby making him or herself an unsworn wit- ness. Such argument violates ethical standards applied to lawyers and violates the defendant's constitutional rights to confrontation and cross-examination. Settle's failure to abide by the ethical rules governing the conduct of attorneys is exactly what the defense predicted when it requested a severance. (Ante, at p. 101-102.) For example, in People v. Gaines (1997) 54 Cal.App.4th 821 the prosecutor argued to the jury that a potential alibi witness, who did not testify, would have impeached defendant if he had testifted, that the defense had caused that witness not to testify, and that the People had tried to get the witness on the stand. This was determined to be reversible error where none of these facts were based on any evidence presented in court and presenting them in closing argument had the effect of denying the defendant the rights to confrontation and cross-examination. (Id., at p. 825.) In cases where the attorney for a party has ftrst-hand knowledge of the facts of the case, there is a special danger that the attorney may end up acting in the role of an "unsworn witness" in his arguments to the jury. (United States. v. Locas- cio (2d Cir. 1993) 6 F.3d 924, 933.) This may give his client an unfair advantage, because he "can subtly impart to the jury his ftrst-hand knowledge of the events 118 without having to swear an oath or be subject to cross examination." (Ibid.; See also United States v. McKeon. (2d Cir.l984) 738 F.2d 26,34-35.) By analogy, a pro per defendant has a similar advantage, one which Settle improperly used in this case. In a case where there is only one defendant, when a defendant wants to rep- resent himself, the concerns recognized in Locascio are outweighed by the defen- dant's right of self-determination. However, when a co-defendant is added to the picture, the danger of prejudicing the state by this type of conduct also now preju- dices a co-defendant. It is because of these concerns that an attorney may be disqualified from the case, in spite of a presumption in favor of the accused's chosen counsel. (United States. v. Locascio, supra, 6 F.3d at p. 931.) Although the trial court again agreed that Settle's comments were not based on the evidence, it refused to admonish the jury to disregard any of Settle's argu- ments for fear of violating Settle's right to represent himself. Thus, the court, having denied defense counsel's request for a preview of Settle's argument, with the promise to admonish the jury if misconduct occurred, failed to take any remedial steps when Settle engaged in misconduct exactly as the defense had predicted. Appellant was therefore denied a fair trial because the trial court was unable to balance the competing rights of Settle and his co-defendants. 4. Settle's Shenanigans with Distad Another example of Settle's gamesmanship and willingness to manipulate the rules occurred when the court allowed Settle to speak to the witness Una Dis- tad32 in the presence of the District Attorney. The prosecution had previously said that Distad was terrified of Settle, and Settle wanted to talk to her and tell her it was all right for her to testify truthfully. 32 Distad transported containers for Settle to a house on Vanport address where she had purchased drugs. (RT 9740-9742,9747-9750,9757-9758.) 119 • • • • • • • • • • • • • • Settle agreed that the Deputy District Attorney could be present when he spoke to Distad. (RT 9724-9726.) Settle also wanted to tell Distad, prior to her testifying, that the statement she had made to the police had been tape recorded. The court held that this would not be proper and told Settle not to infonn Distad of that mat- ter. Settle agreed not to do so. (RT 9726.) After Settle spoke to Distad, the prosecution infonned the court that Settle, "did absolutely everything" he was told not to do with the witness. (RT 9736.) In par- ticular, instead of telling Distad that it was all right with Settle if she testified, Set- tle told her she had a right to an attorney and did not have to testify. He never told her that she should testify truthfully, as he had represented his intentions to the court. Furthennore, contrary to the court's orders he told her that her previous statement to the police had been tape recorded. (RT 9736.) 5. Failure of the Trial Court to Take Specific Corrective Measures Judge Horan's most glaring error was in failing even to consider the dan- ger, recognized by cases such as Thomas v. Superior Court, supra, 54 Cal.App.3d 1054, that one defendant's decision to represent himself will infringe on the other defendants' right to a fair trial. As noted above, the trial court believed that the concerns of the defense were no different from concerns raised in any multiple defendant case. (Ante, at p. 102.) Thus, he failed to appreciate any of the problems that are unique to cases where a co-defendant elects to represent himself. Therefore, he was unable to deal with those problems when they arose. Here, although the trial judge repeatedly assured the other defendants that it would protect their rights by controlling Settle's behavior, the court was afraid to punish Settle when the need arose, or otherwise reign in his misconduct, for fear of prejudicing Settle's defense. Because the trial court refused to grant a severance, the burden of prejudice arising from the misconduct was borne by appellant, rather than Settle. 120 Thus, a mistrial was required because "controlling" Settle was not the "simple" matter that the trial court thought it would be. (Ante, at p. 101, RT 6381.) Rather, the court's response of simply telling Settle not to engage in un- ethical conduct was completely ineffective. For example, as noted above (ante, at p. 117-118), at times Settle argued facts which were. not in evidence. The defense asked the court to admonish the jury regarding Settle's statements that were not based on facts in evidence. The Court agreed that some of his remarks were not based on the evidence but did not wish to tell jury to disregard Settle's remarks, so it refused to admonish the jury at that time. Instead, the court stated that it would do so at the end of Settle's argu- ment and after every attorney's argument. (RT 16625-16626.) After Settle's argument, the court stated: "Let me admonish you as I did during the People's argument and I should have during Mr. Gregory's, if I did not. But the statements you are hearing now, as I reminded you yesterday, are not evidence. You heard the evidence in the case. You are now hearing argu- ment." CRT 16663.) In fact, the court had not given such an admonition after the People or Mr. Gregory's argument, both of those arguments having preceded Settle's argument.33 The court also admonished the jury that what they had heard was argument, not evidence, after the arguments for Wheeler and Bryant and the People's final argument. (RT 16688, 16782, 16851-16852.) Even more egregious, the court also overruled defense counsel's objection This objection was well-taken and should have been sustained. This ruling denied appellant right to cross-examine a witness, since Settle was effectively testifYing against appellant, without being under oath or subject to cross-examination, pur- porting to explain appellant's role in the company business. Appellant should not have been denied his right to a fair trial by the court's failure to properly han- 33 The prosecution's argument ended at RT 16655. The proceedings for the day concluded at RT 16662. • • • • • • ., • • • 121 • • '1 1 • dIe Settle's misconduct. Settle, and not his co-defendants, should have paid the price for Settle's refusal to follow the rules. In contrast, when appellant's counsel, Mr. Gregory, made a misstatement of the facts during closing argument, there was an immediate objection, and he was forced to correct the error at that time, rather than have it linger in the juror's mind. (RT 16579.) Obviously, it is more effective to catch a misstatement at the time and correct it then, rather than hope the jury remembers each inaccuracy when the admonition is given an hour later. Thus, the effectiveness of the remedy for Settle's improper argument was diminished if not negated entirely by the court's effort to protect his right to self-representation. At the very least, Settle should not have been given favorable treatment of his misconduct. Rather, the court should have taken the same steps to correct Set- tle's errors that it had taken to correct appellant's counsel. E. Prejudice Appellant was clearly prejudiced by the failure of the trial court to sever Settle's case. The instant matter must be distinguished from cases such as People v. Hardy, supra, 2 CalAth 86, 160 where the court found there was no prejudice caused by the co-defendanfs improper comment on the silence of a defendant be- cause of the overwhelming evidence presented in that case. (Ante., at p. 115.) Rather, as discussed above (ante, at pp. 61-62, 75-79), the evidence against appellant was very weak, consisting of accomplice testimony or testimony that should be suspect because of its source. In such a situation, as in State v. Caruthers, supra, Settle's shenanigans could well have tainted the jurors' perception of all of the "defense team," regard- less of which members actually engaged in the misconduct. (Caruthers, at p. 553, th. 35.) 122 Although the court was correct in noting the preference for joint trials to avoid avoiding inconsistent verdicts (RT 6193), ironically, Settle's misconduct in this case resulted in a hung jury as to him, while tainting the verdicts against ap- pellant, thus defeating the goal of achieving a just result with judicial economy. In this close case, the errors caused by the court's failure to sever Settle's case, including the uncorrected admission of peIjured testimony, Settle's improper comments on appellant's assertion of his rights to an attorney and against self- incrimination, Settle's arguing of facts not in evidence, and Settle's other misconduct were all likely to tilt the balance against appellant. Because, Settle's actions infringed on appellant's of right to a fair trial, his right to cross-examine witness, his right to an attorney, and his right to remain si- lent, as discussed above, appellant submits that the proper standard for judging prejudice is Chapman v. California, supra, 386 U.S. 18, which holds that for a de- nial of a federal constitutional right, reversal is required unless the state can prove the error was harmless beyond a reasonable doubt. The errors in this case were not harmless First, Settle's assertion that appellant was the shooter and was involved in "rocking" cocaine would confmn in the jury's mind appellant's connection to both the organization and the murder. The jury might give credence to this information in the belief that Settle either had inside knowledge of the organization or had in- formation from his family members who were involved in the Bryant organization. Second, Settle repeatedly asked the jury to draw two impennissible infer- ences - innocent people testifY and innocent people do not need an attorney. In so doing, Settle contrasted himself with his co-defendants, implying that people who have an attorney and are afraid to testifY must be guilty. Third, the trial court's delay in admonishing the jury to disregard Settle's improper argument of facts outside the record in the same manner in which the court admonished appellant's counsel negated the effectiveness of the remedy. 