PEOPLE v. SPENCERAppellant’s Opening BriefCal.December 19, 2010 SUPREMECOURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME COURT PEOPLE OF THE STATE OF CALIFORNIA, ) DEC - 8 2010Crim. $057242 |Frederick K. Ohitich Clerk Plaintiffand Respondent, ) ) ) Santa Clara County Deputy — ) Superior Court No. 155731 CHRISTOPHERALAN SPENCER, ) ) ) ) Defendantand Appellant. APPELLANT’S OPENING BRIEF Automatic Appeal from the Judgmentofthe Superior Court ofthe State ofCalifornia for the County of Santa Clara HONORABLE HUGH F. MULLIN II JUDGE EMRYJ. ALLEN Attorney at Law State Bar No. 60414 5050 Laguna Blvd., Suite 112 PMB 336 Elk Grove, CA 95758 Telephone: (916) 691-4118 Attorney for Appellant Christopher Alan Spencer DeATel PENALTY Table of Contents STATEMENT OF APPEALABILITY STATEMENT OF THE CASE STATEMENTOF FACTS I. GUILT PHASE-Prosecution’s Case A. The Parties and the Circumstances ofthe Crime 1. Daniel Silveria, John Travis and Jamaes Madden 2. Appellant Chris Spencer, Danny Silveria and John Travis B. Robberies 1. Sportmen’s Supply in San Jose 2. Gavilan Bottle Shop robbery 3. Leewards C. The Robbery Investigation D. The Investigation OF James Madden’s Killing E. The Arrest F. The Interrogation and Spencer’s confession Il. GUILT PHASE-Defense Case Hi. PENALTY PHASE A. Physical Evidence Offered in Aggravation B. Witness Testimony Offered in Ageravation C. Victim Impact Testimony D. Defense Case in Mitigation 10 1} 12 14 15 17 18 19 19 20 22 27 ARGUMENT I. THE TRIAL COURT ERRONEOUSLY GRANTED THE PROSECUTION’S CHALLENGE UNDER WITHERSPOON V. ILLINOIS AND WAINWRIGHT V. WITT, VIOLATING APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS,AFAIRAND IMPARTIAL JURY AND TO BE FREE OF CRUELAND UNUSUAL PUNISHMENTS AND ARBITRARY IMPOSITION OF THE DEATH PENALTY. (U.S. CONST., AMENDS.VI, VII, XIV; CAL. CONST., ART.I, SECS. 15, 16, 17) A. Introduction and Summary ofClaim B. The Error 1. The Juror’s Responses 2. There is no evidence of substantial impairment a) On the only occasion when Juror C-67 was squarely confronted with the question whether, in an appropriate case (that is, a case in which he thought the death penalty was warranted), he would vote for the death penalty, he unequivocally stated that he would b) Nothing aboutthe juror’s other responses suggest a contrary result because noneofthe court’s questions, and none ofthe juror’s answers, directly addressed the question ofthe juror’s possible impairment. Therefore, the juror’s responses did not disclose evidence of substantial impairment c) A contrary result suggested by the juror’s answers on the juror questionnaire d) The juror’s ability to follow the law was realistic and not merely a theoretical or abstract possibility e) The court’s ruling may not be rescued or salvaged by resort to implied trial court evaluations ofjuror “demeanor.” C. Prejudice ii 45 45 45 48 48 | 54 | 56 56 60 67 76 Il APPELLANT’S ARREST WAS MADE WITOUT PROBABLE CAUSEIN VIOLATION OF HIS CONSITUTIONAL RIGHTS; THEREFIRE, ANY SUBSEQUE;NT STATEMETS HE MADE WHILE IN CUSTODYWERE THE ILLEGAL FRUITS OF THATARRESTAND THEIRADMISSIONINTO EVIDENCE WAS ERROR A. Summary of General Factual and Procedural History B. Specific Circumstances Surrounding Appellant’s Arrest C. General Law on Probable Cause to Arrest and Anonymous Informants D. Appellant’s Arrest Was Unconstitutional When It Was Made Without Probable Cause E. Appellant’s Subsequent Statements to Police Were the Fruit of the Illegal Arrest and Should Have Been Suppressed F. Appellant Was Prejudiced by the Court’s Failure to Suppress Appellant’s Statements and the Judgment of Guilt Must Be Reversed Il. APPELLANT’S STATEMENT TO SERGEANT KEECH WAS OBTAINED WITHOUT PROPER RE-ADVISEMENT OF MIRANDAIN VIOLATION OF HIS CONSTITUTIONAL RIGHTS; THEREFORE TS ADMISSION INTO EVIDENCE WASIN ERROR A. Specific Circumstances Surrounding the Failure of Sergeant Keech to Properly Re-Advise Appellant of his Miranda Rights B. General Law Regarding Re-Advisement of Miranda Rights C. Appellant’s Statement to Sergeant Keech was Obtained in Violation ofMiranda D. Appellant Was Prejudiced by the Court’s Failure to Suppress Appellant’s Statement and the Judgment of Guilt Must be Reversed ill 77 77 79 82 | 85 | 89 | 92 93 93 96 | 100! 104 intRAENabate eas eet way some neh we EAS PnROIedHee AREALNEEL IEe BQN IV. APPELLANT’S STATEMENT TO SERGEANT KEECH WAS INVOLUNTARYINTHAT IT WAS THE PRODUCTOF COERCION THAT OVERBORE APPELLANT’S FREE WILL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS; THEREFORE ITS ADMISSION INTO EVIDENCE WAS IN ERROR A. Specific Circumstances Surrounding the Involuntary Nature ofAppellant’s Statement to Sergeant Keech B. General Law Regarding Voluntariness C. Appellant’s Statement Was Involuntary D. Appellant Suffered Prejudice by the Court’s Failure to Suppress Appellant’s Statement and the Judgment of Guilt Must be Reversed V. THE SUPERIOR COURT, AND THIS COURT, HAVE DENIED APPELLANT HIS RIGHTS TO DUE PROCESS, MEANINGFULAPPELLATE REVIEW, COUNSEL, AND ANONARBITRARY DETERMINATION OFHIS SUITABILITY FOR THE DEATH PENALTY, BY VIRTUE OF THEIR REFUSAL TOALLOWAPPELLANT TO RAISE ONAPPEAL, ISSUES WHICH WERE PROPERLY PRESERVED BELOWAND WHICH SIMILARLY SITUATED DEFENDANTSARE PERMITTED TO RAISE ON APPEAL. THESE INCLUDEALLEGATIONS OF BAD-FAITH PROSECUTION AND POTENTIAL INSTRUCTIONAL ISSUES A. Background and Overview B. Silveria/Travis I Is Properly Part of the Record on Appeal in the Present Case C. The Refusal ofthe Court to Include the Silveria/Travis Transcriptin his Record on Appeal Deprived and Continues to Deprive Appellant of His state and federal rights to due process, counsel, meaningful appellate review, and to a nonarbitrary determination ofhis eligibility for the death penalty. (U.S. Const., Amends. V, VI, VIII, XIV; Cal. Const., Art. I, secs. 15, 17.) D. Any Theoretical Remedy by Way ofHabeas Corpus Would Not Cure The Defect in Constitutional Violations in Appellant’s Case iv 106 106 109 112 116 117 117 124 134 136 VI THE TRIAL COURT’S ADMISSION OF EXCESSIVE, IRRELEVANTAND HIGHLY PREJUDICIAL VICTIM IMPACT EVIDENCE WAS CONTRARYTO CALIFORNIALAWAND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS. A.Introduction. B. Overview ofLegal Claims. C. The Basic Law OfVictim Impact. 1. The Limited Constitutional Authorization OfPayne v. Tennessee. 2. The Relevance And Admissibility OfVictim Impact In California. D. The Voluminous Testimony Describing The Impact ofthe Crime On The Victim’s Family Was Largely Irrelevant And Unduly Prejudicial. 161 1. Sissy Madden- the victim’s widow. a) Immediate responses on January 29, 1991 b) Sissy Madden’s long term reactions. 2. The effects ofthe crime on non-testifying family members. 3. The Victim Impact Testimony Was Inflammatory, Unreliable And Excessive In Comparison To This Court’s Other Capital Decisions. E. The Victim Character Evidence Was Largely Irrelevant, Cumulative And Created Overwhelming Prejudice. 1. The evidence and testimony describing the victim andhis life history. a) James Madden’s earlylife. b) James and Sissy meet and become engaged. c) James Maddenas a husband. d) James Maddenas a son and grandson Vv 145 145 147 148 148 153 163 163 164 167 | 176 179 180 181 183 | 185 | 187; + sneeyssaIRERASpAIRINepom eC NtnemNANOROTactoRtSonntmneniomnai meetin! Spe 2 ai BA MacaacyteemnetRideRREIUREARENAMIARRnCRb siScESenfu Toy ganiny mveetrre Ste! her cmaariuiinCapeanensheatbnenesecrsneigang e) James Maddenas a father 188 2. The Evidence And Testimony Describing James Madden’s character Vastly Exceeded Any Reported Decision OfThis Court. 191 3. Other Jurisdictions Impose StricterLimits On The Content And Quantity OfVictim Character Evidence 196 a) Descriptions should be brief and generally stated. 196 b) Anecdotes and in-depth discussionsofspecific traits are disfavored. 199 c) Life history evidence is irrelevant and unduly prejudicial. 200 4. This Effusive Praise For The Victim Contributed To An Already Emotional Atmosphere In Which The Jury Could Not Apply Its Reasoned JudgmentIn Selecting The Appropriate Penalty For Appellant. 203 F. Conclusion. 205 VII PHYSICAL EVIDENCEAND TESTIMONYPURPORTEDLY RELEVANT TO THE CIRCUMSTANCES OF THE CRIME WASIN FACT CUMULATIVE, MISLEADINGAND HIGHLY INFLAMMATORYAND ITS ADMISSION DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS AND VIOLATED CALIFORNIALAW. 206 A.Introduction And Overview. 206 B. The Penalty Phase Exhibits And Testimony. 207 C. The Exhibit Displaying The Victim’s Blood-soaked Shirt Had NoLegitimate Probative Value And Was Intended To arouse Overwhelming Prejudice. 210 1. Exhibit No. 65 was not necessary to the coroner’s testimony, and did not accurately represent the circumstances ofthe crime. 211 2. There was no need to prove Appellant’s intent in the penalty phase, and this exhibit was not probative in that regard. 213 3. The trial court failed to closely evaluate the purpose of the evidence and the surrounding circumstances, and did not consider the extraordinarily prejudicial effect of bloody clothing. D. The Coroner’s Testimony And The Other Guilt Phase Evidence Served No Valid Purpose And Was Admitted Solely To Aid The Prosecutor ’s Unfounded Speculation Regarding The Victim’s Suffering. VIII THE PROSECUTOR’S INFLAMMATORY CLOSING ARGUMENT DENIEDAPPELLANT HIS STATEAND FEDERAL CONSTITUTIONAL RIGHTS AND WAS MISCONDUCT UNDER CALIFORNIALAW. A.Introduction and Overview ofLegal Claims. B. Standard ofReview. C. The Prosecutor Mischaracterized The Jurors’ Oaths And Argued That Society Demanded A Death Verdict. D, Improper Appeals To The Jurors’ Emotions. E. Appeallant was denied a fair penalty trial by virtue of the prosecutor's use ofthe so-called “golden rule” argument, asking the jurors to place themselves in the shoes ofthe victim's family in determining the proper penalty to be imposed. 1 The Prosecutor’s Comments Were Improper 2 The Error Was Unfairly Prejudicial F. Griffin error. G. Inciting Prejudice By Describing Appellant As A Monster or Wild Animal. H. Conclusion. IX CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURTAND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION. Vil 215 219 222 222 223 224 231 237 239 241i 247 | 249| 253 255 A. Appellant’s Death Penalty is Invalid Because Penal Code Section 190.2 is Impermissibly Broad B. Appellant’s Death Penalty is Invalid Because Penal Code Section 190.3(a) as Applied Allows Arbitrary and Capricious Imposition ofDeath In Violation ofthe Fifth, Sixth, eighth, and Fourteenth Amendments to the United States Constitution C. California’s Death Penalty Statute Contains No Safeguards to Avoid Arbitrary and Capricious Sentencing and Deprives Defendants ofthe Right to a Jury Determination ofEach Factual Prerequisite to a Sentence of Death; It Therefore Violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution 1. Appellant’s Death Verdict Was Not Premised on Findings Beyond a Reasonable Doubt by a Unanimous Jury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to Jury Determination Beyond a Reasonable Doubt ofAll Facts Essential to the Imposition of a Death Penalty Was Thereby Violated. a) In the Wake ofApprendi, Ring, Blakely, and Cunningham, Any Jury Finding Necessary to the Imposition of Death Must Be Found True Beyond a Reasonable Doubt. b) Whether Aggravating Factors Outweigh Mitigating Factors Is a Factual Question That Must Be Resolved Beyond a Reasonable Doubt. 2. The Due Process and the Cruel and Unusual Punishment Clauses ofthe State and Federal Constitution Require That the Jury in a Capital Case Be Instructed That They May Imposea Sentence of Death Only IfThey Are Persuaded Beyond a Reasonable Doubt That the Aggravating Factors Exist and Outweigh the Mitigating Factors and That Death Is the Appropriate Penalty. a) Factual Determinations b)Imposition ofLife or Death 3. California Law Violates the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors. 4. California’s Death Penalty Statute as Interpreted by the California Vili 257 259 261 262 265 271 272 272 273 275 Supreme Court Forbids Inter-case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Penalty. 5. The Prosecution May NotRely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even If It Were Constitutionally Permissible for the Prosecutor to Do So, Such Alleged Criminal Activity Could Not Constitutionally Serve as a Factor in Aggravation Unless Found to Be True Beyond a Reasonable Doubt by a UnanimousJury. 6. The Use ofRestrictive Adjectives in the List ofPotential Mitigating Factors Impermissibly Acted as Barriers to Consideration ofMitigation by Appellant’s Jury. 7. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Administration ofthe Capital Sanction D. The California Sentencing Scheme Violates the Equal Protection Clause ofthe Federal Constitution by Denying Procedural Safeguards to Capital Defendants Which Are Afforded to Non-capital Defendants E. California’s Use ofthe Death Penalty as a Regular Form of PunishmentFalls Short ofInternational Norms ofHumanity and DecencyandViolates the Eighth and Fourteenth Amendments; Imposition ofthe Death Penalty Now Violates the Eighth and Fourteenth Amendments to the United States Constitution CONCLUSION CERTIFICATION OF WORD COUNT 1x 278 280 281 282 285 288 29] Table ofAuthorities Cases Adamsv. Texas (1980) 448 U.S.38 Addington v. Texas (1979) 441U.S. 418 Aguilar v. Texas (1969) 378 U.S. 108 Alabama v. White (1990) 496 U.S. 325, 329 Apprendi v. New Jersey (2000) 530 U.S. 466 Arizona v. Fulminante (1991) 499 U.S. 279 Atkins v. Virginia (2002) 536 U.S. 304 Beagle v. Vasold (1966) 65 Cal.2d 116 Beck v. Ohio (1964) 379 U.S. 89 Berger v. United States (1935) 295 U.S. 78 Berghuis v. Tompkins (2010) 130 S.Ct. 2250 Black v. Collins (5th Cir. 1992) 962 F.2d 394 Blackburn v. Alabama (1960) 361 U.S. 199 46 273, 275 83 83 Passim 112 289, 290 238 82 253 104 199 109 Blakely v. Washington (2004) 542 U.S. 296 Booth v. Maryland (1987) 482 U.S. 496 Bowling v. Commonwealth (1997) 942 S.W.2d 293 Bram v. United States (1897) 168 U.S. 532 Brinegar v. United States (1945) 338 U.S. 160 Brownv.Illinois (1975) 422 U.S. 599 Bruton v. United States (1968) 391 U.S. 123 Buchanan v. Angelone (1998) 522 U.S. 269 Bush v. Gore (2000) 531 U.S. 98 Caldwell v. Mississippi (1985) 472 U.S. 320 California v. Brown (1987) 479 U.S. 538 Campbell v. Blodgett (9th Cir. 1993) 997 F.2d 512 Cargle v. State (Ok1.1995) 909 P.2d 806 Carruthers v. State (2000) 272 Ga. 306 Chapman v. California (1967) 386 U.S. 18 xi Passim 149 203 82 90, 91 223 207, 223, 254 287 53, 57, 223, 254 276 284 200, 201, 203 252 92, 105, 115, 247, 254 anhaleMRRRSRTRIESOREMYLIE seen cheno SeenenainitPata ninRbiiRptie haPtaste oNCe Commonwealth v. Carr (Ct.App. 1950) 312 Ky. 393 Conoverv. State (Okla. 1997) 933 P.2d 964 Conservatorship ofRoulet (1979) 23 Cal.3d 219 Cunningham v. California (2007) (2007) 127 S.Ct. 856 Darden v. Wainwright (1986) 477 U.S. 168 Davis v. Georgia (1976) 429 U.S. 122 Dobbsv. Zant (1993) 506 U.S. 357 Donnelly v. DeChristoforo (1974) 416 U.S. 637 Drake v. Kemp (11th Cir. 1985) 762 F.2d 1449 Duvall v. Reynolds (10th Cir. 1998) 139 F.3d 768 Eddings v. Oklahoma (1982) 455 U.S. 104 Fare v. Michael C. (1979) 402 U.S. 707 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 Florida v. J.L. (2000) 529 U.S. 266 Ford v. Wainwright (1986) 477 U.S. 399 xii 157 201, 203 274 Passim 63, 74, 207, 223 46 125, 136 121, 207, 223 122, 123, 135 236 158, 285 115 284 83 290 Frazier v. Mitchell 188 F.Supp.2d 798, 826 (N.D. Ohio 2001) Gardnerv. Florida (1977) 430 U.S. 349 Gideon v. Wainwright (1963) 372 U.S. 335 Godfrey v. Georgia (1980) 446 U.S. 420 Gray v. Mississippi (1987) 481 U.S. 648 Gregg v. Georgia 1976) 428 U.S. 153 Griffin v. California (1965) 380 U.S. 609 Hardy v. United States (1964) 375 U.S. 277 Harmelin v. Michigan (1991) 501 U.S. 957 Hicks v. Oklahoma (1980) 447 U.S.343 Hilton v. Guyot (1895) 159 U.S. 113 Horn v. Atchison, T.&S.F.R. Co. (1964) 61 Cal.2d 602 Illinois v. Gates (1983) 462 U.S. 213 In re Dixon (1953) 41 Cal.2d 756 xiii 213,217 Passim 144 244, 260 76 Passim 248, 249 124 277 148, 283 289, 290 238 82, 83, 84, 85 124, 130, 136 ~ att aNeADDREMINRINape Cunt NE a oe Um meta In re Roderick S. (1981) 125 Cal.App.3d 48 In re Sakarias (2005) 35 Cal.4th 140 In re Shawn D. (1993) 20 Cal.App.4™ 200 In re Steven B. (1979) 25 Cal.3d 1 In re Sturm (1974) 11 Cal.3d 258 In re Winship (1970) 397 U.S. 358 Jackson v. Denno (1964) 378 U.S. 368 Jacobsv. Scott (1995) 513 U.S. 1067 Jecker, Torre & Co. v. Montgomery (1855) 59 US. [18 How.] 110 Johnson v. Mississippi (1988) 486 U.S. 578 Johnson v. State 59 P.3d 450 (Nev. 2002) Kansas v. Marsh (2006) 126 S.Ct. 2516 Kerv. California (1963) 374 U.S. 23 Lambert v. State (Ind. 1996) 675 N.E.2d 1060 Lambright v. Stewart (9th Cir. 1999) 167 F.3d 477 xiv 124 121, 123 110 124 276, 277 273 109 135 290 280 27) 255, 278 82 200 148 Lesko v. Lehman (3rd Cir. 1991) 925 F.2d 1527 Lockett v. Ohio (1978) 438 U.S. 586 Lockhart v. McCree (1986) 476 U.S. 162 Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757 Maine v. Moulton (1985) 474 U.S. 159 Malloy v. Hogan (1964) 378 U.S. 1 March v. Municipal Court (1972) 7 Cal.3d 422 Martin v. Waddell’s Lessee (1842) 41 US. [16 Pet.] 367 Maylev. Felix (2005) 545 U.S. 644 Maynard v. Cartwright (1988) 486 U.S. 356 McCarver v. North Carolina O.T. 2001, No. 00-8727 Mickensv. Taylor (2002) 535 U.S. 162 Miller v. Pate (1967) 386 US. 1 Miller v. United States (1871)78 U.S. [11 Wall.] 268 XV 238 281 46 238, 243 141 109 124 289 141-143 260 289 141, 144 210 289 Mills v. Maryland (1988) 486 U.S. 367 Mirandav. Arizona (1966) 384 U.S. 436 Mongev. California (1998) 524 U.S. 721 Moran v. Burbine (1986) 475 U.S. 412 Mosleyv.State (Tex.Crim.App. 1998) 983 S.W.2d 249 Myers v. YIst (9th Cir. 1990) 897 F.2d 417 New Jersey v. Muhammad (N.J. 1996) 678 A.2d 164 New Yorkv. Harris (1990) 495 U.S. 14 Parker v. Dugger (1991) 498 U.S. 308 Paynev. Tennessee (1991) 501 U.S. 808 Penry v. Lynaugh (1989) 492 U.S. 302 People v. Abilez (2007) 41 Cal.4th 472 People v. Allen (1986) 42 Cal.3d 1222 People v. Alvarez (2002) 27 Cal.4th 1161 xvi 278, 281, 288 Passim 271, 275, 285 96 199 277, 288 197 89, 90 125, 136 Passim 235 46, 65, 74 229 241 People v. Anderson (1980) 101 Cal_App.3d 563 People v. Anderson (2001) 25 Cal.4th 543 People v. Arias (1996) 13 Cal.4th at p. 159 People v. Bacigalupo (1993) 6 Cal.4th 457 People v. Barton (1978) 21 Cal.3d at pp. 518 People v. Benavides (2005) 35 Cal.4th 69 People v. Bennett (1976) 58 Cal_App.3d 230 People v. Benson (1990) 52 Cal.3d 754 People v. Berryman (1993) 6 Cal.4th 1048 People v. Black (2005) 35 Cal.4th 1238 People v. Blue (Ill. 2000) 189 IIl.2d 99 People v. Booker (1977) 69 Cal.App.3d 654 People v. Box (2000) 23 Cal.4th 1153 People v. Boyd (1985) 38 Cal.3d 765 People v. Boyette (2002) 29 Cal4th 381 XVii 113 268 246, 249 157, 257 124 235 97 111 246 267 12, 213, 215, 219 99 159, 219 154, 283 148, 158, 222, 248 es ohAchRRReReiaSeRSetMoe atoreemnen tie vee yA eee damaciomatpisa eBTaacnagtstlioeheensposes fet “one pn mater toe oof ee People v. Bradford (1997) 15 Cal.4th 1229, 1333 People v. Brockman (1969) 2 Cal.App.3d 1002 People v. Brosnan (N.Y. 1973) 298 N.E.2d 78 People v. Brown (Albert) (1985) 40 Cal.3d 512, 541 People v. Brown (Andrew Lamont) (2003) 31 Cal.4th 518 People v. Brown (John George) (2004) 33 Cal.4th 382 People v. Burnick. (1975) 14 Cal.3d 306 People v. Cahill (1993) 5 Cal.4th 478, 510 People v. Carasi (2008) 44 Cal.4th 1263, 1316 People v. Carpenter (1997) 15 Cal.4th 312 People v. Chessman (1949) 35 Cal.2d 455, 461 People v. Clair (1992) 2 Cal.4th 629 People v. Cornwell (2005) 37 Cal.4th 50 People v. Costello (1988) 204 Cal.App.3d 431 XVill 249 97,99 252 229 176 176, 177 273 112 53, 57 283 125 224 230, 231 84, 87 People v. Crittenden (1994) 9 Cal.4th 83 People v. Cunningham (2001) 25 Cal.4th 926, 992 People v. Davenport (1996) 11 Cal.4th 1171 People v. Demetrulias (2006) 39 Cal.4th 1 People v. DePriest (2007) 42 Cal4th 1 People v. Dickey (2005) 35 Cal.4th 884 People v. Dillon (1984) 34 Cal.3d 441 People v. Duncan (1991) 53 Cal.3d 955 People v. Edelbacher (1989) 47 Cal.3d 983 People v. Edwards (1991) 54 Cal.3d 787 People v. Espinoza (1992) 3 Cal.4th 806 People v. Esqueda (1993) 17 Cal.App.4th 1450 People v. Fairbank (1997) 16 Cal.4th 1223 People v. Farnam (2002) 28 Cal.4th 107 People v. Fauber (1992) 2 Cal.4th 792 XIX 248 100 230, 231 266, 277, 286 55 266 258 251 229, 257, 282 Passim 237 109, 110, 113 262 266 276 \ rortetasteRCIribiNwet natorgaPartonanh BSAANEAGESe MERUSlee oe People v. Feagley (1975) 14 Cal.3d 338 273 People v. Fierro (1991) 1 Cal.4th 155, 157, 280 People v. Frye (1998) 18 Cal.4th 894 124 People v. Garcia (1969) 268 Cal.App.2d 712 99, 102 People v. Gotfried (2003) 107 Cal.App.4th 254 84, 86 People v. Green (1980) 27 Cal.3d 1 126 People v. Gurule (2002) 28 Cal.4th 557 159 People v. Hamilton (1989) 48 Cal.3d 1142 282 People v. Hamilton (2009) 45 Cal.4th 891 64 People v. Harris (1975) 15 Cal.3d 384 82 People v. Harris (1989) 47 Cal.3d 1047 223 People v. Harris (1998) 60 Cal.App.4th 727 69 People v. Haskett (1982) 30 Cal.3d 841 147, 159, 220, 223 People v. Hawthorne (1992) 4 Cal.4th 43 125, 136, 265, 277 People v. Heard (2003) 31 Cal.4th 946 Peoplev. Hill (1992) 3 Cal.4" 959 People v. Hill (1998) 17 Cal.4th 800 People v. Hillhouse (2002) 27 Cal.4th 469 People v. Hinds (1984) 154 Cal.-App.3d 222 Peoplev. Ingle (1960) 53 Cal.2d 407 People v. Jimenez (1978) 21 Cal.3d 595 People v. Kaurish (1990) 52 Cal.3d 648 People v. Kelley (1977) 75 Cal.App.3d 672 People v. Kennedy (2005) 36 Cal.4th 595 People v. Knoller (2007) 41 Cal.4th 139 People v. Kunkin (1973) 9 Cal.3d 245 People v. Lancaster (2007) 41 Cal.4th 50 People v. Lang (1989) 49 Cal.3d 991 People v. Leonard (2007) 40 Cal.4th 1370 252 63 237, 246, 249, 253 258 111, 113 82 114 47, 48, 55, 60, 61 253 235 128 67 66 230 240 People v. Lewis (2001) 26 Cal.4th 334 99 People v. Lewis (2008) 43 Cal.4th 415 53, 57 People v. Lopez (2008) 42 Cal.4th 960 238 People v. Love (1960) 53 Cal.2d 843 148, 220, 221 People v. Lucas (1995) 12 Cal.4th 415 231 People v. Marshall (1990) 50 Cal.3d 907 248, 280 People v. Martin (Ill.App. 1978) 377 N.E.2d 1222 252 People v. Martinez (2009) 47 Cal.4th 399 Passim People v. Mason (1991) 52 Cal.3d 909 67 People v. Massie (1998) 19 Cal.4th 550 110 People v. McClary (1977) 20 Cal.3d 218 111, 113 People v. McFadden (1970) 4 Cal.App.3d 672 99 People v. Medina (1985) 165 Cal.App.3d 11 85, 86 People v. Meneley (1972) 29 Cal.App.3d 41 97 People v. Mickle (1991) 54 Cal.3d 140 People v. Montiel (1994) 5 Cal.4th 877 People v. Morrison (2004) 34 Cal.4th 698 People v. Musselwhite (1998) 17 Cal.4th 1216 People v. Neal (2003) 31 Cal.4th 63 People v. Noguera (1992) 4 Cal.4th 599 People v. Ochoa (1998) 19 Cal.4th 353 People v. Olivas (1976) 17 Cal.3d 236 People v. Pensinger (1991) 52 Cal.3d 1210 People v. Poggi (1988) 45 Cal.3d 306 People v. Pollock (2004) 32 Cal.4th 1153 People v. Prieto (2003) 30 Cal.4th 226 People v. Quirk (1982) 129 Cal.App.3d 618 People v. Ramey (1976) 16 Cal.3d 263 People v. Ramirez (1984) 162 Cal.App.3d 70 XXiil 96, 97, 101 155, 283 283 114 Passim 249 235 286 237 237 Passim 266, 268, 286 99, 102, 103 84 83, 86 chRRSOESMIERRtis ecnnioe ok SS 4 “est Speci tetnNEetepe esdanteenerate People v. Richardson ( 2008) 43 Cal.4™ 959 People v. Riva (2003) 112 Cal.App.4th 981 People v. Rivera (N.Y.App.Div. 1980) 426 N.Y.S. 2D 785 People v. Robinson (2005) 37 Cal.4th 592 People v. Rogers (2006) 39 Cal.4th 826 People v. Roldan (2005) 35 Cal.4th 646 People v. Sakarias (2000) 22 Cal.4th 596 People v. Sanchez (1969) 70 Cal.2d 562 People v. Sanchez. (1995) 12 Cal.4th 1 People v. Sandoval (1992) 4 Cal.4th 155 People v. Schulle (1975) 51 Cal.App.3d 809 People v. Serrato (1965) 238 Cal.App.2d 112 People v. Smith (1958) 50 Cal.2d 149 People v. Smith (1976) 17 Cal.3d 845 XXIV 129 98 252 191, 260 276 Passim 129, 230 109 127, 129, 130 237, 254 84, 86 76, 134 82 84 People v. Smith (2005) 35 Cal.4th 334 People v. Smith (2007) 40 Cal.4th 483 People v. Snow (2003) 30 Cal.4th 43 People v. Stallworth (2008) 164 Cal.App.4th 1079 People v. Stanworth (1969) 71 Cal.2d 820 People v. Staten (2000) 24 Cal.4th 434 People v. Stewart (2004) 33 Cal.4th 425 Peoplev. Stitley (2005) 35 Cal.4th 514 People v. Stoner (1967) 65 Cal.2d 595 People v. Superior Court (Sosa) (1983) 145 Cal.App.3d 581 People v. Thomas (1977) 19 Cal.3d 630 People v. Turner (1994) 8 Cal.4th 137 People v. Viera (2005) 35 Cal.4th 264 People v. Waidla (2000) 22 Cal.4th 690 People v. Wash (1993) 6 Cal.4th 215 160, 161, 196 96, 98, 101 266, 286 98, 104 125, 136 159, 219 Passim 177 90 90, 91 273 224 235 127, 129, 130 231, 237 SoenaaRRetceRINCses ene Bae ce a Eo Thc Se ReetheteRONRRScoARBRE People v. Wein (1958) 50 Cal.2d 383 246 People v. Wharton (1991) 53 Cal.3d 522 66 People v. Williams (1997) 16 Cal.4th 635 110 People v. Wilson (2005) 36 Cal.4th 309 148, 177 People v. Wrest (1992) 3 Cal.4th 1088 236 People v. Young (2005) 34 Cal.4th 1149 235 People v. Zapien ( 1993) 4 Cal.4th at 992 155, 193 Presnell v. Georgia (1978) 439 US. 14 273 Pulley v. Harris (1984) 465 U.S. 37 255, 278, 279 Rhodesv. State (Fla. 1989) 547 So.2d 1201 236 Richardsonv. State (Fla. 1992) 604 So.2d 1107 236 Ringv. Arizona (2002) 536 U.S. 584 Passim Santosky v. Kramer (1982) 455 U.S. 743 273, 274 Schneckcloth v. Bustamonte (1973) 412 U.S. 218 110 XXVi Skinner v. Oklahoma (1942) 316 U.S. 535 Smith v. Groose (8th Cir. 2000) 205 F.3d 1045 South Carolina v. Gathers (1989) 490 U.S. 805 Spinelli v. United States (1969) 393 U.S. 410 Stanford v. Kentucky (1989) 492 US. 361 State ofMaryland v. United States (4th Cir. 1947) 165 F.2d 869 State v. Bernard (La. 1992) 608 So.2d 966 State v. Bigbee (Tenn. 1994) 885 S.W.2d 797 State v. Blanks (lowa Ct.App. 1991) 479 N.W.2d 601 State v. Dennis (1997) 79 Ohio.St.3d 421 State v. Nesbit (1998) 978 S.W.2d 872 State v. Ring 65 P.3d 915 (Ariz. 2003) State v. Salazar (Tex. 2002) 90 S.W.3d 330 State v. Taylor (La. 1996) 669 So.2d 364 State v. Whitfield 107 S.W.3d 253 (Mo. 2003) XXVii 286 122 149, 151 83 288 157 196 236 252 204 197 271 201, 204 198 271 Stringer v. Black (1992) 503 U.S. 222 Thomas v. State (Fla. 1999) 748 So.2d 970 Thompsonv. Calderon (9th Cir. 1997) 120 F.3d 1045 Thompson v. Oklahoma (1988) 487 U.S. 815 Tison v. Arizona (1987) 481 U.S. 137 Townsendv. Sain (1963) 372 U.S. 293 Tuilaepa v. California (1994) 512 U.S. 967 United States v. Booker (2005) 543 U.S. 220 United States v. Cronic (1984) 466 U.S. 648 United States v. Glover (D. Kan. 1999) 43 F.Supp.2d 1217 United States v. Goodwin 492 F.2d 1141, 1147 United States v. Johnson (8th Cir. 1992) 968 F.2d 768 United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434 United States v. Pena 793 F.2d 486, 491 (2d Cir. 1986) XXViii 284 236 122 288 237 276 157, 260 264, 265, 267, 280 141, 144 197 252 229 229 252 United States v. Polizzi (9th Cir. 1986) 801 F.2d 1543 United States v. Rezaq (D.C.Cir.1998) 134 F.3d 1121 United States v. Sampson 335 F.Supp.2d 166 (D. Mass. 2004) United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214 United States v. Solivan (6th Cir. 1991) 937 F.2d 1146 United States v. Young (1985) 470 U.S. 1 Urbin v. State (Fla. 1998) 714 So.2d 411 Uttecht v. Brown (2007) 551 U.S. 1 Viereck v. United States (1943) 318 U.S. 236 Wainwrightv. Witt (1985) 469 U.S. 412 Walton v. Arizona (1990) 497 U.S. 639 Welch v. State (Okla. 2000) 2 P.3d 356 Whortonv. Bockting (2007) 127 S.Ct. 1173 Wiggins v. Corcoran (D. Md. 2001) 164 F.Supp. 2D 538 Witherspoonv. Illinois (1968) 391 U.S. 510 230 214, 215 229 218, 219 229, 230 236 63, 67, 69, 70, 72 228 Passim 263 179 141, 144 199 45-48, 61 Withrow v. Williams (1993) 507 U.S. 680 Woldt v. People 64 P.3d 256 (Colo. 2003) Wong Sun v. United States (1963) 371 U.S. 471, 488 Woodsonv. North Carolina (1976) 428 U.S. 280 Zant v. Stephens (1983) 462 U.S. 862 Ziang Sung Wanv. United States (1924) 266 U.S. 1 Constitutional Provisions U.S. Const., Amends. IV Vv VI VIII XIV Cal. Const., Art. I, secs. 7 15 16 17 24 California Statutes Evidence Code sections 350 352 110 271 90 158, 275, 282 282 109 92 Passim Passim Passim Passim Passim Passim Passim Passim Passim 147 147 Penal Codesections 187 1 190.2 256, 261, 270 190.3 Passim 190.7 125 190.9 125 211 2 459 2 654 7 667 5 1239, subdiv. (b) 1 1385 4 12022, subdiv. (b) 2 FederalStatutes 28 U.S.C. 1241, et. seq. 142 Jury Instructions CALJIC 8.88 47, 55, 266 - Rules of Court 35 125 39.50 125 59.51 125 OtherAuthorities Admissibility, In Homicide pProsecution, of Deceased’s Clothing Worn at the Time ofthe Killing, 68 A.L.R. 2d 903, sec. 2[a] (1959) 21 Amnesty International, The Death Penalty: List ofAbolitionist and Retentionist Countries 288 Black’s Law Dict. (6" ed. 1990) p. 243 157 Blume, Ten Years of Payne: Victim Impact Evidencein Capital Cases (2002) 88 Cornell L. Rev. 257, 280 150 XXX1 Gershmann,Trial Error and Misconduct, 2-6(b)(1) 252 International Covenant on Civil and Political Rights Art. VI, sec. 2 290 Kraus, Representing the Community: A Look at the Selection Process in Obscenity Cases and Capital Sentencing (1989) 64 Ind. LJ. 617, 651 229 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, 366 288 Through the past darkly: A survey ofthe uses and abuses ofvictim impact evidence in criminaltrials 41 Ariz. L-R. 1:143 (1999) 158 XXXil IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) Crim. $057242 ) v. ) ) Santa Clara County ) Superior Court CHRISTOPHERALAN SPENCER, ) No. 155731 ) Defendant and Appellant. ) ) APPELLANT’S OPENING BRIEF STATEMENT OFAPPEALABILITY This is an appeal from ajudgment of death following a jury trial. This appealis automatic. (Penal Code section 1239, subdiv. (b).) STATEMENT OF THE CASE On January 30, 1991, a complaint was filed in Santa Clara County charging Daniel Silveria, John Travis, Matthew Jennings and Christopher Spencer in CountI with the murder ofJames Madden, committed on January 29, 1991, in violation ofPenal Code section 187. Four special circumstances were alleged: That the murder involved an intentional killing while lying in wait; that the murder occurred during the commission of a robbery and a burglary; and the murder involved the infliction of torture. It was further alleged that defendants Silveria, Travis and Spencer, and each of them, personally used a dangerous and deadly weapon,to with a knife (Silveria, Travis, 1 Spencer) and a “stun gun” (Silveria) within the meaning of Penal Code section 12022, subdiv. (b). (1 CT 269-270.)! Count IT charged all defendants with the robbery ofMadden,in violation of Penal Codesection 211. Count III charged all defendants with defendants with the burglary ofthe store in which Madden worked, Leewards, in violation ofPenal Code section 459. Count IV charged Silveria and Jennings only, with the burglary of Sporismens Supply store on January 24, 1991, Count V charged Silveria and Jennings only, with the burglary ofthe Quick Stop Market, on January 24, 1991, in violation of Penal Codesection 459. Count VI charged Silveria and Jennings only, with the robbery ofRamsis Yousseff, the Clerk at the Quick Stop Market, in violation ofPenal Code section 211. Count VII charged Silveria, Jennings and Spencer only, with the burglary ofthe Gavilan Bottle Shop on January 24, 1991, in violation ofPenal Code section 459. Count VIII charged Siiveria, Jennings and Spencer only, with the robbery ofBen Graber, the Clerk at the Gavilan Bottle Shop,in violation ofPenal Code section 211. (1 CT 269- 270.) 1 “CT”refers to the Clerk’s Transcript on Appeal. “Aug. CT” refers to the Spencer Supplemental Clerk’s Transcript. “ST CT”refers to the Supplemental Clerk’s Transcript consisting ofmaterials from the Silveria and Travis Clerk’s Transcript. “RT”refers to the Reporter’s Transcript on Appeal. On March 25, 1991, information no. 145818 was filed in the Santa Clara County Superior Court, charging juvenile Troy Rackley with the same counts that were alleged as to the four adult codefendants. (1 CT 270.) On April 3, 1991, an indictment (146127) was returned against the four adult defendants, Silveria, Travis, Jennings and appellant, alleging the same counts as alleged in the complaint except for Counts V and VII (the indictment did not charge the Quick Stop and Gavilan burglaries). The complaint was dismissed as duplicative. On April 4, the prosecution moved to consolidate no. 146127 with no. 145818. This motion was granted on April 8, 1991. (Aug. CT 38 11160-11655; 1 CT 270-271.) On April 10, 1991, Rackley entered pleas of guilty to Counts IV, VI and VIII (the burglary of Sportsmen’s Supply and the robberies at the Quick Stop Market and Gavilan Bottle Shop). Duplicative counts were dismissed, leaving only the murder and Leewards robbery and murder charges pending against him. (1 CT 272-273.) On September 20, 1991, Rackley was sentenced to seven years, eight monthsin the California Youth Authority for the burglary and robbery charges. (2 CT 408.) On May 8, 1992, a second indictment (155731) was returned against the four adult defendants, alleging the same offensesas the prior indictment, 146127. (1 CT 231- 236, 273-274; Aug. CT 39 11686-11691; 2 ST CT 458-463;.) On June 3, the prosecution moved to consolidate nos. 146127, 145818 and 155731. On June 11, 1992, Rackley withdrew his previous time waivers. On July 10, 1992, the motion to consolidate was heard. The motion to consolidate Rackely’s case 3 with that of the adult codefendants was denied. Thetrial court consolidated cases 146127 and 155731. No. 146127 was then dismissed pursuant to Penal Code section 1385. (1 CT 274-275.) Accordingly, the present case, no. 155731, proceeded against the adult defendants, Silveria, Travis, Jennings and appellant. On October 26, 1992, Rackley plead guilty to first degree murder with three special circumstances; and was sentenced to 25 yearsto life in state prison. (5 CT1471.) On August 19, 1992, the four defendants plead not guilty to the charges contained in information no. 155731 and denied all special allegations. Attorney Susan Swanberg appeared on behalf of appellant. (1 CT 278.) On March 26, 2003, counsel for all defendants joined in a motion filed by Silveria’s counsel for discovery of certain grand jury information. On that date, the motion was granted in part. (2 CT 381.) On January 14, 2004, appellant moved to suppress evidence pursuantto Penal Codesection 1538.5, and moved to suppress his statement as involuntary and in violation ofMiranda v. Arizona (1966) 384 U.S. 436. Appellant on that date also moved to sever his case from that of the codefendants under the Aranda/Bruton rule (Peoplev. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123) and to exclude victim impact evidence .(3 CT 785-794; 816.) 2 Between March 26, 1994 and January 10, 1994, the trial court dealt primarily with calendaring and discovery compliance matters (CT 382-784.) 4 On April 7, 1994, Appellant joined in previously filed motions to dismiss the indictment pursuant to 995 based on irregularities in the grand jury process and proceedings; and to dismiss the special circumstances. (9 RT 940; 8 ST CT 1950, 1959.) On April 18, 2004, the motions to suppress the confession and to suppress physical evidence were denied, as were the motions to dismiss pursuant to section 995. (4 CT 959; 8 ST CT 1958, 1974.) On April 29, 2004, appellant movedto dismiss the special circumstances on groundsthat the “Three Strikes Law” (Penal Codesection 667 et. seq.) superceded California’s death penalty statute. (4 CT 1002.) This motion was denied on May 20, 1994. (4 CT 1044.) On July 13, 1994, attorney Susan Swanberg was relieved as counsel ofrecord in appellant’s case and attorney James Mantell substituted in as counsel ofrecord. (4 CT 1120.) On January 20, 1995, the trial court denied appellant’s motion to exclude victim impact testimony, but ordered that opinion’s of the victim’s family regarding the crime, the defendant and the appropriate sentence would not be admissible; and further, that prior to the admission of such evidence, the District Attorney would be required to demonstrate at an evidentiary hearing that the testimonyto be presented to the jury was proper victim impact testimony within the meaning ofPenal Code section 190.3, subdiv. (a). (4 CT 1135-1139.) >reNEICE rect Ae Concha ogeeaa Se gtI EEREBNReGARRAAU On April 6, 1995, the cases of Silveria and Travis were severed from the cases of appellant and Jennings, pursuant to the Aranda/Bruton rule, on groundsthatit was impossible to redact the defendants’ statements so as to render them admissible at a jointtrial. (4 CT 1162.) The jury trial for Silveria and Travis was set for May 8, 1995. Appellant’s and Jennings’ jury trial was for July 27, 1995. The court ordered appellant and Jennings ordered to appear and monitor the Silveria/Travis trial; and further, that additional dates would be set as necessary. (4 CT 1164.) On October 30, 1995, Silveria and Travis were found guilty offirst degree murder with special circumstances. (ST 1 CT2 2817, 2934.) On February 15, 1996, and February 21, 1996, respectively, penalty phase mistrials were declared as to Silveria and Travis. (14 ST CT 3481, 3568.) On May30, 1996, appellant’s case was severed from that of Jennings. (4 CT 1191.) Appellant was tried by himselfand his jury trial commenced on June 10, 1996. The “torture” and “lying in wait” specials were dismissed. (4 CT 1195.)° On September 9, 1996, appellant lodged an objection due process objection to the District Attorney’s argumentandthetrial itself, arguing that the prosecutor in appellant’s trial asserted that appellant was the most culpable defendant, whereas he had 3 The Silveria/Travis case was pending,as least as to penalty, as of appellant’s trial; so too was Jennings’ case. (5 CT 1477-1478; 49 RT 18437, 85 22278, 22281.) argued in the prior Silveria and Travistrial that those two defendants were the most culpable. (86 RT 22390.) This objection was overruled. (86 RT 22391.) On August 21, 1996, the jury returned verdicts of guilty as to all counts applicable to him (renumbered Counts I-IV), and found the remaining special circumstancesto be true. (5 CT1348.) On September 19, 1996, following a penalty trial, the jury recommendedthe death penalty. (5 CT1507.) On November7, a motion for modification ofthe verdict was denied. Appellant was sentenced as follows: Count I, death. As to the weaponsallegation (Penal Code section 12022(b)) appellant was ordered to spend a year in state prison. As to CountII, robbery, the court imposed the midterm of three years, stayed pursuant to Penal Code Section 654. As to Count ITI, burglary, court imposed the midterm oftwo yearsin state prison, stayed pursuant to Penal Code Section 654. As to Count 4, robbery, the court imposed the midterm of three years in state prison. The sentences for the arming allegation as well as for Count IV, were ordered stayed pending the finality and execution ofthe sentence and judgmentas to Count 1. (5 CT1508-1509.) On November18, 1996, a notice of appeal was filed on appellant’s behalf. (5 CT1541.) +1 aaREieniinHeereReOpicAnhy we INEensnAnsteyRRNeadeAeSaceSTtimgene cw eta yee tigen wae ae STATEMENT OF FACTS I. GUILT PHASE - PROSECUTION’S CASE The following summary is based entirely upon the testimony ofprosecution witnesses, inasmuchas the defense called no witnesses during the guilt phase of the trial. (77 RT 21661.) A. THE PARTIES AND THE CIRCUMSTANCES OFTHE CRIME 1. DANIEL SILVERIA, JOHN TRAVIS ANDJAMES MADDEN The events that culminated in the death of James Maddenin the early hours of January 29, 1991 actually began months earlier with the hiring and firing of Daniel Silveria and John Travis. About a year earlier, James Madden became the manager of LeeWard’sLeewards craft store located at 4175 Stevens Creek Boulevard in Santa Clara. (71 RT 20971; 20955; 73 21175.) Each employee was aware that the main safe in the store was kept in the manager’s office because that is where the employees picked up their paychecks. (72 RT 21125.) Employees were also familiar with the routine for closing the store. While James Madden was manager of LeeWardsLeewards, Johnny Travis (“Travis”) and Daniel Silveria (“Silveria”) worked in the stock rooms. (71 RT 20976-20977.) From all accounts, Travis and Silveria were not model employees. In fact, they were often late or absent from work. (71 RT 20984)..) Around November 1990, just a few months after they had been hired, James Madden fired them both. (72 RT 21125.) 2. APPELLANT CHRIS SPENCER, DANNY SILVERIAAND JOHN TRAVIS Chris Spencer lived in what was called the Rountable Area of San Jose at 208 Roundtable Drive. (71 RT 20894-20895.) The people he associated with were Silveria, Travis, Troy Rackley, and Matt Jennings. (71 RT 20902.) This group of five occupied an uninhabited cabin at 6775 Croy Road in Uvas Canyon, south of San Jose. (71 RT 20900; 73 21231.) While the house was ownedby Mr. Charles Larson, he rarely went to the property. (73 RT 21223-21224.) Thus, it became the perfect hang out place for the group. Neighbors of the Larson property recalled the group coming and going from the Larson property and told Mr. Larson about the “squatters.” (71 RT 20930; 73 21224.) After he was told about the “squatters” Mr. Larson went out to his property to investigate and discovered personal items belonging to someone else. (73 RT 21237.) He immediately called the police. (73 RT 21226.) Among the items the police found were a newspaperarticle regarding the stun gun robberies, a paper bag containing a receipt for food purchased at a NobHill grocery in Gilroy, a Toys R Us application with Danny written on it, a Leewards name tag with Dan Silveria on it, and a piece of duct tape. (73 RT21239-21240.) B. ROBBERIES 1. SPORTMEN’S SUPPLYIN SAN JOSE In January 1991, there was a burglary at the Sportmen’s Supply store on Cambden Avenue in San Jose. (70 RT 20864.) During the burglary, the perpetrators, later identified as Troy Rackley, Matt Jennings and Daniel Silveria, took guns out of the store, including a taser or stun gun. (70 RT 20864.) ' 2. GAVILAN BOTTLE SHOPROBBERY On January 21, 1991, Ben Graber was working at the GavilanGavilian Bottle Shop. (70 RT 20843.) Around 10:00 p.m. when Ben Graberwasclosing up the store, he was approached bythree individuals and ordered to return to the store. (70 RT 20871, 20843 20844.) As he moved back inside the store, one ofthe individuals,later identified as Daniel Silveria, zapped him with a stun gun. (70 RT 20844.) When he was ordered to lie down on the ground, the robbers took money from Mr. Graber’s wallet as well as from the cash register. (70 RT 20845.) They were unable to get into the safe, however because Mr. Graber did not have the combination. (70 RT 20847.) One of the individuals, later identified as Troy Rackley also took a bottle of liquor. Later, when Officer Boyles conducted a photo line-up, Mr. Graber identified Daniel Silveria as one ofthe robbers. (70 RT 20873.) He did not identify Chris Spencer from the photo lineup as one of his assailants. (70 RT 20873-20874.) According to Officer De La Rochaofthe San Jose Police Department, Chris Spencertold him that the robbery was Daniel Silveria’s idea. (75 RT 21520.) 10 3. LEEWARDS According to police, on January 28, 1991, Daniel Silveria, John Travis, Troy Rackley, Matt Jennings and Christopher Spencer went to Leewards craft store to commit a robbery. Manager Madden’s vehicle was parkedin the parking lot. Silveria, a former employee of Leeward’s told Spencer to slash Madden’s tires so that he could not get away when he was confronted. (See People’s Exhibit 57 Spencer’s statement).) Rackley served as the lookout and Jennings as the getaway driver. When James Madden exited the store, Travis, Silveria, and Spencer surprised him. (People’s Exhibit 57.) Upon confronting Madden they made him go backinto the store and into his office. There they restrained him and bound him by covered his mouth with duct tape. When they surprised Madden they triggered the security alarm. (People’s Exhibit 57.) At the same time, 10:53p.m., the alarm registered at Honeywell Protection Services (“Honeywell”), the company responsible for monitoring LeeWardsLeewards. Nine minuteslater, around 11:02 p.m., Honeywell registered an irregular opening. (72 RT 21012.) It was at that time that Tina Marie Smith, an employee at Honeywell, called Leewardsto assess the need for law enforcement. (72 RT 21012-21013.) When the call came in, Chris Spencer removed the duct tape from James Madden’s mouth so that he could speak with the alarm company. (76 RT 21563.) James Maddengave the alarm company the number on his passcard. Because he gave her the 11 Satescitartate aeaCRSAREPREROSR NRON og number and did not indicate that anything was wrong, Ms. Smith concluded that the irregular opening was nothing to be concerned about and did not dispatch law enforcementto the location. (72 RT 21012-21013.) After they removed the money from the safe, Silveria and Spencer started to leave when Travis said, “No. We have to kill him.” (People’s Exhibit 57.) He then ordered Spencer to kill Madden. Silveria used the taser on Madden. Spencer, Silveria, and Travis stabbed him and Travis delivered the last stab wound, apparently to Madden’s throat. (People’s Exhibit 57.) They left the store, leaving the knife. John Travis discarded the gloves. (77 RT 21625.) With Jennings driving, all five left Leeward’s in Spencer’s black and red Dodge Charger. They first drove back to Uvas County before heading to Redwood City. (75 RT 21518.) The robbery yielded $10,000.00 in cash and coins. (70 RT 20818.) They started making plans to leave San Jose. However, before leaving they used the proceeds from the robbery to buy cars and clothes. (74 RT 21279-21290; 21388.) C. THE ROBBERY INVESTIGATION San Jose Police began investigating what they coined the “stun gun robberies” after the robbery of the Gavilan Bottle Shop. The officer in charge of the investigation was John Boyles. On January 28, 1991, an unidentified woman called the San Jose Police Department to speak with Officer Boyles. (70 RT 20861-20862)..) The caller, later identified as Cynthia, provided the names of the individuals she believed were 12 involved in the “stun gun robberies.” The names she provided to Officer Boyles were Matt, Troy, and Danny. (71 RT 20883.) An acquaintance of Spencer, Silveria, Travis Jennings and Rakley, Alice Gutierrez also , called police to tell them that two to three weeks before the LeeWardsLeewards incident, she saw Matt Jennings playing with the taser. (74 RT 21383.) She called again later in the evening to speak with Officer Boyles, but he was unavailable, so she spoke with Sergeant George McCall instead. (71 RT 20883)..) She gave Sergeant McCall the first names of the individuals who were involved in the stun gun robberies along with the last names Silveria and Jennings. (70 RT 20862.) Gutierrez told McCall that the group was planning on committing another robbery that night and then leaving town. (71 RT 20908-20910.) Officer Boyles and Officer McCall passed that information along to Officer Brian Hyland of San Jose’s M.E.R.GE. Unit. (71 RT 20885, 70 RT 20868.) Officer Hyland entered Silveria’s name in the computer system and came up with a Daniel Silveria with an address in San Jose. (71 RT 20891.) With the names, Silveria and Jennings, Officer Hyland went to Matt Jennings’ home where he found Jennings’ brothers. (71 RT 20892.) While there he was told that Chris Spencer and John Travis were also friends of Jennings. There were five of them that hung out together. (71 RT 20893.) Officer Hyland then went to Chris Spencer’s home at 208 Roundtable Drive. He met Spencer’s father who allowed him to search Spencer’s room. (71 RT 20894-20895.) 13 1 oteteniterSESEMCRmonicreseG4e «enn de% “naxtite SSNzhnRaatateldecaheTineARNONCeasEh See sn ate ae In Spencer’s room, the officer found traffic ticket issued for Spencer’s Charger. (71 RT 20896.) From Spencer’s home, Hyland went to Silveria’s residence at 5490 Carry Back Avenue. At Silveria’s home, he met Julie Snedley who informed him that the five guys were probably in Uvas Canyon, south of San Jose. (71 RT 20900.) Hyland also received information that the group was planning on leaving San Jose that night. (71 RT 20901-20902, 71 20909-20910)..) Ultimately, Officer Hyland was unable to make contact with Spencer, Silveria, Travis, Jennings and Rackley. (71 RT 20904.) D. THE INVESTIGATION OFJAMES MADDEN’S KILLING At 7:00 a.m. on January 29, 1991, Cecilia Jenrick arrived at LeeWardsLeewards for her shift. (72 RT 21063-21069.) The door was locked, which was unusual. Edna Chapman, another employee, arrived at 7:45 a.m. (72 RT 21081.) Gail Carlisle, the assistant manager, arrived at around 8:00 a.m. with a key and opened the store. (72 RT 21081-21082; 70 RT 20823; 72 RT 21069.) When they entered the store, they noticed that the music was already on and the alarm had been disabled. (72 RT 21071; 21128.) Both conditions were unusual. They walked into the manager’s office and discovered James Madden’s body. (72 RT 21073, 21083.) According to Gail Carlisle, Madden’s hands and his feet were taped together. There was also duct tape on his face. (72 RT 21083.) It was obvious to her that he was dead. She then called the police. (72 RT 21091.) 14 The autopsy revealed that Madden incurred multiple stab wounds, sustaining injuries to the throat and neck, abdominal wall, chest, lungs and heart. . (77 RT 21653- 21655.) There wereare two burn marks on his body consistent with a stun gun. (70 RT 20822; 77 21652.) Sergeant Ted Keech and Officer Jack Solderholm of Santa Clara Police Department were twoofthe first officers on the scene. (73 RT 21167; RT 21170.) After reviewing the scene and interviewing Carlisle, the officers concluded that whoever committed the robbery must have had somefamiliarity with the store’s procedures. (74 RT 21353.) The officers began their investigation with current employees and immediate past employees. (74 RT 21340.) They looked through the personnelfiles and settled on John Travis and Daniel Silveria, two employees who were recently terminated and who had a knowledgeof the store. (74 RT 21341; 21353.) The officers decided to look for Travis and Silveria, along with David Anthony, the last employee to leave the store before James Madden was killed. (74 RT 21342.) E. THE ARREST At around 6:46 p.m. on January 29, 1991, San Jose Police received a call that Matt Jennings and Troy Rackley were at Oakridge Mall in San Jose. (74 RT 21360; 75 21413.) Police officers arrived at Oakridge Mall and Sergeant Brandt and Officer Jean Edward Sellman stopped a Honda Civic and a Datsun 280Z. (75 RT 21416.) Rackley 15 Sos sh pateAraneaeccrerlopentitoiee mat ote Besepuincs hig RSE TEE La Site bak ay hitecasgnte maeAMMENmeSORDRRASEDEEDSetACUSette we egg, Ae and John Travis werein the Datsun. (RT 21437.) Daniel Silveria was in the Honda. (75 RT 21417.) During a search ofthe Datsun, officers found $1,544 in the rear portion ofthe car and $1,131 in a black fanny pack. There was also a white fanny pack behind the passenger’s seat in which there was approximately $33.40 in rolled coins. (75 RT 21438.) In the Honda, the officers found a fanny pack with money. They also found the taser gun and silver duct tape. (70 RT 20825; 75 21419, 21429.) When asked where Spencer and Jennings were, Daniel Silveria offered to help police once he was away from Travis and Rackley. (75 RT 21478.) The three individuals, Silvearia, Travis, and Rackley were transported to the San Jose Police Department. (75 RT 21439.) Because Rackley was a juvenile, he was transferred to and bookedat the juvenile hall. At the police station Silveria told officers that Jennings and Chris Spencer were planning on leaving town, with Spencer heading to Kentucky and Jennings to Reno, Nevada. (75 RT 21479.) Silveria also gave the police a description of the cars Jennings and Spencer were driving. Finally, he offered to page Jennings and ask Jennings to meet him so that the police could apprehend them. (RT 21482-75 21485.) Silveria called Jennings again and found out that Spencer and Jennings were at a friend’s apartment. (75 RT 21487.) 16 BecauseSilveria did not know the address of the apartment where Jennings and Spencer were, the officers drove Silveria to the apartment, where he identified Spencer’s car in the carport. (75 RT 21489.) Officers set up surveillance and later that same day, Officer Esquivel arrested Spencer and Jennings as they returned to the apartment. (75 RT 21499.) F. THE INTERROGATIONAND SPENCER’S CONFESSION San Jose Police Officers interrogated Silveria, Spencer, Travis, Jennings, and Rackley regarding the stun gun robberies. The four adults were advised of their Mirandarights and all but Jennings waived their rights and confessed to the robberies. (75 RT 21543.) Spencer admitted to driving the getaway car during the Gavilan Bottle Shop robbery. (70 RT 20827; 75 21510-21514.) While looking for Silveria and Travis, Sergeant Keech and his partner Cusimano, learned that they were in the custody of the San Jose Police Department. A little past midnight on January 30, 1991 Cusimano and Keech arrived at the San Jose Police Department. They asked whether the suspects had been Mirandized. (75 RT 21540.) They were assured that they had been. (75 RT 21543.) Officers Keech and Cusimanobegan interrogating Chris Spencer at 4:00 a.m. (75 RT 21547)..) Previously, at 11:30 p.m. the previous night, Chris Spencer had been interrogated by Officer George De La Rocha. (RT 21510.) Gradually, Chris Spencer 17 + SSPYeomiteRNRceEMTDhESAOaemianNie Seo cP Cae oo SOON He admitted his involvement in the robbery and homicide to Officers Keech and Cusimano. (75 RT 21553.) Officer Keech testified that he believed Chris Spencer put a lot of the blame on the other suspects. (75 RT 21553.) His belief that Chris Spencer put a lot of the blame on the others was based on the theory of the case he developed using Daniel Silveria’s interview. (76 RT 21566.) i. GUILTPHASE-DEFENSE CASE Appellant challenged the prosecution’s case by attacking via cross-examination, the police procedures employed in the course of the investigation. Appellant pointed out that no microscopic comparison was made on the torn edges ofthe duct tape found in Silveria’s car and the torn edges ofthe duct tape used to bind the victim, which supposedly “matched.” (76 RT 21594.) Although blood found on the knife at Leewards could only have come from the victim based on blood analysis under the “HBO”system, no DNAtesting was done on the blood. (76 RT 21594.) Shoes recovered from the dumpster at the Oak Ridge Mall which were comparedto casts of shoeprints found at Leeward’s were apparently not retained. (RT 21634.) Attempts by interrogating officers to trick appellant into making an incriminating statement, in this case by telling appellant that his fingerprints had been found on the knife used in the homicide when, in fact, no knife had at the time been recovered,is standard police procedure. (76 RT 21565.) It is also standard police procedure for 18 officers to take notes during interrogations; however, in this case, Officer Cusimano did not take notes during the police interview of appellant. (76 RT 21563.) Appellant presented evidence during cross-examination that the coroner’s photographsofthe victim’s shirt depicted more blood than wasactually on the shirt when the victim was discovered, due to the mannerin which the victim’s body was transported to the coroner’s office. (77 RT 21658-21659.) Appellant also objected to admission of multiple photographsofthe victim’s bloody remains. (72 RT 21058.) Ii. PENALTYPHASE A. PHYSICAL EVIDENCE OFFERED INAGGRAVATION Sergent Ted Keech, the Santa Clara detective who investigated James Madden’s killing, testified in detail for the prosecution at the guilt and penalty phases. He identified the shirt James Madden was wearing when he was killed. (82 RT 21903.).) Sergeant Keechalso identified defects in the shirt which, he testified, were “apparently” caused by a knife. (82 RT 21904.) It was Sergeant Keech and the prosecutor whothoughtofthe idea ofdisplaying the shirt to try and persuade the jury that the attack against James Madden was especially vicious. Sergeant Keech and anotherofficer designed the actual display. (82 RT 21906.) 19 SergentSergeant Keech admitted that the shirt shown to the jury contained additional blood that was not present on the shirt at the time the body was found. SergentSergeant Keechtestified that additional bloodstains got on the shirt when the body was transported to the coroner’s office. (82 RT 21905-21908.) Dr. Pakdaman, the coroner who performed the autopsy on James Madden’s body, testified in detail for the prosecution in both the guilt and penalty phases. According to Dr. Pakdaman, James Madden died of multiple stab wounds to the abdomen,chest and neck. (82 RT 21923, 21962.) Specifically, there were five superficial stab wounds to the neck with an additional stab wound penetrating the trachea. Madden was also stabbed in each lung and in the heart. (82 RT 21937-21939.) Dr. Pakdaman testified that his “guesstimate” was that James Madden died within “fifteen, twenty or thirty minutes” of being wounded. (82 RT 21935.) Dr. Pakdaman confirmedthat there was a difference between the amount of blood on Madden’s shirt when the body was delivered to the coroner’s office and th;e amount of blood on the shirt when Dr. Pakdaman viewed the bodyat the crime scene. (82 RT 21971.) The prosecution was permitted, over defense objection, to offer photographs of the stun gun wounds on James Madden’s body, although the “torture” special circumstance had been dismissed and it was clear based on the evidence that appellant did not use a stun gun on James Madden. (RT 9 974, 82 21909-21910.) B. WITNESS TESTIMONYOFFERED IN AGGRAVATION 20 Susan Thuringer workedsin the biology department at University ofCalifornia at Santa Cruz and wais a coworker of Shirley “Sissy” Madden, James Madden’s wife. Ms. Thuringer recalled that on the morning of January 29, 1991, Sissy Madden came to work obviously upset. (82 RT 21880.) Ms. Madden told Ms. Thuringer and Kay House, their immediate supervisor, that her husband did not make it homethe previous night and she feared something terrible had happenedto him. (82 RT 21880.) Ms. Thuringer learned from a called a friend ofhers who was the police chief ofWatsonville that James Maddenwasin fact dead. (82 RT 21881-21882.) This information was confirmed by the Santa Clara Police Department. (82 RT 21883.) Ms. Thuringer, Ms. House, and their boss, Bernice Frankl, together, told Ms. Maddenthat her husbandhad died. (82 RT 21883.) Ms. Thuringer, Ms. House, Ms. Frankl, and Sergeant Lane drove Ms Madden home. (82 RT 21884.) Later, while at home, Ms. Maddenandher borother-in-law Jim Sykestold Julie, the Madden’s eight-year-old daughter, that her father had died. Ms. Thuringer recalled that Julie became very upset when she wastold. (82 RT 21884.) Kay House, Ms. Madden’s immediate supervisor, testified to the same facts that Susan Thuringer hadtestified to. (82 RT 21888-21890.) Additionally, Ms. Housetestified that Ms. Maddenstill had a lot oftrouble handling her husband’s death. (82 RT 21890.) 21 Sergeant Bryan Lane was asked by Sergeant Keech to notify Ms. Madden ofher husband’s death. (82 RT 21893.).) Shortly after 10:00 a.m. on January 29, 1991, Sergeant Lane arrived at Ms. Madden’.s place of employment, the biology departmentat the University of California at Santa Cruz. Uponhisarrival, he was told that Ms. Madden had already bee informed ofher husband’s death. (82 RT 21893-21894.) He then accompanied Ms. Madden and her coworkers to Ms. Madden’s home. C. VICTIM IMPACTTESTIMONY Eric Linderstrand, James Madden’s brother-in-law, is Ms. Madden’s broorther. Linderstrandtestified that his sister and Sissy and James Madden married in 1979. (RT 21978.) According to Mr. Linderstand, when Sissy and James metandfell in love, Sissy became a new person. (83 RT 21979.) James Madden made her very happy. (83 RT 21979-21980.) They had their daughter Julie in 1983. Mr. Linderstrandtestified that James Madden wentout of hisway to do things for his daughter; . (RT 21979-21980.) James Madden wasalso devotedto her. (83 RT 21979-21981.) After her father’s death Julie did not want to go outside. She was afraid someone was after her. (83 RT 21983.) Her schooling was affected by her father’s death and she had to take remedial classes. (83 RT 21984.)Ms. Madden Hissister wasalso suffering, and even though she may not always show it, when she cameout of her room, her eyes werered and you couldtell that she has been crying. (83 RT 21984.) 22 James Madden wasalso a very good friend to Mr. Linderstand. (83 RT 21979.) They had commoninterests in golf and photography. James Madden was also a big help to Mr. Linderstrand’s father, whom heassisted with homerepair projects. Mr. Linderstrandtestified that James Madden’s death was so “unfair.” (83 RT 21982.) He testified “God, this makes me so mad.” (83 RT 21985.) The next family memberto testify was Judith Sykes, James Madden’s older sister. (83 RT 21986.) As his older sister, Ms. Sykes was very protective ofJames Madden. To her he wasvery strong, gentle, and compassionate. (83 RT 21987.) They werevery close. (83 RT 21988.) Her husband became goodfriends with James Madden. James Madden was a considerate husband who was supportive ofMs. Madden’s work and her family. (83 RT 21990.) They had a good relationship. (83 RT 21989.) After Julie’s birth, Ms. Madden had postpartum depression, and James Madden helped the family through it. (83 RT 21992.) Following James Madden’s death, Julie has becomevery frightened. She will notlet hermotherout ofher sight. (83 RT 21998-21999.) She also has nightmares. (83 RT 21999.) James Maddenandhis mother, Joan Madden were very close. He was also close to his grandmother. (83 RT 21992.) When Judith Sykes was told that James Madden had been killed, Ms. Sykes had to inform her mother and her grandmother. (RT 21993.) 