~ gyPREMECOURT COPY
IN THE SUPREME COURTOF THESTATE OF CALIFORNIA
PEOPLE|OF THE STATE OF CALIFORNIA,
Supreme Court
Plaintiff and Respondent, Crim. S073316
v. Orange County
Superior Court
ROBERT MARK EDWARDS, No. 93WF1180
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Defendant andAppellant.
AUTOMATIC APPEAL FROMTHE JUDGMENT OF THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
THE HONORABLEJOHNJ. RYAN, JUDGE
SUPREME COURT
FILED
DEC 2 8 2006
Frederick K. Oh!::: *APPELLANT’S OPENING BRIEF p59)
MICHAELD. ABZUG
(State Bar No.63306)
7 | : PMB471
137 North Larchmont Boulevard
| Los Angeles, California 90004
Telephone Number: (310) 337-4302
FacsimileNumber: (310) 337-4392
E-Mail: jamaisvu5@aol.com
Attorneyfor Appellant
Robert Mark Edwards
DEATHPENS TY
Michael D. Abzug, Esq.
137North LarchmontBlvd. SUPREME COURT
PMB 471 FILED
Los Angeles, California 90004 DEC 3 8 2008
Telephone: 310 337-4301
Facsimile: 310-337-4392 Frederick K. Ohlrich Clerk
California Bar Number 63306 DEPUTY
Clerk; Supreme Court of California December27, 2006
350 McAllister Street
San Francisco, California 94102-3600
Re: People v. Robert Mark Edwards, S072216; Opening Brief
DearSir:
Enclosed are an original and thirteen copies of my client’s opening
brief, due December 31, 2006. I have also enclosed a face sheet to conform
and a stamped self-addressed envelope.
Asnoted in the brief, the Court has previously granted permission to
file an oversized brief of this length. The Errata Sheetin the front of the
brief has accompaniedall service copies.
I will be out of the country from December 29, 2006 to January 8,
2006.
_...Yours very truly.
)
Michael6Koes yor
Counsel for the Appellant’
W
E
Errata Sheetfor Appellant’s Opening Brief — People v. Robert M.
Edwards, S073316
1) Page xv of the Table of Contents: “IV. Cumulative Error” should read “XII.
Cumulative Error.”
2) Page 160: “People v. Hernandez (1997) 70 Cal.App.4" 271” should read “People
v. Hernandez”(1977) 70 Cal.App.3d 271
IN THE SUPREME COURTOF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Supreme Court
Plaintiff and Respondent, Crim. $073316
v. Orange County
Superior Court
ROBERT MARK EDWARDS, No. 93WF1180
Defendant and Appellant.
AUTOMATIC APPEAL FROM THE JUDGMENTOF THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE
THE HONORABLE JOHN J. RYAN, JUDGE
APPELLANT’S OPENING BRIEF |
MICHAEL D. ABZUG
(State Bar No. 63306)
PMB471
137 North Larchmont Boulevard
Los Angeles, California 90004
Telephone Number: (310) 337-4302
Facsimile Number: (310) 337-4392
‘E-Mail: jamaisvu5@aol.com
Attorneyfor Appellant
Robert Mark Edwards
TABLE OF CONTENTS
TABLE OF AUTHORITIES............0......0.0..2.. Lecce te eetee ene ceeneeseneee
STATEMENT OF THE CASE.....0.000.0.0...0.cceeeeee eee pee eeeeeeeeneeee reese
‘STATEMENT OF FACTS...eeece cece nen e nee ee ene en snes
I. GUILT PHASE. ....000.0.cccc ee eee nc neeeeaeeeneneeenens
A. Introduction... 0...ecece eee reer eee ener nceteneseneneenen
B. The Deeble Murder in May of 1986.................veeeeeeeeeees
1. INQrOdUCTION. .... 0.6... c cece nce ee eee eee e ene e ee eee eens
2. TheScene of the Crime............ec eee eee eeaeeeensaeeees
3. The Forensic Evidence...........cc0ecccccecveceeeceeeeuees
4. The Relationship Between Robert Edwards and Mrs.
Deeble at the Time of the Homicide.....................-
C. The Uncharged Homicide of Muriel Delbecqin Januaryof
1993occeee c ence eee e cee ne nsec nee eeeeneeat eae beenengens
1. Introduction....ccccccccssvscssssveveveveveseseeveves beeeaee
2. The Scene of the Crimekeene cee cee eee eeseeeeteeeteenneeees
3. Forensic Evidence............6..20..0000++ veceeeeeeeeeeeees
4. The Absenceofa Relationship Between Appellant
And Mrs. Delbecq at the time of the Homicide.........
D. The Defense CASO... cece cece eee ce nee e eee e ee ee ence ee ee ene en ees
1. The Robert Edwards’ Abusive Childhood and |
Early Addiction. .......... 00sec cece cece en cee nee ee ene eeeees
2. The Deeble Murder............. Lecce cece eeceeeeeteeereenee
3. The Delbecq Murder. ....... 000.200. cece ence nce eee e eee ee eee
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11
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Il.
Il.
4. Expert Testimony about Blackouts............2...+..++-
THE FIRST PENALTY PHASE......-cccccccccccecsecececceseceeeesees
’ THE SECOND PENALTY PHASE................0...00..0:. cece
A. The Prosecution’s Case-in-Chief. ......0.......0. cess cee eceeceees
B. The Defense CaSe.... 2.00. ce cece cece cece cc eeeneccsceeereseseueess
C. Rebuttal Case.........ccccccececscccccececececceecescceacaeseeeaeeees
ARGUMENT — GUILT PHASEISSUES... ............0. 0.00.eeee eens
I.
II.
iil.
THE TRIAL COURT’S HANDLING OF THE VOIR DIRE
VIOLATED CALIFORNIA LAW AND DENIED ROBERT
EDWARDS HIS FEDERAL CONSTITUTIONAL RIGHTS TO
EQUAL PROTECTION OF THE LAW,A FAIR TRIAL BEFORE
AN IMPARTIAL JURY, AND A RELIABLE DETERMINATION
OF GUILT OF THE PENALTY..............0..0..0000ceeee ee veceeeeaes
A. Introduction ...... 0... cece cee cece ccc ee ccc teeccccnsceeccseeneeeers
B. The Trial Court Erred in FindingAppellant Did Not Make
Qut a Prima Facie Case... 2.00.0... ccc ccc cece cece eee e eee ceaeenues cease
1. Appellant Has Not Waivedhis Federal Claims..........
2. Standard ofReview....... 20.0. cccceecce ence eennceeeeneenenes
3. Appellant Established a Prima Facie Case...............
THE COURT IMPROPERLY DENIED APPELLANT’S MOTION
TO DISMISS THE PANEL THAT HAD BEEN IRREPARABLY
PREJUDICED BY A PRISON GUARD’S REMARKS ABOUT THE
INMATESPOSE IN PRISON................ 2.02 eec cece nee ce eects eee eees
A. Mntroduction......... 0... cece cece eee ce eee eee cece eeeee nee eneeeneeee
B. DISCUSSION. ..... 0.0.2. cee cece cece eee ee eee eee tee eeeneeeneteeeateeeeeene
THE ADMISSION OF EVIDENCE OF THE BRUTAL MURDER
OF MURIEL DELBECQ AS PROOF THAT APPELLANT
COMMITTED THE HOMICIDE OF MARJORIE DEEBLE,
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SEVEN YEARS EARLIER AND 5,000 MILES AWAY, WAS |
CONTRARYTO STATE LAW AND VIOLATED APPELLANT’S
STATE AND FEDERAL CONSTITUTIONAL RIGHBTS...........
A.
B.
Factual Background and Proceedingsin the Trial Court.........
Overview of Legal Arguments on Appeal.................... 0c eee
Standard of Review...........0. 0... ccc cece cececeeveseeeececseseceves
The Admission of the Evidence of the Hawaii Murder Only
Tended to Show a Predisposition to Commit the Charged
Offense and Therefore Violated Appellant’s Fundamental
Right to a Fair Trial and to Due Process of Law as Guaranteed
by the Fifth and Fourteenth Amendments to the Federal
Constitution... 2.0 ccc cece cece eee e cece eect nate ceeeeeteeeeeseeeees
1. Evidence of the Hawaii Homicide was Inadmissible
to Prove the Identity, Common Plan, or the Intent
of the Individual who Murdered Mrs. Deeble Seven
Years Earlier.....0.. 0.00. cc ccc ccc ccc ccc nec ceanccccteccecueccens
a. Prevailing Law............ 0... cece cece ence eeeneeeeeees
b. There was No Evidence that Mrs. Deeble was
SexuallyAssaulted with a Hair Mousse Can,
the Alleged Foundational “Signature” of the
Hawaii and California Crimes....................4.
Cc. The California and Hawaii Crimesare too
Dissimilar to Display the Required Shared
“Sigmatures” 2.2...eee cece eee e eee neeeee eee ones
d. The Uncharged Offense wasalso Anadmissible
To Prove Intent.....0 02s. cee lee cece cece ener eee
2. Assuming that Evidence of the Uncharged Hawaii
Murder was Admissible under Sections 1101(b), it
Should Have Been Excluded Under Evidence Code 352
Because its Probative Value was Substantially Out-
Weighedby the Dangerofthe Undue Prejudice...........
a. Introduction. 2.0.0.0... 0c ccc cece cece ec ee ev eeueeees
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b. The Evidence of the Hawaii Murder Should
Have Been Excludedin its Entirety Sinceits
Probative Value was Low andits Potential for
Undue Prejudice was High......... 0... cc cece cence ees 76
c. Assumingthat Similarities of the Two Homicides
Were Sufficiently Probative to Justify their
Admission, the Remaining Dissimilarities Should
Have Been Excluded.................cccccccccceeeeeeees 80
The Trial Court’s Erroneous Ruling Denied Robert Edwards
his Federal Constitutional Rights to Due Process of Law,
Fundamental Fairness, and a Reliable Determination of
Guilt and ofthe Penalty......... 00... .ccc ccc nc enc eee eee ee een ees 82
a. Introduction........... 0... c cece e cece cc eeeecceeecceeeecees 82
b. The Trial Court’s Erroneous Admission of
Evidence of the Uncharged Hawaii Homicide was
Especially Prejudicial Since the Court Improperly
Refused to Delivery Defense Jury Instructions that
were Necessary to Adequately Explain the Limited
Use to Which that Evidence Could be Considered
By the Jury During its Deliberations.................. 84
1. The Trial Court’s Modification of
Standard CALJIC Instruction 2.50 was
TMPrOpere... ccc. ce cece cece cee ec enna ee eeees 84
2. The Trial Court’s Special Instructionfor
the Use ofOther Crimes was Erroneous..... 87
3. Even Assuming that the Trial Court Properly
Admitted Evidenceofthe Delbecq Homicide,
its Special Instruction and Failure to Grant
Defense Proposed Instructions on “Other
Crimes Evidence” Requires a New Trial..... 91
Trial Court’s Admission ofthe Evidence ofan
Uncharged Homicide was Highly Prejudicial Error
Requiring Reversal ofRobert Edwards Convictions
Applying Either the Chapman StandardofReversal or
The less stringent standard ofPeople v. Watson............. 93
iv
Page(s)
a. This Court Should Applythe “Harmless Error”
Standard of Reversal of Chapman y. California
_ because the Trial Court’s Erroneous Ruling
Affected Robert Edwards’ Federal Constitutional
Rights... 0.0.0... cece cece e cece e ee cera eee ee ew ee nees 93
b. The State cannot Show that the Trial Court’s
Ruling that Admitted Proof of the Hawaii.
Homicide was Harmless Error because All
Parties below Agreed that WithoutIt, There was
Insufficient Evidence to Convict Appellant of the
Charged Offense......... 00.2... sce cec ec eee eee eee eee eens 94
Cc. The Admission of Other Crimes Evidence was So
HighlyPrejudicial that Reversal of Appellant’s
Conviction is Required............. 20... cece ee ee eee 101
d. Even under the State Error Standard, Reversal of
Robert Edwards Conviction is Required because
the Trial Court’s Evidentiary Ruling Produced a
Reasonable Possibilitythat it Considered Evidence
That he Committed an Uncharged Offense as
Proof of a Disposition to Commit Murder........... 103
THE IMPEACHMENT OF ROBERT EDWARDS WITH HIS FIRST
DEGREE MURDER ANDBURGLARY CONVICTIONS IN HAWAII
AND HIS MURGLARY CONVICTION IN CALIFORNIA, VIOLATED
STATE LAW AND DEPRIVED HIM OF HIS FEDERAL
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND A
FAIR TRIAL, AND A RELIABLE CAPTIAL CONVICTION UNDER
THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS....... 104
A: Factual Background...... 2.2.0... 2... cc cece cece eee ence eeeeeeeeeteteeenes 104
B. The Admission of these Felonies to Impeach Appellant Violated
State Law... 0... ccc ccc ccc cce nee e ee vance e nese eseee cee eseetureeueeeeeeseens 105
l. - UNtrOdUCTION. 0.0.2.0... ccc cece eect eee e cence et eaaenuneeenesanenees 106
2. Application of the Beagle Factors........2....+.:01:s01secreteee 107
C. The Admission of the Three FelonyConvictions Irreparbly
Prejudiced Appellant’s Right to a Fair Trial.........0000000.00.000.0008 112
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Appellant’s Federal Constitutional Rights to Due Process of
Law, Fundamental Fairness,and a Reliable Determination of
Guilt and of the Penalty were Violated by the Improper
Impeachment. ....... 0...ccence ence cence eee e cee tenet eneeneeeae
THE TRIAL COURT EXCLUDED EXCULPATORY DEFENSE
EVIDENCEIN VIOLATION OF STATE LAW AND APPELLANT’S
FEDERAL CONSTITUTIONAL RIGHTS............0..0000. ees
A. The Trial Court Excluded Expert Testimony that Would Have
Established that a Mousse Can was Not Used to Assault Mrs.
Deeble as well as other Evidence that would have Circumstantially
Page(s)
116
117
Corroborated his Innocence,Contraryto State Law and in Violation
Violation of his Federal Constitutional Rights to a Fair Trial, to
Present a Defense and Compulsory Process and Heightened
~ Reliability in a Capital Trial in Violation of the Fifth, Sixth,
Eighth,and Fourteenth Amendments.....................0.2. cece eee
I.
2.
Standard ofReview.........000.0cccce ence eee e ence ee eeseeenennes
The Trial Court Improperly Excluded Expert Opinion
that the Injuries to Mrs. Deeble’s Vagina and Rectum
were Consistent with Consensual Vaginal and Rectal
INLETCOUTSE... 2.6 c cece cece cece eee cee te ene e tee eer eeeees
Introduction........... 0c cece cece eee ceeeecceeeeeens
The Testimonies of Drs. Fukumoto and Wolfe.....
The Trial Court’s Rulings were Plainly Erroneous
And under State Law and Violated the Federal
COMSTILUTION. 2...ecccc cece cee nee c ence eee eeneees
The Trial Court’s Decision to Sustain the Baseless
Objection Violated Appellant’s Federal
Constitutional Right to Present a Defense...........
The Trial Court’s Decision to Sustain the Baseless
Objection Also Violated Appellant’s Federal
Constitutional Right to Fair Treatment Between the
Parties. 0... cece Lace cece ees eene eee eeneeneeeueeeess
The Errors Prejudiced Appellant......................
Vi
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118
118
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119
122
125
128
130
Page(s)
The Trial Court Improperly Excluded Vital Testimony that |
Could have Circumstantially Corroborated Appellant’s
Defense that he was in an UnconsciousState at the Time
Of the Murder......2.. 0.0.2... c ccc cecc cece ccc cc eens ee eeeeeenceeeeenenses 133
1. INtrOductiOn. 2.1.0.0... cece cece cence ence e eect eae ene tee eeenes 133
2. Excluded Testimony that Corroborated Appellant’s
Claim that He was Unconscious in an Alcoholic
Blackout on the Night of the Deeble Murder............... 134
3. The Court’s Rulings were Erroneous Under State Law
and Violated Appellant's Federal Constitutional
Right to a Fair Trial and to Present a Defense............ 136
4. The Exclusion of the Evidence Prejudiced Appellant
and Violated his Federal Constitutional Right to
Present a Defense, Due Process ofLaw and Heightened
Reliability in a Capital Trial under the Fifth, Sixth,
Eighth and Fourteenth Amendmenits...............+..2.40++ 138
The Court Improperly Excluded Circumstantial and Opinion
Evidence that could have Established that Kathy Valentine,
and not Appellant,Stole Mrs. Deeble’s Jewelrythat was
Allegedly Missing....5...... 0... cece eee e eee e cence ne eee rene eee eeneees 140
l. INtrOductiOn........ 0.00. c cece ence nce eeeenneeeeees veccenseees 140
2. Majorie Deeble’s Statement to Paul Roy was Relevant
and Admissible to Prove Motive Under an Exception
141to the Hearsay Rulé........6.. ccc c cece eee ese eect ee eee e tate
The Court Improperly Excluded Evidence of Appellant’s Surprised
Reaction to the News of Majorie Deeble’s Murder that Would have
Circumstantially Established that he did Not Commit the Crime
Violatinghis Federal Constitutional Right to a Heightened
Reliability of Jury Deliberations,Due Process of Law and the Right
To Present a Defense............ 0. eee ee eee cnet eee ee rece ere eneees 146
1. TAtrOductiOn.........0. 0c. cecececenteeecent eee neeeeeaeneeetenenas 146
2. The Court Improperly Excluded Testimony Regarding
Robert Edwards’ Reaction to the News of the
147California Homicide..................0cceee cence eee n eee ees
vil
VI.
The Trial Court Excluded Evidence that Would have Powerfully
Rebutted the Prosecution’s Theory that Appellant Committed
The Charged Offense because of its Similarity to the Delbecq
Murderin Violation of State Law and his Federal Constitutional
Rights to Due Process of Law.................. ccc ccc ceeeeceeeeeee ees
The Cumulative Impact of the Improper Exclusion of Exculpatory
Evidence Denied Appellant His Federal Constitutional Rights
to Present a Defense, Have a Fair.Trial and to Heightened
Reliability in a Capital Case............. 0.00... ccc ccc cece cece ee eee
THE TRIAL COURT ADMITTED TESTIMONY AND EXHIBITS
* CONTRARYTO STATE LAW IN VIOLATION OFROBERT
EDWARDS’ FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND TO CONFRONT ADVERSE WITNESSES UNDER
THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS. ...........0..0. 00. c cece cece cece cee eee ne eeeeeeeeneeeed
A. The Trial Court’s Admission of the Coroner’s Unfounded
Opinion that Injuries Suffered by Mrs. Deeble were Inflicted
Before Death and were Painful was Contrary to California
Law and a Violation of Appellant’s Federal Constitutional
RightS...... 2... cece eee e cece eee ene ence eee ee sees tees tenes eeeenees
1. Factual Background........ 000... ccc cece cence cnet enc eeeeees
2. AIQUMENE.... 0. ccc cece cence eee e eee ne ence nee ene ene eeeeeneeeeeee
a. Standard Of Review... 2.0... cc ccc eec cece eee e cece eee
b. Prejudicial Forensic Evidence was Admitted in
Violation of Crawford v..Washington............
Cc. Reversal is Required.......................cc cece eee
d. Assuming Dr. Fukumoto’s Testimony was not
Wholly Inadmissible as a Violation of
Appellant’s Right to Confront Witnesses, his
Opinionthat her Injuries were “Extremely
Painful” and Occurred Before Death Should
Have been Excluded because it Lacked Proper
Foundation and was Therefore Irrelevant,
Violating his Federal Constitutional Rights to
Due Process of Law and a Heightened Reliability
Vill
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in a Capital Trial Underthe Fifth,Sixth,
Eighth and Fourteenth Amendments............... 158
1, Overview ofLegal Arguments...........0. 158
2. This Expert Opinion Testimony was not
Relevant Because the Jurors Were Capable
ofDrawing their Own Conclusions about
Whetherthe Injuries were Painful Without
The Expert’s Opinion. ...........0.c00cccee cues 160
3. There was No Foundationfor Dr. Fukumoto
Rights. ..............
AIQUMENL.... 00... cece ccc eee eee e cece dete ee enae een ee eteeeneeenes
to Give an Expert Opinion Concerning Whether
the Injuries Were Inflicted Before Death and
Were “Extremely Painful” ..............06006 163
a. Introduction..............eee eeeeveseens 163
b. Dr. Fukumoto’s Opinion was Not
Within His Area of Expertise........ 164
Cc. Dr. Fukumoto’s Opinion was
Conclusionary................ccceeeeeee 171
The Trial Court’s Admission ofthis Testimony was Abuse
of its Discretion Under Evidence Code Section 352 which
was Contrary To California Law and Abridged both State
And Federal Constitutional Rights...............0.seceeeeeeeee 173
Admission ofDr. Fukumoto’s Unfounded Opinion was
Prejudicial and Violated Robert Edwards’ Federal
Constitutional Right to a Fair Trial, Due Process and a
Heightened Reliability in a Capital Case Underthe Fifth,
Sixth, Eighth and Fourteenth Amendment................0.00+. 175°
' The Trial Court’s Admission of Unfounded Testimony that Muriel
DelbecqPut her Key Outside her Residence was Contrary to
State Law and in Violation of Appellant’s Federal Constitutional
cece cece eee eececeeeneeeecseccseeteseeernstseeseecceteuenas 176
Factual Background........02002ecccccccccec eee e cece ne ee ence ees 177
177
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a. The Objection Was Not Untimely..................... 177
b. Ms. Ventura’s Testimony was Inadmissible......... 178
3. Admission of Testimony that Mrs. Delbecq kept a Key
Outside her Residence deprived Appellantofhis
Federal Constitutional Right to a Fair Trial, Due Process,
And Reightened Reliability in a Capital Case, Pursuant
To the Fifth, Eighth and Fourteenth Amendments.......... 179
The Trial Court’s Admission of Unfounded Testimony by
Sergeant Jessen that “Based Upon Information from Lab
Personnel” A List of Suspects other than Appellant had Been
Eliminated as Donors of Semen and Fluid at the Crime Scene
Violated State Law as well as the Appellant’s Federal
Constitutional Rights to a Fair Trial and Heightened Reliability
of Determination Underthe Fifth, Eighth and Fourteenth
AmendmMentS........0.ener e eee tree e cette eneeeennes 180
1. INtrOductiOn......... 2.00. cc cece cece ence eee cence ene e tne eneeeeaees 180
2. Sergeant Jessen’s Testimony that He Forced on Appellant
after He Received Unspecified Informationfrom Unspecified
Lab Personnel was Admitted in Violation ofState Law
and Appellant’s Right to Due Process ofLaw and a Fair
Trial under the Fifth, Sixth and Fourteenth Amendments..... 185
3. The Admission ofSergeant Jessen’s State-Of-Mind
Regarding the Probability ofAppellant’s Guilt
Violated Robert Edwards Federal Constitutional Right
10 G Fair Tridl...... 00... cec ccc cece ec cc eee eee ene eet ee en eeees 189
Each of the Evidentiary Errors Require Reversal Since the State
Cannot Establish that their Erroneous Admission was Harmless
Beyond a Reasonable Doubt.........00. 000.0 occ c cece cece eee cece ese eee 192
THE SPECIAL CIRCUMSTANCE FINDINGS MUST BE REVERSED
BECAUSE OF INSUFFICIENCY OF EVIDENCE WHICH DENIED _
APPELLANT HIS FEDERAL CONSTITUTIONAL RIGHTS TO A
FAIR TRIAL AND NARROWING OF HOMICIDE CASES MOST
DESERVING OF THE DEATH PENALTY UNDER THE FIFTH,
SIXTH, EIGHTH AND FOURTEEN AMENDMENTS................. 194
‘eit dich ieNthREyhBRDSe I BE EN oo
Page(s)
A. Standard of Proof. .........0 00.0 ccc cece cece cece ccc cece eeeccseeeeeeaeee 195
B. Introduction. .......0 0. ccc cece cece reece ceetecncceccceenveveetsenuers 196
Cc. The Torture Special Circumstance Allegation........................ 197
1. Factual Background........... 00. ccceceec ccc ec eee e nee eneeneeees 197
2. The Evidence of Torture was Insufficient.as a Matter of
Lawfor this Special CircumstanceAllegation to be True... 200
a. Introduction......0... 00. c cece cece cece een ccenneceeenceeeee 200
b. The People Failed to Produce Sufficient Evidence
that the Injuries Caused Mrs. Deeble “Extreme Pain” 202
1. Dr. Fukumoto’s Opinion Lacked Foundation
and was An Insufficient Basis to Satisfy
the Element of “Extreme Pain” ................ 202
2. The Physical Evidence Does Not Support
a Finding that the Victim Experienced
Extreme PQin.....0...ccc cece ccc c ccc ccueccanecvecs 204
C. Evenif the Jury Could Have Found the Four Wounds
to have been ExtremelyPainful, there was Insufficient
Evidence that Appellant Intendedto Inflict Extreme
Pain. 20.0.e eee cece cece cece n cece eseeneeeevenane restore 207
d. Even if the JuryCould Have Found the Victim’s
Wounds to Have Been Extremely Painful and that
Appellant Intended that Result, There was Insufficient
Evidence that Appellant Intended to Kill her.......... 212
D. The Burglary Special Circumstance Allegation..................0...... 213
l. Factual Background..............2 0000s ee cc eee e eee eee eee eee 213
2. The Evidence ofBurglary was Insufficient as a Matter of
Lawfor this Special Allegation to be True.........-.....0.0++- 214
a. Introductiondec cee cece cecceceeeeeteeecceseseeeerseteeuanenes 214
b. There is no Evidencethat the Predicate Crime of
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Burglary Occurred or was Intended.................. 215
1. No Theft or Intended Theft was Proven...... 215
2. No Penetration or Intent to Penetrate
with a Forel,gn Object was Proven.......... 217
Cc. There was No Evidence that the Assailant Entered
the Residence with the Intent to Commit a Felony... 218
d. There was Insufficient Evidence that the Assailant
Intended to Commit the Felony at the time He Killed
the Victim and that it was Part of a Single
Continuous Transaction............... cece cece cece eee eee 218
e. There was Insufficient Evidence that the Assailant
had an Intent to Kill the Victim............00.000005... 220
E. Conclusion... 2... ccc cece e ee cece cece ce care cca vecvsctceevesccsssresave 220
VII. THE FIRST DEGREE MURDER CONVICTION MUST BE
IX.
REVERSED BECAUSE OF INSUFFICIENCY OF EVIDENCE...... 220
A. Introduction... 00... .c cece cece cece eee eceeceecneceececeeceeeeeeneeeeeeeaes 221
B. FaE24000c) 222
1. There was Insufficient Evidence to Prove Torture Murder... 222
2. There is Insufficient Evidence to Prove Felony Murder...... 224
THE PROSECUTOR’S PERVASIVE PATTERN OF PRESENTING
INADMISSIBLE EVIDENCE BEFORE THE JURY, PRESENTING
EVIDENCE THAT WAS EITHER FALSE OR UTTERLY WITH-
OUT FOUNDATION, MISSTATING THE EVIDENCE, AND
DISREGARDING THE COURT’S ADMONITIONS AGAINST
IMPROPER QUESTIONS CONSTITUTED REVERSIBLE
MISCONDUCT RESULTING IN A DENIAL OF APPELLANT’S
RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND RELIABLE
CAPITAL TRIAL AS GUARANTEEDBY THE FIFTH, EIGHTH -
AND FOURTEENTH AMENDMENTS...”............0.0...0.2:ee cece ee eeee 227
A. Tntroduction......20.ceee ceennenececcccecceetereeceeeeens 227
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B. The Prosecutor Falsely Suggested to the Jury that Scientific
Testingof DNA had Excludedall Suspects but Appellant,
by Asking a Question of his Witness which He knew to be
Leadingand Without Foundation................cc ccc cece ence eee eee
C. The Prosecutor Repeatedly Ignored Court Rulings by Referring
to Inflammatory and Inadmissible Matters before the Jury......