123 • • • • • • • • • ,_~t._g. __ ~._Wj_r_ti ____ '_W~ __ U._._1._'w_u_~~ ___________ t%_'_M*_'_'_'_' ••• k' ________ '._I_" •• JJt ••• U_ut ____ ,__ ,., .... ____ ~1 __ •___ ' ·_UI __ • __ J • • • • • • • • • • • For the foregoing reasons, the failure to sever Settle's case deprived appel- lant of rights of "real substance" in violation of the Due Process Clause. Further- more, as described above, Settle's misconduct was bound to have an effect on the verdict, thereby lessening the reliability of the outcome of the trial in violation of the reliability requirements of the Eighth and Fourteenth Amendments. (Ante, at p.51.) The error described above so infected the trial with unfairness as to render the convictions a denial of due process oflaw. (Ante, at p. 52.) Combined with the weakness of the prosecutions case, it must be concluded that the failure to sever appellant's case from Settle's was clearly prejudicial. F. Summary The trail court denied the motion for severance in the mistaken belief that the concerns raised by the defense were no more serious than those present in any multiple defendant case and that the court could compel Settle to abide by the rules. (RT 6195.) In fact, this case was unique because: 1. The situation of pro per co- defendants in a capital case is very rare and creates unusual problems; 2. This case was already too large and unwieldy; 3. Settle chose to represent himself, making it exceedingly difficult for the trial court to police his conduct and prevent prejudice to appellant without infringing on Settle's right to self-representation; 4. In a capi- tal case, the incentives for Settle to exceed the bounds of proper conduct were high, the risk of prejudice to appellant even higher, and the stakes were literally life or death for the losing party. Settle's misconduct, and the trial court's inability to remedy it, demon- strate that the failure to sever Settle's case deprived appellant of a right to fair trial, thereby mandating a reversal of the judgment of conviction entered below. 124 In THE TRIAL COURT ERRED IN DENYING A DEFENSE MOTION TO SEVER APPELLANT'S CASE FROM THAT OF THE OTHER APPEALING DEFENDANTS. THIS ERROR DENIED APPELLANT OF THE RIGHT TO A FAIR TRIAL, DUE PROCESS OF LAW, AND THE RIGHT TO A RELIABLE DETERMINATION OF A CAPITAL CASE, AS GUARAN- TEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS The trial court erred in denying a defense motion to sever appellant's case from that of the other appealing defendants. This error denied appellant a fair trial, due process of law, and the right to a reliable and individualized determina- tion in a capital case, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution. As a result of the joint trial, appellant's case was prejudiced in several ways, including the following: Because of the size of the case, it was not possible to avoid confusion of the issues or for the court to conduct the trial in a manner that was free of prejudice to appellant. Thus, evidence was introduced that was admissible only against Bryant and/or Wheeler, but which the jury was allowed to consider against appellant and which had a spill over effect on appellant's trial because of the fact that improper instructions were given to the jury. The cases against Bryant and Wheeler were stronger than the case against appellant. The tactics employed by Wheeler and Bryant's defense prejudiced appellant. A. The Motions and Hearings, Below On April 3, 1991, appellant objected to a prosecution motion for consolida- tion, arguing that a joint trial would deprive him of a fair trial and due process of law based on the following: 1) The danger a verdict because of "guilt by associa- tion"; 2) The relative strength of the case against, and involvement in the organiza- tion, of Bryant, Wheeler, and Settle, as opposed to the weakness of the case 125 • • • • • I' • • • • • • • • • • • • against appellant; 3) Likely confusion resulting from evidence admissible only against other defendants, and the inability of the jury to compartmentalize that evidence in determining appellant's guilt, compounded by the insufficiency of limiting instructions; 4) The massive nature of the case, and the impossibility of keeping track of all the limited evidence. Appellant argued this would deprive him of the right to a fair trial on his "personal guilt" and "individual culpability." (citing United States v. Haupt (1943, 7th Cir.) 136 F.2d 661, cited in People v. Massie, supra, 66 CaL2d 899, 917 fn. 20.) (CT 1917, 1943-1946, 1949-1950.) The motion further explained that proof of the conspiracy aspect of the case would involve substantial evidence of "other crimes" relating to the organiza- tion, evidence that would not be admissible in a separate trial against appellant. (CT 1951-1952.) The prosecution argued in response that because appellant's contribution to the family was through violence, and because the theory of the case was that Arm- strong was killed because he was trying to blackmail the family, much of the "other crimes" evidence would be admissible in a trial against appellant, even if the cases were not tried jointly. (CT 1990-1991.) Later, appellant filed a motion for severance on substantially similar grounds. (CT 2743-2745.) At the hearing on that motion, appellant expressed concern that there would be evidence of witness intimidation on the part of Wheeler and Bryant, and that there was a danger that the jury would "lump every- one together." (RT 4592-4593.) In response, the prosecution argued that the jury would be instructed to consider each of the defendants separately, and it is pre- sumed that juries follow instructions. (RT 4594.) The defense further argued the paucity of evidence against appellant in rela- tion to the stronger evidence against other defendants, and the danger that he might be convicted because he was tried with the other defendants or because he had family ties to some of the other defendants. (RT 4594-4595.) 126 The court denied the motion to sever, explaining that it would give limiting instructions before and after the various items of evidence were heard, thereby ne- gating any harm from a joint trial. (RT 4595.) B. The Relevant Law In addition to the law regarding severance, as discussed in the previous sec- tion of this Brief, which appellant incorporates herein, other principles of law are relevant to a determination whether the trial court erred in not severing appellant's case from that of Bryant, Wheeler, and Settle. A severance should be granted when there is a danger of prejudice to a defendant resulting in a confusion of issues due to factors such as evidence being admissible only as to one defendant or prejudicial association of one defendant with another. (People v. Cummings, supra, 4 Ca1.4th 1233, 1286, citing with approval factors listed in People v. Massie, supra, 66 CaL2d at p. 917.). When some evidence is admissible against only one defendant, a joint trial presents unique dangers of prejudice to the other defendant. As the court stated in People v. Chambers (1964) 231 CaLApp.2d 23,33: "Relaxed standards of criminal trial consolidation invite procedural and evidentiary possibilities invasive of defendants' rights .... The possibility becomes fairly acute when damaging evidence is received which is admissible against one defendant but not against others ... "'Ihoughtful judicial opinions have voiced misgivings as to jurors' ability to segregate evidence into separate intellectual boxes, each containing a single defendant.. .. Exposed to the realities of depth psychology, judicial cliches carving jurors' minds into autonomous segments may waver and faiL At the minimum, the admission of damaging evidence applicable to less than all the defendants calls for firm judicial supervision and strong, carefully drawn instructions. n (citations omitted, see also People v. Massie, supra, at p. 916, fn 17.) In Jackson v. Denno (l964) 378 U.S. 368, 388 fn. 15, the Supreme Court stated that "[t]he Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should 127 • • • • • • • • • • • • • • • • • • • • • • not consider but which they cannot put out of their minds." (Id., at p. 388-389; United States v. Antonelli Fireworks Co. (2d Cir. 1946) 155 F.2d 631, 656, com- paring the situation to that of "the boy told to stand in the comer and not think of a white elephant." cited in Massie, at p. 917, fn. 17.) Although Zajiro v. United States (1993) 506 U.S. 534 involved the fed- eral rules of criminal procedure governing severance, the opinion makes clear that the federal policy in favor of joint trial is still constrained by constitutional re- quirements. Thus, the Court warned that joinder may create "a serious risk that ... would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." (Id., at p. 539.) This danger is heightened in a complex case such as this, in which the de- fendants have different degrees of culpability. (Ibid, citing Kotteakos v. United States (1946) 328 U.S. 750,774-775, and Bruton v. United States (1968) 391 U.S. 123.) Furthermore, there is an increased danger of confusion causing prejudice in conspiracy cases. As stated by the Supreme Court: "As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself." (Krulewitch v. United States (1949) 336. U.S. 440, 453.) Nor is it possible that the most perfectly crafted jury instructions will ob- viate the likelihood of confusion of issues. The belief that the jury will be able to follow instructions in such circumstances is recognized as a "naive assumption" and "unmitigated fiction." (Ibid.; United States v. Daniels (D.C. Cir. 1985) 770 F.2d 1111, 1118; Blumenthal v. United States (1947) 332 U.S. 539, 559. It is recognition of these truths that often mandates a severance when some evidence is inadmissible as to a co-defendant. (e.g. Bruton v. United States, supra, 391 U.S. 123.) 