23 SOREMatOS NY OE he atMNSNERNetfleeeROEAIRMENRte FS Whenshe told her mother, her mother became hysterical. Her grandmother kept saying that “it can’t be.” (83 RT 21995.) After the news, her grandmother becamefrightenedif it was dusk and her daughter was not home yet. Ms. Sykes grandmotherbelieves the world has become more violent. (83 RT 21997.) As for her mother, she lost her husband and now shelost her son. She was afraid that things would continue like that and she would end up by herself. (83 RT 22000.) Shirley Ann Madden,or Sissy, James Madden’s wife,testified that she and James Madden metin college. They were married in 1979 and had their daughter Julie on January 3, 1983. (83 RT 22001-22002.) James Madden became the manager of Leewardsin Santa Clara in 1989. (83 RT 22002.) Ms. Madden workedat the Biology Department at University ofCalifornia at Santa Cruz. She had problemsat work and he was very supportive. (83 RT 22003)..) James Madden was very loving. (83 RT 22002.) They had a very good relationship. (RT 22002.) On January 29, 1991 at about 5:00 a.m. when James Maddenstill had not come home,she called Santa Clara Police. (83 RT 22009.) They sent an officer out to the store who checked the doors and said everything was fine. (83 RT 22010.) Still worried, she called another Leewards managerbut was unableto find out anything. (83 RT 22010-22011.) Later that morning, she dropped her daughteroff at daycare and went in to work. (83 RT 22010.) It was at work she learned that her 24 husband was dead. (RT 22011.) She picked up Julie from daycare, took her home, and told her that her daddy was dead. (83 RT 22012.) Julie started screaming and crying. (RT 22012.) Ms. Maddentestified that she misses her husbandterribly. She loved him very muchand nowshefeels empty and incredibly lonely. (83 RT 22012.) Before he was killed the murder they had such a happy family, not that they are not happy now,it is just that something is missing. (83 RT 22012..) James Madden was a great pretty muchthe perfect dad and Julie adored him. (83 RT 22006.) James Madden did not mind taking care ofJulie. He just loved her and she loved him. (83 RT 22006.) His death has hada terrible impacted on the family. The murder has robbed Julie’s ofher innocence. She did not wantto believe that her father was dead until she saw the coffin at the funeral. (83 RT 22014.) For a year and a half she slept in the same bed as her mother. At the at age of twelve, she would not sleep in her room with the lights off. (83 RT 22013.) She has stomach achesand saw therapist following her father’s death. (83 RT 22013.) At her school she cannottake part in any father-daughter functions. (83 RT 22014)..) The murder has also been hard on James Madden’s mother Joan. (83 RT 22014.) Christmas, is also extremely hard, and on January 28, Ms. Madden does not even go to work. (83 RT 22015.) Joan Madden, James’s mother, .described her son as a good son. He was the kind of son a mother wishes for and which she got. (83 RT 22023.) He wasloving, 25 warm, funny, and considerate. (83 RT 22024.) He grew upto be a fine young man who married a great girl. (RT 22024)..) During her testimony, Joan Madden began sobbing on the witness stand. (83 RT 22024.) Joan Maddentestified that when James Madden was a child, he was involved in Little League and Cub Scouts. (83 RT 22025.) He was into track, and was involved in his church and youth group. (83 RT 22025)..) He wanted to becomea minister for a while, he performed lay sermonsfor his pastor. (83 RT 22025.) While he was going to college, James worked as a puppeteer at Happy Hollow. (83 RT 22025.) He had a puppet crow by the name ofBenjamin. (83 RT 22025.) Although he started college at San Jose State, he graduated from San FranciscoState. (83 RT 22025.) Joan continued to see James Madden a lot even after he and Sissy were married. (83 RT 22026.) About one week before Julie was born, Joan Madden’s husbanddied of a heart attack. (83 RT 22028.) James Madden madeall the arrangements for the funeral. (83 RT 22028.) James Maddenandhis grandmother were also very close. They were both Dodger fans. (83 RT 22029.) Julie was daddy’s girl. If daddy was working on the plumbing, Julie worked on the plumbing. Hehada train setthat she still has. (83 RT 22030.) On January 29, 1991, she was told that James had been killed. (83 RT 22033.) Joan Madden’s mother, James’s grandmother, was hard of hearing before the his death. Since then she hears nothing because she simply gave up listening. (83 RT 22035.) 26 Julie has been “panicked” about James Madden’s death murder. She would not let her mother go out on the patio because she wasafraid that something was going to happen to her. Before James Madden’s death, Julie and Joan Maddenhada great relationship, but after his death, Julie would not leave her mother. (83 RT 22035- 22037.) After two and a halfyears Julie would once again go out with Joan Madden again. (83 RT 22037.) The loss continues to impact Joan every day and she hasjust learnedto live with it. (83 RT 22038.) D. DEFENSE CASEINMITIGATION Chris Spencer’s life was marked by serious neglect. The defense told the jury that the neglect he suffered throughout the duration ofhis life was substantial and served as one explanation for his conduct. (84 RT 22046.) Appellant grew up in Harlan County Kentucky. Harlan County is not a sophisticated metropolis, nor a place full of opportunity. To the contrary, it is a very remote and isolated place, located at the farthest point in Eastern Kentucky. It is very much Appalachian country. (85 RT 22205.) There are no major roads that go through Harlan County and the only reason a person would go there would be to visit someone living there; however, not many people visit this remote and desolate place. The people ofHarlan County stay to themselves and do not take well to strangers comingto their town. (85 RT 22205-22206.) 27 So ean Rie pre eERinaTRONTRaRRSeatiiOn ew(Ann A cae FER quan Ee lt lide age geennreaARLERRLGRMBMHng ese me 8 bot ogee wen 3 : isiee anette Baxter, appellant’s home town,is a coal mining town that has either a boom or bust economyas no otherindustry exists in Harlan County. The people ofHarlan County are very, very, poor and most ofthe families are dysfunctional and have been broken apart. (85 RT 22206.) The family or inner circle in Harlan County includes everybody someoneis related to. There are not a lot of daycare providers in Harlan County and people rely on family members to watch their children. (85 RT 22222.) A middle class does not exist and kids there can rarely find an opportunity to better themselves. (85 RT 22205-22206.) The poorness ofthe community gives kids growing upthere very little to hope for and very little to look forward to. Harlan County does not have anyart or humanities programsavailable to the kids ofthe community, nor does it have a local YMCAorotheroutlet that the kids can go to and improve themselves. (85 RT 22208-22209.) Kids growing up in Harlan County have a very hard time adapting to the world outside Harlan County, and ofthe few kids who haveseized the rare opportunity to leave and go to college, most soon return finding it too difficult to adjust to the world outside. In order for children from Harlan County to adjust to the outside world, they need a strong “solidified” and supportive family. (85 RT 22247.) Giventhis history, things started to go wrong for Chris Spencer long before Jim Madden’s death. (84 RT 22047.) Elizabeth Howard, Chris’s maternal grandmother, was married twice. She was married to herfirst husband for , who was shot and killed. to whom she had been married three years and then he, was shot and killed. Ms. Howard remarried and 28 remained married to her second husband for twenty-seven years. (84 RT 22048)..) She had five children from her second marriage: Robert Lee, Geraldine, Glenna, Bill, and Sally Joe Spencer, Chris’s mother. (84 RT 22050)..) She has one sister and one brother, but she lost her brother in 1949when he, too, was shot and killed. (84 RT 22051.) With the exception ofthe fourteen years she lived in Oklahoma, Ms. Howard lived all ofher life in Harlan County. (84 RT 22051.) She moved to OklahomaCity in 1958. She lived there for two years, and then moved back to Harlan County. (84 RT 22051-22052.) The primary industry in Harlan County was the coal mine industry. There were also some lumber companies, block companies and small business. (84 RT 22052.) In Harlan, Ms. Howard’s husband supported the family as a baker. Whentheylived in OklahomaCity, her husband worked as a carpenter. The family moved back to Harlan after her second husband becameill. He later died of cancer. (84 RT 22052.) After her husband died Ms. Howard had no source of income. She had no pension and the only moneyavailable to her was an $80.00 social security check meant for her and her children. (84 RT 22060-22061)..) To support her children, she had to start working. There were no jobs for single women in Harlan so she moved back to OklahomaCity and worked in a Woolworth store. (84 RT 22062.) Like most who leave Harlan County, Elizabeth eventually moved back to Harlan County where she worked as a cook, waitress, and cashier in a restaurant. (84 RT 22059.) Elizabeth could never afford to own her own home,but in 1971, Jim Walters, a 29 fone atMAERAEaICSENACBREAHateasCIeRENE RL OAPRTORSAmes tobe Mate ean * co-op that builds homes for people who could not afford a house, built a homefor her. At age 58, she finally had a home she could call her own. (84 RT 22062.) Elizabeth’s youngest daughter Sally married when she was sixteen. Sheleft Harlan County. In 1970, Sally moved back to Harlan County. At the time she moved back, Sally was married to Alan Spencer, her second husband. (84 RT 22054.) Sally also had three children at that time, Delmar and Dabietta Cole from herfirst marriage, and Chris Spencer who was born in 1969. (84 RT 22054-22056.) Sally and her family lived in Harlan until 1983. From 1970 to 1983, Elizabeth Howard watched her grandson appellant grow up in Harlan County. (84 RT 22056.) From what she could tell, Chris was an active child who wasnot a leader; nor was he aggressive. (84 RT 22057.) He liked nature and football. He was alwaysobedient. (84 RT 22056, 22063.) When Chris was about sixteen or seventeen years old and living with his family in San Jose California, Chris’ mother learned that he was smoking marijuana. (84 RT 22110.) As a result, she sent him back to Harlan to live with his grandmother, Elizabeth. (84 RT 22058.) During this time, Elizabeth had no idea what Chris was doing because she workedall ofthe time, and she did not keep track ofhim. (84 RT 22059.) All that Elizabeth Ms. Howard could rememberabout Chris’ behavior during this period was that he did not attend school and he simply hung out with his family and friends. (84 RT 22059.) 30 Sally Spencer, Chris’s mother was born in Harlan County Kentucky on May 20, 1945. (84 RT 22065.) She has two brothers and twosisters. Sally grew up in Harlan County and OklahomaCity. (84 RT 22066.) She lived in Oklahoma City for two years and then moved back there again and lived there for another year. (84 RT 22066.) Whenherfather becameill, her family brought him back to Harlan County, where he grew up,to die. (84 RT 22066.) When her father died, Sally was twelve years old. (84 RT 22066.) After he died, the family moved back to OklahomaCity because there was no workfor a single woman in Harlan and her mother needed to work. (84 RT 22066.) At age sixteen, Sally married and left home. (84 RT 22067.) Shortly, after they were married, she and herfirst husband moved from OklahomaCity to San Jose, California. Her first marriage lasted six and a half years and produced twochildren, Delmar Duane Cole and Dabietta Cole. (84 RT 22068.) During herfirst marriage, the family lived in San Jose, OklahomaCity, and the states of Washington State, and Oregon. (84 RT 22068.) The marriage wasnot a good one, and while living in San Jose, Sally divorced her first husband. (84 RT 22069.) Two anda halfyears later, Sally was pregnant with Chris when she married his father, Alan Spencer, on March 3, 1969. (84 RT 22069.).) Chris was born a month after the marriage. (RT 22070.) They lived in San Jose until Chris was fourteen months old. (84 RT 22070.) In addition to Chris, the family 31 retsipsStineSamat tnbbomeg hana My SIME Dang AerMAA SeTRENPenee SD amen ete Bena te consisted of Sally’s children from herfirst marriage, Delmar and Dabietta, and Alan’s children, Tammy and Julia. (84 RT 22142, 22155.) They decided to leave San Jose to get away from Sally’s first husband, who had abducted and abused Sally. (RT 22071-22072). So in July 1970, they moved back to Harlan County to be near her family. (RT 22072). A year later, however, Alan insisted that Tammy and Julia move to Arizonato live with their real mother. (RT 22155.) They then fled San Jose toot get away from Sally’s first husband who continued to harass Sally and who had abducted and abused her. (84 RT 22071-22072.).) In July 1970 the family moved toy returned Harlan County to be near Sally’s family. (84 RT 22072.).) Along with Sally, Alan and Chris, Delmar, and Dabietta, Tammy and Julia moved in with them. (84 RT 22071)..) A year later after moving to Harlan, Alan insisted that his daughters, Tammyand Julia, move to Arizonato live with their real mother. (84 RT 22155) Sally and Alan’s second child, Alisa (Lisa) Catherine Spencer was born in Harlan County on December 23, 1972. (84 RT 22070, 22078)..) There was no work for Alan in Harlan. So, after a few months, Alan and Sally moved the family to Indiana. (84 RT 22074.) Monthslater, Sally and Alan separated. She moved back to Harlan with her children and Alan stayed in Indiana. (84 RT 22074.) Whenshefirst moved back to Harlan, Sally stayed with her mother. She later moved into her grandmother’s two-room house and began receiving welfare benefits. (84 RT 22075.) The house they lived in was very small, just twenty-four by twenty-four feet. (84 RT 22081.) 32 Nine months passed and Alan, whoat this time was having a difficult time getting paid for the construction work he was performing in Indiana, decidedto reunite with his family by moving back to Harlan County. (84 RT 22125.) After Alan moved back to Harlan County, Tammyand Julia again also lived with them. (84 RT 22080- 22081.) Thus, in the twenty-four by twenty-four foot house, there were six children and two adults. (84 RT 22081, 22084.) The house had only two and a halfbedroomsforall eight ofthem. It was a prefabricated homewith no central heating and no hot water. (84 RT 22081.) It was not until a couple ofyears later that they were able to get a water heater. (84 RT 22082.) Family life was difficult for the Spencers. Julia lived with Alan and Sally unti1 she was thirteen, when she ran away to Galveston, Texas. (84 RT 22158.) She was gone for two or three weeks before her father and Sally cameto get her. (84 RT 22158.) By the time she was sixteen, Julia had run away from homeaboutthree or four times. (84 RT 22158.) At age sixteen she placed herself in a foster home because she wantedto get awayfrom her father and Sally. (84 RT 22158.) Julia felt like her stepmother Sally did not wanther and that no matter what she did it was never good enough for her father. (84 RT 22158.) Alan struggled to find work in Harlan County. (84 RT 22125.) Eventually the family was again torn apart when Alan left Sally and the kids and moved back to San Jose, California. (84 RT 22076.) Alan stayed in San Jose for about ten months. While 33 he was awayfrom his family he did notstay in touch, nor did he provide them with any financial support. (84 RT 22077.) During this period, Sally divorced Alan and once again got back on welfare. She also worked whenshe could find employment. (84 RT 22077.) To support the family, Sally sporadically cleaned houses and workedin a restaurant on and offwashing dishes and cooking. (84 RT 22077.) Chris was around twoandhalfat the time. Some time later, Alan came back and the two remarried and have remained married ever since. (84 RT 22077.) For about three years after he returned home to Kentucky, Alan worked for Sally’s brother who ran a government-sponsored workshop for disabled people. (84 RT 22078.) After two and a half years of doing this, he quit and went to work for a hospital chain in their central maintenance department. (84 RT 22080, 22128.).) His job required him to travel through three states to perform a variety of maintenance and remodeling projects. (84 RT 22080.) Every week he left on Monday and did not return homeuntil Friday. (84 RT 22129.) This continued for five years. (84 RT 22086- 22087.) When he was at home, he was notvery active or emotional with any of his children. (84 RT 22163.) He nevertold his children he loved them. (84 RT 22183.) Whenhis children were young and during the years he workedat the hospital, Alan was an alcoholic whodrank all of the time. (84 RT 22127, 22163.) His children rememberhim as a mean and violent drunk. (84 RT 22163.) Later, he was diagnosed with a bleeding ulcer and stopped drinking. (84 RT 22079.) 34 During this period Sally was working the swing shift from 3:00 p.m. until midnight, at a restaurant. (84 RT 22086.) She relied on the older children to keep tabs on the younger ones while she was away. (84 RT 22084.) Her mother, wholived two houses away, also watched the children. (84 RT 22084.) After five years, Alan left the hospital’s central maintenance department and started working in the coal mines. (84 RT 22086-22087.) By December 1982, the family, included Lisa, Chris, Alan, and Sally. Despite becoming pregnantat age fifteen, Alisa stayed home with her parents and did not move out until she was seventeen. (84 RT 22190.) Julia left home for good when she was seventeen and pregnant by a married man. (84 RT 22161.) She later married, but after her marriage broke up she moved to California to once again live with Alan andSally. (84 RT 22161.) Tammyalso got married when she was sixteen and left home. She later married, but after her marriage broke up she moved to California toot once again live with Alan and Sally. (84 RT 22161.).) Delmar and Dabietta move out ofthe home,also. (84 RT 22090-22091, 22133-22134.) Fourteen year old Chris, his sister Lisa and their parents left Harlan because neither Alan nor Sally could find work. First, the family went to Oklahoma City where Alan got a carpentry job helping his nephew. (84 RT 22136.) The family stayed in OklahomaCity for a couple of months, but the people Alan and his nephew were working for ran put ofmoneyso they were unable to complete the job. (84 RT 22087.) Alan and his family moved on to San Jose, California. Once in San Jose Alan quickly 35 found work as a carpenter. (84 RT 22136.).) Upon arriving in San Jose, Alan, Sally, Chris and Lisa movedin with Sally’s daughter Dabietta, her husband Marion,andtheir infant daughter , Sarah. (84 RT 22089.) Julia, was nineteen at the time, also came to California and stayed with them for a few months. (84 RT 22106.) At the time, Julia had a daughter named Antonia. (84 RT 22106.) Sally also testified that when the family lived in Harlan, Julia cameto stay with them. While she lived with them, Julia ran away from time to time. According to Sally, Julia, she said was a very mixed up kid. (84 RT 22107.) In San Jose, Sally worked for Rolm Electronics. (84 RT 22103.) Alan worked as a carpenter. (84 RT 22104)..) Later, Sally worked for BR Communications and was promotedto inspector before she was laid off. (84 RT 22105.) During this time Alan worked a lot of different jobs. (84 RT 22104.) Asa child Chris was always a good boy. (84 RT 22094.) His main interest was football. He played on regular teams beginning in the second grade. (84 RT 22094)..) Before football, Chris played basketball. (84 RT 22094)..) Alan was often not home so Sally went to Chris’s gamesas often as she could, but a lot of the games were held while she was working. (84 RT 22095.) Growing up, Chris and his friends played tag, football, baseball, and mountain climbed, and during the summer, the kids swam in the river. (84 RT 22099-22101.) Due to Alan’s frequent absences and Sally’s work schedule, these activities were mostly unsupervised. (84 RT 22100.) During Chris’ adolescent years, his parents did not know 36 whether Chris was smoking, using drugs, or drinking because he was left unsupervised so often. (84 RT 22100-22096.) Usually, Chris got along with his friends. (84 RT 22096.) Like his grandmother, both of Chris’ parents described him as a follower. (84 RT 22097, 22140.) Chris was notat all the person who would take charge and decide what the group would do. (84 RT 22098.) He went along with the suggestionsofothers. Chris let his friends take advantage ofhim. (84 RT 22095.) Chris showedthis trait from a very early age. For example, when Chris was in Kindergarten, he got beat up by a bully. When his mother asked him whyhedid not fight back, Chris respondedthat he did not wantto hit the bully because the bully washis friend. (84 RT 22095.) Mr. Musick was Chris’ football coach in junior high school and he also taught Chris’ History class. (85 RT 22203.) Mr. Musick drove the school bvusto take the kids home from football practice. (85 RT 22204.) He also drove Chris home andas a result he came to know Chris well and developed a personal relationship with him. (85 RT 22204.) Mr. Musick believed that Chris came from a dysfunctional family that had a hard time making ends meet. (85 RT 22204.) Chris had to fight and scratch for whathe hadto do at school. Sometimes Mr. Musick provided socks and shoes for Chris. (85 RT 22204.) He provided these items because he did not want Chris standing out from the crowdas far as his looks or attitude or how hefelt about himself,. (85 RT 22204.) 37 ett9aIRSAataiaege En Tie angen GH a banatotRDSanagReaOegttaneypteENN nE MOEIa RatH wea on Sometimes Chris’ hygiene was not as goodas the other students. To prevent the other kids from making fun of Chris, Mr. Musick offered Chris the use ofthe shower roomsat the school. (85 RT 22215.) Chris was a good football player. “He played with a little heart.” (85 RT 22213..)” He simply loved to play football. Mr. Musick believed that football would be the thing that kept Chris interested in school. (RT 22213.) That is why Mr. Musick pushed to makesure that Chris remained in school and in the football program. (85 RT 22213.) Mr. Musick considered Chris an at-risk student. (85 RT 22215.) However, by eighth grade, Mr. Musick believed that Chris had finally reached a stable pointin hislife wherehe was doing well in football and in school. (85 RT 22216.) Chris was also looking forward to high school. (85 RT 22216.).) Mr. Musick wasafraid that if Chris left Harlan County, he would fall in with the wrong crowd and would not have guidance to stay in high school. (85 RT 22217.) For this reason he begged Chris’ family to let him stay in Harlan County instead of moving to California. (85 RT 22216, 22217.) When he suggested that Chris stay in Harlan, Chris respondedthat it was his duty to go with his parents so as not to break up the family. (85 RT 22220.) At around the age seventeen, Chris stopped going to school. (84 RT 22110.) It was also aroundthis time that Chris told his mother that he had a problem with marijuana. (84 RT 22110.) Before Chris told her, Sally was unaware that he used 38 marijuana. (84 RT 22113.) She was also unaware that Chris used hard drugs. (84 RT 22113.) He did not want medical help, so she sent him back to Harlan to live with his grandmother, Elizabeth Howard. (84 RT 22110.) Life with his grandmother in Harlan County did not prove beneficial to Chris. Hedid notlisten to her and he did not attend school: (84 RT 22111.) Chris stayed in Harlan for a just a few months and then returned to California. (84 RT 22112)..) Once he returned home,he did not go back to school. He promised to go back, but neither of his parents saw to it that he kept that promise. Education was not importantin the Spencer home. (84 RT 22184.) Chris never did go back to high school. In fact, none of Sally and Alan’s children finished high school. Later, Chris did get his GED, however, as did his siblings Julia, and Dabietta. (84 RT 22112.) In addition to abusing marijuana and other hard drugs, also apparent when Chris came back from Harlan, was his abuse ofalcohol. Sally recalled seeing him intoxicated for the first time. (84 RT 22113.) As the alcohol problem escalated, Chris was arrested for drunk driving two weeksbefore his eighteenth birthday. (84 RT 22114.) Sally knew Danny Silveria, John Travis, and Matthew Jennings. She did not know Troy Rackley, but the other three were occasionally at her home. (84 RT 22115- 22116)..) She did not care for Matthew Jennings because he had too manygirlfriends. (84 RT 22117.) She knew Danny Silveria because he was the cousin ofDelmar’s wife. (84 RT 22118.) She did not care much for Danny Silveria either. (84 RT 22118.) John 39 oASINADENNROOESapapcEMmagS TEN Seth RENE Se a tethernet RENE a ep Travis was very polite, but she thought he was the mischief-maker. (84 RT 22119)..) He cameover to get Chris even when Chris did not want to go out. (84 RT 22119.) Chris was not especially close to his half sister Dabietta and his half brother Delmar becauseofthe age difference. For example, Delmar was eight years older than Chris. (84 RT 22142.) Delmar did live in the same house with Chris in Kentucky and California; however, he divided his time between living with Sally and Alan andliving with his biological father. (84 RT 22144-22145.) Whenthey lived in Kentucky, Delmar andhis friends used marijuana and alcohol. (84 RT 22149.) Delmar did not include Chris in any ofthose activities. When they moved to California, however, Delmar obtained drugs or alcohol for Chris and they drank together. (84 RT 22149.) Delmar knew DannySilvearia. Danny is his cousin, by marriage. (84 RT 22050.) He also knew John Travis and Matt Jennings. (84 RT 22050.) Theyall used to go fishing and camping together. (84 RT 22050.) During these outings they would drink alcohol and use drugs like methamphetamine, marijuana, and cocaine. (84 RT 29151, Like Delmar, Lisa knew DannySilveria, John Travis and Matthew Jennings. Theyall hung out together in a group of about twenty kids. (84 RT 22195.) They came up with the plans for the group’s activities. (84 RT 22195.) Chris was definitely a follower in the group, not a leader. (84 RT 22195.) 40 Growingup, Chris also drank and did drugs with his half-sister Julia. Julia, whois five years older than Chris, started drinking at age thirteen and started doing drugs at age fourteen. (84 RT 22155, 22176.) She used Quaaludes, toluene, alcohol, and a hallucinogens, including “acid” and “strawberry T.” (84 RT 22164, 22169-22170.) One time Julia, Delmar and other friends were doing drugs when they got into an auto accident and both Julia and Delmar broke their backs. (84 RT 22147, 22165.) Chris also started getting drunk on cheap wineat a very early age. (RT 22167.) Whenthe family lived in Kentucky, Lisa, like Chris, also began drinking at an early age. She recalled she started drinking at age five. (84 RT 22192.) One time, when young Chris and Lisa got drunk, Alan and Sally did not find out because Chris fell asleep and Julia put Lisa to bed. (84 RT 22167.) It was not unusual in Harlan County for older children to give youngerchildren alcohol, even children as youngasfive, six or seven years old. (85 RT 22227.) In Harlan County, alcohol was the big thing, as was marijuana, which was grown and hidden in the mountains. (85 RT 22227.) In general, drug abuse was ignored in the Spencer household. Both Sally and Alan were awarebut did nothing about Julia’s drug abuse. Neither was drug use hidden in Chris’ extended family. Chris, as well as the other children in the family, were aware ofthe drug subculture because their Uncles Joby and Clydeall smoked marijuana in front of him. (84 RT 22175.) Every time the children went to their aunt’s house, there wasalcohol. (84 RT 22192.).) The older boys would get the alcohol andstart drinking. 41 SPFeRAadctt Aeon ng neta seaeRCitORRentereBicSCHSo Chris drank with them as well. (84 RT 22192.) Their cousins would also get alcohol from their Uncle Joby, and Chris and Lisa would drink this alcohol with their cousins. (84 RT 22192.).) When Julia he moved out to California, she and Chris did cocaine together. (84 RT 22170.) Both Julia and Chris used cocaine in their home. (84 RT 22172.) They were both working at Sizzler and eventually Chris was fired. (84 RT 22170.) Chris’ father was aware that Chris was using drugs. Once after he observed Chris, Alan remarked to Julie: “He’s blitzed, isn’t he?” She responded, “Dad, he’s gone.” (84 RT 22173.) That was the end ofthe conversation and there were no repercussions. This was not an unusual response in the Spencer home. The home lacked discipline and concern. The children were not taughtright from wrong and no matter whatthe behavior they engagedin, the parents either ignored it or acquiescedin it. (84 RT 22185-22186.) Julia described her family as very dysfunctional. (84 RT 22180.) “No matter what us kids done, it was okay.” (84 RT 22182.) Julia was aware of the “experiment” to send Chris to live with his grandmother. (84 RT 22180.) She also knewthat it did not work out. Chris was drinking and getting bad grades. (84 RT 22179.) “We wereall responsible for what happened to Chris.” (84 RT 22180.) Julia strongly disagreed with Dabietta’s statement to the investigator that Chris was taught “very strong values”by his “very close family.” (84 RT 22185.) She agreed that Chris was taught the Bible and attended Sunday school until age seven. (84 RT 42 22185.) But she insisted that her family was dysfunctional and is responsible for what happenedto Chris. (84 RT 22186.) Alisa testified that she lived in Kentucky for almost eleven years before the family ended up in San Jose. (84 RT 22188.) She became pregnantat age fifteen. (84 RT 22190.) She stayed at home with her parents and did not moveout until she was seventeen. (84 RT 22190.) Lisa did not use drugs while she was living in Kentucky. It was in California, at age thirteen, that she started using drugs. (84 RT 22193.) She used crack cocaine, “crank,” and powder cocaine. (84 RT 22193.) Chris also used these drugs and drank alcohol with her. (84 RT 22194.) Once they had a party at their home when herparents went out oftown. There was alcohol, cocaine and acid at the party. (84 RT 22197.) Someonecalled the police. (84 RT 22197.) While the police discovered the alcohol, they did not find the cocaine and acid. (84 RT 22197.) No one wasarrested. Family and friends alike all describe Chris as a very likeable young man. According to Lisa, Chris was outgoing and kindhearted. (84 RT 22198.) Ifyou had a problem, he would help you fix it. Ifyou needed something,hetried to getit for you. (84 RT 22198.) People liked Chris. Julia described Chris as was herlittle brother and he was a sweetie. (84 RT 22166.) Chris was the mostlovable ofall the group. He was the good child ofthe family who nevergot into trouble. (84 RT 22176.) He was fairly active and liked to draw. He also did not have a problem getting along with the other kids. But he 43 FelotahaONRANAROMOAEROSHANE RAE Fak ence was definitely a follower. (84 RT 22166.) Mr. Musick described him as a very quiet individual. He was a follower and a people pleaser. (85 RT 22212.) Chris would do anything for his friends and his football teammates. (85 RT 22215-22216.) With regard to his teachers, Chris was respectful and a “yessir, “no sir” type of individual. ” (85 RT 22212.) Furthermore, Chris was never disrespectful to Mr. Musick or to any of his other teachers. (85 RT 22212.) In his capacity as the main disciplinarian of the school, Mr. Musick never saw Chris in his office for a disciplinary issue. (85 RT 22212.) Chris, Mr. Musick concluded, was easy to influence because he was a pleaser, who had low self- esteem, and was a follower. (85 RT 22249.) 44 ARGUMENT r THE TRIAL COURT ERRONEOUSLY GRANTED THE PROSECUTION’S CHALLENGE UNDER WITHERSPOON¥.ILLINOISAND WAINWRIGHTV. WITT, VIOLATINGAPPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, AFAIRAND IMPARTIAL JURYAND TO BE FREE OF CRUELAND UNUSUAL PUNISHMENTS AND ARBITRARY IMPOSITION OFTHE DEATH PENALTY. (U.S. CONST., AMENDS.VI, VIII, XIV; CAL. CONST., ART. I, SECS. 15, 16, 17.) A. Introduction and Summary of Claim In Witherspoon v. Illinois (1968) 391 U.S. 510, the United States Supreme Court held that a state infringes a capital defendant’s rights under the Sixth and Fourteenth Amendmentsto trial by an impartial jury when it excuses for cause, all those members ofthe venire who voiced general objections to the death penalty or expressed conscientiousor religious scruples against its infliction. (Witherspoonv. Illinois (1968) 391 U.S. 510, 522 [88 S.Ct. 1770, 20 L.Ed.2d 776].) Moreover, prospective jurors cannot be excluded for cause simply because they indicate there are some kinds ofcases in which they would refuse to recommend capital punishment. (/d. at p. 522, fn. 21.) At most, the state can demandthat a juror be willing to considerall ofthe penalties providedbystate law andthat he not be predisposed beforetrial to vote against the penalty ofdeath regardless of the facts and circumstances developedattrial. (/bid.) If the voir dire indicates that a prospective juror was excluded on any basis broader than this, the death sentence cannot be carried out. (/bid.) It cannot be assumed that a juror’s position is one against capital punishmentunless that prospective juror unambiguously states that he or she would automatically vote against capital punishment 45 1 anutlene eneIRMlnarRORCrean (BN eA HENnTteh RH SRARTaEESE Se en no matter whatthe trial may reveal. (Jd. at p. 515-516, fn. 9.) The court madeclear that a challenge for cause exercised in conflict with its holding would deny the defendant’s rights under the Sixth and Fourteenth Amendments. (/d. at p. 518; accord, Adamsv. Texas (1980) 448 U.S. 38, 40 [100 S.Ct. 2521, 65 L.Ed.2d 581].) The Witherspoonprinciples were further refined in subsequent cases. For example, the Supreme Court, in Davis v. Georgia, madeclear that a violation of the Witherspoon standards requires that ajudgment of death be set aside, even if only one prospective juror was improperly excused for cause. (Davis v. Georgia (1976) 429 U.S. 122 [97 S.Ct. 399, 50 L.Ed.2d 339].) In a later case, the Supreme Court clarified the standard for judging the proper exclusion ofa juror opposed to capital punishment. (Wainwright v. Witt (1985) 469 US. 412 [105 S.Ct. 844, 83 L-Ed.2d 841].) In Witt, the Court refined the Witherspoon holding, finding that a prospective juror who expresses conscientious objections to capital punishment may not be excused unless the juror’s beliefs would “substantially impair” the performance ofthe juror’s duties. (People v. Abilez (2007) 41 Cal.4th 472, 497-498, citing Witt and People v. Roldan (2005) 35 Cal.4th 646, 696.) However, even ifjurors firmly believe that the death penalty is unjust, they nevertheless may serve in a capital case as long as they clearly state they are willing to set aside their beliefs temporarily in deference to the rule of law. (Lockhart v. McCree (1986) 476 U.S. 162, 176 [106 S.Ct. 1758, 90 L.Ed.2d 137].) 46 Similarly, in People v. Kaurish (1990) 52 Cal.3d 648, 699, this Court recognized that a prospective juror may not be excluded for cause simply becausehis or her conscientious viewsrelating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would makeit very difficult for the juror ever to impose the death penalty. Because the California death penalty sentencing process contemplates that jurors will take into account their own values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted (“.. . you are free to assign whatever moral or sympathetic value you deem appropriate to each andall ofthe various factors you are permitted to consider . . .”” (CALJIC 8.88, emphasis added)), the circumstancesthat a juror’s conscientious opinionsor beliefs concerning the death penalty would makeit very difficult for the juror ever to impose the death penalty is not equivalent to a determination that such beliefs will “substantially impair the performance ofhis (or her) duties as a juror” under Witt. Thus, the fact that a juror, due to his or her philosophical objections to the death penalty, would havea higher threshold for finding an appropriate case for the death penalty is not disqualifying, unless there is no realistic possibility that the juror could ever find the death penalty to be “appropriate” or “warranted.” Absentthis circumstance(and there is no evidenceofit in the present case, as demonstrated below), the prospective juror is not “substantially impaired”ifthe juror clearly indicates that he or she would vote for the death penalty, ifhe or she found it to be warranted in 47 Ste SAREEARIESbaieneaekamen + the case before it (an “appropriate case”), even taking into accountthe juror’s unusually high threshold for finding any case to be an “appropriate case.” People v. Stewart, (2004) 33 Cal.4th at p. 447, citing People v. Kaurish supra, 52 Cal.3d 648.) In the present case, prospective juror C-67 was dismissed for “cause” based on his personal views opposing the death penalty. However, as demonstrated below,this dismissal was improperandin violation of Witt and the foregoing legal principles because noneofthe juror’s responses to questions propounded provided any evidence of substantial impairment. Manyofthe inquiries propoundedto the juror, while arguably useful in determining the juror’s general views on the death penalty, were not framed in such a manneras to uncover“substantial impairment,” and the juror’s responses to these questions, therefore, were, therefore, at best inconclusive on the subject. As to those questions which did bear directly on the issue of “substantial impairment,” the juror’s responses affirmatively demonstrated that he was vot substantially impaired. In either case, there was no evidence ofsubstantial impairment. Therefore, appellant was denied his state and federally protected constitutional rights to due process andajury trial, as well as his right to be free of cruel and unusual punishments and arbitrary imposition of a death sentence. B. The Error 1. The Juror’s Responses 48 Here,the trial court conducted the following voir dire ofprospective juror C-67 regarding the juror’s views on the death penalty: Q: [By the court]: Okay, now, also, when you were here previously, I indicated that it’s possible this case could be tried unlike the usual criminal casein that it could possibly have twoparts or two phases. Thefirst phase is like the usual criminal case where the jury hears the evidence out here in court, the arguments of counsel, the instructions on the law, and then they go back and deliberate to determine whetheror not the defendantis guilty or not guilty. Andthey have to do so without in any way considering penalty or punishment. Okay? A: Right. Q: Okay. Now, again, in order to explain the second phase, we have to assume certain things. By this assumption, I’m not saying it’s going to happen or not going to happen. But assumethatin this first phase, the guilt phase, the jury found the defendant guilty ofmurderin the first degree and at least one special circumstance was found to be true. Then, and only then, do weget into the second part ofthe trial, which is called the penalty phase, where the jury has to, for the only time, consider which penalty is appropriate. They do this after considering evidence in the form ofwhat wecall circumstances in aggravation and mitigation. A circumstance in aggravation can be a negative or unfavorable thing about the defendant or the case. A circumstance in mitigation can be a favorable or positive thing about the defendant or the case. Thejury also hears additional arguments of counsel, instructions on the law from the Court, and then goes back to determine which penalty is appropriate. Now, with this long explanation n mind, ifyou were ajuror participating here, first of all, in the guilt phase, the first part, would you be able to keep an open mind throughout the course ofthe guilty phase, that is, not make up your mind until you’ve heard everything out here in court that you’re supposed to and then had a chanced to go back and deliberate? 49 ontaeRRONERO NimanAYat,PAERONENPUGS | ms ot USEnebENAaNEES RANESoAacstccat ae A:Yes, I think so. Q: When yougo back there to deliberate, do you think you would be able to do so without in any way considering the subject ofpenalty or punishment? A: Excuse me? Q: In the guilt phase, when you went back to deliberate, during deliberations would yoube able to go through those without in any way considering the subject of penalty or punishment? A: Yes. Q: It’s not an issue at this point. All right, now assume again that you’re a juror participating here and we find ourselves in a penalty phase. Again, would you be able to keep an open mind throughout the course ofthe penalty phase, not make up our mind until you’ve heard everything out here in court that you’re supposed to hear and had a chance to go back and deliberate? A: Yes. Q: Do you think you would automatically vote for one of those penalties simply because you might favorit over the other one? A: Well, in the questionnaire, there were—there was a lot of discussion about the death penalty. Q: Right. A: And supposeI havea lot of reservations about that, as my answers probably indicate. Q: All right. With your reservations about the death penalty in mind, do you think in a penalty-phase determination during deliberations, do you think you would always vote against the death penalty despite any aggravating or negative evidence that may have been presented? A: I don’t know. I’ve neverhadto bein that situation before. 50 Q: All right. Let me ask you another assumption type question. Assumethat as a juror you had found that the defendant had deliberately participated in the multiple stabbing ofthe victim in this case during the course ofa robbery and the victim died. Do you think you would always vote for life without parole and reject death despite any of this negative evidence that may have been presented during the course ofthe trial? A: Well, this is obviously the hardest single thing in that whole thing for me and I don’t know. Q: All right. Let me ask you this: Assume that you sat through the penalty phase,andthis is after the guilt phase, and you hadall this evidence about the crime itself, you’ve had back ground evidence about the defendant, all the evidenceisin, you’re back in the jury room, you’ve been back there for some time because you’ve been discussing the case with your fellow jurors, during deliberations you listen to their viewsand they put forth their views and in your own mindbasedon the evidence and the law you believe the death penalty is appropriate in this case, would you vote for it? A: Well, if I believed the death penalty was warrantedin the case, but for meto believe that the death penalty is warranted is the whole issue. Q: Doyouthink the death penalty would ever be warranted in any kind ofa case? A: Yes. Q: Doyouthink that it would be possible for you to vote for the death penalty in a given case without going into what that case might be? A: I can imagine things horrible enough to get me to vote for the death penalty,I suppose. .. . (64 RT 19978-19982.) In his juror questionnaire, prospective juror C-67 answered questions 149 and 150, respectively, as follows: Question 149 Given the fact that you will have two options available to you, can you see yourself, in the appropriate case, rejecting life in prison without the possibility ofparole and choosing the death penalty?” Answer: “No.” (64 RT 19982.) 51 eHOARAREALERNEsieberiana toe Een eeon nachaabnainanoapMREEaRONRianaHote “A vhost cnn SenetegseosRHtaaORrlttt rhodecaekeetekaberecommecmtronapctpembek Question 150: In a capital case, the factors in aggravation and mitigation upon whicha penalty decision mustrest are set forth in a law will be given to you by the judge. (64 RT 19983.) Can youset aside any preconceived notions you may have about the death penalty, and make any penalty decision in this case based uponthe lawasit is given by the judge? Answer: “Mytrue beliefs are not preconceived notions that can be set aside.” The prosecutor challengedthe prospective juror for cause under Witherspoon and Witt. Thetrial court sustained the challenge and dismissed the juror, concluding that he was“substantially impaired and would notbe able to follow his oath as a juror in this case.” (64 RT 19983.) Based on Prospective Juror C-67’s responses, the prosecutor challenged the prospective juror for cause under Witherspoon and Witt. Thetrial court sustained the challenge and dismissed the juror, concluding that he was “substantially impaired and would not be able to follow his oath as a juror in this case.” (64 RT 19983.) This ruling was erroneous, as Juror C-67’s responses do not support a finding that he was “substantially impair[ed]” thus, depriving appellant of his federal constitutional rights as described above, and necessitating reversal of the penalty judgment. Appellant contends that the trial court erred whenit granted the People’s challenge for cause of Prospective Juror C-67. As appellant will show, the granting of the challenge was contrary to clearly established federal law, set forth in a numberof United States Supreme Court decisions, precluding the prosecution from challenging a 52 juror for cause absent a showing that the juror holds views concerning the death penalty that prevent or substantially impair the performanceofher duties as a juror. In this case, Prospective Juror C-67 expressed a reservation about being in the unfamiliar situation of imposing a sentence of death against a fellow human being, but nevertheless, unequivocally stated he recognized there were cases where the death penalty was warranted and further he could imagine himself imposing such a punishment. Prospective Juror C-67 expressed viewsthat support his ability to perform the duties of a juror. He expressed no views about capital punishment that would have prevented or substantially impaired her ability to perform those duties. In total, Juror C-67’s responses expressed concern that he would havedifficulty voting for the death penalty, at least in part because he did not know howhe wouldreact in an unfamiliar situation in which the life of another person wasat stake. This position doesnot disqualify Prospective Juror C-67 noris it unusual because manyjurors experience such uncertainty. “Many ... veniremen may not know how they will react when faced with imposing the death sentence . . . (People v. Lewis (2008) 43 Cal.4th 415, 483.) Indeed, such uncertainty is a critical component of a morally defensible capital sentencing scheme; i.e., a clear understanding by penalty jurors ofthe grave responsibility confronting them. It is the gravity of this responsibility that helps ensure that the death penalty will be reserved for only the most heinous crimes; 1.e., the “worst ofthe worst.” (Caldwell v. Mississippi (1985) 472 U.S. 320, 332-333; People v. Carasi (2008) 44 Cal.4th 1263, 1316.) That Prospective Juror C-67 expressed such uncertainty 53 is in reality a fact rendering the juror highly qualified to be a penalty juror, rather than the reverse.’ While Prospective Juror C-67 expressed hesitancy in imposing a sentence ofdeath, he never stated he could not do so and his questionnaire answers and voir dire responsesfailed to expose substantial impairmentin his ability to perform his duties as a juror. As demonstrated below,this dismissal was improper and in violation of Witt and the foregoing legal principles. Therefore, appellant was denied his state and federally protected constitutional rights to due process anda jury trial, as well as his right to be free of cruel and unusual punishments and arbitrary imposition of a death sentence. 2. There is no evidence of substantial impairment Atthe outset, it is apparent that the Juror’s his answers did not indicate that juror C-67 would have been “substantially impair[ed]” in the performance ofhis duties as a juror. Underthe law in California, a penalty juror weighs the factors in mitigation against the factors in aggravation, and affording such moral valueto each factor as the juror deemsproper, to vote for the most appropriate penalty. That is, after engaging in 4 Defense counsel pointed this out in arguing against the prosecutor’s challenge of prospective juror C-67: “It’s clear that he [juror C-67] certainly is no great enthusiast for the death penalty and he recognizesthat it would be a majorcrisis of conscience to have to consider it. I don’t think that’s a substantial impairment. In fact, I think that’s what the law basically prefers.” (64 RT 19983, emphasis added.) 54 this weighing process,ifthe juror finds the aggravating factors to be so substantialin comparison to the mitigating factors that it warrants death instead ofa sentenceoflife without the possibility ofparole, the juroris to vote for the death penalty; otherwise, the juroris to vote for life without the possibility of parole. (CALJIC 8.88.) If a prospective juror, due to his or her moral or philosophical objections to the death penalty, would be unable to, or would have great difficulty in, voting for the death penalty even where such a vote is warranted, that juror is “substantially impaired” under Witt and Witherspoon. (People v. DePriest (2007) 42 Cal.4” 1, 22 imposing capital punishment even in an appropriate case].) Asstated, the fact that a juror, due to his or her philosophical objections to the death penalty, would have a higher threshold for finding an “appropriate case” for the death penalty in the first instance, or even would have great difficulty in finding an “appropriate case,”is not disqualifying, unless there is no realistic possibility that the juror could ever find the death penalty to be “appropriate” or “warranted.” Absentthis circumstance (and there is no evidenceofit in the present case, as demonstrated below), the prospective juror is not “substantially impaired”ifthe juror clearly indicates that he or she would vote for the death penalty, if he or she found it to be warranted in the case before it (an “appropriate case”), even taking into accountthe juror’s unusually high threshold for finding any case to be an “appropriate case.” People v. Stewart, supra, 33 Cal.4" at p. 447, citing People v. Kaurish supra, 52 Cal.3d 648.) 55 eneRNRetHORRSEAMMtnnowt SarateA (a) On the only occasion when Juror C-67 was squarely confronted with the question whether, in an appropriate case (thatis, a case in which he thought the death penalty was warranted), he would vote for the death penalty, he unequivocally stated that he would Therecord discloses the following questions propoundedto juror C-67, and the following answers obtained: Q: Doyou think the death penalty would ever be warranted in any kind of a case? A: Yes. Q: Doyouthink that it would be possible for you to vote for the death penalty in a given case without going into what that case might be? A: I can imaginethings horrible enough to get meto vote for the death penalty,. . (64 CT 19981-19982.) As a matter oflaw, nothing in the above responses offer any evidence of “substantial impairment” within the meaning of the Witt and Witherspoon cases and their progeny. (b) Nothing about the juror’s other responses suggest a contrary result because noneofthe court’s questions, and none of the juror’s answers, directly addressed the question of the juror’s possible impairment. Therefore, the juror’s responses did not disclose evidence of substantial impairment Juror C-67 was asked if he would always vote for one penalty or the other, without specifying which penalty he would vote for. The juror acknowledgedthat he had a lot ofreservations about the death penalty, without indicating that he would vote for one penalty or another in every case. The juror then stated: 56 A: I don’t know. I’ve neverhadto be in that situation before. (64 RT 19980.) Asindicated above, Juror C-67’s responses expressed concern that he would havedifficulty voting for the death penalty, not necessarily because of his philosophical views, but because he did not know how he wouldreact in an unfamiliar situation in whichthe life of another person wasat stake. This position is not disqualifying nor unusual because as noted many jurors experience such uncertainty. “Many ... veniremen may not know how they will react when faced with imposing the death sentence .. . (People v. Lewis (2008) 43 Cal.4" 415, 483.) Indeed, such uncertainty is a critical component ofa morally defensible capital sentencing scheme; i.e., a clear understanding by penalty jurors of the grave responsibility confronting them. It is the gravity of this responsibility that helps ensure that the death penalty will be reserved for only the most heinous crimes; i.e., the “worst ofthe worst.” (Caldwellv. Mississippi, supra, 472 U.S. at 332-333). That juror C-67 expressed such uncertainty is in reality a fact rendering the juror highly qualified to be a penalty juror, rather than the reverse.” In any case, inasmuch asthe juror’s response, on its face, 5 Defense counsel’s argument arguing against the prosecutor’s challenge of prospective juror C-67, merits emphasis here: “It’s clear that he [juror C-67] certainly is no great enthusiast for the death penalty and he recognizes that it would be a majorcrisis ofconscience to have to considerit. I don’t think that’s a substantial impairment. Infact, I think that’s what the law basically prefers. Ifhe had said at any point that I’m not going to dothis, I’m not going to follow the law,I’m not goingto listen to reason—but he hasnt said those things.” (64 RT 19983, emphasis added.) 57 ota nmnt eintightttyaaminatgiegbencages Tne emer tae tee GINA Sang ne dea mtggH RIORSGTAaIMEFOSSCNAAMASERL TTNZ did not reflect uncertainty which couldbeattributed to the juror’s views on the death penalty, and did not distinguish the juror from most other prospective penalty phase jurors, juror C-67 was not disqualified under Witt and Witherspoon. At worst, these answers were inconclusive on the issue of ‘substantial impairment” under Witt and Witherspoon. Thetrial court further pursued the issue withJuror C-67. The court asked the juror a question, fairly construed, as follows: Whetherthe juror could impose the death penalty ifthe crime involved a robbery during which someone, not necessarily the defendant, stabbed a victim more than once, andthat victim died. The jurorreplied that he did not know ifhe would always vote for the death penalty. (64 RT 19981.) Again, the juror’s response was inconclusive and did not address the issue of substantial impairment within the meaning of Witt and Witherspoon andcast no additional light on that issue. The aggravating circumstances the juror was asked to comment upon (robbery murder; victim stabbed more than once) was, in effect, nothing more than a “routine” felony murder. There was nothing about the circumstancesofthe crime described by the court that suggested it might represent “the worst of the worst” in the universe of first-degree murders. That being the case, the juror’s lack of certitude as to whether he could imposethe death penalty in that hypothetical offense is no evidence of impairment. Underthe facts given, mostifnot all penalty jurors, save most stridently infavor ofthe death penalty, would be unable or at least unlikely to impose the death penalty, or at least uncertain, as wasthis juror. 58 Apparently acknowledging the inconclusiveness ofthe response, the court, for the first time, squarely joined the issue of whether the juror could impose the death penalty if it were warranted. The juror without equivocation stated that he could. (64 RT 19981.) The juror then, on his own,identified the issue ofwhat it would take for him to find the death penalty to be warrantedin the first instance, suggesting a relative high threshold on the part ofthis juror for purposes of finding the death penalty to be warranted in a given case. (/d.) Once again, seemingly awarethat a mere high threshold for finding an “appropriate case”not to be disqualifying fact, but having established for the without equivocation that the juror would vote for the death penalty assuming an appropriate case could be presented, the court, for the first time, directly framed the issue ofwhether the juror could ever find an “appropriate case.” As noted in the previous subsection, the juror unequivocally indicated that he could: “Q: Do you think the death penalty would ever be warranted in any kind of a case? A: Yes.” (64 RT 19981.) Q: Doyou think that it would be possible for you to vote for the death penalty in a given case without going into what that case might be? A: I can imagine things horrible enough to get meto vote for the death penalty,I suppose , . . (64 CT 19981-19982.) In sum, when directly asked questions calculated to determine whether the juror could even find the death penalty to be warranted and if so, whether he would vote 59 coUNenerRDUehICiRteteS meetDene = Sn og MeabitIRASOOehRDNREAPat Po sehenpmolMManie forit, the juror clearly and unmistakably replied in the affirmative. That prior answers may have brought forth inconclusive responses does not suggest a contrary result. Inconclusive answers to questions notframed to determine impairment under Witt and Witherspoon do not amountto substantial evidence ofimpairment. (Stewart, supra, 33 Cal.3d at p. 447.) (c) Acontrary result suggested by the juror’s answers on the juror questionnaire Asregards question 149 on the jury questionnaire, the juror’s response, while perhaps counseling furtherclarification, is not by itself evidence of substantial impairment without a working definition of exactly what constitutes an “appropriate case.” For example, the juror may have assumedthat an “appropriate case”is one in which a judgment of death is to be imposed based on objective criteria requiring a threshold far less than that which the juror would himself apply, were the decision up to him.If so, the answer to Question 149 is not evidence of substantial impairment. (E.g., Peoplev. Stewart, supra, 33 Cal.4" at p. 447 [inconclusive written answer on questionnaire may merit further questioning butis not substantial evidence of impairment]; see also, People v. Kaurish, supra, 52 Cal.3d 699 [mere high threshold in willingness to find an appropriate case for the death penalty is not evidence of substantial impairment].) Asto question 150, this was a compound question to which the juror’s response may reasonably be construed as respondingto thefirst part ofthe question only; i.e., whether the juror could set aside his “preconceived notions” on the death 60 penalty. The juror obviously took umbrage at the wording ofthe questionnaire which he perceivedto trivialize his firmly-held beliefs. Nevertheless, the juror’s response was not only not disqualifying, it was not even evidence of impairment. Here,the juror stated that he could notset aside his “preconceived notions” becausehis true beliefs were not preconceived notions to be set aside. (64 RT 19983.) Onits face, this was nothing more than a statementofa firmly held philosophical opposition to the death penalty. This by itself, is not disqualifying. Indeed, firmly held beliefs opposing the death penalty are not disqualifying ifthe juror clearly indicates he or she can put aside those beliefs to the extent that he can follow the law as given by the judge. (Stewart, supra, 33 Cal.4" at p. 447; Kaurish, supra, 52 Cal.3d at p., 699.) The juror’s written questionnaire, on its face, did not respondto this, the second part ofthe question. Asstated, a juror’s philosophical opposition to the death penalty is not disqualifying. Ajuror harboring such opposition may nevertheless serve as a penalty phase juror. Ifhe does, it does not mean that he/she no longer harbors a philosophical opposition to the death penalty. It merely meansthat the juror can vote for the death penalty in an “appropriate case,” i.e., where the death penalty is warranted, notwithstanding his/her philosophical opposition to the death penalty. Ifthe juror clearly indicates that he can dothis, he is not impaired under Witt and Witherspoon. This is the essence ofthe requirement that the juror must “set aside”[his beliefs] in order to serve. Serving on a penalty jury does not require a juror to forswear his beliefs 61 or do to no longer be opposed to the death penalty; it merely required that the juror be able to fairly and impartially apply the law notwithstanding those beliefs. The juror’s written response to question 150, on its face, did not address this issue and therefore did not provide substantial evidence of “impairment” within the meaning of Witt and Witherspoon. (Stewart, supra, 33 Cal.4" at p. 447.) However, the juror’s responsesin the course of voir dire clearly and unmistakably did. When asked, the juror clearly and without hesitation stated (1) that there were cases in which he could find the death penalty to be warranted; and (2) he would vote to impose the death penalty in such a case. (64 RT 19981.) Thus, notwithstanding his philosophical beliefs, he could ignore, if not forswear, those beliefs to the extent necessary to fulfill his duties as a penalty juror. Thus, the juror’s written answers on the juror questionnaire were, at worst, inconclusive. As such they did not provide evidence, substantial or otherwise, of impairment under Witt and Witherspoon. (Stewart, at p. 447.) In sum, neither the answers on the written questionnaire nor the responses during voir dire provided substantial evidence of impairment. The written responses, on their face, are clearly insufficient as a matter of law, as demonstrated above. During follow-up voir dire, the juror indicated both the ability and willingness to find an “appropriate case” and the ability and willingness to vote for death in such a case. As to those responses which wereinconclusive, these did nothing more than express concerns that could have been expressed by virtually any juror with a relatively high threshold for 62 finding the death penalty warranted in a given case, or in somecases, by any juror, period. Neither category is disqualifying. The juror’s responses did nothing to distinguish himself from other jurors, or other “higher threshold”jurors (Stewart, at p. 447), who are not “substantially impaired” within the meaning of Witt and Witherspoon. Indeed, the answers given here do not evenrise to the level of ambiguity; they in fact suggest no “grounds” for disqualification other than the juror’s opposition to capital punishment, a rationale insufficient as a matter of law.