E. The Prosecutor Repeatedly made Remarks During his Examination
of Witnesses and During his Closing Argument that He Mustof
Known were Improper.........2.. 0... .ccccecee cee eeee ence eee eeeeeeees
F. The Trial Court Abused its Discretion When it Denied Motion
for A Mistrial Following the Prosecution’s Breach of Its Promise
that it Would Not Disclose Appellant’s Arrest for the Delbecq
Murder to the JUry.......... 00... ccc cece cece cence cence eeneeeeeeee teers
G. Asserting “Heis the Killer,” the Prosecutor Injected his Belief
aS to Guilt...ccceee e cece cece cee cccececeeeeeeneetnnnetes
H. The Prosecutor’s Continuing Pattern of Misconduct Deprived
Appellant of his Federal Constitutional Right to a Fair Trial and
a Reliable Capital Trial in Violation of the Fifth, Eighth and
Fourteenth Amendments.................. 00 ccc ccc cceeee sees eee ee ee sees
1. IRCrOAUCTION. 00.0... cece cece ence necccccccceucecenseaceecceees
2. The Drumfire of Unjustified and Comprehensive
Misconduct Requires a New Trial, without Resort to a
Prejudice AndlySis...... 2.0... ccccec ence eee e een nee e nee ees
3. The Cumulative Prejudice ofProsecutor’s Misconduct
Requires Reversdl...........0. ccc cece eee e cece cee nee n eee e eee enees
THE TRIAL COURT’S REPEATED INTERRUPTIONS OF
DEFENSE COUNSEL’S CLOSING ARGUMENT TO THE JURY
VIOLATED STATE LAW AS WELL AS APPELLANT’S
229
238
240
259
261
263
263
264
265,
CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND HEIGHTENED
RELIABILITY EN A CAPITAL TRIAL.......0.000000.0 0cece
f
A. Tntroduction.........., ccc cece cece eve cece scec cee ceeeecunscsseeensereeseeeesees
B. Standard of Review.......... 2.5... cccc cece cence ence cee eee ee nent renee eeees
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269
269
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Cc. The Trial Court’s Rulings Violated State Law...........:......0004 270
1. Unconsciousness was A Relevant Issué.............20.0000- 270
2. The Demonstrative Exhibit Should Have Been Allowed... 272
THE COURT VIOLATED STATE LAW, AND DENIED APPELLANT
HIS FEDERAL CONSTITUTIONAL RIGHTS UNDER THE FIFTH,
SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE
UNITED STATES CONSTITUTION WHEN IT REFUSED JURY
INSTRUCTIONS PROPOSED BY THE DEFENSE...................... 275
A. The Court Erred Whenit Refused to Deliver A Further
Cautionary Instruction to the Jury about the Limited Use for
Which it Could Consider Sergeant Jessen’s Testimony that the
Investigation Focused Upon Appellant after He was Advised that
Scientific Testing had Eliminated All Other Suspects................ 275
1. Factual Background...........0..1ccecce eee ene ence ence eee eeeaees 276
2. The Court was Required by State Law to Deliver the
Defense Curative INStruction. ......... 0002 ccce cece cence eeeeeees 279
3. The Trial Court’s Failure to Deliver the Instruction
Violated Appellant’s Federal Constitutional Rights to
Q Feair Tridl.... 0.0... ccc ccc cece ccc c ence nce e eee e dees eeeeeenennes 283
‘B. The MurderBy Torture and Torture-Murder Special Circumstance
Verbal Instructions were Erroneous because They Omitted an
Essential Element that Appellant Inflict Pain on A “Living” Human
Being... 0... e ccc cc cece cece cee c cece enn e cece nsec cence eeeeeaeeeteeeeeeennes - 285
1. Factual Background......... 22. 0.200000ccceerece eee eeeeeeeeeeeeee 285
2. The Trial Court’s Failure to Verbally Instruct the Jury that
a Finding of Torture Murder Special Circumstance andA
Conviction ofMurder by Torture Required Proof that
Appellant Inflicted Extreme Cruel Physical Pain Upon a
“Living” Human Being is Reversible Error.......... 00.00.00 287
a. A Harmless Error or Waiver Analysis of the
Instructional Error in Appellant’s Case is
Precluded because the Instructional Error
Removed an Element of the Offense from the
XIV
Page(s)
Jury’s Consideration and Therefore Violated
Appellant’s Right to Trial by Jury Guaranteed
by the Sixth Amendmentto the United States .
Constitution. ....0.. 00... cece c cee eeeeenccceecceeceeseecencs 287
b. Even Assumingthat an Instructional Error which
Omits an Essential element of a Capital Crimeis
Subject to Harmless Error Review, the Error in
Appellant’s Case was not Harmless Becausethe
Jury Never Found,Pursuant to any Properly Given
Instruction,that Appellant did In Fact Inflict
Extreme Cruel Physical Pain Upon the Living Victim
or Intended to Do SO...... 00... eee eceeeeeee ence ene 291
The Failure of the Trial Court to Instruct the Jury that both
a Conviction ofMurder by Torture and a Finding of Torture -
Murder Special Circumstance Required Proof that Appellant
Inflicted Extreme, Cruel Physical Pain Upon “living” human
being and hadthe Intent to do so Violated Appellant’s Due
Process Right under the Fifth and Fourteenth Amendments
to the United States Constitution...........0..0.c0ceecee ene ee ee 293
TV. CUMULATIVE ERROR.....0000....0ccece tence eee none e ene eeaee 293
ARGUMENT — PENALTY PHASEISSUES
XII. THE TRIAL COURT’S HANDLING OF THE VOIR DIRE DURING
THE SECOND PENALTY PHASE TRIAL VIOLATED CALIFORNIA
LAW AND DENIED ROBERT EDWARDSHIS CONSTITUTIONAL
RIGHTS TO EQUAL PROTECTION OF THE LAW, A FAIR TRIAL
BEFORE AN IMPARTIAL JURY, AND A RELIABLE
DETERMINATION OF PENALTY UNDER THE FIFTH, SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS....................2500.5 298 °
A. Reversal is Required Because the Trial Court’s Mishandlingof
Voir Dire Prevented Appellant from Intelligently Exercising
Challenges for Cause. ........ 0.0... ce cece cece cece cence ee eee eee ne eee e tees 298
1. Introduction .......0.. 00sec ccc ec eee ce sete eee ee ences enact ne ne es 298
2. The Unconstitutionally Restrictive Voir Dire..............+.. 299
The Trial Court Prevented Permissible and Necessary
XV
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Voir Dire in Violation ofState Law and the Appellant’s
Federal Constitutional Rights.............00.c0ceccees ee ee eee 304
4. The Restriction of Voir Dire in this Case is Reversible
Per SC... cece cece ence cece nec e cece ee eee ee tee eee eeeeeneeenes 308
5. The Death Verdict Must be Reversed, Even Under the
Most Differential “Abuse ofDiscretion” Standard,
Because the Trial Court Violated Appellant’s
Constitutional Right to an Impartial Jury and Right
to a Reliable Penalty Determination......................006 311
XIV. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND
FEDERAL RIGHT TO AN IMPARTIAL JURY BYIMPROPERLY
RULING UPON CHALLENGES FOR CAUSE ABOUT WHETHER
THE ATTITUDES OF PROSPECTIVE JURORS WOULD AFFECT
PENALTY DELIBERATIONS. .................. 0c ccceeece eee eeeeeeteneeenes 313
A. The Trial Court Violated Appellant’s Federal Constitutional Right
to an Impartial Jury by Granting a Prosecution Challenge for
Cause to a Juror Who Simply Expressed Reservations About Her
Willingness to Vote for Death.............. 2... cece cee c cece ee eeseeeenee 314
1. Introduction..............04645 cecessusesustevitevsevssevesesseses 314
2. Application ofthe Adams Standard Requires Reversal
because Prospective Juror No. 180’s Equivocal
Responses did not clearly Exclude her Consideration
ofDeath as a Penalty..........0 0. ccc cee cn cece eee neeeeeenes vee 317
a. The Voir Dire in this Case..........2...2..2..20:eee ee 317
b. The Challenge was Improperly Granted and the
Penalty of Death must be Reversed.................... 318
B. TheTrial Court violated Appellant’s Federal Constitutional Right
To an Impartial Jury by Refusing a Defense Challenge for Cause
to a Juror Whose Viewsabout the Death Penalty Substantially
Impaired her Ability to Perform her Duties as a Penalty Phase
JULOL. 02. cece cece reece een cea c ence ne eee nee ee cena eeenee eee ens ene eenes 320
1. General Principles 0) )ee 32]
2. AIQUMENL. 0... c cece cece nce e eee nee e cece eee eee eee tee ene eenee eas 322
XVI
AoteeANCORAREAURRIIE CCANE HTS er RE
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ben ALepenmenine Needee Leee mae ek te + - Fong ohn meet camgrnrettinatiapapaalanSEEheeend ptecbueen be eat
Page(s)
3. The Challengefor Cause Was Improperly Denied........... 324
4. The Trial Court’s Error Requires Reversal ofAppellant’s
Sentence OfDeath,.............c0 ccc cece ence cece nee eeneetencennes 326
THE CUMULATIVE IMPACT OF THE PROSECUTOR’S RELENT-
LESS PATTERN OFOBJECTIONABLE QUESTIONS, ARGUMENTS
AND ASIDES, DESPITE COURT RULINGS PROHIBITING HIM
FROM DOING SO, VIOLATED APPELLANT’S FEDERAL AND |
STATE CONSTITITIONAL RIGHTS TO A FAIR TRIAL AND A
RELIABLE DETERMINATION OF PENALTY; THE JUDGMENT
OF DEATH MUST BE REVERSED............0. 0.0... cc ccccceeeeeeecceeeees 328
A. Introduction...................bee cee ceeescestutiettuesesteneseeeeesesen 328
B. — The Prosecutor Committed Reversible Misconduct When He
Ignored a Trial Court Ruling and Elicited Inadmissible Expert
Testimony that Appellant Committed the Murders “Intentionally
And Voluntarily” and Lied when he Testified that he Didn’t Recall
Committing those Alleged Crimes............. 0... .c cece eee eeeeeeeeeenes 330
1. Statement OfFACtS.......... ccc cece cece eee n eee cece eeeenseenanes 330
2. Dr. Dietz’ Testimony that Appellant was not in a Blackout
State was Admitted in Violation of State Law, as well as the
Trial Court’s Ruling ......... 00. .0cceccc eee ene sence cee e ee eneees 332
3. Admission ofDr. Dietz’ Improper Opinion Violated
Appellant’s Federal Constitutional Rights to a Fair Trial
Anda Heightened Reliability ofthe Determination of
Penalty Underthe Fifth, Sixth, Eighth and Fourteenth
Amendments and a New Trial Must be Granted as a
CONSEQUENCE... 22 cece ee eee cc ence eee e eee eeee eens tnceeees 333 |
C. The Prosecution Committed Reversible Misconduct by Explicitly
- Telling the Jurythat he Had Undisclosed knowledge of Appellant’s
Guilt.........aa eececcncccecccccccncrceecnentrecceestsssessesteuececeverceess 337
’D. The Prosecutor Committed Reversible Misconduct byTelling the
the jury that Appellant Could Not Have Received the Death Penalty
in Hawaii for theMurder of Muriel Delbecq Because the Law
Prohibited it......... 0... cococ eee e cece cece eee cteeeseseveseeeuuncescecrs 339
E. The Prosecutor Committed Reversible Misconduct by Impermissibly
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InflammatoryRemarks about Appellant’s Character and Future
Dangerousness during Closing Argument............... 0.0.2. e cee eee 342
F. The Issue is Preserved for Review and the Cumulative Impact of
Misconduct Compels Reversal of the Death Verdict................ 347
THE TRIAL COURT’S ADMISSION OF IRRELEVANT AND
HIGHLY PREJUDICIAL TESTIMONY AND EXHIBITS WAS
CONTRARY TO CALIFORNIA LAW AND IN VIOLATION OF
APPELLANT’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS OF LAW AS WELLAS A HEIGHTENED RELIABILITY
OF THE DETERMINATION OF PENALTY UNDER AMENDMENTS
FIVE, SIX, EIGHT AND FOURTEEN.................0... 0... c eee cence 350
A. Standard of REvieW....... ccc cece cece cece nec c tee cece nsec ecseeeuneeenes 350
B. The Trial Court Committed Reversible Error When It Admitted
Expert Testimony Regarding “Black-Outs” and Appellant’s
Mental State at the Time of the Homicide’s as Improper
Rebuttal Testimony...... 2.00.0... ccc eeec cece ence eeeeeeeeneeeceeeeees.. 351
1. TNtrOductiOn...... 000.2 c cece cece cece ence ence tee e ence eens eetneeeenees 351
2. The Expert Testimony was Admitted in Violation of state
Law andViolated Appellant’s Constitutional Rights to a
Fair Trial and Reliable Sentencing Determination............ 352
3. Admission ofDr. Dietz Improper Opinion Gravely
Prejudiced Appellant and Requires a New Penalty Trial...... 354
Cc. The Trial Court ImproperlyAdmitted the Testimonyof Naomi
Titus (Nee Linderman) that Four Years after the Commission
Of the Charged Offense, Appellant, While Intoxicated, Woke her
Rup byTrying to Insert a Bottle into her Vagina and Rectum....... 355
1. Statement OfFACtS .........00cccceg ence ence ence eee nee eet eeenneeee 355
2. The Trial Court’s Admission ofAppellant’s Drunken
Fumblings Many Years After the Charged Offense was
- Against California Law,...... 00.0. cc cceccecec eee eneesecteeesenes 356
3. The Improper Admission of the Alleged Sexual Assault
Violated the Appellant’s Right to Due Process ofLaw and
Heightened Reliability of a Penalty Determination Under
XViii
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Page(s)
the Fifth, sixth, eighth and Fourteenth Amendments
to the Federal Comstitution........... 00.000 cece cnecceueeeees 358
D. The Trial Court ImproperlyAdmitted “Victim Impact Testimony”
in Violation of Appellant’s Rights under the United States
Constitution to a Fair Trial and Heightened Reliabilityof the
Determination of Penalty............ dee ec eect teens ence tee tensenseeeenes 360
1. Statement Of FACtS........0. 00. c ccc cece cece eee ee cee eee eeeeetees 360
2. Victim Impact Testimony was Improperly Admitted
Underthe Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, as well
As Analogous Provisions of the California Constitution... 362
a. The Admission Violated the Ex Post Facto Clause.. 362
b. The Admission ofPhotographsof the Victim
with her Family and the Testimony of Family
Members were Improperly Admitted.................. 364
c. The Admission of Victim Impact Evidence Unduly
366Prejudiced Appellant and Requires a New Trial....
E, The Trial Court Abused its Discretion When it Admitted Evidence
That Appellant was in Possession of a Home-Made Weapon while
In Custodyon July 8,1997,Nine Years after the Commission of
the Charged Offense............ 0... c cc cccc cece cece eee teat eeeeeeneeeenaes
1. Statement of Facts... 0.20.2... 002 ccc ccc ence eee ee cence ee eneeecees
2. The Evidence ofAppellant's Transitory Possession of the
Home-Made Weapon was Admitted in Violation of
California Law and Federal Rights to Due Process ofLaw
and Heightened Reliability in Sentencing a Guaranteed by
the Fifth, Eighth and Fourteenth Amendment...............
XVII. THE TRIAL COURT VIOLATED APPELLANT’S EIGHTH AND
FOURTEENTH AMENDMENTRIGHTS WHENIT PREVENTED
HIM FROM INTRODUCING EVIDENCE OF REMORSE AND
MITIGATING VICTIM IMPACT TESTIMONY.....................5--
A. The Trial Court Prevented Appellant from Introducing Evidence
Of Remorse....... 2.02. cece eee cee cece ccc ee scene vee tcee veers seuserteeeees
X1X
366
366
368
369
369
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fb:
bi
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l. Standard OfFActs......6..ccccecc ccc ece cece eevee nese nett eee ne ees
2. The Trial Ended in Concluding that the Hearsay Rule
Superceded Appellant's Constitutional Right to
Present Mitigating Evidence..............--+:01seteseeeeeeeee
The Trial Court Prevented Appellant from Introducing Mitigating
Victim Impact Testimony............0 0 ccc cece ec cce eee eee cee eseueeeeeses
1. Statement OfFACS 2.00... ccc. cece cence cece cece eee eeeeeeeeennees
2. The Court Erred in Concluding that Scott Deeble’s
Feeling ofForgiveness was an Inadmissible attempt to
Introduce his Opinion that Appellant Should Not
Receive the Death Penalty............ 6... ccc cc ec ee cece eeeeenee
3. The Trial Court Committed Reversible Error by
Infringing Upon Appellant’s Constitutional Right to
Present Mitigating Evidence............0..0.c0ccceeeeeeneenes
Page(s)
369
370
373
374
375
376
XVII. THE COURT VIOLATED STATE LAW AND DENIED APPELLANT
HIS FEDERAL CONSTITUTIONAL RIGHTS UNDER THE FIFTH,
SIXTH, EIGHTH AND FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION WHENIT REFUSED JURY
INSTRUCTIONS PROPOSED BY THE DEFENSE.....................
A. The Court Erred when it Refused to Deliver a “Lingering Doubt”
Instruction, Which it Gave in the First Penalty Phase, where the
Jury was Unable to Unanimously Agree that Appellant Deserved
Death... 00.0. cccecc cece ence cscs a cue eee ecceeeeseseceessenaaeererceeusauess
1. INtrOdUctiONn......cescseeeceee sees cece ceceeetecseceeeceeess weeeeeee
2. The Trial CourtAbused its Discretion When It Refused to
Deliver the Lingering Doubt Instruction Since the
Prosecution Attempted to Dissuade the Juryfrom Even
Considering the Defense Argumenton this Point...........
3. The Failure to Instruct the Jury on Residual Doubt
Compels a Reversal of the Death Sentence...........eeeeeee
,
The Trial Court Committed Per Se Reversible Error When It Failed
To Discharge its Duty, Sua Sponte, to Instruct the Jury thatit
Cannot Base its Verdictupon Circumstantial Evidence Unless
378
378
378
381
384
Page(s)
it.is Consistent with the Defendant’s Guilt and Cannot be
Reconciled with any other Rational Explanation...................... 385
I. Statement Of FACtS..........0cccccc sce e ence ene eee tenet neeeeeaeeees 385
2. The Court hada Sua Sponte Duty to Deliver the
Omitted INStructiOn........20000ccceccceccsnceccccecccccceceueuuse 386
C. The Court Erred WhenIt Refused to Deliver an Instruction that
Factors (d), (h) and (k) can onlybe Considered as Evidence in
388Mitigation of Punishment................cccccce cc cccececccccecsecececees
XIX. THIS COURT SHOLD REVERSE ROBERT EDWARDS SENTENCE
XX.
OF DEATH DUE TO THE CUMULATIVE EFFECT OF THE
ERRORSIN THIS CASE.....00. 00000000 ccceeece cece tence enone ee ees 389
CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED
BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL,
VIOLATES THE UNITED STATES CONSTITUTION.................. 39]
A. . Appellant’s Death Penaltyis Invalid Because Penalty Code
Section 190.2 is Impermissibly Broad...........0...... cece ceeen eee eeee 394
B. Appellant’s Death PenaltyIs Invalid Because Penalty Code
Section 190.3(A) As Applied Allows ArbitraryAnd Capricious
Imposition Of Death In Violation Of The Fifth, Sixth,Eighth,
And Fourteenth Amendments To The United States
Constitution. 0.20...coecece ccc ence tc cute cece eenreceeenceeeeanvens 396
C. Califomia’s Death PenaltyStatute Contains No Safeguards to
Avoid Arbitraryand Capricious SentencingAnd Deprives
Defendants Of The Right To A JuryDetermination Of Each
Factual Prerequisite To A Sentence of Death;It Therefore
Violates The Sixth,Eighth,And Fourteenth Amendments
To The United States Constitution............0. 00.0... ccc cece ee eee e eee
1. Appellant’s Death Verdict Was Not Permised 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...............0.0ceccecene eee ece essences 400
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a. In the Wake of Apprendi, Ring, and Blakely,
any Jury Finding Necessary to the Imposition
of Death Must Be Found True Bevond a
Reasonable Doubt..........0... 0 ccc cece cece eee eens
b. The Requirements of Jury Agreement and
Unanimity..... 0...eecece ence eee cece eee
The Due Process and the Cruel and Unusual Punishment
Clauses of the State and Federal Constitution Require
That They May Imposea Sentence ofDeath Only If They
Are Persuaded Beyond a Reasonable Doubt Thatthe
Aggravating Factors Exist, and Outweigh the Mitigating
Factors and That Death Is the Appropriate Penalty....
a. Factual Determinations...................cc esc ca ees
b. Imposition of Life or Death....0..0. 2.00002. e eee,
California Law Violates the 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
FACIOIS... 0... ec cecc cece ence eee tence eee ee teen eee cee eee ene ena ees
California’s Death Penalty Statute as Interpreted by
The California Supreme Court Forbids Inter-Case
Proportionality Review, Thereby Guaranteeing
Arbitrary, Discriminatory, or Disproportionate
Impositions ofthe Death Penalty............0...0..00ce00e
The Prosecution May Not Reply in the Penalty Phase
on Unadjudicated Criminal Activity; Further, Even If
It Were Constitutionally Permissiblefor 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 Doubtby a
UNANimous JULY... ooo ccc cece cece ene e tenet eenans
The Use ofRestrictive Adjectives in the List of
Potential Mitigating Factors Impermissibly Acted
as Barriers to Consideration ofMitigation by
Appellant’s JUry..........ccccc ccc nc scene nc ences nseceeenenees
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Page(s)
403
409
412
412
413
416
419
421
422
> tannin $ AonompcatatenameRnMSTA ee Ubarey A h w
7. The Failure to Instruct That Statutory Mitigating
Factors Were Relevant Solely as Potential
Mitigators Precluded a Fair, Reliable, and
Evenhanded Administration of the Capital
SANCTION. ... 0... cece ccc cece cee ene e ence eee e ene e ena eee
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............
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..................... ccc cece ee eee
CERTIFICATE OF WORD COUNT...........c.c:cceneceeceeeeeeeeeceesenes
XX1il
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422
426
429
433
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TABLE OF AUTHORITIES
Page(s)
Adams vy. Texas...........cn cneceececaseeeesseueetunseeveueevseeesennune 315, 316, 371, 320
(1980) 448 U.S.38
Addington V. T@xd8....... 2.00.00 ceccecee eee e eet e ene e nee ee reese eennees 415
(1979) 441 U.S. 418
Agnew v. City ofLos Angeles ..........0....cccceccecteeeneenees beceeee 170, 171
(1950) 97 Cal.App.2d 557
Alef v. Alta Bates Hospital................00. ccc ccc ecee nce e cece ee enees 159, 164
(1992) 5 Cal.App.4" 205
Apodaca V. O©egon........ 2.0.6 cece cece tcc e nce e een ten te en ee ener nates 410
(1972) 406 U.S. 404
Apprendi v. New Jersey...........00..0ccce ccc ene tenet eneenee ene seaeees 288, 400, 401, 402
(2000) 530 U.S. 466 403, 404
Aranda-Burton....... 2.06.6 ccc ccc ccc nce eeepc enna tne eee ee etna ee ens 114, 115
Arizona Vv. Fulminante...... 0.0.00. 00 ccc ccc cece eet n tee caeeeenees 312
(1991) 499 U.S. 279
Arlington v. TexQS... 2... 0.200000 ccc cence cence nce e eee nee tenet eee eneeenaes 413
(1979) 411 U.S. 418
AUKIns V. ViFQinia......... 6... c cece ccc cece nee cect ence ne ee eneees 431
(2002) 536 U.S. 304
supra, 122.8.Ct. at p. 2249
Batchelor v. Cupp ........1..0c ccc cece ccs ence cece ee eeeceen ees eeaeeeees 83
(9" Cir. 1982) 693 F.2d 859
cert. denied, 463 U.S. 1212 (1983)
Batson v. Kentucky ..... 0.00... ccc cece cece cece n net e ence cence eens eeeees 29, 30, 31, 32, 34, 35
(1986) 476 U.S. 79 .