128 Another factor strongly arguing for severance is the danger of a convic- tion because of prejudicial association with the co-defendants. People v. Cham- bers, supra, 231 Cal.App.2d 23 explained that separate trials should be granted if there is a danger of a conviction on the basis of guilt by association, and that a conviction possibly reSUlting from the association of the defendant with the co- defendant violated the defendant's right to due process of law. (Id., at p. 28.) "Guilt by association is a thoroughly discredited doctrine; personal guilt. .. [is] a fundamental principle of American jurisprudence, inhibiting a central place in the concept of due process." (Id., at p. 28-29, citing Uphaus v. Wyman (1959) 360 U.S. 72, 79; Bridges v. Wixon (1945) 362 U.S. 135, 163.) Guilt by association has the effect of depriving a defendant of a right to a fair trial on his "personal guilt" and "individual culpability." (United States v. Haupt, supra, 136 F.2d 661, cited in Massie at 917 th. 20.) It has long been recognized that conspiracy cases present an unusually heightened danger of guilt by association. "A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. (Krulewitch v. United States, supra, 336 U.S. 440, 454, con. opn.) Zajiro v. United States, supra, 506 U.S. 534 held that the fact of mutually exclusive and conflicting defenses is not prejudicial per se. (Id., at p. 538.) Like- wise, "defendants are not entitled to severance simply because there might be a better chance of acquittal in separate trials." (Id., at p. 540.) However, the court noted that in spite of the strong policies favoring joinder, severance may be re- quired when there is a serious risk that a specific trial right of one of the defen- dants would be compromised or that joinder might interfere with the jury making a reliable judgment. Notably, Zajiro illustrated this principle by stating that: 129 • • • • • • • • • • • • • • • • • • • • • "such a risk might occur when evidence that the jury should not con- sider against a defendant and that would not be admissible if a de- fendant were tried alone is admitted against a codefendant. For ex- ample, evidence of a codefendant's wrongdoing in some circum- stances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. (ld., at p. 538-539.) The reason for this is a recognition of the fact that the government should not have the windfall of having the jury be influenced by evidence against a de- fendant which, as a matter of law, they should not consider but which they cannot put out of their minds. (Delli Paoli v. United States (1957) 352 U.S. 232, 248.) In this case, much of the prosecution's case and arguments depended on the existence of a vast conspiracy. Because of the massive amount of evidence offered against the defendants, including the illegal actions of the co-defendants and other people, much of which would not have been offered against appellant in a separate trial, there was a substantial likelihood of confusion on the part of the jurors, the ex- act danger anticipated in Zafiro. Indeed, as will be shown, at times it was not possi- ble even for the attorneys and the trial court judge to keep all of the facts in perspec- tive. If the judge and attorneys cannot keep the evidence straight, clearly the jury would be confused, creating the very danger which Zafiro described. Furthermore, this case goes beyond evidence being admitted which would not have been admitted had appellant been tried alone. Rather, this case includes appel- lant being tainted by the misconduct of others at trial. c. Application of the Law Many of the concerns expressed by appellant's attorneys bore out, nega- tively affecting appellant's right to a fair trial, and demonstrating that a severance should have been granted and that appellant was prejudiced by the joint trial with Bryant, Settle, and Wheeler. 130 Some of these concerns were foreseeable in the earliest days of the trial, when one of the first judges on the case expressed concern that the case was be- coming "unwieldy" and questioned "the ability of a jury to segregate and separate out all the defendants and all the charges." (RT 481.) Indeed, the Honorable J.D. Smith subsequently severed the non-capital de- fendants because he realized and repeatedly stated that the case was too big to try. (RT 3923-3933, 3943, 3974-3978, 3796.) Although the severance of other de- fendants and counts did reduce the size of the case, it still remained too large to manage without a substantial risk of prejudice. All of these concerns manifested themselves in specific fonns as the case progressed. 1. Admission of Evidence Not Otherwise Admissible Against Appellant The most prejudicial effect of the refusal to sever appellant's case resulted from the admission of evidence against appellant which would not have been ad- missible if appellant had been tried alone. (See Argument IV, below.) This was compounded by the fact that the jury instructions given regarding this evidence were improper and insufficient. (See Argument V, below.) (a) Evidence of the Curry Shooting The evidence relating to the Curry shooting is perhaps the most graphic ex- ample of the confusion resulting from the size and complexity of the case. As ex- plained in greater detail below (see section IV), that evidence was not admissible against appellant and was only admitted because the court and parties were not able to keep track of the logical foundation required for that evidence. This confu- sion would not have occurred had appellant been tried separately. Briefly, the prosecution claimed that appellant shot Curry at the behest of Bryant. The trial court had ruled that evidence of the Curry shooting and bombing was not admissible against appellant unless it could be shown that Bryant was an- gry at Curry because Curry was sleeping with Tannis. The trial court considered 131 • • • • • • • • • • • • • • • • • • • • • this to be the logical "underpinnings" for the admissibility of this evidence. (RT 11158.) Bryant's anger at Curry was proven through Tannis's statement that Bry- ant had admitted placing a bomb under Curry's car. (RT 13096-13098, ante, at p. 34.) Because Bryant's statement to Tannis was admissible against Bryant as an admission under Evidence Code section 1220, but inadmissible against appellant, the jury was correctly instructed to consider it only against Bryant. (RT 13086.) Therefore, the necessary predicate for introducing the evidence against ap- pellant was never established. Nonetheless, the jury was allowed to consider the evidence of the Curry shooting against appeallant, even though the condition for its relevance and admissibility against appellant was never satisfied. This was a violation of due process because the admission of "other acts" evidence violates due process when "there are no permissible inferences the jury may draw from the evidence." (Windham v. Merkle (9th Cir. 1998) 163 F.3d 1092, 1103.) Without its logical underpinnings, there was no permissible infer- ence for this evidence. As the court below stated, unless the jury knew that Bryant was mad at Curry, this evidence does not "make any sense at all." (RT 11158.) If appellant had been tried alone, the court would have excluded the evi- dence because it was admissible only against Bryant, who would not have been a party. And the prosecution would not have been able to depict appellant as the hit man for the Bryant family. The jury's hearing evidence that was properly admissible as to only one de- fendant is precisely the situation deplored in Jackson v. Denno, supra, 378 U.S. at p. 388 n. 15. Although this evidence was offered after the court ruled on the sev- erance request, an appellate court may look at the facts that developed after the mo- tion in order to determine if a gross unfairness has occurred as a result of the failure to sever. (People v. Cleveland, supra, 32 Ca1.4th 704, 726.) 132 The erroneous admission of this evidence against appellant is one such ex- ample of a gross unfairness. (b) Other Evidence not Admissible Against Appellant The voluminous character evidence against the other defendants, which occu- pied the vast majority of the trial, also posed a substantial danger of prejudice to ap- pellant, as recognized in People v. Chambers, supra, 231 Cal.App.2d 23, at pp. 27- 28. Much of this evidence would not have been admissible had appellant been tried separately. Excluding the testimony of Williams regarding the incidents in the Wheeler Avenue house on the day of the murder, the evidence against appel- lant in this marathon trial occupies only a small portion of the record. A huge amount of evidence was introduced regarding the Bryant organization and the running of a slew of fortified crack houses34• • Papers found at the properties and other evidence connected the Bryant and Settle families and Wheeler to those lo- cations. (Ante, at pp. 20-24.) Other evidence established the similarity of the Wheeler house to the other crack houses. This evidence may have had some pur- pose in showing that the Wheeler Avenue residence was one of the Bryant drug houses. Likewise, it may have shown the nature and scope of the organization, providing a motive for Armstrong and Bryant in their ambitions in the business While some evidence of the scope of the organization may have been ad- missible at a separate trial of appellant, the massive volume of evidence concern- ing the bad acts of other people would, at some point, have been considered cumu- lative and unduly prejudicial under Evidence Code section 352. 34 Located at 10743 and 10731 DeHaven, 13031 and 13037 Louvre Street, 11649 Fenton Street, 11943 Carl Street, and the pre-murder raid at 11442 Wheeler Ave- nue. 133 • • • • • • • • • • • • • • I • • • • • • • Likewise, the evidence relating to Francine Smith35 had minimal, if any, probative value as to appellant's guilt. Nonetheless, in a joint trial it became a part of the evidence that the jury could consider against appellant. Similarly, Alonzo Smith testified that he made arrangements with Bryant to get some drugs to sell. (RT 10884-10890.) Although it is questionable how this would tend to prove appellant shot the victims in this case, the court refused to limit admissibility of Byrant's statement to Alonzo Smith to Bryant. (RT 10888.) In summary, this trial was largely concerned with the other bad acts of other people, with the likelihood that appellant would be tainted by those acts. 2. Guilt by association In this case, there was also a substantial danger that appellant would be convicted because of his association with Bryant and Wheeler, especially in light of the prosecution's arguments regarding the nature of the organization and the fact that it acted with impunity and terrorized the community. (e.g., RT 16430S- 16430T.) These arguments tended naturally to invite the jury to lump all partici- pants together and convict in order to clean up the streets by locking up anyone associated with the business. The danger of guilt by association was also increased dramatically by ap- pellant being forced to sit at the same table for the six months of trial, with other conspirators, including its current boss of the drug organization that the prosecu- tion compared in closing summation to the "Mafia." (RT 16430T.) It has been recognized as a "psychological reality" that a weak case against one defendant is improperly bolstered by "a mass of evidence" relevant to only to the co-defendants. (Castro v. Superior Court (1970) 9 Cal.App.3d 675, 692.) In this case there was far more evidence against Bryant, Wheeler, and Settle 35 Francine Smith received expenses from Bryant to visit Armstrong in prison. Bryant was standing nearby when she was beaten up after she tried to buy drugs at the Lourve Street drug house with altered currency. (RT 9447-9450.) 134 than there was against appellant in the fonn of evidence connecting them to the organization, to the Wheeler Avenue house, and to the drug business. Therefore, there was a substantial likelihood that appellant would be iqIproperiy tainted by that evidence. 