° (d) The juror’s ability to follow the law wasrealistic and not merely a theoretical or abstract possibility Respondent presumably will attempt to argue that notwithstanding the juror’s answersto the effect that he could vote for the death penalty ifwarranted, the prosecution’s challenge was nevertheless properly granted because the juror (so the 6 Examples ofresponses that do distinguish qualified jurors from those whoare not, and which do create an ambiguity as to the jurors qualifications when considered with other responsesindicating an ability and willingness to follow the as given by the court, are far too numerous to present in complete detail; however, they include expressions of doubt or even ofinability as to whether the juror could impose the death penalty (People v. Martinez (2009) 47 Cal.4" 429; People v. Hill (1992) 3 Cal.4™ 959, 1005; Wainwright v. Witt, supra, at p.416; Darden v Wainwright (1986) 477 U.S. 168, 177; Uttechtv. Brown, infra, (2007) 551 U.S. 1, 18; strident or vituperative statements (the death penalty makeskillers of usall,” suggestions of a political agenda in opposition to the death penalty to the extent that the juror believes that jurors who would automatically vote against the death penalty in every case should be allowed to sit on penalty juries, among others. (Martinez, at pp. 429, 436-438.) The pointis, none ofthese, or their equivalent, is present here. As defense counsel succinctly, and correctly, stated: “Ifhe had said at any point, I’m not going to dothis, I’m not going to follow the law, I’m not going to listen to reason—buthe hasn’t said those things.” (64 RT 19983.) 63 argument would go) would only find the death penalty to be warranted in such a small percentage of cases that the chances ofhis finding such a case would be theoretical only, and notrealistic; thus, he would not give a fair hearing to the prosecutorin a capital case. (E.g., (See, People v. Hamilton (2009) 45 Cal.4” 891, 863.) Any such argument would be meritless because there was no evidence of this. To the contrary, such an argument would necessarily depend on the juror’s statement, preceded by a pause, “[I suppose] I can imagine things horrible enough to get me to vote for the death penalty ... (64 RT 19982-19983.) There is absolutely nothing aboutthis statement that a crime “horrible enough” warrant the death penalty, was a mere theoretical as opposedto realistic possibility, or that the juror would not give the prosecution fair opportunity to show that the crime in question was in fact, such a crime. (See, People v. Hamilton, supra, 45 Cal.4™ 891, 863.) Indeed, the juror’s statement, on its face, did nothing to distinguish this juror from all other prospective jurors. That is, all prospective must decide if they can imagine a crime horrible enough to warrant the death penalty. To somejurors, this might be a more difficult task than for other jurors. After all, the death penalty is intended to be reserved for the “worst ofthe worst” (i.e., most horrible) offenses, and somejurors possess a higher threshold than others for purposes of finding an “appropriate case.” Moreover, the juror’s hesitation so as to formulate what it might take to get him to vote for the death penalty in a given case (64 RT 19883),is an event that might reasonably be expected to occur during the voir dire ofany “higher threshold” juror (which C-67 probably was). Assumingthisis true, 64 and there is no articulable or rational basis for believing it is not, the juror’s response did not disqualify him under Witt and Witherspoon.’ This is readily seen from those cases in which the juror has given answers complying with Witt and Witherspoon but nevertheless found to be impaired within the meaning ofthose cases, based on the theory that there was norealistic possibility that the juror would ever find an “appropriate case” for the death penalty, the trial court was presented with tangible evidence supporting this conclusion; i.e., statements ofthe prospective juror providing clear and direct evidence his or her avermentthat he or she could find an “appropriate case,” in truth, merely described an a theoretical or abstract possibility and not a tangiblereality. For example, in People v. Martinez (2009) 47 Cal.4" 399, 428-431, a recent case in which this Court Examined the Witt and Witherspoon holdings in somedetail, a prospective juror stated that she could impose the death penalty, but the trial court was deemed to have properly upheld a challenge to her in view ofthe juror’s statements that it was realistic that she would impose the death penalty in a child molestation case. (/d., at p. 429.) Additionally, this Court repeatedly relied on the juror’s strident and even vituperative assessmentthat the death penalty “makes everyone a killer” and “makes 7 Even in People v. Abilez (2007) 41 Cal.4™ 472, 495, a case in which thejuror’s manylengthy pauses and attempts to avoid questions regarding the death penalty were cited in support ofthe prosecutor’s Witt challenge, the juror explicitly stated that he could not deliberate with the other penalty jurors based on hisreligious beliefs against capital punishment. 65 hetNeeAhEPNRietreeastin SEEDIeNH sate Pg to 8neetReetRRPRREAEMORERese eneaE es killers ofus all” in upholding the challenge, noting the “tension” between this statement and the juror’s averments that she could vote for the death penalty. (/d., at p. 431.) Additionally, in connection with another juror, this Court foundthatthetrial court was not boundbya prospective juror’s statements that she could vote for the death penalty, where the juror appearedto havea political agenda against the death penalty; believed that persons categorically opposed to the death penalty should be allowedtosit on penalty juries, and indicated that she would be willing to carry out her political agenda in the case before the court. (/d., at p. 436-437.) As to both ofthese prospective jurors, the trial court was deemedjustified in concluding that notwithstanding their averments that they could follow the law, the possibility that either would ever vote for the death penalty was only a theoretical one at best; and that neither would afford the prosecution at least a fair opportunity to at least persuade the juror to vote for the death penalty. (/d., at pp. at pp. 431, 437.) Importantly, in the only twocasesrelied cited by this Court in Martinez in support of its conclusion that there was norealistic possibility that the prospective jurors in the case before it would ever vote for the death penalty, the record provided tangible, articulable reasons (“evidence”) for drawing this conclusion. (Id., at p. 431.) In People v. Wharton (1991) 53 Cal.3d 522, 588, the prospective juror expressed skepticism that the District Attorney could present sufficient evidence to convince the juror to vote for the death penalty. In People v. Lancaster 2007) 41 Cal.4" 50, 80, the juror indicated there was only a “slim possibility’ he could vote for the death penalty. 66 In the present case, the answer provided by juror C-67 could apply to any Witt-qualified juror, who could “imagine a crime horrible enough to warrant the death penalty, I suppose .. .” The ruling granting the challenge was clearly erroneous. Appellant acknowledgesthatit is possible (although far from certain) that if the court had chosen to directly confront the juror with the question whetherhis ability to find an “appropriate case” was merely an unrealistic, merely theoretical possibility the juror may have provided someevidence of this. Or not. While this is a proper | formulation ofthe Witt/Witherspoon issue (Martinez, supra, at p. 432, citing Lancaster, supra, at p. 80, and People v. Mason (1991) 52 Cal.3d 909, 954), the court chose not to pursueit, notwithstanding defense counsel’s suggestion that the court could further explore the juror’s qualifications. Or not. The court, however, chose not to ask that question. Speculation as to what the juror might have said had he been askedthe appropriate question, is not evidence. (People v. Kunkin (1973) 9 Cal.3d 245, 250.) The record simply does not support the court’s ruling, and to the extent there is a deficiency in the record, it is the state, and not appellant, who must bear the adverse consequences ofthat, inasmuchas the prosecutor bore the burden ofproofto show “impairment” and the trial court bore responsibility for creating the record on review, over appellant’s objection. (People v. Stewart, supra, 33 Cal.4" at p. 446; Uttecht v. Brown, infra, 551 U.S. 1, 17-19.) (e) The court’s ruling may not be rescued or salvaged byresort to implied trial court evaluations ofjuror “demeanor.” 67 ot soresnoahaRATatianaNt Ce ne ee etm ape Heo mds ANAMARIECEN Ron opm sa beginvanee Nor maythe court’s ruling be rescued or salvaged by resort to impliedtrial court evaluations ofjuror “demeanor.” Appellant readily acknowledgesthatit is the trial court, not the reviewing court, that is in a position to view the demeanorofthe prospective juror when answering questions regarding his or her views on the death penalty; andthat the trial court’s conclusions regarding the state of mind ofthe juroris therefore entitled to considerable deference. (Martinez, at p. 425.) First, appellant observesthat the court’s ruling in this case was, explicitly, based on the juror’s responses (“what he [juror C-67] said” (64 RT 19881-19883)), none ofwhich amounted to any evidence of impairment, and not on juror C-67’s “demeanor.” Moreover, the judicial deference to the trial court’s ability to observe “demeanor”is not absolute; and appellant has found no case upholding a prosecutor’s Witt/Witherspoonchallenge based solely on the fact that the trial court was able to observe the prospective juror’s “demeanor.” Stated another way, “demeanor”is not a substitute for “evidence” but merely a mechanism for evaluating evidence. Thus, in every case in whichreliance is placed on observation of the juror’s “demeanor,” there exist on the record a statement or statements ofthe juror which on their face supports a finding of impairment (absentin the present case), whichthetrial court was required to evaluate for credibility, either (1) for purposes of determining whethersuch statements infact formeda basis for finding the juror impaired: or (2) for purposes ofresolving a conflict between such statements and other statements tending to 68 nsegtdonlitendiptabenetehertoeneeh {Ae | one Hi peppy Sinanatannertaameamtnsathereinimsitettes show that the juror is not or might not be impaired. (E.g., footnote 2, supra, and cases cited therein.) This is understandable; were it otherwise, were it otherwise, any trial court finding of “impairment” under Witherspoon could be sustained on appeal merely by deferring to thetrial court’s ability to observe the speaker, no matter how innocuousthe statements and regardless of any actual reliance on or attachmentofsignificance to the juror’s purported “demeanor.” Such a rule would effectively eviscerate the Witherspoon holding and would eliminate any need for a meaningful exercise of discretion by the trial court, inasmuch as any ruling would be subject to rubber-stamp approvalby the reviewing court. In another context (admission of “other acts” evidence to prove charged sexual offenses), it has been stated that an exercise of discretion must be effective and meaningful. (People v. Harris (1998) 60 Cal.App.4" 727, 737.) Recently, in Uttecht v. Brown (2007) 551 U.S. 1, our Supreme Court reaffirmed this principle in cases involving challenges under Witherspoon. Uttecht is a case upon which this Court has heavily relied for purposes of emphasizing the importance ofthe trial court’s ability to observe the demeanor of a prospective juror and the need to afford great deference to those observations. (See, Martinez, supra,at p. 426.) In Uttecht, the Supreme Court , indeed, emphasized the importance of a prospective juror’s demeanorand the deference attached to lower court rulings because of it. However, the Court was absolutely clear that such deference is not absolute, and 69 snponerEMMONSRENNer AEAERE Cs traiSineeneeitndaeatNabeGRAeNaRngsne that there must be specific and tangible indications that thejuror is infact impaired, apartfrom his or her demeanor, in orderfor the reviewing court to uphold a Witherspoon challenge. In Uttecht, the juror gave numerous confusing and conflicting responses on death penalty voir dire. For example, on his questionnaire he stated that he was in favor ofthe death penalty if it was proved beyond a shadow ofa doubt that if a person was kicked and would kill again. On death penalty voir dire, the prosecutor explainedthat the burden ofproof was proof beyond a reasonable doubt, not proof beyond and shadow of a doubt, and asked whether the juror understood that. The juror explained “it would have to be in my mind very obvious that the person would reoffend.” The juror was told that there wasnopossibility that the defendant would be released and was askedifthere was a time he could impose the death penalty, knowing that, and he replied “I would have to give that some thought.” At another time, he “believe[d] in the death penalty an believed in the death penalty in severe situations. (Uttecht, 551 U.S. 14.) The state challenged the juror for cause because the juror seemed confused as to whenthe death penalty could be imposed and seemedto think that the death penalty was only appropriate if there was a risk of release and recidivism. The defense counsel said “we have no objection.” Thetrial court then excused the juror. (/d.at p. 15.) The Supreme Court upheld the granting ofthe challenge. In doing so, the Court first noted that based on the juror’s responses alone, thetrial court could have 70 dismissed the juror, and the fact that it did that was entitled to deference becausethe trial court was able to observe the juror. Thetrial court also relied heavily on the fact that trial counsel failed to object to the juror’s excusal. As a result, it was clear that “everyonein the courtroom”believed that the court correctly found the juror to be impaired. Additionally, the defense failure to object caused the factual record on the juror’s qualifications to be limited. (/d., at pp. 17-19.) The Court in fact strongly expressed dismay over being hobbled in this way for purposes of exercising appellate review. Importantly, it did so after having reaffirmed the vitality of the Witt/Witherspoonrule. (Id.) From the holding of Uttecht, a numberoffacts are clear. First, while deference is due the observationsofthe prospective juror by the trial court (“demeanor”) this deference is not absolute. This is seen from the Court’s reaffirmance ofthe vitality of Witt/Witherspoon and the importance the Court attached to the exercise of meaningful appellate review of Witt/Witherspoon issues. Obviously, for Witherspoon to be viable and for appellate review to be meaningful, the record must contain tangible and affirmative evidence of impairmentin order for a finding of impairment to be upheld. And, indeed, in Uttecht, there was evidence which onits face justified a finding of impairmentwithout further examination ofthe juror (as there is in all cases upholding Witherspoon challenges). 8 71 Additionally, the failure ofthe defense to object to the excusal ofthe juror, served to magnify the significance ofthe element of “demeanor”in the case before the Court. First, because the defense attorney himselfapparently believed that juror’s demeanorwas notinconsistent with a finding ofimpairment; thus,thetrial court’s belief in this regard was probably justified. Second, It was necessary to attach significant weight to observations ofdemeanor because the defense’s acquiescence directly resulted in a sparse record for purposes ofdeveloping facts bearing on the juror’s qualifications. The clear implication is that where there are deficiencies in the record hindering appellate review, the party causing the deficiency must bear the brunt ofthe consequencesthereof. Uttechtis instructive on specific aspects ofthe present case, on multiple fronts. First, there must exist on the record, tangible and affirmative evidence (beyond indications that the juror is philosophically opposed to the death penalty and concerns commonto all such jurors) in order for a challenge under Witt and Witherspoon to be upheld. (See, Uttecht, 551 U.S. at p. 17].) Here, there was none. Any discussion of “demeanor”is thus irrelevant because there was no cognizable evidence of This is not to suggest that ajuror’s impairment need not be shown with “unmistakable clarity.” (Martinez, supra, 47 Cal.4" at p. 425.) Butit is to suggest that the cases upholding challenges under Witherspoon hare virtually unanimousin finding some factual basis for concluding that the juror is impaired (apart from mere philosophical opposition to the death penalty or concerns commonto jurors having such a “higher threshold”), beyond sole reliance on the juror’s “demeanor.” 72 “impairment”to evaluate and no conflict or ambiguity on thepoint to resolve based on observations of “demeanor.” Second, defense counsel here did not acquiescein the trial court’s evaluation ofjuror C-67. Thus, he did not provide evidence is support ofthe trial court’s finding of “impairment.” Such support from the defense was probably the most significant factor justifying the ruling in Utrecht, apart from the explicit statement of the juror expressing substantial impairment. Indeed, counsel’s acquiescence n Uttecht was factor affording enhanced significance to observations ofjuror demeanorin that case. (/d., at pp. 17-19.) In the present case, not only are both of these factors absent, but there are no factors demonstrating enhanced significance of such observations. (See, e.g., Martinez, supra, at pp. 429-431 [juror stated that the death penalty “makes everyone a killer” and “makeskillers of usall.”].) Unlike Uttecht, there is no indication that juror _ C-67’s “demeanor”was significant minor factor in the court’s ruling; as indicated above, the trial court, made its ruling based on the evidence before it (“what he said”) even though if that ruling was incorrect. While the hesitated before stating that he could in fact find an appropriate case for imposing the death penalty. (64 RT 19881-19983) this reaction does not distinguish C-67 from countless other “higher threshold”jurors. Thus, absent tangible evidence or indications of impairment, this fact is not only inconclusive (and thus, no evidence of substantial impairment), it is irrelevant. 73 ecthenge alaanieeanamespiiies thdetmatn Seas nee yh ac A oe kentHOSReRESISOTELEN HES meenaAes 8 The record heresets forth statements that merely expressed the fact that the juror had a higher than average threshold for finding an appropriate case for the death penalty; or, expressed concerns commonto virtually all prospective penalty jurors. Unlike Uttecht, 551 U.S.at p. 18, Darden v Wainwright, 477 U.S.at p. 172, Witt, 469 USS. 412, 416, Martinez, 47 Cal.4" at p. 429, Abilez, 411 Cal.4" at p. 495 (see, fn.3, supra), and, virtually every other case upholding a prosecution’s Witt/Witherspoon challenge, there is no statement which on its face would support a finding of impairment, which must be evaluated for credibility, or which creates a conflict with other evidence which must be resolved by means ofresort to observations of “demeanor.” Even as the Court in Uttecht acknowledged the importance of such observations in the case beforeit, it also acknowledged that these were likely unknown to the appellate court (at p, 17-18), and by its holding decried the need for them for purposesofappellate review and appears to have deemed them a poorfallback to a complete record. (/d.at 17-19.) 9 In Martinez, supra, 47 Cal.4" at p. 430, this Court strongly suggested that deference to the trial court’s ruling is necessary only to resolve conflicts that cannot be resolved otherwise on the face ofthe record, although it was not directly presented with this issue. In Martinez, the defendant claimed there was no needto deferto thetrial court’s ruling because there was no evidence ofequivocation on the part ofthe juror. This Court rejected the argument, although it did not reject the premise appellant presents here. Instead, it found (unlike the present case) that the juror’s answers, on their face, expressly demonstrated equivocation. 74 Finally, this is not a case in which the defense must bear the negative brunt of any deficiency in the record. Here,it is theoretically possible that had the court engaged in further questioning, as defense counsel suggested, he may have uncovered additional facts bearing on the juror’s qualifications. However, the court chose not to engage in such questioning notwithstanding defense counsel’s suggestionsthat it do so, even though it could easily have done so andin a relatively short period of time. This wasnota case in which “the defense [denied] the conscientioustrial judge an opportunity to explain his judgmentor correct any error. . [and] denied reviewing courts of further factual findings that would have helped to explain the trial court’s decision.. . .” Uttecht, at p. 18.) Unlike Uttecht, where the sparse record was the fault of defense counsel whothus bore the burden of that sparse record, any deficiencyin the record is the responsibility of the trial court. To the extent there were facts that could have been developedin aid ofthe court’s ruling that were not, that is the responsibility of the court; and the failure of the record to provide facts supporting the court’s ruling is simple judicial error. Stated another way, the record is what it is; the court curtailed development ofwhat might have been a more complete record, and ruled based on the recordit created. (64 RT 19983, court relies on “what [juror C-67] said.”.) The court was wrong. The record created and relied upon by the court, either showed nosubstantial impairment or did not address the issue (see, Stewart, supra, at p. 446 [prosecutor bears the burden of showing “substantial impairment” 75 within the meaning of Witt and Witherspoon]); did notdistinguish the juror from other jurors or other Witherspoon qualified “higher threshold”jurors, and offered no affirmative evidence of “substantial impairment”so as to render resort to the fallback position of “observation of demeanor”relevant, let alone necessary. Asargued above, appellant, respectfully, has found no case upholding a prosecution’s Witt/Witherspoon challenge based on such a record. Doing so in this case would fly in the face of virtually every aspect of the Uttrecht holding, which this Court has deemedto be highly persuasive and compelling.: It would effectively eviscerate the Witt/Witherspoon tule; it would effectively eliminate appellate review in such cases;it would eliminate the need for evidence of impairment now compelled by existing authority; it would render meaningless the concept of “exercise of discretion” in such cases, and it would punish the defendant for the court’s failure to fashion a more complete record, !° all in the name of observation of “demeanor” that may not even exist. C. Prejudice Theerrorin this case is not subject to review for “harmless error.” Reversal is automatic. (Gray v. Mississippi (1987) 481 U.S. 648, 659.) Accordingly, and for the above reasons, the judgment of death must be reversed in appellant’s case. 10 See, Uttrecht, 551 U.S.at pp. 18-19; see also, People v. Serrato (1965) 238 Cal.App.2d 112, 119 (defendant entitled to relief where state failed to provide adequate record on appeal, through no fault of the defendant.) 76 it APPELLANT’S ARREST WAS MADE WITHOUT PROBABLE CAUSE IN VIOLATION OF HIS CONSTITUTIONALRIGHTS; THEREFORE,ANY SUBSEQUENT STATEMENTSHE MADE WHILEIN CUSTODY WERE THE ILLEGAL FRUITS OF THATARREST AND THEIRADMISSION INTO EVIDENCE WASIN ERROR Appellant moved to suppress two statements given to police: one to the San Jose Police Department on January 29, 1991 and one to the Santa Clara Police Department on January 30, 1991." The arrest preceding these statements was made without probable cause andin violation of appellant’s constitutional rights; therefore, both ofthe statements obtained pursuant to the arrest were illegal fruits ofthat arrest and should have been excluded from trial. A. Summary of General Factual and Procedural History” In mid-to-late January of 1991, the SJPD was investigating a series of stun gun robberies. (1 RT 17.) Initially, co-defendants Silveria, Travis and Rackley were arrested on the evening ofJanuary 29, 1991. (3 RT 325-26.) Subsequently, on that same evening, appellant and co-defendant Jennings were arrested and transported to the SJPD. (5 RT 619-20.) At approximately 11:30pm on January 29, 1991, SJPD Officer George 11 The San Jose Police Department will hereinafter be referred to as the SJPD and the Santa Clara Police Departmentas the SCPD. 12 There are several related issues concerning the police conduct surrounding appellant’s January 29-30, 1991 arrest and statements. This Argument’s general factual and procedural history is applicable to ArgumentsIII and IV as well. 77 cPMLEbeneETREEuoteplas oi SE oe gata 8 ata soaps # pant OaMEADAMAEAMtOnmeccaNRC de la Rocha advised appellant of his rights, obtained a waiver, and questioned him regarding the San Jose stun gun robberies. (5 RT 583-84.) Appellant admitted driving the getawaycar in one, the Gavilan Bottle Shop robbery. (5 RT 585.) Later in the evening, SCPD officers arrived at the San Jose station in search of appellant and his co-defendants as part of their investigation into the Leewards killing. (5 RT 646-47.) At 4:00am on the morning ofJanuary 30, 1991, SCPD Sergeant Ted Keech interrogated appellant regarding Leewards. (6 RT 739.) Sergeant Keech did not re-advise appellant of his rights; instead, he merely attempted to confirm that appellant had been previously advised. (6 RT 740.) During the course ofthe interrogation, appellant admitted involvementin the Leewardskilling. (6 RT 746.) On January 14, 1994, appellantfiled a motion to suppress both his statement to the SJPD and his statement to the SCPD. (3 CT 785-87.) The thrust ofthe motion was threefold: (1) that the January 29, 1991, arrest of appellant was made without probable cause or warrantin violation of his constitutional rights, and thus any subsequent statements he made while in custody weretheillegal fruits of that arrest; (2) that appellant’s statements were obtained in violation ofMiranda insofar as that any advisementofrights, if in fact one was givenatall, was given improperly; and (3)that the statements obtained from appellant were not obtained voluntarily. (3 CT 786.) Appellant’s motion also incorporated by reference and joined with all the motions and accompanying authorities submitted by co-defendants Silveria, Travis, and Jennings. (3 CT 787.) 78 The prosecution opposed each of appellant’s arguments. (3 CT 822-881.) A suppression hearing was held, and on April 18, 1994, the court issuedits rulings, finding that there was probable causeto arrest appellant, that he was properly advised ofhis rights and waived them,andthat his confession was voluntary. (1-9 RT 1-960; 4 CT 984, 960-61.) The court made several supplementary findings andall ofthe co- defendants’ motions to suppress were denied. (4 CT 962, 987.) B. Specific Circumstances Surrounding Appellant’s Arrest By late January of 1991, the SJPD’s ongoing investigation into the stun gun robberies had revealed a surveillance videotape ofone ofthe robberies—the Quik Stop robbery—whichled to the positive identifications ofco-defendants Jennings and Rackley. (1 RT 17, 33, 41.) Then, at approximately 5:00pm on January 28, 1991, SJPD Officer John Boyles received an anonymous phonecall from a woman whosaid she had information about the stun gun robberies: namely, that the perpetrators were “Danny, John, Matt, and Chris,” and they were planning another robbery. (1 RT 44-46.) The anonymous woman did nottell Officer Boyles that the suspects had personally actually admitted anything to her. (1 RT 117.) The only thing she claimed to have seen firsthand was “Matt” playing with a stun gun in her house at some point. (1 RT 146.) While the anonymous woman told Officer Boyles that these men were going to commit another crime, this statement was based on nothing more than her own 79 speculation.’? (1 RT 116-17.) Onthe basis ofthe information provided by the anonymous woman,Officer Boyles put out a BOL (“be on the lookout”) for “Troy Rackley, Matthew Jennings and anybodyassociated with them with the names John, | Chris and Dan, Daniel.” (1 RT 47.)"* Later that same evening, the anonymous woman called back andthis time identified herself as “Cynthia.” (1 RT 48.) At this time, she provided the last names of Jennings for “Matt” and Silveria for “Danny,” as well as a suggestion that the group customarily drove a “red vehicle, possibly a Charger.” (1 RT 49-51.) “Cynthia” once again did not say how she came about any ofthis information, and she specifically refused to provide her last name or address to Officer Boyles. (1 RT 121-22.) Officer Boyles updated his earlier BOL with this new information. (1 RT 51.) “Cynthia”called one final time that night and spoke to another SJPD officer, Sergeant George McCall; that time, she stated that the subjects were going to pull another robbery that night and then they were going to leave town. (2 RT 223.) Once again, she provided no firsthand basis for her knowledge. (/d.) 13 The anonymous woman atfirst claimed that “they were going to do another job soon” because “they were all broke.” However, she later admitted that they had not said that they were going to do anotherjob but rather, she had only inferred it from the fact that they had tried to borrow money. 14 The last names ofRackley and Jennings were not supplied by the anonymous woman at that time; rather, Officer Boyles combinedhertip with the previously acquired identities of two ofthe perpetrators ofthe Quik Stop stun gun robbery. 80 Shortly thereafter, SJPD Officer Brian Hyland launched an investigation in an attempt to confirm the information “Cynthia” had provided. (3 RT 251.) He wasable to ascertain the addresses at which several of the suspects lived. (3 RT 252, 256, 259.) His investigation at these addresses revealed that co-defendant Jennings and appellant had been together earlier in the day and Jennings had packed a suitcase. (3 RT 252-55.) Officer Hyland also confirmed that appellant was friends with co-defendants Silveria, Travis and Rackley. (3 RT 256-58; 260-62.) However, he was unable to learn anything aboutthe information that “Cynthia” had provided regarding the group’s involvementin any past or future robberies. The next day, January 29, 1991, another informant Officer Hyland had developed during his investigation called the SJPD with a tip that would lead to the location and arrest of co-defendants Silveria, Travis and Rackley at the Oakridge Mall that evening. (3 RT 266-67.) Silveria then cooperated with police and led them to appellant and Jennings where, after ascertaining the identity ofJennings, both were also placed under arrest for the stun gun robberies. (3 RT 274, 285.) The arrest was madeat the direction of Officer Hyland, despite the fact that he did not himselfhear from any source that appellant was involved in robberies but rather “put some things together and believed that to be the case.” (RT 3-4 395, 439.) SJPD Officer Larry Esquivel testified at both the suppression hearing and the guilt phase of appellant’s trial as to the circumstances of appellant’s arrest. (5 RT 615-45; 75 RT 21452-57.) However, he wasnot the one that 81 tnSap ReaMSAURaUAEEIS Somnten reatertane team Ne Poe ne aine tranceSNRARARDMtongRap car mnotor stateenhRatan ©WETHEReeRenandabe op actually detained appellant; the officer that physically arrested appellant did not testify at any point during the proceedings. (5 RT 636-37.)° C. General Law on Probable Cause to Arrest and Anonymous Informants Probable cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudenceto entertain an honest and strong suspicion that a person is guilty of a crime. Beck v. Ohio (1964) 379 U.S. 89, 96; People v. Harris (1975) 15 Cal.3d 384, 389. There is no precise articulation ofthe meaning of probable cause;rather, it is a “practical, non-technical” conception that encompassesthe “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” I/linois v. Gates (1983) 462 U.S. 213, 231 (quoting Brinegar v. United States (1945) 338 U.S. 160, 176). Similarly, there is no exact formula for the determination ofprobable cause; each case must be decided on its own facts and “total atmosphere.” People v. Ingle (1960) 53 Cal.2d 407, 412-13. In somecases, probable cause mayexist solely on the basis of information obtained from others. Ker v. California (1963) 374 U.S. 23, 35-36; People v. Smith (1958) 50 Cal.2d 149, 151. The credibility of information received from a third-party informant must be weighed underthe “totality ofthe circumstances”in order to 15 This was either an Officer Albin or an Officer Vaneck, according to Officer Esquivel’s testimony. (5 RT 637.) 82 determine whether the information warrants a finding of probable cause. Gates, supra, 462 U.S.at p. 238; People v. Ramirez (1984) 162 Cal.App.3d 70, 73. This flexible totality of the circumstances test replaced a formerstrict two-prong standard; nevertheless, those prongs—theveracity ofthe informantandtheir basis of knowledge—remainthe closely intertwined andcrucial factors. Gates, supra, 462 U.S. at p. 238.’° Even when the informant’s identity is unknown, probable cause maystill exist. However, in such cases more care is required, because “[uJnlike a tip from a known informant whose reputation can be assessed and whocan be held responsible if her allegations turn out to be fabricated, ‘an anonymoustip alone seldom demonstrates the informant’s basis ofknowledgeor veracity.’” Florida v. JL. (2000) 529 U.S. 266, 270 (quoting Alabama v. White (1990) 496 U.S. 325, 329). Oneofthe situations where an anonymous tip may support a finding of probable cause is when the tip comes from a “citizen informant.” “A ‘citizen informant’ is a citizen whopurports to be the victim ofor to have been the witness ofa crime who is motivated by good citizenship and acts openly in aid of law enforcement. It is reasonable for police officers to act upon the reports of such an observerofcriminal activity. [Citations.] A ‘citizen informant’ is distinguished from a mere informer who gives a tip to law enforcementofficers that a person is engaged in criminal conduct. 16 For the formertest, see Aguilar v. Texas (1969) 378 U.S. 108 and Spinelli v. United States (1969) 393 U.S. 410. 83 [Citation.]” People v. Schulle (1975) 51 Cal.App.3d 809, 814-15 (emphasis added). A citizen informantis given special deference because, unlike many informants whoact in pursuit ofpecuniary or other personal gain, a citizen informant is someone who has been a “chance witness to or victim ofa crime.” People v. Ramey (1976) 16 Cal.3d 263, 268- 69. As a result, a citizen informant need not be further corroborated; such an informant is deemed presumptively reliable. Id. However, not all informers will qualify, and a designation of an informeras a citizen informant must be supported by facts showing the reliability required by this standard. People v. Smith (1976) 17 Cal.3d 845, 851. Statements of an anonymousuntested informantthat is not a citizen informant are not presumptively reliable, and therefore circumstances indicating veracity and basis ofknowledgesufficient to support a finding ofprobable cause must be shown by some other means. Generally, this requires that statements be “corroborated in essential respects by the facts, sources or circumstances,” supplying probative indications of criminal activity along the lines suggested by the informant. People v. Gotfried (2003) 107 Cal.App.4th 254, 263-64. To be corroborated in essential respects, the information being corroborated must be information that pertains to the alleged criminal activity itself. Id. Accuracy of information regarding the suspect generally (i.e. his clothes or personal appearance)is insufficient. People v. Costello (1988) 204 Cal.App.3d 431, 446. Courts must determine whether information received from an informant of unknown reliability is sufficiently corroborated to supply probable cause under the totality ofthe circumstances. Gates, supra, 462 US. at p. 238; Ramirez, supra, 162 84 Cal.App.3d at p. 73. In these situations, probable cause exists when corroboration from other sources of information provides a “substantial basis” for crediting the questioned information. Gates, supra, 462 U.Sat pp. 244-45; People v. Medina (1985) 165 Cal.App.3d 11, 18. On appeal, this Court accepts the trial court’s factual findings relating to the challengedarrest if substantially supported, but independently measuresthe facts as found bythe trier against the constitutional standard ofreasonableness. People v. Loewen (1983) 35 Cal.3d 117, 123. D. Appellant’s Arrest Was Unconstitutional When It Was Made Without Probable Cause’’ Appellant’s arrest, based solely on information received from “Cynthia,” was made without probable cause and thus wasillegal. The court ruled that there was sufficient probable cause from “Cynthia” to support the arrest, finding that “Cynthia” was a citizen informant and therefore presumptively reliable. (4 CT 984.) Further, the court found that even though citizen informant did not need to be corroborated, “Cynthia” had in fact been. (Id.) However, the court erred in both respects:first, when 17 It is not disputed that there was sufficient probable cause from another source (a videotape ofthe Quik Stop stun gun robbery) to arrest co-defendants Jennings and Rackley. Appellant was with Jenningsat the time ofhis arrest, and thus, the search of the vehicle in which they were traveling is not challenged. However, the SJPD’s arrest and transport of appellant to the station house was not supported by independent probable cause specific to appellant, and thus, his subsequent statements cannotstand. 85 oyeinseideSbnPri Atte i. Aug tE RR a sone re Nae OnanhagCRORENREAEREAERARCARSPAIeet He nether oo it found that “Cynthia” wasa citizen informant and second, whenit found that in the alternative, she was corroborated. Therefore, the court also erred in its conclusion that there was sufficient probable cause to support appellant’s arrest. “Cynthia” did not fulfill the requirements necessary to be deemeda citizen informant, and therefore, by definition, could not be assumed presumptively reliable. See Schulle, supra, 51 Cal.App.3d at pp. 814-15. She was not a victim of one of the stun gun robberies, nor did she claim to have witnessed any ofthem herself. As such, she was not an observerofcriminal activity and had no firsthand knowledge that appellant—or anyonein the group for that matter—hadperpetrated any crimes. Furthermore, there was no independentindication that she was motivated by good citizenship or acted openly in aid of law enforcement. If anything, her refusal to provide a last name or address made her motivations decidedly unclear. Becauseshedid notfit the definition of a citizen informant, the court erred in finding that “Cynthia” was such a person. Accordingly, the information she provided was not presumptively reliable insofar as to support a finding ofprobable cause onits own. Thepolice officers in appellant’s case were therefore required to corroborate the statements provided by “Cynthia” in “essential respects by the facts, sources or circumstances,” in orderto justify a finding ofprobable cause to arrest appellant. See Gotfried, supra, 107 Cal.App.4th at pp. 263-64. Underthetotality ofthe circumstances, the corroboration needed to supply a substantial basis for crediting the questioned information. See Ramirez, supra, 162 Cal.App.3d at p. 73; Medina, supra, 165 86 Yr esearchCReeaNNtinhESCMENSOOERAABaeSSLe te RigkIe QengepESSaee NLea Cal.App.3d at p. 18. To fulfill this standard, they were required to corroborate her statements regarding appellant’s past or future criminal activities, not merely facts about or characteristics of him generally. See Costello, supra, 204 Cal.App.3dat p. 446. “Cynthia” provided police officers with only a scant amount of information that was not sufficiently corroborated to meet the requirements of establishing probable cause. Initially, “Cynthia,” whoat that time refused to provide the police with her name, told the police that someone named “Chris” was one of four perpetrators of the stun gun robberies and that this group was going to “do another job.” (1 RT 44-46.) However, none ofthe perpetrators actually told “Cynthia” that they were involved in crime;rather, she speculated that it might be true because these men had tried to borrow money from her. (1 RT 116-17.) The only thing that she ostensibly witnessed firsthand was co- defendant Jennings playing with a stun gun in her house, a circumstance that did not in any way indicate appellant was involvedin the stun gun robberies. (1 RT 46.) By the time of her second phonecall to the police, she was able to provide last names for several of the suspects, but not for appellant. (1 RT 49-51.) At that time, she was also able to offer a somewhat fitting (though still not entirely accurate) description of appellant’s car, though she was notable to tie it to him or the robberies in any way. (Id.) It was only in her third phone call when she claimedthat the subjects were going to pull another robbery that night and then planned to leave town. (2 RT 223.) The only concrete information regarding appellant specifically that “Cynthia” provided was that 87 newtpmentiralimieatnoghinome sors Sano someonewith his first name was one of a group offriends and drove a certain kind of car. Officer Hyland’s attempt to corroborate the information supplied by “Cynthia” was cursory at best. Essentially all that he did was verify several addresses and confirm thatall the co-defendants were friends with each other. (3 RT 251-62.) There was no corroboration of anything that “Cynthia” had said regarding the group’s involvementin any robberies, past or future. One person that Officer Hyland spoke to did mention that co-defendant Jennings had packed a suitcase that day. (3 RT 252.) However, this one fact, in and ofitself, did not serve to corroborate the entire story “Cynthia” told about the group’s involvementin the robberies. At most, it served to corroborate the possibility that these men were leaving town—an action that they could have been taking for numerous non-criminal reasons. In sum, the information provided by “Cynthia” did not amount to probable cause for arrest. There were no hard facts from which the SJPD could havearrived at the conclusion that “Cynthia” was a citizen informant and therefore presumptively reliable. Norwas there sufficient independent information to corroborate her statements so as to make them sufficient to establish probable cause in the absence of any citizen informant status. Officer Hyland’s attempts to corroborate “Cynthia” were not successful. He corroborated the addresses, last names, and association of this group ofpeople, but was unable to corroborate anything about appellant’s involvementin any ofthe stun gun robberies specifically as required by the standard. 88 Therefore, underthe totality ofthe circumstances, there was no substantial basis for crediting the information supplied by “Cynthia.” Her statements were the only information that even remotely implicated appellant in any crimepriorto hisarrest. However, because she was neither a citizen informant nor sufficiently corroborated, she did not possess the necessary veracity or basis ofknowledge. Therefore, there was an insufficient basis for probable cause and her information cannotserve as the basis for appellant’s arrest. E. Appellant’s Subsequent Statements to Police Were the Fruit of the Illegal Arrest and Should Have Been Suppressed During his interrogations with both Officer de la Rocha ofthe SJPD and Sergeant Keech ofthe SCPD, appellant made several inculpatory statements. (See Arguments III and IV.) However, because the arrest itselfwas illegal, both the January 29, 1991 statement to Officer de la Rocha and the January 30, 1991 statement to Sergeant Keech should have been suppressedas theillegal fruits of that arrest. Whena defendantis arrested illegally and taken to a station house where a statement is obtained from him, that statement is considered to be an “indirect” result of the Fourth Amendmentviolation. New York v. Harris (1990) 495 U.S. 14, 18-19. Even if otherwise knowing, voluntary, and intelligent, these indirect results ofan illegal arrest should be suppressed whenthey bear a sufficiently close relationship to the underlying illegality. Id. This Court excludes statements of the victim of an illegal arrest whenit 89 Sh BSAAS MERty ALINEDbSRNNite pCO Seas we eae aea iN eocam annette aioe iNeR oem EO eet RB Se tae appears that the statements were induced or impelled by the unlawfulacts. People v. Stoner (1967) 65 Cal.2d 595, 598. The exclusion of such evidence is governed by what is known as the “fruit of the poisonoustree” doctrine. “Fruit” evidence is only admissible if the doctrine of inevitable discovery applies, the evidence was obtained by an independent source,orif the connection between the source of the taint and the evidence has beensufficiently attenuated. People v. Superior Court (Sosa) (1983) 145 Cal-App.3d 581, 587-88. In order for the governmentto prove there has been sufficient attenuation, they must show that the statement was obtained by not by exploitation ofthe illegality, but rather by means“sufficiently distinguishable to be purged ofthe primary taint.” Wong Sun v. United States (1963) 371 U.S. 471, 488. Whether there was attenuation is a question that must be analyzed based on the “totality of the circumstances.” Brownv.Illinois (1975) 422 U.S. 599, 603-04. The factors to be considered include the temporal proximity ofthe arrest to the statements, the nature of the Miranda warningsgiven, the intervening circumstances, and the “purpose and flagrancy of the official misconduct.” Id. In the instant case, both appellant’s statement to the SJPD and his subsequent statement to the SCPD borea sufficiently close relationship to the underlyingillegal arrest so as to require suppression. See Harris, supra, 495 U.S.at pp. 18-19. The People do not argue that the doctrine of inevitable discovery applies or that the statements were obtained by an independentsource. Therefore, the only question 90 becomes whether the connection between the source of the taint—theillegal arrest—and the statements was sufficiently attenuated. See Sosa, supra, 145 Cal-App.3d at pp. 587- 88. Upon consideration of the relevant factors in appellant’s case, there was insufficient attenuation of the taint to render the statements admissible in the face of the Fourth Amendmentviolation. Appellant was illegally arrested and immediately transported to the SJPD, where he was held in custody until Officer de la Rocha began his interrogation a mere 45 minutesafter the initial stop. (5 RT 583-84, 641.) As such, there was essentially no temporalbreak betweenthe illegal arrest and thefirst of his statements. Furthermore, due in large part to this short time lapse, there were no intervening circumstances of significance that could have given rise to an independent act of free will on the part of appellant. Though appellant’s statement to the SCPD followed his statement to the SJPD by a few hours, the lack of any further intervening circumstances rendersthat statementa fruit ofthe illegal arrest as well. See Brown, supra, 422 U.S.at p. 605. Underthe totality of the circumstances, appellant’s statements bore a close relationship to the underlyingillegality. His statements were obtained by exploitation of his illegal arrest and not by means“sufficiently distinguishable to be purged of the primary taint.” Therefore, both statements werefruits of appellant’s illegal arrest and should have been suppressed. 91 PhanatesceepecahibaNemaiemtchee AR ERE ERA crn (ETE aeSenseaaASRORFTINEEERoe F. Appellant Was Prejudiced by the Court’s Failure to Suppress Appellant’s Statements and the Judgment of Guilt Must Be Reversed Appellant was substantially prejudiced by the violation of his rights against illegal arrest, against self-incrimination, to due process of law andto a fair trial under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Appellant’s illegal arrest directly led to the unconstitutionally admitted statements that formed the most damaging evidence against him in his capital trial. An error of federal constitutional law bya trial court requires that the prosecution bear the burden on appeal of proving that the error was harmless behind a reasonable doubt. Chapmanv. California (1986) 386 U.S. 18, 24. Considering that appellant’s inculpatory statements contained explicit confessionsto both capital murder and robbery/burglary, the prosecution cannot meet this burden. This Court has observed that a confession is one of the most damaging kinds of evidence, “a kind of evidentiary bombshell which. shatters the defense.” People v. Neal (2003) 31 Cal.4th 63, 86. Therefore, the entire judgment must be reversed. 92 stainsgtaNNRABNBARA AR eGo shyMegeAaAREa it APPELLANT’S STATEMENT TO SERGEANT KEECH WAS OBTAINED WITHOUT PROPER RE-ADVISEMENT OF MIRANDAIN VIOLATION OF HIS CONSTITUTIONAL RIGHTS; THEREFORE ITS ADMISSION INTO EVIDENCE WASIN ERROR Appellant moved to suppress his January 30, 1991 statement to the SCPD."® Several hours after appellant’s arrest and interrogation by the SJPD for the stun gun robberies, he confessed his involvementin the Leewardskilling to Sergeant Keech of the SCPD.'? However, Sergeant Keech failed to properly re-advise appellantofhis rights as required by Miranda. Asa result, the statement was taken in violation of . appellant’s constitutional rights and should have been excluded from trial. A. Specific Circumstances Surrounding the Failure of Sergeant Keech to Properly Re-Advise Appellantof his Miranda Rights Appellant was transported to the SJPD for questioning solely regarding the stun ~ gun robberies. (See ArgumentII.) At approximately 11:30pm on the night ofJanuary | 29, 1991, SJPD Officer de la Rocha advised appellant of his rights, obtained a waiver, and then questioned him regarding these robberies. (5 RT 583-84.) Duringthis 18 Assuming, arguendo, that there was sufficient probable cause to arrest appellant, then appellant concedesthat his statement to SJPD Officer de la Rocha would stand onits own. However, his statement to SCPD Sergeant Keechstill suffers from several constitutional defects, including Sergeant Keech’sfailure to properly re-advise appellant of his Mirandarights. 19 For details regarding the circumstancesofappellant’s illegal arrest, see Argument Il. 93 sewapminteameietinaen nin’ tecsis BeteSIN ge Ee MettsmEAMDORSSERRSORDPNENRANAaNrngBod _ interrogation, appellant admitted to driving the getaway car in the Gavilan Bottle Shop robbery. (5 RT 585.) However, later on that same evening, shortly after midnight on January 30, 1991, several SCPD officers also arrived at the SJPD station as part oftheir investigation into the Leewardskilling. (5 RT 646-47.) The environmentand circumstances surrounding appellant’s time at the station were out of the ordinary. Although SJPD Officer de la Rocha interrogated appellant about the stun gun robberies, he was not formally assigned to that investigation. (5 RT 595.) The unit investigating these robberies was shorthanded, so Officer de la Rocha was broughtin to help by conducting the interrogations of appellant and co-defendant Jennings. (/d.) In fact, the scene that night at the SJPD was downright disorganized and confusion aboundedat the station amongst the various agencies. (5 RT 589.) In the midst of this, SCPD Sergeant Keech began to interrogate appellant regarding the Leewardskilling. (6 RT 739.) His interrogation began at approximately 4:00am on January 30, 1991, more then four hours after SJPD Officer de la Rocha had interrogated appellant about the stun gun robberies. (Id.) Sergeant Keech acknowledged appellant’s prior SJPD interrogation andhis prior advisement ofMiranda warnings, but he did vot re-advise appellant of those rights as they related to the 20 Officer de la Rocha agreed that there was “confusion around the police department with various agencies.” (5 RT 589.) Officer James Werkema, another SJPD officer who participated in the arrest of appellant, reported that the SCPD’s arrival was “kind of a surprise,” when askedif it was “one of the more orderly evenings”at the station. (4 RT 530.) 94 interrogation regarding the Leewardskilling. (CT Supp. 2 1 2-4.) In fact, when asked if he was willing to talk, appellant indicated that he didn’t have anything to say about Leewards by responding, “If I knew anything, I’d let you know.” (CT Supp. 2 1 4.) After this initial exchange, Sergeant Keech dropped the subject ofany crimes and asked appellant logistical questions about his address and phone number. (Id.) Then, Sergeant Keech switched gears and again attempted to reconfirm appellant’s previous waiveras it related to the stun gun robberies, though sti// without any actualre- advisement as to the new crime. (Id.) Subsequently, during the course of the interview, appellant made inculpatory statements, admitting involvementin the Leewards killing. (6 RT 746.) At the conclusion of the interview, Sergeant Keech again acknowledged appellant’s waiver in the prior interrogation butstill did nothing to let appellant know that the samerights that were given to him by SJPD Officer de la Rocha should have been applied to the SCPD interrogation regarding the Leewards killing. (CT Supp. 2 | 56-57.) Sergeant Keech was the lead SCPD officer working the Leewardsinvestigation and the one who conductedthe interrogations ofall four co-defendants presentat the station. (5 RT 658-62.) Co-defendant Jennings was interrogated after appellant; however, Sergeant Keech quickly discovered that Jennings had not waived his rights during his SJPD interrogation and that he had in fact chosen to invokehis right to counsel. (6 RT 761-62.) At that point, Sergeant Keech promptly re-advised co- 95 defendant Jenningsofhis rights and only then proceeded with the interrogation regarding the Leewards killing. (6 RT 763.) The interrogations of co-defendants Silveria and Travis proceeded without incident. B. General Law Regarding Re-Advisement ofMiranda Rights The Fifth Amendmentguarantees that a statement made by a criminal suspect during police interrogation shall be admissible at trial only if the suspect was informed of important constitutional rights and given the opportunity to knowingly and voluntarily waive those rights before being interrogated about suspected wrongdoing. Miranda v. Arizona (1966) 384 U.S. 436, 478-79. The circumstances ofthe confession must show both that waiver was voluntary andthatit was made with full awareness of both the rights and the consequences ofthe waiver. Moran v. Burbine (1986) 475 US. 412, 421. This Court repeatedly has held that re-advisement ofMiranda warnings is not required before each custodial interrogation. See, e.g., People v. Smith (2007) 40 Cal.4th 483, 504; People v. Mickle (1991) 54 Cal.3d 140, 170. One warningwill suffice, so long as the “subsequentinterrogation is ‘reasonably contemporaneous’ with the prior knowing and intelligent waiver.” Mickle, supra, 54 Cal.3d at p. 170. The term “reasonably contemporaneous” has avoided precise definition; rather, the question of whether the subsequent interrogation is “reasonably contemporaneous”or requiresre- advisement must be analyzed under a “totality of the circumstances”test. Id. 96 In determining whetherthe totality of the circumstances indicatesthat the warning was “reasonably contemporaneous,” the key question is whether the Miranda warning “sufficiently informs a defendant of his constitutional rights so that he has an understanding of these rights during subsequent interrogations.” People v. Brockman (1969) 2 Cal.App.3d 1002, 1006. Several established factors guide judgmentofthis issue, including “the amount oftime that has passed since the waiver, any change in the identity of the interrogatoror the location of the interview,anyofficial reminder of the prior advisement, the suspect’s sophistication or past experience with law enforcement, and any indicia that he subjectively understands and waives his rights.” Mickle, supra, 54 Cal.3d at p. 170. California courts have repeatedly addressed the question ofwhen re-advisement is required, with varying results. The first factor analyzed is often the amountoftime that has passed between waiver andinterrogation. At one end ofthe spectrum, a mere fifteen minute time lapse was foundto be clearly “reasonably contemporaneous.” People v. Meneley (1972) 29 Cal.App.3d 41, 58 (overruled on other grounds). At the other end, a six week time lapse was found not to be “reasonably contemporaneous,” even with areminder. People v. Bennett (1976) 58 Cal.App.3d 230, 238-39. However, as would be expected, most cases fall somewhere in between these two extremes and further analysis is required; this is the point at which the other factors enumerated in cases such as Mickle, supra, comeinto play. 97 ROUGEEnErsinntRS RSPeony INE Rake Sat : Ft oP ae mbaneatRABOOEDIRAD8RsSeemabeete Hl AERC IMMARGPameaeeaABUSERPo Because each case involves a balanceoffactors, courts have generally enumerated the reasons that contributed to their findings that re-advisement was or was not required. For example, in Smith, supra, the second interrogation occurred approximately twelve hours after the first interrogation ended. However, the defendant remained in custody in the interim, the same officers conducted both interrogations in the sameoffice, the defendant was asked whether he wouldlike to hear his rights again (he declined), and the defendant was quite familiar with the criminal justice system; thus, re-advisement was not required. 40 Cal.4th at pp. 504-05. Similarly, in Mickle, supra, te-advisement was unnecessary even though 36 hours had elapsed between interrogations because the defendant was still in custody, was interviewed by the same interrogators, was reminded ofhis prior waiver, was familiar with the justice system, and there was nothing to indicate he was mentally impaired or otherwise incapable of remembering the prior advisement. 54 Cal.3d at p. 171. See also People v. Stallworth (2008) 164 Cal.App.4th 1079, 1089-90 (16-hour break acceptable when defendant remained in custody, the interrogation was conducted in the same location and by one of the sameofficers, and defendant acknowledgedthat his rights had been read to him the previous day). Police conduct also appears to be relevant consideration when assessing the totality of the circumstances of a subsequentinterrogation. Any misconduct by the police in reinstituting the interrogation must be considered. See People v. Riva (2003) 112 Cal.App.4th 981, 993-94. Officers that took turns interrogating a defendant did not 98 alter the “reasonably contemporaneous”nature ofthe subsequent interrogation, when their work was part of an ongoing and cooperative process. People v. Lewis (2001) 26 Cal.4th 334, 387. However, ifthe person conducting the second interview is not readily identifiable as an agent ofthe entity that originally gave the Miranda warnings, it would be “more encumbent[sic] upon the interviewer to readvise a defendant of his Miranda rights.” People v. Quirk (1982) 129 Cal.App.3d 618, 630. Furthermore, the fact that a defendantinitiates the second interrogation is a factor that weighs in favor of finding no re-advisementis necessary. Id. at pp. 627-28.” To what extent the presence of two different police agencies investigating two different crimesaffects the calculus is an open question. However, different proceedings and different subject matters have required re-advisement. In one case, a fresh admonition was required when the prior admonition was given in the context of a proceeding different from that to which the questioned interrogation relates. People v. Garcia (1969) 268 Cal.App.2d 712, 714. In Garcia, the two proceedings were not both criminal investigations and did relate to the same conduct; however, the proposition that two different and unrelated proceedings might require two separate warnings stands. Id. Similarly, in Quirk, supra, the fact that the two interrogations were in two different 21 Quirk distinguishedits situation from other cases of similar time lapses wherere- advisement was not necessary because defendants in those cases hadre-initiated discussions themselves. See People v. Brockman (1969) 2 Cal.App.3d 1002; People v. Booker (1977) 69 Cal.App.3d 654; and People v. McFadden (1970) 4 Cal.App.3d 672. 99 Teen ote RMMSReRiymacnn AOR inn Tset Rath at nts 8 AAS toe caeeRePREDIC Mead pin Renee Fe ee matsem etnpremeeea2aaberiTolerate pons oe Se eaTeenteeASalcedoone contexts and by two different agencies (one a standard police interrogation and one an interview with a government psychiatrist) weighed heavily in the court’s finding that re- advisement was required. 