Beck v. AlQDQMma...... 2.00.0. cc ccc nce c eee t ence ne ene tates tnnens Passim
(1980) 447 U.S. 625 ,
XXIV
Berger v. United States .........2..0.0.00ccccceccccesececeseceeesnenens
(1935) 295 U.S. 78
Blakely v. Washington. ..............0..0ccc cece cnc cneeeenc ene eeseecenes
(2004) 124 S.Ct. 2531
Booth v. Maryland........00.....0....0c0ccccvecccccc ce ceeeceeseeneeeeeees
(1987) 482 U.S. 496
Bouie v. City of Columbia.......... 0.00.00. cece cece cece eee ee een eeeees
(1964) 378 U.S. 347
Brady v. Maryland.............. 000.0000 cece cece eee cee ect ce tens ene ee eens
Brecht v. ADrahomson........... ccc cccc cc cc eee cn cnc cccceunncceceueece
(1993) 507 U.S. 619 ,
Brown v. LOuisiana.... 0.6.0... ccc ccc ccc ccc ce ence csc ssecunnesceennees
(1980) 447 U.S. 323
Bruton v. United States .............. 0c ccccccccec cece cc cceevsevscceaeeess
(1987) 391 U.S. 123
Bullington v. Missouri.........0...00000 ccc cece cnn ccc cece eee e cena eeeees
451 U.S. at p. 441
Burger v. Kemp ............0 000.ceeectnee bee eben tes
(1987) 483 U.S. 776
Bush v. Gore... 2.0.0.0 c ccc ccc cece cece ene cence eee ceuneeccteeceenveseues
(2000) 531 U.S. 98
Cadwell v. Mississippi..............0c00ccceeceee eeveeLee eeeeeeeeeeees
(1985) 472 U.S. 320
Calder v. Bull...oolcc cc cece ccc cccccucccccecceucucceceeess
3 Cal. 386
California v. Brown ...... 2.0... ..0cccc ccc e cence cece eee ee eee eenena ens
(1987) 479 US. 538
California v. Palmer..........0...c.cc ce ccee ec ececeneeeeeceeeseneeeeees
(1984) 154 Cal.App.3d 79
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229
401, 402, 403, 410
52, 360
51, 361
~ - 187
265
410
100
415
294
428
391, 339
363
416
273
Page(s)
California v. Trombetta.........0... 00 cccc cece ccc cne eee eeneneeeneeees 125
467 U.S.at 485
Campbell v. Blodgett.................-- . bebe ec ene eeeteeeceeeeeeeceeeees 425
(9" Cir. 1993) 997 F.2d 512
Carlos y. Superior Court...........0...064. vee eateettteeetteeeeeneees 220
(1983) 35 Cal.3d 131
Chambers v. Mississippi... 1.0... 0.0.200ccccsce sce cceccee ces eeneeneees 125, 130, 372
(1973) 410 U.S. 284
Chapman v. California. ......... 0.0. c ccc cece cence nce e eee e eee ens Passim
(1967) 386 U.S. 18
Cole V. YOUNG...... 200... cc cece ence cece nee ec eee e cece ene eeeneeetneeeenaes 288
(7" Cir. 1987) 817 F.2d 412
Connecticut v. JOMNSON........ 00.0600 cce ccc eee eee eeeLoe eeeeeeeeeees 288
(1983) 460 U.S. 73
Conservatorship ofRoulet............ 0.00... 0ccc cece eee ec eee ec eee eees 414
(1979) 23 Cal.3d 219
Crane v. Kentucky........ 2.0... 0 ccc ccc ccc cece eee n eee e ete teas eeneeeenaes 125, 128
(1986) 476 U.S. 683
Crawford v. Washington. .............0.0cccc vce e eee ence eee eneeeees 152, 153, 154, 155,
(2004) 541 U.S. 36 156
Darden v. Wainwright...........0.0... ccc ce cece cc ccceccecccecunceeeeues 228, 328
(1968) 477 U.S. 168
Davis v. AldSKQ.... 0... 2.00.0 ccc eee ccc nc teen eee een e nena esenees 125
415 U.S. 308 (1974)
Davis v. WOOlfOrd...... 0.2... cece ccc ccc ence cect eee e tens sneeeeens 1 77
(9" Cir. 2004) 384 F.3d 628
Delaware v. Van Arsdalll 0.0.0.0... 0c cc ccc ccc cece enn ents eee eeenees 93
(1986) 475 U.S. 673 ,
Delzell v.Day .. 1.0.6.0 ccc cece cece cee ec cece ect e ete ce a een cnet eaees 294
(1950) 36 Cal.2d 349
XXVI
Donnelly v. DeChristoforo....... 0... ....00. ccc cece ence nce eee
(1974) 416 US. 637
Du Jarchin v. City ofOxnard............ 00.000 ccc ccc ee eee ees
(1995) 38 Cal.App.4" 174
Eddings v. Oklahom@................ 00. ccc cee cce eee ne ence ne eees
(1981).455 U.S. 104
Fahy v. COMnecticut........ 20.0... 0c cc ccce scence scene eee eneeees
(1963) 375 U.S. 65
Featherstone v. Estelle.................0..000000- veceecceeenes
(9" Cir. 1991) 948 F.2d 1497
Fetterly v. Paskett..... 0.0.0... 0000s ccccccne ccc cteeneensenesnnes
(9" Cir. 1993) 997 F.2d 1294
cert. denied, 513 U.S. 914 (1994)
Ford v. Wainwright. ......... 00.00.00 ccc ence cence ceneeceneeeeees
(1986) 477 U.S. 399
Franklin v. DUncan,......0. 00000. c cc ccccesccccnennecccscveces
884 F.Supp. 1435 (N.D.Cal.)
aff’d., 70 F.3d 70 (9" Cir. 1995)
Furman v. Ge@orgia........... 00. 00es cence cence cree eenteeenees
(1972) 408 U.S. 238
Gardnerv. Floridd......... 00.0... ccc cece cece cence e cece ceseeeees
(1977) 430 U.S. 349
Giglio v. United States ......... 0.2.0. c0cccecet ence eee eee eeeees
(1972) 405 U.S. 105
Gilmore v. Taylor... . 2.20... ccccccc cence cnet ees een eee enneeeeees
(1993) 508 U.S. 333
Godfrey Vv, G@Orgid........ 00... ccc cece nsec eee e eee e eee n eens
(1980) 446 U.S. 420
Gray v. Mississippi... ........0..0cccce cee ece scence neeeceeneeeees
(1987) 481 U.S. 648
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Page(s)
263, 294
295
307, 370, 376, 425
94
65
83, 424
83, 174, 180, 371
370, 431
139
196, 420
52, 174, 180, 413
186, 187
294
52, 398
316, 320, 324
9
Gray V. State... 2... cccc ence nee e eee ce teen ence eee ceeeeeneneneeeees
(Miss. 1985) 477 So.2d 409
Green V. G€Orgia........ 21... cece scence ence ene e cena ee eneeeeneeeeas
(1979) 442 U.S. 95
Greer v. Miller. ... 2.0.0.0... ccc ccc ence cc ccc ccccccccccnuccccececeveceeee
: (1987) 483 U.S. 756
Gregg V. G€OMRI... 2... ccc cece ccc cnet e tect tenn ene e ences eeennes
(1976) 428 U.S. 153
Griffin v. United States ...... 20.20.2000 ccc cece cence nce e ence nea cee een ees
(1991) 502 U.S. 46
Hardnett v. Marshall. ..... 2000000c cece ccc ccccnscnccenneeeeeees
(9"Cir. 1994) 25 F.3d 875
cert. denied. (1995) 513 U.S. 1130
Harmelin v. Michigan..................00.4:cccseseseseseseseseeseeee
(1991) 501 U.S. 957
Hernandez v. YIst.. 0.0.0... 0 occc cence cncecucccccccccucucceecuucuees
(gt Cir. 1991) 930 F.2d 714
Hicksv. Oklahoma cece c ence cee vecceecccceceectcenesteeuuncescuceseneceus
(1980) 447 U.S. 343
Hilton v. Guy0... 00.00. c ccenee e nee e ee ceneeeues
(1895) 159 U.S. 113
supra, 159 US.at p. 227
Hitchcock v. Dugger....... 22.20... 00.00 ccc nce nce e eect enc eneeet een eens
(1986) 481 U.S. 393
Holmes v. South Carolina... 00.0.0... 0c ccc c cc cece cccccnccccccecceceees
___U.S.___ (May 1, 2006) ,
Hovey v. Superior Court.......... 00... .ccccec cece cee ce cence ee enceneeuaees
(1980) 28 Cal.3d 1
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Page(s)
316, 317
129, 125, 129, 139
145, 371, 372, 373
293
416
410
265
411, 417
293
35, 51, 83, 117, 130
140, 145, 148, 149
175, 180, 192, 263
275, 293, 307, 351
354, 358, 384, 388
424, 430, 431
430, 431 |
377
126
321
Cane See aa enn ear re ath la SREBARRHERERgheNeveoeayte 6 aajenncrtenptie Gvamentenartin hed coe week mnie
Page(s)
Huffmany. Lindquist............. 00.000 cece ccc eceee cee necneeneeeenes 165-
(1951) 37 Cal.2d 465
In re: Estate ofAnderson... 0.0.0... c cece cece ec eeee ence teen ee enees 137
(1921) 185 Cal. 700
Tn rez JACKSON. 2... 2.6.0 e cece cence eee eee eeeeee eae es 188, 190, 229
(1992) 3 Cal.4"" 578, overruled on other grounds,
Tit res JONES 20.ccceee ceecn nent tence eee a tee eeeennne 54
(1996) 13 Cal. 4" 552
In re: Khamphouy been eee e eee eee ee eee ete ce nee eee eens ee been enaeeeneeees 195
(1993) 12 Cal.-App.4” 1130
In re: ROdrigueZ..... 00.00... 0c cece cece cence eee ence e neta eeneeteeenens 295, 297
(1981) 119 Cal.App.3d 457
In re: SASSOUNIAN......... 0.26. ccccecccecenennee cena cet enneeenees 188
(1995) 9 Cal. 4" 535, n. 6
Un rez Sturm... 0.00. ccccnce cece teen tte ete tenn en eeeceeennes 417
(1974) 11 Cal.3d 258
In rez Winship .........00.. 0000. c0c ccc ceccceceeeceeeesseuueeeveeseeeeeens 413, 415
(1970) 397 U.S. 358
Izazaga v. Superior Court............... 0.00 cece cece ee ene eee eens 129
(1991) 54 Cal.3d 356
Jackson v. Virginia... ........... 00... c cece cece ence eee tee eeneeeenaees 190, 196, 220, 226,
(1976) 443 U.S. 307 288
Jecker, Torre & Co. v. Montgomery...................000cceeeee eens 431
(1855) 59 U.S. [18 How.] 110
Johnson v. California. ..... 0.0.2.0... 000. ccc ccc c ence eee e tee eenneeeenees 28, 31, 32
(2005) 545 U.S. 162
JORNSON V. Stale...oo.ceceeee e ene ee eee eennees - 408
(Nev. 2002) 59 P.3d 450 , ,
Johnson V. LOUISIANA... 2.000. c cece cee ence eee e nace nena eee eeeneee 410
(1972) 406 U.S. 356
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Johnson v. Mississippi........... 0.020022: 0ceec eee ne reenter een e teen eeeees 299, 411, 421
(1988) 486 U.S. 578
Johnson v. State... 0.00. ccc ccc ccc cece ccc cece cscs eee scene ceenscteesenes 404
(Nev., 2002) 59 P.3d 450
Jurek v. Texas.....ceteeeeeeeseee ceed eee e nec a eee te cen nencneeneeseeeeeess 307, 370, 384
(1976) 428 U.S. 262
Kansas v. Marsh o.oo... cc cc ccc ccc ccc ccc cc ccc cece ene c cece nnneeeeeenneee 392, 420, 418
(2006) S.Ct. 2516
Kealohapauole v. Shimoda..............00.00.0cecc eee ec eee es enee ne eees 83
(9"" Cir. 1986) 800 F.2d 1463
cert. denied, 479 U.S. 1068 (1987)
Korsak vy. Atlas Hotels, In... 0.0.00. 0000 ccc cece cence cece eee eenenenenees 170
(1992) 2 Cal.App.4™ 1516
Kozinski v. Gallagher... ....... 00.20.00 0 ccc ccc e ccs ence cnc ceeeeeneeeeeneees 431
Death: The Ultimate Run-On Sentence,
46 Case W. Res. L.Rev. 1, 30 (1995)
Kyles v. Whitley.........assess bebe ence cece eee seeeeeteeesteeneteeaeees 294
(1995) 514 U.S. 419
Lilly v. Virginia ....... 0.0...ecence ne ee ene eee tee eneeneeaeenenas 152
(1999) 527 U.S. 116
Lindsay v. Normet.......... 20.20. 000 ccc cc cence eee eneeceeeeeees Vedeeeeeeee 129
(1972) 405 U.S. 56
Lockhart v. McCree.... 0.20... 2 2.0.0 ccccccccucccccccccccucancuvecveveneees 3 16 *
(1986) 476 U.S. 162
Lockett v. Ohio............ecsevscsseseavevessaseseuseseveesseseeseeseeee 52, 370, 376, 384, 422
(1978) 438 U.S. 586
Mach v. Stewart......00. ccc ccc ccc ccc ccc e ne cc ee eccceenecueceeceueeeenees 45,47
(9"Cir. 1998) 137 F.3d 630 ’
cert. denied, Mach y. Schrino (2006) 126 S.Ct. 1438
XXX
Page(s)
Mahorneyv. Wallmam...........2...0..00ccc cece nce ne ence nett teeta eenenees 257
(10™ Cir. 1990) 917 F.2d 69
Mak v.Blodsett.........0... 00.0 ccc cece cece cece ec ee cece etn ne eens eenaes 294
(9" Cir. 1992) 970 F.2d 614
cert. denied, (1993) 507 U.S. 951
Marks v. United States ..........0..00.cccccceccveceuececceuccenecenceeeees 51, 362
(1977) 430 U.S. 188
Marshall v. Walker ........ 0.0000 ccc cece ccc cece cece cece eens eee eeeeeeseee 293
(1983) 464 U.S. 951
Martin v. Waddell’ Lessee .......0000 0.00 ccc ccc cence cece eve eeeenenenneees 430
(1842) 41 U.S. [16 Pet.] 367
Mayerv. Alexander...............0.c0ccc ec cee tec ec cence nee ecen eee eee eens . 170
(1946) 73 Cal.App.2d 752
Maynardv. Cartwright................Sect ceceeececeeeaeeeceeteneeees 398
(1988) 486 U.S. 356
McCarver v. North Caroling ......... 0000000 c cence cueseenenneeeeeneens 430
O.T. 2001, No. 00-8727, p. 4
McCleery v. City ofBakersfield..................c0c cece eee e cece neeee 160
(1985) 170 Cal.App. 1059
McCormick v. United States .........00...0ccc ccc cece cece cee t cece eee ees 89, 292
(1990) 500 U.S. 257
Medina v. California. ............. 00.000 ccccce eee n eee ne eect ene ene eee eens 41.43
(1991) 502 U.S. 924
aff'd (1992) 505 U.S. 437
Mello v. California. ......... 00.0. ccc ccc cc cece e cee ne en enee cee eteceneetaes ; 362
Michaelson v. United States... .........000 0c ccc cc cence ccc ccc eee nnnees 55
(1948) 335 U.S. 469
Miller-El v. Drethe.....0... 00.0000. 000cccveeceeeeeeneecen ees " eceeeeeees 32, 33, 34
(2005) 545 U.S. 231
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Miller v. Silver...... 2.00.0... c cece cnc cc ecnec eee n eee eee eee eeenateeeenaes 168
(1986) 181 Cal.App.3d 652
Mills v. Maryland.............. 0.20200 ccc cence ence tenet ee eee ne ene ee enees 418, 422, 428
(1998) 486 U.S. 367
Miller v. United States ..........0.. 0. ccc cece neces cence neces eee eeneees 430
_ (1871) 78 U.S.[11 Wall.] 268
Mooney v. Holohan. ........... 0.00.0 ccc cece ence nce e cee neeeeeneeeeeenes 187
Mongev. California.......... 20.00. .0.ccccc ence cence ee ee een eeeennees 408, 411, 415, 426
(1998) 524 U.S. 721
Morgan y. TULINOTS«0cccc nce nc ccc ccncceaceuaceeueeues 41, 321
(1992) 504 U.S. 719 .
Morrowv. Superior COUT. cee cecccccsecscevsecuseceesseeeterseees 227
(1990) 30 Cal.App.4" 1252
Morse v. Hanks......... 2.0... ccc c cece cc cnet nec e teens ene ee nee eneeeeeeees 34
(7" Cir.) 172 F.3d 983
cert. denied, 528 U.S. 851 (1999)
Murray’s Lessee v. Hoboken Land and ImprovementCo........ 410
(1855) 59 U.S. [18 How.] 272
Myers v. YIst..............0.20085 wee ee ees eeec ence tens eeeeeeceeeeseeeen ene 471, 429
(9"Cir.) 897 F.2d 417
(9"Cir. 1990) 897 F.2d 417
Napue Vv. [llinois ..... 00.2.0... ccc cece cece ence eee e net ec ene eeaeeeeeeees 187, 229, 233
(1959) 360 U.S. 264, 269
Neder v. United States ..............0 0.00 cc ccc cece eee e ce neces c enna sence 229
(1999) 527 U.S. 1
Ohiio v. Roberts... 2.2.2... 2 ccc ccc ccc cee cece cence n cee en ence ete neeees 153
(1980) 448 U.S. 56
‘Old Chief v. United States.......... pose eeceeeeseeeesecues* bececeeueees 55
(1997) 519 U.S. 172
XXX
Ortega v. Superior Court............0..0.c0cc eee ees veceeuteesseeseesn
(1982) 135 Cal.App.3d
Payne v. Tennessee........... ve eeeeeueecseuesceeeseusceueeeeneeesti
(1991) 501 U.S. 808
Paxton v. Ward......... 0.00 ccc cues ccucccuuucccncccuccuctunscenseuneenes
(10" Cir. 1999) 1999 F.3d 1197
People v. AACOX... 0.00.6... cc ccccc ccc e ne nc eset nee ee ene teens eee taenaees
(1988) 47 Cal.3d 207
People v. Alcala... 1.2.0... ccc cece cece cece nce ee ene e nae eee ete enneneeees
(1984) 36 Cal.3d 604
People v. Allen... 0.0.0.0 ccc c cc ccc cece cece cee nc cnet ee ee eben tenet enes
(1986) 42 Cal.3d 1222
People v. AIVerson.......... 00.0 cc cece cece nee c cece nce en eee enene ete enenss
(1964) 60 Cal.2d 803
People v. ANGerson......... 2... 0c cece nce c eee ne cece ence ee enecnsceeeneees
(2001) 25 Cal.4" 543
cert. denied, (2002) 543 U.S. 1136
People v. Archer,..... 00.0... c ccc cee cece cece enn e nent cen eeenneeeaeeees
(2002) 82 Cal.App.4" 1380
People v. Arias ... 2... 2.0.0 ccc cece cece cence nee ne tence eneeneeeeraerees
supra, 13 Cal.4™at p. 188
People v. AVMeNdAriZ... 20.20.0000 cc ccc cece e nent ne cence ne enc enn eees
(1984) 37 Cal.3d 573
People v. ASHMUS....... 0.20... cc ccc ccc e eee ce cence eee e nee eeeeneeeeene
(1981) 54 Cal.3d 932
cert. denied, (1992) 506 U.S. 841
People v. Atchinson T&S ...... 0.0... 00ccc cece cee nc cence te eeeeeneeneees
263 C.A.2d 675
People v. Bacigalupo. ..... 0... .cccc cece cee cc nec e cee e teen ene e eee es
(1993) 6 Cal.4™ 857
XXX1il
Page(s)
209
360, 362, 363
139, 140
397
69, 70, 74
36
263
208, 217, 220, 263
386, 388, 404
98
424
321
351, 28]
92
394
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People v. Bain...... 00.0.0 .cc cece ccc cnc cece ene ee neat cent eneeeneaes 263
(1971) 5 Cal.3d 839
People v. Balcom.... 2.2.2... 00sec cece eecne teen ene eee tee eneeeeeneneeees 54, 67, 68, 78
(1994) 7 Cal.4" 414 79, 98
People v. Bandhauer......... 2.2.0... 0.cccccenc ence nce ec eens cnseneeees 47
(1970) 1 Cal. 609
People v. Banner.............0..0.00ceeeeeees voce eee teeeeeeeeeeeeeeeees 312
(1992) 3 Cal.App.4" 1315
People v. Beagle .......... 0.5.0 cccc ccc ec eee cc eee nen e eee teeeenseeeneneens 107
(1972) 6 Cal.3d 441 ’
Peoplev. Beeman. ..........0.cc ccc cece cence cence ence teen ent etee 91
(1984) 35 Cal.3d 547
People v. Bell ....... 2.0.0 ccc cece cece ce cee eect etn ence tens eeeeen etna senees 239, 258
(1989) 49 Cal.3d 502
cert. denied, (1990) 493 U.S. 903
People v. Benson...............0.. 00000000etn e eee e ner ee nen ee neonate tees 263
(1990) 52 Cal.3d 754,
cert. denied, (1991) 502 U.S. 924
People v. BittaKer........ 00... .0.cccecc ccc nc nce ne ene ec eee e ne ene enone eee eeaes 398
(1989) 48 Cal.3d 1046
People v. Bolin.......... 0. ccc cece ence nce ne nent en cece eee eee ene eeeneeeeeeees 166
(1998) 18 Cal.4™ 297
cert: denied, 526 U.S. 1006
People v. BoUOn..........cccceccescessevecssesvescuseusseseevevseveessven 230, 277, 254, 282 °°
(1979) 23 Cal.3d 208
People v. BOnin............ 0.0.00 cece cece cece cece ne een ceneneeeeeeenenaesenes 238
(1988) 46 Cal.3d 659
People v. BOX........ 0. cc cece cece nce e nee e nee ee ee eee eee en ee ee neta es 327
(1984) 152 Cal.App.3d 46] | ,
XXXIV
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People v. Bolden........... 0.0.0. cece ccc nc cece cece tence enc ene ene eesennenes . 235, 384
(2002) 29 Cal.4" 515
cert. denied, (2003) 538 U.S. 1016
People v. Boyd............c0ccccccccccvveeesvecceetecesseeeccceesueeeceean 360, 424
(1985) 38 Cal.3d 762
PeopleA reLe eeeeees 122, 376
(2002) 29 Cal.4™ 381
People v. Brandon. ..........0.. 0.0 cccccee eee ce nce te nec ne ens eneetetneeuenas 76
(1990) 32 Cal.App.4" 1033
People v. Branch... 00.0... 0.c cece cece cence cect ee ence ne eneteeeneeaenas 82
(2001) 91 Cal.App.4™ 274
People v. Brown. (Andrew)......... 20. ...cce ccc cee ence nc ceee eet eeceeeeneees 335, 346
(2003) 31 Cal.4"" 518, cert. denied
(2004) 541 U.S. 1045
People v. Brown (Brown 1)..... 0.20. ..c0cccecc ene nc eee eee eee ee tee eesenneees 404
(1985) 40 Ca.3d 512
People v. Brown....... 0.00000 ccc cc eee cc ec eee eee eeneeeeeneeeeeeeeeneennens 251, 349, 350,
(1988) 46 Cal.3d 432 381, 382
cert. denied, (1989) 489 U.S. 1059
People v. Buffum...............ecdveecuesevscevsseverseeutsseesesesseeeeee 294
(1953) 40 Cal.2d 709
People v. BUrgener.......... 00.200. ccc cece ence ner t eee ce nee e eee enee ene ones 47, 118
(1986) 41 Cal.3d 505
overruled on other grounds, People v. Reyes, (1998) 19 Cal.4" 743
People v. Burnick............000ccc cece cece c cece net te eect e ence eae eaae 414
(1975) 14 Cal.3d 306
People v. Bull... 00.0.1... ccc cc cence cence ec en eee ec ence eeteneeneteeeettenes
(1998) 185 I.2d 179
People v. BOnin.........0....0000c0peeceeeeeneteeeeeeeeeTee eeeeeeeeeeees 238
(1988) 46 Cal.3d 659
XXXV
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People v. Boyd..............c0ccccec cece nce e ceed eect ee eeeeeeeeens
(1985) 38 Cal.3d 765
People v. Cain........... 000 ccc cence ence eee cee eee enna ee eneneees
(1995) 10 Cal.4"" 1,
_ cert. denied, (1996) 516 U.S. 1077
People v. Calhill............ 0.0.00. ccc ecc eee e ccc ene ence cteeennes
(1993) 5 Cal.4"" 478
People v. Caldwell............. 20.0... cccccc enc ceec ene eeeeeeenes
(1955) 43 Cal.2d 864
People v. Campbell ............ 00.0.0 ccc scence cece scence enna
(1994) 23 Cal.App. 1488
People v. Carpenter..............0 0. c0cccc cece cece eee e eee eenees
(1997) 15 Cal.4" 312
(1999) 21 Cal.4" 1016,
(2002) cert. denied, 531 U.S. 838
People v. Carrillo....... 0.00... 0ccc ccc ccece cece cence eeeneeeeeees
(2004) 119 Cal.App.4" 94
People v. Cash............ 2... 0ccccccccene ccs eec eens enat tent enna
(2002) 28 Cal.4" 703,
cert. denied, (2003) 537 U.S. 1199
People v. Castr0....... 20.0 0.cccccecc enc ccec cnc teeeeeeceeenteees
(1985) 38 Cal.3d 301
People V. Catlin. ........ccc ccc cece cee ec eee ce cece ences eneeeees
(2001) 26 Cal.4™ 81,
cert. denied, 535 U.S. 976 (2002)
People v. Champion. .............0..0.ccccecec eee eeceeeeee tees
(1995) 9 Cal.4" 879
People v. Clair... 0.0.0... ccc ee cece cece cence cect teen ec eteeeeaes
(1992) 2 Cal.App.4"™ 629
cert. denied, 506 U.S. 1063,
XXXVI
Page(s)
be teeeeeeeeee 360, 424
bet eeee eee eee 222
215
208
109
353, 365, 424
177, 178
250, 251, 304, 305
306, 310, 311, 313
106
52, 64, 67
159, 160, 163, 312
51
Page(s)
People v. Clark.......... 0.0. cece eee eeen eee cence ees cence eet eeeeees 159, 166, 174
(1993) 5 Cal.4" 950 :
cert. denied, 512 U.S. 1253 (1993)
People v. Cleveland................... 0.00 ccc ccc cc cece cee ce cece ee ee neaeneees 44, 316
(2004) 32 Cal.4"" 704,
cert. denied, (2005) 543 U.S. 1058
People v. Cline ............0cccc ccc ccenceccne ete cence eee nceeeeneeeeeetnseaes 270
(1997) 60 Cal.App.4" 1327
People v. Coffman..............occ ue ceeeeueescueesesuuececeeeceaeeeeess 214, 216, 217, 219
(2004) 34 Cal.4"" 1,
cert. denied, (2005) 544 U.S. 953
People v. Colantuano....... 0.21.60. .0.cccccc cece ccc ne eee e cence eee enaeeees 87
(1994) 7 Cal.4" 206
People v. Cole ....... 0.0... c cece ene c cece nen eee cnet ence nee ene nneeeee 168, 169, 172
(2004) 33 Cal.4"" 1158, 210, 271, 387
cert. denied, 544 U.S. 1001 (2005)
People v.. Coleman. ..... 0... 002.00 ccc ccc cece ence e eet e eee ne eet enaenes 100
(1985) 38 Cal.3d 69
People v. COMDS ............. 0 ccc ccc ccc ccc teen e ence nen eee e ene e ene teneeeees 368
(2004) 34 Cal.4™ 821,
cert. denied, (2005) 125 S.Ct. 2549
People v. Craft.......... 0.0.0 0cc ccc cncccccee nce tec enc eec eee seeeeeeetneeenens 65
(2000) 23 Cal.4" 978,
~ cert. denied, 532 U.S. 908 (2001)
People v. Crittenden. ........00....0000cccccc0ceeccceseeeceseeeseceecenenes 205, 206, 211, 242
(1994) 9 Cal.4"83, 223, 288, 289, 291
cert. denied. (1995) 516 U.S. 849
People v. Cruz... 1.2.2... cccc cece ccc nc cece tc teen nc en eet eeeeeneeereeneeeenea 425
No. SO42224
People v. Cunningham..............0.00.c00c0cceeeeeeeees eeeeeeeeeeeees 126
(2001) Cal.4™ 926,
cert. deniéd, (2002) 534 U.S. 1141
XXXVI
2
|
ae
i
j
i
j
i
j
i
i
People v. Dabb...............0. ccc ccc ence eee n cence teen cence eee eee ena ee enes
(1948) 32 Cal.2d 491
People v. Daggett..............cc cece ccc e cece ener cece cede et ta ee eee bee e ences
(1990) 225 Cal.App.3d 75]
People v. Davenport. ........ 0... 200. c cece cece cece cece een e ee cee et ene senna ees
(1985) 41 Cal.3d 247
People v. DAVIS ..... 2... 200 ccc cece cece ence eee ete e eden ne cee tena eee ee ees
(1965) 64 Cal.2d 791
People v. Demond,...........0 ccc c ccc ence cence cece nee e ee ee een e nee een ee ees
(1970) 59 Cal.App.3d 574
People v. Demetrulias............0.. 000. ccc ence cee ec cence eneeeneeeteeenees
(2006) 39 Cal.4" 1
People v. DiaZ..... 200.210 ccc ccc cece nce e teen cece nee n een neeeneeeeeeeeee ees
(1992) 3 Cal.4" 495,
cert. denied, 508 U.S. 916 (1993)
People v. Dillon ....... 0.22... 0000ccccceceeee eee eens eeee ens : beceteeeeeeeeee
(1984) 34 Cal.3d 441
People v. DUNcan....... 0.22.2... cc cece cece eet ee ence e eee eee nee ee ene e tabs
(1991) 53 Cal.3d-955,
cert. denied, (1992) 503 U.S. 908
People v. Dyer... . 0... ccc ccccc ccc nc tee nc nce e eee ee ener ne eee ees eeeeeeeenees
(1988) 45 Cal.3d 26
People v. Edelbacher...................000c0cceecceees bet eeeeceeeeeeteeees
(1989) 47 Cal.3d 983
People v. Elliott0... 000.000.0000. c00ccc cesses eee ceeccu sce eecceesesceueeenees
(2005) 37 Cal.4"" 453
People v. ESpinOSd....... 2.20.0. cc cccce nce cec ect ne nec eee ee eeeeeeeteneeeees
(1992) 3 Cal.4" 806,
cert. denied, (1994) 512 U.S. 1253 ,
People v. EVQns...... 0.0... ccc cc ccc cence cece eee eect eee teen e eect eee bates
(1952) 39 Cal.2d 242
XXXVI
Page(s)
80, 97
139, 200, 206, 207
210, 221
199
165
224
70, 71, 92, 99
67
395
220
397
394,422, .