3. Misconduct of Others Defendants at Trial Appellant was also prejudiced by the stream of misconduct from his co-defendants, sharing the same table as appellant. In addition to the shenanigans of Settle described above, Bryant, Wheeler, and their attorneys engaged in sub- stantial misconduct in the course of the trial. Even if such behavior could not be predicted before trial, this Court may consider the misconduct because it resulted in a gross unfairness which deprived appellant of a fair trial and violated due proc- ess oflaw. (Ante, at p. 105, (People v. Cleveland, supra, 32 Ca1.4th 704, 726.) These events and facts would be guaranteed to leave a negative impres- sion on the jury, as recognized by cases such as Carruthers (ante, pp. 108-109). For example, during Bryant's testimony, the trial court felt compelled to issue a rather stem warning to Mr. Harris and Mr. Jones, the attorneys for Wheeler and Bryant, stating that it was not he first time that the court had done so, about what the court considered inappropriate and unprofessional conduct in that they were loudly laughing and making noises when the jury was present. (RT 15501-15502.) Likewise, Wheeler appeared to be audibly laughing at one of the wit- nesses. He then made noises that prompted Judge Horan to threaten to remove him from the CO\lrt room. Many of these events occurred in the presence of the jury. After he was admonished to behave himself, he repeated this conduct, caus- ing the court to ask the jury to step into the jury room, so that the court could again admonish him. When the court tried to control Wheeler, he used a string of vul- garities, prompting the court to temporarily remove him from the courtroom. (RT 17324, 17326, 17327-17329.) l35 • • • • • • • • • • • • • • • • • • , • • • Furthermore, as with Settle, it appears that Wheeler and Bryant fabricated a defense and committed peIjury in denying guile6• This is the very type of conduct that taints the perception of defense attor- neys and of criminal defense in the public's collective consciousness. Although the court could not control Wheeler's defense, appellant should not have been prejudiced by his co-defendant's bad behavior and peIjured testimony. This was not merely an "inconsistent defense" which may not be grounds for a severance. It was an unethical defense, which unfairly tainted appellant. Other misconduct of Wheeler and Bryant were bound to leave a negative impression on the jury. For example, Wheeler claimed not to remember telling Givens, his girlfriend, not to say anything if she was questioned by the police, in spite of the fact that this statement appears on a tape recording. Even when the tape was played for the jury, Wheeler testified that he read it in the transcript but did not hear it on tape. (RT 13975-13976.) Wheeler had an explanation for everything. For example, he did not make frequent calls to Bryant, as reflected in the phone bills. Rather, everyone else used his car phone. (RT 14041-14043.) Wheeler did not know why he had the Laurel Canyon apartment in his address book. (RT 14044) A $200 debt listed in his ex- pense book was owed to his sisters, who are seven years old. (RT 14046-14047.) Wheeler claimed to be budgeting his money to buy a house, yet he blew $1,000 on rims for the tires on his car. (RT 14079) Wheeler testified that Provine was work- ing at the Wheeler Avenue house, but he could not explain why Provine's name did not appear on one document of all those recovered. (R T 14141.) While he admitted working for the Bryant family, Wheeler claimed that Williams was his boss. CRT 13916, 13919-13920.) According to Wheeler, Wil- 36 Respondent can only contend that Wheeler and Bryant were not committing per- jury if respondent believes that they were telling the truth, in which case the prosecution is trying to execute two innocent people. As to Wheeler, it emerged at the penalty phase that he had admitted to his appointed psychiatrist that he was in- volved in the shooting, contrary to his testimony in the guilt phase. (RT 17887.) 136 Iiams was also the enforcer for the organization and ranked higher than Wheeler, but Wheeler could not explain why he had all the nice stuff and Williams had a broken down old car. (RT 13933, 14144-14145.) Wheeler denied being close to Bryant in spite of all the phone calls and other connections. (RT 14146.) Like the sailor going to jail, Wheeler had an excuse for everything. Wheeler's completely implausible testimony could only convince the jury he was a liar, and thereby bolster the Williams's testimony and the rest of the prosecution's case, having a spill over effect on appellant's triaL Bryant's testimony was equally incredible. Like Wheeler, Bryant attempted to explain away or express ignorance of every piece of evidence the prosecution presented. According to Bryant, William Settle ran the business and was giving Bryant $1,500 per week to use the pool hall. (RT 15170.) Bryant did not know who bought the houses on Fenton or Adelphia, and did not know whether Jeff supplied Eddie Barber with the money to buy those houses. (RT 151170.) Bryant admitted paying for the cages on the drug houses, but he put them in at his brother's request. (RT 15178-15179.) He was at the Wheeler Avenue house every day during 1988, except August 28th. (RT 15181.) He had the keys to the Wheeler Avenue house because Williams gave them to him. (RT 15320-15322.) The records relating to the business that Bryant had in his possession belonged to Jeff. (RT 15265-15266.) When he sent the money to Armstrong and other people in prison it was for Jeff. (RT 15192-15195, 15203, 15204.) The people who had contact with the Bryant from prison did so because they were friends of Jeff. (RT 15240-15241.) He was holding incriminating papers found in his possession for either Jeff or William. (RT 15250-15252.) His name is on the paper work because he was doing things for William. (RT 15208-15209.) If Bryant couldn't deny things, he couldn't remember them. For example, he did not remember going with Johnson to trade in the Hyundai. (RT 15223.) 137 • • • • • • • • • • • • • • • • • • • • • • Furthennore, Wheeler and Bryant contradicted each other. The jury had to conclude at least one of them was lying, if not both. Meanwhile, appellant was caught in the middle, tainted by the perjury of at least one co-defendant. To convict Bryant and Wheeler, the jury had to conclude that they were ly- mg. Their perjury gave Williams credibility and confinned the public perception that criminal defense attorneys, including appellant's attorneys, are hired guns who will do anything to win. This also gives credibility to Settle's improper ar- gument that the best way to get to the truth was to represent oneself (ante, at p. 113), thereby bolstering the inference of guilt for those exercising the right to counsel. Had appellant been tried alone he would not have been burdened with the misconduct of others. Indeed, the prosecution's arguments stressed perceived lies and/or peJjury committed by the other defendants. For example, the prosecution compared Wheeler and Bryant's testimony regarding Williams: Wheeler testified Williams was the boss of his group, while Bryant testified Williams worked in the pool hall. (RT 16502.) The prosecutor then stressed the contradictions between Wheeler's defense and the defenses of Bryant and Settle, arguing that Wheeler testified he never saw Bryant at the Wheeler Avenue house, while Bryant testified that he was there every day. Likewise he stressed other contradictions, such as Wheeler testifying William Settle was just a book keeper, while Bryant claimed William ran the or- ganization. (RT 16831.) Later, the prosecution recounted Wheeler's obvious lies when interviewed by police the first time regarding how many times he was at the Wheeler Avenue house. (R T 16828-16829.) The prosecution stressed what it considered to be the obvious provable perjury of Wheeler, urging the jury to listen to the tape of Williams and Givens where Wheeler told Givens not to say anything to the police, and then on the wit- 138 ness stand testified that he told her to tell the police everything. (RT 16508- 16509.) In short, it would appear that someone, or everyone, except for appellant - - who did not testify -- was lying37 • Thus, appellant was unfairly prejudiced by his co-defendants' misconduct at triaL 4. Error in Instructions In refusing to sever appellant's case, the court seemed to accept the prose- cution's argument that any prejudice could be averted or cured by limiting instruc- tions. (Ante, at p. 126.) In fact, the court erred in giving instructions regarding evidence of other bad acts. (Infra, Argument V.) Even assuming arguendo that proper instructions were given, this ignores the well-established principle that while limiting instruc- tions may lessen prejudice, they are not "panaceas." (people v. Bigelow (1984) 37 Ca1.3d 731, 757.) Where "the practical and human limitations of the jury system cannot be ignored" (Bruton v. United States, supra, 391 U.S. 123, 135-136), the fiction of jury instructions must give way to reality. As will be shown, to assume that the jury in this case was able to properly follow instructions elevates the "un- mitigated fiction" to a new level in the genre. (Ante, 128.) There were simply too many wrongful acts for the parties, court, attorneys, and jurors to keep straight. The court rejected limiting instructions that would have more accurately covered these acts, because the proposed instructions took three pages just to list the other crimes evidence. (RT 16320-16321.) Rather than specifying which acts could be used against which defendant and for which pur- poses, the court simply gave the jury a generic instruction which did not even cor- 37 The prosecution's theory was that "every single word [Wheeler] told ... was a lie." (RT 16508.) 139 • • • • • • • • • • • • • • • • • • • • • • rectly identify the use for which particular items of evidence were introduced. (See Argument V, below.) This is similar to Chambers where prejudice was found because the instruc- tions dealing with other bad acts did not clearly specify which bad acts could only be considered against one defendant, thereby failing to adequately to protect the other defendant from the effect of "prejudice-arousing evidence" applicable only to the codefendant (Chambers, at pp. 33-34.). As noted above, the danger that the jury will not be able to correctly apply the evidence, even with proper instructions, is grounds for severance. (Ante, at pp. 127-128.) This danger is more likely to bear fruit where, as here, the instructions themselves are inadequate. When the volume of evidence is so complex that even the court and attor- neys are not able to keep the evidence straight (ante, at pp. 131-132.) it belies real- ity to believe that the jury will be able to do so. The experience at trial thus bore out the concerns of both the defense attor- neys and the earlier trial court judges who concluded that the case was simply not manageable and that the jury would never be able to keep the facts properly iso- lated. 