129 Cal.App.3d at p. 628. ’ In reviewing Miranda issues on appeal, this Court accepts the trial court's resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determines from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained. Peaple v. Cunningham (2001) 25 Cal.4th 926, 992. C. Appellant’s Statement to Sergeant Keech was Obtained in Violation of Miranda Sergeant Keech failed to properly re-advise appellant of his rights before interrogating him regarding the LeeWardskilling; thus, the statement Sergeant Keech obtained was in violation ofMiranda and should have been suppressed.” The court ruled that, under the circumstances, Sergeant Keech did not need to re-advise appellant — before interrogating him regarding a different crime. (4 CT 961.) However, the court erred in this conclusion. 22 Appellant acknowledges that he was properly advised of his Miranda rights by SJPD Officer Boyles and he chose to waive those rights. However, that does not necessarily mean that his subsequent interrogation by the SCPD was coveredbythat same waiver. 100 Whetheror not Sergeant Keech was required to re-advise appellant of his Miranda rights prior to interrogating him about the LeeWards killing is a question that must be analyzed underthe totality of the circumstances. See Mickle, supra, 54 Cal.3d at p. 170. Appellant’s case falls squarely between the extremes oftime lapses for which the necessity ofre-advisement would be clear. Thus, the analysis of his case requires consideration ofmore of the relevant factors. Admittedly, the fact that appellant remained in the SJPD station during the interval between interrogations is a fact that argues against re-advisement, as is the fact that Sergeant Keechat least cursorily reminded appellant of his prior waiver. However, no one factor is dispositive underthe totality ofthe circumstances test. The change in identity ofthe interrogator is a recognized variable that argues in favor ofre-advisement, as is appellant’s lack ofexperience with law enforcement.” In addition, appellant’s case presents a circumstance previously unaddressed by this Court—namely, the presence of two different police departments investigating two different crimes—that tends to argue in favor ofre-advisement. Appellant is not comparable to the defendants in Mickle and Smith, both of ,whom were veterans ofthe criminal justice system and were interrogated by the same officers regarding the same crimes. See Mickle, supra, 54 Cal.3d at p. 171; Smith, 23 Appellant had an “insignificant record of criminal conduct,” never having been convicted ofa felony or served anyjail time. (5 CT1488, 1493, 1494-96.) 101 2 tee snahatrldagNntetniaDUtirnRitnnRNSEMAOMEEaR SARAoenae AE ORE ae nieanemGeetha ang. eR Cindoante «ae . Sktrae picetaperFANEdeanIO. supra, 40 Cal.4th at pp. 504-05. In fact, appellant was in a situation more similar to that ofthe defendant in Quirk. See Quirk, supra, 129 Cal.App.3d at p. 630. Like in that case, it was clear that Sergeant Keech was from a different agency from the person to who appellant had waived his rights; thus, there was at least some onus on Sergeant Keechto clarify the situation through re-advisement. Id. Similarly arguing in favor of re-advisementon the basis ofpolice conduct, appellant was not the oneto initiate the secondinterrogation. Id, at pp. 628-29. Most importantly to appellant’s case, the two interrogations were conducted by two different police departments investigating twe different crimes. It was absolutely clear that the interrogations were about two different things. (5 RT 594.) In fact, the SJPD withdrew from questioning appellant and his co-defendants as soon as they learned that the SCPD was on the way in recognition ofthe different and more serious nature ofthe LeeWards killing investigation. (5 RT 605.)” Therefore, appellant’s situation raises a narrow issue previously unaddressed by this Court. However, previous cases do inform the proper course of action. The fact that a subsequent interrogation was part of a different proceeding has required re- advisement. See Garcia, supra, 268 Cal.App.2d at p. 714. Similarly, the fact that a 24 Officer de la Rocha was clear about this, when he said: “Well, a homicide takes priority over an armed robbery in the sensitivity ofthe investigation and it became obvious to meat that point and to the other investigators that we should stop our interviews pending Santa Clara P.D.’s arrival.” (5 RT 605.) 102 subsequent interrogation was performed by a different agency in a completely different context also weighed heavily for re-advisement. See Quirk, supra, 129 Cal.App.3d at p. 628. In appellant’s case, his subsequent interrogation involved both a different proceeding and a different interrogator; thus, it can be inferred that re-advisement was required. In fact, Sergeant Keech’s actions with one of appellant’s co-defendants belied his belief that the SCPD investigation was a completely separate proceeding, requiring re- advisement. Hours after Sergeant Keech interrogated appellant, he realized that co- defendant Jennings had not waived his rights when they were given to him by SJPD Officer de la Rocha regarding the stun gun robberies. (6 RT 761-62.) As a result, Sergeant Keech promptly re-advised him and interrogated him regarding the LeeWards killing—a decision that was upheld bythe trial court. (6 RT 763.) If Sergeant Keech had not believed the SCPDinvestigation to be a completely separate proceeding, re- advisement would not have been sufficient to overcome Jennings’ previous waiver; Sergeant Keech would simply have been barred from questioning him further. He necessarily made a determination that Jennings’s invocation of rights relatedonly to the SJPD investigation and that thus, ifJennings were read his rights anew in the completely unrelated investigation ofthe LeeWards killing, he could then be questioned. Sergeant Keech should have known in appellant’s case, as he did with Jennings, that his subsequent interrogation was in relation to a completely different crime and constitutionally required that appellant be re-advised. 103 1. snAERtNenetanitanRRuseinOnnfetdtactaariimatsitet5 okt coe ane onRaRetitendreemitteeSHNNCA AtaiutoA wee StacateredcrmenactahaNRCerMMOSPnesk A eum unl v nthaiancneheortsddhaememesionnapebteantnseeeperst When Sergeant Keech arrived, he tap-danced around properly re-advising appellant of his rights before beginning his interrogation but did not ever actually do so. Because ofthis, appellant was not made aware before his subsequentinterrogation that his rights were still applicable despite the drastic change in circumstances. There was no practical reason not to re-advise appellant ofhis rights other than to induce a confession. An after-the-fact acknowledgmentis not enough to rectify the problem that a lack ofre-advisement creates, and even at the end ofthe interrogation, Sergeant Keech’s “reading”ofrights was not full and proper, especially given the difference of penalty exposure between a burglary/robbery charge in which appellant was only peripherally involved and a first-degree murder charge with special circumstances. Thus, upon examiningthetotality ofthe circumstances, the SCPD’s interrogation ofappellant was not “reasonably contemporaneous” with the prior waiver; therefore, Sergeant Keech was required to re-advise appellant ofhis Miranda rights before interrogating him regarding the LeeWardskilling.” D. Appellant Was Prejudiced by the Court’s Failure to Suppress Appellant’s Statement and the Judgment of Guilt Must be Reversed 25 Recent authority such as Berghuis v. Tompkins (2010) 130 8.Ct. 2250, 2261-2262) does not affect the present case. Berghuis simply held that an “implicit” waiver may satisfy the Miranda requirementif it is clear that the defendant understood his rights and engaged in a course of conduct indicating a waiver. (/d.) The formulation set forth in cases such as Stallworth, supra, are directed to determining whether the defendant understoodhis rights so as to permit questioning without a re-advisement. (/d., at pp. 1090-1091.) 104 Appellant was substantially prejudiced by the violation of his rights against self-incrimination, to due process of law, to a fair trial and to a reliable guilt phase determination under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Appellant’s unconstitutionally admitted statements were the most damaging evidence against him in his capital trial. An error of federal constitutional law by a trial court requires that the prosecution bear the burden on appealofproving that the error was harmless behind a reasonable doubt. Chapmanv. California (1986) 386 U.S. 18, 24. Considering that appellant’s inculpatory statements contained explicit confessions to both capital murder and robbery/burglary, the prosecution cannot meet this burden. (See, People v. Neal, supra, 31 Cal.4" at p. 86.) Therefore, the entire judgment must be reversed. 105 eeee IV APPELLANT’S STATEMENTTO SERGEANT KEECH WAS INVOLUNTARYIN THAT IT WAS THE PRODUCT OF COERCION THAT OVERBORE APPELLANT’S FREE WILLIN VIOLATION OFHIS CONSTITUTIONAL RIGHTS; THEREFORE ITS ADMISSION INTO EVIDENCE WASIN ERROR Appellant moved to suppress his January 30, 1991 statement to Sergeant Keech ofthe SCPD. Appellant’s arrest was illegal and he was improperly questioned by Sergeant Keech without re-advisement ofhis Miranda rights. (See Arguments II and HI.) However, in addition, appellant’s statement to Sergeant Keech was itself the product of impermissible coercion and thus involuntary, in violation ofappellant’s constitutional rights. This provides yet a third basis for the suppression ofappellant’s statement and thus, the statement should have been excludedfrom trial.”° A. Specific Circumstances Surrounding the Involuntary Nature of Appellant’s Statement to Sergeant Keech After Sergeant Keech’s failure to re-advise appellant of his rights, the topic of interrogation eventually turned to appellant’s arrest; at this time appellant reiterated his involvementin the Gavilan Bottle Shop robbery. (CT Supp. 2 1 12-13.) Immediately thereafter, and in response to appellant’s denial of even being at Leewards the previous 26 Aswas the case in ArgumentIII, assuming, arguendo, that there was sufficient probable causeto arrest appellant, then appellant concedes that his statement to SJPD Officer de la Rocha would stand on its own. However, his statement to SCPD Sergeant Keechstill suffers from several constitutional defects, including the fact that it was obtained involuntarily. 106 night, Sergeant Keech,for thefirst time since his introduction, mentioned the Leewards killing. (CT Supp. 2 1 13-14.) Whenappellant denied his presence, Sergeant Keech badgered appellant and expressed disbelief. (CT Supp. 2 1 14.) Sergeant Keech then laid out an extremely detailed version including times and dialogue ofhow he believed the crime happened, all the while inserting appellant into the narrative in an accusatory manner. (CT Supp. 2 1 14-16.) After this, he berated appellant and enticed him to confess once again: Keech: Now,that’s the story I’m gonnatell the jury and I got somebody, and I got evidence. . .. And it’s gonna getlaid on you becausea lot ofthe information we got has already been laid on you. Now, you got the chanceright nowto give us, out front, right up front, what your side is. You don’t take this chance right now, you may never get it again. And ifyou don’t think I can’t prove this case, ifyou don t think I cant Sryyou, you're sadly mistaken, Chris. Now don’tlet these guys lay it all on you ‘cause that’s what’s happening. You get a chance to lay some back and say exactly what happened. Whose idea was it? (CT Supp. 2 1 16, emphasis added.) These bullying tactics were more than appellant could handle, and in the face of being told he could be “fried,” he began to confess, initially admitting only to being at Leewards with his friends that night. (CT Supp. 2 1 17.) However, as the interrogation progressed, Sergeant Keech continued to put pressure on appellant by confronting him with untrue information as well as incriminating information gleaned from co- defendants. (CT Supp. 2 1 24, 26.) Increasingly, through techniques such as these, Sergeant Keech forced appellant to admit to more and more details of the crime. (CT Supp. 2 | 17-33.) At one point, Sergeant Keech even referenced what appellant should do to best position himself for trial: 107 Keech: [Y]ou know,at least if you’re up front and it comesout on paperthat you’re up front, okay? [sic] Because talking in circles like this and playing games with us when we know exactly what you did in there, don’t look good. You’re insulting me. You’re insulting my partner because we know what happened in there. And if a judge and jury heard this, you’d be insulting them, too. (CT Supp. 2 1 32.) Finally, towards the end ofthe interview, appellant admitted full participation in the killing. (CT Supp. 2 1 44.) He did so, after long resistance, in response to Sergeant Keech’simplied suggestions, finally acknowledging that he meant to cut, but notkill, the victim. (/d.) Atthe close of the interview, Sergeant Keech made a veiled attempt to get appellant to acknowledge that he had not been coerced in any way into admitting his involvement. (CT Supp. 2 1 57.) When appellant indicated he did not understand the meaning ofcoerce, Sergeant Keech provided him with a very limiting definition, explaining that coerce means the samethingas “threaten.” (/d.) To this, appellant acknowledged not being threatened. (Id.)”’ ” The following exchange was had: Keech: Did we make you any promises? Appellant: No. Keech: Did wecoerce you in any way? Appellant: What does that mean? Keech: Did wethreaten you? Appellant: [Laughs] No. (CT Supp. 2 1 57.) 108 B. General Law Regarding Voluntariness “It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole orin part, upon an involuntary confession, without regard for the truth or falsity of the confession [Citation.], and even though there is ample evidence aside from the confession to support the conviction. {Citations.]” Jackson v. Denno (1964) 378 U.S. 368, 376. A confession is considered voluntary “if and only if, it was, in fact, voluntarily made . . . [A] confession obtained by compulsion must be excluded whatever may have been the character ofthe compulsion.” Miranda v. Arizona (1966) 384 U.S. 436, 462 (quoting Ziang Sung Wanv. United States (1924) 266 U.S.1, 3-4). A confession must “not be extracted by any sort ofthreats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion ofany improperinfluence.” Malloy v. Hogan, 378 U.S. 1, 7 (1964) (quoting Bram v. United States (1897) 168 U.S. 532, 542-43) (emphasis added). “The use in a criminal prosecution of a confession, admission or statement which is obtained by force, fear, promise of immunity or reward is a denial ofthe state and federal constitutional guarantees of due process of law.” People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483; see also Malloy, supra, 378 U.S. at p. 7. To that end, a confession is considered coerced if the defendant’s will has been overborne and that therefore, the statement was “not the product of [a defendant’s] rational intellect and free will.” Blackburn v. Alabama(1960) 361 U.S. 199, 208; People v. Sanchez (1969) 70 Cal.2d 562, 572. Put 109 another way, in determining whether a confession was voluntary, the question is whether the choice to confess was “essentially free.” Schneckcloth v. Bustamonte (1973) 412 US. 218, 225; People v. Massie (1998) 19 Cal.4th 550, 576. In making this determination ofvoluntariness, the court must look at “all of the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Schneckcloth, supra, 412 U.S. at p. 226; In re Shawn D. (1993) 20 Cal.App.4th 200, 208-09. Voluntariness does not turn on any onefactor, but on is judged underthe “totality of the circumstances.” Withrow v. Williams (1993) 507 U.S. 680, 688-89. Amongthe things to be consideredare: “the crucial element ofpolice coercion; the length of the interrogation; its location; its continuity; the defendant’s maturity, education, physical condition and mental health; . . . [and] the failure of police to advise the defendantofhis rights to remain silent and to have counsel present during custodial interrogation.” Withrow, supra, 507 U.S. at pp. 693-94 (citations omitted) (emphasis added); People v. Williams (1997) 16 Cal.4th 635, 660. Instances where California courts have found confessions involuntary are varied and numerous. For example, in Esqueda, supra, the defendant’s obvious reluctance to confess, together with the police’s use of deception, tended to support a finding of involuntariness. 17 Cal.App.4th at p. 1470. Officers repeatedly told Esqueda what they wanted him to say, including that he would be better off if he admitted the shooting was an accident. Id. at p. 1486. The Esqueda court also held that a Miranda violation is a factor that seriously weighsin favor of involuntariness. Jd. at p. 1484. 110 Similarly, in another case, a statement was found involuntary on account of deliberate police misconduct including use ofdeception, the lack of a break between custodial interrogation, the defendant’s young age (18) and lack of experience with the criminal justice system, and police threats of first degree murder charges if defendant did not cooperate. People v. Neal (2003) 31 Cal.4th 63, 89-90. In Neal, the defendant did not confess during the initial interview, but asked to speak to the police again at a later date, when he confessed. Yet, despite this showing offree will and the time lapse, the court still held that his confession was involuntary because the officer had threatened him with a first degree murder charge if he did not confess during the first interview. Id. In addition, police threats regarding the death penalty have been cause for particular concern, and several other cases have also held that threatening the death penalty itself renders a statement inadmissible. See, e.g., People v. Hinds (1984) 154 Cal.App.3d 222, 238 (confession involuntary where officers told defendant he would get the death penalty unless he talked because they would assume the worst until told differently); People v. McClary (1977) 20 Cal.3d 218, 229 (confession involuntary where police told defendantthat if she confessed, she might be charged as only an accessory and not as a principal) (overruled on other grounds). This Court does not defer to the trial court's decision regarding the voluntariness ofa confession. People v. Benson (1990) 52 Cal.3d 754, 779. Rather, all factual determinations about questions such as whether there was coercive police conduct are reviewed independently on appeal. Id. Admission into evidence of an involuntary 111 confession is judged under a harmless beyond a reasonable doubt standard. Arizona v. Fulminante (1991) 499 U.S. 279, 310; People v. Cahill (1993) 5 Cal.4th 478, 510. C. Appellant’s Statement Was Involuntary In the instant case, an examination ofthe details of the interrogation and the characteristics of the accused reveals an appellant whose will was overborne; thus, the statement was involuntary and should have been suppressed. The court ruled that, under the circumstances, nothing could show that appellant’s statement was not freely and voluntarily given. (4 CT 961.) However, the court erred in this conclusion. During appellant’s interrogation, Sergeant Keech combinedtactics that, together with appellant’s physical state and personal characteristics, constituted impermissible coercion. These tactics includedhis failure to re-advise appellant of his rights (constituting a lack ofproper Miranda warnings to appellant), repeated expressions that appellant was lying, an implication that the death penalty would be imposed, fabricated evidence against appellant, and implied promises of leniency. Underthe totality of the circumstances, the overall picture is one of a defendant whose statement was notthe productofhis rational intellect and free will and whose choice to confess was not “essentially free.” As a result, the confession that was obtained from appellant on January 30, 1991 was the product of coercion and therefore involuntary. It is true that no onefactor is dispositive, but in sum, the details of appellant’s interrogation point towards a finding of involuntariness. Sergeant Keech’s 112 conduct was made problematic from the very beginning ofthe interview by his failure to re-advise appellant ofhis rights. (See ArgumentIII.) The fact that statements are tainted by an earlier Miranda violation is a factor that argues against the voluntariness of a statement. See Esqueda, supra, 17 Cal.App.4th at p. 1484. However, this indiscretion was only the beginning of a pattern of further impermissible coercion. Failing to immediately extricate inculpatory statements—otherthan a repetition of the earlier confession to the Gavilan Bottle Shop robbery—Sergeant Keech began forcefully telling appellant exactly what he was suspected ofby inserting appellant’s nameinto a narrative ofa gruesome murder. (CT Supp. 2 1 14-16.) Coercion could also include “the brainwashing that comes from repeated suggestion.” See People v. Anderson (1980) 101 Cal.App.3d 563, 574. Despite appetlant’s vehement denials, Sergeant Keech told him repeatedly that the police knew he was lying about the extent of his involvement. (See, e.g., CT Supp. 2 1 24, 26, 31-32.) Furthermore, Sergeant Keech told appellant that if he did nottell the truth at that moment, he might never get a chance to again. Sergeant Keech even wentso far as to tell appellant that he could “fry” him (implyingthat if he didn’t confess, the death penalty would be imposed). (CT Supp. 2 1.16.) The fact that the death penalty is threatened is a factor that argues strongly against the voluntariness of a statement. See Neal, supra, 31 Cal.4th at pp. 81-82; McClary, supra, 20 Cal.3d at p. 223; and Hinds, supra, 154 Cal.App.3d at p. 238. Based on this case law, the fact that the death penalty 113 YERametERGENCEONAoreo Gea ea a pL lb was threatened here could be nearly enough on its own to render appellant’s statement involuntary. Still not receiving the magnitude of a confession that he was after, Sergeant Keechbegan to tell appellant lies about evidence that the police had recovered. For example, he claimed that appellant’s fingerprints had been found on the duct tape used to tape the victim. (CT Supp. 2 1 24.) Though notperse sufficient, “[]]ies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession.” People v. Musselwhite (1998) 17 Cal.4th 1216, 1240. Sergeant Keech then went on to tell appellant exactly what he wanted him to say, based on statements obtained from co-defendants; for example: “How aboutif I told you John handed you the knife and told you to kill him, and youtried to cut his throat?” (CT Supp 21 26.) Telling the defendant what he was supposed to say was a factor that contributed to the involuntary statement found in Esqueda, supra. 17 Cal.App.4th at p. 1486. Similar actions here by Sergeant Keech are yet another factor that argues against voluntariness. Sergeant Keech also implied to appellant that the punishment would be less grave if appellant did not mean to kill the victim but rather, only meant to cut him. (CT Supp 2144.) This was thefinal tactic that led to appellant’s admission ofthefull extent ofhis involvement. “{MlJere advice or exhortation by the police that it would be better for the accusedto tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.” People v. Jimenez (1978) 21 Cal.3d 595, 611 (overruled on other grounds). Nor will the statement be considered involuntary 114 “when the benefit pointed out by the police . . . is merely that which flowsnaturally from a truthful and honest course of conduct.” Id. at 611-12 (quoting People v. Hill (1967) 66 Cal.2d 536, 549 (overruled on other grounds)). However, in the instant case, Sergeant Keech’s implied leniency by suggesting that it was okay to admit involvement so long as appellant did not mean to Xi// the victim went beyondthat. In addition to the details ofthe interrogation, the characteristics ofthe accused in this case also point towards involuntariness. Throughout the interrogation with Sergeant Keech, appellant was obviously suffering from a severe cough—so muchsothat his coughs were recorded in the written transcript that was prepared. (See, e.g., CT Supp. 2 13, 4, 11, 17, 44, 49.) Sergeant Keech was aware ofthis condition, and inquired ofit at the outset, to which appellant responded, “I have bronchitis.” (CT Supp. 2 1 4.) Furthermore, appellant’s young age and lack ofcriminal history is a factor that should be considered. Appellant was only 21 years old at the time ofhis arrest and had an “insignificant record ofcriminal conduct,” never having been convicted ofa felony or served any jail time. (5 CT1488, 1493, 1494-96.) Other cases have found that young defendants with little prior contact with the criminal justice system are more susceptible to police coercion. See, e.g., Neal, supra, 31 Cal.4th at p. 84-85 (citing Fare v. Michael_ C. (1979) 402 U.S. 707, 725). Manyofthe factors disapproved ofin the cases discussed earlier are present here. The details ofthe interrogation and the characteristics ofthe accused both tend to show involuntariness. Appellant was improperly not re-advised ofhis Mirandarights, 115 and was obviously reluctant to confess and resisted doing so for some time, caving in only when confronted with the choice betweenhis last chance attelling the truth and being “fried.” He was badgered, threatened, and misled by promises of leniency. And to make matters worse, his physical state belied that he was young, unfamiliar with the system, and suffering from bronchitis. All ofthese factors combine to indicate that, underthe totality of the circumstances, appellant’s choice to confess was not essentially free; rather, his will was overbome and the confession was a product of coercion rather than his own free will. Therefore, his statement to Sergeant Keech was involuntary. D. Appellant Suffered Prejudice by the Court’s Failure to Suppress Appellant’s Statement and the Judgment of Guilt Must be Reversed Appellant was substantially prejudiced by the violation ofhis rights against self- incrimination, to due process of law andto a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution. Appellant’s unconstitutionally admitted statements were the most damaging evidence against him in his capital trial. An error of federal constitutional law bya trial court requires that the prosecution bear the burden on appeal ofproving that the error was harmless behind a reasonable doubt. Chapmanv. California, 386 U.S. 18, 24 (1986). Considering that appellant’s inculpatory statements contained explicit confessions to both capital murder and robbery/burglary, the prosecution cannot meetthis burden. (People v. Neal, supra, 31 Cal.4" at p. 86.) Therefore, the entire judgment must be reversed. 116 V THE SUPERIOR COURT, AND THIS COURT, HAVE DENIED APPELLANT HIS RIGHTS TO DUE PROCESS, MEANINGFULAPPELLATE REVIEW, COUNSEL, ANDA NONARBITRARY DETERMINATIONOFHIS SUITABILITY FORTHE DEATH PENALTY, BY VIRTUE OFTHEIR REFUSAL TOALLOWAPPELLANTTO RAISE ON APPEAL, ISSUES WHICH WERE PROPERLY PRESERVED BELOW AND WHICH SIMILARLY SITUATED DEFENDANTS ARE PERMITTED TO RAISE ONAPPEAL. THESE INCLUDE ALLEGATIONSOF BAD-FAITH PROSECUTION AND POTENTIAL INSTRUCTIONAL ISSUES A. Background and Overview This case initially involved five codefendants, three ofwhom,Travis, Silveria and appellant, were sentenced to death. Appellant’s case was severed from that of Travis and Silveria, and those two defendants weretried first. They were found guilty of first degree murder with special circumstances, but the jury was unable to reach a verdict on penalty. (14 ST (Silveria/Travis) CT 3481, 3568.) Travis and Silveria were subsequently retried on the issue ofpenalty and sentenced to death. Prior to that, however, and subsequenttotheir first trial, appellant’s trial took place. (S062417.) During the prosecutor’s penalty phase closing argument, appellant’s counsel vigorously objected to the prosecution’s characterization ofappellant as the lead or dominant actor in the charged offenses, which was completely contrary to the position the prosecution argued in the severed case of codefendants Silveria and Travis: 28 THE PROSECUTOR:. . . and remember, when he [defense counsel] says follows the lead there was no stabbing before Mr. Spencerstarted it. Under Mr. Spencer’s 117 version, in effect, John Travis and DannySilveria followed his lead. He led the stabbing.” (86 RT 22389.) 118 MR. MANTELL[outside the presence of the jury]: “I’m very disturbed about where the argumentis going at this point. I recognize that there are some lacunaein the evidencein this case with regard to the details of every actor’s participation, butI apparently am about to hear . . . Travis and Silveria reduced to the position ofstooges for Chris Spencer. Andthat I think is not permissible. “This case has already been tried once where they were the principals and Mr. Spencer was absent. Of course, that was not the prosecution’s theory at the time. But more importantly there is on the record ofthis case evidence which the prosecution must be aware of which establishes very clearly the tertiary position of of Chris Spencerin the planning andplotting ofthis entire operation. “T think that the suggestion by the prosecution that this is even possible to the jury on the basis of hard evidence to the contrary in this case hovers perilously close to shystering, if it does not in fact fall over the edge. I would like it abandoned. I would like the jury admonished. I think that one more word and a motion for mistrial would be in order.” (86 RT 22390.) Thetrial court effectively overruled counsel’s objection, and merely admonished the parties to “stick . . . to what was brought out during the course ofthis trial.” (Ibid., emphasis added.) Thetrial court’s ruling allowed the prosecutor, in effect, to argue any theory he wanted, even if it was factually inconsistent and incompatible with the theory he argued andat the previous trial, and in fact the prosecutor thereafter continued his argument, telling the jury that “you’re not going to find evidence that .. . [appellant] was just followingthe lead . . . ” (86 RT 22391.)”° 29 While the prosecutor’s argument summarized herein was clearly calculated, by its very terms, to cast appellant in a leadership role in this case, evidence not presented to the jury demonstrated just the opposite; and strongly suggests that defense counsel had an appellate claim worth pursuing had he been provided with the complete record needed to present it. For example, according to Travis, the Leewards robbery was his idea and both 119 teencetatmeesmtendearpiensoeetinnAPUeB Ss eae te at SanNabitMpangaAEaSjot Semin FEE Sete Silveria and Travis claimed to have planned it. (Suppl. CT#1 37 11050, 11072.) While appellant indeed said that he wasthefirst to stab the victim, he did not do so in a leadership role but at the direction of Travis. (/bid., 11066.) Travis, according to Silveria, was in control ofthe situation at the scene, and it was his idea to kill the victim when the others wanted to leave. (34 RT 2949; 35 3009, 3027, 3051, 3062-3063, 3077.) Appellant’s statement to police accurately setting out his subservient role in this case was minimized by law enforcement prosecution witnesses as self-serving on appellant’s part; easy to do since the codefendants’ statements demonstrating this to be untrue (and supporting appellant’s version of events) was not presented to appellant’s jury. (75 RT 21553, 76 RT 21566.) 120 Byvirtue ofhis proper and timely objection, appellant at trial undeniably raised a colorable issue on appeal by contending that the prosecutor acted improperly to the extent he was arguing contradictory theories in a case in which multiple defendants were charged with the same offense. It is factually impossible that appellant was the “ringleader” in the charged offenses as opposedto Silveria and Travis, as argued at appellant’s trial, and at the sametime, that Silveria and Travis were the ringleaders and appellant merely a follower, as allegedly occurred at the first Silveria-Travis trial. If counsel wascorrect that this is in fact is what occurred, appellant was denied due processbythis use of factually inconsistent and irreconcilable theories to secure the death penalty in appellant’s case. (U.S. Const., Amends. V, XIV; Cal. Const., Article I, sec. 15; Donnelley v. DeChristoforo (1974) 416 U.S. 637, 643 [conduct ofprosecutor so infected the trial with unfairness as to makethe resulting conviction a denial ofdue process].) Courts have consistently disapproved ofthe state’s use of inconsistent and irreconcilable theories in separate trials. In In re Sakarias (2005) 35 Cal.4th 140, 156, our Supreme Court stated “Judicial disapprovalofthe state’s use of inconsistent and irreconcilable theories in separate trials for the same crimes was first articulated in opinions by individual Supreme Court and lowerfederal court judges. (See (See, Jacobs v. Scott (1995) 513 U.S. 1067 (dis. opinion of Stevens., J., from denial of stay) [fundamentally unfair to execute a person ‘on the basis of a factual determination that the State has formally disavowed”in coperpetrator’s later trial]; Drake v. Kemp (1 1" cir. 1985) 762 F.2d 1499, 1479 (conc. opn. of Clark, J.) [prosecutor’s ‘flip flopping of theories ofthe offense was inherently unfair’ ].)” 121 + tot parton iR paSavapeleEDOMoACanon eA oulaedsSpaEedaAMAAMERE ECINEAor Subsequent opinions have reaffirmed this condemnation. In Thompsonv. Calderon cg" Cir. 1997) 120 F.3d 1045, 1055-1057, reversed on other grounds sub nomine Calderon v. Thompson (1998) 523 U.S. 13) the court held that inconsistent prosecutorial theories may present a due process violation. In Smith v. Groose (8" Cir. 2000) 205 F.3d 1045, the court concluded that “the use ofinherently . . . contradictory theories violates the principles ofdue process” (Smith, at p. 1052) for “[t]he State’s duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for the truth.” (Smith, at p. 1051; emphasis added.) In Smith v. Groose, supra, the prosecutor at onetrial offered one impeached statementofa witness in support ofits theory ofthe case; then, at a subsequenttrial of the same charge, offered another, incompatible, statement ofthe same witness in support ofa different theory. The due process violation resulted from the prosecution presenting in one case whatit rejected in the other case, and vice versa. (Smith, at p. 1050.) In Thompson v. Calderon, supra, at p. 1063 Judge Tashimastates that “prosecutorial use ofwholly inconsistent theories violates due process”); Smith v. Groose, supra, at p. 1052 [‘the use of inherently contradictory theories violates due process”’].) The due processviolation results from the unfair comprising ofthe ability ofthe accused to defend the charges against him, which in turn underminesthe reliability of the result and integrity ofthe criminal justice system as a whole. In Drake v. Kemp (1 1" 122 Cir. 1985) 762 F.2d 1449, 1479, the prosecutor noted the “inherent unfairness” in the prosecutor’s “flip-flopping theories of the offense.” In re Sakarias, supra, at p. 158. “For the government’s representative, in the grave matter ofa criminal trial, to ‘changfe] his theory ofwhat happenedtosuit the state’ is unseemly, at best. (Sakarias, at p. 158, citing Drake v. Kemp, supra,at p. 1479.) “Such actions reduce criminaltrials to mere gamesmanship and rob them oftheir supposed purpose of a search for the truth. (/bid.) See also, United States v. Kattar (ist Cir. 1988) 840 F.2d 118, 127{“disturbing to see the Justice Department change the color of its stripes to such a significant degree . . . depending on the strategic necessities ofthe separate litigations.”].) As Justice Kozinski correctly stated in his dissenting opinion in Thompson v. — Calderon,, supra, at p. 1072, the prosecutor’s use ofinconsistent theories “surely does not inspire public confidencein our criminal justice system.” Accordingly, defense counsel, at a minimum, raised a colorable due process claim by virtue ofhis properly lodged objection and the trial court’s defacto denial ofit. Importantly, this issue was is one that appellant wasis required, under California law, to pursue as part of his appeal as opposed to the mechanism ofhabeas corpus. This is because the documents and papers upon which appellant’s objection was based,i.e., the respective transcripts of Spencer’s trial and the first Silveria-Travis trial (hereinafter, “Silverta/Travis I’), under this Court’s jurisprudence, were all properly part ofthe appellate record in appellant’s case. Accordingly, appellant risked waiver of the issue 123 wereheto not pursue the issue by meansof appeal. (Jn re Dixon (1953) 41 Cal.2d 756, 759; habeas corpus is not a substitute for appeal and a claim that can be raised on appeal will not be considered on habeas corpus.) Therefore, appellant moved in the superior court to casue the to augment the record on appeal to include the “Silveria/Travis I” transcript in his record on appeal. Unfortunately, the motion was denied, first in the superior court, and subsequently in this Court. These denials deprived appellant of his state and federal rights to due process and meaningful appellate review and specified in this argument. B. Silveria/Travis I Is Properly Part of the Record on Appealin the Present Case That Silveria/Travis I is properly part of appellant’s record on appeal is clear from the jurisprudence ofthis Court, which has long acknowledged that a complete and accurate record is an essential component ofmeaningful appellate review and effective assistance of counsel on appeal. (See, Hardy v. United States (1964) 375 U.S. 277, 282 [noting that anything short ofa complete transcript is incompatible with effective appellate advocacy].) Accordingly, appellant has a constitutional due process right to such a complete record on appeal as will assure him meaningful and effective appellate review. (In re Steven B. (1979) 25 Cal.3d 1, 8; People v. Barton (1978) 21 Cal.3dat pp. 518520; March v. Municipal Court (1972) 7 Cal.3d 422, 427429; In re Roderick S. (1981) 125 Cal.App.3d 48, 53.) See also, People v. Frye (1998) 18 Cal.4th 894, 941 [An incomplete record is not only a violation of statute but requires reversal of the 124 conviction if the appellant would thereby be deprived ofmeaningful appellate review].)’ With respect to capital cases, this right is codified in Penal Code section 190.7 and Rules 39.50 and 39.51. Becausetrial in this case commenced before January 1, 1997, Rule 35 and Penal Code sections 190.7 and 190.9 govern this request for correction and completion ofthe record.) Indeed, Rule 39.51, California Rules of Court,in effect at the time of appellant’s trial, mandated that upon a judgment of death, the clerk shall prepare the entire record ofthe case. The express language ofPenal Code 190.7, subdiv. (2), which 30 A complete and accurate record is also required underthe Fifth, Eighth and Fourteenth Amendments to the United States Constitution, and underarticle I, sections 7, 15, and 17 ofthe California Constitution. Failure to accord a capital defendant a complete record on appeal denies his or her constitutionally protected rights under the United States Constitution to meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally. (Parker v. Dugger (1991) 498 US. 308, 321; see also Dobbs v. Zant (1993) 506 U.S. 357, 358, citing Gardnerv. Florida (1977) 430 U.S. 349, 361, Gregg v. Georgia (1976) 428 U.S. 153, 167, 178 {"We have emphasized before the importance ofreviewing capital sentences on a complete record."].) A complete and accurate appellate record is likewise mandated by California’s independentinterest in ensuring the reliability of its death judgments. (People v. Stanworth (1969) 71 Cal.2d 820, 832834; see also People v. Hawthorne (1992) 4 Cal.4th 43, 63 [affirming the "critical role of a proper and complete record in facilitating meaningful appellate review in the context ofa capital case."].) "[T]he Rules on Appeal contemplate that no reporteris infallible, that errors may exist in a proposed transcript, that correction may be proposed, andthat it shall be the duty of thetrial judge to finally determine the record." (People v. Chessman (1949) 35 Cal.2d 455, 461.) 125 2) eranahnreprRENDERMRRBECRhUTSSQMN HG mor eg tet cet nth phe Ure ireengEMEDRleeitatiamiRNARDeeNeeIRMERLE awpmntarageah wen cer governedthis case at the time of appellant’s trial, defines “entire record” as including but not necessarily being limited to “[a] copy of any paperor record on file or lodged with the superior or municipal court and a transcript ofany other oralproceeding reported in the superior or municipal courtpertaining to the trial ofthe case.” (Emphasis added.) Here, by any definition of the term, the transcript ofthe first Si/veria/Travis trial was an “oral proceeding reported in the superior or municipal court pertaining to the trial of the case.” Appellant’s Sakarias claim necessarily and by definition, implicated events that occurred at Silveria/Travis I. Those events were effectively before the trial court and were considered by it in ruling on appellant’s objection at histrial. This, regardless ofwhether that transcript was ever formally lodged as an exhibit or document in Spencer’s case or was even prepared at the time ofthe objection (although, as discussed subsequently, the record showsthat the trial court deemed the entire file ofthe Silveria-Travis case up to and including the first trial to properly be part of Spencer’s case file). In sum, the correctness ofthetrial court’s defacto ruling on the defense’s properly-lodged objection, and the prejudicial effect of the assertedly improper argument, again which was the subject of a properly-lodged objection and request for admonition (People v. Green 27 Cal.3d 1, 27), required reference to the earlier proceeding. Silveria/Travis I was thus part ofthe “entire record” of appeilant’s case and 126 any conclusion to the contrary flies in the face of this Court jurisprudence requiring a complete record on appeal in a capital case, the preparation ofthe “entire record” and the inclusion ofthe transcript of anyoral proceeding reported in the superior or municipal court pertaining to the trial ofthe case. Cases such as People v. Waidla (2000) 22 Cal.4th 690, and People v. Sanchez (1995) 12 Cal.4th 1, 59, fn.5, do not contraindicate the notion that the Silveria-Travis transcript was properly part of appellant’s record on appeal. In Waidla, this Court declined to consider a claim of prosecutorial bad faith based on the record of a codefendant’s trial because the issue had not beenraised below, therefore, the record on any such claim was not fully developed and such claim was better raised via habeas corpus. (Waidla at pages 743-744.)"! 31 In this case it wasn’t only objected to in the trial court, it was fully developed in that the Court over objection permitted such argument by ruling that the prosecutor was to argue on the record of this case. This allowed the prosecutor to argue the facts ofthis case regardless ofwhat he argued in Silveria/Travis I, even if it was factually incompatible with what he argued in this case. This effectively overruled appellant’s objection and presupposedthat the prosecutor did not raise arguments incompatible with theories presented in appellant’s case, in Silveria/TravisI. 127 In Sanchez, the Court simply found that actions taken by the prosecutor subsequentto the defendant’s trial were beyond the scope ofthe defendant’s record on appeal. (Sanchez, at p. 59.) | In both cases, to be sure, this Court concluded that in theparticular cases before them, the codefendant’s trial transcripts were not part ofthe appellate record. Neither case however, held that the codefendant’s trial transcripts could never be part of an appellant’s record on appeal. That issue was simply not before the Court in either case,” and neither Waidla nor Sanchez set forth any discussion ofwhat if any steps had been taken during the augmentation phase in the trial court to incorporate the codefendant’s trial into the defendant’s record on appeal. 32 It is, of course, axiomatic that an opinionis not authority for cases not considered therein. (People v. Knoller (2007) 41 Cal.4th 139, 155.) 128 In People v. Sakarias (2000) 22 Cal.4th 596, the appellant, Waidla’s codefendant, requested judicial notice by the reviewing court of Waidla’strial transcripts, asserting that he intendedto raise the issue of conflicting prosecutorial theories on appeal. The Court acknowledgedthat it could grant the request, but it declined to do so because the issue was notlitigated the trial court, thus the requested judicial notice could not provide a complete record. Under those circumstances, the Court held, the issue was properly raised by habeas corpus and not appeal. (Sakarias, at pages 635-636.) In the present case, by contrast, the “inconsistent theories” issue was raised in the trial court, and was argued and ruled upon onthe basis ofevents occurring at the prior trial. For these reasons, the holdings of Waidla, Sakarias and Sanchez do not even suggest, let alone require, that the “inconsistent prosecutorial theories” issue be deemed anything other than a properly-preserved appellate issue. There is nothing in those cases that even remotely suggest that section 190.7 and those cases mandating a complete record on appealin a capital case, are not applicable to appellant’s case.”3 This being the case, appellant was duty-bound to pursue the claim via the appellate remedy. Indeed, he had no other option; had he chosento pursueit via habeas 33 Appellant has to date found no other California capital case where it has been held that materials upon whichthe the trial court relied in overruling a properly made objection in the trial court, are not properly part ofthe appellate record. By contrast, there is at least one case, and possibly more, in which a codefendant’s record from a separate trial made part of appellant’s record on appeal. (E.g., People v. Richardson (2008) 43 Cal.4" 959.) 129 ce nTAEETORTIEUN Sit HS Pt ohne Sc oma topen nea gine hiyigoaMiniaenoedeeaetnoateahSFEmiteSitnaoasinsaneRo noe one oe So ann oe eeeerent corpus, as occurred in Waidla, Sakarias and Sanchez, the result would have been a waiver ofthe issue, under this Court’s long-standing jurisprudence. (In re Dixon, supra, 41 Cal.2d 756, 759; habeas corpusis not a substitute for appeal and a claim that can be raised on appeal will not be considered on habeas corpus.) Accordingly, in order to ensure a correct and accurate record on appeal, appellant counsel movedin the superior court, to have the record on appeal formally augmented to includethe transcriptofthe first Silveria-Travis trial so that the issue of “inconsistent prosecution theories” could be fully explored as a possible appellate issue. In support of this motion counsel, in addition to and apart from facts relating to the “Sakarias” claim, cited multiple statements on the record indicating that the trial court in fact deemed the transcript ofthe first Silveria-Travistrial to be part ofthe record on appeal in Spencer’s case. In this connection, counsel noted that portions ofMr. Spencer’s (post severance) record cannot be understood without reference to the Travis and Silveria records, and in somesituations it appeared a foregone conclusion among the court and counsel that the Travis-Silveria record would routinely be before the reviewing court in Mr. Spencer’s appeal. Examples abound: In creating the jury questionnaire in the present case the parties apparently began with the questionnaire usedin the first Silveria-Travistrial. The Court stated “I’m not going to have this questionnaire marked as a court’s exhibit, because any court of appeal can take a look at the actual questionnaires that were actually filled out by the other two juries.” (RT 18410.) In explaining its overruling a 130 defense objection during the instructions conference, the Court stated, “Read my rulings in the penalty phase ofthe [Silveria-Travis] trial.” (49 RT 18437.) Also during the instructions conference in appellant’s case, the court stated. “I will use Silveria 23, which was also a combination of T-1, S3 and S3A. They will have to read the Silveria record for that one.” (85 RT 22278.) And at 85 RT 22281 the court stated that it wouldn’t even talk about Silveria 24 because it was “already covered.” The hearing on appellant’s motion to augment the record was held in the superior court on November 7, 2002. At that hearing, respondent did not oppose appellant’s request for inclusion ofthe Silveria-Travis trial transcript in his appellate record. The trial court indicated that it was inclined to grant the request because “there appear[ed] to be good cause to do so.” (November 7, 2002 RT 64.) However, appellant’s motion was denied, not on the ostensible merits, but based on an exparte communication from this Court directing the trial judge to do so. At the November 7, 2002 hearing,the trial court noted that it had received a letter from this Court, dated August 28, 2002, expressing concern over the apparently delay in the certification of the record in appellant’s case. Thetrial court read this letter into the record, as well as its letter response to this Court, dated September 3, 2002, and this Court’s follow-up letter in response to that, dated September 6, 2007: [JUDGE MULLIN]: “I'll read these into the record for what they’re worth. “Dear Judge Mullin: 131 “On February 22, 2000, appellant’s counsel filed a request for correction , completion and supplementofthe record in the Superior Court referencing this case. ONAugust 5" we received a monthly status report from the Deputy Court Manager Bob Geer, advising “Awaiting Judge’s ruling on corrections.” We presumethis information is accurate. “Rule 35(c)(4) of the California Rules of Court requires that a trial judge determine whether the requested corrections be made within 60 daysofthe date ofthe request for correctionsis filed. The Supreme Court is concerned that months have elapsed with no apparent disposition of that request. The Court would like to know whenyouintend to rule on the motion. . .. I responded on September 3", 2002: “... lam in receipt ofyour August 28 letter in re the above matter. Let me give you a brief history of the case. This case originally involved five defendants, Mr. Spencer, Mr. Travis, Mr. Silveria, Mr. Rackley and Mr. Jennings. Mr. Rackley was ajuvenile and his case was severed and settled. The four other defendants’ cases were severed after lengthy pretrial motions. “Defendants Silveria and Travis wentto trial before separate juries and were convicted, but eachjury could not reach a verdict in the penalty phase and a mistrial was declared. “The district attorney decided not to seek the death penalty as to Jennings, so the Spencer case was tried next and the jury returned a death verdict as to him. “The Court then conducteda retrial of the Travis and Silveria penalty phase and the jury returned deaths verdicts as to each defendant. “At the time westarted this retrial, Jennings withdrew his time waiver and was sent to Judge Chang almost simultaneously with the Travis and Silveria retrial. “On appeal, Spencer was appointed counselfirst and then Travis andfinally Silveria. Spencer’s request for corrections, completion and settlement ofthe record was filed on February 22™4 2002 and was received by me sometime in May. I received the trial transcripts in June. 132 I have reviewed the requested corrections and the reporters’ transcripts and am having the reporters involved check their notes as to some of their requests. In his requests, Spencer wants the entire record in the entire record in the Travis, Silveria and Jennings portions ofthis case corrected and included in his record on appeal. I’m inclined to grant this request except as to the portion containing the Jennings trial, as there appears to be good cause to do so. I anticipate that Travis and Silveria will make similar requests. “In order to avoiding [sic] having three versions ofthe corrected record on appeal, I believe it makes sense to correct the record as to all three defendants at one time, even though this will case a delay in the Spencercase. “On April 15, 2002, the Travis request for correction of transcripts on appeal was filed and I received them along with Spencer’s. I have not received any paperwork on behalf of Silveria until July when I received an order granting counsel’s request for an extension. That was granted by Justice Ming Chin andfiled in the Supreme Court on July 17, 2002. The extension is until September 13, 2002. “In the meantime, I have begun to work on the Travis request, even though our appeals clerk will have to contact Travis’ attorney and ask for more information to clarify what he is expecting. “Ifwhat I’m proposingto do, that is, do one record correction for all three defendants, does not meet with the approval ofthe Supreme Curt, please adviseand I will correct the record as to Spencer.” I received a reply two days later dated three dayslater, dated September6" of this year: Dear Judge Mullin: Thank you for your letter of September 3". Because Appellant Christopher Alan Spencer was tried separately from Daniel Todd Silveria and John Raymond Travis, his appeal from the ensuing judgmentof death will necessarily be based on a separate record on appeal. There fore , the court requests that you proceed with record correction matters as to Appellant Spencer. [JUDGE MULLIN]: I would encourage anybodyhereto file a petition with the Supreme Court asking that we have one corrected record on appeal and to delay this 133 Spencer one becomingcertified until Travis and Silveria can get their records. So I have done what I can.” (November 7, 2002 RT 62-65.) Following the trial court’s denial ofthis aspect ofhis motion to augmentthe record, appellant moved this Court for an order augmenting the record to include the transcript of the Silveria-Travis trial. This motion was denied. As explained below, this denial, and the denial of the motion in the superior court, compels reversal ofthe judgmentin this case. C. The Refusal of the Court to Include the Silveria/Travis Transcript in his Record on Appeal Deprived and Continues to Deprive Appellant of His state and federal rights to due process, counsel, meaningful appellate review, and to a nonarbitrary determination of his eligibility for the death penalty. (U.S. Const., Amends. V, VI, VIH, XIV; Cal. Const., Art. I, secs. 15, 17.) In the previous section, appellant pointed out that a complete and accurate record has long been held a prerequisite to effective appellate advocacy and meaningful appellate review. Appellant asserts, by clear analogy to cases such as People v. Serrato (1965) 238 Cal.App.2d 112, 118-119, that fundamental notions ofdue process compel the conclusionthatit is the prosecution that must bear the burden oflost or destroyed evidence where the lost evidenceis clearly material, possibly exonerating andlost solely due to the action of thestate. In Serrato, supra, the reporter’s transcript was unavailable, and the court reporters’ notes were destroyed, through no fault ofthe defendant. The Clerk’s Transcript was available. Serrato’s claims included the assertions that his testimony at 134 trial established an alibi defense; his trial counsel was ineffective and that his offenses were not legally severable, therefore mandating that sentences on some of the counts should beset aside. The decision of the Court ofAppeal was not surprising. The Court concluded that it was a “vital necessity” for the defendant to have a reporter’s transcript of the proceedings for purposes of “permit{ing} him to urge a reversal ofthejudgment” Serrato, at p. 118), and that the denial of accessto that transcript denied Serrato his right to effective presentation of his appeal, entitling him to reversal ofthe judgment and a new trial. ([bid., at p. 119.) In this case, appellant, through no fault of his own (and in fact, through the action ofthe superior court and this Court), has been deprived appellant the necessary documents necessary to prove that he suffered a due process violation by virtue ofthe prosecutor’s utilization of factually inconsistent and incompatible theories at successive trials involving the same charges. ( (See, Jacabs v. Scott, supra, 513 U.S. 1067 (dis. opinion ofStevens., J., from denial of stay) [fundamentally unfair to execute a person ‘on the basis of a factual determination that the State has formally disavowed”in coperpetrator’s latertrial]; Drake v. Kemp (11" cir. 1985) 762 F.2d 1499, 1479 (conc. opn. of Clark, J.) [prosecutor’s ‘flip flopping of theories of the offense was inherently unfair’].)” The transcript of the first Silveria/Travis trial was every bit as much a “vital necessity” for purposes ofpresenting this claim, as was the missing transcript in Serrato, for purposes of presenting Serrato’s claims. It was also essential for purposes of 135 allowing appellant to determine whetherjury selection or instructional errors occurred. (E.g., 49 RT 18,410, 18,437.) | This lack of a complete appellate record denies appellant his right to due process, to meaningful appellate review; to effective assistance of counsel on appealthe right to be free of an arbitrary or irrational determination of death eligibility. (U.S. Const., Amends.V, VI, VIII, XIV; Parker v. Dugger (1991) 498 U.S. 308, 321; see also Dobbs v. Zant (1993) 506 U.S. 357, 358, citing Gardner v. Florida (1977) 430 U.S. 349, 361, Gregg v. Georgia (1976) 428 U.S. 153, 167, 178 ["We have emphasized before the importance of reviewing capital sentences on a complete record."]; Hardy v. United States (1964) 375 U.S. 277, 282; [noting that anything short ofa complete transcriptis incompatible with effective appellate advocacy].) The lack ofa complete and accurate record also denied appellant his rights under article I, sections 7, 15, and 17 ofthe California Constitution. A complete and accurate appellate record is likewise mandated by California’s independentinterest in ensuring the reliability of its death judgments. (People v. Stanworth (1969) 71 Cal.2d 820, 832834; see also People v. Hawthorne (1992) 4 CalAth 43, 63 [affirmingthe "critical role of a proper and complete record in facilitating meaningful appellate review in the context of a capital case."].) D. Any Theoretical Remedy by Way ofHabeas Corpus Would Not Cure The Defect in Constitutional Violations in Appellant’s Case 136 Assuming it were argued that the above constitutional violations could be ameliorated by the remedy of habeas corpus, such arguments would fail because appellant enjoyed a state-created liberty interest, protected by the due process clause contained in the Fourteenth Amendmentto the United States Constitution, to having his Sakarias claim heard as part of his appeal. (Hicks v. Oklahoma(1980) 477 U.S.343.) First, were appellant to bring the Sakarias claim by way ofhabeas corpus, such claim would properly be subject to dismissal becauseit is a claim that was properly brought by way of appeal. Un re Dixon, supra, at p. 759.) Moreover, as explained below, the habeas remedy, assuming it exists, can at most transmogrify a fatally flawed appellate remedyinto a fatally flawedpost-conviction remedy. However, it cannot cure the due process, denial of counsel and Eight Amendmentviolations visited by the exclusion of Silveria/Travis I from appellant’s record on appeal. The crux ofthe holding ofHicks, supra, is that it is a federal due process violation to arbitrarily deny a criminal defendant, rights and privileges that are by state law afforded to other, similarly situated criminal defendants. (Ibid. at p. 364.) This even if the underlying rights or privileges are not themselves required by federal law. (/bid.) In the previous section, appellant demonstrated that by statute, Court rule and this Court’s jurisprudence, Silveria/Travis I is properly part of his record on appeal. Unlike the situations presented in Sakarias, Waidla and Sanchez, supra, the Sakarias 137 \ agneattreatinLinpyetentescocanesenncth Wambo Eee at maton MANEeAthtANEhieSaatendEstepstwe issue waslitigated at trial, preserved for appeal andlitigated on the basis of what is now the transcript of Silveria/TravisI. The events ofthe first Silveria/Travis trial as preserved in the transcript of that trial are by any rational reading of the applicable authorities, pat of the “entire record” of appellant’s case, and cases in which no objection was made on Sakarias grounds and which were not evenlitigated at their respectivetrials, do not even remotely suggest the contrary. Accordingly, appellant is uniquely situated among California capital defendants in thatthe transcript of a major proceeding which byall rights should be part ofthe appellate record, is missing from his record. No reason appears for this apart from the fact that an arbitrary decision was made to exclude Silveria/Travis I from appellant’s record on appeal. Thepractical effects ofthis decision vis-a-vis appellant are significant and material. At the time appellant’s counsel was appointed by this Court, to handle the appeal and any habeas corpus proceedings, this case, pursuant to the “Guidelines .. .” “Category 4" case under the Court’s fixed fee system, as the record was 6,000-12,000 pages in length, which entitled counsel to a fee of $241,000. Significantly, the Guidelines do not allow for a higher category (which would bring with it a higher fee for appointed counsel) based on additions to the record on appeal secured through augmentation. However, additional fees are available for such additions through section 3 of the fixed fee guidelines, which states “In extraordinary and uniquesituations, the 138 Court will entertain requests for additional fees based on exceptional circumstances (e.g., circumstances that were unforeseeable at the time ofthe appointment of counsel on a fixed fee basis). In such situations, counsel shall have the burden ofproofto justify any additional fees.” This section is in fact, is designed to correct inequities that occur under the fixed fee system generated by large augmentations to the record occurring subsequentto the appointment of counsel. Under Court practice, upon a proper showing, the Court will allow additional fees calculated as follows: the numberofadditional pages divided by 40 pages per hour multiplied by the applicable hourlyrate. However, section 3 contemplates such additional fees only ifthe additional record is part of the reeord on appealin the particular case in question. It does not contemplate such additional fees for materials gathered as part ofthe habeas corpus investigation. This may be dueto the fact that a habeas investigation in a capital case typically generates a massive amount of documentary information; in any case, the Court through the years has held the line on the expenditures it will authorize for the preparation ofa habeas petition. For example, counsel knowsofno case in which allowable habeas budget of$50,000 has ever been increased for any California capital case, and has been informed that no such case exists. Theresult is a dramatic difference in allowable fees based on whetherparticular documents are or are not deemed part ofthe “record on appeal” in a given case. 139 osteomasabeigteteeenarnanrimmsentienen ane ean Haun imbepeymbstesagullemsbaivenicicas seqetepneascgtietana fee coke yoo In appellant’s case, it can easily be determined from the records on file with this Court that had the record in Silveria/Travis I been included in the record in the present case, appellant’s record would probably be at least double what it is now. Ifit is assumed that such record is 10,000 pages in length (probably a conservative assumption), the Silveria/Travis I transcript would have entitled Spencer’s counsel, up to an additional $30,000 in fees, had it been deemed part of Spencer’s “record on appeal.” As matters have developed and given the denials of Spencer’s motions to augment the record to include this transcript on the part ofthe Superior Court andthis Court, the securing and reviewing Silveria/Travis I, which tasks counsel has an ethical obligation to perform given the obvious colorable merit of a potential “inconsistent theories” claim, must be borne within the framework ofthe existing fee structure, contemplating a record on appeal of between 6,000 and 12,000 pages. This places an unfair and arbitrary burden on appellate counsel whichis not borne by other counsel otherwise similarly situated, but who, unlike appellant, have been provided the “entire record” in their cases. This burden exists regardless ofthe length ofthe missing record because any additional uncompensated work creates a handicap relative to other counsel to that extent. Whatever the quantum ofwork Spencer’s counsel could perform, properly contemplated counsel could do more. This deficit potentially affects each and every aspect of Spencer’s case in the post conviction arena. 