206, 207
228
230
Page(s)
People v. EWolt.... 0.0.2.0... ccc ccc cence nsec cece nce c ence beste es tenneeeeennens 49, 50, 51, 52, 54, 55
(1994) 7 Cal.4" 380 56, 57, 67, 70, 71, 73
77, 79, 80, 84, 85, 87
90
People v. Fairbank.......... 0.2... .0.ccccceceenceceeenceneteseeees 400, 403, 416
(1997) 16 Cal.4"" 1223
90People v. Falsetta.......... 0.2... cccccccscnc ene tee ce eeceneesenees
(1999) 21 Cal.4" 903,
cert. denied, (20020) 529 U.S. 1089
People v. Farnam. ......0. 0.000000 ccc ccc n cece cence ee ee naeeeees
(2002) 28 Cal.4" 107,
cert. denied, (2003) 527 U.S. 1124
People v. Fauber...........0... 0c ccc ccc cece cece nnee ne eeseetennes
(1992) 2 Cal.4™ 792
People v. Feagley.............c0cccc ccc ccecc eee eennecneeceeseenes
(1975) 14 Cal.3d 338
People v. Feaster........0.0.020cccccccecsee ne ce eee nen ee nese ees
(2002) 102 Cal.App.4™ 1084
People v. Fierro... 2.2... .0.cccccccecceceeeec en ceneeeeteeeneenes
(1991) 1 Cal.4" 173,
(1992), cert. denied, 506 U.S. 907
People v. Fimbres.............2...0.ccceccee eee ees beceaeeeeeneees
(1980) 104 Cal.App.3d 780
People v. FOrd....... 00... ccc cece ence ence cece cence tenet eneenaes
(1966) 65 Cal.2d 41,
cert. denied, 377 U.S. 940
People v. Fries ......... 0.00. cccccccceccncccnc cence nseeeeeseneees
(1979) 24 Cal.3d 222
People v. Frye... 0.00.0. 20c cc cceccee cence cec noes ee eeeeensneeeenes
(1998) 18 Cal.4" 894
XXXIX
236, 347, 403
416
413
107, 108
165, 421
41, 43, 189
219, 288, 295
110
246, 248
“ev,
ved
People v. FUdge..........0..cc cece cece ccc eee cence tence tent eneees
(1994) 7 Cal.4™ 1075,
cert. denied, (1995) 514 U.S. 1021
People v. Fuentes ....... 20.0... 0000 cece ence eect eect ence ene eennees
(1991) 54 Cal.3d 707
People v. Gardeley.................cceccccc see eeeenen eee eeeeneens
(1996) 14 Cal.4™ 605,
cert. denied, (1997) 5 22 U.S. 854
People v. Gilbert.......... 0... ccc cccccccneeeetne eee eneenaeneeens
(1992) 5 Cal.App.4™ 1372
People v. Gionis........... 0. ccc cece c ec ee ence nee eenc cence teaeeenes
(1995) 9 Cal.4" 1196
People v. GonzaleZ.... 2.0.0... 0.5 ccc cence ccc e cence ete e eee et eens
(1990) 51 Cal.3d 1179,
cert. denied, (1991) 502 U.S. 835
People v. Gordon... 2.0.00. ccc ccc cecccncenc ee enceenseeteeeenseees
(1990) 50 Cal.3d 1223,
cert. denied, (1991) 499 U.S. 913
People v. GOre......... 00. c cece ccc cne ence e nce tet ne een atte eneenees
(1993) 18 Cal.App.4" 692
People v. Grant......... 0.2.0. c cece cece ence te neeneeceeteneeneeaes
(2003) 113 Cal.App.4™ 579
People v. Green..... 02.21... c0 ccc ccc cnc cece eee e ence ee eneeeteeeees
(1995) 34 Cal.App.4" 165
People v. Griffin. ....... 00.2... ccc cece cccec cee ee cee en ence eeeeseees
(2004) 33 Cal.4" 536
People v. GUerrero...... ccc. ccc ccc cc cece ncc cet e cence een eee seen ins
(1976) 16 Cal. Cal.3d 719
People Ve GUUNAM eee cccccceecseqesesesevevecseeessee eeeeeaee
(1975) 47 Cal.App.3d 380,
overruled on other grounds, 44 Cal.3d 137
xl
Page(s)
103, 127, 192, 193.
bet eeeeeeees 29
be teeeeeeees 122
308
228
32, 255, 256
350, 360
36
87, 88
109, 111
34, 143, 357
358, 364
55, 69, 72, 80, 86
90, 99
274, 275, 315
Page(s)
People v. Hamilton... 2.0.2.0... ccc cece ete cc cence ence cece tegeeeeneeeeneees ~ 422
(1989) 48 Cal.3d 1142
People v. Hamilton...................404-Lace eeeeeceencceeeeeeeesseesneeees 238
(1963) 60 Cal.2d 105
People v. Hardy....... 0.0... : ccc cccec cnc ec enc ecc ence etee eens eennenneesenee 397
(1992) 2 Cal.4" 86
cert. denied, 113 S.Ct. 498
People v. HArris ...... 2.0... ccc cece cece e cece n cence eee enna eee eeeneenaes 372, 382, 384, 420
(2005) 36 Cal.3d 36,
cert. denied, 469 U.S. 965
People v. Harrison.................ccceceeveeccececceeceeeeecceececeeeeeens 320, 382, 384
(2005) 35 Cal.4™ 208,
cert. denied, 120 S.Ct. 201
People v. Harvey.............0..:00.00000 cece nett eee eeeeeceeeeeeeeneeeeees 71, 163
(1984) 163 Cal.App.3d 90
People v. Haskett.......... 2.0.0.0. cccccccve ce ceene eens eneneeteeseneneenes 342, 344, 366
(1982) 30 Cal.3d 841
People v. Hawkins............ 200. cce cece ccc cece cette eee cee teeeeernges 54
(2002) 98 Cal.App.4" 1428
People v. Hawthorne.............eet ede eseeeteeenaeeeeeeneeneeeeereees 403, 418 —
(1992) 4 Cal.4" 43
People v. Hayes..........2..20cccccccecceceee ene cne ene eeeeeeceeteeeseeueeas 41, 122, 225, 314
(1990) 52 Cal.3d 577,
cert. denied, (1991) 502 U.S. 958
People v. Heard...... 00.00... c ccc cece cece ence cence ene ee ene neceseeenaes 314, 315, 319,320
(2003) 31 Cal.4" 946, .
cert. denied, (2004) 541 U.S. 910
People v. Heckathorne............. 0.0. 0cc ccc ence ence ence ee eec eens seneees 112
(1988) 202 Cal.App.3d 458
People v. HernandeZ..........0.....c0cc0vte cece ccc ee ence nett ee eee eeneenene 160
(1997) 70 Cal.App.3d 271
xli
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i
b
a
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OCU
Page(s)
People v. HernandeZ..............0 ccc cece ect ee cence eect ete e eee ene eeeeees 406
(2003) 30 Cal.4" 835
People v. Herring...... 20... 20. cccc ccc e ne eee tence ence e nba ceee ee tances 252, 253, 267, 349
(1993) 20 Cal.App.4™ 1066
(1980) 26 Cal.3d 557
xlii
251
People v. Hill... 0.0.0.0... ccc cece ccc ence nce ence ce ence teen eeene ena eeeeens 148, 150, 194, 229
(1998) 17 Cal.4" 800 234, 238, 240, 255
257, 267, 268, 294
337, 347
People v. Hillhouse......... 0.00... c ccc cece c cence teen ene e een n teen ennaes 246, 395
(2002) 27 Cal.4" 469
People v. HOgan......... 00.000 cece ccc cece cence ence eee eeneneeeeeeeeaees 165, 322
(1982) 31 Cal.3d 815
People v. Horning............ 0.200 0ccccc eee n ce cnc cence rete eee ee teens eees 324, 325, 326, 327
(2004) 34 Cal.4™ 871,
cert. denied, (2005) 120 S.Ct. 45
People v. Hughey..........0... 00. c ccc ece ee nc cece cence ene enaeeeeeeeees 346
(1987) 194 Cal.App.3d 1383
People v. ING .... 2.2... ccc cece ence cence cence enceeeeneesteeenenaeeenenenes 67
(1967) 65 Cal.2d 603
People v. Jackson ....... 2.0.00. c cc cece ccc eee c cece teen ce ee eens stat eneenaees 283
(1944) 63 Cal.App.2d 586
People v. Jackson......... Lec ene cece eseceeeseeeeeeeseeceenseeeeeneesners 36
(1996) 13 Cal.4” 1164
People v. JOMNSON......... 00.2.0 c cence ence nce cee cece eee eeneneee ee eneee 255°
(2004) 119 Cal.App.4™ 976
People v. JONNSON....... 0.0.0... c cece cnc nc cece eee ence eee eeeeeceennenaes 255
(2004) 115 Cal.App.4" 1169
People Ve JOWNSON .. 0... eeeccc een cee eee eee e eee eee b ete e eee 196
(1992) 5 Cal.App.4" 552 ’
People v. JOMNSOMN.... 0.2.2... 00. ccc cece cece eee e ee ne tena eee eneeneees 196
People v. JOANSON...... 0.0.0... cece cece ee cece e ee eene cnet ec eneeneteeeee
(1987) 43 Cal.3d 296,
cert. denied, (1989) 493 U.S. 829
People v. JOn€S. 0.1.2... ccc cece cece een e ee tte e nen see eneeeeenens
(2003) 29 Cal.4” 1229,
cert. denied, 540 U.S. 952
People v. KQuris..... 0.0.2.0... cccccececcneeeeceeeecenteeeeensenseeeeeenes
52 Cal.3d 648,
cert. denied, 502 U.S. 837 (1991)
People v. Kelly...... 0.0... ccc ccc ccc cce cece eee c nce teneee ene eeeenenaeeeees
(1967) 17 Cal.3d 24
People v. Kipp... 1.2.0... .ccccccceceececececetcecteeeneneecseeeeneeneneees
(1998) 18 Cal.4"" 349,
cert. denied, 52 U.S. 1152 (1999)
People v. Kirkes............ 0.2000. cece cece e cence eee nen eee tee neeee
(1952) 39 Cal.2d 719
People v. Kirkpatrick........000....000000c00ccecvevecseecceeseceeneesceaes
(1994) 7 Cal.4™ 998,
cert. denied, (1995) 514 U.S. 1015
People v. Koontz....... 2.2.2. c00ccc cee ccc cece ccc cee eect een e eee eneeeenees
(2002) 27 Cal.4™ 1041,
cert. denied, (2003) 537 U.S. 1117
People v. Kraft. ... 20... ..0cccccccccecceceeenceeeeeneeteeneeeeesteeeeenees
supra, 23 Cal. 4" at pp. 1078 — 1079
People v. Lee... 20.20... ccc ccc ce cece cece cece eee neeceneet ene eneeeeeneenees
(1987) 43 Cal.3d 666
People v. Lenart...........bee cedecceeeeseseeecueseeseeteaeseneetesenes
(2004) 32 Cal.4"™ 1107
People v. Lewis ....... 00... ccc cece nce ntec cece ceceee nee e eee ne ees enteneess
(2001) 25 Cal.4™ 610,
cert. denied, 534 U.S. 1045
xiii
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Page(s)
101
37]
41
80, 169, 337
62
266
312
359
423
288
88, 280, 285
74, 292
&
4
People v. LUCOrO ... 0.0.60. c ccc ccc cee ence e nnn net e nen eens et eee tages 376, 377
(1988) 44 Cal.3d 1006
People v. Manning............00..c cc cccecc ccc e cece ence tect ena e enna eees - 269
(1981) 120 Cal.App.3d 421
People v. Marshall.............. 0.0000 c cece ence ence een ee ee tenet enna ees 421
(1990) 50 Cal.3d 907
People v. Marshalll.............0..0cccccccce cece nce e nec enee eee cee teens 97, 226, 254, 255, 256
(1996) 13 Cal.4"" 799
cert. denied, (1997) 520 U.S.1157
People v. MartineZ..... 2.2... .0.c0ccccccce ccc ecc enc eeeeeneeeeeeteerees 41, 42, 43, 46
(2003) 31 Cal.4" 673,
cert. denied, 541 U.S. 1045 (2004)
People v. MaSOn.......... 0... 0.00.0 ccc cece cece nee ete eeentennees 368
(1991) 52 Cal.3d 909
People v. Mayfield.............. 0.0... cc ccc cece cece cece een eens enteeees 280, 283
(1997) 14 Cal.4" 668,
cert. denied, (1997) 522 U.S. 839
People v. MCAfC0.... 0.2... c ccc ccc ccc e cence cnet tenet nena tee eenaes 284
(1927) 82 Cal-App. 389
People v. McClellan......0.. 00.00. c ccc cece ccc nce ence nee eeteennees 114
(1969) 71 Cal.2d 793
People v. McGreen................000055:Lect eceeeeeeeeeeeneeeeeeeeeeee 238, 295
(1980) 107 Cal.App.3d 504,
overruled on other grounds, (1983) 34 Cal.3d 92
People v. MCLGIN............. 00.0 ccc ccc cece nce cnet teen et een netenenes 377 |
(1988) 46 Cal.3d 97, ‘s
cert. denied, (1989) 489 U.S. 1072
People v. McNeal... 2.2.0.0... ccc ccc ccccecc eee en cence es eeeeeeeeees- 47
(1979) 90 Cal.App.3d 830
People v. Medina...........0.. 000.00 cc cece nce cc cn cccenegeeneeeuseceeneee 41, 42, 63, 411
(1990) 51 Cal.3d 870, . ,
cert. denied,in part, Medina v. California
(1991) 502 U.S. 924,aff'd (1992) 505 U.S. 437
xliv
People v. Mello.................4.vecueceeueesaees deceesecueseeeeeuscuse
(2002) 97 Cal.App.4” 511
People v. Memro..... 0.2... cccc ccc cece cece ee tenn cent eee ene ene enes
(1995) 11 Cal.4" 786
People v. Mendo2a.............0.2ccccccneccenenee nce eec ec eneeneneenes
(2002) 78 Cal.App.4"918
People v. Mincey............. 0.00. ecccceeec nen eee cece eneceeeeeeeeenees
(1992) 2 Cal.4" 408,
cert. denied, 506 U.S. 1014
People v. Minifie........ 00.00. ccc cece cece nce en enc encene ease eee eneenaes
(1996) 13 Cal.4"™ 1055
People v. Montiel............... 0.00 cccccncenccece cence ene enee eens ennees
(1994) 5 Cal.4" 877
People v. MOOC...........-00ccccecenceccecenceec ees eeeeeaeeseeeeeeeeneeaes
(2001 26 Cal.4"™ 1216
People v. Morales............. 10. 0ccccccceeccceeeencteeeeeeeeeteenseneees
(1989) 48 Cal.3d 527
People v. MOrvison.,..... 2.0... 20.000 ccccc uence nee ne eee e nee neteeeeaeees
(2004) 34 Cal.4" 698
People v. MOtton...... 2.0.00. cece cece cence cnet ee ete ene ene ene tea e cee
(1985) 39 Cal.3d 596
People v. Nicolaus............0..1ccccccceccncceeteeeeceeueeeeeteeeeaes
(1991) 54 Cal.3d 551
cert. denied, 112 S.Ct. 3040 (1992)
People v. Odle..........ccccccseseesevsevevssceesseesersssesnsteseversess
(1988) 45 Cal.3d 386
cert. denied, 488 U.S. 917
People v. Ogg...... wesc eee e eee eec ens eecenceceeaceneeneeesneenetensenees
(1968) 258 Cal.App.2d 841.
People v. OLiVaS ... 2.0.0.0... cece ccc ccc ence ne ene eens Leceeceeeeeeeeeees
(1976) 17 Cal.3d 236
xlv
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Page(s)
309
423
107, 109
210
336
424
230
208
424
327
397
291
144
426, 427
K
a
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£
he
h
6
S
h
U
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h
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D
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OU
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al
i
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i
j
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People v. Osband........... 00.00.00 sce ec ee noes beceteeeeeeeees
(1996) 13 Cal.4™ 622,
cert. denied, (1997) 519 U.S. 1061
People v. Page.............. ccc ccc cece sc ec teen een eens eee eeees
(1991) 2 Cal.App.4™ 161
People v. Palner............ 2.0.0 cece cccce eee ene nse neeeeneees
People v. PAUino...........0. 0020s ccc cece cece eee ene eee
(1984) 160 Cal.App.3d 986
People v. Pensinger............0..cccccccecceeccnneeteeeneeees
(1991) 52 Cal.3d 1210,
cert. denied, 502 U.S. 930
People v. PereZ..... 2.20... ccc cece ccc eee ence e eee ne eee eeenaeenes
(1992) 2 Cal.4" 1117
People v. PerRins ........ 0.0... ccc cece cece nett eee e eee eeenes
(1970) 7 Cal.App.3d 593
People v. Perry........... 00.0 ccc ccc cee ences enceeseaeenees seeeee
(1972) 7 Cal.3d 756
People v. Petznick......... 00.2100... cccc ccc ee cece ene eeeeeenee ees
(2003) 114 Cal.App.4" 663
People v. Pitts ....... 00.2.0 ccc ccc ence cnc ete e nce e nce eeseneeaees
(1990) 223 Cal.App.3d 606
People v. Pre... . 1... 0... cece cece nce ec enc ece ee eeeeeceeaeenenees
(2004) 117 Cal.App.4" 413
People v. Price ....... 1.0.0.0. cc ccccec eee c ect tc tees neeeneneswe
(1991) 1 Cal.4" 324
cert. denied, (1992) 506 U.S. 851
People v. Prieto ......... 0.0.0 ccc cc cece cence ence cence eens enenees
(2003) 30 Cal.4" 226
People v. Proctor..............0...0055 Le cenc eee eeeeeeeeeeeeeees
(1992) 4 Cal.4™ 499
aff'd (1994) 512 U.S. 967
xlvi
Page(s)
224
151
274
336
147, 208, 344
226, 230
81
251, 141, 253
91
238, 253, 267, 268
210
261
404, 405, 427
205, 206, 210, 212
People v. Purvis..............-+.++- cece tec eeeeeeeeeeeseenereereeeenees
(1963) 60 Cal.2d 323
People v. RAMIireZ.... 0.00.00. ccc ccc ccc ccc eet ence ne eee teens eeneees
(1990) 50 Cal.3d 1158,
cert. denied, (1991) 498 U.S. 1110
People v. RAMOS ....00.....0000cccccveeeseeceeceseececseueeceesaueeees
(1997) 156 Cal.4" 1133
People v. Rayford..............cccccec cc ee ec eee ect eeeneeeeseeseeeenes
(1994) 9 Cal.4"" 1
People v. Redmongd............... 0. .cccceccenc eee ene eee en ne eeeteaeens
(1969) 71 Cal.2d 745
People v. R€y€S ..... 00.6.0 ccc cc ccc ence ce eee e eect te nett eens eeaeeneee
(1974) 12 Cal.3d 486
People v. Rivera.............0cceccecee cece eee tee tec ens eeteeneteneenees
(1985) 41 Cal.3d 388
People v. Robertson............ 00000 ccc cece cece cece ccc c ede t ene eeecaeens
(1982) 33 Cal.3d 21,
cert. denied, (1989) 493 U.S. 985
People v. RODinSON............. 000.00 c0cecene cece cette ee cneeeenenees
(2005) 37 Cal.4"" 592
People v. ROQ€rS ......0.. 0.00 c cece ence ence cen eee cece cence ennateeneees
(2006) 39 Cal.4™ 826
People v. Roldan........ 2.0.00. ccc cece cccnc ence ne ece eens eens eenenes .
(2005) 35 Cal.4"" 646,
cert. denied, 125 S.Ct. 570
People v. Rollo... 2... 00. cccec ccc cc cee ec cence cence eects ets enseneeeees
(1977) 20 Cal.3d 109
People v. Roncon-Pineda........ 0.2... .0.0ccc ccc cc eee eee ceeeeeeees
(1975) 14 Cal.3d 864
People v. ROSCOC........... 0000 ccc ccc nce ce ence ence ee ee enna eeeeetenees
(1985) 168 Cal.App.3d 1093
xIvii
Page(s)
267
353, 337
235
195
195
195
68, 97
208
397
416
63
108
384
159, 174
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i
sl
3
a
om
Ae
“0m
aa
eit
sai
anal
ane
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Si Oe C00 C:53, 55, 82, 101, 106
112
§ 1101(b) Lecce nee e eee een e cece ee ee ee sence eeeeneeengeeeeeensetenaees 48, 49, 50, 53, 57
64, 65, 66, 67, 73
80, 104, 105, 110
111, 113
§ 1102.eeee cece cece eee e ence eee seneteeeneeteee 106
§ L158.cccccc ence ence nce cee e nce e cena eee eeeeetbenees 411, 427
§ L158(a)...leccece cece ee coven neecace tet eeeeennes 411,427
§. 1170, subd. (Cc)...ccccece cece cece eee ee eeeeeeeeee 417
§ 1200(a)... 2. cece ccc cece nce eee e eee ee te eeneeeeeseteeenaeeeae 155
§ 1250...cececece ence nea e eee ee eee eeneeceeneaseeeaaes 143, 372
§ 1250(a)... ccc cece ccc e cence eee tee eeeeceeeeeeceenecuueeneees 136
§ L250(D)...occec ccc cece cece eee e eee eeeectuceeceeeeeeennes 136, 137
§ 252.cccccc cence cece eect eee c eee eeeeeeeeenneede eeeeeeeee 136
§ 1262...cececece cece cence ence eee ceeecenneeeeeereaeens 143
CALJIC:
CALIJIC. 20.0... c cece ccc cece cece ccc cence ee eeeeeecneuarteeeneeees 425
QOL.ccc cece cece cece teen ence ee neeeeseeeeeecevsceeeeesseneeenees 385, 386, 387
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2.02. ccc eee eee ce nee e cence cece ee eeneeeeesseeecneneeeeneeueenaes 385, 386, 387
QScece cece cece een e eee e eee eee e eee e es enneeeeeateneeeeensteeenes 147
QZSO.. ccc cccc cece c cece eee ce enceeueeeeeesecuueeeegeseesueecesanenees 84
8.88... ccc e ccc ence e cece eens ence cease eeeeeetenneenesenneseees 403, 406
California Penal Code:
OS 1
§ 189ccccence cece cette teen nese cence sense teneeetnaeeennee 200, 221, 222
§ 190ccccece cece ence econ ene ee nee eneeeeeentenseeeeues 406
§ 190.2 occcece cece ec cece cece nett nese eee eeetenteesetenecueeeenes 394, 395, 399, 406
§ 190.2(a)... ccc ccc cence ence nee ee eee ece eee eeseeaeeeeneeneeneeens 200
§ 190.2a2)... ccc cece ccc ccc cc cece eee eecececeeeeeeeeeseenseceneeres 2
§ 190.2(a)CAT)(VID.... 22.ccece cece cnet tees eee seneeeeeenee 2
§ 190.2(a)(17)(G).... 2. cece ccc ccc cece cece cece ee eeeeeeneeeenneeeee 214
§ 190.2(a)(18). 2... cece cence nce e nee cece sce eeeeeneeeecenseeeeees 200, 2
§ 190.32.cccc eee cc cere seer eee eeeeecaceeseeeeesseesueeenne 399, 406, 407
418, 423
§ 190.3(a)... cece ccc cece ccc ec cence cece nee eeeteeneaeersceeuees 396, 399, 406
ST Oo0 406
§ 19O.A(C). 0. ccc ccc cece ee ce eee eee eee aeeee seen nes eeneeeeaeeeeee 4
§ 190.5occccc ccc cence ence cee ne eee eeeeeeeteseeeneeeneea sees 406
§ 264.cccccc cence eee e eee eee be eee ee senses eeeeteeneeeenae 65
§ 289 (g)(f). 2... c cece cece cece eee cene eee eeeeeneeseteeeeeseeeeeesetees 65
§ 5DLecceccc e ence e nce e eee e et eee tees enneeeeteneeenneeneeenes 215
§ 460(a)...cccccc cece cece eee e cence eens teeeaeeeeeeeeseeeees 1
§ 1040...cccccc nee e ee eee eenne te ceeeneeseenneteneee 269
§ LOOB(C).. cece cence cece e cence eens eeeeeseeeeeeteesaetegaeeeeaees 269
Ss Ob70 op) 2
California Rules of the Court:
Rule 36(b)(1)(A)....2ccc c cece e cece cease ncaa eeeseteesaeeenceenens 433 >
Rule 36(D)(5)........ cc ccc cece ence eee e eee e nee enceeeteneeeeasententeees 433
Rule 4.42 subd.(@)........... cece cece ence cee n ese eeeeeeeeeseneeeeneeees 428
Title 15, California Code of Regulations
§ 2280, et. SCG...eee cece cee ee eee eee ce enon teen ee ter eeeteeeeenes 418
Title 21, United States Code: .
§ 848, subd.(k). 2...ccccc ccc cece cece nee eee eee eeaeeenneeenaes 4ll
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CONSTITUTION
Califomia Constitution:
Art. I, Section Lo... ccc cece cece ccc ccsaeenneeesceeeueeeees“Lees Passim
Art. I, Section 7.2.0.0... ccc ccc ccc ccc cece cas sec eeeeeeeusceneuae Passim
Art. I, Section 7(a)..... 0.0.0... ccc ce cece eee cee ee eee ee eee neees Passim
Art. I, Section 15.00.0000 .cccc ccc cece cece ees ceeseeeessnseeeenaees Passim
Art. I, Section 16.0.0... 0.00.0 ec ccc ececec eee eeeneeeetecceseeeees Passim
Art. I, Section 17.00.00... cocci c cece ccc cccceeeeeseeerenseneeeeveas Passim
Art. I, Section 24............0...0006enc eceeeeeeeeaeceeeeeseeeeeees Passim
Art. 1, Section 28(d)...... 0.0.0. c cece cee ececceeeseecnneeeeeeeees Passim
Art. 1, Section 28(f)...... 0... cc ccc cece ecce enc eeseeeeeeeeeneeeenes Passim
United States Constitution:
Amendment V........0.0. ccc cccccsecceseeveccccccectevveecseneecces Passim
Amendment V1......... 0.0000 c ccc cc ccc cscs cece cece cee ceeeeceeeeenss *Passim
Amendment VIII......... 00.0. cece ccc cee nn ces cececeveceoues Passim
Amendment XIV... 2.00... ccc cc ccs ccccesecececcceeuececceeuneces Passim
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OTHER AUTHORITIES
Page(s)
Amnesty International, 429
“The Death Penalty: List of Abolitionist and Retentions Countries”
(1 January 2000) http://amnesty.oprg/library/index/ENG
ACT 500052000
Soering v. United Kingdom: 429
Whether the Continued Use of the Death Penalty in the United States
Contradicts International Thinking (1990) 16 Crim. and CIV
Confinement 339
Witkin, California Evidence, § 203 , V. 1, 4" Ed. 137
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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, )
) Supreme Court
Plaintiff and Respondent, ) Crim. $073316
)
v. ) Orange County
) Superior Court
ROBERT MARK EDWARDS, ) No. 93WF1180
)
)Defendant and Appellant.
APPELLANT'S OPENING BRIEF
STATEMENT OF THE CASE
This is an automatic appeal from a judgment of death entered by the Orange
County Superior Court on September 9, 1998. (R.T. 6551 — R.T. 6553; C.T. 1892
—C.T. 1897.) |
On August 11, 1993, a felony complaint wasfiled charging Appellant,
Robert Mark Edwards, in Count 1 with the murder of Marjorie Deeble. (Penal.
Code 187.)' In Count2, he was charged with first-degree burglary of an inhabited
dwelling. (459 and 460(a) (C.T. 189 — C.T. 190.)
The complaint alleged two special circumstances in connection with the
murder count. The murderwasalleged to have been committed on May 15, 1986
while Appellant was engaged in the commission of the crime of burglary in the
first degree. (190.2(a)(17)(VID; C.T. 189.) The murder wasalso alleged to have
beenintentional and involved the infliction of torture (190.2(a)(18); (C.T. 189.)
Finally, the complaint alleged that the murder and burglary were seriousfelonies.
(1192.7(€)(1); C.T.189.)
On August 12, 1994, a first amended felony complaint wasfiled that added a
special circumstance allegation that on or about March 10, 1994, Appellant had
been convicted in Hawaii of murder. (190.2(A)(2); C.T. 190 —C.T. 192.)
On October 21, 1994, a second amended felony complaint wasfiled that
alleged the crimes occurred between May 12, 1986 and May 15, 1986,instead of
May 15, 1986. (C.T. 193.)
Appellant washeld to answerfor these charges following a preliminary
hearing held on May 26, 1995. (C.T. 195.) The same charges werefiled in an
information on June 5, 1995. (C.T. 198 — C.T. 199.)
On July 12, 1996, a defense motion to dismiss the prior murder special
circumstanceallegation was granted pursuant to Section 995 because the elements
necessary to support Appellant’s murder conviction in Hawaii did not necessarily
establish the intent required to prove a murder underthe California special
circumstancestatute. (C.T. 442; R.T. 82 —R.T. 88.)
' All statutory referencesare to the California Penal Code unless otherwise noted.
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On September3, 1996, a jury trial began before the Honorable John J. Ryan.
(C.T. 525.) The court also granted a motion by the People to dismiss Count 2 of
the information becauseit was barredbythestatute of limitations; there was no
objection by the defense. (C.T. 525.)