5. Use of Restraints on Appellant During Trial Appellant was also prejudiced by the joint trial because he was forced to wear a stun belt as a form of restraint during the triaes based solely on considera- tions which applied to other defendants. (RT 6376 6347, 6348-6349; infra, Ar- gumentIX. The size of the case and the notoriety of the "Bryant" family generated se- curity concerns that would not have arisen in a separate trial of Smith. The fact that two out of four defendants had a history of dangerous, in-custody conduct was 38 The use of restraints on appellant itself was an error requiring a reversal of the judgment. (See Argument IX, infra.) 140 also an important factor in determining what security measures should be em- ployed. Had appellant been tried alone, those risks would have been eliminated. Furthermore, there was no danger posed by appellant from a history of wit- ness intimidation or behaving badly in court, other reasons which may be consid- ered in the decision to employ additional security measures such as the stun belt. It is a fundament right to be tried free of unnecessary restraints. (Infra, Ar- gument IX.) When the issue of courtroom security arose, there was nothing in the record relating specifically to appellant that would have justified the use of the stun belt. Because the security risks posed by the Byrant family, rather than appel- lant's own conduct, prompted the trial court to make appellant wear a stun belt, appellant was unfairly prejudiced by the court's refusal to sever his case from Bryant and Wheeler. As discussed below, the fact that one juror may have seen the restraints is prejudicial. Likewise, prejudice may be found from the mere psychological re- straints inherent in being forced to wear a stun belt. (Infra, Argument IX.) There- fore, appellant was prejudiced to the extent that the co-trial with Bryant and Wheeler justified the use of these enhanced security measures. 6. Appellant was Deprived of Right to be Tried Solely on the Evidence Pre- sented in the State's Case in Chief. Finally, as discussed below (infra, Argument XIII), appellant did not pre- sent a defense. At the close of the prosecution's case, appellant rested. Mr. Novotney explained that because the defense was resting, there would be no rebut- tal that could apply to appellant. (RT 13891.) Mr. Novotney explained that appel- lant was entitled to have the jury consider the State's case against him as it existed at the close of the prosecution's case in chief, and therefore any evidence 141 • • • • • • • • • • • • • • • • • • • • • coming in after that time should not apply to appellant (RT 13891-13892, RT 13894.) The court denied this request and refused to instruct the jury not to consider any further evidence against appellant If appellant had been tried alone, the case would have concluded at that point, and the jury's determination of appellant's guilt or innocence would not have been tainted by the extensive rebuttal evidence triggered by the co- defendant's dubious defenses. The refusal to grant a severance thus deprived ap- pellant of the right to have his case resolved solely on the evidence presented by the prosecution. 7. Errors Arising in the Penalty Phase The errors resulting from the failure to sever appellant's cases also preju- diced appellant with respect to the penalty phase. For example, as discussed below (infra, at p. 366) as part of CALnC No. 8.85, the jury was told that in determining the penalty as to a "defendant" it "shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed." (Italics added.) This instruction was not appropriate in a joint trial in which huge sections of the evidence were legally relevant to just one defendant or another. In the guilt phase certain evidence had been introduced that was limited to the other defen- dants. For example, both Bryant and Settle had made admissions regarding the murders. (Infra, at pp. 148-149.) At the time the jury was told that these state- ments were limited to those defendants. (RT 9276-9277, 10371, 10913-10914.) Those restrictions should have continued to apply in the penalty phase. At the later stage, however, the jury was told to consider all evidence except as "here- after" instructed otherwise. The jury was never given any further limiting instruc- tions. 142 The result is that evidence which the court understood was not admissible against appellant could be considered against appellant at the stage when his very life depended upon it. The prosecution's theory of the case was that the Bryant organization was one huge terrorist group inflicting violence on the community. Because the jury was not instructed that such evidence still was not relevant to appellant, acts of violence committed by the Bryant family, such as the beating of Francine Smith, could have been considered "circumstances of the crime," and therefore part of the evidence against appellant. Likewise, as discussed above (ante, at pp. 135-136), there was substantial misconduct on the part of the other defendants, including acting up in court and possible perjury in defense testimony. There was no comparable misconduct on the part of appellant, and it is inconceivable and intolerable that appellant should be tainted by the actions of others. This is particularly true in the penalty phase where a person's life hangs in a delicate balance. As will be discussed in greater detail below, in appellant's case this balance was as fine as a jury split six-six on penalty, announcing on two occa- sions that it was deadlocked. If appellant was tainted in any way by the actions of the other defendants not attributable to appellant, this delicate balance can shift ever so slightly to pro- duce a radically different result. 8. Prejudice The core of a court's analysis is the effect of joinder on the ability of the jury to render a fair verdict. Prejudice will exist if the jury is unable to assess the guilt or innocence of each defendant on an individual and independent basis. (United States v. Tootick (9th Cir. Cir. 1991) 952 F.2d 1078, 1082.) In so far as the failure to sever appellant's case from the cases of Bryant and Wheeler deprived appellant of the right to a fair trial, appellant submits that 143 • • • • • • • • • • • • • , • • • • • • • • 11 M ' ill j Q' ttl $ tn., .lint t 11 the only proper standard for judging prejudice is Chapman v. California, supra, 386 U.S. 18 requiring reversal unless it can be shown that the error was harmless beyond a reasonable doubt. Such a showing is not possible in this case. In fact, rather than a lack of prejudice, it is possible to make an affinnative showing that the appellant was likely to be prejudiced. The fact that the devastating Curry evidence, which was never properly admitted against appellant, came in as a result of the joinder is strong proof that the denial of the severance was prejudicial. (Argument IV, infra, see People v. Ortiz (1978) 22 Cal.3d 38, 47.) The Curry shooting was crucial to the prosecu- tion's effort to depict appellant as the "hit man" and "high level dope murderer" for the family. (RT 16491-16492, 16552.) This evidence may have been the most important evidence corroborating Williams's testimony. Even if Williams is not an accomplice, his testimony is suspect (ante, at pp. 61-62), and the Curry evi- dence improperly gives it credibility. If this evidence is not admitted, the most damning evidence against appel- lant evaporates. Appellant was also prejudiced by evidence and argument concerning the effect of the Bryant organization on the city of Los Angeles, much of which would not have been relevant and admissible against appellant in a separate triaL (RT 16475-16476.) Similarly, the jury heard evidence of numerous other alleged crimes of Bryant and Wheeler that were not relevant to appellant. As noted above, one of appellant's arguments for severance was that Bryant, Wheeler, and other defendants - but not appellant were charged with a conspiracy to dissuade witnesses from testifying (ante, at p. 126), which would be heard by a joint jury trying appellant. Likewise it was argued that the proof of the conspiracy aspect of the case would involve substantial evidence of "other crimes" relating to the organization, evidence that would not be admissible in a separate trial against appellant. Although the counts involving the drug trafficking and dissuading 144 witnesses were severed at the time that the non-capital defendants were severed (RT 4247-4248), this did not obviate the need to sever appellant's case, because evidence of Bryant's efforts to dissuade witnesses was still admitted, as was a substantial amount of evidence relating to the overall conspiracy to run a narcotics organization. The prejudice arising from the introduction of this slew of evidence relating to the organization was compounded by the arguments of the prosecution as to the scope and nature of the organization, which were portrayed to the jury in the most dramatic tenns. (e.g. RT 16430P-16430W.) Likewise, the constant flow of witnesses who had to be "Greened39" was extremely prejudicial, raising the implication that these witnesses were afraid to testify because of the scope of the Bryant family organization. Because there was no evidence connecting appellant to witness intimidation, had appellant been tried alone, this spectacle would not have occurred. Again, the fear of these witnesses was argued by the prosecution not only to give credibility to their prior inconsistent statements, but also to suggest the brutality, scope, and reach of the Bryant family. (e.g. RT 16430T.) As the person the prosecution painted as the hit man for the family, appellant would surely be tainted by the evidence of witness intimidation, even though he had nothing to do with threats against the witnesses. Likewise, just prior to discussing appellant's relationship with Bryant, the District Attorney referred to Tannis's conversation in the beauty parlor where she said that Bryant planted the bomb under Curry's car. (RT 16546.) That 39 California v. Green (1970) 399 U.S. 149 - allowing for the admission of prior inconsistent statements as substantive evidence. Witnesses who had to be "Greened" because they were afraid to testify included John Allen, G. T. Fisher, Michael Flowers, Barron Ward, witnesses to aspects of the Gentry shooting, and Laurence Walton, William Johnson, Pierre Marshall, and Ladell Player, drug dealers who worked with the Bryant family. (RT 8902-8093, 8860-8862, 8974-8977,9228-9231,10134-10136, 10566-10567, 10570, 11791.) 