140 To arbitrarily force counsel to be “hobbled”in this way; (Mayle v. Felix (2005) 545 U.S. 644, 675; Souter, J., dissenting), to represent appellant “with one arm tied behind his back” (/bid., at p. 676, fn. 9), is a denial of the right to counsel, violates due process, renders the judgment of death arbitrary in appellant’s case andis fatal to the judgmentin his case. (Whorton v. Bockting (2007) 127 S.Ct. 1173, 1182, citing Mickens v. Taylor (2002) 535 U.S. 162, 166; See, United States v. Cronic, infra, (1984) 466 U.S. 648, 658-659 [denial of counsel creates intolerably high risk of unreliable verdict].) The case law is clear that even after counsel has been appointed, the arbitrary limitation by the government of counsel’s ability to represent his client by circumventing or diluting the right to counsel, results in a denial of the right to counsel to the extent of the circumvention or dilution. In Maine v. Moulton (1985) 474 U.S. 159, 177-171, the Court stated “Oncethe right to counsel has attached and been asserted, the State must of course honorit. This means more than simply that the state cannot prevent the accused from obtaining the assistance ofcounsel. The Sixth Amendmentalso imposes on the State and affirmative obligation to respect and preserve the accused’s choice to seek this assistance. We have on several occasions been called upon to clarify the scope ofthe State’s obligation in this regard, and have madeclear that , at the very least, the prosecutor and police have an affirmative obligation not to act in a mannerthat circumvents and hereby dilutes the protections afforded by the right to counsel. [Emphasis added; footnote omitted].” See also, United States v. Henry (1980) 447 U.S. 264m 274 [“By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance ofcounsel, the Governmentviolated Henry’s Sixth Amendmentright to counsel . . .” (footnote omitted)].) In Mayle v. Felix, supra, Justice Souter in his dissenting opinion questioned the fundamental fairness ofthe holding ofthe majority in that case. Fe/ix involved an 141 ss ohanamcttegnarteatatateneentemmsaiiasmmmanistinsineheitionr dou a tea beta ce amendmenttofederal habeas petition. The amendment was filed beyond the one-year limitation period in AEDPA.** The question was whether the amendment“related back” to the defendant’s trial conviction and sentence, as claimed by Felix, or only to the core facts forming the basis of a claim or claims set forth in the original petition, as claimed by the government. The majority sided with the government. (Mayle v. Felix, at p. 654.) 34 Anti-Terrorism and Effective Death Penalty Act; 28 U.S.C. 2241 et. seq. 142 Justice Souter noted that the Court’s ruling would place indigent prisonersat a significant disadvantage because suchlitigants are typically not afforded counsel until muchlater in the post-conviction proceedings as compared with non-indigentlitigants, whoare likely to have counsel from the outset of such proceedings. The practical effect of the Court’s ruling was that an indigent’s attorney, once he or she is ultimately appointed, “. . . [wJould be precluded from exercising professional judgment whenthat judgment would calls for adding a new groundfor relief that would relate back to the filingofthe original petition. “For hobbling counsel this way, the Court limits the capacity of appointed counsel to provide the professional service that a paid lawyer, hired atthe outset . . . (Felix, at p. 676.) Justice Souter went on to state that in his view, it “was ... not a sound assumption” that Congress, in authorizing the appointment of counsel in habeas cases, “intended the appointed lawyer to have one had tied behind his back, as compared with an attorney hired by a prisoner with money.” (Felix, at p. 676, fn. 9.) The Felix majority concededthat the dissent’s concern regarding unequal treatment was “understandable” but argued that appointed counsel had ample timeto file an amendedpetition within the AEDPA timelimitation. The majority “need not equ;alize econimic conditions between criminal defendants of lesser and greater wealth.” Mayle v. Felix, at p. 664, fn. 8.) 143 In the presentcase, relative to similarly situated capital defendants, appellant’s appointed counsel is “hobbled” and working with “one hand tied behind his back”to a readily quantifiable degree defined by the length of the Silveria/TravisI transcript, as stated, as much as $30,000.00 or more (a major percentage ofthe $50,000 budget for a habeas corpusinvestigation in a California capital case). To that extent, the government has arbitrarily “circumvented” and “diluted” his right to counsel. This disadvantage taints every aspect of counsel’s representation. That is, whatever the quality of counsel’s work on appellant’s behalf on any particular issue or claim, counsel’s work could have and should have been ofhigher quality and more thorough,to the extent of the additional fees that should have been forthcoming when comparedto other, similarly situated counsel Were the judgment of death to be affirmed in this case, and habeas relief denied, it cannot possibly be concluded that the funds to which appellant was entitled but did not receive, were ofno consequence. Where a defendant. . . is denied representation,. . the risk ofan unreliable verdict is intolerably high. Whorton v. Bockting (2007) 127 S.Ct. 1173, 1182, citing Mickens v. Taylor (2002) 535 U.S. 162, 166; United States v. Cronic (1984) 466 U.S. 648, 658-659; [Gideon v. Wainwright (1963) 372 U.S. 335]. (Emphasis added.) The dangerof an unreliable result is no less tolerable in the post- conviction arena. Forall of the above reasons, the judgment must be reversed in appellant’s case. 144 VI THE TRIAL COURT’S ADMISSION OF EXCESSIVE, IRRELEVANT AND HIGHLY PREJUDICIALVICTIM IMPACT EVIDENCE WAS CONTRARY TO CALIFORNIALAWAND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS. A. Introduction. The State concludedits case in the penalty phase by presenting a dramatic combination of irrelevant and inflammatory victim impact evidence and testimony. Overa two dayperiod, jurors heard from nine prosecution witnesses whose testimony occupied approximately 140 transcript pages. Family membersandfriends ofthe victim, James Madden, gave the jury lengthy and sentimental accounts of his childhood history, family relationships, and positive qualities. Madden was eulogized as a wonderful father, husband, brother, grandson, friend, and son-in-law. The witnesses spokein great detail about the lasting effects of his death on his wife, child, parents and friends. The testimony was accompaniedby several sentimental photographs ofthe victim reading to his young daughter and celebrating Christmas with the family. The prosecution amplified the prejudicial effects by juxtaposing this victim impact material against gruesome and misleading evidence concerning the victim’s death. Jurors heard a more detailed repetition ofthe medical testimony from the guilt phase, and a very speculative and prejudicial account of the victim’s imagined suffering from a police detective involved in the investigation. This testimony was given in full view ofa clear case displaying the victim’s blood-soaked shirt. The quantity and tenor of this emotionally wrenching testimony was sufficient on its own to overwhelm the 145 ce RRENNagamamins ane, a hn aaemnicintiatnitemmtiomeinespidecore os tetsu cbtcat Pa jury. The prosecutor maximized the dramatic effect in an inflammatory closing argument where, among other things, he compared Chris Spencer to a wild animal, violated Spencer’s Fifth, Sixth, Eighth and Fourteenth Amendmentrights and misstated the law. Appellant raises several inter-related legal challenges to the victim impact evidence and argument. The scope ofthe victim impact presentation vastly exceeded the limited constitutional authorization ofthe United States Supreme Court in Paynev. Tennessee. (Section C, infra.) The sheer quantity of evidence was sufficient to violate due process and to undermine the fundamental fairness required in capital sentencing, and the content was overwhelmingly prejudicial. Certain categories of evidence and testimony wereirrelevant; they were not “circumstances ofthe capital crime” under California’s death penalty statute according to any reasonable definition of the term. Other evidence, although arguably relevant according to the decisions of the California Supreme Court in this area, was unduly prejudicial and ought to have been excluded or substantially limited according to clearly established state law. Appellant’s claims are based on the quantity and the specific content ofthe evidence, testimony and prosecutorial argument. The victim impact and victim character evidencein this case was voluminous and presents multiple forms ofprejudice. To clarify the discussion, excerpts ofthe record are included in connection with the analysis of each specific claim. Counsel is aware ofthe risk that the present reader mayfind this testimony disturbing. These substantial record excerpts, however, demonstrate the 146 excesses ofthe prosecution’s penalty phase case. Evidence and testimony whichis upsetting to experienced judges and attorneys was certainly overwhelmingfor the jurors. Forall ofthe reasons discussed below, Appellant’s sentence must be reversed because he was deprived ofhis constitutional rights to a fair and rational determination ofthe penalty. B. Overview of Legal Claims. By admitting this excessive and inflammatory victim impact evidence and argumentthe trial court created a fundamentally unfair atmosphere for the penalty phase, thereby depriving Appellant of his state and federal constitutional rights to due process of law and a reliable sentencing determination. (U.S. Const. Amends.V, VIII, XIV; Calif. Const. Art. I, §§ 7, 15, 17 and 24; Payne v. Tennessee (1991) 501 U.S. 808 [115 L.Ed.2d 720, 111 S.Ct. 2597]; People v. Edwards (1991) 54 Cal.3d 787 [819 P.2d 436, 1 Cal._Rptr.2d 696].) Thetrial court also abusedits discretion under California law by admitting irrelevant victim impact evidence with no connection to the circumstances “materially, morally or logically” surrounding the capital crime. (Evid. Code §350; People v. Edwards, supra, 54 Cal.3d 787, 835.) In a numberofother instancesthe evidence, although arguably relevant, ought to have been excluded because the potential for undue prejudice outweighedits probative value. (Evid. Code §352; People v. Haskett, (1982) 30 Cal.3d 841, 846 [640 P.2d 776, 180 Cal.Rptr. 640]; People v. 147 annesetepatementtttightbeban innit fetes ag tse a igs anuosamaeamtrbisstmdncnoe Edwards, supra, 54 Cal.3d 787; People v. Love (1960) 53 Cal.2d 843 [350 P.2d 705, 3 Cal.Rptr. 665].) Appellant also urges this Court to reconsiderits rejection of certain other claims in previous cases. First, he contendsthat the trial court deprived him ofa state created liberty interest and due process of law by admitting this evidence and argument contrary to established California law. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [65 L.Ed.2d 175, 100 S.Ct. 2227]; Lambrightv. Stewart (9" Cir. 1999) 167 F.3d 477; contra, People v. Boyette (2002) 29 Cal.4" 381, 445-446, fn. 12 [58 P.3d 391, 127 Cal.Rptr.2d 544].) Second, the California Supreme Court‘s construction of Penal Code Section 190.3(a) under whichthe “circumstances of the crime” encompassesvirtually everything which “materially, morally, or logically” surrounds the crime is unconstitutional. This broad interpretation of Section 190.3(a) renders the statute void for vagueness, encourages arbitrary decision-making, and fails to provide proper notice to the defendant. (U.S. Const. Amends. V, VIII, XIV; Calif. Const. Art. I, §§ 7, 15, 17 and 24; contra, People v. Wilson (2005) 36 Cal.4™ 309, 358 [114 P.3d 758, 30 Cal.Rptr.3d 513]; People v. Boyette, supra, 29 Cal.4" 381 .) For all of the reasons discussed below, this Court must reverse the judgmentof death. Cc. The Basic Law Of Victim Impact. 1.The Limited Constitutiona] Authorization OfPayne v. Tennessee. In 1991 the United States Supreme Court radically altered the evidentiary landscape ofcapital sentencing with its decision in Payne v. Tennessee (1991) 501 U.S. 148 808 [115 L.Ed.2d 720, 111 S.Ct. 2597].) The Court partially overruled its previous decisions in two cases (Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529], and South Carolina v. Gathers (1989) 490 U.S. 805 [104 L.Ed.2d 876, 109 S.Ct. 2207]), which hadstrictly prohibited the introduction ofvictim impact evidence or prosecutorial argument on the subject in the sentencing phase ofa capital trial. A divided Supreme Court held that the Eighth Amendmentis not a perse bar to all “evidence about the victim and about the impact of the murder on the victim’s family.” (Payne v. Tennessee, supra, 501 U.S. 808, 825, 827.) The Payne majority reasoned that Booth v. Maryland, supra, 482 U.S. 496, had been toorestrictive as it “barred [the state] from either offering a ‘glimpse ofthelife’ which a defendant ‘chose to extinguish,’ [citation omitted] or demonstrating the loss to the victim’s family and to society which have resulted from the defendant’s homicide.” (Payne v. Tennessee, supra, 501 U.S. at p. 822.) Two general rationales were advanced in support ofallowing victim impact. First, victim impact evidence may demonstrate “the specific harm” caused by the defendant’s capital crimes which would be relevant “for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness ....” (/d. at p. 825.) Second, the state was entitled to present victim impact to balance mitigating evidence presented by the defense. (Jbid.) In the event that unduly prejudicial victim impact was admitted, the defendant could seek relief under the due process clause ofthe Fourteenth Amendment. (/d. at p. 825.) 149 ONSHORERAREUR Voy ednhgin ape enagt Yu 4 TOS 4 oe ater ca neenneihnnnameetinraionaanDeetenaidipiceteataoe ewe wang canteen Payne v. Tennessee removedthe “bright line” prohibition on victim impact imposed by Booth and Gathers and authorized the use of two types of evidence about the capital murder victim: “victim character,”i.e., evidence concerning the victim’s good qualities, life history and personal achievements; and “victim impact,” which is evidence ofthe effect of the victim’s death on others. The Court, however, did not specify the constitutional limits of this authorization. * If the Court’s holding is interpreted in light of the case in which it was made, Paynev. Tennessee plainly does not imply approval of extensive victim impact material. The victim impact evidence challenged in Payne was actually quite restrained, particularly in light of the underlying facts. In Payne, a twenty-eight-year-old mother and her two-year-old daughter were killed with a butcher knife in the presence of the mother’s three year old son whosurvivedcritical injuries in the attack. The disputed testimony was a briefresponse to a single question posed to the surviving child’s grandmother. Whenasked about what she had observedin the child after witnessing his 35 Nowwell into its second decadeas the law ofthe land, the range of admissible victim impact under Payne continues to be a source of controversy. In the nearly fifteen years since Payne was decided the Supreme Court has not taken the opportunity to address the substantive limits or procedural requirements ofvictim impact evidence and argument. The Court’s failure to provide further guidancein this area has been widely lamentedat all levels ofthe state and federal judiciary. Legal scholars have also observedthat the need for direction grows more acute as courts face an “overwhelming trend” toward the admission ofvictim impact in greater quantities and in a widening array offorms. (See Blume, Zen Years ofPayne: Victim Impact Evidence in Capital Cases (2003) 88 Cornell L.Rev. 257, 280.) 150 mother’s andsister’s murders, the grandmothertestified that the boy cried for his mother and that he missed herandhissister. In closing argument, the prosecutor argued that the boy will never have his “mother there to kiss him at night. His mother will never kiss him good night or pat him as he goesoffto bed, or hold him and sing him lullaby.” (Ibid.) Theprecise constitutional parameters ofvictim character evidenceare also uncertain based on the Court’s opinion in Payne v. Tennessee.*® Payne allowsjurors to receive some information about the victim’s personal characteristics beyond those facts disclosed in the guilt phase oftrial. The Supreme Court’s references to victim character evidence, however, do not impliedly authorize the introduction of extensive biographical information or detailed descriptions of specific character traits. Payne speaks of permitting the jury to see a “quick glimpse ofthe [victim’s] life.” The majority commentthat the victim need not remain a “faceless stranger” in the penalty phase of a capital trial. Payne at p. 825, quoting Gathers, 490 U.S.at p. 821 [109 S.Ct. at 2216] 36 The Supreme Court did not need to address the distinction directly in Payne because the testimonyat issue there wasactually “victim impact” as opposed to “victim character” evidence. The grandmotherin Paynetestified very briefly about her grandson’s reactions to the deaths ofthe victims - his mother and youngersister. The prosecutor’s closing argument also focused on the crime’s immediate and long term impact. Nospecific qualities were attributed to the victims and, as noted by the Payne dissenters, the jurors gained no more information about the victims in the penalty phase than they had received in the guilt phase ofthe trial. (Payne, supra, at pp. 865-866 (dis. opn. Stevens, J. and Blackmun,J.).) 151 peoneeweninehint) wcitiesgetite nce) + at peng etiamntcenBSNSninnecnabeeentermecmnsinpinyS wetade oo Ee a capt (O’Connor,J., dissenting). Elsewhere, the Court notes that the “uniqueness” and “individuality” of the victim may be considered as a meansofbalancing the defense evidence in mitigation. (See, e.g., Payne at pp. 839-839 (conc. opn. of Souter, J., and Kennedy,J.).) It could reasonably be argued that Payne sanctions only a very limited amountofvictim character information,i.e., enough to prevent the victim from becoming “faceless.” (See Blume, Zen Years ofPayne, supra, at pp. 266-267.) Whatis clear from the Payne opinion is the conspicuous absence ofblanket approval for any and all victim impact and victim character evidence. Paynedoes not sanction the wholesale admission of evidence aboutthe victim’s character, personal history, unique attributes and accomplishments. Nor does the Supreme Court in Payne suggest that evidence about the “impact” ofthe crimeis unlimited by concerns ofrelevance, probative value and undue prejudice. The victim character evidence presented in this case was that far reaching. The testimonyat issue in Payne consisted of a single response by one witness. This jury heard approximately 140 transcript pages of testimony over two court days. The prosecution presented nine witnesses, who not only spoke about their own experience but described the effects of Madden’s death on a widercircle of friends, relatives and members of the community. Arguably more significant are the qualitative differences between the victim impact testimony in Payne and the evidence and argument Appellant’s jury heard. In Payne, the grandmother’s response was a very brief observation about the sadness andsenseofloss 152 any normal child would experience after losing a parent anda sister. The testimony here was far more detailed, extensive and dramatic. The testimony about James Madden wasas exhaustive as evidence about the impact of his death. The family members and friends, some ofwhom werevisibly distraught during their testimony, disclosed every aspect ofJames Madden’s character, personality andlife history. Far from providing a “brief glimpse” ofthe victim’slife, the prosecution here performed a microscopic examination ofthe victim’s outstanding character and unique qualities. This case contains victim impact and victim character evidence of a magnitude never contemplated in Payne v. Tennessee. The Payne decision, therefore, does not support the admission ofall ofthe victim impact received here. As discussed further in the sections which follow, the reasoning ofPayne and other decisions in the state and federal courts requires that the sentence of death must be reversed due to the enormity of the prejudice which surely flowed from the evidence and argumentin this case. 2. The Relevance And Admissibility Of Victim Impact In California. Shortly after the United States Supreme Court’s decision in Payne v. Tennessee, the California Supreme Court decided People v. Edwards (1991) 54 Cal.3d 787 [819 P.2d 436, 1 Cal.Rptr.2d 696], holding that victim impact evidence and argumentis relevant and admissible under factor (a) of Section 190.3 — which allows the jury to consider the circumstances ofthe capital murder when deciding whether to imposelife 153 LernanepenananertatermemmieersbstintiioneSepsiseetSANE iat kine, Steg elmicgeRNegtenesNewnanwo eotestiny oie 8 imprisonmentor the death penalty. (Id. at pp. 835-836.)"’ The Edwards Court defined “circumstances”so broadly as to include almost any imaginable form ofvictim impact evidence: The word circumstancesas used in factor (a) of section 190.3 does not mean merely the immediate temporal and spatial circumstances ofthe crime. Rather,it extendsto “[t}hat which surrounds morally, materially, or logically” the crime. (3 Oxford English Dict. (2d ed. 1989) p. 240, “circumstance,”first definition.) (People v. Edwards, supra, at p. 833.) 37 The California Supreme Court has held that aggravating evidence is admissible in the penalty phase only where it is relevant to one ofthe factors set forth in California’s death penalty statute. (Pen. Code sec. 190.3; People v. Boyd (1985) 38 Cal.3d 762, 775-776.) 154 It is generally agreed that this set of relevant circumstances includesthe guilt phaseevidence,*® and anyofthe victim’s personal characteristics which were known or apparentto the defendant.*? Although both federal and state principles require that there be some “outer limits” for victim impact evidence, the California Supreme Court has given few indications,in the fifteen years since Edwards, ofwhere they may be found. The Court has refused to exclude from the realm of relevant circumstances matters which the defendant did not know and could not readily observe,”’ and has been similarly disinclined to confine victim impact evidencein other respects. For example, 38 See, e.g., People v. Clark (Richard Dean) (1993) 5 Cal.4th 950 [857 P.2d 1099, 22 Cal.Rptr.2d 689] [prosecutor’s argument concerning victim’s age, vulnerability and innocence]; People v. Zapien (1993) 4 Cal.4th 929 [846 P.2d 704, 17 Cal.Rptr.2d 122] [argument about the crime’s impact on victim’s children] People v. Fierro (1991) 1 Cal.4th 173, [821 P.2d 1302, 3 Cal.Rptr.2d 426] [prosecutor’s commentthat victim was killed in front of his business of 40 years and that his wife, who was present, will have to live with the memory ofthe shooting]. 39 See, e.g., People v. Wash (1993) 6 Cal.4™ 215, 267 [861 P.2d 1107, 24 Cal.Rptr.2d 421] [victim’s plan to enlist in the army which she discussed with the defendant]; People v. Montiel (1993) 5 Cal.4" 877 [855 P.2d 1277, 21 Cal.Rptr.2d 705] [victim’s general good health and positive outlook in spite of his need for a walker]; People v. Edwards, supra, 54 Cal.3d at p. 832 [photographsofvictims shortly before their death to demonstrate how they appeared to the defendant]. 40 See,e.g., People v. Roldan (2005) 35 Cal.4646 [110 P3d 289, 27 Cal.Rptr.3d 360]; People v. Pollock (2004) 32 Cal.4" 1153 [89 P.3d 353, 13 Cal.Rptr.3d 34]. 155 Ln,aestolentecce ienOnccalWAGE Wk onYon ager nena 2 eatenORRRHRescprbeanfsenea. tornzernepest Ce erates + once : metre se sist victim impact witnesses are not limited to persons who werepresentat the scene or soon thereafter,*’ and need not be membersofthe victim‘s immediate family.” 41 People v. Taylor (2001) 26 Cal.4" 1155 [3 CalRptr.2d 827, 34 P.3d 937]. 42 People v. Pollock (2004) 32 Cal.4” 1153 [89 P.3d 353, 13 Cal.Rptr.3d 34]; People v. Marks (2003) 31 Cal.4" 197 [72 P.3d 1222, 2 Cal.Rptr.3d 252]. 156 The expansive definition of “circumstances of the crime” established in Edwards has beencriticized as illogical, unconstitutionally vague and susceptible to arbitrary application. (See People v. Bacigalupo (1993) 6 Cal.4" 457, 492, fn.2 (disn. opn. of Mosk, J.); People v. Fierro, supra, | Cal.4™ at pp. 264-265 (conc. and dis. opn. of Kennard,J.).) The United States Supreme Court upheld California’s death penalty statute, including factor (a) of section 190.3, against a challenge alleging that the statute was unconstitutionally vague in Tuileapa v. California (1994) 512 U.S. 967 [129 L.Ed.2d 750, 114 S.Ct. 2630]. The High Court commented “The circumstances ofthe crime are a traditional subject for the sentencer, and an instruction to consider the circumstancesis neither vague nor otherwise improper. . .” (/d. at p. 976.) However, ‘the United States Supreme Court’s holding was based on the assumption that California would utilize a “traditional” definition of the circumstances ofthe crime. A more traditional and conservative approachto statutory interpretation would be to define “circumstance”as “[a]ttendant or accompanyingfacts, facts, events or conditions.“ (Black’s Law Dict. (6" ed. 1990) p. 243.) A federal court has defined “circumstances” as “facts or things standing around or about somecentral fact.” (State ofMarylandv. United States 4" Cir. 1947) 165 F.2d 869, 871.) Another state court has defined “circumstancesofthe offense” as “the minor or attendant facts or conditions which have legitimate bearing on the major fact charged.” (Commonwealth v. Carr (Ct.App. 1950) 312 Ky. 393, 395 [227 S.W.2d 904, 905].) 157 However, to the extent “circumstances ofthe offense” entails a non-rational, emotional appeal to passion and prejudice against the defendant, the defendant is denied any ability to defend on a rational basis or to mountan effective challenge to a demand for death based on facts and reasoned judgment. This violates the Eighth and Fourteenth Amendments becauseit prevents the jury from giving due consideration to any factor the defendant might present that might justify a sentence less than death. (See Eddings v. Oklahoma (1982) 455 U.S. 104, 107 [failure to allow sentencer to consider mitigating factors violates the Eighth Amendment].) (See, Woodson v. North Carolina (1976) 428 U.S. 280, 304.) Appellant contendsthat this is what occurred in his case. The California Supreme Court has acknowledgedthat the United States Supreme Court has not considered whether factor (a) is unconstitutionally vague to the extent that it “is interpreted to include a broad array of victim impact evidence ...” (People v. Boyette, supra, 29 Cal.4" 381, 445, fn. 12.) Asreflected in the capital decisions ofthis Court, the array of victim impact evidence is expanding at an increasingrate.” Asthe amountof victim impact offered and admitted grows, so does the likelihood thattrial courts will erroneously admit irrelevant victim impact in an unconstitutionally vague and arbitrary application of California’s statute. 43 See Through the past darkly: A survey ofthe uses and abuses ofvictim impact evidence in capital trials, 41 Ariz. L.R. 1:143 (1999). 158 Forall ofthese reasons, the time has come for the California Supreme Court to refine and narrow the definition of relevant circumstances set forth in Edwards. Appellant urges the Court to reconsiderits rulings declining to expressly limit victim impact evidence to matters which the defendant knew or might have observed. (See, e.g., People v. Roldan (2005) 35 Cal.4" 646 [110 P.3d 289, 27 Cal.Rptr.3d 360]; People v. Pollock (2004) 32 Cal.4" 1153 [89 P.3d 353, 13 Cal.Rptr.3d 34].) Alternatively, it is respectfully suggested that the Court adopt a narrowerdefinition of“circumstances”for purposes ofPenal Code section 190.3 which would be less susceptible to arbitrary decision-making and would provide proper notice to the defendant. Evidence whichis relevant pursuant to Penal Code Section 190.3(a), remains subject to exclusionif it is cumulative, misleading or unduly prejudicial. (Evid. Code §352; People v. Box (2000) 23 Cal.4® 1153, 1200-1201; People v. Staten (2000) 24 Cal.4" 434, 462-463.) Victim impact is subject to exclusion or limitation like any other proffered evidence. (See, e.g., People v. Gurule (2002) 28 Cal.4" 557, 654 [51 P.3d 224, 123 Cal.Rptr.2d 345].) People v. Edwards cautions that excessively emotional victim impact evidence carries an unacceptable risk of improper prejudice: Our holding does not meanthat there are no limits on emotional evidence and argument. In People v.Haskett, supra, 30 Cal.3d at page 864, we cautioned, “Nevertheless, the jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason. [Citation.] In each case, therefore, the trial court muststrike a careful balance between the probative and the prejudicial. [Citations.] On the one hand,it should allow evidence and argument on emotional though relevant subjects that could provide legitimate reasons to sway the jury to show mercyor to imposethe ultimate sanction. On the other hand,irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role 159 a or invites an irrational, purely subjective response should becurtailed. (/d. at p. 836,fn. 11.) However, as noted above with respect to relevance, the exclusion ofvictim impact evidence for undueprejudice has largely remained merely a theoretical possibility. The California Supreme Court has yet to reverse a capital case based on the admission ofunduly prejudicial victim impact evidence. This Court’s capital decisions providelittle guidanceto trial courts needing to make evidentiary rulings on larger quantities and wider-ranging varieties ofvictim impact material and, forall ofthe reasons discussed previously, Appellant respectfully suggests that the administration of justice in this state would benefit from this Court’s guidance in this area. However, even without more specific instructions on the proper balance ofprejudice and probative value in the admission of victim impact evidence, the evidence in this case should not have been admitted according to basic concepts of due process of law and fundamental fairness. The California Supreme Court recently stated that reversal based on unduly prejudicial victim impact will only be justified in an “extreme case.“ (People v. Smith (2005) 35 Cal.4" 334 [107 P.3d 229, 25 Cal.Rptr.3d 554].) “4 Appellant’s is the extreme 44 The Court in Smith found the brieftestimony ofthe motherofthe child victim was not inflammatory. The Court commented: “We do not, however, know of any cases after Payne and Edwards holding victim impact evidence inadmissible, or argumentbased on that evidence improper. The references in Payne and Stanley [People v. Stanley (1995) 10 Cal.4th 764, 832 [897 P.2d 481, 42 Cal.Rptr.2d 543]] to the 160 case wherereversal is necessary. The victim impact evidence was moreplentiful, its content more inflammatory and the mannerofits presentation more emotional than in any other decision issued by the California Supreme Court. As discussed in greater detail in the sections which follow, this evidence and argument combine several distinct forms of improperprejudice, any one of which would support a claim for reversal. This combination of inflammatory evidence and argument produced an overwhelmingly prejudicial atmosphere in which the jury was unable to perform its proper function at sentencing. Under these circumstances, there is an unacceptable risk that this jury’s decision to impose a death sentence was based on emotion rather than reason. (Gardner v. Florida (1977) 430 US. 349, 358 [51 L.Ed.2d 393, 97 S.Ct. 1197]; Gregg v. Georgia (1976) 428 U.S. 153, 189 [49 L.Ed.2d 859, 96 S.Ct. 2909].) D.The Voluminous Testimony Describing The Impact of the Crime On The Victim’s Family Was Largely Irrelevant And Unduly Prejudicial. exclusion of unduly inflammatory victim impact evidence contemplates an extremecase, whichis notthe situation here.” (People v. Smith, supra, at p. 365.) 161 Each of the four family members gave lengthy testimony relating how they learned of James Madden’s death, their immediate reactions to the news, and their present feelings of loss and sadness. The witnessestestified not only about their own reactions, but also described the impact on the testifying family members and other relatives who did nottestify in the penalty phase. Three family members andthree other witnesses described the crime’s impact on Sissy Madden. Sissy Madden and Judith Sykes were questioned about the way the crime has impacted James Madden’s mother, Joan Madden. All four ofJames Madden’s family members were questioned about the effect of the crime on his daughter Julie; and two witnesses described the impact on his elderly grandmother. Appellant contends that the testimony given by the victim’s four family members (the wife, mother, sister, and brother-in-law) was too detailed and far too plentiful. This testimony, however, was at least arguably relevant victim impact. The same cannot be said for testimony consisting ofmerely the witnesses’ impressions of another person’s state ofmind. Sissy Madden and Joan Madden werepresent in court to speak for themselves. The jury did not need to hear two additional descriptions of Mrs. Joan Madden’s emotional reactions. Having jurors hear another six accounts of the crime’s impact on Sissy Madden was absurd. The extensive accounts ofthe impactto the non- testifying witnesses (the victim’s daughter and grandmother) were also inappropriate and highly prejudicial. At most, one witness could havetestified briefly about the crime’s negative impact on the two non-testifying members of the immediate family. 162 1. Sissy Madden- the victim’s widow. The victim’s widow, Sissy Madden, appeared as a penalty phase witness for the prosecution. Mrs. Maddenrecountedin detail the events ofthe morning of January 29, 1991. Shetestified about her own reaction upon learning ofher husband’s death, and also described the shock and grief experienced by their young daughter, Julie. (See 83 RT 22001-22015.) Mrs. Madden’s testimony was certainly emotionalbut it was presumably a competent and reliable account of the crime’s impact. The prosecutor, however, questioned six other witnesses about Sissy Madden’s and Julie Madden’s immediate reactions and the ongoing effects of the victim’s death. a. Immediate responses on January 29, 1991. Two witnesses worked with Sissy Madden in the Biology Departmentat the University of Santa Cruz. (82 RT 21880-21881.) Her boss, Kay House, and co-worker, Susan Thuringer, recalled how Sissy arrived at work tearful and upset on the morning of January 29, 1991. Jim had not come home from work the previous evening and had not called her. (82 RT 21881.) Sissy told Kay House she “had a feeling somethingterrible had happened.” (82 RT 21886.) House, Thuringer and other friends and co-workers madetelephonecalls looking for information about James Madden. Thuringer called her friend who wasthe Chief ofPolice for the City of Watsonville. He returned hercall and reported that Maddenhad been killed. (82 RT 21882.) The Santa Clara Police Department called. They said notto tell Sissy; that someone wason the wayto give her the news. (82 RT 21883.) Thuringer and House 163 decided totell Sissy, however, because she had becomeso distraught that she was about to leave to search for her husband. (82 RT 21883; 21888-21889.) Thuringer described Sissy’s reaction: “She reacted like — just like a wounded animal. She screamed andtried to get up and get away andwerestrained her and tried to comfort her.” (82 RT 21885.) Ms. Housealso described Sissy’s reaction: She screamed. She screamedfor a long time. You know,it was pretty awful. Everybody in the building heard it. Il] probably never forgetthat. And wetried — she was flailing around physically. We tried to hold her down and comfort her. And aboutthat time the detective — I don’t rememberhis name — arrived to help us andtell her what was really going on. (82 RT 21888-21889.) Detective Brian Lanetestified about going to notify Sissy Maddenat heroffice. Whenhearrived just past 10:00 a.m. he could hear someonescreaming and crying. (82 RT 21893-21894.) Sissy was “very hysterical and crying and upset and asking questions like how and whyandthat type of thing.” (82 RT 21894.) It was difficult for Lane to continue the investigation that day at the Madden homebecause Sissy was so upset and the family photos in the house were difficult for everyone to look at. (82 RT 21895.) b. Sissy Madden’s long term reactions. Not surprisingly, the prosecutor asked Sissy to testify about the crime’s continuing impact: Qs Mrs. Madden, how has the murder ofyour husband impacted on you and yourlife? 164 A It's I miss my husbandterribly. I loved him very much. It I whenthis first happenedI I just feel empty. I feel at times I feel incredibly lonely. I'm very glad that we that Jim and I have a daughter. I love her very much andI I'm afraid of anything happeningto her. It's I before this happened we we just were such a happy family. Andit's not thatit's it's just it's not that we're not happy, it's that there's something missing. (83 RT 22012.) The prosecutor, however, was notsatisfied with the witness’s account ofher own feelings. The testimony about the ongoing effects of the crime on Sissy Madden was even more extensive than the descriptions ofher immediate shock and distress. Eric Linderstrand,testified: It's been ruinous. She has she has been in therapy. Shetries to put up the brave front. What are you going to do? You got akid. At times I think she thought of suicide, but you can't. You know, what held her back, and I guessit's fortunate,is that she has her child. I'm sure she would have neededhelp. She was she wouldn't get out of bed. You know, she was sick. She throwsup all the time. She wouldjust throw upall the time. She would haveto leave work and go throw up. Pardon me. That's not I don't meanto it's not the easiest thing to talk about, that kind of thing, but I mean, her body reacts. She's got psoriasis. It's all over her. She hadit before, but the emotional I mean, these are small things. It's all these small things. I mean,it's like all over. Q _Is your sister someone whoeasily shows her emotions or not? A I would saythat she is not really prone to. She holds thingsin. * KK 165 races enPOrrAORSHRMAN alaSAeeMOOIEent ean oan I mean, she doesn't whereas I mightfly off the handle or my othersister might fly off, she's more introspective. You can she doesn't, you know. But I can seeit, you know. She will comeout ofthe room and youcan tell she has been crying. Her eyes are red. But she I think especially is trying to keep a brave front for Julie. She tries to have supportive put up a good demeanor, but I know inside she is crushed. (83 RT 21982-21984.) Kay Housetestified that Sissy Maddenstill struggles, and that the judicial process has addedto her suffering. Shestill has a lot of trouble with it. I mean, she has come a long way. I mean, whenshefirst came back to work, you know, she wasin tears, she was in tears every day, and, you know,couldn't really focus or do her work. And she's gotten past someofthat, butit's still difficult. And with the trials going on and everything,it's very difficult. She still has really bad days. And, you know,shetalks pretty openly with us aboutit, butit's still a struggle every day I would think. Q___Now,you've been called to testify before; is that correct? A Yes. Q And when you're notified, how is it that you get notified to come? A We've been telephoned at home and then they fax the subpoenas to us in our Office. Q__ Allright. Does that present any difficulty in terms of you said something aboutthetrial. A Well, she I mean,it's you know,it's upsetting to her. She knowsit's going on and she has been here for them. Andthis lasttrial, when the subpoenas came at work, she happenedto bethefirst person in the office in the morning and usually the first person in takes any incoming faxes out and puts them in the mail boxes for the faculty or whoever they belongto. She wasactually the first person to see the faxes. Both Susan and I had intendedto get to work early to intercept them. She got there early, before us. She was pretty shaken, because she hadn't realized they were coming andit's just another reminder. 166 (82 RT 21888-21890.) Sister-in-law Judith Sykes was askedto relate the crime’s effects on Sissy Madden: A Well, the obvious things are obviously she was left with a small child, to deal with not only her grief, but a child's grief. And in my opinion, it's much different if someoneis killed senselessly and brutally and you lose someonethat way versus someone accidentally dying in a car accident or of natural causes. Somethingsare really acceptable, even thoughit's very difficult and you miss the person. Somehow you can accept certain things. This type ofthing is not acceptable. It's hard to get past. (83 RT 21997-21998.) Mother-in-law, Joan Madden,testified about the holiday season and how difficult that time ofyear was for everyone- particularly Sissy: They just every year we make wedecide this is going to be a good year and we're going to makeit a happy year and weall try. We really do. We try to keep really up for Julie, but after it's over we're all depressed. I didn't even think Sissy was goingto get out ofit this year. That's one ofthe reasons we planned a family vacation this year, because she really had a hard time with depression. (83 RT 22039.) 2. The effects of the crime on non-testifying family members. Two membersofthe victim’s family received considerable attention in the penalty phase although neither testified. Witnesses were asked to describe the effects of the crime on James Madden’s elderly grand-mother and his daughter, Julie Madden. 167 Julie was a constant presence in the penalty phase, and each memberofthe family gave a detailed account of the devastating effect ofher father’s death. Sissy Madden was questioned about the impact of the crime on her daughter. She described the child’s immediate reactions. Q_ Andlet me ask youthis about Julie: When Julie when you hadtotell Julie that her father had been murdered, did she have any difficulty in believing that or accepting that or not? A She didn't want to believe it and she didn't she did not believe that her father was dead until the funeral. % XE She did not believe that he had died until she saw she went to the funeral and saw hiscoffin. ** Andthen shefinally believed that her dad was dead. (83 RT 22014.) Sissy Madden spoke more extensively about the crime’slasting impact on her daughter. Q How hasthis murder impacted on Julie? A It has robbed her ofher innocence. She she knowsnow thatthere's an awful lot of bad people out there and she had to learn that when she was seven. She knowsthat the world is not a safe place and she Q_ Haveyouseen anything in her behaviorthat tells you that? 168 A The whenthis first happened she wouldn't I couldn't if I walked out of the room she had to know where I was going, because she wasafraid something was going to happen to me. She slept with me every night for almost a year and a half. She wouldn't sleep in her own room. She's twelve years old now. She won't sleep with thelight off in her bedroom. Q__I'msorry? A She won't sleep with the light off in her bedroom becauseshe can't sleep in the dark. She gets in the beginning she would get terrible stomachachesand she was afraid that she was going to die. She, from timeto time, still gets them now. She's been seeing a therapist since she was seven and she continues to see him. She's Q__Let me ask youthis: I don't have much more. Yousaid she is twelve years old now. Soshe's getting into that age where social functions happen. A Umbhum. Q___ Haveyouseen anything in that regard as to how this has impacted on her? A Ather school they have every year they have a fatherdaughter dance and we have a wonderful neighboracross the street that took Julie with his daughter and that was you know,that was okaythefirst year, but then the second year she didn't really wantto do it because she wanted she just sort of felt you you couldtell her dad was not there. (83 RT 22013-22014.) The prosecutor asked each ofthe three other family members to describe the crime’s effects on Julie. Eric Linderstrandtestified: You know,mysister, you know, growing up,herlife had seemed kind of hard and she meets Jim andlife is good and, you know, nowitjust gets ruined. It's been ruined. It's like it hurts to see them. They'relike the living dead. 169 For well over a year Julie didn't want to go outside. She was afraid. She's always looking over her back. She is afraid someoneis after her. Things you wouldn't normally do unless you're trained and you have an eye. I never thought about that. You know, someonetold mejustit's like a living wound. It's Q___ Have you been in a position to see how Jim's murder has affected his daughter Julie? A Yeah. It's affected her in the well, several ways. Her schooling has been impaired. She has had to take some remedial classes, and the common census was it was because she wasso freaked out. She wasafraid ofbeing stalked. She wasafraid of she would neverlet her mom out ofher sight for well over a year practically. My sister couldn't even when she wentto the bathroom Julie wasright there. "Where are you going? Why are you leaving? What are you doing there? Stay." "Julie, I'm just going to the bathroom. No, no." She would cry. Nightmares. Andit's so just so wrong. It's you know, she is seven. Now she's gotto try to put her life together and the and the best situation is God, this makes me so mad. (83 RT 21984-21985.) James Madden’ssister, Judith Sykes, was also asked about Julie’s responses to her father’s death: Q Could youtell me how she's been impacted by the murder of her father. A Forthe first year Sissy could not go from inside the house to outside the house where Julie couldn't see her without Julie becoming so hysterical that she was actually throwing up. And had I not seen it with my own eyes I would have foundit hard to believe. But my husbandand I were overover her over their house and we were helping Sissy with something in the backyard andinitially just my husband and I were in the backyard and Sissy walked out ofthe front door, walked around the back and Julie let out this scream and we thought she fell down or got hurt in the house and of course weall ran in. 170 And shewas just frightened, the fact that she was by herself, she knew her dad was by himself and the fact she didn't know where her mother was. Andthat was pretty traumatic for all of us. Andit took her a long time to be able to let Sissy go out of her sight, even if she stayed with my mother who she always stayed with, you know,ifmy brother andsister went out. If they weren't home when she thought if Sissy wasn't home whenshe thought she should be, she would say, "Well, she's been killed." I mean,that's a pretty strong thing fora little kid every time their parent goes away and doesn't come home, you know,within five minutes of their time that, you know, they would think they had been killed. (83 RT 21998-21999.) The direct examination continued: Q Haveyou have you beenin a position to see whether let me rephrasethat. Have you and your husband Jim gone over to Sissy and Julie's to help do things that Jim would have done before? A Actually we do on somewhatofa regular basis. In fact, last spring we went overto build like a like a little enclosure over their water pump and wekind of tried to makeit a fun experience, but it became very obvious by the end ofthe first day that this is something Julie would be helping her father do and not her uncle andit turned outto be a pretty solemn weekend. Q What do you mean? A Well, I mean, Julie would you know, Jimmy would try my husband Jimmy wouldtry to, you know, say, "Well, okay, hold this board" and that sort of thing andit in fact, Julie finally said, “You know,this is something that I used to help my dad with." And then that evening she she had some nightmares. (83 RT 21999.) Finally, the victim’s mother, Joan Madden,testified at length: Q Now, have you been in a position, Mrs. Madden,to see how Julie, your granddaughter, has been affected by her father's murder? 171 aMARGATEeeWantNagsrrp A Yes, becauseI tried after Jim was killed wetried to spend weekends with Sissy, one ofus all the time, because we knew she needed the support and the help and wehadto be there. So I saw Julie all the time. Q_ Allright. How has Julie been affected by this? A Julie has beentotally panicked aboutall of this. She just she panicsat the slightest thing. She couldn't let her mother go out on the patio. She couldn't she just knewthat something was going to happento her. If she fell down andcried and wetried to comfort her, she would say, “You don't understand. My daddydid everything, took care of everything." Q Have youtried well, what wasyourrelationship like with Julie before your son's murder? A Oh,she's the apple ofmy eye. She and I were great friends. She always wanted to stay with grandmother and grandmother always wanted her. But, of course, like daddy usedto say, "Well, you can stay, but just remember, you can't spoil her. She has to come home." Q Would she goplaces with you? A Everywhere, yes. We weshe she liked to come up andstay for the weekend or she any time she was ill once Sissy went back to work, any time she was ill she they would call me and I would comeand she would stay with me while she was sick. Like she had chicken pox andstuff like that. She would stay with me, because she couldn't go to any kind of day care and so I would take care of her and she would stay with me. Q Would youtake her other places or on trips, or would she come see you? A Umbhum. Wewentto well, actually at that time wetried to do things as a family, camping and things with Judy and Jim and Jimmy andSissy and Julie and take her you know,just try to keep vacations together as much as we can so that she would have a sense of security that she hadreally lost. 172 Q_ After your son's death, was there any change that you noted on Julie's part as to whether she was willing to go with you? A She wouldn't come and stay with me. She wouldn't leave her mother. She wouldn't leave her mother. Even whenI was there babysitting her, she was hadto call her at work twoor three times a day to make sure she was okay. Orone day she waslate coming in from work and she said, "My motheris dead." AndI said, "No, your motheris not dead." "Yes," she said, "Yes, she is. Somebody has got her." And she was just panicstricken. It took me two anda half years to finally get her to go with me again. (83 RT 22035-22037.) The witness continued to relate other incidents: Q___Now,do you rememberan incident that you told us about before about on a Mother's Day shopping A Yes. Q What do you rememberaboutthat? A Since Jim was very good about taking Julie and wanted Julie to continue to learn that she should have the holidays not just for everything she's going to get, but to give, my daughter andI havetried to make sure that each holiday we take herto pick something out for her mother. And we were doing this on this Mother's Day and Julie and I, and we had spent the whole day shopping andshefinally made a choice. We wentto lunch and wefinally started home. Q___ Let me stop you just for one second. Do you remember which Mother's Day this was? Was it a couple 8 years ago? A Oh,yeah. It was probably about twoor three years after my son waskilled. Q_. Allright. Okay. And go ahead. So you were taking Julie shopping. What happened? 173 A We weretaking Julie shopping and we were on our way homeandshesaid, "Gee, grandmother, you know whatI really, really wish?" And I thought she had seen a toy and I thought, well, I guess that's her Christmas list coming up. Andshe said, "I wish if you had to die you only had to die for one day." Q___— Do youstill notice things about Julie that showsthat this still impacts on her to this very day? A Yes. This past year for Mother's Day we were shopping and four ofus went, my daughter and Julie and Sissy and I, and we separated so that Julie and Judy could go and choose hergift for her mother. AndSissy and I went shopping and we were going to meet for lunch and when wegotto the lunch table I just jokingly said, "Gee, I lost Sissy today. Couldn't find her in the store." And of course we thought that was kind of funny, but Julie said, "And you thought somebody got her, huh?" And I said, "No." It hasn't left her. (83 RT 22038-22039.) Another highly sympathetic family member received special attention in the presentation ofvictim impact evidence. James Madden’s maternal grandmother was 91 years old at the time ofthe trial. Madden’s motherandsister testified that James was a particularly attentive and loving grandson; they also described the severe impactofthe crime on his elderly grandmother. The prosecutor questioned Judith Sykes: Q Did you and Jimmyhave a grandmother? A Yes. She's still alive. She just turned 91. Q_ Allright. Were you everin a position to see what Jimmy's relationship was like with your grandmother? A Their biggest thing together, as they got older anyway, that I noticed, was baseball. My grandmother grew up in New York and she was a big baseball fan. At the 174 time the baseball team she followed was called the Brooklyn Bumsand now they're the L.A. Dodgers. And she's always been a diehard Dodger fan. And she and mybrother used to go to baseball games together and he would actually try to make it a point a couple of times a year that just the two ofthem would go. (83 RT 21992-21993.) Joan Madden gavesimilar testimony describing the relationship between grandmother and grandson: A They weregreat buddies. Q__ And how so how wouldyoudescribe their relationship? A They're both Dodger fans and he was very good with her and he would explain a lot of the plays she didn't understand and he took her for her 80th birthday we went to L.A. and he took her to the gameand gotherall the souvenirs and did everything he could to makeit a big day for her. (83 RT 22028-22029.) These two witnesses described the crime’s impactin nearly the same way. Judith Sykestestified: Q Haveyoubeenin a position to see let me ask you this: Have you seen your grandmother'slife change as a result of this? A Yeah. Actually she as I said, she's 91, so she is not she's certainly not running around the block, but in my opinion she's becomefrightened. She gets in a panic if it becomes dusk and my motheris not home. Whenshe’s homebyherself, she tends to want to close the curtains and things so people don't ifthey walk by they don't see that she's sitting in there by herself. AndI think that's to my observation Is that it's an impact of that the world has gotten more violent and she's a bit frightened. 175 ANEIRENEODLSFORRASAP (83 RT 21997.) Joan Madden gave substantially similar responses to the same questions: Q___ Have you beenin a position to see how this has impacted on your mother, Jim's grandmother? A My mother was very hard of hearing before this happened. Afterit happened, she hears nothing. She just kind ofgave uplistening. (83 RT 22035.) 3. The Victim Impact Testimony Was Inflammatory, Unreliable And Excessive In Comparison To This Court’s Other Capital Decisions. The California Supreme Court has allowed witnesses to testify about “manifestations ofthe psychological impact” they have experiencedas a result ofthe murder. (People v. Brown (John George) (2004) 33 Cal.4” 382, 397-398 [93 P.3d 244, 15 Cal.Rptr.3d 624].) The testimony in those cases, however, differs in several critical respects. In California cases, the testimony ofthe victim’s survivors has been relatively brief and general, and described less dramatic symptoms of emotional and psychological stress. Moreo+ver, the testimony is usually limited to the witnesses’ descriptions oftheir own experience- not their impressions of another person’s reactions. In People v. Brown (Andrew Lamont) (2003) 31 Cal.4th 518, this Court rejected defense claims of undue prejudice where two victim impact witnessestestified that they were still scared to go outside at night, more than three years after the crime. The Court observed:“It is common sensethat surviving families would suffer repercussions from a 176 young woman’s senseless and seemingly random murder long after the crime is over.” (id. at pp. 573-574.) Recently in People v. Wilson (2005) 36 Cal.4™ 309 [114 P.3d 758, 30 Cal.Rptr.3d 513] the victim’s sister’s testified that she could not understand why someone whomthe victim had befriended and whom hetrusted would kill him, and that whendetectives told her “it was for money”she “was angry that someone would kill for that.” This Court found that the sister expressed merely an “‘understandable human reaction.”