Jury selection concluded on September 25, 1996. (C.T. 671 — C.T. 673.)
The prosecution began presenting evidencein the guilt phase of the trial that same
day. The presentation of the evidence concluded on October 15, 1996. (C.T. 844 |
—C.T. 845.) The next day, counsel began their argumentsto the jury. (C.T. 846 —
C.T. 847.)
On October 17, 1996, arguments of counsel concluded andthe jury beganits
deliberations. (C.T. 848 — C.T. 849.) The court granted a motion by the People to
strike that portion of the special circumstanceallegations that charged that the
burglary was committed in the first degree; there was no objection by the defense.
(C.T. 848.)
Five days.later, on October 22, 1996, the jury announcedits verdicts. (C.T.
1051 —C.T. 1053.) The jury found Appellant guilty of first-degree murder as
charged in the information. (C.T. 1052.) The jury further found the remaining
special circumstanceallegations to be true because the murderinvolved the
infliction of torture and was committed during the commission of the burglary.
(C.T. 1052.)
On November4, 1996, the penalty phase began. (C.T. 1120 —C.T. 1121.)
The presentation of evidence concluded on November13, 1996. (C.T. 1157.)
Closing arguments were on November18, 1996. (C.T. 1161 — C.T. 1162.)
Deliberations began on November19, 1996. (C.T. 1163.)
| On November26, 1996, the jury announced that they were "deadlocked."
(C.T. 1239.) After questioning the jurors, the trial court declared a mistrial. (C.T.
1239 —C.T. 1240.)
On March 3, 1998, a new penalty phase jury panel was assembled. Jury
selection began with the distribution of juror questionnaire forms and hardship voir
dire. (C.T. 1461.) Jury selection continued through March 16th and 17th;it
concluded on March 18, 1998. (C.T. 1481 — C.T. 1498.) The presentation of the
evidence began on March 23, 1998. (C.T. 1490 —- C.T. 1492.) The evidence and
argumentof counsel concluded on April 13, 1998. (C.T. 1599 — C.T. 1601.) On
April 16, 1998, the jury returned a verdict of death. (C.T. 1745 — C.T. 1746.)
On September9, 1998,the trial court denied Appellant's motion to modify
the verdict of death pursuant to 190.4(e). (C.T. 1894 —C.T. 1895.) Thetrial court
imposed the death penalty on the murder count. (C.T. 1895.)
STATEMENT OF FACTS
I. GUILT PHASE
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A. Introduction
The information alleged that in 1986, Robert Edwards murdered Marjorie
Deeble in Los Alamitos, California. The Court and the parties agreed that the
evidence that Appellant committed this crime wasinsufficient, as a matter of law,
unless evidence of an uncharged homicide in Hawaii committed in 1993 wasalso
admitted against him. Thus,the legal sufficiency of the prosecution’s case hinged
on its theory that Robert Edwards committed the Deeble homicide becauseofits
unique similarity to the murder of Muriel Delbecq, seven years later and thousands
of miles away.
B. The Deeble Murderin May of 1986
1. Introduction
In 1986, Marjorie Deeble workedasa real estate agent at the Los Alamitos
branch of Great Western Real Estate. At approximately 3:00 p.m. on the afternoon
of May 12th, Mrs. Deeble stopped by her manager's office to notify her that she
had an appointmentat 5:00 p.m. that day. (R.T. 1985.) She neverarrived at the
appointmentor appeared for work again. (R.T. 1986.)
2. The Scene of the Crime
On May 12", andfor the next three days, Mrs. Deeble’s daughter, Kathy
Valentine, left her a number of messages on her mother’s telephone answering
machine; none were returned. (R.T. 2074 — R.T. 2075.)
On May15, 1986,at approximately 6:00 p.m., the police arrived at Mrs.
Deeble's apartment at 3882 Green Street in Los Alamitos. (R.T. 1990.) They
found the screen door to the front entrance closed, but unlocked; the front door was
ajar approximately four inches. (R.T. 1990.) A window screen waslying against
the apartment, just below the window adjacentto the front door. (R.T. 1992; R.T.
1998; R.T. 2003.) Whenthe police entered the apartment, nothing out of ordinary
appeared in the living room,kitchen or southwest bedroom. In the southeast
bedroom, the police discovered Mrs. Deeble's body. The room had been
ransacked. Clothing had been thrown onthefloor, the contents of a purse were
strewn about, and dresser drawers were open. (R.T. 2009 — R.T. 2010.) A radio
was playing on the nightstand next to the bed. (R.T. 2018.) The police recalled
that a bedspreador a large piece of cardboard covered the bedroom window. (R.T.
2019.)
Mrs. Deeble was laying face downat the foot of the bed. Her body was
uncovered, except a nightgown was pushed up aroundher waist. (R.T. 2019 —
R.T. 2023.) Her hands were tied behind her back with cloth that had been ripped
or cut from the bottom of her nightgown; her hands were also bound with a length
of telephonecord. (R.T. 2054.) Although her ankles and legs were not bound,
there were abrasions on her ankle that could havebeen ligature marks. (R.T.
2070.) Her head was suspendedabouteight inches from the floor by a noose
around her neck. (R.T. 2045.) The noose was made from belt; the free end of
the belt wastied to a handle of a top drawerof a credenza. (R.T. 2011.) A can of
hair mousse was discovered on top of the bed amongst some covers. (R.T. 2014.)
A later examination of the can by a forensic expert revealed "wiping types of
marks" as if it were handled by someone whoattempted to wipe the can or was
wearing gloves. (R.T. 2327.)
3. The Forensic Evidence
On May15", twenty-three latent fingerprints were discovered at the murder
scene; four dayslater, another seven were taken from items that had been removed
by the police from the murder scene. (R.T. 2323 —R.T. 2324.) Fingerprints,
blood, and hair samples were taken from a number of potential suspects, including
Appellant. (R.T. 2076; R.T. 2029 — R.T. 2030; R.T. 2068.) All of the latent prints
were comparedto the known fingerprints of Appellant by a forensic expert. No
matches were found. (R.T. 2325.) There were also a numberoflatent fingerprints
that were discovered on the victim's vehicle that were found in the parking lot next
to her apartment; these were also compared to the Appellant's known fingerprints,
but no matches were made. (R.T. 2330 —R.T. 2332.) Noneofthe latent
fingerprints that were found could be dated. (R.T. 2037.)
Pubic and other body hair were found throughout the murder scene: on
sheets, pillows, the decedent's nightgown,the floor and in the shower. (R.T. 2063
—R.T. 2068.) Hair samples of Appellant and the victim were also compared to
these hairs found at the crime scene. Expert opinion established that the pubic hair
found in the victim's bed and in her bathroom were notconsistent with her own.
(R.T. 2792 —R.T. 2793.) None of the hair was Appellant's. (R.T. 2797 — R.T.
2799.)
Residue wasdiscovered aroundthe ridge of a small white cap discovered on
the floor of the southeast bedroom,as well as on the top of the hair mousse
canister. It appeared to the police that the cap mightfit the canister. (R.T. 2046 —
R.T. 2047.) Although presumptive tests for blood reachedpositively to these
residues, the presumptive tests that were used are not always accurate; substances
other than blood canreact positively. (R.T. 2061 — R.T. 2062.) The witness who
performedthetests testified that the residues may have beensentto the Serology
Laboratory for more definitive results, there is no evidence in the record to confirm
that such tests were ever performed or to otherwise establish that the residues were
indeed blood. (R.T. 2062 — R.T. 2063.)
A makeshift hood wasalso discoveredat the crime scene, which had been
pieced together with adhesivetape, a pillowcase, portions of a dress, and a scarf.
(R.T. 2048 R.T. 2051.) This makeshift hood also appeared to be blood stained.
(R.T. 2051.) The bed sheets and comforter were stained reddish brown and
yellow; other than a presumptive test that excluded urine, there is no evidence in
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the record that any attempt was made to determine the sourceofthese stains.
Finally, a stain was discovered on-the descendant's left thigh that could have been
semen; however,no further tests were performed. (R.T. 2070.)
Theresults of the autopsy were described by Dr. Richards Fukumoto;
however, although Dr. Fukumoto specialized in pathology, he did not perform the
autopsy himself. (R.T. 2122.) The autopsy revealed a ligature mark around the
victim's neck consistent with a side-to-side movement. (R.T. 2126.) Her right
eardrum wastorn; the left eardrum wasruptured and bleeding. (R.T. 2127.) These
injuries were consistent with pressure-damagecausedbythe victim's effort to take
a breath. (R.T. 2128.) The victim received a blow to the bridge of her nose. (R.T.
2130; R.T. 2142; R.T. 2173.) The pancreas was damaged,indicating the receipt of
a strong physical blow. (R.T. 2135 — R.T. 2136.) The labia, vaginal wall, and
rectum had shallow lacerations that were inflicted before death. (R.T. 2127; R.T.
2162.) These lacerations were not deep within the vaginal vault and rectum; they
werejust inside the openings. (R.T. 2155 — R.T. 2157.) In Dr. Fukumoto's
opinion, these injuries would have been "extremely painful” for the deceased:
(R.T. 2128; R.T. 2138.) Her face was engorged, indicating the presence of trauma
due to ligature strangulation. (R.T. 2130 —R.T. 2131; R.T. 2151.) Her left chin
waslacerated. Fluid inside her skull was bloody; this indicated that she received
blunt force trauma to her head. (R.T. 2133.) Dr. Fukumototestified that broken
neck bones and hemorrhaging in the muscle tissue are commonin cases of manual
strangulation; none were observed during the autopsy. On the other hand,ligature
strangulation can be achieved withoutsuch injuries. (R.T. 2134 — R.T. 2135.) The
cause of Mrs. Deeble's death was asphyxiation dueto ligature strangulation. (R.T.
2139.) During such strangulation, loss of consciousness occurs before death; a
victim can lose consciousnessin less than a minute. (R.T. 2153 —R.T. 2154.)
The defense called Dr. Paul Wolfe, a trauma pathologist at the University of
California at San Diego Hospital, as well as the Director of Autopsyat the
Veteran’s Administration Center in La Jolla. He was also a Clinical Professor of
Pathology at UCSD. (R.T. 2475.) Dr. Wolfe testified that x-rays did not confirm a
finding that Mrs. Deeble’s nose wasfractured. (R.T. 2478.) He also testified that
bleeding from the ear canal andtearing of the eardrum are characteristics of
ligature strangulation; they do not necessarily indicate the use of a sharp object to
inflict ear injuries. (R.T. 2479 — R.T. 2486.) Strangulation can cause an individual
to lose consciousness within 15 to 30 seconds. (R.T. 2481.) When consciousness
is lost, one does not feel any pain. (R.T. 2484 — R.T. 2485.) Ligature strangulation
does not necessarily produce extreme or prolonged pain, nor does hemorrhaging —
from the ears; indeed, bleeding from the ear canal could have occurred while Mrs.
Deeble was unconscious. (R.T. 2486.)
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In Dr. Wolfe's opinion, the injuries to the vagina and rectum were
"extremely minor" and consistent with consensual sex; (R.T. 2492 - 2495; R.T.
2514.) Dr. Wolfe opined that the microscopic amountof bleeding detected in the
vagina and rectum wasinsufficient to produce the unknownresidue found around
the ridge of the cap which mayhavefit to the canister of hair mousse. (R.T. 2496
—R.T. 2498.)
Dr. Wolfe noted major differences betweenthe injuries suffered by Mrs.
Deeble and Mrs. Delbecq, though neither of them felt any pain before they died.
(R.T. 2516 —R.T. 2517.) In contrast to the minor injuries to Mrs. Deeble’s
genitalia, Mrs. Delbecq had severe injuries to her vagina and rectum. Asa result
of those injuries, and the perforation of her vaginal cavity with a canister of hair
mousse, 100 milliliters of blood was found in her lower abdomen. Her neck was
broken. Her breasts were heavily abraded and contused. Strangulation of the two
victims wasby different modalities; Mrs. Delbecq was strangled manually, while
Mrs. Deeble died from ligature strangulation. (R.T. 2499; R.T. 2519.)
4. The Relationship Between Robert Edwards
and Mrs. Deeble at the Time of the Homicide
Kathy Valentine met Robert Edwards in March of 1986, when she offered
him a ride in her vehicle because he was on crutches. (R.T. 2087 — R.T. 2088.)
For the next two months, the couple saw each other every evening. To her
knowledge, Kathy Valentine only saw Robert Edwards underthe influence of an
1]
intoxicant on a single occasion during that time. (R.T. 2084 — R.T. 2085; R.T.
2100.)
In early May, Marjorie Deeble loaned Robert Edwardshertruck; he
damaged it, which upset Mrs. Deeble. However,she did notyell or curse at him as
a result of the accident. (R.T. 2110 —R.T. 2112.) She arranged for him to take the
damaged vehicle to a shop where she charged the ensuing repairs on hercredit
card. (R.T. 2075 — R.T. 2076; R.T. 2092 — R.T. 2093.) Mrs. Deeble's limited
interactions with Robert Edwards never impaired her daughter's relationship with
him. (R.T. 2093.) Indeed, Kathy Valentine did not know how her motherevenfelt
about him. (R.T. 2106 — R.T. 2107.)
Robert Edwards went to Mrs. Deeble's apartment on two occasions. On the
first occasion, Kathy Valentine introduced him. This wasthe only time he ever
saw the decedent. (R.T. 2106 — R.T. 2107; R.T. 2076 — R.T. 2077.) On the second
occasion, Mrs. Deeble was away on a trip. On this latter occasion, he spent the
night in the apartment with Kathy Valentine. (R.T. 2076 — R.T. 2077; R.T. 2093.)
Robert Edwards did not attend Mrs. Deeble's funeral; he explained to Kathy
Valentine that he had nothing to wear anddid not wantto see her upset. (R.T.
2079 — R.T. 2080.) He continued to date Kathy Valentine for another week after
her mother's death. (R.T. 2102.) According to Kathy Valentine, he was awarethat
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her motherkept a key to her apartment in a drainpipe in front of the apartment
building. (R.T. 2076.)
Kathy Valentine alleged that certain pieces of her mother’s jewelry were
missing after the murder. Those allegedly missing items were never recovered.
(R.T. 2081 —R.T. 2083.) Moreover, a ring that Mrs. Deeble was wearingat the
time of her murder wasnotstolen; its presence was noted during her autopsy.
(R.T. 2060 — R.T. 2061.)
C. The Uncharged Homicide of Muriel Delbecq in January
of 1993
1. Introduction
In 1993, Muriel Delbecq owned a one-bedroom condominium in Maui: Unit
105, 2050 Kanoe Street. (R.T. 2179.) Her usual morning activities included a one-
half mile swim at a beach four blocks away. (R.T. 2179 — R.T. 2180.)
At approximately 8:00 p.m. on January 25, 1993, her daughter, Peggy
Ventura, dropped her motheroff at the Kanoe Street condominium. (R.T. 2184.)
That wasthe last time Mrs. Delbecq was seen alive. At 7:20 a.m. the following
morning, Ms. Ventura telephoned her mother, but there was no answer. (R.T.
2185.) She drove to the condominium and knocked on the front door, which was
locked. There was no response. She opened thefront doorwith a key that she had
and saw blood onthe carpet. (RT. 2186 —R.T. 2187.) As Ms. Ventura ran
through the condominium calling her mother's name, she noticed that the living
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room telephone wasgone. (R.T. 2189.) Whenshe couldn't get into her mother's
bedroom through the door, she went outside. She took the screen off her mother's
bedroom window;it was more damaged than she remembered. (R.T. 2193 —R.T.
2194.) She removed the windowitself. (R.T. 2192.) Her mother's comforter was
over the window andthe bedroom light did not work. In the darkness, Ms..
Ventura called out her mother's name. She removeda pile of blankets on the bed
and discovered her mother underneath, lying on her back, completely naked. (R.T.
2193.) Her mother's wedding ring, which she always wore, had been removed.
(R.T. 2196.)
2. The Sceneof the Crime
Mrs. Delbecq’s bedroom was ransacked. (R.T. 2208.) Various household
articles, including a telephone cord, were found in a pillowcase abandoned in a
dumpster a short distance downthe street. (R.T. 2224; R.T. 2207; R.T. 2227 —
R.T. 2230.) The pillowcase also contained cut up pieces of clothing. (R.T. 2224.)
The pillowcase had the samepattern as the sheets on Mrs. Delbecq's bed. (R.T.
2210; R.T. 2213.) Mrs. Delbecq’s hands were not bound, although ligature marks
were on her wrists and ankles. (R.T. 2235; R.T. 2219.) Pieces of dried grass were
discovered on the bedroom floor below the windowsill of the bedroom in which
Mrs. Delbecq was discovered. (R:T. 2239.)
3. Forensic Evidence
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A white colored T-shirt with Appellant’s bloody footprint was found in the
bedroom. (R.T. 2217 —R.T. 2218; R.T. 2257.) An expert testified that his palm
print was found on the bedroom wall. (R.T. 2216; R.T. 2255 —R.T. 2256; R.T.
2243 —R.T. 2244.)
The victim's head, neck, and right ear were bruised. Her nose wasfractured and
her jaw was abraded. (R.T. 2298.) These head wounds were causedby blunt force
trauma. A sharpenedor pointed object scraped the skin of her neck in a horizontal
direction, as well as her breast. (R.T. 2294.) The entrance to the vaginal cavity
wasbruised. There were twoperforations of the vaginal wall. One was in the
rectal area, approximately two inchesinto the cavity. The other was in the
abdomen and wasapproximately three-to-four inchesinto the cavity. It was in this
latter perforation that the metal canister of hair mousse was discovered. (R.T.
2295; R.T. 2301 — R.T. 2302.) In the opinion of the physician who performed the
autopsy, hemorrhaging around the musculature of the anal and vaginal area
indicated that Mrs. Delbecq wasalive at the time the injuries to those areas were
inflicted. (R.T. 2296 —R.T. 2297.) The hyoid bone in her neck was fractured:
(R.T. 2296.) The most probable cause of death was asphyxia. (R.T. 2298.)
4, The Absence of a Relationship Between
Appellant and Mrs. Delbecq at the Time of
the Homicide:
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Ms.Ventura had never heard of Mr. Edwards before her mother's death.
(R.T. 2204.) At the time of the murder, Appellant lived in Maui at 2134 South
Kihei Road with his girlfriend, Janis Hunt, and her daughter. (R.T. 2297.) A few
days after the murder, the police searched Robert Edward's apartment. No physical
evidence wasdiscovered that linked him to the murder.
D. The Defense Case
1. The Robert Edwards’ Abusive Childhood and
Early Addiction
Robert Edwards’ father was a vicious alcoholic. He began beating him when
he was six months old. (R.T. 2528 — R.T. 2531.) His father believed that he might
not be his child. (R.T. 2529.) As Robert Edwards grew up, his father beat him
almost daily. His father referred to Appellant and his brother as "Shit for Brains #1
and #2,” or “SFB #1 and #2" for short. (R.T. 2530 — R.T. 2533.) While they were
growing up, they watchedtheir father beat their mother, who also abused
prescription drugs and alcohol. (R.T. 2530 — R.T. 2531; R.T. 2536; R.T. 2529.)
Robert Edwards began experimenting with illegal narcotics when he was 11
or 12 years old. Heavy abuse of alcohol followed abouta year later. (R.T. 2549 —
R.T. 2550.) From 11 to 14 years of age, he experimented with virtually every
illegal narcotic, including marijuana, hashish, LSD, cocaine and heroin. By 14
years of age, he wasinjecting narcotics. (R.T. 2548 — R.T. 2552.) During his
teenage years, his drug and alcohol abuse steadily increased. (R.T. 2555 — R.T.
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2556.) He dropped outof school in eighth grade and worked odd jobs to support
his habit of substance abuse. (R.T. 2559.) Hisfirst alcoholic blackout was when
he was 16 years old. He waspartying with friends; the next day he awoke and
found himself at another house with no idea how he got there. (R.T. 2565.) These
blackouts occurred periodically thereafter. (R.T. 2556 — R.T. 2569.)
In December of 1985, Robert Edwards wasinvolvedin a serious motorcycle
accident and injured his leg. Surgery was required. In Mayof 1986, he had a
second surgery to removethe surgical staples that had been placed in the bone. He
wason crutches for months afterward. He hadvery little mobility in his right leg
and could barely bend it. He could not run at the time of Mrs. Deeble’s murder.
Robert Edwards could not put any weight on his right leg and could only hop on
one leg, if he had to move quickly. (R.T. 2572 — R.T. 2576.)
2. The Deeble Murder
While Robert Edwards was dating Kathy Valentine, he continued to abuse
drugsandalcohol, but tried to conceal his habit from her. (R.T. 2589 ~ R.T. 2590.)
Hetestified that he did not feel anyill will toward Marjorie Deeble. (R.T. 2582.)
He was unawarethat she had a keyto her househiddenoutside. (R.T. 2588.)
On the evening of May 12, 1986, he and his brother went to a JudasPriest
rock concert in Los Angelesto sell counterfeit LSD. (R.T. 2596 — R.T. 2597.)
They left the concert around 11 p.m. and returned to Long Beach. There, they
17
purchased some drugs and went home. Throughout the evening, he consumed
alcohol; he didn't remember very muchof that evening. When he arrived homeat
approximately 11:30 p.m., he injected heroin and cocaine and consumed more
alcohol. When he wokeup the next morning at home,he didn't recall anything
unusual. (R.T. 2598 — R.T. 2604.) He did not learn of Mrs. Deeble's death until
the police informed Kathy Valentine of the murder. (R.T. 2592.) After Kathy
Valentine was advised of her mother's death, Robert Edwards and Ms. Valentine
drove to the Los Alamitos Police Station. (R.T. 2592 —R.T. 2595.) He told the
jury that he did not kill Marjorie Deeble. (R.T. 2604.)
3. The Delbecq Murder
In 1993, Appellant lived with Janis Huntat 2135 South Kihei Road,
Apartment 210, in Maui. He met Ms. Hunt in September; by Decemberhe had
moved in with her and her 12-year-old daughter. (R.T. 2635 — R.T. 2637.) During
his relationship with Ms. Hunt, Appellant drank on an almostdaily basis and
abused narcotics. When he drank heavily, he would consume between 12 and 24
cans of beer and upto a fifth of hard liquor. (R.T. 2637 —R.T. 2638.) Appellant's
substance abuse increased in Decemberof 1992, when helearnedofhis father's
death in an airplane crash. (R.T. 2639.)
On one occasion, after a heavy night of drinking, Ms. Hunthad to help
Appellantfind his truck because he couldn't remember where he parkedit. On
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another occasion, Robert Edwards forgot that he had groceries in his car after he
had been drinking. (R.T. 2640 —R.T. 2646.)
On January 25, 1993, Robert Edwardslearned that his dog had beenkilled
on Kihei Road. He was upset and cried as he cradled his dog. He dipped his
fingers in his dog's blood and broughtthem closeto his face. (R.T. 2674.) When
they buried the dog later that evening, he wasstill upset and crying. Although
Robert Edwards did not appear inebriated to Ms. Hunt, they had been drinkingall
day. (R.T. 2672 —R.T. 2673.) Between 8:00 p.m. and 11:00 p.m. that evening, he
went to David Long's house andinjected cocaine fourto five times. (R.T. 2678 —
R.T. 2680; R.T. 2686.) When he left Mr. Long's house, he was babbling
incoherently and was moreintoxicated than Mr. Long had ever seen him. (R.T.
2680 — R.T. 2681; R.T. 2685.)
Ms. Hunt and her daughter went to bed around 11:30 p.m.; Robert Edwards
still had not yet returned to the apartment. When she sawhim laterthat night,
there was nothing unusual about his appearance, other than he appearedto be tired
and very distraught about his dog. (R.T. 2663 — R.T. 2664.) The next mornin,
Ms.Hunt learned of Mrs. Delbecq's murder from a neighbor. Whenshe told him
aboutit, his demeanordid not change; he simply replied, "Wow,no way.” (R.T.
2666 — R.T. 2667.)
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2ernteead rmanMAGICAL ce eA Neen =ok = gt Mtg eR Ck te tikheeRRRRRRRet mkt ete nl sieve man tntntie LeTaIE EREADIORMLABSAGHnOREE MEE ERE eR
During cross-examination, Robert Edwards was impeached with three felony
convictions: On March 10, 1994, he was convicted in Hawaii of the murder of
Muriel Delbecq and the burglary of her home. Ten years earlier, he had also been
convicted of Second-Degree Burglary in California. (R.T. 2616.)
| 4, Expert Testimony about Blackouts
Dr. Alex Stalcup testified as a defense expert in the field of addictive
medicine. (R.T. 2378 — R.T. 2380.) Twenty percent of individuals who
experimentwith drugs or alcohol will becomeaddicted. (R.T. 2386.) A numberof
predictive factors are found in this population. Individuals with a low amount of
endorphinsin their brains are predisposed to substance abuse. This condition is
called "chronic dysphoria." (R.T. 2386; R.T. 2406 — R.T. 2310.) An abused
childhood is the second most prevalent risk factor, only exceeded by genetics.
(R.T. 2416.) Thirdly, an early exposureto illegal narcotics also contributes to
addiction as well as an early, positive experience from drugsor alcohol. (R.T.
2387 — R.T. 2388.) Finally, an enabling environmentcontributes to addiction such
as the absence of discouraging influences and parents teaching that drugs and ©
alcohol are bad. (R.T. 2389.) Amongthe signs of addiction include the loss of
control and continued use, despite adverse consequences. (R.T. 2390.)
The multi-generational alcohol and drug abuse in Appellant's family are
consistent with genetic predisposition. (R.T. 2412 —R.T. 2414.) In the opinion of
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Dr. Stalcup,the risk factors for addiction for an individual who beganusing drugs
when he waseight years old, progressed to injecting amphetaminesbythe age of
14, and whothen began injecting cocaine and heroin were "as badasit could be."
(R.T. 2420; R.T. 2429; R.T. 2431 — R.T. 2432.) Such progression demonstrates
that an individual can't stand sobriety; it is too painful. (R.T. 2429.)
Dr. Stalcup opined thatit is very difficult to predict the onset of a
"“blackout;" it depends on tolerance and the amountof alcohol consumed. (R.T.
2383; R.T. 2413 —R.T. 2414.) A tolerant individual who consumes enough
alcohol to produce a level of intoxication over three times the legal limit in
California can look completely normal. (R.T. 2415.) Generally, as the
consumption of alcohol increases, judgment and coordination become
progressively impaired. (R.T. 2450 — R.T. 2453.)
If Appellant consumedalcohol and cocaine on May 12, 1986, the cocaine
would have reduced his clumsiness produced by alcohol, as well as the appearance
of intoxication. According to Dr. Stalcup, the combination of alcohol and cocaine
would have madeit "far, far, far more likely (for Appellant) to go into an alcoholic
blackout." (R.T. 2423.)
I. THE FIRST PENALTY PHASE
2]
aEMIRINBEINSOERRcaRO apa hancemaPy aie thalfasak SemaEa
Thefirst penalty phase began on November4, 1996. (R.T. 3205.) Evidence
was presented over four days. (R.T. 3229 —R.T. 3941.) The jury heard arguments
of counsel on November 18, 1996. (R.T. 4008 — R.T. 4173.)
On November 19, 1996,the jury received instructions, including the so-
called "lingering doubt,” charge and beganits deliberations. (R.T. 4180 - R.T.
4200.)
On November26, 1996, the court found that the jury was hopelessly
deadlocked and declared a mistrial. (R.T. 4268 — R.T. 4270.)
I. THE SECOND PENALTY PHASE
A. The Prosecution’s Case-in-Chief
The second penalty phase began on March 16, 1998. The jury for the penalty
re-trial heard virtually all of the evidence that was presented during the guilt phase.
(R.T. 5125 — R.T. 5203; R.T. 5297 — R.T. 5357.) The prosecution introduced
extensive victim impact testimony from the daughter and older sister of Marjorie
Deeble. They testified about her personal characteristics, their emotional reaction
to her murder, andtheir feelings about the way she waskilled. (R.T. 5204 — R.T.
5208; R.T. 5216 —R.T. 5260.) As further evidence in aggravation, Appellant's
former girlfriend, Naomi Lindeman,testified that in 1990 he made unwanted
sexual advances and attemptedto insert a bottle into her vagina and rectum. (R.T.