145 • • • • • • • • • • • • • • • • • • • • • • conversation was not admissible against appellant, and had appellant been tried alone it would never have been admissible. In fact, there was no evidence connecting appellant to the bombing. However, the juxtaposition of these two arguments would surely tie appellant in the jury's mind to that incident. As previously noted, when a prosecutor exploits erroneously admitted evidence during closing argument, the error is far more likely to be prejudicial to the defendant. (People v. Woodard, supra, 23 Cal.3d at p. 341.) The likelihood that the jury erroneously considered evidence not properly admissible against appellant was further exacerbated by the trial court's failure to repeat the limiting instructions that had been given earlier when it instructed the jury at the end of the trial on the use of other crimes evidence. As explained in Chambers the weakness or strength of the case is a factor in determining prejudice.4o As discussed above (ante, at pp. 75-79), the evidence against appellant was very weak, consisting of accomplice testimony or testimony that should be suspect because of its source. (ante, at pp. 61-62.) The remaining evidence did not connect appellant to the offense, as Judge Horan explained. (Ante, at p. 48.) Furthermore, much of that remaining evidence was itself inadmissible against appellant. To the extent that this Court fmds that any of the evidence com- plained of in this brief is in fact inadmissible, that fact must be considered in evaluat- ing the actual strength of the case against appellant. (Argument IV, infra.) When, as here, a case is close, even a small degree of error at trial is enough to influence the jury to wrongfully convict, requiring reversal on appeal. (People v. Wagner (1975) 13 Cal.3d 612,621.) In this close case, because of the failure to sever the case, evi- dence was wrongfully admitted against appellant, compounded by jury being incor- rectly instructed on how the evidence could be used. Furthermore, the misconduct of 40 Other cases have recognized the propriety in evaluating the strength of the prose- cution's case in determining prejUdice. (e.g., People v. Gatlin (1989) 200 Cal.App.3d 39; People v. Ortiz, supra, 22 Cal.3d 38, 46-48; People v. Massie, supra, 66 Cal.2d, 899,921; People v. Mendoza (2000) 24 Cal.4th 130.) 146 the other defendants haS the grave danger of tainting appellant in the jury's evalua- tion, especially when a conspiracy theory increases the danger of guilt by associa- tion. This case is distinguishable from cases such as People v. Mendoza, supra, 24 Ca1.4th 130, where the court found that there was no prejudice from the failure to sever counts. Mendoza found no prejudice because the evidence that was admitted as a result of consolidation was "fleeting and minor." Consequently, in that case there was a minimal risk of confusing the jury. (Id, at p. 163.) In contrast, in the instant case, some of the prosecution's most important evidence -- evidence of the Curry shooting and bombing -- was improperly placed before the jury because of the joinder of the cases. The relative strength of the case against the defendant, as compared to the strength of the case against the co-defendants is an appropriate factor in evaluating prejudice. In this case the evidence against appellant paled when compared to the evi- dence against Bryant, Wheeler, and Settle. For example, in addition to the evi- dence mentioned above, Bryant was implicated by evidence including the follow- ing facts: • Bryant's fmgerprints were found on the phone and the door jamb at the rear bathroom at Wheeler Avenue. (RT 13266-13266, 13269, 13270-13272.) • Bryant's involvement in the drug operation was established by nu- merous witnesses who testified they sold drugs for Bryant and/or that he was the boss of the organization. (RT 9993, 9632, 9719- 9720, 10235-10237, 10239-10240, 10688-10689, 10884-10908.) • Documents connecting Bryant to the business and people associated with the business were found in Bryant's possession, including drug sales inventories and the list of shifts at the Wheeler house. (RT 13366-13371, 13378, 13398-13404.) 147 • • • • • • • • • • • • • • • • • • , • • • Bryant plead guilty to conspiring with Reaux to sell drugs from Wheeler Avenue on an earlier occasion. (RT 9729-9732.) • The keys to Wheeler Avenue were found among Bryant's posses- sions. (RT 13553.) • Bryant was seen behind counter at the pool hall, the hub of the or- ganization. (RT 9660, 9669-9662.) • Bryant gave money to Francine Smith and Mona Scott to pay for the expenses of visiting Armstrong in prison and sending money to Armstrong. (RT 9447-9449, 9481-9485, 9487, 9489-9490, 9495- 9495, 9496-9499,9501-9504.) • Bryant was present when Francine Smith was beaten after trying to cheat one of the crack-houses. (RT 9450-9451.) • Ladell Player had told Bryant he had been past Wheeler A venue the day after the murders and had seen police tape and blood. Bryant replied they had a problem, but Bryant had taken care of it. (RT 10370-10371.) • After the murders Bryant made an admission to Alonzo Smith that "Tommy had to go." (RT 10916.) The evidence against Wheeler included the following: • Wheeler admitted selling drugs from the Wheeler Avenue house, which was confinned by other witnesses. (RT 11219, 10253, 10241, 13928, 13931.) • Wheeler's prints were found on the door of a hallway closet at Wheeler Avenue. (RT 13275-13278, 13279-13280.) • In Wheeler's calendar book he had the names, addresses and phone numbers of various locations associated with the narcotics business. (RT 11192-11194, 11196, 11199- 11201.) 148 The evidence against Settle included the following: • Settle was seen in the pool hall and many people testified they bought drugs from him. (RT 9267, 9267-9268, 9740-9742, 9747- 9750, 9757-9758, 10055-10056, 10063-10064, 12010, 12013, 15806-15807.) • Before the murders, Goldman heard Settle say that Annstrong would not be around too much longer, in response of a comment that some- one had made about Annstrong making demands on the family. (RT 9276-9278.) • Settle's initials were found at the Wheeler Avenue residence next to the phone in the kitchen. (RT 10759-10760.) • Financial and inventory records of narcotic trafficking were found in Settle's briefcase. (RT 12010.) • Settle's confessed ownership of the Vanport residence, one of the Bryant family crackhouses. (RT 9771-9772, 15333.) Compared to the weakness of the case against appellant as discussed above (Ante, at pp. 75-79), it is clear that there was a substantial difference in the quan- tity and quality of evidence against the other defendants. Therefore, reversal in required. Furthermore, as noted above a greater degree of reliability is required in capital cases. The joinder of defendants in this case allowed for the introduction of peIjured testimony and a vast amount of evidence not admissible against appel- lant, confusing the facts and issues, and thereby depriving appellant of the right to a reliable determination mandated in capital cases. (Ante, at p. 51.) Additionally, by grouping appellant with the rest of the defendants, the failure to grant a severance also violated appellant's right to an individualized sen- tencing determination in violation of the Eighth and Fourteenth Amendments. (Lockett v. Ohio (1978) 438 U.S. 586,605.) 149 I . • • • • • • • • • • • • • • • • • • • • • • Furthermore, the error described above so infected the trial with unfairness as to render the convictions a denial of due process oflaw. (Ante, at p. 52.) Finally, all of these rights the right to a perjury free trial, the right to have the jury not confused by improperly admitted evidence and incorrect instructions, the right to be free of unnecessary restraints, the right to be free from inferences based on guilt by association - are rights of real substance under state law, and ap- pellant had a liberty interest in those rights, the deprivation of which violated the Due Process Clause. (Ante, at p. 51-52.) D. Summary The trial court's refusal to sever appellant's case from the case of Bryant and Wheeler rendered appellant's trial fundamentally unfair in violation of the Due Process Clause of the Constitution of the United States. Therefore, the judg- ment of conviction entered below must be reversed. 150 IV THE EVIDENCE OF THE ASSAULTS ON CURRY AND OTHER CRIMINAL ACTS OF APPELLANT AND OTHER PERSONS WERE IMPROPERLY ADMITTED UNDER EVIDENCE CODE SECTIONS 210, 300, 352 AND 1101. THE IMPROPER ADMISSION OF THIS EVIDENCE DEPRIVED APPELLANT OF THE RIGHT TO A FAIR TRIAL UNDER THE FIFfH AND FOUR- TEENTH AMENDMENTS TO CONSTITUTION. IT ALSO VIOLATED APPELLANT'S RIGHT TO A RELIABLE DETERMINATION IN A CAPITAL CASE, GUARANTEED BY THE EIGHT AMENDMENT. The trial court erred in admitting evidence of other uncharged, wrongful acts of appellant and other individuals to prove the charged offenses. This in- cluded evidence of the Curry shooting and bombing, the details of appellant's ar- rest for the Curry shooting, and other evidence relating to the operation of the Bryant organization. The admission of this evidence was improper under Evi- dence Code sections 210, 300, 352, and 1101 and deprived appellant of the right to a fair trial under the Fifth and Fourteenth Amendments Constitution. The error in admitting uncharged acts was compounded by the giving of erroneous instructions, an independent grounds for reversal in itself. (Infra, Ar- gumentV.) Because of the weakness of the case against appellant, the admission of this evidence was prejudicial, requiring a reversal of the judgment of guilt. A. The Motions, Hearings, and Rulings, Below The evidence of other bad acts was the subject of numerous hearings at various stages of the trial. 151 • • • • • • • • • • • • • • • , • • • t • t 1. The Hearings Relating to the Assaults on Curry In the first hearing regarding the assaults on Curry the prosecution stated it wished to prove the following: Curry was sleeping with Tannis. One day, Curry's car blew up after he got in the car. Sometime later he was driving down the street when appellant pulled up next to him and shot him, for no apparent reason. After he was released from the hospital, Curry was in bed when a man jumped through the window and shot him again. The person who shot Curry the second time was never identified. (RT 10936-10937.) The purported relevance of this evidence was to place appellant in the or- ganization as the person that Bryant turned to when he felt that someone should be killed. (RT 10937.) The defense objected to this evidence on the grounds that it was irrelevant and that it should be excluded under Evidence Code section 352, arguing that it did not have a tendency to show appellant's complicity in the charged offense. The defense explained that other evidence would be introduced to show that appel- lant was involved in the drug operation, and that the Curry evidence would be sub- stantially more prejudicial than probative. (RT 10939-10940.) The defense also explained that there was a question as to whether the first shooting of Curry was within the scope of the drug operation. If it was not within the scope of that operation, it would constitute propensity evidence, prohibited by Evidence Code section 1101, subdivision (a). (RT 10941.) The court agreed that whether there was a contract on Curry by Bryant was beyond the scope of Curry's personal knowledge. (RT 10942-10943.) The prose- cution admitted there was no evidence to tie the car bomb or the second shooting of Curry to appellant, except for the fact that it happened shortly after Tannis and Curry got together. (RT 10943-10944.) The court stated that this evidence would tend to show that appellant did Bryant's bidding. (RT 10945-10946.) In response to the defense argument that 152 appellant was already tied to the operation, the court stated that this connected him in a specific way and was therefore relevant. (RT 10946-10947.) The defense explained that the "connecting evidence" between appellant and Bryant was missing, and that it was speculation to assume that appellant shot Curry at Bryant's behest. (RT 10947.) The court stated that it would not allow evidence of the second shooting, as that was highly speculative. (R T 19949.) However, it would allow the evidence of the bomb incident, which it believed was circumstantial evidence that there was a plan to kill Curry.