(Id. at p. 357, quoting People v. Brown, supra, 33 Cal.4" 382, 397-398.) (See also People v. Stitley (2005) 35 Cal.4™ 514, 564-565 [108 P.3d 182, 26 Cal.Rptr.3d 1] [statement by victim’s husbandthat she was his “whole life”]; People v. Pollock, supra, 32 Cal.4" 1153 [normalfor friends of elderly victims to be shocked to learn ofthe brutal murders].) Someofthe strongest victim impact testimony permitted to date was given by the son of an elderly couple who were brutally murdered in the family home. In People v. Pollock, supra, 32 Cal.4" 1153, the defendant killed a husband and wife by slitting their throats. The opinion contains the following description of the testimony given by the victims’ adult son. Donald Stephen Garcia, the victim’s son,testified that he had cleaned the bloodstains from his parents’ house and that he had decidedto sell the property because “it was such a savageact, I just couldn’t have the memory oftheir murder that close to me.” Healsotestified that he had been forced to suppress his memories ofhis parents. Hegavethis explanation: “If I think about them I’m miserable, so if I don’t think about them I’m not miserable. So it’s kind of like my childhood was taken away from me and any memory ofmy parents was taken from me because-- the major problem I haveis 177 AATRelmmtetficng tS ota eiaeEN Figo eI aaNetBeYaLMRbanaleNsAReMart 8 the savageness of this murder” because he knew his parents must have suffered greatly in the last 15 minutesoftheir lives. (People v. Pollock, supra, at p. 371.) The victim impact testimony at issue here was both more extensive and more prejudicial than in any ofthe reported cases discussed above. Jurors in this case heard detailed accounts ofthe suffering resulting from the victim’s death. The witnesses not only related their personal feelings, but also described in great detail the reactions of other family members. Asa result, the jurors were told about Sissy Madden’s grief seven times. Julie Madden’s reactions were described by four witnesses, and the victim’s grandmother’s responses by two witnesses. The testimony was unquestionably cumulative. Unneededrepetition ofthe prosecution’s evidence is neary always prejudicial. In this instance, the effect was catastrophic. The family members’ intense grief, shock and despair were predictable reactions to the news ofJames Madden’s death. The testimony relating every detail of Sissy and Julie Madden’s seemingly unending mourning process could not have been expected by these jurors. Mourning is an active, participatory experience. It is rarely a phenomenon viewed with detachmentandit is this aspect above all which made this evidence so improper. The Missouri Supreme Court accurately identified this type of prejudicial effect. In State v. Story, supra, 40 S.W.3d 898, the court held that a photograph ofthe victim’s tombstone was not relevant to show the impact ofthe victim’s death, “andit 178 inappropriately drew the jury into the mourning process.” (/d. at p. 909.) In Welch v. State (Okla. 2000) 2 P.3d 356, the Oklahoma Court of Criminal Appeals held that it was error to admit evidence that the victim’s son put flowers on his mother’s grave and brushed the dirt away. The Oklahoma Court found that this evidence “hadlittle probative value ofthe impact of [the victim’s] death on her family and was more prejudicial than probative.” (/d. at p. 373.) Hearing this many emotional accounts of the widow andchild’s continuing grief and trauma had the sameeffect on the jurors in this case. This is precisely the type of inflammatory testimony capable of diverting the jury from its task or provoking an improper emotional response. E. The Victim Character Evidence Was Largely Irrelevant, Cumulative And Created Overwhelming Prejudice. The jury responsible for choosing life or death for Chris Spencer was instead flooded with information about the victim, James Madden. The witnessesrelated Madden’s entire life history beginning with his childhood and teenage years, through his college experience, his courtship and engagementto Sissy, their marriage and family life. Jurors heard about every place James and Sissy lived and worked. The jury was given multiple accounts portraying James Maddenas an exceptional husband andfather. Jurors were given a detailed view of James Maddenin eachrole ofhis life: son, brother, friend, husband and father. The witnesses described every aspect of his personality in testimony that included many touching anecdotes highlighting particular features ofhis sterling character. This already emotional evidence was augmented with a number of 179 touching family photographs showing James Maddenreading his daughter a bedtime story and playing with her in front of the Christmas tree. This jury received an in-depth profile of the victim bearing no relationship to the “glimpse of the life” the United States Supreme Court sanctioned in Payne v. Tennessee. The victim character evidence presented here was prejudicial through its sheer excess. Moreover, it contained several forms ofprejudice which other state and federal courts have recognized as improperin capital sentencing. Forall of the reasons discussed below,the trial court’s admission of this evidence was error according to California law and deprived Chris Spencerofhis state and federal constitutional rights to due process of law anda fair and reliable sentencing. 1. The evidence and testimony describing the victim andhislife history. Each of the family members was asked to describe their relationship with James Madden. This testimony was interspersed with information about Madden’slife history from childhoodto the time of his death. The prosecutor began his examination ofthe victim’s mother, Joan Madden,by asking for a description of her relationship with her only son: Q__Now,I'm going to be asking you some questions about your son, Jim Madden. Could youtell us little bit about your relationship with your son over the years. I know that's kind of an openended question. A Well, he was always a good son. He was the kind son a motherjust always wishes for and I got. He was loving and warm and funny and considerate. He grew up to be a fine young man. Married a great girl. He just was a good kid. 180 (83 RT 22023-22024.) Not surprisingly, Mrs. Madden becamevisibly upset at this point.’ When she was able to continue, Mrs. Maddenrelatedall the significant details of the first twenty years of her son’slife. a. James Madden’s early life. 45 The witness’s discomfort is apparent from the record: Q_ Allright. Now, Mrs. Madden and if you needto take a moment, just let us know. Okay? Do you needa glass of water? A No, I'm fine. Thank you. Qs Okay. Let us know. (83 RT 22024.) 181 Joan Maddentestified about her son’s childhood. James always enjoyed sports. Heparticipated in Peewee League baseball and Cub Scouts; and later he ran track. As a teenager James Madden was “very, very much into church.” | He wasactive in his church youth group, and frequently wrote lay sermons. For sometime, he considered becoming a minister. (83 RT 22024-22029.) His oldersister, Judith Sykes, gave the following description ofMadden: He was a very he wasstrong, but he was very gentle and compassionate. He liked people a lot. He he was kind. Heone thing I rememberis he had a great imagination and I was always jealous of that. But he was a very nice person. He was somebody that even ifyou weren't related to him you would probably like him if you, you know,just met him. And he wasjust a nice, gentle person. (83 RT 21987-21988.) After high school, James Madden wentto college at San Jose State, but later transferred and graduated from San Francisco State. (83 RT 22025.) Asa college student, he worked as a puppeteerat a place called Happy Hollow to help pay for his expenses. Madden designed and built a puppet crow named Benjamin which heusedin all of the children's shows. During her testimony, Joan Madden retrieved a newspaper clipping about her son’s work at Happy Hollow from the photo album she brought to court. (83 RT 22025-22026.) James Madden andhissister were good friendsin spite of the fact that she was five and one-half years older. Judith moved to Hawaii when James wasin high school, and he cameto visit her every summer. Judith Sykes was asked: Q_ What kind of a brother was Jimmy? 182 A He wasactually he was a good brother, because he was always thereI alwaysfelt like he was there if I needed him for anything, yet he wasn't, you know, someone whowas always in my business or standing on my doorstep. He was just very supportive. He wasa strong, supportivetype person and yet we could go out and, you know,to a party or to the movies and just be friends. We didn't have to be, you know,brothersister. We it was goodrelationship, because we were brothersister, but we were also very good friends, I think. (83 RT 21989-21990.) b. James and Sissy meet and become engaged. In the summer of 1978, Madden metSissy’s brother, Eric Linderstrand, through somefriends from college. Linderstrand and Madden had many commoninterests and quickly struck up a friendship. (83 RT 21977-21978.) Linderstrand described James Madden’s character and provided someillustrative anecdotes: [H]Je wasjust a really good guy. He was without trying to put too fine a point on it, he was a real generous kind of guy, go out of his way to help you. There was a couple oftimes that he helped me out of some scrapes, small stuff. Like one time I had I was late for an appointment. He went out of his way to drive me through San Francisco. Things like that cameto just show that he had a very caring quality, go out of his way to help you and Q Okay. Now,I'm going to ask you somethings. First of all, you mentioned that Jim Maddenwas first your friend and then became yourbrotherinlaw;is that right? A That's right. Q What kind ofa friend was he to you? A He was a good friend. Like I say, he we hadlots of fun together. We had common interests. We both liked to golf, both liked photography. He was really an avid amateur photographer. Enjoyed movies. 183 And there were several times where he went out of his way to help me out of daily small messes and problems. I remember, because he had to give up something to do, what he was doing, to drive me through rushhourtraffic. It really stuck with me. (83 RT 21978-21979.) James Madden metSissy later that summer when a mutualfriend brought him over to her parents home. (83 RT 21978.) According to Linderstrand, it was a “storybook romance.” (/d.) The Madden family saw a great deal of Sissy when she and James were dating; and theyall liked her very much. (83 RT 22025-22026.) Both families were delighted when the couple announced their engagement. (/d.) Judith Sykestestified that the two families met during the holidays, and everyone got along very well. (83 RT 21989.) Eric Linderstrand recalled how James told him that he and Sissy were getting married. There was an occasion. I kind of rememberit fairly well. I was attending school in San Francisco, lived in the San Joaquin Valley, as did Jim's family. And he hada car. I didn't at the time. So we would drive back to school on returning from holidays and he hadthis neat little Triumph Spitfire that I remember well and we were driving along and hesaid, well, your sister and I are going to get married. I was really happy for them. ... I was very happy for them. (83 RT 21978-21979.) Jurors learned a great deal about James and Sissy’slife together in the years betweentheir marriage in 1978 andthe birth oftheir daughter Julie in January of 1984. Eric Linderstrand testified about the couple aroundthe time of their marriage: Q___ Do yourecall whenit was that Jim and yoursister married? A I believe it was in 1979. June of '79, ifmy memory recalls. 184 Q_ Wasyour sister happy? A Yeah. She was that waspart ofthe reason I was happy was because, although it sounds almost trite, they met and fell in love and she waslike a new person. She was he madeher very happy. That sounds like a storybook, butit really is true. He they were good for each other and I really saw herstart to blossom. It seemedlike she was really happy with life. (83 RT 21980.) Even after his marriage, James Madden remainedclose to his parents; and he and Sissy often socialized with the Madden family. In lengthy testimony, Judith Sykes recalled how James and Sissy helped her husbandfind a place to live when the Sykes movedback to California. The two couples lived in the same apartment complex for a while andbecame very good friends. (83 RT 21988-21989.) As muchas they socialized with Judith Sykes and her husband and with the senior Maddens, James always made sure that Sissy saw her family too. James often helped Sissy’s father with household projects. Eric Linderstrand and James Maddenplayed golf and kept uptheir friendship after the marriage. (83 RT 21979.) Everyone was excited when they heard that Sissy was pregnant. Joan Madden reminisced about the phone call when James and Sissy calledto tell her they were expecting a baby. The news wasespecially welcome as this was to be their first and only grandchild. (83 RT 22026-22029.) c. James Madden as a husband. The prosecutor asked Sissy Maddento describe her relationship with her husband: 185 a onANNahAeENREOSeenamlantie ¥ Q Could youtell me what was yourrelationship like with Jim? What kind of a husband washe? A Hewas very loving. I think well, I know we had a goodrelationship. Q Okay. A He was a very loving person, very caring. ~ (83 RT 22002.) Sissy further testified that James had been very supportive ofher working and had helped her through someproblemsat her job. (83 RT 22002- 22003.) Not content with this testimony, the prosecutor posed the same questionto all of the other witnesses. Each of the family members described James Maddenas an ideal husband. Sissy’s brother Eric Linderstrand responded as follows: Q What kind of a husband did he seem to be? A He seemed devoted. He was the kind of guy that would every once in a while surprise Sissy with some flowers on no special occasion. He was very loving, you know. Andpart ofthat was apart from what I saw of his behavior was just how she seemed the marriage was very good for her and they were good for each other and she just seemed to blossom. (83 RT 21980.) Judith Sykes stated that Sissy and James appearedto have a very loving and happyrelationship: Q Were youin a position to see from the outside what kind of a husband your brother Jimmy seemedto be to Sissy? 186 A Yeah, I think so. I mean, as much as someone could. You know,it's always different when you're on the outside. But they I I always got the impression that they were very good friends as well as husband and wife andlovers. And they respected one another. He respected her. He was supportive of her work, or if she you know,her family. He encouraged he madesure that they always saw her family. I thought he was a considerate husband. (83 RT 21990.) d. James Madden as a son andgrandson Joan Maddentestified that she had a close and supportive relationship with her son James. In December 1983, the senior Maddensspent Christmas at James and Sissy’s home,and extendedtheir stay to wait for Sissy to have the baby. James’ father, Mr. Madden, died unexpectedly of a heart attack that week. Jamestried unsuccessfully to resuscitate his father. Mrs. Maddentestified that James did all he could to help her through this ordeal: “He made the funeral arrangements. He got the minister. He did everything.” (83 RT 22028.) In spite of his responsibilities as a new father, James Madden tookcare of his mother after his father died. Joan Maddenlived at either her son’s or her daughter’s homefor the first nine months of 1984. Mrs Maddentestified: “T sold my house in Los Banos and my condo wasn't ready,so I just lived ten days with one and then ten days with the other for nine months.” (83 RT 22030.) Once again, the prosecutor asked the other witnesses for the same information. Judith Sykes testified extensively in response to questions aboutthe time after her father’s death: Q Now,after that you said that your motherrelied a lot on your brother Jimmy for help? 187 A Umhbhum. Q_ Okay. How from that point on, how would you describe your brother's relationship with your mom? Whatkind of a son washeto her? A Well, I thought he was a good son, but, of course, he was my brother. But I think he was a very good son. I think he let her try to work out as manythings as she could. He wasthe type ofperson that you knew he was there ifyou needed him, but he didn't smother you or try to take over. Hetried to encourage herto get on with her life and, you know, set up a new homeandbecause she movedlocations and I don't know. They just had a very nice relationship, I think. Q [hadn't asked you about what had Jimmy's relationship been like with Joan, your mother? A Actually I think they were close. After my father died I think my mother kind ofturned to him for advice. You know, if something came up, she would she would call him andjust run ideas by him and things. And he wasreal supportive I think of her. He made sure he called her a couple oftimes a week and, you know, saw heras often as he could. But with everybody working, you know, sometimes it would be a month or two in between. But he called her on a regular basis. And after Julie was born, Jimmy and Sissy depended on my momto take care ofJulie if she if, you know, they neededto go out for the evening orafter Sissy wentback to work,if Julie couldn't go to day care or something, if she becameill, my mother would go over and spend a couple ofdays and take care ofher. (83 RT 21992-21993.) e. James Madden as afather 188 The prosecutor had Sissy Maddentestify about the relation ship between James and their daughter Julie: [S]he adored her father. Jim was pretty much a perfect dad. He didn't mind taking care of Julie or for a long time for several years I took just a needlepointclass at night and he he if he couldn't be get homebythe timethat I left for class he would stop and pick her up from class. And hejust wanted to spend time with her and wanted to, you know,do those types didn't shirk that sort of thing, didn't find it boring. Just loved her and she loved him. Q___ DidJulie like going to LeeWardsto see her dad? A Oh,yeah, becauseshe got to be with dad and he, you know, madeherfeel like a little employee. You know, she got to go around andputprices on price tags on things and, you know. So it was fun for her. She enjoyed that, yeah. (83 RT 22007.) All ofother family members were asked to describe James Maddenin hisrole as a father, and the special relationship he had with his daughter Julie. His sister and mother reported that Sissy had experienced post-partum depression after Julie was bom, and James took over nearly all ofthe baby’s care. (83 RT 21992.) He was a “natural father,” who loved spending time with his young daughter. (/d.) Joan Madden testified: Jim was a wonderful father. Unfortunately Sissy had postpartum depression. Of course my husband dying a week before the baby was born didn't help. And he had to do most everything for the baby. Hetried to relieve Sissy as much as possible. And he loved it. He just enjoyed her. 189 (83 RT 22030.) Asked to describe the ongoing relationship between Jim and Julie, Mrs. Maddentestified: She was her daddy's girl. If daddy worked on the plumbing, Julie worked on the plumbing. If daddy wasoutside, Julie was outside. She was daddy's girl. Q___ Did they wasit just a fatherdaughter relationship or did they play together or A Oh, all the time. She had he was Ken to her Barbie. Hehada train set that she still has, because, after all, it was her daddy's, because he liked to play with her with it. So she just kept it. It's just one ofthese little wooden ones. (83 RT 22030.) Joan Maddenheld a photograph album while she testified. Asked to explain the album,she stated that it held photos ofher son “from when he was little to the day he waskilled.” Mrs. Madden explained that she did not want to have the album placed into evidence because she wanted to save it for Julie. (83 RT 22025.) Asshetestified, Joan Madden removedtwophotos from her album and allowedthese to be received in evidence. One showed James Madden with Julie at Christmastime, playing near a small playhouseshe hadreceivedas a gift. (83 RT 22025-22026, 2203 1-32; People’s Exh. No. 69.) Another photo was taken on the Christmas the year before his death when Julie wasfive years-old. Mrs. Maddenstated that they have never been able to look through the photos taken on her son’s last Christmas. (83 RT 22032.) Asked about her brotheras a parent, Judith Sykestestified in considerable detail: A Oh,he thought it was great. He thought he thought he would like to be a dad. Andhe he nevertold usthis until after Julie was born, but he said that if he was he 190 thought that they probably would only have one child and if they were going to have one he really wanted a girl, because he thought that would be a neat thing to do. And he got his girl. [ remember him saying when hecalled us on the phoneandtold us that Sissy finally had a baby, his first words were "I got mygirl." Q_ Anddid you were you everin a position to see how your brother was as a father? A Yes. Q Could you explain. A Actually I was quite proud. He was a very good father and it seemed to come naturally to him. Sissyat first had little bit of a problem with postpartum depression and he just jumpedright in and said, you know, don't worry about it, we'll get throughit. And I remember him, you know,taking the baby andtelling Sissy to go take a bubble bath or whatever. And he wascloseto her, to his daughter Julie, all the way until he was killed. They they had a very good fatherdaughter relationship and they were also friends, I felt, which I I have friends that have children and I also observed them to be a good parent, but I don't really feel there's a lot of friendship there, where Julie and Jim seemedto be friends as well as father and daughter. (83 RT 21991-21992.) 2. The Evidence And Testimony Describing James Madden’s Character Vastly Exceeded Any Reported Decision Of This Court. Victim impact evidence (including victim character) is relevant and admissible under California law as a “circumstance ofthe crime.” (People v. Robinson, 37 Cal.4th 592, 651; People v. Edwards, supra, 54 Cal.3d 787.) This Court has not, however, indicated where the outer limits ofvictim character evidence might be set. The Court 19] has rejected requests to confine evidence ofthe victim’s characteristics to matters which the defendant knew or might have observed. (See, e.g., People v. Roldan (2005) 35 Cal.4" 646 [110 P.3d 289, 27 Cal.Rptr.3d 360]; People v. Pollock (2004) 32 Cal.4™ 1153 [89 P.3d 353, 13 Cal.Rptr.3d 34].) This state’s capital decisions to date have not required the Court to make this determination because, unlike the present case, those cases did not involve extensive or detailed victim character evidence. This state’s capital decisions to date have not involved extensive or detailed victim character evidence. Capital defendants have typically raised challenges to the relevance and/or prejudicial nature of only one or two items of victim character information. “ In People v. Pollock (2004) 32 Cal.4" 1153 [89 P.3d 353, 13 Cal.Rptr.3d 34], the prosecution presented victim impact/victim character testimony about the two elderly victims, Mr. and Mrs. Garcia. Mrs. Garcia was described as “a very generous and kind person, and a devoted wife and mother.” Mr. Garcia was said to be “hardworking and enthusiastic, with a great sense of humor.” (/d. at p. 361.) On appeal the defendant 46 See, e.g., People v. Wash (1993) 6 Cal.4" 215, 267 [861 P.2d 1107, 24 Cal.Rptr.2d 421] (evidence of victim‘s plan to enlist in the army at time of her death, which she discussed with the defendant); People v. Montiel (1993) 5 Cal.4877, 934- 935 [855 P.2d 1277, 21 Cal.Rptr.2d 705] (evidence ofvictim‘s generally good health and positive outlook in spite of his need for a walker); People v. Edwards, supra, 54 Cal.3¢ at p. 832 (photographsofvictims shortly before their deaths demonstrate how they appeared to defendant). Evidence of victim characteristics which the defendant was not aware of and could not readily observe presents a more difficult question. (See People v. Fierro, supra, | Cal.4" at p. 264-265 (conc. and dis. opn. ofKennard, J.).) 192 challenged only oneaspectofthe victim character evidence claiming that it constituted an improper appeal to the jurors’ religious sentiments. A family friend testified that she met Mrs. Garcia twenty years earlier when the latter taught Sunday school, and that more recently she and Mrs. Garcia participated in a weekly Bible study group. The California Supreme Court found that the characterizations of the victims had been relevant and appropriate. The brief reference to Mrs. Garcia’s interest in Bible study was not an improperappeal to religious feeling. This information wasnot unduly prejudicial and was relevant to explain the origin ofthe witness’s acquaintance with the victims and to show that they shared activities. This Court recently rejected a claim of undue prejudice based on testimony describing the victim, his family life and his character. (People v. Roldan, supra, 35 Cal.4" 646.) While the Roldan case involved more victim character than Pollock, the evidence was nowhere near as plentiful norits content as prejudicial as the victim character evidence pertaining to James Madden. In Roldan the victim’s widow testified about their life together, explaining how he worked three jobs to support the family ofnine children, volunteered in the community and preachedthe Bible to juveniles in custody. This Court found that the evidence was “not so inflammatory that it would tend to divert the jury’s attention from the task at hand.” (Roldan, supra, at p. 429, citing People v. Zapien, supra, 4 Cal.4" at 992.) Roldanis particularly relevant because the California Supreme Court based its conclusion on factors which distinguish the case from Appellant’s. Explaining its conclusionthat the 193 widow’s testimony in Roldan had not been unduly prejudicial, the California Supreme Court stated: [Her] time on the stand was relatively short and subdued, and no other family membertestified. The trial court properly exercised its discretion by excluding the manyplaquesandcertificates bestowed on the victim for community work and individual heroism. ... Evidence from a surviving spouse, though no doubt possessing a strong emotional impact, was not overly inflammatory. (/d. at p. 429.) Thetrial judge in Roldan did not allow the prosecutorto present a variety of plaques andcertificates from different cities attesting to the victim’s community work and to a heroic act he once performed. A videotape prepared by the victim’s widow was also excluded and the Roldan jurors saw only one photographofthe victim with his nine children. (Id. at p. 732.) The differences between Roldan andthe victim impact/victim character presentation in Appellant’s case are readily apparent, and the California Supreme Court’s opinion suggests that those distinctions may be outcome determinative. *’ In Roldan, this Court considered the quantity ofvictim character testimony and the overall 47 Testimony on a particular charactertrait ofthe victim may be relevant and admissible in rebuttal to defense evidence. (See, e.g., McMichen v. State (Ga. 1995) 265 Ga. 598 [458 S.E.2d 833]; State v. Sexton (N.C. 1994) 336 N.C. 321 [444 S.E.2d 879, 907-908] [no error resulting from re-submission of guilt phase evidence in penalty phaseas providedbystate statute where narrowly focused evidence ofvictim‘s good character for marital fidelity had been introduced to rebut defendant’s claim of consensual sex and accident in rape/murdercase].) 194 aot pestehbadBideSeinenMaystugtyte Rp, fetuscannaHSRNUteRETReer size and scope ofthe victim impact presentation. A single witness testified in Roldan, and the jury saw only one photograph ofthe victim and his children. Jurors in this penalty phase heard from nine witnesses, viewed multiple photographs, and were subjected to a gruesomeanddisturbing exhibit in the form of the victim’s bloodyshirt. This Court’s remarks in the Roldan also indicate that the tenor ofthe testimony is an important factor in the assessmentofprejudice. The Roldan opinion notesthat the widow’s time on the stand was “relatively short and subdued.” “8 (Id. at pp. 732-733.) Appellant’s case is distinguishable on this basis as well. The witnesses whotestified about James Madden spokeat length, and their testimony was anything but subdued. The dramatic value ofmuch ofthe victim impact/victim character testimony is obvious even when read from a “cold record,” and at least one ofthese witnesses became visibly upset while testifying, (See 83 RT 22024 [testimony of Joan Madden].) The victim character evidence pertaining to James Madden was uniquein several respects. In addition to the overwhelming quantity ofmaterial, the content ofthe testimony was more prejudicial than in any reported case discoveredin the course of extensive research. As discussed in greater detail below, the victim character evidence admitted here combines multiple forms ofprejudice which other courts have found to be 48 The respondent’s briefon file in People v. Roldan indicates that the widow’s testimony covered approximately 20 transcript pages. (See Brief of Respondent, People v. Roldan S030644.) 195 improperin capital sentencing. Appellant’s is the “extreme case”justifying reversal under California law. (People v. Smith (2005) 35 Cal.4" 334 [107 P.3d 229, 25 Cal.Rptr.3d 554].) 3. Other Jurisdictions Impose Stricter Limits On The Content And Quantity Of Victim Character Evidence. Following Payne v. Tennessee, the challenge for lower courts has been to allow enough information to provide the victim with some identity while excluding evidence likely to provoke an emotional response from the jurors thereby interjecting an arbitrary factor into the sentencing decision. Several appellate courts have adopted standards for determining the appropriate quantity and content of evidence about the victim’s character, backgroundandlife history. Courts in these jurisdictions uniformly disfavor detailed descriptions of the victim’s character traits. Anecdotes are generally viewed as unduly prejudicial, as are certain topics of testimony such as childhood remembrances concerning the victim. As discussed below, the evidence and testimony regarding James Maddenwasexcessive and highly prejudicial according to these standards. a. Descriptions should be briefandgenerally stated. Shortly after the United States Supreme Court’s decision in Payne v. Tennessee, the Louisiana high court issued an opinion to guidetrial courts in this area. In State v. Bernard (La. 1992) 608 So.2d 966, the Louisiana Supreme Court warnedtrial courts of the prejudice resulting from evidence presenting the jury with an in-depth view ofthe victim’s character. 196 Informing the jury that the victim had someidentity or left some survivors merely states what any person would reasonably expect and can hardly be viewed as injecting an arbitrary factor into a sentencing hearing. But the more detailed the evidencerelating to the character of the victim or the harm to the survivors, the less relevant is such evidenceto the circumstancesofthe crime or the character and propensities ofthe defendant. And the more marginal the relevance ofthe victim impact evidence, the greateris the risk that an arbitrary factor will be injected into the jury’s sentencing deliberations. [I]ntroduction of detailed descriptions ofthe good qualities ofthe victim or particularized narrations of the emotional, psychological and economic sufferings of the victim’s survivors, which go beyond the purpose of showingthe victim’s individual identity and verifying the existence of survivors reasonably expected to grieve and suffer because ofthe murder, treads dangerously on the possibility of reversal because ofthe influence of arbitrary factors on the jury’s sentencing decision (Id at 971-972.) The New Jersey Supreme Court restricts victim character information to “[a] general factual profile ofthe victim, including information about the victim’s family, employment, education andinterests.“ (New Jersey v. Muhammad(N.J. 1996) 678 A.2d 164,180.) The court in Muhammad further cautioned that “testimony should be factual, not emotional, and should be free of inflammatory comments or references.“ (/d.) The Tennessee Supreme Court also disfavors detailed or extensive victim character evidence. “Generally, victim impact evidence should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual whohas been killed” (State v. Nesbit (1998) 978 S.W.2d 872, 891. See also United States v. Glover (D. Kan. 1999) 43 F.Supp.2d 1217, 1235-1236 [prosecution witnesses 6699 6699limited to presenting “quick glimpseofthe victim’slife . . . ,“”’ including “a general factual profile ofthe victim [and] information aboutthe victim’s family, employment, 197 MRENORRIEA SOE am EngNet igeneecatghg!ee Stringenttec abn ea education andinterests ... ;” it must “be factual, not emotional, and free of inflammatory comments or references”.) The Louisiana Supreme Court’s decision in State v. Taylor (La. 1996) 669 So.2d 364, provides a useful example ofproperly limited victim impact/victim character testimony. Three victim impact witnessestestified in Jaylor: the sister, niece and fiancé ofthe victim. The opinion contains the following description ofthe testimony: Lisa Reeves, the victim’s youngersister, stated that illness during Ponsano’s high school years prevented her from graduating and from bearing children. She recalled that Ponsanoloved children very much,andthat her infertility had a dramatic effect upon her life. According to Reeves, Ponsano was a giving person who took care ofothers, including Reeves oldest daughter, Wendy, who looked upon Ponsano as a mother. As to the effect of Ponsano’s death upon herlife, Reeves testified that she has suffered, and that she missesher sister very much. Wendy Reeves, the victim’s 13-year-old niece, stated that she was very close to Ponsano, andcalled her “mother.” Shetestified that they spent almost every day together, and that she discussed her problems with Ponsano. Wendystated that she missed her aunt very much,andthat she felt like a part ofher life was taken away when Ponsanodied. JamesShatzel, the victim’s fiancé, testified that Ponsano was a great person. He stated that she was the best thing he ever had, and that he would probably never have anotherlike her. He said that Ponsanotreated him lovingly, and cared deeply for his two children from a previous marriage. He stated that he loved her very much,andthat he and his children miss her. Shatzel testified that he found out about the shooting while working on his job at Capital City Press. He recalled reading about the events as they cameoffthe press, and that this was not a pleasant wayto find outthat his fiancee had been shot. Shatzel went to the hospital, and stayed there until Ponsano was pronounced dead twodayslater. Shatzel stated that if he had one more chanceto talk to Ponsano he would tell her that he was sorry that their plans were “thrown out the window”andthat he wishes it could have been him instead of her. 198 (id. at 372.) The Louisiana Court upheld thetrial court’s admission of this evidence, specifically noting the absence of detailed descriptive information and illustrative anecdotes: {The testimony] did not contain “detailed descriptions” ofPension’s good qualities or of the survivor’s sufferings . . . [rather, each of the three witnesses simply gave general statements about Pension’s virtuous nature, and her love of children. No specific examples were elicited, and the state did not dwell upon this topic.” (/bid.) The Texas court in Mosley v. State (Tex.Crim.App. 1998) 983 S.W.2d 249, applied a similar standardto find that no error resulted because the descriptions of the victims were stated in broad generalities. In Mosley three witnesses gaverelatively brief testimony (the combinedtotal of victim impact occupied only 34 transcript pages) pertaining to the four murder victims. The witnesses’ descriptions were limited to the victims’ basic personality traits such as kindness, friendliness and generosity. The court foundthat this briefand non-specific victim character material served only to humanize the victims and was not unduly prejudicial. (/d. at p. 265.) b. Anecdotes and in-depth discussions ofspecific traits are disfavored. It is not unusual for the victim’s family membersor friends to mention some aspect ofthe victim’s character in the course of their penalty phase testimony. Reviewing courts have not found brief or isolated references sufficiently prejudicial to require reversal. (See, e.g., Black v. Collins (5"™ Cir. 1992) 962 F.2d 394, 408 [description of victim as “a hard-working, devoted wife and mother”]; Wiggins v. Corcoran (D. Md. 2001) 164 F.Supp. 2d 538, 572 [one friend testified that victim was “a 199 very happy-go-lucky person,” who was “always thinking of something interesting“; Roberts v. Bowersox (E.D. Mo. 1999) 61 F.Supp.2d 896, 936 [testimony oftwo friends that victim was a kind person and they hada close friendship “like the Three Musketeers”].) The evidence here stands in stark contrast to the cases noted above and its admission compels a different result. Far from being confined to one or two positive aspects of the victim’s character, the evidencein this case amounted to a catalog of nearly every possible human virtue. Asseen in the excerpts of testimony included herein, the witnesses described (often with the assistance ofillustrative anecdotes) James Madden’s numerous admirable qualities including: loyalty, perseverance, tenacity, kindness, selflessness, generosity, and responsibility. In several instances, more than one witness testified about the same aspect ofMadden’s character. Thelikelihood of undue prejudice increases where victim character evidenceis presented through specific examples or anecdotes. (See, e.g., Lambert v. State (Ind. 1996) 675 N.E.2d 1060, 1065; Cargle v. State, supra, 909 P.2d 806, 824-825, fn. 12.) In this case, the witnesses related a number of emotionally compelling stories about James Madden andhis family. These anecdotes were highly prejudicial bolstering for the victim impact and victim character testimony. In addition, these reminiscences engendered tremendous sympathyfor the witnesses themselves. c. Life history evidenceis irrelevant and undulyprejudicial. 200 ene motion reLOMARTEEEEMRAERGRATETE: SRR aon OH a ure tatN AE IME niesManeacne Hernan gang\etctearpigeons Thejurors in this case heard testimony concerning every significant event in Madden’slife from childhoodto the time of his death. The victim’slife history was imparted through the reminiscences of his loved ones, in compelling testimony featuring illustrative anecdotes and charming family stories. This testimony wasclearly not reliable or verifiable. Moreover, according to standards used in other jurisdictions, this testimony wasirrelevant and should not have been admitted. Nothing in the United States Supreme Court’s opinion in Payne v. Tennessee suggests that the victim’s personal history is relevant. “A ‘glimpse’ into the victim’s life and backgroundis not an invitation to an instant replay.” (State v. Salazar (Tex. 2002) 90 S.W.3d 330, 336.) In Conover v. State (Okla. 1997) 933 P.2d 904, the Oklahoma Court of Criminal Appeals explained the lack of relevance and inherent prejudice oflife history information: Comments aboutthe victim as a baby, his growing up andhis parents hopes for his future in no wayprovideinsight into the contemporaneousand prospective circumstances surrounding his death; nor do they show howthe circumstances surrounding his death have financially, emotionally, psychologically, and physically impacted a memberofthe victim’s family. These types ofstatements address only the emotional impact ofthe victim’s death. The more ajury is exposed to the emotional aspects ofa victim’s death,the less likely their verdict will be a “reasoned moral response”to the question whether a defendant deserves to die; and the greater the risk the defendant will be deprived ofDue Process. (/d. at p. 921, quoting Californiav. Brown (1987) 479 U.S. 538, 545 [107 S.Ct. 837, 841, 93 L.Ed.2d 934].) Another Oklahomacase notes the especially inflammatory effect produced when life history information is combined with testimony andillustrative anecdotes aboutthe victim’s exceptional character. In Cargle v. State (Ok1.1995) 909 P.2d 806, the 201 Oklahoma Court disapproved ofthis type ofevidence even where the testimony, which covered twelve transcript pages, was only a fraction ofthe victim impact testimony presented here.” In Cargle a single victim impact witness (the victim’s sister) read a prepared statement for the jury. The Oklahoma Court’s opinion characterizes the statementas “detailing the life [ofthe victim] from childhood to his death.“ (/d. at p. 824.) The sister related a number of anecdotes demonstrating her brother’s virtues including self-reliance, kindness and generosity, essentially “eulogizing him as a good kid and adult.” (Cargle at pp. 824-825, fn. 12.) 49 The witness’s entire testimony in Cargle covered approximately 12 transcript pages. In this case, 140 pagesofthe trial transcript is devoted to the testimony ofthe eight witnesses whotestified about James Madden and the impact of his death. 202 Evidence of an adult victim’s childhoodis irrelevant and is widely regarded as especially prejudicial. In Conoverv. State, supra, 933 P.2d 904, the Oklahoma Court of Criminal Appeals observedthat “[c]omments about the victim as a baby, his growing up and his parents’ hopes for his future in no way provide insight into the contemporaneous and prospective circumstances surrounding his death . . .[but] address only the emotional impact of the victim’s death . . . [and increase] the risk a defendant will be deprived of Due Process.” (Jd. at p. 921.) All of the testimony about James Madden’s childhood, his enjoymentof sports, his involvement in youth ministry and church activities, and his work as a puppeteer, was irrelevant and a particularly inappropriate aspect ofthelife history testimony. Madden was 35 years old at the time of his death. Information about his childhood was completely unrelated to circumstances which “materially, morally or logically surround the crime.” (People v. Edwards, supra, 54 Cal.3d at pp. 835-836.) 4. This Effusive Praise For The Victim Contributed To An Already Emotional Atmosphere In Which The Jury Could Not Apply Its Reasoned Judgment In Selecting The Appropriate Penalty For Appellant. The glowing descriptions of James Madden along with the numerousfamily stories and photographs, made for an impressive presentation which would have been appropriate for a memorial service. This is not, however, the purpose of the penalty phase in a capital case. As the Kentucky Court stated in Bowling v. Commonwealth (1997) 942 S.W.2d 293, “Just as the jury visually observed the appellant in the courtroom, the jury may receive an adequate word description of the victim as long as 203 2RENNESERREItli Lee eet tatesaARRNDMIEOE AintSead seen ve pa Hetmegngs aetoar suesiots spantnysn itsponent the victim is not glorified or enlarged.” (Id. at pp. 302-303 [emphasis added].) The anecdotes and detailed discussions of James Madden’s character transformed the overall tone of the testimony into an extended eulogy which hadnoplacein the sentencing phaseofa capital trial. (See Salazar v. State, supra, 90 8.W.3d 330, 335-336; State v. Dennis (1997) 79 Ohio.St.3d 421, 432-433 [683 N.E.2d 1096] [victim’s mother’s statement at sentencing was improper but harmlessas the jury had already determined the sentence].) In Salazar v. State (a case the California Supreme Court called an “extreme example of such a due process infirmity”)”° the defendant’s sentence was reversed based on the admission of an emotionally charged victim character andlife history evidence. featuring imagesofthe victim’s childhood. Jurors in Salazar saw a visual overview of the 21-year-old victim’s life through a 17-minute video montage of approximately 140 still photographs ofthe twenty-year-old victim. The photographs (dating from infancy to adulthood) showedthe victim in a number of charming and sentimental poses, and the videotape was accompanied by a musical soundtrack. (Salazar v. State, supra, at p. 333.) The Texas Court of Criminal Appeals observedthat “the punishment phase of a criminaltrial is not a memorial service for the victim. What may be entirely appropriate 50 People v. Robinson (2005) 37 Cal.4" 592, 656-657 [724 P.3d 363, 36 Cal. Rptr.3d 760]. 204 eulogies to celebrate the life and accomplishments ofa unique individual are not necessarily admissible in a criminaltrial.” (Jd. at pp. 335-336.)"" The evidence here wasat least as powerful as the 17 minute video montage in Salazar and arguably more so. Jurors in Salazar viewed the best aspects ofthe victim’s life through a progression of 140still photographs accompanied by sentimental popular music. Jurors in Chris Spencer’s penalty phase spent a day and a half immersed in victim impact and victim character evidence. While the jurors here saw fewer photographs, the testimony was given by live witnesses who described overwhelming grief and devastation. Even the “cold record”ofthistrial reveals the tremendous emotion ofthe testimony about the victim. Moreover, the prejudiceofthe victim impact evidence was amplified by other aspects of the prosecution’s penalty phase evidence and the prosecutor’s inflammatory closing argument. FEF. Conclusion. 51 The defendant in Salazar was 16 years old at the time ofthe crime but was tried as an adult. He was convicted ofmurderfor assisting a co-defendant(a man in his early twenties) to kill the victim (a twenty-year-old young man)after a dispute arose in connection with a drug deal. Although not a capital case, the court applied the same principles applicable to the admission ofvictim impact evidencein a capital penalty phase. (Salazar, supra, at p. 335 fn. 5.) 205 te BLBBeeMeNaSMMahceapAaS The victim impact and victim character evidence presented in this case was grossly excessive and highly emotional. Asa result, the penalty phase was transformed from a proceeding dedicated to reaching a reasoned decision about Appellant’s penalty into a memorial service for the victim. Forall ofthe reasons discussed above, the numerous improprieties violated Appellant’s state and federal constitutional rights and constituted an utter deprivation of his fundamentalright to due process of law. VI PHYSICAL EVIDENCE AND TESTIMONYPURPORTEDLY RELEVANT TO THE CIRCUMSTANCESOFTHE CRIME WASIN FACT CUMULATIVE, MISLEADINGAND HIGHLY INFLAMMATORYAND ITS ADMISSION DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHTS AND VIOLATED CALIFORNIA LAW. A. Introduction And Overview. The prosecution used physical evidence and expert testimony to compoundthe prejudicial effects of its victim impact presentation. One new exhibit wasintroducedin the penalty phase, and the prosecution acknowledgedthat the display was specifically designed to inspire shock and horror. Nearly all of the guilt phase evidence concerning the victim’s injuries and causes of death was re-submitted and the coroner was recalled to testify. This material was entirely cumulative and unneccessary as Appellant had already been convicted and intent wasnotat issue. In addition, the prosecutor’s treatment of this evidence and the mannerofquestioning reveal that the true purpose was to inflamethe jury. 206 These errors deprived appellant of his state and federal rights to due process, a fundamentally fair trial, and to a reliable and nonarbitrary penalty determination in a capital case. (U.S. Const., Amends. V, VHI, XIV; Cal. Const., Art.I, secs. 7, 15, 17, 24; Buchanan v. Angelone (1998) 522 U.S. 269, 274-275; Paynev. Tennessee (1991) 501 U.S. 808 [115 L.Ed.2d 720, 111 S.Ct. 2597]; People v. Edwards (1991) 54 Cal.3d 787 [819 P.2d 436, 1 Cal.Rptr.2d 696]; Darden v. Wainwright, supra, 477 US. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, 436.].) B. The Penalty Phase Exhibits And Testimony. The victim’s injuries were described in detail and from multiple perspectives in the guilt phase oftrial. Several Lee Wards employees related how they had discovered James Madden’s body in the manager’s office. (See, e.g., 72 RT 21063-21073 [testimony of Cecilia Jenrick]; 72 RT 21081-21091 [testimony of Gail Carlisle].) Police investigators related the details of the crime scene, including their observations about the victim’s condition. (See 73 RT 21167 [testimony of Sergeant Ted Keech]; 73 RT 21170 [testimony ofOfficer Jack Solderholm].) The coroner, Parviz Pakdaman, M.D., described the autopsy proceduresas well as his observations, findings and conclusions regarding the injuries and the cause of death. (See 8 RT 2038-2073.) The guilt phase testimony was accompanied by numerousphotographsand exhibits illustrating every aspect ofthe physical evidence. 207 iconncobengegattheAtoptyAB emiSalih chemE A =F oe tnRANngRENEEROEeld,ASAFane 8 In the penalty phase, the coroner, Dr. Pakdaman,wasrecalled totestify concerning James Madden’s injuries and the cause ofhis death. The prosecutor pressured the doctor to validate the state’s version of events. Pursuant to the prosecution’s theory ofthe case, Madden suffered a prolonged and painful death; struggling to break free ofthe duct tape which boundhis wrists and ankles for an extended period oftime before finally succumbing to his wounds. The prosecutor repeatedly tried to elicit medical testimony to support this view, over defense objections and despite Dr. Pakdaman’s frank acknowledgementthat the medical evidence did not establish this version of events. Doctor Pakdaman admitted that he could only “guesstimate” the time it had taken for the victim to die and that there wasnocertain way to determine whether the victim hadin fact struggled. (See 82 RT 219180-21920; 21933-21935; People’s Exh. Nos. 67C, 67D, 67E and 67F.) None ofthe autopsy or crime scene photographs were relevant in the penalty phase. One photograph, however, was especially inappropriate and its use demonstrates the prosecutor’s clear desire to inflame the jury. The photograph (People’s Exhibit No. 67 K) was introduced during Dr. Pakdaman’s testimony over defense objections. It showed four small burn marksonthe victim’s right thigh, allegedly madebya taser or “stun gun.” (82 RT 21921-21922.) The prosecutor questioned the Doctor to demonstrate that the taser was applied to a particularly sensitive place on the victim’s 208 oo begpROECORRENTEBeccaELISoomen At AML Rn thai NRRRRANNRetennnenig be Teese body.°? Asthe court and the prosecutor knew,the “torture” special circumstance had been dismissed and other evidence established that appellant had never used the stun gun on the victim. (See 9 RT 974, 82 RT 21909-21910.) The prosecutor’s sole purpose was to cast appellant in the worst possible light before the jurors who would determine whetherhelived or died. The most disturbing exhibit offered in the penalty phase was admittedly designed to arouse shock and horrorin the jurors. (See 82 RT 21899-21900.) People’s Exhibit No. 65 was developed through the collaborative efforts of the trial prosecutor and at least two police officers, Sergeant Keech and Detective Allen. (82 RT 21898-21900; 21902, 21906.) The exhibit consisted ofthe top half of a mannequin dressed in the blood stained shirt the victim had been wearing at the time of the crime. (82 RT 21903.) Police witnesses described how the shirt was removedfrom the victim’s body, and then dried and prepared for display at the Santa Clara Police Department. (82 RT 21897- 21898; 21900.) Anumber ofgreen arrowswere also addedto highlight deformities or tears in the shirt allegedly made by the knife. (82 RT 21903.) The coroner, Dr. Pakdaman,referred to the exhibit several times during his testimony. 52 This effort was not entirely successful as Dr. Pakdaman stated that the thigh wasnot an especially sensitive area. (82 RT 21922.) 209 The shirt displayed in Exhibit No. 65 washeavily stained with blood. The witnesses acknowledged, however, that this was not consistent with the shirt’s appearanceat the crime scene. (82 RT 21905.) Most ofthe blood staining actually occurred after the victim’s death, when the body was moved andtransported to the coroner’s office. (82 RT 21905-21906.) Sergeant Keech candidly testified that People’s Exhibit No. 65 was designed to appeal to the jurors’ sympathies and to arouse a sense ofoutrage aboutthe killing.” C. The Exhibit Displaying The Victim’s Blood-soaked Shirt Had No Legitimate Probative Value And Was Intended To Arouse Overwhelming Prejudice. It is beyond dispute that clothing stained with the murder victim’s bloodis uniquely prejudicial evidence likely to arouse the jurors’ emotions. (See Miller v. Pate, 386 US. 1, 4-5 [87 S.Ct. 785, 787, 17 L-Ed.2d 690] (1967) [wherein the United States Supreme Court observes that the murder defendant’s “blood stained shorts” were not 53 The following exchange took place during the prosecutor’s questioning of Sergeant Keech on redirect examination: Q. And whydid we[create this exhibit] ? A. Theshirt itself I think says a tremendous amountin just looking at it about what happened to Mr. Madden backin January of 1991. The amount of defects that you can see in the shirt showsso vividly the viciousnessofthe attack that took place on Mr. Madden. (82 RT 21907.) 210 only an important piece of circumstantial evidence but, also, that “their gruesomely emotional impact upon the jury wasincaluculable.”].) Despite the risk ofundue prejudice, courts frequently do admit the victim’s bloody clothing where the evidenceis reliable and meets a certain threshold of relevance. As a generalrule, “the clothing worn by the victim at the time of the killing is admissible in evidence ... if it tends to shed light on a material inquiry in the case.” (Annotation, “Admissibility, in Homicide Prosecution, ofDeceased’s Clothing Worn at Time of Killing,” 68 A.L.R.2d 903, § 2[a] (1959) [emphasis added].) As discussed below, several reported cases suggest that the trial court mis-analyzed the relevant considerations and did not properly weigh the probative value against the possible prejudice arising from Exhibit No. 65. Underthe facts of this case, it was error to admit this highly disturbing exhibit in penalty phase of Appellant’s trial. 1. Exhibit No. 65 wasnot necessary to the coroner’s testimony, and did not accurately represent the circumstancesof the crime. Theassertion that an exhibit ofbloody clothing bolsters the medical testimonyis typically insufficient to justify admission. This is particularly so where,as in the present case, other evidenceis available in the form ofphotographs and/orthe results of forensic testing. Additionally, courts have been careful to ensure that displays of bloody clothing are thoroughly authenticated and factually accurate. Visual displays which do not mirror the actual events or circumstancesthey relate to have far less probative value. 211 othitegapeREPAIDOFMnABagNnSPesaaaRRReadneytpneyc This is especially true in the present case, in which the bloody clothing was not only highly inflammatory by its very nature, but depicted woundsnotinflicted by appellant. Thus, it misrepresented the supposedly depraved nature of appellant’s alleged conductin this case. This was oneofthe bases of appellant’s objection to this evidence at trial. (81 RT 21854-21856.) In People v. Blue (Ill. 2000) 189 Ill.2d 99 [724 N.E.2d 920],the Illinois Supreme Court reversed the defendant’s conviction and death sentence wherethetrial court had permitted an exhibit virtually identical to People’s Exhibit No. 65. The victim in People v. Blue was a youngpolice officer shot in the aftermath of a robbery. The victim’s uniform jacket, stained on the front with dried blood and brain matter, was displayed on a mannequintorso set in plexiglass case. As in Appellant’s case, the jury learned that muchofthe damageto the jacket resulted from rescue efforts and not the actual injuries. The prosecutor contended that the victim’s jacket was relevant to corroborate the medical testimony regarding the path ofthe bullets, and to support allegations that the defendant had recognized that the victim was a policeman and deliberately aimed above the officer’s bulletproof vest. (/d. at pp. 124-125.) The Illinois Supreme Court was not satisfied with this explanation, commenting “[n]ot all of these reasons withstand close scrutiny.” (bid.) The Blue Court noted that there was no needto bolster the already ample medical testimony. A paramedic and a physician had described the nature and placement 212 of the victim’s wounds, and 16 autopsy photographs were admitted to documentthis testimony. Under these circumstances,the Illinois Supreme Court concludedthat the bloodstained uniform was not highly relevant. “Therefore, although weagree that the uniform could corroborate the medical testimony describing the placementor nature of one of the fatal wounds on [the victim’s] body, the evidentiary value of the uniformed mannequin - over and abovethe other proof introduced by the State - was minimal.” (/d. at p.125 [724 N.E.2d 920, 934].)** Having foundthe bloodied jacket “nominally probative,” the Court turned to the prejudice analysis. The Illinois Supreme Court acknowledgedthe significant body of case law allowing the admission of “pictures graphically displaying wounds and autopsy procedures,” and distinguished the bloody shirt, noting “the physical evidence here was not photos of a gruesomescene, but the actual remains ofthe sceneitself, spattered with the actual blood andbrains of the victim.” (People v. Blue, at pp. 125-126 [724 N.E.2d 920, 934] [citations omitted].) 2.There was no need to prove Appellant’s intent in the penalty phase, and this exhibit was not probative in that regard. Exhibits ofbloody clothing are not automatically admissible as circumstantial evidence of the defendant’s intent. (See, e.g., Frazier v. Mitchell, 188 F.Supp.2d 798, 54 Compare Fernandezv. State (Fla. 1999) 730 So.2d 277 (victim’s bloodstained uniform shirt and undershirt were relevant to establish fact that victim was a police officer, and because the bullet hole caused by the fatal wound wasnotvisible in the photographs). 213 ETT anRUREREERRERESIDigen MOC SIP OP te oS RE NE Sate PF Ant att anteshoR LONEoNENTREEATM RpeRsEeepee oo 6 826 (N.D. Ohio 2001).) In United States v. Sampson, 335 F.Supp.2d 166 (D. Mass. 2004), the United States District Court addressed this issue in a lengthy opinion explaining the reasons for numerous evidentiary rulings in the first capital homicide prosecutionto be held in the First Circuit under the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3598. The court had refused to allow the governmentto display the bloodied shirts of two ofthe victims. In its opinion the district court explained whyit had not been persuaded to admit this evidenceto illustrate the defendant’s intent and the brutal nature ofthe knife attacks. The Sampsoncourt stated in this regard: The shirts were relevant in the same way that many ofthe gruesome photographs were germane. They could have been used by the jury in considering whether the offenses were committed in an especially heinous, cruel, or depraved mannerin that it involved serious physical abuse. The shirts could have vivified the victims’ struggles for the jury in a way that might not have been accomplished merely by oral testimony and medical diagrams. By having a morevivid picture ofthe struggle, the jury might have been better able to make inferences about the defendant's intent, an element necessary for establishing serious physical abuse. In the same way,the shirts might also have assisted the jury in giving weight to the heinous, cruel, or depraved aggravator,ifthe jury had foundthat factor to have been proven. (Ud. at p. 184.) Ultimately, however, the district court found that the probative value ofthe evidence was insufficient to justify admission. Here the court noted a potentially misleading aspect of the bloody shirt exhibits: [T]he shirts were not the best evidence of the specific size and number of woundsinflicted on the victims. Therips in the shirts might have been larger than the actual stab wounds. Likewise,ifa shirt were doubled overat the time ofthe attack, a single knife thrust could have made twoor morerips in the shirt. These dangers, however, could have been reduced or eliminated by testimonyelicited on direct or cross- examination regarding the manner in which a knife attack causes holes in a garment. Ud.) 214 3. Thetrial court failed to closely evaluate the purpose of the evidence and the surrounding circumstances, and did not consider the extraordinarily prejudicial effect of bloody clothing. In Appellant’s case,the trial court perfunctorily overruled defense objections to Exhibit No. 65. (81 RT 21854; 82 RT 21899.) The record does notindicate that the court gave any special consideration to this evidentiary ruling despite the unusual nature ofthe exhibit and the obvious seriousness ofthe proceedings. Due process requires more - especially in the penalty phase of a capital case. The central concern shared bytheIllinois Supreme Court in People v. Blue, and the district court in Sampson wasthe extensive prejudice inherent in exhibits ofbloodied clothing. As the federal district court observed, “Display ofthe clothing ofthe dead is an age-old strategy for inciting a desire for revenge.” (Sampson, supra, at p. 185, n. 9. ) 55 55 The court illustrated its point about the emotional force of such exhibits with the following literary reference and extended quotation. In Shakespeare's The Tragedy of Julius Caesar, act 3, scene 2, Marc Antony displayed the toga of the murdered Caesar during his funeral oration as a means ofencouraging the crowd to violence. Antony described each rip in the toga:If you have tears, prepare to shed them now. Youall do know this mantle. I rememberThefirst time ever Caesar putit on; ‘Twas on a summer's evening,in his tent, That day he overcame the Nervii. Look, in this place ran Cassius' dagger through; See what a rent the envious Casca made; Through this the well-beloved Brutus stabb'd; Andas he pluck'd his cursed steel away, Mark how the blood of Caesar follow'd it, As rushing out of doors, to be resolved If Brutus so unkindly knock'd, or no; For Brutus, as you know, was Caesar's angel. Judge, O you gods, how dearly Caesar loved him! This was the most unkindest cut 215 71 scmopaRARORAMAEMRRUS case aetnagenetAIRECORENANCRRUCRAGRRaieeRee ganatmnantne of all;The crowd responded as desired:FIRST CITIZEN. O most bloody sight!SECOND CITIZEN. We will be revenged.ALL. Revenge! About! Seek! Burn! Fire! Kill! Slay! Let not a traitor live! (United States v. Sampson, supra, p. 185, n. 9.) 