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5209 — R.T. 5215.) Evidence was also introduced that on July 8, 1997, Appellant
and another inmate were observed sharpening a "shank"at the Orange County
Central Jail. (R.T. 5262 — R.T. 5286.)
B. The Defense Case
Robert Edwardstestified about the events and substance abusethat led up to
the homicides just as he had during the guilt phase, with one notable exception.
While at the guilt phase he denied committing the murders,in the retried penalty
phase he explained that since his conviction he had reflected and cometo the
conclusion that he had committed both crimes. (R.T. 5519.) He also explained
that in the summer of 1997, racial tensions at the Orange County Jail were high
and that he wasafraid for his life. He planned to use the shank onlyif his life were
threatened. (R.T. 5380 — R.T. 5386.)
Evidence waspresented that none ofthe latent fingerprints or pubic hair
found at the Deeble crime scene matched those of Appellant; his testimony
regarding his whereabouts on the night of the Deeble homicide was also
corroborated by proof that there was a Judas Priest rock concert in Los Angeles
that evening. (R.T. 5534 — R.T. 5535; R.T. 5598 — R.T. 5621; R.T. 5883 — R.T.
5902.) Witnessestestified that on the evening before the Delbecq murder, Robert
Edwards became extremely intoxicated from heavy drinking and cocaine injections
23
after he learned that his dog had died. (R.T. 5973 — R.T. 5978; R.T. 5985 — R.T.
5989.)
The victim's son, Scott Deeble, testified that he felt compassion for Robert
Edwards. (R.T. 5658.) Over twenty witnesses who knew Robert Edwards in and
out of custody in Hawaii testified about the help that he had given to them to
recover from drug and alcohol addiction. (R.T. 5849 — R.T. 5852; R.T. 5911 —
R.T. 5923; R.T. 5938; R.T. 5781 — R.T. 5796; R.T. 5847 — R.T. 5852; R.T. 5660 —
R.T. 5665; R.T. 5745 — R.T 5755; R.T. 6041 — R.T 6042; R.T. 6069 — R.T. 6071.)
Craig Furtado and William Farmer, who employed Robert Edwards in
Hawaii,testified that when sober, he was a loyal and hardworking man; when
intoxicated, he was a completely different person. (R.T. 5832 — R.T. 5836; R.T.
5944 —R.T. 5948.) A religious counselor at the Maui Community Correctional
Centertestified that when he discussed his crimes with her, he would cry and
acknowledge that he never should be released from jail; they prayed for the
families of the victims. (R.T. 5771.) Guards and a teacher at the Maui Community
Correctional Centertestified that Appellant was a "model prisoner." (R.T. 6007 —
R.T 6010.) In 1993, he had an opportunity to escape, but chose not to do so
because, as he explained later, "(he) wanted to do his time." (R.T. 5798 — R.T
5806; R.T. 5813 — R.T. 5815.) A guard at the Orange County Jail likewise
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described Robert Edwards’ strict adherenceto the rules of that institution. (R.T.
5820 —R.T. 5823.)
Numerous family membersrecountedits history of substance abuse and the
daily physical and emotional abuse of Robert Edwardsbyhis father. (R.T. 5667 —
RT. 5718; R.T. 6086 — R.T. 6091; R.T. 6097 — R.T 6101.) This abuse included
forcing him to rub his own excrementall over his chest and eat food befouled by
animalhairs as punishment. (R.T. 5681; R.T. 5684.) It included beating so violent
that they turned his lips “to hamburger.” (R.T. 6099 — R.T. 6100.) Dr. Alexander
Stalcup repeated his expert testimony that he gaveat the guilt phase about the
predictive factors of substance abuse that were present in Robert Edwards’
background. Healso described the effects of a “blackout”dueto intoxication.
(R.T. 5536 — R.T. 5583; R.T. 6015 — R.T. 6020.)
Several witnesses testified about the close relationship between Robert
Edwards and his son Robby whowas13 years old at the time of the second penalty
phase. Since Appellant's incarceration, he and his son corresponded regularly; he
took an active role in helping his son make decisions abouthis life. (R.T. 5720 —
R.T. 5742; R.T. 6074 — R.T. 6076; R.T. 6082 — R.T. 6083; R.T. 6118.) A child
psychologist, Dr. Roberta Falke, testified that Robert Edwards and his son had a
very strong, positive relationship: He had "unflagging devotion towards his son."
(R.T. 6173 — R.T. 6174.) Robby Edwards overcame academic problemsthanks,in
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part, to his interest and encouragement, (R.T. 6144 — R.T. 6142.) During her
conversations with Appellant, he expressed concern overhis son's health and low-
self esteem; he was open to suggestions about how to improvehisrelationship with
his son. (R.T. 6162 — R.T. 6165.) Dr. Falke concludedthat it would be important
and essential for the father/son relationship to continue. (R.T. 6175.) Robby
Edwards' therapist, Dr. Kara Cross,testified that Appellant's relationship wasthe
"bedrock"of his son's emotional stability. It was vital for it to continue. (R.T.
6236; R.T. 6238.)
C. Rebuttal Case
Although he wasnotcalled as a witnessat the first penalty phase
proceedings, the prosecution called a forensic psychiatrist, Dr. Park Deitz, to
testify about alcoholic blackouts. According to Dr. Deitz, a "blackout" simply
meansthat short-term memory has notbeen recorded in long-term memory. Even
if Appellant could not recall the murders because of a blackout, that did not
exclude a finding that he was behavingintentionally and voluntarily at the time of
their commission. Dr. Dietz noted that Appellant was not too intoxicated to
engage in a very orderly sequence of complicated behaviors, such as gaining
access to the victims' homes and subduing them;in his opinion, Appellant was not
in a "blackout"at the time of the murders. (R.T. 3638 —R.T. 3645.)
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ARGUMENT — GUILT PHASE ISSUES
I. THE TRIAL COURT’S HANDLING OF THE VOIR DIRE
VIOLATED CALIFORNIA LAW AND DENIED ROBERT
EDWARDSHIS FEDERAL CONSTITUTIONAL RIGHTS TO
EQUAL PROTECTION OF THE LAW,A FAIR TRIAL
BEFORE AN IMPARTIAL JURY, AND A RELIABLE
DETERMINATION OF GUILT AND OF THE PENALTY
A. Introduction |
Appellant’s constitutional rights were violated when the prosecution
improperly used a preemptory challengeto strike one of the few African-American
jurors on the entire panel. (R.T. 1807 — R.T. 1808.)
Maxine Garcia Mickens (Juror No. 161915201) was a 46 yearold,
unmarried pharmacy technician. She was a member of Neighborhood Watch, a
crime prevention group. (C.T. 3768.) She was in the Naval Reservesas an
intelligence specialist. She had served on a jury which reached a verdict in a
prosecution for car theft, but had no other acquaintance with the criminaljustice
system. She stated under oath that she was ready to vote for a death verdict, if the
allegations against Appellant were proved beyond a reasonable doubt. (R.T. -
3775.)
The prosecutor asked Ms. Mickensa single question on voir dire, based on a
fragmentof her response to Question 36 on the Questionnaire, which asked her
“What are your GENERAL FEELINGSregarding the death penalty?” She was
asked if she had resolved her “personal” thoughts of “whether society should or
27
should not have the death penalty.” She replied, “not really.”” However, the
entirety of Ms. Mickens’ response to Question 36 read as follows:
“T’ve thought aboutit on a personal level without
coming to a conclusion as to whether society should or
should not have the death penalty. As the law now
states, we have it so therefore I am prepared to obey
the law of the land. On personallevel, I will
continue to ponder.’”
(C.T. 3773; emphasis supplied.)
By any objective standard, Ms. Mickens wasa respectable andsolid citizen
who would ordinarily be welcomed by any prosecutor on any jury. Nevertheless,
for reasonsthat it was never required to reveal, the prosecution excludedthe only
African-American woman on the panel by using a peremptory challenge to excuse
her from service. (R.T. 1806.)
The prosecutor violated Appellant’s state and federal constitutional rights by
exercising a peremptory challenge to this African-American prospective juror.
Appellant objected to the challenge pursuant to (People v. Wheeler (1979) 22
Cal.3d 258, overruled in part, Johnson v. California (2005) 545 U.S. 162.) (R.T.
1807.)
The court summarily denied the defense motion without any additional
inquiry into the prosecution’s motivation for his challenge. Nonetheless, the court
noted that when it read Ms. Mickens answersto her questionnaire, it recognized
that “we were going to have a Wheeler issue.” (R.T. 1810.) However, the court
28
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ruled that Appellant had not shown a primafacie case that Mrs. Mickens was
excluded becauseof her race. (R.T. 1810 —R.T. 1811.) The finding that Appellant
did not make a prima facie showing that the African-American juror named above
waschallenged onthe basis of group association was erroneous. Since the
prosecution wasnot ordered to show genuine, non-discriminatory reasonsfor the
challenge, a reversal is required. (See, People v. Fuentes (1991) 54 Cal.3d 707;
People v. Wheeler, supra, 22 Cal.3d 258, 280 - 281.)
B. The Trial Court Erred in Finding Appellant Did Not
MakeOut a Prima Facie Case
1. Appellant Has Not Waived his Federal Claims
Appellant did not explicitly invoke Batson v. Kentucky (1986) 476 U.S. 79,
overruled in part, Powers v. Ohio (1991) 499 U.S. 400, when he objectedto the
prosecution’s peremptory challenge. This does not waive Appellant’s equal
protection claim under Batson. This court hasheld that a state challenge under
Wheeler also preserves the federal claim under Batson vs. Kentucky. In People vs.
Yeoman (2003) 31 Cal.4" 93, 118, cert. denied, (2004) 541 U.S. 991, this court
stated that it would consider federal constitutional claims under Batson, although
an objection was only made under Wheeler, because the two cases presented
“identical factual issues before the court.” Indeed, in this case, the trial court
referenced the Batson decision during its discussion of Appellant’s challenge.
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(R.T. 1809.) Accordingly, this court must considerall of Appellant’s federal
constitutional claims.
2. Standard of Review
Batson set forth a three-step process to determine whether a peremptory
challenge is race-based in violation of the Constitution. First, the defendant must
make a prima facie showingthat the prosecution has exercised a peremptory
challenge on the basis of race. (Batson v. Kentucky, supra, 476 U.S. at 96 - 97.)
This showingis satisfied if all the facts and circumstancesof the case “raise an
inference”that the prosecution has excluded venire membersfrom thepetit jury on
account of their race. (Ibid. at 96.) If a defendant makes a primafacie showing,
the burden then shifts to the prosecution to provide a race-neutral explanation for
its challenge. (Ibid. at 97.) The trial court then has the duty to determine whether
the defendanthas established purposeful racial discrimination by the prosecution.
(Ibid. at 98.)
Acknowledging that the moving party will usually be without any direct
evidence of discrimination at the prima facie stage, the Supreme Court has
repeatedly emphasized that a prima facie burdenis low, describing it as “minimal.”
(St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 506.) This minimal
burdenis in response to the Court’s recognition that “there can be no dispute, the
peremptory challenges constitute a jury selection practice that permits “those to
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discriminate who are of a mindto discriminate.’” (Batson v. Kentucky, supra, 476
U.S. 79, 96; citation omitted.) The burden of production at Step 1 does notentail
an evaluation of the prosecution’s credibility but only a determination of whether
the facts support a reasonable inference of the improperuseof the strike. (Batson
v. Kentucky, supra, 476 U.S.at 96 - 97.) In the case of Johnson v. California,
(2005) 545 U.S. 162, the Supreme Court held that California’s “more likely than
not” standard is an inappropriate yardstick with which to measure the sufficiency
of a primafacie case. Instead, a defendantsatisfies the requirement of Batson’s
first step by merely producing evidence sufficient to permit the trial judge to draw
an inference that discrimination has occurred. Becauseofa right to a jury
presenting a “cross-section” of a community is so important, courts reviewing
whethera prima facie case has been made under Wheeler/Batson should “err on
the side of the defendant’s right to a fair and impartial jury.” (United States v.
Chinchilla (9" Cir. 1989) 874 F.2d 695, 697.)
Appellant need not demonstrate that more than one peremptory challenge
against a cognizable group was motivated by groupbias. If a single peremptory
challenge of a prospective juror in the subject cognizable groupis notjustified, the
Supreme Court intended that the jury panel must be discharged. (People vs.
Gonzalez (1989) 211 Cal.App.3d 1186,1193.) Thus, Appellant need only persuade
the court that at least one of the prosecution’s peremptory challenges was not
31
SpeennNRENNAInt on GEA ARRNCEEDRRINICYRORgems Ge ge ReMB
justified. Considered together, the considerations set forth above establish an
“inference” of discrimination required by Batson.
3. Appellant Established a Prima Facie Case
Underthe controlling precedent ofJohnson v. California, supra, thetrial
court was required to demand an explanation from the prosecutor about his
inexplicable decision to exclude one of the few available African-American jurors
from service.
First, African-Americans are a cognizable group for Wheeler/Batson
purposes. (Batson v. Kentucky, supra.) By striking Ms. Mickens, the prosecutor
excluded one ofthe few eligible black venire panelists.* Compare, Miller-Elv.
Dretke (2005) 545 U.S. 231 (where a high percentage of exclusions of a protected
group was found to be an indication of prosecutor discrimination.)
Second, the prosecution exercised a peremptory challenge, notwithstanding
the fact that Ms. Micken’s answersstrongly favored the prosecution. She had
previously served on trial jury in a criminal case. A verdict had been reached.
She was a member of Neighborhood Watch. She expressed no hesitancy voting
for death in the appropriate case. (R.T. 1804; C.T. 3764 — C.T. 3776.)
Finally, the Miller-El decision noted thatin light of the black juror’s
“outspoken support for the death penalty, it would be reasonable to expectthat the
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prosecutor would have asked further questions to resolve any doubts he had about
his willingness to imposeit before getting to the point of exercising a strike, if such
doubts were truly his motivation. (/d.)” Here, too, Mrs. Micken’s willingness to
impose the death penalty was unequivocal. Although “on a personallevel’ she
- continued to wonder whether society should retain it, she emphasized that she was
ready to follow the law of the land. Nevertheless, the prosecutor only asked a
single question about whethershe had resolved her personal thoughts about the
retention of the penalty. He received a non-committal answerand neverfollowed
it up; he simply excused her. The recordis also replete with extensive inquiries by
the prosecution of non-black jurors regarding their attitudes towards the death
penalty before it exercised peremptory challenges. For example, before the
prosecution excused Mrs. Mittle-Reeder (R.T. 1543), it questioned her about
whether her history of substance abuse would prevent her from imposing the death
penalty upon someoneelse who used drugs, whether she would openly consider
evidence from both sides regarding the death penalty, whether she was comfortable
evaluating evidence “on the issue of penalty” and whether she was prepared is
reject that evidence.’ (R.T 1379; R.T. 1402 — R.T. 1403.) Under Miller-El, the
comparatively half-hearted inquiry into a black juror’s attitude towards the death
,
° Although the record does not disclose the racial composition of the jury that was eventually empanelled or the
exact number of minority venire panelists,it is evident that the number of potential minority jurors was very small;
the trial court only counted a mere four with certainty. (R.T. 1807 — R.T. 1808.)
33
eespttthey
penalty is powerful circumstantial evidence that the challenge was exercised upon
a prohibited race basis.
A comparison of this record to post-Batson precedent compela conclusion
that the trial court erred whenit ruled that the defense failed raise the mere
inference of race based challenge that required the prosecution to give a
“reasonably specific explanation”for its decision to peremptorily exclude Ms.
Mickens from service. Morse vy. Hanks (7 Cir.) 172 F.3d 983, 985, cert. denied,
528 U.S. 851 (1999), (the prosecutor’s decision to strike the only black venire man
on the panel after a perfunctory voir dire satisfies the prima facie burden under
Batson3 compare, People vs. Griffin (2004) 33 Cal.4" 536, 556, wherethe
California Supreme Court held that the defendantfailed to establish a prima facie
case for purposeful discrimination becausethe record disclosed grounds upon
which the prosecution properly might have made a peremptory challenge: the
juror had a substantial acquaintance with a person engaged in criminal activity, he
viewed the administration of the death penalty as random,and he wasasleep
during mostof the voir dire.)
In light of the facts available to the trial court, “an inference of
discrimination” was established and it had “a duty to determineif the defendant
r
3 Although Mrs. Mittle-Reeder’s race is not expressly identified in the record,it is reasonable to assumethat she is
not black since her challenge by the prosecutor was never discussed during the Wheeler motion that was made five
daysearlier.
34
had established purposeful discrimination.” (Batson v. Kentucky, supra, 476 U.S.
79, 98.) Appellant raised an inference that the prosecution had excluded Ms.
Micken’s on accountof race and the burden should haveshifted to the prosecution
to articulate a race-neutral explanation of the peremptory challenge in question.
The trial court’s failure to find that Appellant established a prima facie case of
discrimination with respect to the challenge violated Batson and Wheeler.
The discrimination of the selection of Appellant’s jury violated his right to
equal protection under the Fourteenth Amendmentof the United States
Constitution and his right to a representative cross-section of the community under
the Sixth Amendmentand Article 1, Section 16 of the California Constitution and
U.S. Const. Amend. XIV. (Batson v. Kentucky (1986) 476 U.S. 79.) In addition
to being a violation of the Equal Protection Clause of the Fourteenth Amendment,
the discrimination in jury selection violated Appellant’s right to a fundamentally
fair and reliable capital trial under the Eighth Amendmentand the Due Process
Clause of the Fourteenth Amendment. To the extent that the error wasoneofstate,
but not federal law,it violated Appellant’s right to due process by depriving him of
a state-created liberty interest. (Hicks v. Oklahoma, (1980) 447 U.S. 343.) “The
exclusion of even a single juror based onrace is unconstitutional and requires
reversal.” (People v. Jackson (1996) 13 Cal.4" 1 164, 1254 (Most, J., concurring);
People v. Silva (2001) 25 Cal.4" 345, 386.)
35
After the passage of overten years, it is impractical to remandthe case to
allow the prosecutor to attempt to articulate a reason-neutral explanation for the
challenge. Appellant acknowledgesthat there is conflicting authority regarding the
appropriateness of a remand whena trial judge erroneously finds no prima facie
case of group bias. There several decisions authorizing a limited remand for
purposesof a further hearing on the validity of the prosecutor's peremptory
challenges (People v. Gore (1993) 18 Cal.App.4" 692, 705 — 707, and People v.
Williams (2000) 78 Cal.App.4" 1118, 1125), and several other decisions finding a
remandinappropriate due to the passage of time. (People vs. Snow (1987) 44
Cal.3d 216, 226 — 227; People v. Allen (2004) 115 Cal.App.4" 542, 553.)
The principle distinguishing feature among these cases appears to be the
speed with which the cases were resolved on appeal. In Gore, the case wastried in
1992, and the Court of Appeal’s decision wasfiled in 1993. In Williams, the case
wastried in 1999, and the Court of Appealfiled its decision in 2000. These cases
were remanded. The other cases involved muchlonger delays betweentrial and
resolution of the appeal, three years (People v. Allen) and six years (People v.
Snow), respectively. These cases were not remanded. Appellantasserts that a
remand would be inappropriate in this case, given that the jury selection occurred
in 1996, ten years ago. Therefore; reversal of Appellant’s convictions and
judgmentof death is required.
36
r
e
o
Ii. THE COURT IMPROPERLY DENIED APPELLANT’S
MOTION TO DISMISS THE PANEL THAT HAD BEEN
IRREPARABLY PREJUDICED BY A PRISON GUARD’S
REMARKS ABOUT THE DANGER THAT INMATESPOSE IN
PRISON
A. Introduction
Duringthetrial court’s voir dire of Randy Berthoud, the prospective juror
wasasked “Can you be an objective juror in this type of case?” (R.T. 1699, Line
24.) Mr. Berthoud gave a lengthy narrative reply about his thoughts and
experiencesas a prison guard; the narrative ended with the following comment to
the court and to the entire jury panel:
“T deal with all these people, and I know whatit is
like whenthey are locked up and howto deal with
it, and they arestill — they are still hard to deal with
if they just have life, you know, becausethey are
still affecting people. Theyare still — they — there
are still victims inside correctional institutions and
things like that in prisons. But I see there are some
people that can be in for life and they are fine, you
know. It is hard because I have to deal with it. The
thing we just had. a few weeks ago someonein for
25 to life that beat one of us officers to death.”
(R.T. 1700.)
Instead of cutting the juror off, the court pursued the matter by asking
whether the murder was“inside the CYA?” Mr.Berthoud expanded uponhis
remarks aboutthe danger of incarcerating someoneforlife:
37
“Yeah, out there in Chino. So that is hard to deal
with because I think that gentleman, young man,he
is 24, 25, he just beat someone, okay? But he beat
someoneto death. So there is another victim he
created while he wasin.
* * *
If the jury finds the defendantguilty or not guilty,if
he is found guilty, then it would be hard not to go
for the death penalty, very hard, because again J see
the people that are locked up. I deal with hundreds
of them that are in for life, and I know whatit is like
in there. And I knowthatit is a lot easier than these
people know what — you know,itis not as bad as
whatthese people thinkitis.”
(R.T. 1700 - R.T. 1701.)
At the end ofthe voir dire, the defense reserved its challenge for cause.
(R.T. 1708, Line 14.) A few momentslater at sidebar, the defense challenged Mr.
Berthoud for cause and movedto dismiss the entire jury panel as irreparably
tainted by his remarks regarding the dangerthat inmates imprisoned forlife posed
to prison guards. (R.T. 1711, Line 12 —- R.T. 1716, Line 8.) The defense voicedits
concern that continued voir dire of the prospective jurors would bring attention.to
the inflammatory remarks. The court agreedthat it was “a big concern.” (R.T.
1715, Lines 19 - 25.) The court granted the challenge to excuse Mr. Berthoud for
cause, but denied the motion to excuse the panel. (R.T. 1716, Lines 9 - 26.) In so
ruling, the court inaccurately observedthat it cut Mr. Berthoud’s remarks off
before there wasirreparable prejudice. It also pointed out to counsel that Mr.
38
Berthoud’s remarkspertained to his experience in the California Youth Authority,
which wasnot relevant to the Edwardscase:
“I am more concernedwith his attitude towards
inmates, and that may befor or against you; I don’t
know. That is what I am concerned with. And I
shut him off on purpose because I thought he was
getting into an area that was not appropriate. And I
don’t want to say any more on therecord.”
(R.T. 1714, Lines 2 - 7.)
First of all, you have no basis upon which to base
your conclusion that anybody has beentainted or
even that anybody understood. I knew where he
was going, and I shut him off. And then I told him
that we are not talking about C.Y.A. Wearetalking
about other places. And that would be a quantum
leap for jurors to think that prison is like C.Y.A.
Now,it is, but they don’t know that. They would
assumethat C.Y.A.is for the kids, and thatstate
prison is for the bad guys, and there is harsher
treatmentin prison, I think your conclusion is
wrong.”
(R.T. 1715, Lines 7 - 18.)
That afternoon, the following admonition wasdelivered to the panel:
“The Court This morning you mayrecall hearing a prospective juror,
Mr. Berthoud, who wassitting in Seat No. 3 — one, two,
three, on top of where Mrs. Kulp is now seated. You
may have heard that gentleman express someofhis
opinions and experiencesas a counselorat the California
Youth Authority. The custodian facility for minors are
far different than those for adults. Mr. Berthoud has no
39
experience as a custodial officer in the adult state prison
system or with adult life without possibility of parole
prisoners. The purpose of incarceration in state prison
for crime is punishment. Do any of you have any
questions regarding Mr. Berthoud’s statement? If so,
please raise your hand? Anybody with a hand? Do any
of you wish to comment on Mr. Berthoud’sstatement,
please raise your hand. How manyof you don’trecall
whathesaid, please raise your hand? Okay, several —
several hands went up, and no hand wentup for
questions.
(R.T. 1736, Line 11- R.T. 1736, Line 6.)
* * *
In any event, for those of you who may recall what Mr.
Berthoudsaid, you are to disregard his statement
regarding his personal experiences.”
(R.T. 1736, Lines 20 - 22.)
Prospective Juror Jacklyn Dake indicated that she wished to make a comment.
(R.T. 1737, Lines 8 — 14.) Nevertheless, the record does not reflect that she was
ever questioned in camera or solicited to make her comment.
B. Discussion
A criminal defendanthas federal and state constitutional rights to due
process of law,trial by an impartial jury, and to a highly reliable determination by
that jury in a capital proceeding. (U.S. Const. Amends V, VI, VIII and XIV; Cal.
Const., Article I, Sections 17, 15, 16, 17; Morganv. Illinois (1992) 504 U.S. 719;
Witherspoonv. Illinois (1968) 391 U.S. 510, 521; People v. Hayes (1999) 21 Cal.
4" 1211, 1285; cert. denied, 531 U.S. 990 (2000.)
40
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S
This court has remarked that whena jury panel overhears inflammatory
remarks, “unquestionably, further investigation and more probing voirdire
examination maybecalled for....”” (People v. Medina (1990) 51 Cal.3d 870,cert.
denied,in part, Medina v. California (1991) 502 U.S. 924, aff'd (1992) 505 U.S.
437.) This is an obligation wheneverthe trial court is put on notice that improper
or external influences were brought to bear on a juror. (See, e.g., People v. Kauris
(1990) 52 Cal.3d 648, 694, cert. denied, (1991) 502 U.S. 837.) In carrying out its
duty to select a fair and impartial jury, “the trial court is not only permitted but
required by inquiries sufficient for the purpose to ascertain whether prospective
jurors are, through absence ofbias or prejudice, capable of participating in their
assigned function in such a fashion or will provide the defendant the fair trial to
which heis constitutionally entitled.” (People v. Martinez (1991) 228 Cal.App.3d
1456, 1463, citing, People v. Fimbres (1980) 104 Cal.App.3d 780.) The
conclusion ofa trial judge on the question of group biasin a jury panelis entitled
to deference and is reversed only upon a showing an abuseof discretion. (People
v. Martinez, supra, 228 Cal.App.3d 1456, 1487.) Yet, here, the trial court erred by
failing to discharge its duty to ascertain that the panel was free from bias after Mr.
Berthoud’s inflammatory remarksso that it could meaningfully exercise that
discretion.
4l
In People v. Medina,this court foundthat the discharge of an entire venire
that may have overheard five potential jurors expressing bias against the defense
wastoo drastic a remedy since none of the jurors who expressed the remarks were
impaneled. (/bid. at 889.) While Mr. Berthoud was excused, the recordis
insufficient to conclude that none of the jurors who overheard his remarks served
and subsequently voted for death. Thetrial court simply asked how manyofthe
panel didn’t recall the offending remarks; only several jurors responded. As such,
a real and substantial probability exist that most of the jury selected overheard the
offending language;thus, this presents a different record from that considered in
Medina.’
The record in this case is also distinguishable from that in Martinez. There,
during voir dire, the panel over heard various jurors express strong biases against
persons charged with crimes and defendants who did not speak English. Defense
counsel challenged the entire panel as a consequence. His motion was deniedafter
jurors re-affirmed to the Court their understanding of the presumption of innocence
and the prosecution’s burden of proof. People v. Martinez, supra, 228 Cal.App.3d
1456. The panel was not questioned about whether they could follow the court’s
instructions or whether they could conducttheir deliberations free from the
influence of Mr. Berthoud’s experience as a prison guard. Thus, unlike in
* The Medinaopinion did notrule that Appellant’s failure to exhaust his peremptory challengesandhis decision to
forgo further voir dire because of a far that it would create additional bias, barred his challenge on appeal.
42
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Martinez,this court in this case need not“discount or ignore”’ the reassuring
responsesby the Appellant’s panel in orderto grant relief; none were given in this
case because none weresolicited. Although the Court asked if any juror had a
“comment” about Mr. Berthoud’s prejudicial remarks, the jurors were not
questioned about whether those remarks might influence their impartiality or their
ability to adhere to essential principles of law.