(RT 10949-10950.) The court stated the evidence was rele- vant to show the relationship between appellant and Bryant. (RT 10950.) Appellant renewed his objection under People v. Ewoldt (1994) 7 Ca1.4th 380 (hereinafter Ewoldt), arguing that the evidence was prohibited evidence of predisposition. (RT 11150-11152.) The defense explained that if the evidence was being offered to prove a common plan, Ewoldt requires a certain level of simi- larity which was missing between these incidents. (RT 11152.) It was further ar- gued that the actual inference created by this evidence was to prove identity, which requires a greater degree of similarity than was present herein, as the charged and uncharged offenses were very dissimilar. (RT 11153-11155.) The court stated that in order for the evidence to be relevant, the prosecu- tion needed to prove the logical "underpinnings," that Bryant was aware that Curry and Tannis were sleeping together, and Bryant was angry about it. This predicate had to be established, the court correctly reasoned, for this evidence "to make any sense at all." (RT 11158.) The prosecution informed the court that it had a witness who overheard Tannis say that Bryant admitted to her that he had Curry shot. (RT 11161.) In the hearing pursuant to Evidence Code section 402, Curry testified that he had met appellant through Tannis, his relationship with appellant was always casual, and there had been no problems or threats prior to the shooting incident. He had no idea why appellant would shoot him. (RT 11271-11272.) 153 • • • • • • • • • • • • • • • t • After Curry testified, counsel for appellant explained that from Curry's tes- timony it appeared that there was no evidence connecting these incidents to Bry- ant. The evidence was therefore inadmissible under section 1101(a). (RT 11280.) Furthermore, because the prosecution was offering this evidence not to show com- mon plan, but rather to show appellant's participation in the organization, and hence his identity as the shooter in the instant case, Ewoldt requires the greatest showing of similarity for the evidence to be admissible, a standard which was not met by this evidence. (RT 11281.) The court held it would allow the evidence with the exception of the second shooting incident. The court reasoned that the fIrst two incidents - the shooting by appellant and the car bomb -- raised a logical inference that Bryant was the root of the assaults and that appellant acted at his behest. (RT 11292-11293.) The court did not believe that the attack on Curry was unrelated to the rest of the case,be- cause there is no explanation why appellant would shoot Curry "out of the blue," unless it was at the request of Bryant. (RT 11294.) The court agreed that the issue against appellant was "one primarily of who did it..." (RT 11295-11296.) However, if the issue was whether Bryant hired ap- pellant to kill Armstrong, the fact that Bryant hired appellant to kill another person on a prior occasion would be probative in this case. (RT 11295-11296.) The court stated that this evidence also went to the identity of the shooters in this case. (RT 11296-11297.) As to the similarities, the court noted that both incidents involved Tannis, the people shot in both incidents were friends of appel- lant, and that appellant shot them without an apparent motive. Prior to Curry's testimony, the trial court admonished the jury as to the permissible use of the evidence, stating "This type of evidence may only be considered by you on the issue of the existence of any intent which is a necessary element of the crime charged, the identity of the person who committed any crime with which the defen- dant is accused, any motive for the commission of the charged offenses and 154 as it may tend to prove the relationship between Mr. Bryant and Mr. Smith in this case." (RT 11314, italics added.) 2. The Hearings Relating to Evidence of the High-Speed Chase and the Co- caine in Appellant's Possession at the Time of his Arrest. Appellant also made a motion to exclude evidence relating to the facts sur- rounding his arrest, including the car chase, his possession of cocaine, and the gun used in the Curry shooting. The defense argued that the evidence was not rele- vant, suggesting that it might be relevant to show that appellant was involved in a drug organization, but did not tend to prove that he was involved in the murder. Therefore, this was a form of propensity evidence barred by. Evidence Code sec- tion 1101, subdivision (a). (RT 10033-10035.) The defense explained that it expected there would be testimony that the cocaine found on appellant was in a half-ounce wafer that was "peculiar" to the form in which Bryant-family cocaine was sold43• However, the defense believed that the cocaine had been destroyed and questioned whether the prosecution would be able to prove that fact. (RT 10035.) The prosecution contended the cocaine in appellant's car was in half-ounce bindles, which was how the Bryant family sold cocaine, according to Detective Lambert. (RT 10036-10037.) The court held that the drugs were relevant, and the chase went to the issue of whether appellant knowingly possessed drugs. Furthermore, the gun was rele- vant to show that appellant was willing to arm himself to protect the drugs. (RT 10038.) The court stated the fact that appellant possessed drugs that were pack- aged in a manner common to Bryant family narcotics was relevant to show ties to the group, a motive to commit the charged offense, and a willingness to identify 43 The prosecution had contended that Bryant-family cocaine was packaged in a unique cookie shape from being formed by beakers. (RT 3906, 8102, 9716.) Evidence was introduced regarding Bryant-family cocaine being sold in this shape. (RT 10249-10250,9836-9827.) 155 • • • • • • • • • • • • • • • • t • himself with Bryant. The court noted that the closer a person is to the organiza- tion, the more likely it is he did the charged crimes. (RT 10039-10040.) Later, appellant made a motion for a mistrial or, in the alternative, to strike the testimony relating to appellant's arrest on the grounds that at the time the evi- dence was introduced the prosecution had indicated that it would tie appellant to the Bryant family organization by reason of the "distinctive cookie shape" of the cocaine. The court agreed with this assessment. (RT 14459.) The defense con- tended that since this had not been done the foundation for the evidence was not present. The court denied the motion stating that there had been evidence that the Bryants sold nine-ounce units of cocaine, which was the amount appellant had in his possession. (RT 14460.) 3. Evidence of Criminal Acts of People Other Than Appellant Additionally, it must be recalled that a vast amount of evidence was intro- duced regarding the structure and organization of the Bryant organization. This included evidence of the operation of the various crack houses, the beating of Francine Smith when she attempted to pass counterfeit money at one of the crack houses, the attempted bribery of Rhonda Miller, and other illegal activities of the Bryant family. Unlike the typical situation where evidence of other crimes is in- troduced against a defendant for a specific limited purpose -- i.e., to prove intent or identity in this case the much of the evidence of other criminal activities in- troduced in the guilt phase of this case had no admissible purpose whatsoever as to appellant. Thus, unlike the situation where evidence of a prior commercial burglary is introduced to prove that when the defendant walked out of the store with half a dozen cassettes in his jacket, it was unlikely that it was a mistake, where, under Evidence Code §352, the trial court balances the impermissible inference of crimi- 156 nal propensity with the probative inference of intent, many of the other crimes evidence introduced here had no probative value as to appellant, only prejudice. As will be discussed below (infra, at p. 223), the prosecution argued the facts of the Bryant family organization's impact on the community at great length. All of this evidence was being offered for some purpose which was never clearly delineated. No instruction, no matter how well crafted, no matter when given, no mat- ter often repeated, would have enabled the jurors to put this evidence in a com- partment labeled "Smith." As the Third Circuit once observed, !fA drop of ink cannot be removed from a glass of milk." (Government of the Virgin Islands v. Toto (3d Cir. 1976) 529 F.2d 278, 283.) Here, the trial testimony consisted of vast amounts of contaminated material, with no prospect of an effective purifying mechanism. B. The Relevant Law. 1. Evidence Code sections 210, 350, 352, and 1101 Only relevant evidence, evidence having "any tendency in reason to prove ... [a] disputed fact that is of consequence to the determination of the action" is admissible. (Evid Code §§ 210, 350.) Furthennore, under Evidence Code section 352, a trial court has discretion to exclude relevant evidence if its probative value is outweighed by the probability that its admission will "create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence Code section 1101, subdivision (a) bars "propensity" evidence evidence of a person's character, including evidence of specific acts, to prove con- duct on a specified occasion in conformity with the actor's character. Under sub- division (b) such evidence is admissible if relevant to establish some fact other than conduct, such as intent or common plan. 157 • • • • • • • • • • • • • t • , • • , • In People v. Ewoldt, supra, and People v. Balcolm (1994) 7 Ca1.4th 414 (hereinafter Balcolm) this Court warned that such evidence should only be admit- ted with "caution" after "extremely careful analysis," because of the danger that a jury will convict because of past criminality. (Ewoldt at p. 404 and Balcolm at p. 422, citing People v. Smallwood (1986) 42 Ca1.3d 415 and People v. Thompson (1988) 45 Ca1.3d 86, 109; see also Bernard Jefferson, California Evidence Benchbook (3d ed.) § 33.23 p. 709.) Ewoldt and Balcolm hold that the admissibility of such evidence hinges on the particular inference that the prosecution wishes to create. As stated in People v. Thompson, supra, 27 Ca1.3d 303, at p. 316: "The court 'must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong .. [citation.] , " The failure to properly determine the actual desired logical inference leads to what has been called "an invitation to specious reasoning." (People v. Valantine (1988) 207 Cal.App.3d 697, 704.) Differing degrees of similarity are required for different uses of evidence of uncharged acts. The least degree of similarity is required to prove intent. A greater degree of similarity is required to prove common design or plan. The greatest degree of similarity is needed to prove identity. (Ewoldt at pp. 402-404, People v. Kipp (1998) 18 Ca1.3th 349, 369.) Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a " 'pattern and characteristics ... so un- usual and distinctive as to be like a signature.' " (Ewoldt, at p. 403, Kipp, at p. 370; see also People v. Yeoman (2003) 31 Ca1.4th 93, 122.) In order to prove a common plan the uncharged act must demonstrate "not merely a similarity in the results, but such a concurrence of common features that 158 the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." (2 Wigmore, Evidence, supra, § 304, p. 249.) (Ewoldt, at p. 402, emphasis added.) Ewoldt and Balcolm are peppered with the requirement of a substantial de- gree of similarity for evidence admitted as proof of common plan. Ewoldt ex- plained that for this use prior cases had required that the incidents be "markedly similar" and bear "striking similarities" (Ewoldt at 394-396, 399; see also Bal- calm, at pp. 421, 427, - "in a manner quite similar" "probative value ... stems from the similarity. Italics added.) In applying the "extremely careful analysis" required for this type of evi- dence, this Court has stressed that the trial court should examine what issues are actually in dispute. "[I]n most prosecutions ... it is beyond dispute that the charged offense was committed by someone; the primary issue to be de- termined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that.. . the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would out- weigh its probative value ... [T]herefore, it is imperative that the trial court determine specifically what the proffered evidence is offered to prove, so that the probative value of the evidence can be evaluated for that purpose." (Ewoldt, at p. 406, italics added.) This Court went on to state: "Our holding does not mean that evidence of a defendant's similar uncharged acts that demonstrate the existence of a common design or plan will be admissible in all (or even most) criminal prosecutions. In many cases the prejudicial effect of such evidence would outw~igh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably sub- ject to dispute. [Citation]." (Ewoldt, at p. 405-406, italics added.) 159 • • • • .' • • • • • • • • , • • • As discussed below, the risk of unfair prejudice in this case greatly out- weighed the probative value, if any, of the disputed evidence. Likewise, the evi- dence did not meet the levels of similarity required for its proffered uses. There- fore, this evidence should not have been admitted. 2. Due Process Prohibits the Introduction of this Evidence The introduction of this evidence also violated appellant's right to due process of law, because its only true relevance was to show that appellant acted in conformity with his prior bad acts. As the Fifth Circuit has explained, itA concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is." (United States v. Myers (5th Cir. 1977) 550 F.2d 1036, 1044) The United States Supreme Court has indicated, without expressly decid- ing, that the use of other crimes evidence to prove criminal propensity violates due process. In Spencer v. Texas (1966) 385 U.S. 554, a bare majority of the Supreme Court held that the introduction of the defendant's prior convictions in a non- bifurcated capital proceeding did not violate due process, but only because the jury was instructed expressly that the evidence could not be considered in assessing the defendant's guilt·and because the evidence was of a documen1:a.ry nature and there- fore less inflammatory. (Id, at p. 561, 562.; accord Marshall v. Lonberger (1983) 459 U.S. 422) In Estelle v. McGuire, supra, 502 U.S. 62, 75, fil. 5, the Court similarly de- clined to reach the due process issue, because the jury was instructed that prior crimes could not be considered to prove propensity to commit the charged offense. (Id, at p. 75.) Thus in Spencer, like the subsequent McGuire, and unlike the instant case, a due process violation was averted by appropriate limiting instructions. As will be shown in the following section of this brief, the instructions given in this case were 160 manifestly insufficient to infonn the jury as to the correct use of other crimes evi- dence. Similarly, the Due Process Clause, as interpreted by the United States Su- preme Court, demands that even inferences - not just presumptions - be based on a rational connection between the fact proved and the fact to be inferred. (Ulster County Court v. Allen (1979) 442 U. S. 140, 157; Leary v. United States (1969) 395 U.S. 6, 46.) Furthennore, in McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 the Ninth Circuit explained that the use of "other acts" evidence to prove conduct in confor- mity "is contrary to finnly established principles of Anglo-American jurispru- dence." (ld., at p. 1380.) The court referred to Brinegar v. United States (1949) 338 U.S. 160, wherein the United States Supreme Court stated: "Guilt in a criminal case must be proved beyond a reasonable . doubt and by evidence confmed to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system developed to safeguard men from dubious and unjust convictions, with result- ing forfeitures of life, liberty and property." (Brinegar, supra, at p. 174, quoted in McKinney, supra, at p. 1381.) McKinney subjected the disputed evidence to "close scrutiny" to detennine whether the inferences that could be drawn from the evidence were relevant to a material fact in the case or whether it led only "to impennissible inferences about the defendant's character." (ld., at p. 1381.) In McKinney the court held that several of the items of evidence introduced were not relevant to any fact other than character and the inference that the defen- dant acted in confonnity with that character. (ld., at pp. 1381-1884.) Because the evidence gave rise to no pennissible inferences, and "drawing propensity infer- ences from 'other acts' evidence of character is impennissible under a historically grounded rule of Anglo-American jurisprudence," the admission of such evidence 161 • • • • • • • • • • , • • ... .. • • • ~ ,FI 'I f ,jj u I " 1 'I violated the right to due process of law. (Id., at p. 1384, citing Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920 and Dowling v. United States (1990) 493 U.S. 342, 352.) The McKinney court found a violation of due process because the evidence in question was "emotionally charged" and painted the defendant as "a young man with a fascination with knives and with a commando lifestyle" an image that "prey [ ed] on the emotions of the jury" and made them more willing to believe that he "would kill his mother in her sleep without much apparent motive." (ld., at p. 1385.) Under these circumstances, the court concluded, "it is more than reasonably likely that the jury did not follow its in- structions to weigh all the evidence carefully, but instead skipped careful analysis of the logical inferences raised by the circumstantial evidence and convicted McKinney on the basis of his suspicious character and previous acts, in violation of our community's stan- dards of fair play." (Ibid.; see also United States v. Lewis (9th Cir. 1986) 787 F .2d. 1318, 1323 (liTo tell a jury to ignore the defendant's prior convictions in determining whether he or she committed the of- fense being tried is to ask human beings to act with a measure of dis- passion and exactitude well beyond moral capabilities." ) This Court has also assumed, without deciding, that the utilization of other crimes evidence to prove propensity violates the federal due process clause. (Peo- ple v. Garceau (1993) 6 Ca1.4th 140, 185-187.) As will be shown, the only relevance of the other crimes evidence in this case was for the impermissible inference of conduct in conformity with character. The resulting portrait of appellant as a hit man was far worse than the image of McKinney honing and playing with knives. c. Application of Law to Facts Applying the law discussed above to the instant case, it is clear that there were mUltiple errors in admitting evidence of other bad acts. 162 1. Failure in the Foundation for the Evidence of the Shooting and Bombing of Curry. As explained previously (ante, at p. 153), the trial court recognized that unless the prosecution could prove that Bryant was angry at Curry, the evidence of any of the Curry assaults would have no probative value with respect to appel- lant's guilt in this case. However, the logical foundation needed for this evidence "to make any sense at all," in the court's words, was never established against appellant. To prove Bryan's animosity toward Curry, the prosecution introduced a hearsay statement of Bryant wherein he told Tannis that he placed a bomb under Curry's car. (RT 13097-13098.) That evidence was admissible against Bryant under Evidence Code section 1220 as an admission. However, the trial court properly realized the evidence of this statement was not admissible against appellant, and told the jury the evidence could only be considered against Bryant. (RT 13086.) Thus, the predicate for the admission of the Curry incidents was never established as to appellant, and the jury should not have been allowed to consider those incidents as evidence against him because its logical basis had not been proven The jury, however, was told without condition or limitation -- that it could consider the Curry assaults against appellant. Evidence is not admissible unless it is relevant. (Evid. Code § 350.) Moreover, to allow the jury to consider evidence, like the other crimes evidence in this case, when its logical relevance was not established violates due process under Ulster County Court v. Allen, supra, 442 U. S. 140, which requires a rational con- nection between the fact proved and the fact to be inferred. (Ante, at p. 159.) The trial court conditioned the admissibility of this evidence on the prose- cution laying a foundation to establish its relevance. The court reminded the prosecution during the offer of proof regarding appellant's arrest (discussed be- low) that the prosecution had promised to prove that the narcotics were packaged 163 • • • • • • • • • • • • , • • • • • • in a manner unique to the Bryant family but had not yet done so. (RT 11299- 11300.) Thus, the court, in rather strong terms, informed the prosecution that it was assuming the offers of proof of the foundational facts were made in good faith, and the court expected the prosecution to live up to them. (RT 11300- 11301.) In fact, as to appellant, the prosecution failed to live up to its offer of proof. Therefore, the admission of this evidence was in error. The evidence of the Curry bombing suffers from an additional logical flaw. The evidence of the bombing stands in a similar position to the evidence of the second Curry shooting. The court realized that unless there was evidence that ap- pellant did the second shooting, that evidence should not be admitted against him for any purpose. The same should have been true of the bombing evidence: Unless there was evidence appellant did the bombing, it should not have been ad- missible against appellant. As to the bombing, appellant stands in the same position as Wheeler and Settle: There was no