216 The Sampson opinion continued to note two other recent cases sharing the same view regarding displays of bloody clothing. bid. See also, Frazier v. Mitchell, 188 F.Supp.2d 798, 826 (ND.Ohio 2001) [with bloody clothing before the jury, prosecutor stated in closing that the victim “is not here. We have bloody clothing to represent her”; the reviewing court viewed this as “unprofessional, improper and excessive”; and, United States v. Rezaq, 134 F.3d 1121, 1138 (D.C.Cir.1998) [wherein the District of Columbia Circuit Court ofAppeal stated in its opinion: “ ‘Blood will have blood’ ”; excessive depictions of “gore may inappropriately dispose a jury to exact retribution,” quoting William Shakespeare, The Tragedy ofMacbeth, act 3, scene 4].) In Sampson andin Blue, the courts concluded that the exhibits should not be admitted. The potential for prejudice in these instances was too great a risk given the limited evidentiary value. Both opinions makerealistic assessments ofthe jurors’ abilities to use reasoned judgmentin the presence of such emotional evidence. In United States v. Sampson, the district court stated: While the shirts were _ relevant to material issuesin this case,it is likely that the jury would not have considered them solely on those issues. Duringthetrial, the prosecution produced evidence, especially through the confessions ofthe defendant, that was moredirectly probative ofthe intent element of serious physical abuse. Rather than as circumstantial evidenceofintent, the jury would likely have regarded the shirts as powerful and immediate symbols of the victims andthe brutality oftheir murders. AK The presence ofthe shirts in thejury room during deliberations could have exerted an intense emotionalforce unconnectedto their legitimate probative value. The display ofthe shirts during closing argument could have induced thejury to respond in a purely emotional way. 217 roeere SoNOCTRRRrtotra ek mayne date 6 “nay? aSBIN aNiang MONEEtpentornls Pystires oct FAME (tn mt vo 5 eo aenintnoapen eteaMSEEORENEYRNAPiccRinc Eyton ieSeAy tops sattinh Aa ottARSRERAN (Sampson, supra, at p. 185 [emphasis added].) °° The extent ofjury exposure to the exhibit is also a factor. It was particularly troubling to the Blue Court that, as in Appellant’s case, the jury was exposed to the offensive exhibit for an extended period of time. The opinion notes that the jurors “saw the mannequin in the courtroom during the testimony of several witnesses.” (Jd.at p. 126.) TheIllinois Court also observed that the jurors “were allowed an even closer exposure to the exhibit during their deliberations,” was especially troubled by the fact that jurors were encouraged to handle the exhibit: “By furnishing the jurors with gloves, moreover,the trial court appeared to encouragethe jury to engage in a tactile interface with the uniform.” (/bid.) For these reasons,the Illinois Court distinguished cases in which bloodied garments have been admitted into evidence. “In this case, however, we perceive a coalescenceoffacts that tip the evidentiary scale from items that are merely 56 In its discussion ofthe extreme, inherent prejudice in displaying bloody clothing the federal district court cited two recent cases (Frazier v. Mitchell, 188 F.Supp.2d 798, 826 (N.D.Ohio 2001) [with bloody clothing before the jury, prosecutor stated in closing that the victim “is not here. We have bloody clothing to represent her”’; the reviewing court viewedthis as “unprofessional, improper and excessive”’]; and, United States v. Rezaq, 134 F.3d 1121, 1138 (D.C.Cir.1998) [wherein the District of Columbia Circuit Court ofAppeal stated in its opinion: “ ‘Blood will have blood’ ”; excessive depictions of “gore may inappropriately dispose a jury to exact retribution,” quoting William Shakespeare, The Tragedy of Macbeth, act 3, scene 4]) sharing the same view regarding displays of bloody clothing. United States v. Sampson, supra,at p. 185, n. 9. 218 useful to those that are aimeddirectly at the sympathies, or outrage, of the jury.” (Blue at p. 126.) All of the concerns raised by the Sampson and Blue courts applied equally to Appellant’s case and compel the conclusion that Exhibit No. 65 should not have been admitted. Thetrial court’s decision to allow such a disturbing and emotionally volatile exhibit was ill considered and cannot be justified in retrospect. The admission ofthis exhibit would be sufficiently prejudicial by itself to require reversal ofAppellant’s sentence. In combination with the plethora of other improper victim impact evidence, testimony, and the prosecutor’s misconduct in closing argument, the prejudice was overwhelming and deprived Appellant of his right to a reasoned determination of the penalty. D. The Coroner’s Testimony And The Other Guilt Phase Evidence Served No Valid Purpose And Was Admitted Solely To Aid The Prosecutor ’s Unfounded Speculation Regarding The Victim’s Suffering. Evidence pertaining to a circumstance ofthe crime pursuant to Penal Code Section 190.3(a) remains subject to exclusion if it is cumulative, misleading or inflammatory. (People v. Staten (2000) 24 Cal.4"™ 434, 462-463 [11 P.3d 968, 101 Cal.Rptr.2d 213]; People v. Box (2000) 23 Cal.4™ 1153, 1200-1201 [5 P.3d 130, 99 Cal.Rptr.2d 69].) The testimony described above ought to have been excludedforall of these reasons. There is no question that the medical testimony was cumulative, and it was not neededto clarify any ofthe relevant facts. The crime scene’s discovery was described in 219 RARERLSHLS Tygen Ske nenene cae tana Ste 8 atin en RPAA ERSIPEAMORLAMEGaEA wa considerable detail and from multiple perspectives in the guilt phase oftrial. Several witnessesrelated every pertinent detail concerning Madden’sinjuries and the causes of death. The doctor had alreadytestified regarding the biological processes and the mannerofthe victim’s death. (See 8 RT 2038-2073.) The jury had been givenall of the relevant, verifiable evidence. This was not a case in whichthe testimony regarding the crime scene was detachedorsterile. As discussed previously, the penalty phase evidence included numerousdescriptions of James Madden, and the witnesses’ remembrancesofthe last time they had seen him alive. Under these circumstances, penalty phase testimony speculating about the victim’s experience served no legitimate purpose and was presented solely for its emotionaleffect. The California Supreme Court has long recognized the extremeprejudice inherent in detailed and graphic descriptions ofa victim’s final moments. In People v. Love, supra, 53 Cal.2d 843 (Traynor, C.J.), cited with approval in People v. Edwards, supra, 54 Cal.3d 787, and People v. Haskett, supra, 30 Cal.3d 841, 846, the Court reversed a death judgment based on the admission of similar evidence. In Love, the defendant was convicted of murdering his wife at close range with a shotgun. In the penalty phase, the jury saw a photograph ofthe victim lying dead on the hospitaltable. The jury also heard a tape recording taken in the hospital emergency room shortly before Mrs. Love diéd. The recording dealt with the facts of the shooting but also preserved Mrs. Love’s groansas she died from her wound. (/d. at pp. 854-855.) The California Supreme Court reversed, holding that this evidence had no significant probative value in 220 trie SeehesSOARNSShanesendaentire we nt taste ts HentaiRSEMEDNADie get Bee = the penalty phase and was likely to inflame the jurors and to distract them from their duty to makea “rational decision” concerning the appropriate penalty. (Love, supra,at p. 856.) The testimonyat issue here was both more inflammatory andless reliable than the evidence in Love. The audio recording in Love was objectively verifiable evidence pertaining to the victim’s experience. The evidencein this case was largely speculation about the timing and orderofthe fatal injuries, on which was piled more speculation about the victim’s probable experience. Considerable evidence purporting to show the depravity of the crime, e.g., stab woundsandtaser burns, were not even inflicted by appellant, and to that extent misrepresented and unfairly skewed the penalty phase case against appellant, and in effect punished appellant for someoneelse’s conduct. Even assuming appellant was an “aider and abettor,” this does not ameliorate the penalty phase unfairness because this evidence wascalculated to show the depravity of the actual perpetrator of the wounds. Although it was not proved which wounds were inflicted by appellant, it was clear that he did not inflict all or even most ofthem (and in the case ofthe taser burns he inflicted none), yet the jury was invited to attribute all of the viciousness of the homicide to appellant. Dr. Pakdamancould nottestify as to the order in which the wounds were inflicted. The coroner acknowledged that he could not pinpoint the time ofdeath and, further, that he could only guessasto the victim’s likely experience in terms ofpain, suffering and awareness. Undeterred by the lack of certainty, the prosecutor posed his 221 ene eN SanERNErrMeYE I Rot caenn we Fe eee atente netSeopaRtSREBIBI ee Ua oe Ft tennesseessaMMUManaMADESFERNSER ENT AdoBLEN adh muha h a Ty oat ne mnaneree “eAihb eCoineMORRORett! questionsso as to put forth the most disquieting interpretation of the evidence. The way in which this testimony was presented in the penalty phase was prejudicialin and of itself, and the prejudicial effect was amplified by the prosecutor’s exploitation ofthe testimony in closing argument. Evidence and testimony about the moments surrounding the victim’s death may be permittedif it is both “brief” and “dispassionate.” (People v. Roldan (2005) 35 Cal.4™ 646 [110 P.3d 289, 27 Cal.Rptr.3d 360]; People v. Boyette (2002) 29 Cal.4™ 381 [58 P.3d 391, 127 Cal.Rptr.2d 544].) The evidence and argument in this case was neither and should not have been admitted. THE PROSECUTOR’S INFLAMMATORY CLOSINGARGUMENT DENIED APPELLANTHIS STATE AND FEDERAL CONSTITUTIONAL RIGHTSAND WAS MISCONDUCT UNDER CALIFORNIA LAW. A. Introduction and Overview of Legal Claims. In Appellant’s penalty phase, the prosecutor’s closing arguments contained several different forms of impropriety any one ofwhich justifies reversal ofthe sentence. Jurors were given a misleading picture ofthe law by the prosecutortelling them that their oaths bound them to return a death verdict. There were multiple appeals to passion and prejudice, culminating in exhortations to the jury to sentence Appellant to death in response to community sentimentandas a tribute to the victim’s memory. The prosecutor improperly commented on Appellant’s failure to testify. (Griffin v. California, (1965) 380 U.S. 609.) In addition, the prosecutor argued facts not in evidence and used an offensive metaphor comparing Appellant to a wild and dangerous animal. 222 This argument reveals a pattern of conduct “so egregiousthat it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Harris (1989) 47 Cal.3d 1047, 1084 [767 P.2d 619, 255 Cal.Rptr. 352]; Darden v. Wainwright, supra, 477 U.S. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, 436.].) Reversal is required under California law because these repeated instances ofmisconduct demonstrate ““the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” (People v. Haskett, supra, 30 Cal.3d 841, 866, quoting People v. Strickland (1974) 11 Cal.3d 946, 955 [523 P.2d 672, 114 Cal.Rptr. 632].) Appellant’s state and federal constitutional rights to due process of law, to confront and cross examine witnesses, his privilege against self-incrimination, and his right to a fundamentally fair trial and a reliable, individualized sentencing determination all were violated in the course ofthis closing argument. (U.S. Constit., Amends. V, VI, VIII, and XIV; Cal. Const., art. I, §§ 7, 15, 16, 17 and 24; Darden v. Wainwright, supra, 477 U.S. 168, 181-183; Cranev. Kentucky, supra, 476 U.S. 683, 690-691; Bruton v. United States (1968) 391 U.S. 123, 136 [88 S.Ct. 1620, 20 L.Ed.2d 476]; Caldwell v. Mississippi, supra, 472 U.S. 320, 638; Ford v. Wainwright, supra, 447 U.S. 399; Buchanan v. Angelone, supra, 522 U.S. 269, 274-275; People v. Edwards, supra, 54 Cal.3d 787.) Forall ofthe reasons discussed below, reversal is required. B. Standard of Review. 223 PWRMCERTIPE ORE PHS He SR npr ea AE mC SIEMReae Resniatitr, Spmgo . Fae mee ae ‘es pooner paseo opieMere P8108:amaoAPResoeaterA This Court independently reviews the record to determineifthere is a reasonable likelihood that the jury construed or applied the prosecutor’s remarks in an objectionable fashion. (People v. Turner (1994) 8 Cal.4" 137, 193 [878 P.2d 521, 32 Cal.Rptr.2d 762]; People v. Clair (1992) 2 Cal.4" 629, 662-663 [828 P.2d 705, 7 Cal.Rptr.2d 564].) As discussed below, several instances ofmisconduct were sufficient by themselvesto justify reversal ofthe penalty determination. Reversalis certainly required based on the combined prejudicial effect ofthis pervasive misconduct. (See People v. Hill (1998) Cal.4™ 800, 822.) C. The Prosecutor Mischaracterized The Jurors’ Oaths And Argued That Society Demanded A Death Verdict. Throughout two lengthy closing arguments, the prosecutor insisted that society demanded a death sentence for Chris Spencer, and that the jurors were duty bound to fulfill this expectation. From the outset, the prosecutor reminded the jury that each of them had claimed on voir dire to be capable ofreturning a death verdict. According to the prosecutor, society expected a death verdict in this case and nothing less would satisfy the jurors’ sworn duty. Jurors were sternly advised that choosing a life sentence would be taking the “easy way out,” and that they would be shirking their duty in the penalty phase by not recommending death for Chris Spencer. You, ladies and gentlemen,the few, have been selected as representatives ofthe community in this case to decide first the question of guilt, which you have done, and now the question of penalty. Thejury verdict here will reflect the conscience ofthis community on the ultimate question ofpenalty for what this defendant, Christopher Spencer, has done. 224 This is a solemn responsibility and not one to be taken lightly, noris this responsibility one oftaking the easy way out by votingfor life withoutparole simply becausethe alternative is too difficult to contemplate. That wouldn't beright, either. I knowthatthis is not something that any ofyou actively sought. Nevertheless, all ofyou have now becomeapart, and a very crucialpart, ofthe law andofjustice in operation here. As yourecall from what now seemsso very long ago when you cameinto this courtroom, whenyoufilled out the jury questionnaire, when you came in and you answered questions in voir dire, each and every one ofyou agreed to accept this responsibility andyou each raisedyour hand andtook an oath to do it. That's why you'reall here. (83 RT 22310 [emphasis supplied].) Before discussing each ofthe statutory factors in mitigation, the prosecutor again expressly equated the jurors’ duty with community expectations: “[I]fyour verdictis death in this case, this verdict will act as a considered expression ofcondemnation of the dcefendant’s conduct and will truly be imposed out of a sense ofjustice in light ofwhat he has in fact done to Jim Madden,to his family and to the societal community in which we live.” (83 RT 22313.) The prosecutor again madeclear that nothing but a death sentence would suffice. According to the prosecutor, the oath taken by each juror was a binding promise to return a death verdict. The choice oflife imprisonment was repeatedly characterized as “taking the easy wayout,” in abrogation ofthe jurors’ duty. (See, e.g., 83 RT 22040; 22310; 22317; 22377.) The prosecutor amplified the prejudicial effect by combining these comments with remarks madeto diminish the jurors’ sense ofpersonal, moral responsibility for the 225 penalty decision. Jurors were told to disregard any sympathy for Appellantor “misplaced feelings of guilt.” (83 RT 22312.) Instead, they were told that a death verdict wastheir legal and moral obligation: “There is no guilt in performing one's duty, especially a duty required by law, passed by your fellow citizens and affirmed by the courts ofthis state and country.” (/d.) According to the prosecutor, the jurors need not be overly concerned about the penalty decision because the responsibility for a death verdict belonged to the State of California, the legal system, and the defendant, Chris Spencer. The closing argument conveys the impression that the penalty phase is merely a formality; following the guilt phase a death verdict is the jury’s only viable option. The only guilt here rests squarely on the defendant's shoulders, guiltfor what he has done, guiltfor what he mustface. As he bears the guilt, so must he bear the punishment. Now, during the jury selection process some ofyou expressed concern about imposing the death penalty upon someone unless you knew that person wastruly guilty. Well, let's be very clear on that point. The guilty verdict entered at the conclusion ofthe guilt phase ofthis trial means that the defendant, Christopher Spencer, has been found guilty beyondany reasonable doubt ofthe murder ofJim Madden, as well as of the other crimes and the two special circumstances and a personal use ofa knife enhancement. Those were also foundto betrue. The presumption of innocence has evaporated and guilt has been conclusively established. Chris Spencer is no longer an innocent man. You don't need to worry about imposing the ultimatepenalty on somebody whois not truly and undeniably guilty. (83 RT 22312-22313 [emphasis supplied].) 226 In concludinghis first closing address, the prosecutor again told jurors that they were morally boundto return a death sentence on behalfofsociety, the legal system and the prosecutor himself. I submit that for what this man has done he deserves the death penalty. He has brought that on himself. And I submit that if you're honest with yourselves you will agree with that, each and every one of you. The issue is whetheryou have the courage, the strength, the conviction to impose what is required here by the facts and circumstancesofthis most horrible crime. Remember, we,as individual membersofsociety, have given up our right to take the law into our own hands, having entrusted the state and our system ofjustice to apply it. Afree society requires ofits citizens, ofitsjurors, vigilance, courage and strength andresolve in making the hard decision thatyou're going to have to make. What I'm askingyou to dois follow the law, consider the evidence and render a just verdict appropriate for this man for what he has done. Ladies and gentlemen, on behalf ofthe District Attorney's Office of Santa Clara County, as well as on behalfofthe People ofthe State of California, I would ask that you return, each and every one of you, a verdict of death against the defendant, Chris Spencer, for what he has done. (83 RT 22354-22355 [emphasis supplied].) These themes were repeated even more forcefully in the final closing argument, where the prosecutor played on the jurors’ fears as well as invokingtheir loyalties to police and to the legal system. According to the prosecutor, the community’s safety depended uponthe jury’s willingness to impose the ultimate penalty in this case. Whatit gets downto, ladies and gentlemen, I submit is that everyone in a civilized society has a right to make sure that the law theoretically and ideally is carried out as it's supposed to be because each of us have given up ourpersonalrights to do that ourselves. 227 Theinstinct for just retribution is part ofthe nature ofevery human being. Channeling that instinct to the administration of criminal justice serves an important purpose in a promotingthe civility of a society that is governed by law, a society that is governed by law and order. Whenpeople begin to believe that an organized society is unwilling or unable to impose on criminal offenders the punishmentthat they truly deserve for what they've done for the mosthorrible ofcrimes, then it seemsclear that they are in effect are seeds ofanarchy that are being sewn for people to engagein selfhelp. Wherecertain crimes are concerned and I submit this is one ofthose few. Where certain crimes are concerned retribution is not a forbidden consideration or one inconsistent with society's respect for the very dignity ofman, ofhumanity. Certain crimesare in and ofthemselves so grievous andan affront to humanity that the only appropriate response can be the penalty of death. And I submit this is one ofthose. Likeit or not, ladies and gentlemen,retribution isstill a part ofbeing human and of being a human being. When the State of California ifyou determine that in this case Mr. Spencerdeserves the death penalty for what he's done, ifyou ifyou determine that and enter such a verdict, when the State ofCalifornia executes Chris Spencer,if it does in this case, it is recognizing the worth ofthelife ofhis victim and ofthe lives ofhis victim's families the victim's family that he left behind and who he has harmedforever. It's recognizing the worth ofthoselives. And Mr. Mantell may say, well, it doesn't really recognize the worth of a life, but I say that given the facts ofthis particular case, given what was doneherethat refusal to apply capital punishmentin a case as serious and aggravatedas this in effect cheapensall of our lives. (83 RT 22401-22404.) The due process andjury trial clauses ofthe federal constitution are violated when a prosecutor urges ajury to return a verdict based on perceived community feeling. (See, e.g., Viereck v. United States(1943) 318 U.S. 236, 247 [improperfor the prosecutorto tell jurors, “The American people are relying on you”|; United States v. 228 Solivan (6" Cir. 1991) 937 F.2d 1146, 1151, 1155 [prejudicial appealto jury to act as the community’s conscience and to send a message of zero tolerance for drugs]; United States v. Johnson (8" Cir. 1992) 968 F.2d 768-770 [exhorting jurors to “stand as a bulwark”against the proliferation of drugs]; United States v. Monaghan (D.C.Cir. 1984) 741 F.2d 1434, 1441 [prosecutor may not urge jurors to convict a criminal defendant in order to protect the community’s values].) The jury in a criminaltrial is presumedto be representative of the community, but is not to act as the community’s representative. (See S. Kraus, Representing The Community: A Look at the Selection Process in Obscenity Cases and Capital Sentencing (1989) 64 Ind.L.J. 617, 651.) Capital sentencing decisions(essentially normative judgments) are not supposed to be an expression of the community’s will. Rather, jurors are to make a “personal moral judgment regarding which penalty is the appropriate one to be imposed.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1035; People v. Allen (1986) 42 Cal.3d 1222, 1227 [729 P.2d 115, 232 Cal.Rptr. 849]; People v. Brown (Albert) (1985) 40 Cal.3d 512, 541 [726 P.2d 516, 230 Cal.Rptr. 834].) The prosecutor’s argument was improperfor the additional reason that it was couchedin terms of a personal request. It is settled law that the prosecutor should not offer an opinion as to the defendant’s guilt or the appropriateness of capital punishment. (United States v. Young (1985) 470 US. 1, 18-19 [105 S.Ct. 1038, 84 L.Ed.2d 1].) Itis equally improper for the prosecutor totell the jurors that their duty is to return the verdict the prosecution is seeking. (United States v. Sanchez (9" Cir. 1999) 176 F.3d 229 Pam anaREEHEEORIBSAMNMRERNr e aEhar ah eco re enele aS DPR giceyleriatta 1214; United States v. Polizzi (9" Cir. 1986) 801 F.2d 1543, 1558 [improper for prosecutorto tell jury it had any obligation other than weighing evidence].) The closing argumentin this case cannot be interpreted as a “temperate speech concerning the function ofthe jury and the rule of law.” (People v. Cornwell (2005) 37 Cal.4" 50, 92-93.) Thejurors in Appellant’s case were not merely lectured about the importance of the jury system, or reminded to “do yourjob” (Cornwell, supra; United States v. Young, supra, 470 U.S. 1, 18-19; compare People v. Lang (1989) 49 Cal.3d 991 [782 P.2d 627, 264 Cal.Rptr. 386] [acceptable for prosecutorto tell jurors that their jury service was an opportunity to have an effect upon the’ community]; People v. Poggi (1988) 45 Cal.3d 306 [753 P.2d 1082, 246 Cal.Rptr. 886].) While the prosecutors in the afore-mentioned cases emphasized the process, this prosecutor was only interested in the result. It was abundantly clear that, for this prosecutor, there could only be one acceptable result and only that outcome, a death verdict, would fulfill their oaths and their civic duty. Nothing in the larger context ofthe prosecutor’s argument ameliorates this message. In People v. Davenport (1996) 11 Cal.4" 1171, 1121 [906 P.2d 1068, 47 Cal.Rptr.2d 800] the prosecutor’s statement that “Sometimes the law requiresa literal retribution for the taking of a life,” did not improperly inform the jury that the law automatically required the death penalty where the prosecutor continuedto state, “Now, you all told us thatyou would render your individualverdictin this case . . . Ifit is life withoutparole, or ifit is the death sentence, please work with the otherjurors.” (Id. at 230 p. 1221 [emphasis added].) In this case, the prejudice actually increases when the comments concerning the jurors’ societal obligations are viewed in the larger context. (Compare, People v. Davenport, supra, at p. 1221; People v. Lucas (1995) 12 Cal.4 415, 475 [907 P.2d 373, 48 Cal.Rptr.2d 525].) These were not simply isolated remarks about community vengeance in an otherwise proper argument. (People v. Wash (1993) 6 Cal.4" 215, 262.) Instead, jurors were browbeaten with the message that they owed it to the victim’s family, to the prosecutor, to the legal system, and to society to condemn Chris Spencer to death. This form ofmisconductin the closing argumentis serious enough to justify reversal ofthe penalty decision by itself, and reversalis clearly appropriate whenthis instance is considered in combination with the other misconduct. (People v. Cornwell, supra, at pp. 92-93; People v. Lucas, supra, 12 Cal.4" 415, 475.) D. ImproperAppeals To The Jurors’ Emotions. The extensive victim impact and victim character evidence presented in the prosecution’s penalty phase case was calculated to overwhelm the jurors’ emotions. The prosecution relied heavily on this evidence in closing arguments. Jurors were encouraged to personally identify with the Madden family, to align themselves with the prosecutor, and to view themselves andall of society as victims and survivors ofthe crimes. These arguments were madefor no other purpose than to incite the jurors to the point that their emotions would overwhelm their reasoned moral judgment concerning the appropriate sentence for Chris Spencer. 231 CneteRaMEDAISTCRSeeaRMISE fae ee soecame si Beet At the outset, the prosecutor told the jury that in the penalty phase they properly could and should choose a sentence based on their emotional responses to the case. Early on in the first oftwo closing speeches, the prosecutor comparedthe jury’s role in the penalty phase and the guilt phaseoftrial. Now,during the guilt phase you were told to put your emotions aside and to decide this case based on the facts and the law. That was the correct statement ofthe law during the guilt phase. ex Now, however, the defendant has been convicted and whatis at issue hereis penalty, what penalty should be imposed forthis crime. Now you mayconsider, take into account any factors or aspects of the murder itselfwhich you couldn’tin the guilt phase, and in so doing . . . you’re free to assign whatever moral or sympathetic value you deem appropriate to each andall ofthe various factors that you are permitted to consider, including the circumstances ofthe crime. (83 RT 22323-22324.) Having thus given the jurors permission to make an intiutive, emotional decision the prosecutor lectured the jury at length about the societal value ofretributive justice. (See, e.g., 83 RT 22402-22405.) Turning to this case, the prosecutor reviewed the victim impact evidence extensively, and exhorted the jury to return a death verdict to avenge James Madden. Now,criminal cases are presented in such sterile, sanitized manner that the victims sometimes just become names with an age assigned to them andthen they're relegated to the junk heapsofstatistics, people that aren't with us anymore. Don't let that happen here. % 232 Rememberthe victims here. Remember Jim Madden, rememberEric Lindstrand, remember Judy Sykes, remember Joan Madden, remember Sissy Madden, remember Jim Madden's grandmother, remember Julie Madden, whose father was forever stolen from herin a night by this man, Mr. Spencer, andhis friends. (83 RT 22352.) Throughout the argument, the prosecutor made every effort to dehumanize Chris Spencer to make a death sentence for him more palatable. Rememberwhat the defendant did. Don't let the memory ofwhat the defendant did fade. It's been said there's no crime or depravity or sin so vicious for which a man given time or properattitude cannot pardon himself. Don't do that for Mr. Spencer. He no doubthasalready done that for himself. Afford him every benefit that the law does, but remember who heis and what he has done. (83 RT 22352-22353.) Ifyou feel reluctant to do this, if there's that reluctance,it's because your human. But it's something that Mr. Spencer doesn't feel. When he took that knife and plungedit again and again into the living human being whohas become nothing more than a photograph in a courtroom and a memory in a photo album there was no reluctance on his part to do that. There's no evidence that there was. When you're back in the jury room take that knife in your hand and considerthat. Andthat, ladies and gentlemen, the reluctance in arriving at a verdict, is becauseit is difficult thing to do. But I submitit's the right thing to do in this case. That's the difference between you and him. That's the difference. (83 RT 22406-22407.) Nearing the end ofthe final closing speech, the prosecutor played on the jurors’ emotions by emphasizing the testimony about the Madden family’s sadness andinability to enjoy Christmas and other occasions. Jurors were urged that Appellant should be prevented from enjoying any more holiday celebrations just as the victim had been. Because the victim was not shown mercy, neither should the jury show any mercyor 233 sympathy, and Appellant deserved no better treatment from the legal system than he gavethe victim. You've heard the testimony here. The holidays come and go each year. You know whatthis man has done. You know whathe's doneto not only the victim but his family. Holidays come and go for you, for Mr. Spencer, for the Maddens. Mr. Spencer, of course, if he were sentenced to life without, would go off to prison to spendthe rest of his natural life to live out, his holidays year after year. And I submit, ladies and gentlemen, that each and every holiday that comes up, each Valentines Day, Mother's Day, Father's Day, Christmas, Easter, that you will think and remember, you'll consider that Julie Madden no longerhas a father to leave a Valentines gift to or a Father's Daygift. You may find yourselfwondering whowill be taking her shopping for Mother's Day presents this year or to the fatherdaughter dance if she goes. As time goes on and the holidays come and go rememberthis case, ladies and gentlemen. You'll probably rememberit for the rest ofyour lives. Every Christmas what will you think of? Will you think of Julie Madden missing her father or an empty spaceat the table, the holiday table. As Mrs. Madden says, the holidays are no longer the same. Once the summerendstheystart closing in on the holidays again. (83 RT 22408-22409.) The prosecutor then compared the misery ofthe Madden family to an imaginary picture of Chris Spencer, still able to enjoy the holidaysifthis jury failed to impose a death sentence. Onthe other hand, will you think of Mr. Spencerin a prison facility somewhere receiving visitors, sending holiday greetings or receiving cardsorgifts living out the rest of his life from now on. 234 ha ReaftaRENEiNATBBE Mr. Mantell wants youorat least one ofyou to sendhis client to state prison for the rest of his naturallife. Will you do that? Don't you think that if Mr. Maddenhadthat choice he would rather be in prison for the rest of his life? I submit, ladies and gentlemen, that when you considerall of the evidence here, when you evaluate this evidence from a moral standpoint, from a moral evaluation, moral viewpoint, that there is and can only be one decision that you will not regret for the rest of your life under this evidence. And that decision is the death penalty. (83 RT 22409-22410.) These arguments were improper for several reasons. First, the prosecutor essentially says that the jury must give Appellant and the victim equivalent treatment. This type of “show the same sympathy” argumentis an improper appeal to passion and prejudice which encouragesjurors to ignore the guided discretion of California’s statute in favor ofa decision based on emotion rather than the “reasoned moral response” mandated by the Eighth and Fourteenth Amendments. (Penry v. Lynaugh (1989) 492 U.S. 302, 328.) The California Supreme Court has rejected a numberofdefense challenges to these arguments on both constitutional and state law grounds. (See, People v. Young (2005) 34 Cal.4™ 1149 [105 P.3d 487, 24 Cal.Rptr.3d 112]; People v. Kennedy (2005) 36 Cal.4" 595 [115 P.3d 472, 31 Cal.Rptr.3d 160]; People v. Benavides, (2005) 35 Cal.4" 69; People v. Viera (2005) 35 Cal.4" 264, [106 P.3d 990, 25 Cal.Rptr.3d 337]; People v. Ochoa (1998) 19 Cal.4" 353, 464-465 [966 P.2d 442, 79 235 ranteRerataRR oy Cal.Rptr.2d 408].) There are, however, reasons for this Court to reconsiderits previous decisions in this area. Other jurisdictions have not looked favorably on prosecutorial arguments to “show the defendant the same mercy or sympathy.” The Florida Supreme Court considers these arguments inflammatory appeals to passion and prejudice. Florida’s high court has repeatedly held that “asking a jury to show as much mercy to a defendant as he showedthe victim is a clear example ofprosecutorial misconduct, which constitutes error and will not be tolerated.” (Thomas v. State (Fla. 1999) 748 So.2d 970, 985, fn. 10, citing, Urbin v. State (Fla. 1998) 714 So.2d 411; Richardsonv. State (Fla. 1992) 604 So.2d 1107; Rhodes v. State (Fla. 1989) 547 So.2d 1201.) The Tennessee Supreme Court has also found such arguments to be improper appeals to vengeance which “[encourage] the jury to makea retaliatory sentencing decision, rather than a decision based on a reasoned moral response to the evidence.” (State v. Bigbee (Tenn. 1994) 885 S.W.2d 797, 812.) At least two federal circuits have reached the same conclusion, finding these arguments to be improper appeals to passion and prejudice. (See Lesko v. Lehman (3"™Cir. 1991) 925 F.2d 1527, 1540-1541; Duvall v. Reynolds (10" Cir. 1998) 139 F.3d 768, 795.) Barring this type of argument would be consistent with other California decisions setting boundaries for prosecutorial argument. The California Supreme Court has held that urging the jury to apply extra-judicial principles instead of the court’s instructions constitutes misconduct. (People v. Wrest (1992)3 Cal.4™ 1088, 1107 [839 236 P.2d 1020, 13 Cal.Rptr.2d 511]; People v. Hill, supra, 17 Cal.4800, 830 [prosecutor’s misstatement of applicable law].) Appeals to religious principles are also misconduct under California law. (People v. Wash, supra, 6 Cal.4" 215, 258-261; People v. Sandoval(1992) 4 Cal.4" 155, 193-194 [841 P.2d 862, 14 Cal.Rptr. 342].) By arguing that the defendant deserves the “same sympathy”as the victims were shown a prosecutorclearly states that justice lies in “the crude proportionality of ‘an eye for an eye’.” (See Tison v. Arizona (1987) 481 U.S. 137, 180-181[107 S.Ct. 1676, 95 L.Ed.2d 127] (dis. opn. ofBrennan,J.)) This Biblical precept is in direct conflict with California law which requires capital sentencing to be based on guided discretion. (See Jonesv. Kemp (N.D.Ga. 1989) 706 F.Supp. 1534, 1559-1560.) E. Appeallant was denied a fair penalty trial by virtue of the prosecutor's use of the so-called “golden rule” argument, asking the jurors to place themselves in the shoes of the victim's family in determining the proper penalty to be imposed. It is well settled that the use of deceptive or reprehensible methods by the prosecutor to sway the jury may rendera trial fundamentally unfair. (See, People v. Espinoza (1992) 3 Cal.4th 806, 820.) .) In particular, it is improper for the prosecutorto appeal to passion and prejudice so as to inflame the jury against the defendant. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1250.) “[I]mproper remarks by the prosecutor can ‘so infect[]the trial with unfairness as to makethe resulting conviction a denial of due process.” Darden v. Wainwright (1986) 477 U.S. 168, 181, Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642 ; cf People v. Hill (1998) 17 Cal.4th 800, 817.) Asexplained in detail below, this is what occurred in appellant’s case, thus depriving 237 + senCPRRORNLnis “OE nsHeat HA ve ethicnCaRoePa:alieeapleennimaieMcient age neon ea appellant of his rights to a fair trial, confrontation and due process under the state and federal constitutions; as wellas his right to be free ofthe arbitrary imposition of a judgment of death. (Donnelly v. DeChristoforo (1974) 416 U.S. 637; 643. U.S. Constitution, Amends. VI, VIII, XIV; Cal. Const., Art. I, sec. 15, 16, 17.) It has long been held thatit is impermissible for an attorney to argue to jurors that they should place themselvesin the position of the victim in the case in assessing the sanction to be imposed against the defendant(the so-called “Golden Rule” argument). Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4" 757, 765; Beaglev. Vasold (1966) 65 Cal.2d 116, 182, fn. 11.) Such considerationsare irrelevant (Loth,at p. 765), and it has been noted that such argumenttends to “play on the emotions of sympathy, shock and horror” and to “create an atmosphere ofbias and prejudice.” Horn v. Atchison, T.&S.F-R. Co. (1964) 61 Cal.2d 602, 608-609.) This principle has recently been reaffirmed by this Court. (People v. Lopez (2008) 42 Cal.4™ 960, 969-970(... “a prosecutor maynotinvite the jury to view the case through the victim’s eyes, because to do so appeals to the jury’s sympathy for the victim [citations]”); but cf, People v. Haskett, infra, (1982) 30 Cal.App.3d 841, 863-864 [penalty phase argumentto jurors to put themselvesin the shoes of surviving victim, “appeared germaneto the task of sentencing” although “irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its properrole or invites an irrational, purely subjective response should be curtailed .. .” Held, the argument was “insufficiently inflammatory to justify reversal”’].) 238 In this case, the prosecutor made the following argumentative comments in the course of his penalty phase opening statement: ... when yougo backinto thatjury room again the next time, your deliberations will be a bit different, because this is going to be a moral evaluation that you will be engaged in, determining what is the appropriate punishment for what this man did. That’s what the penalty phase is about. That’s what I expect this one to be about, to provide you with little bit more information not only about the defendant himself from the defense, but about the circumstances ofthe crime, about what this man did to the victim and how the victim suffered as a result, because you can considerthat as well. You canputyourselfin the position ofthe victim and consider how this crime caused his death and you can also consider and weigh howthis crime has impacted on the family ofthe victim and how theystill suffer because ofwhat Chris Spencer did to Jim Madden. (82 RT 21879, emphasis added.) Later, during closing argument whendiscussing details ofthe commission ofthe murderitself, the prosecutor asked the jurors “Put yourself in Madden’s[the victim] shoes . . That is permissible under the law . . .” (86 RT 22321.) i. The Prosecutor’s Comments Were Improper The prosecutor’s comments here were clearly improper. After informing the jury that the determination of the penalty to be imposed required a “moral evaluation” on their part, the prosecutor asked the jury to consider the suffering of the victim and the family and in so doing, to place themselvesin the position ofthe victim and the family ofthe victim. (/d.) This is precisely the type of argumentthat “play[s] on the emotions of sympathy, shock and horror” and “create[s] an atmosphere of bias and prejudice.” 239 OCRROEmtERIEIRRCtigateSNM ko hy TheatRASEAReenSideraapenapsieinalndenetenaen While appeals to emotion are not impermissible in a penalty phase, such appeals must be “within the permissible bounds ofargument.” (People v. Leonard (2007) 40 Cal.4" 1370, 1418, emphasis added.) Here, the prosecutor’s comments were, by definition, beyond the permissible bounds of argument. (Loth, supra, at p. 765.) Indeed, as discussed in greater detail below, they invited the jurors to decide the case based on “events” that were imaginary and had not, and could not, ever, occur. Appellant acknowledges that in People v. Haskett, supra, 30 Cal.3d at 863-864, the Court suggested that a “golden rule” type argument may not be improperunlessit allows the jury to consider “irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its properrole or invites an irrational, purely subjective response...” In the case before it, the Court concluded that the argument in question was “insufficiently inflammatory to justify reversal.” Jd., at p. 864, emphasis added.) Thus, the Court indicated that where the challenged argumentinvites and emotional response on the jury’s part, and consideration of irrelevant matters or unfairly inflammatory matters, such argument is improper. In the present case, appellant challenges the use ofthe“golden rule” argument during the sentencing phase ofa capital trial on grounds that such argumentinvites the jury to decide punishment based on imaginary considerations and on “events” and have not and could never happen; 1.e., the imagined impact of the defendant’s offense on the individual juror’s ownlife, and loved 240 ones. This issue was notdirectly raised in Haskett. A case is not authority for propositions not considered. (People v. Alvarez (2002) 27 Cal.4" 1161, 1176.) Had the issue been raised, based on the analysis in Haskett (see also, People v. Edwards, infra, (1991) 54 Cal.3d 787, 836, fn. 11), reaffirming the Haskett analysis), the Court surely would have found reversible error. ii. The Error Was Unfairly Prejudicial The prosecutor’s argument here was rendered particularly egregious, and prejudicial, by both its timing and by the nature ofthe prosecution’s penalty phase evidence. The penalty jury here wastold, in advance (during opening statement), to take whatit was about to hear andapply it to their own lives in making the moral judgmentas to the punishment to be imposed. What followed wasa heart-rendingtale ofprofound, prolonged and indeed, incapacitating despair, mourning and sadness. This was coupled with the bloody and gruesomespectacle of photographs of the victim ostensibly admitted to show the circumstancesofthe offense and victim’s “suffering.” Aseach piece of testimony and evidence was presented, the jurors were encouraged (by the prosecutor’s prior) comments, to apply it to their own lives. This personalized the prosecution’s already highly emotional case in a way that was obviously improper and manifestly prejudicial. In a previous argument appellant has contendedthat the nature and sheer volumeofthis highly emotional and highly charged evidence went far beyond acceptable limits so as to render the penalty judgmentin his case fundamentally unfair, 241 arbitrary and in violation of his due process rights. Appellant maintains that position here. But apart from the question of whether such evidence, by its very nature, rendered appellant’s penalty trial unfair, it cannot be denied that it was in fact highly charged emotionally, and certainly calculated to induce the jury to vote for death. The prosecution’s penalty phase here was not somedry recitation ofprior convictions; this was a case whichbyits very nature was intended to sway the jury emotionally. Andto whatever extent such highly charged emotional evidence was relevant, it was, for the most part (and in case of evidence of impact on the victim’s family, entirely) on the grounds that such evidence was “victim impact” evidence as permitted by Payne v. Tennessee, supra, 501 U.S. 808: In Payne [Paynev. Tennessee (1991) 501 U.S. 808 [115 L.Ed.2d 720, 111 S.Ct. 2597] the high court held that " if the State chooses to permit the admission ofvictim impact evidence and prosecutorial argumenton that subject, the Eighth Amendmenterects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact ofthe murderon the victim's family is relevant to the jury's decision as to whetheror not the death penalty should be imposed." (Id. at p. [115 L-Ed.2dat p. 736, 111 S.Ct. at p. 2609].) It also held "that a State may properly concludethat for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence ofthe specific harm caused by the defendant." (Id. at p. [115 L-Ed.2d at p. 735, 111 S.Ct. at p. 2608].) (People v. Edwards (1991) 54 Cal.3d 787, 833.) Significantly, Payne and its progeny do not render victim impact evidence nonprejudicial. As discussed above, victim impact evidence, particularly that presented in the presentcase, is, and was herein, highly prejudicial. The essence ofPayne is not 242 that such evidence is not nonprejudicial butthat it is not unfairly prejudicial becauseit is relevant and admissible as “victim impact” evidence. (Edwards, supra, at p. 833.) In appellant’s case, as suggested above, the prosecution’s argument personalized the penalty phase evidence in a way that was manifestly improper. For while Payne and its progeny approvedthe use ofvictim impact evidence,it said nothing aboutjuror impact evidence. Indeed, Payne did not purport to address the imagined impact on an individual juror, of a defendant’s offense, had it been a loved one of such juror who had been murdered; or the imagined impact on surviving family members. And such considerationsare utterly irrelevant as “victim impact” evidence because, obviously, the imagined events never took place. Yet in appellant’s case, the highly prejudicial impact remained, and in fact was exacerbated by the invitation of each individual juror to apply the events that befell the Madden family to their own loved ones and family members. To that extent, the prosecutor’s improper argument removedthe prosecutor’s penalty phase evidence, indisputably highly calculated to provoke an emotional and highly prejudicial response, from the protective umbrella ofPayne. This renders the prejudicial impact of the evidence, unduly and unfairly prejudicial. Such unfair prejudice from the “juror impact” evidence here was, inherently, far more prejudicial than in the typical case in which the “golden rule” argumenthas been presented (e.g., Loth, supra, 60 Cal.App.4" 757, at p. 761 [personal injury case]); yet in the latter cases, the error has mandated reversal. (Id., at p. 770.) 243 Theprejudicial impact was exacerbated, of course, by the prosecutor’s penalty phase argument, during which he maderepeated references to the victim’s holiday gatherings, events, etc. (86 RT 22409 .) And it was not limited to the effect ofthe victim’s absence on family members. The gruesomenature ofthe offense, untethered as it was (for purposesofthe exhortation to the jurors to consider how they would feel if such an event were to befall a loved one) to any relevant purpose, was worse than prejudicial, in was inherently, and unduly, inflammatory. (See, e.g., Godfrey v. Georgia (1980) 446 U.S. 420, 433, fn. 16 [in finding “heinous, atrocious and cruel” special circumstance unconstitutional, Court states “it is constitutionally irrelevant that the petitioner used a shotgun instead ofa rifle as a murder weapon,resulting in a gruesomespectaclein his mother-in-law’s trailer. An interpretation of sec. (b)(7) [of the Georgia death penalty statute] so as to include all murders resulting in gruesome scenes would betotally irrational.].) This Court’s own authority strongly supports appellant’s position. In People v. Edwards, supra, 54 Cal.3d at p. 836, this Court reaffirmed the reasoning of Haskett, supra, and acknowledged that victim impact evidence carries a high risk of unfair and improperprejudice. This Court listed considerations for purposes ofensuring that such evidence, found admissible in principle in Payne, does not cause unfair prejudice in a given case: Our holding does not mean that there are no limits on emotional evidence and argument. In People v. Haskett, supra, 30 Cal.3d at page 864, we cautioned, “Nevertheless, the jury must face its obligation soberly and rationally, and should not be 244 given the impression that emotion may reign over reason. [Citation.] In each case, therefore, the trial court must strike a careful balance between the probative and the prejudicial. [Citations.] On the one hand,it should allow evidence and argument on emotional though relevant subjects that could provide legitimate reasons to sway the jury to show mercyor to impose the ultimate sanction. On the other hand,irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response should be curtailed. (/d. at p. 836,fn. 11.) When viewed asjuror impact evidence and argument, the prosecution’s penalty phase case fails the meet the above formula for preventing undue prejudice, on every point. Ajuror imagining whatlife would be like had the charged offense occurred to him or her andhis or her family, would not be “fac[ing] its obligation soberly and rationally,” and would be putin the position of allowing “emotion [to] reign over reason.” Such ajuror would not be deciding punishment on “relevant subjects that could provide legitimate reasons to sway the jury to show mercy or to impose the ultimate sanction.” To the contrary, “irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its properrole or invites an irrational, purely subjective response [would not] be curtailed.” Thus, even if the prosecution’s penalty phase evidence was properly considered as “victim impact evidence,”a position appellant disputes in the strongest possible fashion, and even assumingthe jury could properly considerthat highly emotional presentation in determining the appropriate punishment in appellant’s case, such circumstances would not detract from the improperprejudicial and inflammatory impact of such evidence asjuror impact evidence. There is nothing about the use ofthe 245 eteARONAAORNONE Ne Re HE FmtaneesesensEENREMANMRiesner Mek a Moe Se me penalty phase evidence as “victim impact” evidence that served to diminish or neutralize the unduly prejudicial effect of such evidence as “juror impact” evidence. To the contrary, the opposite is probably true. The dangeridentified by the Court in Edwards, supra,at p. 836,is that irrelevant, inflammatory and unduly prejudicial considerations will overwhelm any “proper” considerations. In sum, nothing in Payne and its progeny in any way mitigates the improper prejudice that occurred in the present case. Finally, a contrary result is not by the fact that defense counsel did not object to the prosecutor’s comments. Ordinarily, a failure to object and to request an admonition to disregard the impropriety results in the waiver of any claim of impropriety on appeal. (People v. Berryman (1993) 6 Cal.4™ 1048, 1072.) However, this is only a general rule. (People v. Hill (1998) 17 Cal.4™ 800, 820.) A defendantis excused from the necessity of either a timely objection and/or a request for an admonition if either would be futile. (People.v. Hill, supra, at p. 820, citing People v. Arias (1996) 13 Cal.4™ 92, 159.) This case presents a hornbook example ofa situation in which any objection or request for admonition would be futile. Once the prosecutor invited the jurors to imagine the impact of such an offense, and the immediate, bloody aftermath, of a case such as appellant’s case, on their own lives, it was impossible to “unring the bell.” (People v. Wein (1958) 50 Cal.2d 383 423.) Once the prosecutor uttered his comments, it becamea practical impossibility for the jurors to not think about whateffect such an offense would have hadonhis or herlife, had it occurred to them. It would akin to 246 asking the jurors to never, under any circumstances and from that moment forward, to never think of a blue unicorn; only worse, given the nature ofthe evidence and the probable devastating impact any murder would likely have on a victim’s survivors; and the fact that such “impact” would only be limited by the imagination of a particular juror. Additionally, as discussed, the fact that the first comment cameprior to the presentation of evidence, and thus invited the jurors to consider and mull over each piece of evidenceandits theoretical impact on their lives as it was being presented, rather than as an afterthought, magnified the risk for undue prejudice and further rendered futile, any attempt at mitigation ofthe error by means of an admonition. In sum,for all ofthe above reasons, in cannot be rationally concluded that the error could not possibly have affected the verdict of at least one penalty juror. (Chapmanv. California (1967) 386 U.S. 18, 24.) Accordingly, the judgment of death must be reversed. F. Griffin error. Appellant’s rights under the Fifth and Fourteenth Amendments were violated by another aspect ofthe prosecutor’s closing argument: the repeated references to Chris Spencer’s failure to testify. The most blatant reference occurred in the prosecutor’s first closing speech. Mr. Mantell's argument no doubt will be eloquent and emotional, but it won't change the facts. What Mr. Mantell won't be able to speak of is any sympathy or compassion or charity that his client, Mr. Spencer, showed Jim Madden. 247 ome cme AOREORETACOAEDRHC NESOSEen nr! |aacert, in AlmaRGAhi etaSf?ieemPEEESatNBOTSGE Ren Boos 8 He won't be able to point to any remorseonthe part of his client for what he has done, becausethere is none here before you. No remorse, of course, unlessit's in his statement where he speaks of himself: "What am looking at? How long am I going to have to serve? I know I was wrong. I know I'm stupid. Oh, fuck. There went my life. Where will they send me?" "I don't know. I really don't know." "Not even ona firsttime offense?" His last words in the confession: “Chris, you fucked up." Anywherein there does he say that he's sorry for what he's done? Does he express feelings for Mr. Madden for what happened here? (83 RT 22347-22348.) The United States Supreme Court’s decision in Griffin v. California, supra, 380 US. 609, prohibits a prosecutor from commenting on a criminal defendant’s failure to testify. The California Supreme Court has long held that Griffin prohibits this type of argumentin the penalty phase of a capital case. “[A] prosecutor may not urge that a defendant’s failure to take the stand at the penalty phase, in order to confess his guilt after being found guilty, demonstrates a lack ofremorse.” (People v. Boyette, supra, 29 Cal.4" 381, 453-454; People v. Crittenden (1994) 9 Cal.4th 83.) A prosecutor may arguethat thefacts in a particular case fail to demonstrate remorse on the defendant’s part. (See, e.g., People v. Marshall (1990)13 Cal.4" 799, 855.) The remarks set forth above do notfall within this exception. The prosecutor here can only be referring to Appellant’s failure to testify. This is the plainest interpretation (and therefore the most obviousto the jurors) for the prosecutor’s statement “[defense counsel]won't be able to point to any remorse on the part of his client for what he has done, becausethere is none here before you.” The remark is squarely within the 248 prohibition of Griffin as was surely apparent to an experiencedtrial prosecutor. This prosecutor’s conductjustifies reversal ofAppellant’s sentence. Defense counsel’s failure to object to this instance of Griffin error should be overlooked. The prosecutor’s argumentclearly ran afoul of Griffin. The trial court was dismissive of defense objections during argument and refused to admonish the jury or to provide curative instructions. Waiver should not apply to preclude this Court’s consideration of this legal claim. because even a timely objection would have beenfutile (People v. Hill, supra, 17 Cal.4" at p. 820; see also People v. Arias, supra, 13 Cal.4® at p. 159; People v. Noguera (1992) 4 Cal.4” 599, 638) and, evenifthe court had admonishedthe jury, an admonishmentcould not have cured the harm. (People v. Hill, supra, at p. 820; People v. Bradford (1997) 15 Cal.4th 1229, 1333.) Even if the claim were deemed waived, this Court should considerit for reasons ofjudicial economy;e.g., to obviate the need to address a future a claim of ineffectiveness of trial counsel. G Inciting Prejudice By Describing Appellant As A Monster or Wild Animal. The prosecutor made every effort to dehumanize Chris Spencer. In the closing arguments, Appellant is repeatedly referred to as a “monster,” and described by the | prosecutor as unfeeling and inhuman. (See,e.g., 83 RT 22395; 22406-22407.) The prosecutor made use ofa well-worn allegory to persuade jurors that Chris Spencer was irredeemably dangerousandfit only for execution. Butin this little story there were two figures. One was someone whohad a lot ofmoney and wasreally enamored with animals and visited zoos and just liked 249 creatures wild and tameandliked to be able to see them. He liked to keep trophies on the wall. The other characterin thislittle story had to do with a hunter, a hunter who was a big gametype ofhunter. Well, it so happened that the two ofthem were together at a zoo and they were walking through the zoo and they happened upon a cage which has a sign overit that says "Bengaltiger." And there's a tiger, a Bengaltiger, andit's lying in the sun andit's kind of fat and relaxed and comfortable andits tail is whipping back and forth on the flies that are bothering him. Andthe rich guy wholikes the animals is really all excited about this and he goesto his big game hunterfriend and says, "Look, they've got a Bengaltiger at this zoo. Come on over." The big hunter walks over to him. "Look, look. It's a Bengal tiger. I've always wantedto see oneofthese." The hunter says, "That's not a Bengaltiger." And hesays, "Sure,it is. You know,I've seen pictures in booksin bookstores and look at this and see the sign. It says "Bengal tiger.' And look at him." The hunter says, "No, that's not a Bengaltiger." He says, "I'll prove it to you. You put up the moneyandI'll prove it you." The guy says okay. So they get an airline reservation. Theyfly off to India to the jungles. They take an expedition into the jungles. They're gone three days hiking and they are tired. They are looking around. Andthen suddenly one afternoon they hear this absolutely hellacious blood curdling roar from nearby enoughtojust send shivers down the spine ofthe guy who's financed the expedition. They go to a clearing. As they comeinto the clearing there's this creature. It must be fifteen feet long andit's overits kill. And its eyes look up.It's got the blood dripping from its mouth. It looks up andit sees these two intruders andit lets out anotherroar. This guy who's financedthis trip freaks. He's out of there. The hunter goes with him. They are offand gone. They don't stop running for about twenty minutes. They stop, catch their breath. "Did you see that?" The hunter says: "Now you've seen a Bengaltiger." 250 (83 RT 22395-22397.) Returning to Chris Spencer, the prosecutor made certain that not a single juror would miss the comparison: The pointofit is this, ladies and gentlemen: You've got Mr. Spencerin court. You've got a photo ofhim here. Monsters. You know,it's a word. It's a catch phrase. What we're talking about is a monstrous act. We're talking aboutthe effect. Right? The only one that saw the Bengaltiger, the real Bengal tiger, inside that man, Chris Spencer, was Jim Madden. In that setting that night the tiger came out and that's the result. The boy shown in the photographsis notthe tiger. The boy didn't kill him. The defendant did, the man seated in court. There's that gap. RememberI said that gap in between time, in between the photos ofMr. Spencer when he wasa child twelve and thirteen and when the crime took place? There's that gap. (83 RT 22397.) Sixteen years ago the California Supreme Court declined to overturn a capital case wherethe prosecutor told a milder version of the Bengal tiger story (People v. Duncan (1991) 53 Cal.3d 955, 960-961 [810 P.2d 131, 281 Cal.Rptr. 273].) Appellant’s case, however,is distinguishable. The Court in Duncan determined that the jury in People v. Duncan was notlikely to view the story as an improperallusion to the defendant’s race. The prosecutor here did not use the Bengaltiger story to indirectly invokeracial or ethnic prejudices. This jury was expressly told the purposeofthe story. Appellant was, like the tiger, a vicious and bloodthirsty “monster.”” He should be considered fundamentally different from the jurors and deserving of execution because he was inhuman, untrustworthy and vicious. In this case, the Bengal tiger story was used directly to arouse the jurors’ fears of violence and to dehumanize Appellant. 