Finally, the trial court in this case did not “cut off” the juror as it became
evident that he was recounting an experience that could weigh heavily upon the
jury’s decision to select life imprisonmentover a death verdict. Rather than
question Mr. Berthoud in camera, the Court asked him to “flesh out” the
circumstancesof his experience, causing him to remark to the panel that an inmate
serving a lengthy sentence beat a guard to death so that “there (was) another victim
created while he was in.” (R.T. 1700, Lines 21 - 26.) (Compare, People v.
Fimbres, supra, 104 Cal.App.3d 789; while Fimbres held that in camera voir dire
of a prospective juror following initial expressions of bias “no doubt might have
been appropriate” but wasnot required,it was a non-capital case that did not
require heightenedreliability.)
The facts in the recent opinion in People v. Cleveland (2004) 32 Cal.4" 704,
are also distinguishable. There, Appellant argued that the commentsof a
(People v. Medina, supra, 5} Cal.3d at 870.)
43
prospective juror who wasa retired law enforcementofficer with substantial
experience in homicide casestainted the entire venire. The prospective juror
remarkedthat the death penalty was “too seldom (used) dueto legal obstructions”
and that he thought that he “would be unfair to the defense based upon(his)
knowledge of how thesetrials are conducted.” (Ibid. at 736 - 737.) Unlike here,
where a timely motion to dismiss the venire was made, the Appellant in Cleveland
madeno such request; he did not even request admonition, as did Appellantin this
case. On the merits, the Cleveland opinion found that the comments “did not give
the other prospective jurors information to the specifics of the case, but just
exposed them to one person’s opinion aboutthe judicial system.” (lbid. at736.)
Here, by contrast, the prospective juror gave specific information that pertained to
the case: in effect, he predicted that Appellant might continue to pose danger to
others if he was sentencedto life imprisonment. Based on his personal experience
as a prison guard for eight years, he lectured the attending venire that those who
are serving life terms “are still affecting people ... there are still victims inside
correctional institutions....”” (R.T. 1700 —R.T. 1701.) Indeed, he told the jury'of
one instance wherea prisonerserving a life term at the California Correctional
Institution at Chino created another victim, notwithstanding thatlife term, by
beating a correctional officer to death. (R.T. 1700.) Mr. Berthoudalso created a
substantial dangerthat jurors would select the death penalty, by minimizing the
44
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severity of life imprisonmentas a potential punishment, based uponhis personal
experience: “I deal with hundreds of them whoare in for life and I know whatitis
like in there. And I know thatit is a lot easier than people think it is.” (R.T. 1701.)
The record in this case is much more similar to that in Mach v. Stewart 9"
Cir. 1998) 137 F.3d 630, cert. denied, Mach v. Schriro (2006) 126 S.Ct. 1438,
where the Circuit reversed a conviction in a child abuse case. A prospective juror,
who wasan experienced children’s social worker, repeated comments before the
entire venire that she had neverbeen involvedin a case in which a child had falsely
accusedan adult of sexual abuse. Despite the trial court’s attempt to cure the
prejudice by reminding the venire that their determinations were to be based upon
the evidence alone, the Ninth Circuit presumedthatat least one juror was tainted
and entered into jury deliberations with the conviction that children neverlie about
being sexually abused. The Circuit reached this conclusion, “(g)iven the nature of
(the prospective juror’s) statements, the certainty with which they were delivered,
the years of experience that lead to them, and the numberoftimesthat they were
repeated.”” Although no juror was questioned about whether they were influenced
by the comments, the presumption created a “structural error” that required
reversal becausethe intrinsically prejudicial comments were impossible to assess
in the context of evidence presentedattrial since the evidence was presented to an
already tainted jury. Asthetrial court itself recognized in another context during
45
voir dire, prejudicial remarks by prospective jurors can influence the venire.° The
real life experience of a prison murderbyanindividual serving a life term cannot
be dismissed as a fanciful supposition that could not have improperly influenced
the verdict of other prospective jurors. (Compare, People v. Martinez (2003) 31
Cal.4" 673, 700, cert. denied (2004) 541 U.S. 1045.) (Trial court’s comment that a
“cataclysmic earthquake” that destroyed all prisons might cause the release of an
inmate’s sentence to life imprisonment without parole “could not have possibly
affected the verdict.”’)
The instruction delivered by the trial court was not curative. First, curative
instructions are not always effective. More specifically, although the instruction
wasread, and the venire was asked whetherit had any questions or comments
regarding Mr. Berthoud’s statement, the court never asked whether there was a
question or commentaboutits instruction or whether they could disregard Mr.
Berthoud’s comments. (R.T. 1736 — R.T. 1737.) (Compare, People v. Bandhauer
(1970) 1 Cal.3d 609, 613, [where a venireman was excused after he reported he
° “The Court The problemis, and since we are all experiencedin this business, as far as the attorneys
are concerned,is their answers get worse when they get on the stand.
Mr. Brent Right.
The Court And sometimes it influences other potential jurors.
Mr.Brent Yes, that is my fear, so — *
The Court So they are excused....”
46
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sat
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would havedifficulty following the curative instruction]; People v. McNeal (1979)
90 Cal.App.3d 830, 839, [case reversed because trial court failed to ascertain
whetherthe jury could set aside any information outside the evidence after it came
to light that one of their members had personal knowledge aboutthe case that
might affect the verdict]; Mach v. Stewart, supra, 137 F.2d 1630, [the court asked
other jurors whether they disagreed with the prejudicial comments, but received no
response].) Since the trial court failed to conduct a hearing to exclude those jurors
whooverheard Mr. Berthoud’s improper remarksand could not promise to ignore
them during their deliberations, a reversal is required. Unlike People v. Burgener,
(1986) 41 Cal.3d 505, 517, overruled on other grounds, People v. Reyes (1998) 19
Cal.4" 743, 753, (where the Court could not find that the juror wasactually
intoxicated), a finding can reliably be madein this case that jurors who may have
sat in judgmentactually overheard the improper remark; only “several” of the
assembled voir dire stated that they could not recall the remark. The prejudice of
Mr. Berthoud’s remarks wentto the ability of the jurors’ to impartially determine
facts generally, since the assumptionsinherentin his remarksstruck at the heart of
the presumption of innocence and prosecution’s burden of proof. Since none of
the venire was asked whether the remarks would impairtheir ability to follow these
essential principles of fairness, a-reversal of the conviction is required.
(R.T. 1420 - R.T. 1421.)
47
Il. THE ADMISSION OF EVIDENCE OF THE BRUTAL
MURDER OF MURIEL DELBECQ AS PROOF THAT
APPELLANT COMMITTED THE HOMICIDE OF MARJORIE
DEEBLE, SEVEN YEARS EARLIER AND5,000 MILES
AWAY, WAS CONTRARYTO STATE LAW AND VIOLATED
-APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL
RIGHTS ,
A. Factual Backgroundand Proceedingsin the Trial Court
Appellant made timely, written objections to the admission of evidence of
the uncharged Delbecq murder in Hawaii on a variety of grounds. The pre-trial
pleadings challenged the sufficiency of the showing that the Hawaii murder was
admissible to prove identity, plan, and intent under Evidence Code Section
1101(b). (C.T. 583 — C.T. 592.) Alternatively, the defense broadly asserted that
even if the evidence was admissible under Section 1101(b), it should be excluded
under Section 352 of the Evidence Code becauseits probative value did not
substantially outweigh the danger of undue prejudice. (C.T. 592 — C.T. 595.)
Elsewherein its pleadings, the defense argued that the dissimilar features between
the commission of the Hawaii and the California homicides should be excluded, or
“pruned,” from the evidence admitted under Section 1101(b), and that evidence
that might be admissible to prove identity was inadmissible to proveintent. (C.T.
644 —C.T. 651.) Finally, the defense argued thatthe Ex Post Facto Clauseofthe
Constitution prohibited the prosecution from arguing that evidence of the Hawaii
48
i
i
i
homicide was admissible to show "common schemeor plan" underthe standard
announced in the Supreme Court decision in People v. Ewoldt (1994) 7 Cal.4th
380; instead, the standard set forth in People v. Tassell (1984) 36 Cal.3d 77 that
prevailed at the time of the charged offense should apply. (R.T. 836 — R.T. 839.)
The court ruled that the prosecution’s pre-trial offer of proof was sufficient
to demonstrate that the evidence of the Hawaii murder was admissible to show
identity and common scheme;the showing wasalso satisfactory, albeit less
convincing, to prove intent. (R.T. 1215, Lines 5 - 13; R.T. 1950, Lines 16 - 19.)
The court also denied the alternative motion to exclude evidence under Section
352. Although it found that the challenged evidence was "highly prejudicial," it
also found that the jury could find it to be highly probative. (R.T. 1950, Line 26 —
R.T. 1951, Line 16.) The court left open the possibility that specific, dissimilar
characteristics of the Hawaii homicide might be excludedattrial. (R.T. 1215, Line
25 —R.T. 1216, Line 8.) Finally, the court denied the defense motion to apply the
standard announcedin Tassell to evaluate the admissibility of evidence in the
Delbecq homicide to show commonplan or scheme;it found that the Ex Post
Facto Clause wasnotviolated by the application of this standard because there was
no prohibited changein the law after the charged offense was committed in 1986.
(R.T. 1944 —R.T. 1948; R.T. 2849 — R.T. 1951.) In the end, the court allowed
49
evidence of the Hawaii homicide to prove identity, commonplan,and intent in the
California homicide. (R.T. 1943.)
B. Overview of Legal Arguments on Appeal
Thetrial court's erroneous admission of evidence that Robert Edwards
brutally murdered Muriel Delbecq, seven years after the charged offense, denied
him fundamental rights guaranteed by several provisions of the federal and state
constitutions. Admission of this evidence violated his federal constitutional rights
to a fair trial and due process of law underthe Fifth and Fourteenth Amendments
as well as to reliable capital convictions and sentences as guaranteed by the Eighth
and Fourteenth Amendments. (Beck v. Alabama (1980) 447 U.S. 625, 637 - 638.)
Thetrial court's evidentiary rulings were erroneous on several grounds under
state evidence law. First, the trial court's finding that the commonfeatures
between the two crimes weresufficiently distinctive to justify admission of
evidence of the uncharged murderto prove identity, common plan, and intent was
incorrect. Secondly, the trial court's admission of evidence pursuant to Section
1101(b) underthe test announced in Ewoldt, instead of the more demanding test
set forth in Tassell that was in effect at the time the crime was committed, violated
the Ex Post Facto Clause.® Finally, the trial court abused its discretion under
° In People v. Tassell (1984) 36 Cal.3d 77, the court ruled that uncharged misconductcould be used to demonstrate
commonplan only “where there is a single conception or plot of which the charged and uncharged crimes are
individual manifestations. Over defense objection,the trial court used the Ewoldt standard to evaluate the
admissibility of the evidence of the uncharged Delbecq murder. (R.T. 1215; R.T. 1950) Thetrial court held that the
50
a
Evidence Code Section 352 when it admitted evidence of the uncharged offense
since its probative value was substantially outweighedbyits potential for undue
prejudice and jury confusion; at a minimum,the trial court was required to exclude
evidence of the mannerin which the Hawaii homicide was committed that was
dissimilar from the California homicide. (People v. Clair (1992) 2 Cal.4th 629,
cert. denied, 506 U.S. 1063.)
Thetrial court’s erroneous admission of this evidence in contravention of
established state law deprived Robert Edwardsofa state-created liberty interest
and denied him Due Process of Law as required by the Fifth and Fourteenth
Amendments to the Federal Constitution. For all these reasons,the trial court's
erroneousrulings require the reversal of Robert Edwards’s conviction and sentence
of death. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346.)
C. Standard of Review
This court typically reviewsa trial court's determination of the admissibility
of evidence of uncharged offenses for an abuse of discretion. (See, People v.
Ewoldt standard was not an "Ex Post Facto" law becauseit corrected, as distinguished from changed,existing law;
that is, the trial court held that Tassell was simply wrong. (R.T. 1947, Lines 22 - 25; R.T. 2849 —R.T. 2850.) Yet,
the law makes no such distinction. Rather, the United States Supreme Court has held that "(A)n unforeseeable
judicial enlargementofa criminal statute, applied retroactively, operates precisely like an Ex Post Facto Law, such
as Article J, Section 10 of the Constitution forbids...If a state legislature is barred by the Ex Post Facto Law from
passing such a law,it must follow that a State Supreme Court is barred by the Due Process Clause from achieving
precisely the same result by judicial construction." (Marks v. United States, (1977) 430 U.S. 188, 192,citing, Bouie
v. City of Columbia (1964) 378 U.S. 347, 353,- 354.) Here, the judicial expansion of the admissibility under
Section 1101(b) allowed the jury to consider evidence of a brutal murder that occurred seven years after the charged
murder was committed. The application of the less demanding standard of admissibility in Ewoldt constituted a
retroactive and unforeseeable enlargement of Section 1101(b) prohibited by the Due Process Clause. In any event,
as set forth above, even under the improperly applied Ewoldt standard, the evidence was inadmissible to prove either
identity, commonplanorintent.
31
Catlin (2001) 26 Cal.4th 81, cert. denied. 535 U.S. 976 (2002); Evidence Code
Sections 350, 352.) However, Robert Edwards contendsthat heightened scrutiny
is appropriate and necessary because this claim involves error of constitutional
magnitude during a capital case. This evidence wasessential to the prosecution.
(RT. 1199.) Its admission deprived Robert Edwards ofhis constitutional rights to
Due Processof Law,to a fair trial, and a reliable determination of guilt and
penalty. (U.S. Const. Amends.Fifth, Sixth, Eighth and Fourteenth; Cal. Const.,
Art. I, Sections 7, 15, and 17.)
The United States Supreme Court has applied heightened scrutiny to
procedures involved in capital cases based on its recognition that "death is
different." (Gardner vs. Florida (1977) 430 U.S. 349, 357 - 358. See, also, eé.g.,
Lockett v. Ohio (1978) 438 U.S. 586; Godfrey v. Georgia (1980) 446 U.S. 420.)
This increased concern with accuracy in capital cases has led the Supreme Court to
"set strict guidelines for the type of evidence which must be admitted, and may not
be admitted." (Skipper v. South Carolina (1986) 476 U.S. 1; Booth v. Maryland
(1987) 482 U.S. 496.) According to the reasoning of these cases, this court should
independently examine the record to determine whetherthetrial court's erroneous
admission of this evidence was harmless beyond a reasonable doubt. (Chapmanv.
California (1967) 386 U.S. 18, 24.)
D. The Admission of the Evidence of the Hawaii Murder
Only Tended to Show a Predisposition to Committhe
52
Charged Offense and Therefore Violated Appellant's
Fundamental Rightto a Fair Trial and to Due Process of
Law as Guaranteedby the Fifth and Fourteenth
Amendmentsto the Federal Constitution
1. Evidence of the Hawaii Homicide was
Inadmissible to Prove the Identity, Common
Plan, or the Intent of the Individual who
Murdered Mrs. Deeble Seven Years Earlier
a. Prevailing Law
Evidence Code Section 1101(a) and (b) provide, in their pertinent parts,that:
“(a) Except as providedin this section..., evidence
of a person’s characterora trait of his or her
character (whetherin the form of an opinion,
evidence of reputation, or evidence of specific
instancesof his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified
occasion.”
“Nothing in this section prohibits the admission of
evidence that a person committed a crime...when
relevant to prove somefact (such as motive,
opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident) . . . other
than his or her disposition to commit such an act.”
Evidence Code Section 1101(b) permits "other crimes" evidence if its .
purposeis to prove something other than a disposition to commit the crime
charged. Its admissibility depends uponthree principle factors: (1) the materiality
of fact to be proved or disproved; (2) the tendency of the uncharged crime to prove
or disprove the material fact; and (3) the existence of a rule or policy requiring the
53
exclusion of relevant evidence. (People v. Thompson (1980) 27 Cal.3d 303, 315 -
319.)
Evidence of an uncharged offense is so prejudicial thatit requires extremely
careful analysis. Since a substantial prejudicial affect is inherent in such evidence,
uncharged offenses are admissible only if they have substantial probative value.
(People v. Ewoldt, supra, 404; People v. Hawkins (2002) 98 Cal.App.4th 1428,
1445, cert. denied, (2003) 537 U.S. 1189; People v. Balcom, (1994) 7 Cal.4" 414,
422; In re: Jones (1996) 13 Cal. 4° 552, 581 - 582.)
“Courts that follow the common-lawtradition
almost unanimously have cometo disallow resort by
the prosecution to any kind of evidenceof a
defendant’s evil character to establish a probability
of his guilt. Not that the common law invests the
defendant a presumption of good character
(citation), but it simply closes the whole matter of
character, disposition and reputation on the
prosecution’s case—in-chief. The state may not
show defendant’s prior trouble with the law, specific
criminal acts, or ill name amonghis neighbors, even
through such facts might logically be persuasive that
he is by propensity a probable perpetrator of the
crime. The inquiry is not rejected because character
is irrelevant; on the contrary, it is said to weigh too
much with the jury and to so over persuade them as
to prejudice one with a bad general record and deny
him a fair opportunity to defend againsta particular
charge. The overriding policy of excluding such
evidence, despite its admitted probative value, is a
practical experiencethatits disallowance tends to
prevent confusion of issues, unfair surprise and
undue prejudice.” (Michaelson v. United States
54
E
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S
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8
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F
S
8
8
8
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i
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&
3
(1948) 335 U.S. 469, 475 - 476; accord, Old Chief
v. United States (1997) 519 U.S. 172.)
To decide whether evidenceof other crimes has the tendency to prove the
material fact in dispute, the Court mustfirst determine if the uncharged offense
serves logically, naturally and by reasonable inference to establish that fact. To
determineif there is a rule or policy requiring exclusion of the evidence,the court
must consider that Evidence Code Section 1101(a) expressly prohibits such
evidence if the only theory of relevanceis that the accused has a propensity to
commit the crime charged, and that there is a grave danger of prejudice when
evidence of an uncharged crimeis given to a jury. Also, the evidence will not be
admitted, even for legitimate purpose,if it is too remote, and it must only be used
if it has substantial probative value. As trial counsel argued,if there is any doubt,
the evidence should be excluded. (/bid. at 315 - 319.) (People v. Guerrero (1976)
16 Cal.3d 719, 724; R.T. 1198.)
The distinction between the admission of evidence to prove identity and
commonplan is "subtle, but significant." (People v. Ewoldt, supra, 7 Cal.4" at
380.) The very highest degree of similarity between the charged and uncharged
offense is required to prove identity. The pattern and characteristics of the crimes
must be so unusual anddistinctive as to be like “a signature.” (People v. Ewolt,
supra, 7 Cal.4" 380, 403.) Thus, in order to apply the appropriate standard of
55
admissibility, the Supreme Court cautioned that great care must be exercised to
properly identify the purpose for which the evidence is admitted.
“Our holding does not mean that evidenceof a
defendant’s similar uncharged acts that demonstrate
the existence of a commondesignor plan will be
admissible in all (or even most) criminal
prosecutions. In many cases the prejudicial effect of
such evidence would outweighits probative value,
because the evidence would be merely cumulative
regarding an issue that was not reasonably subject to
dispute [Citation omitted.].... For example, in
mostprosecutions for crimes such as burglary and
robbery,it is beyond dispute that the charged
offense was committed by someone;the primary
issue to be determinedis whether the defendant was
the perpetrator of that crime. Thus, in such
circumstances, evidence that the defendant
committed uncharged offenses that were sufficiently
similar to the charged offense to demonstrate a
commondesignor plan (but not sufficiently
distinctive to establish identity) ordinarily would be
inadmissible. Although such evidenceis relevant to
demonstrate that, assuming the defendant was
presentat the scene of the crime, the defendant
engaged in the conductalleged to constitute the
charged offense,if it is beyond dispute that the
alleged crime occurred, such evidence would be
merely cumulative and the prejudicial effect of the
evidence of uncharged acts would outweighits
probative value. In ruling upon the admissibility of
evidence of unchargedacts, therefore,it is
imperative that the trial court determine specifically
whatthe proffered evidenceis offered to prove, so
that the probative value of the evidence can be
evaluated for that purpose.”
(Ewoldt at pages 405 — 406; emphasis supplied.)
56
Evidence of the Hawaii murder was admissible,if at all, only to show
identity, since the commission of the act of murder was notin dispute. Thetrial
court recognized this logical starting point during pretrial argument:
“The Court
Mr. Brent
The Court
Mr. Brent
The Court
Mr. Brent, you said you wanted this stuff offered forall
1101(b) purposes. Why don’t you be morespecific and
tell the Court what you plan having this evidence
introducedfor.
Well, clearly for other totality of the — clearly goes to
identification.
You start there.
Sure.
Becauseif you don’tget that, you don’t get anything.”
* *
(R.T. 1195, Line 22 — R.T. 1196, Line 5.)
“The Court
Mr. Brent
The Court
Mr. Brent
(R.T. 1199, Lines 1 -— 9.)
This is an I.D. case. Either welet it in for I.D. purposes
and then whatever else maybe relevantor it doesn’t come
in. If it doesn’t comein for I.D. the case is over.
Finished. At least based upon what you have told me so
far.
Thatis true.
Andthatis the hardest to satisfy for the other acts.
Thatis night.”
57
Despite its recognition that the Hawaii murder was admissible,if at all, only
to prove the identity of Mrs. Delbecq’s assailant, and that the very highest degree
of similarity between the charged and uncharged offenses was therefore required,
the trial court admitted evidence of the Hawaii murder even thoughthe
foundational “signature” of the two crimes wasneverestablished in the record.
b. There was No Evidencethat Mrs.
Deeble Was Sexually Assaulted with a
Hair Mousse Can,the Alleged
Foundational“Signature” of the Hawaii
and California Crimes
The "signature" advanced to the court to justify the admission of evidence of
the Hawaii murderwasthe alleged use of a hair mousse canister to assault both
women. Asthe prosecutor commentedto the trial court, "it is the heart of the case
... this is an extreme similarity. This is a signature all the way. It is the most
signature aspect of this whole case." (R.T. 1190, Lines 14 - 18.) It was also the
leitmotif of the prosecution's argumentto the jury that Appellant committed both
crimes. He describedthis case as "The Tale of Two Mousse Cans." (R.T. 1953.)
He expressly designated the mousse cans as Appellant's "signature." (R.T. 3092,
Line 9.) Yet, the key foundational fact that a mousse can was used to assault both
women wasneverestablished to the court during the pre-trial proceedings or by the
subsequent proofattrial.
58
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Unquestionably, a mousse can was usedas an instrumentto violently assault
Mrs. Delbecq in Hawaii; it was discovered during her autopsy, deep inside the
vaginal vault, protruding into the abdominal cavity. (R.T. 2301 — R.T. 2302; R.T.
2295.) By contrast, the evidence that a mousse can wasusedto assault Mrs.
Deeble wasat most speculative. The canister was not found in her body; it was
merely discovered in the bedding; her corpse lay on the floor below. (R.T. 2013.) |
Furthermore, there was no persuasive forensic evidence that the canister was
used to assault Mrs. Deeble. For example,her injuries do not circumstantially
establish that the mousse can wasusedin the assault. The abrasionsto her vaginal
cavity were relatively minor and could have been caused by consensual sex; the
abrasions were also shallow andnear the opening of the vagina. (R.T. 2153; R.T.
2162.) Similarily, while the rectum was dilated, the diameter and cause were never
established in the record. (R.T. 2147 — R.T. 2148.) Based upon these injuries, the
prosecution's expert witness, Dr. Fukumoto, could not opine that they were caused,
even probably, by the mousse can that was discoveredat the scene;at best, he
could only state that those injuries may have been causedby the canister:
"Mr. Brent First of all, we cannot know from the medical findings
from lookingat it, what it was that caused theseinjuries.
Can we?
Dr. Fukomoto No, I cannottell you. All I can say it is something thatis
- does not have any sharp edges.
59
Mr. Brent
Dr. Fukomoto
O.K., and so if I were to show you what would be
marked as People's Exhibit 16 for identification (the
mousse can), would this be consistent with an object that
could have caused these variousinjuries?
Yes.
(R.T..2138, Lines 10 - 19.)
Mr. Brent
Dr. Fukomoto
Mr. Brent
Dr. Fukomoto
Mr. Brent
Dr. Fukomoto
Mr. Brent
Dr. Fukomoto
Mr. Brent
Dr. Fukomoto
Mr. Brent
Dr. Fukomoto
Mr. Brent
*
Doctor, staying with that area of the body again, Dr.
Richards notedin that the rectal area appears dilated.
Yes.
Now,asto this he did not, if I am reading this correctly,
he did not know an amountofdilation?
Correct, he did not measure the diametersof the anus.
Now,from the available information, the dilation could
be caused by a numberofthings;is that correct?
Yes.
Could be caused bya finger or fingers, if you wish?
Manipulation of the finger, yes.
Could be caused by a penis?
Yes.
Could be caused by any numberofother objects?
Yes.
Andfrom the autopsy before us, there is just no way to
tell what in fact may have causedit?
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Mr. Fukomoto No, I cannottell you.”
(R.T. 2147, Line 19 — R.T. 2148, Line 16.)
Finally, the serological evidence did not circumstantially establish that the
mousse can wasusedin the assault. A small amount of substance of an
undetermined nature was found on the rim of a cap foundat the scene;as the
People’s medical examiner, Dwight Reed, conceded, although a presumptivetest
for blood reacted positively, substances other than blood canalso react positively.
(R.T. 2446; R.T. 2062.) Thus, there is no evidence in the record to convincingly
establish that the residue was blood, muchlessthe victim’s blood. In addition, Dr.
Wolfe testified that the microscopic bleeding detected in the victim’s vagina and
rectum could not have producedthe substance found on the purported cap of the
canister, assuming that the substance was blood. (R.T. 2496 — R.T. 2497.) He also
testified that the minorinjuries to the vagina and rectum were wholly consistent
with a consensual sexual encounter. (R.T. 2494 — R.T. 2496.) Finally, there was
not even any credible evidence that the cap belonged to the mousse can (R.T. 2046
—R.T. 2047), must less than the mousse can itself was the instrument of a sexual
assault.
In People v. Kipp, this court stated that the strength of the inferencethat the
charged and unchargedoffense was committed by the same individual depended
upon the degree of distinctiveness of the individually shared marks and number of
61
minimally distinctive shared marks, (1998) 18 Cal.4th 349, 370, cert. denied,
(1999) 525, U.S. 1152. There, the Supreme Court approved the admission of un
uncharged murderto prove identity and intent because both victims were 19 year
old women whowerestrangled in one location, carried to an enclosed area which
belonged to them, and then covered with bedding. The clothes of the victims were
not torn, but each were discovered with bruises on their legs and their breasts and
genitals exposed. Finally, the uncharged murder occurred only three months
before the charged offense. Against this standard, the presence of a similar
canister at the scene of the Deeble murderseven yearsafter the charged offense,
that may have been used as an instrumentto her assault, on an unspecified part of
her body, with some undefined degree ofprobability, hardly establishes the
"degree of distinctiveness" necessary to admit this highly inflammatory evidence
of a brutal crime.
The record in this case is similar to that considered in State v. Barriner,
(Mo. 2000) 34 S.W.3d 139. There, in a prosecution for sexual assault, the
prosecutor argued that a videotape of the sexual practices of the defendant,
depicting his girlfriend in bondage, was admissible to prove identity because the
knots usedto bind the girlfriend were identical to those used to bind the victim.
Yet, in rejecting the argument, the court noted that “there is no testimony anywhere
in this trial from any witness regarding the type of knots or the manner in which
62
they were tied. The prosecutor simply asserted in his guilt-phase closing
argument, playing the tape for the second time,that the knots were used to bind
Niswungerwereidentical to those used to bind the victims.” (/d. at 146.) Here,
too, there was no evidence introduced, by testimony or document, that mousse cans
were used as instruments in both sexual assaults. The “evidence” was nothing
more than the flamboyantassertions of the prosecutor, from his opening statement
to his closing remarks that it was so: that the identity of Appellant was writ forall
to see in “The Tale of Two Mousse Cans.”