251 For several reasons,it is time to retire the Bengaltiger from the repertoire of prosecutorial fables. Remarks and stories denigrating the defendant’s character are offensive to the dignity and decorum ofthe proceedings”and,“possess a unique capacity to remain in the jury’s mind and influence their deliberations.” (Gershmann, Trial Error and Misconduct, 2-6(b)(1); United States v. Pena, 793 F.2d 486, 491 (2d Cir. 1986); United States v. Goodwin, 492 F.2d 1141, 1147 6" Cir. 1974). Courts have condemnedreferences to the defendants as an “animal and a beast,” (Darden v. Wainwright, supra, 477 U.S. 168, 181; People v. Brosnan (N.Y. 1973) 298 N.E.2d 78, 82), the “wolves of society,” (People v. Martin (Ill.App. 1978) 377 N.E.2d 1222, 1229), or a “blood-crazed animal hovering over the victim’s grave” (People v. Rivera (N.Y.App.Div. 1980) 426 N.Y.S. 2d 785, 786). Although not used for this purpose in Appellant’s case, the Bengal tiger story should be retired because it is often interpreted as a racial slur. In the 15 years since this Court decided People v. Duncan society has grown less tolerant of even seemingly unintentional uses of racial or ethnic stereotypes. Perhaps in recognition ofthis shift in public attitudes, the Bengal tiger has not been as well received in recent years. Courts in other states have questionedits propriety. (See, e.g., Carruthers v. State (2000) 272 Ga. 306, 311-312 [528 S.E.2d 217].) Other courts have been more forcefulin insisting that prosecutors avoid metaphors which are susceptible to interpretation as racial insults or ethnic slurs. (See State v. Blanks (lowa Ct.App. 1991) 479 N.W.2d 601 [prosecutor’s 252 reference to film “Gorillas in the Mist” was improperin the criminal trial of an African- American defendant].) Asthis Court has observed, the credibility of the entire justice system rests not only on the actuality but the appearance of fairness and equal justice before the law. (See, e.g., People v. Heard (2003) 31 Cal.4" 946 [75 P.3d 53, 4 Cal.Rptr.3d 131].) The prosecutoris the state’s representative and this role requires him orherto take the moral high ground even while vigorously pursuing a conviction in a criminal case. (See People v. Hill, supra, 17 Cal.4" 800, 820; People v. Kelley (1977) 75 Cal.App.3d 672, 690 [142 Cal.Rptr. 457], citing Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633, 79 L.Ed. 1314].) When the prosecutor’s conduct reachesthe level of namecalling and abuse notonly is the defendant prejudiced but the image ofthe justice system suffers. This Court should reverse Appellant’s conviction, and in so doing reconsiderits previous position on the Bengal tiger metaphor. H. Conclusion. Appellant’s sentence must be reversed due to the overwhelmingly prejudicial effect of these instances of misconduct. “The kind of advocacy shown by this record has no place in the administration ofjustice and should neither be permitted nor rewarded . . .” (United States v. Young (1985) 470 U.S. 1, 9 [105 S.Ct. 1038, 84 L.Ed.2d 1].) The prosecutor’s closing argument was improper in numerous respects and, in particular areas (e.g., the related appeals to vengeance andthe jurors’ fears of crime and violence), exceptionally inflammatory. The prosecutor’s argument and the improperly admitted 253 PFATTTENCORETENTEDMDErae ENea ay ESOSRACAESUNNAmaaponlintnesnASetestee at ne ao ooo EomaaablcmmngR EERE chek Soassemes mpren gape victim impact evidence created an atmosphere ofprejudice in which emotion prevailed over reason. (Gardner v. Florida, supra, 430 U.S. 349, 358; Gregg v. Georgia, supra, 428 U.S. 153.) Reversal is also required because the prosecutor’s improper argument encouraged the jurors to substitute an emotional response for their own reasoned moral judgment, and interfered with the jury’s consideration of mitigating evidence thereby preventing the individualized sentencing determination the Eighth Amendmentrequires. (Caldwell v. Mississippi, supra, 472 U.S. 320; Buchanan v. Angelone, supra, 522 U.S. 269, 277.) Forall of the reasons discussed above, Appellant was denied severalofhis rights underthe state and federal constitutions, as well as rights guaranteed to him according to California law, by the prosecutor‘s misconduct in closing argument. Accordingly, reversal is required unless the state can show that the errors were harmless beyond a reasonable doubt. (Chapmanv. California, supra, 381 U.S. at p.24.) On this record, the state cannotestablish that the errors did not contribute to the penalty determination. (People v. Sandoval, supra, 4 Cal.4" 155, 194.) 254 CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURTAND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION. Manyfeatures of California’s capital sentencing scheme,aloneor in combination with each other, violate the United States Constitution. Because challenges to most ofthese features have been rejected by this Court, Appellant presents these arguments here in an abbreviated fashion sufficient to alert the Court to the nature of each claim andits federal constitutional grounds, and to provide a basis for the Court’s reconsideration of each claim in the context of California’s entire death penalty system. To date the Court has considered each ofthe defects identified below in isolation, without considering their cumulative impact or addressing the functioning of California’s capital sentencing scheme as a whole. This analytic approachis constitutionally defective. As the United States Supreme Court has stated, “[t]he constitutionality of a State’s death penalty system turns on review of that system in context.” (Kansas v. Marsh (2006) 126 S.Ct. 2516, 2527, fn. 6; See also, Pulley v. Harris (1984) 465 U.S. 37, 51 (while comparative proportionality review is not an essential component of every constitutional capital sentencing scheme, a capital sentencing scheme maybeso lacking in other checks on arbitrariness that it would not pass constitutional muster without such review).) 255 meernonettnPRIeen PRRRMIResim asutheecmt ew Monet S| 68 a stain AMEmPaMEsO)WTAEhak one oe When viewed as a whole, California’s sentencing schemeis so broad in its definitions of whois eligible for death and so lacking in procedural safeguardsthatit fails to provide a meaningfulorreliable basis for selecting the relatively few offenders subjected to capital punishment. Further, a particular procedural safeguard’s absence, while perhaps not constitutionally fatal in the context of sentencing schemesthat are narrower or have other safeguarding mechanisms, may render California’s scheme unconstitutionalin thatit is a mechanism that might otherwise have enabled California’s sentencing schemeto achieve a constitutionally acceptable level of reliability. California’s death penalty statute sweeps virtually every murderer into its grasp. It then allows any conceivable circumstance of a crime — even circumstances squarely opposed to each other(e.g., the fact that the victim was youngversusthe fact that the victim was old, the fact that the victim waskilled at homeversusthe fact that the victim was killed outside the home) — to justify the imposition ofthe death penalty. Judicial interpretations have placed the entire burden of narrowing the class of first degree murderers to those most deserving of death on Penal Code § 190.2, the “special circumstances” section ofthe statute — but that section was specifically passed for the purpose of makingvirtually every murderereligible for the death penalty. There are no safeguards in California during the penalty phase that would enhancethereliability ofthe trial’s outcome. Instead, factual prerequisites to the imposition ofthe death penalty are found by jurors whoare not instructed 256 on any burdenofproof, and who maynotagree with each otheratall. Paradoxically, the fact that “death is different” has been stood on its head to mean that procedural protections taken for granted in trials for lesser criminal offenses are suspended when the question is a finding that is foundational to the imposition of death. Theresult is truly a “wanton and freakish” system that randomly chooses, among the thousands ofmurderers in California, a few victims of the ultimate sanction. A. Appellant’s Death Penalty is Invalid Because Penal Code Section 190.2 is Impermissibly Broad To avoid the Eighth Amendment’s proscription against cruel and unusual punishment, a death penalty law must provide a “meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in whichit is not. (Citations omitted.)” (People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) In order to meet this constitutional mandate, the states must genuinely narrow,by rational and objective criteria, the class of murderers eligible for the death penalty. According to this Court, the requisite narrowing in California is accomplished by the “special circumstances”set out in section 190.2. (People v Bacigalupo (1993) 6 Cal.4th 857, 868.) The 1978 death penalty law cameinto being, however, not to narrow those eligible for the death penalty but to makeall murderers eligible. (See 1978 Voter’s Pamphlet, p. 34, “Arguments in Favor ofProposition 7.”) This initiative statute was enacted into law as Proposition 7 by its proponents on November7, 1978. Whenthe charges against Appellant were filed in this case, the statute contained twenty-six special 257 2EEREORREORIMESSN bow TNH eR Gg ie MPN LP Sig eat nt a aegiraael circumstances purporting to narrow the category offirst degree murders to those murders most deserving ofthe death penalty. These special circumstances are so numerousand so broadin definition as to encompassnearly every first-degree murder, accomplishing the drafters’ declared intent. In California, almost all felony-murders are now special circumstance cases, and felony-murdercases include accidental and unforeseeable deaths, as well as acts committed in a panic or under the dominion of a mental breakdown,or acts committed by others. (People v. Dillon (1984) 34 Cal.3d 441.) Section 190.2’s reach has been extended to virtually all intentional murders by this Court’s construction of the lying-in-wait special circumstance, which has been construed so broadly as to encompassvirtually all such murders. (See People v. Hillhouse (2002) 27 Cal.4th 469, 500-501, 512-515.) These categories are joined by so manyother categories of special-circumstance murder that the statute now comesclose to achieving its goal ofmaking every murderer eligible for death. The United States Supreme Court has madeit clear that the narrowing function, as opposed to the selection function, is to be accomplished by the legislature. The electorate in California and the drafters ofthe Briggs Initiative threw down a challenge to the courts by seeking to make every murderereligible for the death penalty. This Court should accept that challenge, review the death penalty schemecurrently in effect, and strike it downas soall- inclusive as to guarantee the arbitrary imposition ofthe death penalty in violation 258 ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and prevailing international law. (See Section E. of this Argument, post). B. Appellant’s Death Penalty is Invalid Because Penal Code Section 190.3(a) as Applied Allows Arbitrary and Capricious Imposition of Death In Violation of the Fifth, Sixth, eighth, and Fourteenth Amendments to the United States Constitution Section 190.3(a) violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in that it has been applied in such a wanton and freakish mannerthat almost all features of every murder, even features squarely at odds with features deemed supportive of death sentences in other cases, have been characterized by prosecutors as “aggravating” within the statute’s meaning. Factor(a), listed in section 190.3, directs the jury to consider in aggravation the “circumstances ofthe crime.” This Court has never applied a limiting construction to factor (a) other than to agree that an aggravating factor based on the “circumstances ofthe crime” must be some fact beyond the elements ofthe crimeitself. The Court has allowed extraordinary expansions of factor (a), approving reliance uponit to support aggravating factors based upon the defendant’s having sought to conceal evidence three weeks after the crime, or having had a “hatred ofreligion,” or threatened witnessesafter his arrest, or disposed ofthe victim’s body in a mannerthat precludedits recovery. It also is the basis for admitting evidence underthe rubric of “victim impact”that is no more than an inflammatory presentation by the victim’srelatives ofthe 259 prosecution’s theory ofhow the crime was committed. (See, Argument VI, supra. See also, e.g., People v. Robinson (2005) 37 Cal.4th 592, 644-652, 656- 657.) The purpose of section 190.3 is to inform the jury of what factorsit should consider in assessing the appropriate penalty. Although factor(a) has survived a facial Eighth Amendmentchallenge (Tuilaepav. California (1994) 512 U.S. 967), it has been used in ways so arbitrary and contradictory as to violate both the federal guarantee of due process of law and the Eighth Amendment. Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that, from caseto case, reflect starkly opposite circumstances. (Tuilaepa, supra, 512 U.S. at pp. 986-990, dis. opn. ofBlackmun,J.) Factor (a) is used to embrace facts which are inevitably present in every homicide. (/bid.) Asa consequence, from case to case, prosecutors have been permitted to turn entirely opposite facts — or facts that are inevitable variations of every homicide — into aggravating factors which the jury is urged to weigh on death’sside of the scale. In practice, section 190.3’s broad “circumstances ofthe crime” provision licenses indiscriminate imposition of the death penalty upon no basis other than “that a particular set of facts surrounding a murder, . . . were enough in themselves, and without some narrowingprinciples to apply to those facts, to warrant the imposition of the death penalty.” (Maynard v. Cartwright (1988) 486 U.S. 356, 363 [discussing the holding in Godfrey v. Georgia (1980) 446 US. 260 420].) Viewing section 190.3 in context of howit is actually used, one sees that every fact without exception that is part ofa murder can be an “aggravating circumstance,” thus emptying that term of any meaning, and allowing arbitrary and capricious death sentences, in violation ofthe federal constitution. C. California’s Death Penalty Statute Contains No Safeguardsto Avoid Arbitrary and Capricious Sentencing and Deprives Defendantsofthe Right to a Jury Determination of Each Factual Prerequisite to a Sentence of Death; It Therefore Violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution As shownabove, California’s death penalty statute does nothing to narrow the pool of murderers to those most deserving of death in either its “special circumstances”section (§ 190.2) or in its sentencing guidelines (§ 190.3). Section 190.3(a) allows prosecutors to argue that every feature ofa crime that can bearticulated is an acceptable aggravating circumstance, even features that are mutually exclusive. Furthermore,there are none ofthe safeguards commonto other death penalty sentencing schemesto guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. They do not haveto find beyond a reasonable doubt that aggravating circumstancesare proved, that they outweigh the mitigating circumstances,or that death is the appropriate penalty. In fact, except as to the existence ofother criminal activity and prior convictions, juries are not instructed on any burdenofproofat all. Not only is inter-case proportionality review not 261 ihnDRADAMRrAISNEAPNBNapcrASSRetBSPASSNREcEABIE on required; it is not permitted. Underthe rationale that a decision to impose death is “moral” and “normative,” the fundamental components ofreasoned decision- makingthat apply to all other parts of the law have been banished from the entire process ofmaking the most consequential decision a juror can make — whetheror not to condemn a fellow humanto death. 1. Appellant’s Death Verdict Was Not Premised on Findings Beyond a Reasonable Doubt by a Unanimous Jury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to Jury Determination Beyond a Reasonable DoubtofAll Facts Essential to the Imposition of a Death Penalty Was Thereby Violated. Exceptas to prior criminality, appellant’s jury was not told that it had to find any aggravating factor true beyond a reasonable doubt. The jurors were not told that they needed to agree at all on the presence of any particular aggravating factor, or that they had to find beyond a reasonable doubt that aggravating factors outweighed mitigating factors before determining whether or not to impose a death sentence. All this was consistent with this Court’s previous interpretations of California’s statute. In People v. Fairbank (1997) 16 Cal.4th 1223, 1255, this Court said that “neither the federal nor the state Constitution requires the jury to agree unanimously as to aggravating factors, or to find beyond a reasonable doubt that aggravating factors exist, [or] that they outweigh mitigating factors ...” But this pronouncementhas been squarely rejected by the U.S. Supreme Court’s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 [hereinafter Apprendi]; 262 Ring v. Arizona (2002) 536 U.S. 584 [hereinafter Ring]; Blakely v. Washington (2004) 542 U.S. 296 [hereinafter Blakely]; and Cunningham v. California (2007) 549U.S. __, 127 S.Ct. 856, 166 L.Ed.2d 856 [hereinafter Cunningham]. In Apprendi, the high court held that a state may not impose a sentence greater than that authorized by the jury’s simple verdict of guilt unless the facts supporting an increased sentence (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (/d. at p. 478.) In Ring, the high court struck down Arizona’s death penalty scheme, whichauthorized a judgesitting withoutajury to sentence a defendantto death if there was at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. (/d., at p. 593.) The court acknowledgedthat in a prior case reviewing Arizona’s capital sentencing law (Walton v. Arizona (1990) 497 U.S. 639) it had held that aggravating factors were sentencing considerations guiding the choice between life and death, and not elements ofthe offense. (Ring, supra, at p. 598.) The court found that in light of Apprendi, Walton no longer controlled. Any factual finding which increases the possible penalty is the functional equivalent of an element ofthe offense, regardless ofwhen it must be found or what nomenclatureis attached; the Sixth and Fourteenth Amendments require that it be found by a jury beyond a reasonable doubt. In Blakely, the high court considered the effect ofApprendi and Ring in a case where the sentencing judge was allowed to impose an “exceptional” 263 enPOMARAEEMREBERTCRNyseeRCATRtn Heh hi SREreg ot AusSHABRSONENESSper antic ee sentence outside the normal range uponthe finding of “substantial and compelling reasons.” (Blakely v. Washington, supra, 542 U.S. at p. 299.) The state of Washington set forth illustrative factors that included both aggravating and mitigating circumstances; one of the former was whether the defendant’s conduct manifested “deliberate cruelty” to the victim. (/bid.) The United States Supreme Court ruled that this procedure was invalid because it did not comply with the right to a jury trial. (/d. at p. 313.) The Supreme Court emphasizedthat the governing rule since Apprendiis that, other than a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and found beyond a reasonable doubt; “the relevant ‘statutory maximum?’is not the maximum sentence ajudge may imposeafter finding additionalfacts, but the maximum he may impose without any additional findings.” (/d. at p. 304;italics in original.) This line of authority has been consistently reaffirmed by the high court. In United States v. Booker (2005) 543 U.S. 220, the nine justices split into different majorities. Justice Stevens, writing for a 5-4 majority, found that the United States Sentencing Guidelines were unconstitutional because they set mandatory sentences based on judicial findings made by a preponderanceofthe evidence. Bookerreiterates the Sixth Amendment requirementthat “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury 264 verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker, supra, 543 U.S.at p. 244.) In Cunningham, the high court rejected this Court’s interpretation of Apprendi, and found that California’s Determinate Sentencing Law (“DSL”) requires a jury finding beyond a reasonable doubt of any fact used to enhance a sentence above the middle range spelled out by the legislature. (Cunningham v. California, supra, Section III.) In so doing, it explicitly rejected the reasoning used by this Court to find that Apprendi and Ring have no application to the penalty phaseofa capitaltrial. a. Inthe Wake ofApprendi, Ring, Blakely, and Cunningham, Any Jury Finding Necessary to the Imposition ofDeath Must Be Found True Beyond a Reasonable Doubt. California law as interpreted by this Court does not require that a reasonable doubt standard be used during any part of the penalty phase of a defendant’s trial, except as to proof of prior criminality relied upon as an aggravating circumstance — and even in that context the required finding need not be unanimous. (People v. Fairbank, supra; see also People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty phase determinations are “moral and . . . not factual,” and therefore not “susceptible to a burden-of-proof quantification”].) California statutory law andjury instructions, however, do require fact-finding before the decision to impose death or a lesser sentence is finally made. As a prerequisite to the imposition ofthe death penalty, section 190.3 requires the “trier of fact” to find that at least one aggravating factor exists and 265 Hine StASROtHESTORERCCsAae an ae ee sec patan vos aetetons ae ne Bd AE NRT AARiMNACRERIERRC AN p that such aggravating factor (or factors) substantially outweigh any andall mitigating factors. As set forth in California’s “principal sentencing instruction” (People v. Farnam (2002) 28 Cal.4th 107, 177), which was given to appellant’s jury (CT 1430),”an aggravating factor is anyfact, condition or event attending the commission ofa crime which increases its guilt or enormity, or addsto its injurious consequences which is above and beyondthe elements ofthe crime itself.’ (CALJIC No. 8.88; emphasis added.) Thus, before the process ofweighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found by the jury. And before the decision whether or not to impose death can be made,the jury mustfind that aggravating factors substantially outweigh mitigating factors. These factual determinationsare essential prerequisites to death-eligibility, but do not mean that death is the inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings. This Court has repeatedly sought to reject the applicability of Apprendi and Ring by comparing the capital sentencing process in California to “asentencing court’s traditionally discretionary decision to impose oneprison sentence rather than another.” (People v. Demetrulias (2006) 39 Cal.4th 1, 41; People v. Dickey (2005) 35 Cal.4th 884, 930; People v. Snow (2003) 30 Cal.4th 43, 126, fn. 32; People v. Prieto (2003) 30 Cal.4th 226, 275.) It has applied precisely the same analysis to fend offApprendi and Blakely in non-capital cases. 266 In People v. Black (2005) 35 Cal.4th 1238, 1254, this Court heldthat notwithstanding Apprendi, Blakely, and Booker, a defendant has no constitutional right to a jury finding as to the facts relied on by thetrial court to impose an aggravated, or upper-term sentence; the Determinate Sentence Law (hereafter, “DSL”) “simply authorizes a sentencing court to engage in the type of fact- finding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range.” (35 Cal.4th at p. 1254.) The United States Supreme Court explicitly rejected this reasoning in Cunningham. \n Cunningham theprinciple that any fact which exposed a defendant to a greater potential sentence must be foundbya jury to be true beyond a reasonable doubt was applied to California’s Determinate Sentencing Law. The high court examined whetheror not the circumstances in aggravation were factual in nature, and concluded they were, after a review of the relevant rules of court. (/d. at pp. 6-7.) That was the end of the matter: Black's interpretation of the DSL “violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and found beyond a reasonable doubt.’ [citation omitted].” (Cunningham, supra, p. 13.) Cunningham then examined this Court’s extensive development of why an interpretation ofthe DSL that allowed continued judge-based finding of fact and sentencing was reasonable, and concludedthat “it is comforting, but 267 1 Patea CSLAERETSSARORESPADISE8 rari te RE nk tm FE Nt RrteriERENESEASEMHISPeoe ee wm ae beside the point, that California’s system requires judge-determined DSL sentences to be reasonable.” (/d., p. 14.) The Black court's examination ofthe DSL, in short, satisfied it that California's sentencing system doesnot implicate significantly the concerns underlying the Sixth Amendment's jury-trial guarantee. Our decisions, however, leave no room for such an examination. Asking whether a defendant's basic jury- trial right is preserved, though somefacts essential to punishmentare reserved for determination by the judge, we havesaid, is the very inquiry Apprendi's “bright- line rule” was designed to exclude. See Blakely, 542 U.S., at 307-308, 124 S.Ct. 2531. But see Black, 35 CalAth, at 1260, 29 Cal.Rptr.3d 740, 113 P.3d, at 547 (stating, remarkably,that “[tJhe high court precedents do not draw a brightline”). (Cunningham, supra, at p. 13.) In the wake of Cunningham,it is crystal- clear that in determining whetheror not Ring and Apprendi apply to the penalty phase of a capital case, the sole relevant question is whether or notthere is a requirement that anyfactualfindings be made before a death penalty can be imposed. In its effort to resist the directions ofApprendi, this Court held that since the maximum penalty for one convicted offirst degree murder with a special circumstance is death (see section 190.2(a)), Apprendi does not apply. (People v. Anderson (2001) 25 Cal.4th 543, 589.) After Ring, this Court repeated the same analysis: “Because any finding of aggravating factors during the penalty phase does not ‘increase the penalty for a crime beyondthe prescribed statutory maximum’(citation omitted), Ring imposes no new constitutional requirements on California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th at p. 263.) 268 This holding is simply wrong. As section 190, subd.(a) indicates, the maximum penalty for any first degree murder conviction is death. The top of three rungs is obviously the maximumsentencethat can be imposed pursuant to the DSL, but Cunningham recognized that the middle rang was the most severe penalty that could be imposed by the sentencing judge without further factual findings: “In sum, California's DSL, and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts — whether related to the offense or the offender — beyond the elements ofthe charged offense.” (Cunningham, supra,at p. 6.) Arizona advancedprecisely the same argument in Ring. It pointed out that a finding of first degree murder in Arizona, like a finding of one or more special circumstancesin California, leads to only two sentencing options: death or life imprisonment, and Ring was therefore sentenced within the range of punishment authorized by the jury’s verdict. The United States Supreme Court squarely rejected the State’s position: This argument overlooks Apprendi’s instruction that “the relevant inquiry is one not of form, but of effect.” 530 U.S. at p. 494, 120 S.Ct. 2348. In effect, “the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict.” Jbid.; see 200 Ariz., at 279, 25 P.3d, at 1151. (Ring, 124 S.Ct. at 2431.) Just as when a defendantis convicted offirst degree murderin Arizona, a California conviction of first degree murder, even with a finding of 269 S nectemheteRORWARREtreadREC RY arate ws NES EAE FR Re gL ittetane at spite anat ge toae eeS Be seen ape ee ante one or more special circumstances,“authorizes a maximum penalty of death only in a formal sense.” (Ring, supra, 530 U.S.at 604.) Section 190, subd. (a) providesthat the punishmentforfirst degree murderis 25 years to life, life withoutpossibility ofparole (“LWOP”), or death; the penalty to be applied “shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5.” Neither LWOPnordeath can be imposedunless the jury finds a special circumstance (section 190.2). Death is not an available option unless the jury makes further findings that one or more aggravating circumstances exist, andthat the aggravating circumstances substantially outweigh the mitigating circumstances. (Section 190.3; CALJIC 8.88 (7" ed., 2003).) “Ifa State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it - must be found byajury beyond a reasonable doubt.” (Ring, 530 U.S. at 604.) In Blakely, the high court madeit clear that, as Justice Breyer complained in dissent, “a jury must find, not only the facts that make up the crime of which the offender is charged, but also all (punishment-increasing) facts about the way in which the offender carried out that crime.” (Blakely v. Washington, supra, at p. 327, 124 S.Ct. at p. 2551; emphasisin original.) The issue ofthe Sixth Amendment’s applicability hinges on whether, as a practical matter, the sentencer must make additional findings during the penalty phase before determining whetheror not the death penalty can be imposed. In California, as in Arizona, the answeris “Yes.” That, according to Apprendi and Cunningham,is the end ofthe inquiry as far as the Sixth 270 Amendment’s applicability is concerned. California’s failure to require the requisite factfinding in the penalty phase to be found unanimously and beyond a reasonable doubtviolates the United States Constitution. b. Whether Aggravating Factors Outweigh Mitigating Factors Is a Factual Question That Must Be Resolved Beyond a Reasonable Doubt. A California jury in a penalty trial must first decide whether any aggravating circumstances, as defined by section 190.3 and the standard penalty phaseinstructions, exist in the case before it. If so, the jury then weighs any such factors against the proffered mitigation. A determination that the aggravating factors substantially outweigh the mitigating factors — a prerequisite to imposition ofthe death sentence — is the functional equivalent of an elementofcapital murder, and is therefore subject to the protections of the Sixth Amendment. (See State v. Ring, supra, 65 P.3d 915, 943; accord, State v. Whitfield, 107 S.W.3d 253 (Mo. 2003); State v. Ring, 65 P.3d 915 (Ariz. 2003); Woldt v. People, 64 P.3d 256 (Colo. 2003); Johnsonv. State, 59 P.3d 450 (Nev. 2002).) Nogreater interest is ever at stake than in the penalty phase of a capital case. (Mongev. California (1998) 524 U.S. 721, 732 [“the death penalty is unique in its severity andits finality”|.) As the high court stated in Ring, supra, 122 S.Ct. at pp. 2432, 2443: Capital defendants, no less than non-capital defendants, we conclude,are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. ... The rightto trial by jury guaranteed by the Sixth Amendment would besenselessly diminishedif it encompassed the fact-finding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him to death. 271 Thelast step of California’s capital sentencing procedure, the decision whether to impose death orlife, is a moral and a normative one. This Court errs greatly, however, in using this fact to allow the findings that make one eligible for death to be uncertain, undefined, and subject to dispute not only as to their significance, butas to their accuracy. This Court’s refusal to accept the applicability ofRing to the eligibility components of California’s penalty phase violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. 2. The Due Process and the Cruel and Unusual Punishment Clauses of the State and Federal Constitution Require That the Jury in a Capital Case Be Instructed That They May Imposea Sentence of Death Only IfThey Are Persuaded Beyond a Reasonable Doubt That the Aggravating Factors Exist and Outweigh the Mitigating Factors and That Death Is the Appropriate Penalty. a. Factual Determinations The outcomeofajudicial proceeding necessarily depends on an appraisal of the facts. “[T]he procedures by which the facts of the case are determined assume an importancefully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958) 357 U.S. 513, 520-521.) The primary procedural safeguard implanted in the criminal justice system relative to fact assessmentis the allocation and degree ofthe burden of proof. The burden ofproofrepresents the obligation of a party to establish a 272 particular degree of beliefas to the contention sought to be proved. In criminal cases the burdenis rooted in the Due Process Clause of the Fifth and Fourteenth Amendment. (In re Winship (1970) 397 U.S. 358, 364.) In capital cases “the sentencing process, as well as thetrial itself, must satisfy the requirements ofthe DueProcess Clause.” (Gardner v. Florida (1977) 430 U.S. 349, 358; see also Presnell v. Georgia (1978) 439 U.S. 14.) Aside from the questionofthe applicability ofthe Sixth Amendmentto California’s penalty phase proceedings, the burden ofproof for factual determinations during the penalty phase of a capitaltrial, whenlife is at stake, must be beyond a reasonable doubt.Thisis required by both the Due Process Clause ofthe Fourteenth Amendmentand by the Eighth Amendment. b. Imposition ofLife or Death The requirements of due processrelative to the burden ofpersuasion generally depend upon the significance ofwhatis at stake and the social goal of reducing the likelihood of erroneousresults. (Winship, supra, 397 U.S.at pp. 363-364; see also Addington v. Texas (1979) 441 U.S. 418, 423; Santosky v. Kramer(1982) 455 U.S. 743, 755.) It is impossible to conceive of an interest moresignificant than human life. Far less valued interests are protected by the requirement ofproof beyond a reasonable doubt before they may be extinguished. (See Winship, supra (adjudication ofjuvenile delinquency); People v. Feagley (1975) 14 Cal.3d 338 (commitment as mentally disordered sex offender); People v. Burnick (1975) 14 Cal.3d 306 (same); People v. Thomas (1977) 19 Cal .3d 630 273 se 1hORINONERogan EU JaR ethan AR Ft or dagtNgencena paste wer esFAAAiets 4 (commitmentas narcotic addict); Conservatorship ofRoulet (1979) 23 Cal.3d 219 (appointmentofconservator).) The decisionto take a person’s life must be made under no less demanding a standard. In Santosky, supra, the United States Supreme Court reasoned: [I]n any given proceeding, the minimum standard ofprooftolerated by the due process requirementreflects not only the weight ofthe private and public interests affected, but also a societal judgment about howthe risk of error should be distributed between the litigants. .... When the State brings a criminal action to deny a defendantliberty orlife, . . . “the interests ofthe defendant are of such magnitudethat historically and without any explicit constitutional requirement they have been protected by standards ofproof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” [Citation omitted.) The stringency ofthe “beyond a reasonable doubt”standard bespeaks the ‘weight and gravity’ of the private interest affected [citation omitted], society’s interest in avoiding erroneous convictions, and ajudgmentthat those interests together require that “society impos{e] almost the entire risk of error uponitself.” (455 U.S.at p. 755.) The penalty proceedings,like the child neglect proceedings dealt with in Santosky, involve “imprecise substantive standards that leave determinations unusually open to the subjective values ofthe [jury].” (Santosky, supra, 455 U.S.at p. 763.) Imposition of a burden ofproof beyond a reasonable doubt can be effective in reducing this risk of error, since that standard has long proven its worth as “a prime instrument for reducing the risk of convictions resting on factual error.” (Winship, supra, 397 U.S.at p. 363.) Adoption of a reasonable doubt standard would not deprive the State of the power to impose capital punishment; it would merely serve to maximize “reliability in the determination that death is the appropriate punishmentin a 274 specific case.” (Woodson, supra, 428 U.S. at p. 305.) The only risk of error suffered by the State underthestricter burden ofpersuasion would be the possibility that a defendant, otherwise deserving of being put to death, would instead be confined in prison forthe rest ofhis life without possibility ofparole. In Monge, the United States Supreme Court expressly applied the Santosky rationale for the beyond-a-reasonable-doubt burden ofproof requirementto capital sentencing proceedings: “/I]n a capital sentencing proceeding,as in a criminaltrial, ‘the interests of the defendant [are] of such magnitude that . . . they have been protected by standards ofproof designed to exclude as nearly as possible the likelihood ofan erroneous judgment.’ ([Bullington v. Missouri,] 451 U.S.at p. 441 (quoting Addingtonv. Texas, 441 US. 418, 423-424, 60 L-Ed.2d 323, 99 S.Ct. 1804 (1979).)” (Mongev. California, supra, 524 U.S.at p. 732 (emphasis added).) The sentencer ofa person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guarantees to be convinced beyond a reasonable doubt that not only are the factual bases for the decision true, but that death is the appropriate sentence. 3. California Law Violates the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors. The failure to require written or other specific findings by the jury tegarding aggravating factors deprived Appellant of his federal due process and 275 caapartpancetta tes = cy a ekanmeAeMebISENAaNMMEHRemee w Eighth Amendmentrights to meaningful appellate review. (California v. Brown, (1987) 479 U.S. 538, 543; Gregg v. Georgia, supra, 428 U.S.at p. 195.) Especially given that California juries have total discretion without any guidance on how to weigh potentially aggravating and mitigating circumstances (People v. Fairbank, supra), there can be no meaningful appellate review without written findings becauseit will otherwise be impossible to “reconstruct the findings of the state trier of fact.” (See Townsend v. Sain (1963) 372 U.S. 293, 3 13-316.) This Court has held that the absence ofwritten findings by the sentencer does not render the 1978 death penalty scheme unconstitutional. (People v. Fauber (1992) 2 Cal.4th 792, 859; People v. Rogers (2006) 39 Cal.4th 826, 893.) Ironically, such findings are otherwise considered by this Court to be an element of due process so fundamental that they are even required at parole suitability hearings. A convicted prisoner whobelieves that he or she was improperly denied parole must proceedvia a petition for writ of habeas corpus andis required to allege with particularity the circumstances constituting the State’s wrongful conduct and show prejudice flowing from that conduct. (In re Sturm (1974) 11 Cal.3d 258.) The parole board is therefore required to state its reasons for denying parole: “It is unlikely that an inmate seeking to establish that his application for parole was arbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledge ofthe reasons therefor.” 276 (In re Sturm, supra, 11 Cal.3d at p. 267.) The same analysis applies to the far graver decision to put someoneto death. In a non-capital case, the sentencer is required by California law to state on the record the reasons for the sentence choice. (Section 1170, subd. (c).) Capital defendants are entitled to more rigorous protections than those afforded non-capital defendants. (Harmelin v. Michigan (1991) 501 U.S. 957, 994.) Since providing more protection to a non-capital defendant than a capital defendant would violate the equal protection clause ofthe Fourteenth Amendment(see generally Myers v. Ylst (9th Cir. 1990) 897 F.2d 417, 421; Ring v. Arizona, supra; Section D,post), the sentencerin a capital case is constitutionally required to identify for the record the aggravating circumstances found and the reasons for the penalty chosen. Written findings are essential for a meaningful review ofthe sentence imposed. (See Mills v. Maryland (1988) 486 U.S. 367, 383, fn. 15.) Even wherethe decision to impose death is “normative” (People v. Demetrulias, supra, 39 Cal.4th at pp. 41-42) and “moral” (People v. Hawthorne, supra, 4 Cal.4th at p. 79), its basis can be, and should be, articulated. The importance of written findings is recognized throughoutthis country; post-Furmanstate capital sentencing systems commonly require them. Further, written findings are essential to ensure that a defendant subjected to a capital penalty trial under section 190.3 is afforded the protections guaranteed by the Sixth Amendment right to trial by jury. (See Section C.1, ante.) 277 2ARENREEREREETTTLEEETINY SAREERNarete Ie oh TSEgE NC Ham og 8 eAithheametRRPSOESHafta eB ara ne EE ah There are no other procedural protections in California’s death penalty system that would somehow compensate for the unreliability inevitably producedbythe failure to require an articulation ofthe reasons for imposing death. (See Kansasv. Marsh, supra [statute treating a jury’s finding that aggravation and mitigation are in equipoise as a vote for death held constitutional in light of a system filled with other procedural protections, including requirements that the jury find unanimously and beyond a reasonable doubt the existence of aggravating factors and that such factors are not outweighed by mitigating factors].) The failure to require written findings thus violated not only federal due process and the Eighth Amendmentbutalso the right to trial by jury guaranteed by the Sixth Amendment. 4. California’s Death Penalty Statute as Interpreted by the California Supreme Court Forbids Inter-case Proportionality Review, Thereby Guaranteeing Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Penalty. The Eighth Amendmentto the United States Constitution forbids punishments that are cruel and unusual. The jurisprudence that has emerged applying this ban to the imposition of the death penalty has required that death judgments be proportionate and reliable. One commonly utilized mechanism for helping to ensure reliability and proportionality in capital sentencing is comparative proportionality review — a procedural safeguard this Court has eschewed. In Pulley v. Harris (1984) 465 U.S. 37, 51 (emphasis added), the high court, while declining to hold that comparative proportionality review is an 278 essential component of every constitutional capital sentencing scheme, noted the possibility that “there could be a capital sentencing scheme so lacking in other checks on arbitrariness that it would notpass constitutional muster without comparative proportionality review.” California’s 1978 death penalty statute, as drafted and as construed by this Court and applied in fact, has becomejust sucha sentencing scheme. The high court in Harris, in contrasting the 1978 statute with the 1977 law which the court upheld against a lack-of-comparative-proportionality-review challenge, itself noted that the 1978 law had “greatly expanded”the list of special circumstances. (Harris, 465 U.S.at p. 52, fn. 14.) That number has continued to grow, and expansive judicial interpretations of section 190.2’s lying-in-wait special circumstance have madefirst degree murders that can not be charged with a “special circumstance”a rarity. Aswehaveseen,that greatly expandedlist fails to meaningfully narrow the pool of death-eligible defendants and hence permits the samesort of arbitrary sentencing as the death penalty schemes struck down in Furmanv. Georgia, supra. (See Section A ofthis Argument, ante.) California’s statute lacks numerousother procedural safeguards commonly utilized in other capital sentencing jurisdictions (see Section C, ante), and the statute’s principal penalty phase sentencing factor has itselfproved to be an invitation to arbitrary and capricious sentencing (see Section B, ante). Viewing the lack of comparative 279 EeNNRONMIE NamRtoetemas Ee KR ae ey as ne RE in eMingtig! wey Mae calebaercnntld Met proportionality review in the context ofthe entire California sentencing scheme (see Kansas v. Marsh, supra), this absence renders that scheme unconstitutional. Section 190.3 does not require that either the trial court or this Court undertake a comparison between this and other similar cases regarding the relative proportionality ofthe sentence imposed,i.e., inter-case proportionality review. (See People v. Fierro, supra, 1 Cal.4th at p. 253.) The statute also does not forbid it. The prohibition on the consideration of any evidence showing that death sentences are not being charged or imposed onsimilarly situated defendantsis strictly the creation of this Court. (See, e.g., People v. Marshall (1990) 50 Cal.3d 907, 946-947.) This Court’s categorical refusal to engage in inter-case proportionality review now violates the Eighth Amendment. 5. The Prosecution May NotRely in the Penalty Phase on Unadjudicated Criminal Activity; Further, Even If It Were Constitutionally Permissible for the Prosecutor to Do So, Such Alleged Criminal Activity Could Not Constitutionally Serve as a Factor in Aggravation Unless Found to Be True Beyond a Reasonable Doubt by a Unanimous Jury. Anyuse ofunadjudicated criminal activity by the jury as an aggravating circumstance under section 190.3, factor (b), violates due process and the Fifth, Sixth, Eighth, and Fourteenth Amendments, rendering a death sentence unreliable. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578; State v. Bobo (Tenn. 1987) 727 S.W.2d 945.) The United States Supreme Court’s recent decisions in United States v. Booker, supra, Blakely v. Washington, supra, Ring v. Arizona, supra, and Apprendi v. New Jersey, supra, confirm that under the Due Process Clauseofthe 280 Fourteenth Amendmentandthe jury trial guarantee ofthe Sixth Amendment, the findings prerequisite to a sentence ofdeath must be made beyond a reasonable doubtby ajury acting as a collective entity. Thus, even if it were constitutionally permissible to rely upon alleged unadjudicated criminal activity as a factor in aggravation, such alleged criminal activity would have to have been found beyonda reasonable doubt by a unanimousjury. Appellant’s jury was not instructed on the need for such a unanimousfinding; nor is such an instruction generally provided for under California’s sentencing scheme. 6. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Impermissibly Acted as Barriers to Consideration of Mitigation by Appellant’s Jury. The inclusion in the list of potential mitigating factors of such adjectives as “extreme”(see factors (d) and (g)) and “substantial” (see factor (g)) acted as barriers to the consideration ofmitigation in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367; Lockett v. Ohio (1978) 438 U.S. 586.) In closing argument, the prosecutor asserted that none ofthe evidence regarding Chris Spencer’s emotional difficulties and family problems and/or his immaturity and undeveloped character was significant enough to be considered as mitigation underthe statutory factors. (See 83 RT 22338-22342.) The statutory language and the prosecutor’s argument thus effectively foreclosed jury consideration of relevant defense evidencein mitigation. 281 barns hetSiete teeRSHLPCEecMEat SENCSS 6 Sant RAE RSS ohoka tgANRealmaneURtemaete ete ae nt mg vg i 7. The Failure to Instruct That Statutory Mitigating Factors Were RelevantSolely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Administration of the Capital Sanction. As a matter of state law, each ofthe factors introduced by a prefatory “whether or not” — factors (d), (e), (f), (g), (h), and (j) of section 190.3— were relevant solely as possible mitigators (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Edelbacher (1989) 47 Cal.3d 983, 1034). This jury, however, was notspecifically informed ofthe factors’ limited use. Instead, these jurors wereleft free to conclude that a “not” answeras to any ofthese “whether or not” sentencing factors could establish an aggravating circumstance, and was thus invited to aggravate the sentence uponthe basis ofnon-existent and/orirrational aggravating factors, thereby precludingthe reliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Woodsonv. North Carolina (1976) 428 U.S. 280, 304; Zant v. Stephens (1983) 462 US. 862, 879.) Further, the jury wasalso left free to aggravate a sentence upon the basis of an affirmative answerto one ofthese questions, and thus, to convert mitigating evidence (for example, evidence establishing a defendant’s mental illness or defect) into a reason to aggravate a sentence, in violation of both state law and the Eighth and Fourteenth Amendments. This Court has repeatedly rejected the argument that a jury would apply factors meant to be only mitigating as aggravating factors weighing towards a sentence of death: 282 Thetrial court was not constitutionally required to inform the jury that certain sentencing factors were relevant only in mitigation, and the statutory instruction to the jury to consider “whether or not” certain mitigating factors were present did not impermissibly invite the jury to aggravate the sentence upon the basis of nonexistent or irrationalaggravating factors. (People v. Kraft, supra, 23 Cal.4th at pp. 1078-1079, 99 Cal.Rptr.2d 1, 5 P.3d 68; see People v. Memro (1995) 11 Cal.4th 786, 886-887, 47 Cal.Rptr.2d 219, 905 P.2d 1305.) Indeed, “no reasonablejuror could be misled by the language ofsection 190.3 concerning the relative aggravating or mitigating nature ofthe variousfactors.” (People v. Arias, supra, 13 Cal.4th at p. 188, 51 Cal.Rptr.2d 770, 913 P.2d 980.) (People v. Morrison (2004) 34 Cal.4th 698, 730; emphasis added.) This assertion is demonstrably false. Within the Morrison caseitself there lies evidence to the contrary. Thetrial judge mistakenly believed that section 190.3, factors (e) and (j) constituted aggravation instead of mitigation. (Id., 32 Cal.4th at pp. 727-729.) This Court recognized that the trial court so erred, but found the error to be harmless. (/bid.) If a seasoned judge could be misled by the language at issue, how can jurors be expected to avoid makingthis same mistake? Othertrial judges and prosecutors have been misled in the same way. (See, e.g., People v. Montiel (1994) 5 Cal.4th 877, 944-945; Peoplev. Carpenter (1997) 15 Cal.4th 312, 423-424.) The very real possibility that Appellant’s jury aggravated his sentence uponthe basis of nonstatutory aggravation deprived Appellant of an important state-law generated procedural safeguard andliberty interest — the right not to be sentenced to death except uponthe basis of statutory aggravating factors (People v. Boyd (1985) 38 Cal.3d 765, 772-775) — and thereby violated appellant’s Fourteenth Amendmentright to due process. (See Hicks v. Oklahoma 283 Sree SREAERANOREENumaOHH EM LE ANE aE RN a emtannae (1980) 447 U.S. 343; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300 (holding that Idaho law specifying manner in which aggravating and mitigating circumstances are to be weighed created a liberty interest protected under the Due Process Clause ofthe Fourteenth Amendment); and Campbell v. Blodgett (9th Cir. 1993) 997 F.2d 512, 522 [same analysis applied to state ofWashington].) The likelihood that the jury in appellant’s case would have been misled as to the potential significance ofthe “whether or not” sentencing factors was heightened by the prosecutor’s misleading and erroneous statements during penalty phase closing argument. (See 83 RT 22337-22355.) The prosecutor then expressly told the jury that none of this evidence wassufficiently credible or compelling to be considered in mitigation. (See, e.g., 83 RT 22339.) Moreover, the prosecutor further argued that even if Spencer was a “follower” as some defense witnessestestified, this made his actions “worse”(i.e., made him more rather than less culpable) and was therefore an aggravating not a mitigating factor. (See 83 RT 22339-22340.) It is thus likely that Appellant’s jury aggravated his sentence upon the basis ofwhat were, as a matter of state law, non-existent factors and did so believing that the State — as represented by the trial court — had identified them as potential aggravating factors supporting a sentence of death. This violated not only state law, but the Eighth Amendment, for it made it likely that the jury treated appellant “as more deserving ofthe death penalty than he might otherwise be by relying upon . . illusory circumstance[{s].” (Stringer v. Black (1992) 503 U.S. 222, 235.) 284 From case to case, even with no difference in the evidence, sentencing juries will discern dramatically different numbers of aggravating circumstances becauseofdiffering constructions ofthe CALJIC pattern instruction. Different defendants, appearing before different juries, will thus be sentenced on the basis of different legal standards. Whether a capital sentence is to be imposed cannot be permitted to vary from case to case according to different juries’ understandings ofhow manyfactors on statutory list the law permits them to weigh on death’s side ofthe scale. “Capital punishment [must] be imposedfairly, and with reasonable consistency,or not atall.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 112.) D. The California Sentencing Scheme Violates the Equal Protection Clause of the Federal Constitution by Denying Procedural Safeguards to Capital Defendants Which Are Afforded to Non-capital Defendants The United States Supreme Court has repeatedly directedthat a greater degree ofreliability is required when death is to be imposed and that courts must be vigilant to ensure procedural fairness and accuracyin fact-finding. (See, e.g., Monge v. California, supra, 524 U.S. at pp. 731-732.) Despite the High Court’s clear directive, California’s death penalty scheme provides significantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes. This differential treatment violates the constitutional guarantee of equal protection ofthe laws. Equalprotection analysis begins with identifying the interestat stake. “Personalliberty is a fundamentalinterest, second only tolife itself, as an 285 sorenANenaleUMCIARANORMAWes EANcae INL YenSect Ne aeRO interest protected under both the California and the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251.) If the interestis “fundamental,” then courts have “adopted an attitude of active andcritical analysis, subjecting the classification to strict scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784-785.) A state may notcreate a classification scheme which affects a fundamental interest without showing that it has a compelling interest which justifies the classification and that the distinctions drawn are necessary to further that purpose. (People v. Olivas, supra; Skinner v. Oklahoma (1942) 316 US. 535, 541.) The State cannot meet this burden. Equal protection guarantees must apply with greater force, the scrutiny ofthe challenged classification be more strict, and any purported justification by the State ofthe discrepant treatment be even more compelling because the interest at stake is not simply liberty, but life itself. In Prieto, as in Snow,this Court analogized the process of | determining whether to impose death to a sentencing court’s traditionally discretionary decision to impose one prison sentence rather than another. (See also, People v. Demetrulias, supra, 39 Cal.4th at p. 41.) Howeverapt or inapt the analogy, California is in the unique position of giving persons sentenced to death significantly fewer procedural protections than a person being sentencedto prison for receiving stolen property, or possessing cocaine. 286 An enhancingallegation in a California non-capital case must be found true unanimously, and beyond a reasonable doubt. (See, e.g., sections 1158, 1158a.) When a California judge is considering which sentence is appropriate in a non-capital case, the decision is governed by court rules. California Rules of Court, rule 4.42, subd. (e) provides: “The reasons for selecting the upper or lower term shall be stated orally on the record, and shall include a concise statement ofthe ultimate facts which the court deemedto constitute circumstances in aggravation or mitigation justifying the term selected.” In a capital sentencing context, however, there is no burden ofproof except as to other-crime aggravators, and the jurors need not agree on whatfacts are true, or important, or what aggravating circumstances apply. (See Sections C.1-C.2, ante.) And unlike proceedings in most states where death is a sentencing option, or in which persons are sentenced for non-capital crimes in California, no reasons for a death sentence need be provided. (See Section C.3, ante.) These discrepancies are skewed against persons subjectto loss of life; they violate equal protection of the laws. (Bush v. Gore (2000) 531 US. 98, 121 S.Ct. 525, 530.) To provide greater protection to non-capital defendants than to capital defendants violates the due process, equal protection, and cruel and unusual punishmentclauses of the Eighth and Fourteenth Amendments. (See, 287 a eginbihny-SOWSEATGONRnRSEanedhe ote NIE FATE AR a gn ALATARU NEEEALACHMANNISRNSEIALy Notas Sea me angleeee ae gee e.g., Mills v. Maryland, supra, 486 U.S.at p. 374; Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 421; Ring v. Arizona, supra.) E. California’s Use of the Death Penalty as a Regular Form of Punishment Falls Short of International Norms of Humanity and Decency and Violates the Eighth and Fourteenth Amendments; Imposition of the Death Penalty Now Violates the Eighth and Fourteenth Amendments to the United States Constitution The United States stands as one of a small numberofnations that regularly uses the death penalty as a form ofpunishment. (Soering v. United Kingdom: Whether the Continued Use ofthe Death Penalty in the United States Contradicts International Thinking (1990) 16 Crim. and Civ. Confinement339, 366.) The nonuse ofthe death penalty,or its limitation to “exceptional crimes such as treason” — as opposedto its use as regular punishment— is particularly uniform in the nations ofWestern Europe. (See, e.g., Stanford v. Kentucky (1989) 492 US. 361, 389 [dis. opn. ofBrennan, J.]; Thompson v. Oklahoma (1988) 487 US. 815, 830 {plur. opn. of Stevens, J.].) Indeed, a// nations of Western Europe have now abolished the death penalty. (Amnesty International, “The Death Penalty: List ofAbolitionist and Retentionist Countries” (Nov. 24, 2006), on Amnesty International website [www.amnesty.org].) Although this country is not bound by the laws of any other sovereignty in its administration of our criminal justice system,it has relied from its beginning on the customsand practices of other parts of the world to inform our understanding. “When the United States became an independentnation, they 288 became,to use the language of Chancellor Kent, ‘subject to that system ofrules which reason, morality, and custom had established amongthe civilized nations 399ofEuropeas their public law.’” (1 Kent’s Commentaries 1, quoted in Miller v. United States (1871) 78 U.S. [11 Wall.] 268, 315 [20 L.Ed. 135] [dis. opn. of Field, J.]; Hilton v. Guyot (1895) 159 U.S.at p. 227; Martin v. Waddell’s Lessee (1842) 41 U.S. [16 Pet.] 367, 409 [10 L.Ed. 997].) Dueprocessis not a static concept, and neither is the Eighth Amendment. In the course of determining that the Eighth Amendment now bans the execution of mentally retarded persons, the U.S. Supreme Court relied in part on the fact that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” (Atkins v. Virginia, supra, 536 U.S.at p. 316, fn. 21, citing the Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O.T. 2001, No. 00-8727, p. 4.) Thus, assuming arguendo capital punishmentitself is not contrary to international norms ofhuman decency, its use as regular punishment for substantial numbers of crimes — as opposed to extraordinary punishmentfor extraordinary crimes — is. Nations in the Western world no longer acceptit. The Eighth Amendment does not permit jurisdictions in this nation to lag so far behind. (See Atkins v. Virginia, supra, 536 U.S. at p. 316.) Furthermore, inasmuchasthe law of nations now recognizes the impropriety of capital punishment as regular punishment, it is unconstitutional in this country inasmuch 289 “ycUEaMRSRRAAMEARERRSOONStee OR eaom neaenee as international law is a part of our law. (Hilton v. Guyot (1895) 159 U.S.113, 227; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110, 112 [15 L.Ed. 311].) Categories of crimes that particularly warrant a close comparison with actual practices in other cases include the imposition of the death penalty for felony-murders or other non-intentional killings, and single-victim homicides. See Article VI, Section 2 ofthe International Covenant on Civil and Political Rights, which limits the death penalty to only “the most serious crimes.” Categories ofcriminals that warrant such a comparison include persons suffering from mentalillness or developmental disabilities. (Cf. Ford v. Wainwright (1986) 477 U.S. 399; Atkins v. Virginia, supra.) Thus, the very broad death schemein California and death’s use as regular punishmentviolate both international law and the Eighth and Fourteenth Amendments. Appellant’s death sentence should beset aside. 290 CONCLUSION Appellant’s sentence must be reversed due to the overwhelmingly prejudicial effect of inflammatory victim impact evidence, physical evidence and prosecutorial misconduct. The prosecution’s penalty phase as a whole was specifically calculated to appeal to the jurors’ emotions and to overwhelm any possibility of a reasoned andrational penalty judgment. Such evidence and misconduct far exceeded the permissible boundsofa civilized society, let alone ‘the bounds ofthe Eighth and Fourteenth Amendments. Additionally, appellant was found guilty based on an invalid confession; was tried by a jury which was unfairly prejudiced against him at the outset in view of Witt/Witherspoonerror, and has been deniedhis right to meaningful appellate review. Finally, the California death penalty statute as interpreted by this Court violates the United States Constitution and international standards ofhumanity and decency. For all of the above reasons, the judgment mustbe reversedin its entirety. DATED: December6, 2010 Respectfully submitted, EMRYJ. ALLEN Attorney at Law Attorney for Appellant 291 CERTIFICATION OF WORD COUNT I, Emry J. Allen, hereby declare that I prepared the attached Appellant’s Opening Brief in People v. Christopher Alan Spencer, (S057242) on a computer using Word Office 2007. Accordingto that program, the word countofsaid brief, excluding tables, cover, attachments and this certificate, is 77,240 words. Dated: December 7, 2010 EMRYJ. ALLEN