The record in this case can be easily distinguished from those cases that have
approvedthe admission of other crime evidence to establish identity because of
pronouncedshared“signatures.” (Compare, People v. Scully (1991) 53 Cal.3d
1195, 1225, cert. denied, (1992) 503 U.S. 944 (victimsall prostitutes and bound in
the defendant's warehouse); People v. Medina (1995) 11 Cal.4" 694, 748 (the same
gun used in both murders; defendant's automobile seen in the vicinity of both
crimes.) (People v. Roldan, supra, (2005) 35 Cal.4"" 646, 704, cert. denied, 125
S.Ct. 570; the charged and uncharged offenses were robberies at a swap meet
involving three perpetrators, each with all identical and distinctive roles; the
robbery only took cash and not merchandise; they used machine guns, covered by |
clothing.) (People v. Catlin, supra, 26 Cal.4" 98, 120; all victims were female
relatives of the defendant, who died by parquet poisoning,a “rare and unlikely
63
cause of death” for three such closely related individuals; finally, the defendant
stood to gain financially from each death.)
While “The Tale of Two Mousse Cans" may have beenan effective
rhetorical device to persuade the jury that the two crimes shared a perpetrator, a
soberexamination of record reveals only that common household items were
present at both scenes, and nothing more. This circumstance is an unremarkable
coincidence and not a signature. Even if the factual showing was enoughto
support an inference that a mousse can wasused as an instrumentof a sexual
assault in the California crime, the case law still bars the Hawaii evidence because
the offenses are too dissimilar.
Cc. The California and Hawaii Crimesare
too Dissimilar to Display the Required
Shared “Signatures”
The numberof minimally distinctive marksin this case are exceedingly few.
Indeed, many of those initially advanced by the prosecutionin its pre-trial brief,
such as that the victims shared the same initials and were both realtors, were
rejected by the court as a basis to admit evidence under Section 1101(b). (C.T-
529 — C.T. 530; R.T. 1186 —R.T. 1188.) Similarly, almostall of the other "shared
marks" advanced by the prosecution do not support admission of evidence of the
uncharged offense because they are not "minimally distinctive." For example, the
fact that both women mayhave beenassaulted with some kind of foreign object is
64
not "minimally distinctive." Unfortunately, this type of criminal behavioris so
commonthat statutes specifically prohibit it by name. (See, California Penal Code
Section 289(g)(f) and Section 264.) Similarly, the fact that there is no evidence of
forced entry at either crime scene, the victims' homes were ransacked, they were
restrained by readily accessible telephonecordsandthat valuables were missing’
after the crimes, fails to distinguish them from manyothers. Theserelatively
commonfeatures of home invasion assaults are distinguishable from the truly
unusualfeatures cited in cases that approve admission under Section 1101(b).
(See, e.g., Featherstone v. Estelle (9th Cir. 1991) 948 F.2d 1497, [where a unique
ruse wasusedbythe defendantto gain accessto victims’ homes]; People v. Craft
(2000) 23 Cal.4th 978, cert. denied, (2001) 532 U.S. 908 [all victims were
hitchhikers who were given drugsor alcohol by the defendant, sexually assaulted,
and then later dumped from his car].) Indeed, when the analysis of the California
and Hawaii murdersare stripped ofits rhetorical flourishes,it is striking how
distinctively dissimilar the crimesare.
The strangulation of the California victim wasdistinctive in its relative |
complexity. The victim's hands weretied and she was faced down onthefloor; her
neck wasplaced in a makeshift noose suspended from a dresser drawer. This
*
” In pointoffact, the evidenceoftheft in the Delbecq caseis hardly overwhelming. The only valuable missing was
her wedding ring. (R.T. 2195 —R.T. 2196.) The ring on Mrs. Deeble's finger at the time of her murder was not
removed; its presence was noted during the autopsy. (R.T. 2760 — R.T 2761.) This is worth considering, especially
since Kathy Valentine's allegations about the alleged theft of her mother’s jewelry were uncorroborated.
65
strangulation did not break any bonesin her neck. (R.T. 2134.) By contrast, there
is nothing distinctive about the end of the Hawaii victim. Her assailant ended her
life directly and without elaboration: he manually strangled her, crushing the
hyoid bonesin her neck. (R.T. 2296, Lines 21 - 24.)
| The behaviorof the assailant at the crime scenes wasalso very different.
Theassailant left his palm print and bloody footprints at the Delbecq murder scene
for forensic examination. (R.T. 2245; R.T. 2257.) By contrast, although Mrs.
Deeble's assailant remainedat the crime scene long enoughto bindher, no latent
prints were found at the crime scenethat linked him to the murder. (R.T. 2328 —
R.T, 2342.)
Finally, Appellant knew the California victim; according to the prosecution's
theory, her dislike provided a motive for him to harm her. (R.T. 1958, Lines 16 -
17.) There is no evidence that Appellant knew the Hawaii victim. This absence of
a personal relationship, and corresponding lack of motive, distinguishes the
charged and uncharged offensesin this case from those found sufficiently similar
in the past to justify admission of an uncharged offense under Section 1 101(by.
Compare, People v. Scheer, where the "presence of the same motive in both
instances may be a contributing factor in finding a commonplan or design."
(1998) 68 Cal.App.4th 1009, 1020 - 1021; People v. Diaz (1992) 3 Cal4th 495
cert. denied, (1993) 508 U.S. 916 [all patients under the care of the defendant, who
66
wasa nurse in the cardiac intensive care unit]; People v. Ruiz (1988) 44 Cal.3d
589, cert. denied, 488 U.S. 871 [both victims were wives of the defendant]; People
v. Ewoldt, supra, [both victims were step-daughters of similar ages who lived with
the defendant]; People v. Catlin (2001) 26 Cal.4th 81, 111, cert. denied, (2002)
535 US. 976 [victims both close relatives who died from rare parquet poisoning];
People v. Ing (1967) 65 Cal.2d 603, 612 [evidence admissible to show common
plan in rape prosecution, where the victims wereall patients of the defendant who
had been sedated by injection and then assaulted].)
Thedissimilarities set forth above are not incidental or minor quibbles: they
are dissimilarities that reasonably call into question whether the same person
committed the homicides separated by many years and thousands of miles of
ocean. They are fundamental differences in method, motive and means.
The dissimilarities, as well as the similarities, between the charged and
uncharged offenses must be evaluated in order to decide whether admission is
justified under Section 1101(b). (People v. Balcom, supra, 7 Cal.4th 414.)
Dissimilarities decrease the probative value of the proffered evidence; conversely,
the geographical and temporal proximity of the charged and uncharged offenses
increases probative value. (Ibid. at p. 427.) Thus, in Balcom, the close temporal
proximity of the offenses (six weeks), the distinctive methods of committing the
offenses (each occurredin the early morning), the fact that the assailants raped
67
their robbery victims and then usedtheir vehicles and ATM cardsto profit from
the crimes,justified the admission of the uncharged offense. Moreover, the
dissimilarities between the two offenses in Balcom wereincidental. By sharp
contrast, the two murders in this case are separated by seven years and thousands
of miles of ocean. The Hawaii homicide lackedall of the characteristically
distinctive elements of the California homicide, such as binding and suspending
the victim to immobilize her. There was no pervasive evidence of a sexual assault
upon the California victim. The minorinjuries to the genitalia were consistent
with consensual sexual intercourse.® She was not violently and indisputably
assaulted with a foreign object as was the Hawaii crimevictim.
The opinion in People v. Rivera is instructive. (1985) 41 Cal.3d 388. There,
the Supreme Court reversed the lower court's decision to admit evidence of an
earlier robbery to provethe identity of the individual who committed the charged
offense. In so doing, the Supreme Court was not persuadedby a "laundry list" of
alleged similarities that were nottruly distinctive: both crimes were committed on
Friday nights, at corner conveniencestores in Rialto, by three perpetrators who’
used "get away vehicles." The court found also found notable dissimilarities
between the two crimes: one was an armedrobbery, while the other was an
unarmed burglary; the co-conspirators were different individuals. Here, too,
8 Indeed,as argued in Section VII (C), the evidence in the Deeble homicide wasinsufficient to sustain the special
circumstance finding of murder involving torture.
68
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despite a list of seeming similarities, there were insufficient distinctive marks in
the California and Hawaii homicidesto justify admission of evidence of an
uncharged offense to prove identity: the sum of zeros is always zero. (People v.
Guerrero, supra, 16 Cal.3d 719, 792.)
This court’s opinion in People v. Alcala (1984) 36 Cal.3d 604, also supports
Appellant’s position. There, as here, “the alleged similarities break down under
examination.” (Jd. at 632.) In Alcala, the prosecution soughtto establish the
defendant’s identity by arguing that the crimes showeda distinctive pattern: the
defendant approached underagegirls, engaged them in conversations, enticed them
into his automobile, restrained them by force, took them to remote outdoor
locations, and sexually assaulted them. Yet, as the Court pointed out whenit ruled
that there was an insufficient “signature”to justify admission,notall victims were
forcibly restrained and outdoorsettings and photography were often absent in
manyof the assaults. Here, too, the dissimilarities between the Califormia and
Hawaii homicides are morestriking than their similarities. The “Tale of Two
Mousse Cans”is more fairly characterized as a “strained theory” than an objective
reality upon which to hinge the admission of a conclusively prejudicial uncharged
offense. (See, People v. Alcala, where the court branded the People’s attempt to
unite the crimes under the umbrella of outdoor settings a “strained theory” because
the defendant merely showed oneof the victims a poster of forests. Id. at 632.)
69
In closing, the evidence of the Hawaii murderwasonly relevant to show
whatis expressly prohibited: that Appellant had a propensity to commit the crime
charged. The two crimeslackedthe distinctive “signatures” necessary to justify
the admission of the uncharged offense under Ewolt to show identity. Sinceall
agreed that the evidence that Robert Edwards committed the charged offense was
insufficient as a matter of law unless evidence of the Hawaii homicide was
admitted to prove his identity, the case should have been overand no further
analyses is necessary to determine whether the uncharged offense was admissible
to prove his intent or common plan or whetherits improper admission prejudiced
Appellant’s right to a fair trial.
d. The Uncharged Offense wasalso
Inadmissible to Prove Intent
Even assumingthat the similarities between the two homicides were
sufficient to justify the admission of the Hawaii crime to prove identity, the
specific manner and means by which the crimes were accomplished are
nevertheless too different to justify the admission on theissue of intent. To satisfy
this theory of admissibility, the charged and uncharged crimes need be
“sufficiently similar to support the inference that the defendant ‘probably
harbored) the same intent in each instance.’ (citations.) (People v. Ewolt, supra, 7
Cal.4" at 402.) The recent case ofPeople v. Demetrulias is instructive. (2006) 39
Cal.4"1.)
70
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In Demetrulias, the trial court admitted the uncharged offenses to prove
motive and intent. The relevant similarities noted by the Opinion were that twice
in one evening the defendant entered an older man’s house, confronted him alone,
and stabbed him several timesin the chest hard enoughto inflict very severe
injuries. The court concluded: “Especially in light of the close proximity of time
and space betweenthe incidents, we disagree that these dissimilarities violated the
inference that the defendant had the sameintent in each incident.” By obvious
contrast, the Hawaii and California crimesin this case were not committed on the
same evening, but occurred seven years apart. See, also, People v. Harvey (1984)
163 Cal.App.3d 90, 104 — 105, where the passage of six months between the
charged and uncharged robberies were enough to prevent admission onthe issue of
intent, even thought they occurred in the same area. Additionally, the uncharged
offense in this case did not occurless than a mile from the charged offense as in
Demetrulias, but was committed an ocean away.
Furthermore, the crimes were not committed in so similar a mannerthat the
sameintent to kill or torture could be inferred. Evidence ofan intentto kill the
victim in Hawaii is relatively strong: she was strangled manually with such force
that the hyoid bonein her throat was broken. Similarly, evidence thatthe assailant
intendedto inflict the requisite “extreme pain” to determinean intentto torture the
Hawaii victim is arguably established by the presence of a hair mousse can deep
71
)
within her vaginal vault. By sharp contrast, the victim in the California homicide
died as a result of her bindings. As argued fully in Section VII below, binding a
victim is only consistent with an intent to restrain movement, not with an intent to
kill or cause “extreme pain.” Likewise, the injuries that she suffered to her head
and neck are consistentwith either her struggles to free herself from her bindings
or her assailant’s attempts to immobilize her; the balance of her injuries are too
minorto support a finding of either an intentto kill orto torture.
Finally, but not least importantly, the “glue” that held the prosecutor’s
theory of admissibility together — the use of mousse canisters to sexually assault
the two victims — was nothing more than a rhetorical device, unsupported by
evidence. In this regard, People v. Guerrero is relevant. (1976) 16 Cal.3d 719,
727 — 728.) There, an uncharged rape was admitted to prove that the charged
murder occurred in the course of an attempted rape. The Supreme Court held that
the admission was erroneousbecause of the lack of evidence that sexual activity
took place with the homicide victim.
Underthese circumstances, even if the evidence of the uncharged offense
was admissible to prove identity, the trial court erred when it admitted the evidence
and instructed the jury that it could be considered on the wholly separate issue of
intent.
2. Assuming that Evidence of the Uncharged
Hawaii Murder was Admissible under
72
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Sections 1101(b), it Should Have Been
Excluded Under Evidence Code 352 because
its Probative Value was Substantially
Outweighed by the Danger of Undue
Prejudice
a. Introduction —
Section 352 of the Evidence Code provides:
“The Court in its discretion may exclude evidenceif
its probative value is substantially outweighed by
the probability that its admission will (a) necessitate
undue consumption oftime or (b) create substantial
dangerof undueprejudice, of confusing the issues,
or of misleading the jury.”
In Ewoldt, the Supreme Court noted that even if evidence of an uncharged
crime was admissible to prove a material fact under Section 1101(b),it still may be
excluded underSection 352if its probative value is "substantially outweighed by
the probability that its admission (would) . . . create substantial danger of undue
prejudice, of confusing the issues, or misleading the jury." ([bid. at 404.) Thetrial
court's discretion in admitting evidence of other offenses must, in all cases, be
exercised within the context of the fundamental rule that relevant evidence whose
probative value is outweighed byits prejudicial effect should not be admitted.
Consequently, even if relevant and admissible under Section 1101(b), evidence of
the uncharged offense must often be excluded becauseofits “inflammatory
impact.” (People v. Alcala, supra, 36 Cal.3d 604, 631.)
73
This court typically reviews a trial court's determination of admissibility of
evidence under Section 352 to determine whether there was an abuse ofdiscretion.
(People v. Lewis (2001) 25 Cal.4™ 610, 637, cert. denied, 534 U.S. 1045.)
Nevertheless, Appellant renews his request for the court to apply a heightened
standard of review,as set forth in Section II(C) of this brief.
The defense madea timely objection to the introduction of the evidence of
the uncharged Hawaii murder under Section 352 because its probative value was
substantially outweighed by the danger of undue prejudice. The argument was
raised in the pre-trial pleadings. (C.T. 592; C.T. 644 — C.T. 672.) It was the
subject of pre-trial argument. (R.T. 1215, Line 14—R.T. 1216, Line 8; R.T. 1931
—R.T. 1951.) It was renewedattrial. (R.T. 2165; R.T. 2676.) In summary, the
defense argued that evidence of the uncharged murder was broadly inadmissible
under Section 352; it also asserted that the inflammatory and dissimilar
characteristics of the uncharged crime, such as the gruesome injuries to the Hawaii
victim’s vaginal wall caused bythe use of the canister to sexually assault her,
should be excluded or "pruned" from the evidence. It offered to stipulate that Mrs.
Delbecq was sexually assaulted with a hair moussecanister. (R.T. 1931, Line 15 —
R.T. 1938, Line 17.)
Thetrial court overruled Appellant’s objection under Section 352 without
considering that the uncharged offense was substantially more brutal and,
74
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therefore, substantially more prejudicial than the charged offense. Indeed,it ruled
with the mistaken belief that evidence of the “Orange County case” was as
inflammatory as evidence of the Hawaiian murder seven yearslater:
“As far as 352 is concerned, I don’t even think it is
close. I don’t see how anyof that Hawaii evidence
that is admissible could create a substantial danger
of undueprejudice. I mean you only need one event
to have prejudice. Heis goingto getin all the
prejudice. And he hasto getit in, and heis entitled
to get it in on the Orange County case. Just because
someofthat happenedbefore, that doesn’t makeit
undue prejudice whenit is relevant to prove I.D.
So, 352 argumentjust doesn’t go far in my opinion.”
(R.T. 1215, Lines 14 - 24.)
Whenthe court rejected the offer to stipulate that Mrs. Delbecq was sexually
assaulted with a mousse can, it again acknowledgedthat the evidence of the
uncharged crime was "highly prejudicial." (R.T. 1943, Lines 13 — 14.) Yet, the
court ruled that it was "so highly probative,(it) didn't see how we would everfind
that its evidentiary value would be substantially outweighed byits probative
value." (R.T. 1951, Lines 12 — 16.) Thetrial court’s comments appearto invert
and confusethe test for relevancy with that for undue prejudice. Relevant —
evidence, even if highly probative, can be excluded under Section 352. Evidence
of the Hawaii homicide wasrelevant and necessary to the prosecution’s case
because the California homicide could not be tried without it. The trial court
75
concluded, in so many words,that since the evidence of the Hawaii homicide was
“so highly probative,” the weighing process of Section 352 was unnecessary. Yet,
it is precisely because of the absence of evidence that Appellant committed the
charged offense that admission of the Hawaii homicide was so unduly prejudicial.
The weighing process was notirrelevant; it was required by statute and by simple
fairness. This somewhat brusquerejection of Appellant's argumentthat the
probative value of the evidence was outweighed byits unduly prejudicial effect
stands in strong contrast to the careful analysis of Section 352 factors in People v.
Brandon (1996) 32 Cal.App.4th 1033, 1046 - 1047. Thetrial court’s cursory
acknowledgmentof the vastly more prejudicial nature of the uncharged Hawaii
murder, and the absence of any articulate balancing of that prejudice with the
evidence’s probative value, do not deserve the deference which a reasoned Section
352 analysis commands.
b. The Evidence of the Hawaii Murder
Should Have Been Excludedin its
Entirety Since its Probative Value was
Low and its Potential for Undue
Prejudice was High
The disparity between the absence of evidence linking Appellantto the
charged murder and the comparatively compelling evidencethat he brutally
murdered Muriel Delbecq madethe dangerof undue prejudice particularly grave.
Asthe prosecution openly conceded below,“if the Court (did) not allow the
76
ah
evidence of the Hawaii murder to comein (it had) no case.” (R.T. 144, Lines 11 -
13.) Thus,it “bootstrapped”legally insufficient evidence on the charged offense
into a triable case by directing the jury’s attention to an unchargedcrime.
(Compare, Davis v. Woodford, (g" Cir. 2004) 384 F.3d 628, 638 — 639, where the
Circuit found no undueprejudice from the joinder of two offenses since the
evidence was “cross-admissible on the issue of identity and intent” and “the state
did not join ‘a strong evidentiary case with a much weakercasein the hopethat the
cumulation of the evidence would lead to convictions in both cases.’ (case
cited).”) This is an unusual case indeedsince the danger of undue prejudiceis so
plain in the record and wasclearly recognized bythe parties, includingthetrial
court:
“The Court This is an I.D. case. Either welet it in for .D. purposes
and then whatever else may be relevantor it don’t come
in. If it doesn’t comein for I.D., this case is over.
Finished. At least based upon whatyou have both told
me so far.
Mr.Brent That is true.”
(R.T. 1199, Lines 1 - 7.)
In Ewoldt, the court held that the principal factor affecting the probative
value of evidence of the uncharged offenseis its tendency to demonstrate a fact in
dispute such as identity, commonplan and intent. Underthe facts of that case, the
Supreme Court found that the tendency was strong since the uncharged offense
77
was committed in a manner “nearly identical” to the charged offense. (Ibid at
403.) The Supreme Court wentonto find that in order to properly balance the
competing factors under Section 352,“it is imperative that the trial court determine
specifically what the proffered evidence is offered to prove so that its probative
value can be evaluated for that purpose.” (bid. at 406.) Since the evidenceof the
uncharged offense in this case is admissible,if at all, to prove identity, the degree
of necessary similarity to establish its probative nature was exceedingly high: a
unique, shared “signature” must have beenpresent. As set forth above, no such
shared signature wasestablishedattrial.
Under Balcom, “(t)he close proximity in time of the uncharged offenses to
the charged offenses increases the probative value of the evidence; there, the two
crimes occurred only six weeks apart. (1994) 7 Cal.4" 414, 427. Here, they were
separated by approximately 350 weeks.
Therelative brutality of the uncharged murder had a multiplier effect upon
the danger of improperly creating a conviction, where there should have been
none. Although no murder sceneis pleasant, the vicious assault upon Mrs.
Delbecq with a canister of hair mousse, and her appalling injuries, are
quantitatively different that the injuries to the victim in the charged offense. As
previously noted, the trial court failed to considerthis dramatic and important
difference between the two crimes whenit engagedin its abbreviated and inverted
78
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been particularly vigilant where claims concern state's application of their own
statutory rules in the context of capital litigation pursuant to the Eighth
Amendment’s mandate of heightened reliability in capital cases. (See, e.g., Ford v.
Wainwright (1986) 477 U.S. 399, 414; Beck v. Alabama, supra, 447 U.S. 625.)
The state may create a liberty interest in the correct application of its ownstatutes:
"Where a defendantis deprived of a statutory nght,
such deprivation may implicate the Federal Due
Process Clause. States may createa ‘liberty interest’
that is protected by the Fourteenth Amendment.
(citation.) As this court has held on more than one
occasion, ‘the failure of a state to abide by its own
statutory commands mayimplicate a liberty interest
protected by the Fourteenth Amendmentagainst
arbitratory depravation bya state.’ (Fetterly v.
Paskett (9th Cir. 1993) 997 F.2d 1295, 1300,cert.
denied, 513 U.S. 914 (1994), citing Hicks v.
Oklahoma,supra, 447 U.S. 343, 346.)"
Moreover, a state court's erroneous admission or exclusion of evidence may
violate the Federal Constitution by causing fundamental unfairnessto the criminal
defendant. (See, Kealohapauole v. Shimoda, (9th Cir. 1986), 800 F.2d 1463,
1466, cert. denied, 479 U.S. 1068 (1987); Batchelor v. Cupp, (9"" Cir 1982), 693
F.2d 859, 865 (9th Cir. 1982) cert. denied, (1983) 463 U.S. 1212 (1983).)
The trial court's erroneous admission of evidence of an uncharged homicide
wasthus contrary to state law, and denied Robert Edwardshis Federal
Constitutional rights to Due Process of Law and a fundamentally fair trial under
the Fifth and Fourteenth Amendments. In addition, the court's ruling also deprived
83
him of a fair and reliable determination of his convictions and sentence in violation
of the Eighth Amendment. (See, Sullivan v. Louisiana (1993) 508 U.S. 275; Beck
v. Alabama, supra, 447 U.S. 625, 637.) Forall of the reasons, this court must
reverse Robert Edwards’ convictions and sentence of death.
b. The Trial Court’s Erroneous Admission
of Evidence of the Uncharged Hawaii
Homicide was Especially Prejudicial
Since the Court Improperly Refused to
Deliver Defense Jury Instructionsthat
were Necessary to Adequately Explain
the Limited Use to Which that
Evidence Could be Considered by the
Jury During its Deliberations
1. The Trial Court’s Modification
of Standard CALJIC Instruction
2.50 was Improper
Using language from the Ewoldt decision, the court proposed the following
other crimes instruction designated as ‘2.50 fn. (1994)”:
“Evidence has been introduced for the purpose of
showing that defendant committed a crime other
than that for which heis on trial. Such evidence,if
believed, was not received and may not be
considered by you to prove that defendantis a
person of bad character or he has a disposition to
commit crimes. Such evidence wasreceived and
may be considered by you only for the limited
purpose of determiningif it tends to show: the
identity of the person who committedthe crime,if
any, of which the defendantis accused; a
characteristic design or plan in the commission of
criminal acts similar to the design or plan or scheme
in the commission of the offense in this case; the
84
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(C.T. 935.)
existence of the intent of which is a necessary
elementof the crime charged. Forthe limited
purpose of which you mayconsider such evidence,
you must weighit in the same manner as you do
other evidence in the case. You are not permitted to
consider such evidencefor any other purpose. For
identity to be established, the uncharged misconduct
and charged offense must share commonfeatures
that are sufficiently distinctive so as to support the
inference that the same person committed both
acts.”
The court then asked if there were any objectionsto its special instruction from the
defense. (R.T. 2857, Line 20 — R.T. 2858, Line 10.)
First, the defense objected to the final paragraph of the court’s proposed
instruction on the groundthat application of the Ewoldt decision violated the Ex
Post Facto Clause of the United States Constitution. (R.T. 2858, Lines 9 - 13.)
Second, the defense urged the court to deliver a series of additional instructions.
(C.T. 8979 — C.T. 8984.) The first series of instructions were direct quotations
from Ewoldt that would have addedthe following language to the Court’s
instruction:
“The greatest degree of similarity is required for
evidence of uncharged misconductto be relevantto
prove identity. For identity to be established, the
uncharged conductand the chargedoffense must
share commonfeatures that are sufficiently
distinctive so as to support the inference that the
same person committed both acts. The pattern and
85
characteristics of the crimes must be so unusual and
distinctive as to be like a signature.”
(C.T. 881.)
The defense also proposed the following additional language based upon People vy.
Guerrero, supra, 7 Cal.4" 380:
“If you have no doubtthat the perpetrator of the Los
Alamitos homicide was Mr. Edwards, then you may
consider the evidence of the Hawaii homicide on the
issue of intent in the Los Alamitos homicide.”
(C.T. 883.)
The court acknowledged that the task of determining whether the similarities
between the crimesare close enough to justify an inference of identity was “a
difficult concept.” (R.T. 2859, Line 14.) It rejected the defense proposed
“signature” languageto its modification because it was a “vague concept”out of
“one of the treatises”that “wasn’t that helpful” to the jury. Nevertheless,it invited
counsel to use the language during closing argument. (R.T. 2861, Line 15 — R.T.
2862, Line 6.) Likewise, the court rejected “the greatest degree of “similarity”
language proposed bythe defense as asking the jury to make an unhelpful
comparison.” (R.T. 2862, Lines 15 - 21.) Finally, the court rejected the defense
instruction based on Guerrero as an incorrect statementof the law. (R.T. 2862,
Line 22 — R.T. 2863, Line 8.)
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Here, as in Grant, Appellant did not receive a fair trial: “... the similarity
of the evidence (on the two crimes), the prosecutor’s improper closing argument,
and the trial court’s instructional errors had a substantial and injurious effect on
both verdicts. For these reasonsit is reasonably probable that the joinder affected
the jury’s verdict on both counts.” (People v. Grant, supra, 113 Cal.App.4" 579,
499.) Since the state cannot demonstrate beyond a reasonable doubtthat the faulty
and incomplete instruction did not contribute to the verdict, a reversal is required.
2. The Trial Court’s Special
Instruction for the Use of Other
Crimes was Erroneous
Uponrequest, the trial court must give an instruction limiting other crimes
evidenceto its proper scope. (People v. Grant (2003) 113 Cal.App.4" 579, 591.)
Here, the court’s decision to supplementthe standard instruction with quotations
from Ewoldt ran the inherentrisk of confusion that occurs whenever the words of
an appellate decision are transmitted into a jury instruction. (See, People v.
Colantuono (1994) 7 Cal.4" 206, 222 fn. 11.) Having chosen to do so, however,
the defense asserted that the trial court had the obligation to include the entire:
relevant quotation from Ewoldt in order to makeits instruction fair and
comprehensibleto the jury.
The language proposed by the defense wasneither redundantnor an
incorrect statement of the law; it was a direct quote from the opinionitself.
87
(Compare, United States v. T.arallo (9" Cir. 2004) 380 F.3d 1174,[no error to
refuse instruction that defendant must intend harm to the investors, as well as
deceive them;] and People v. Lenart (2004) 32 Cal.4" 1107, 1133, [court does not
err when it refuses an instruction which incorrectly states the law].) Rather, once a
trial court instructed the jury that the commonfeatures must be “sufficiently
distinctive” so as to support the inference that the same person committed the
unchargedacts, it was obliged to instruct the jury how it was to determine that
“sufficiency.”
The opinion in People v. Grant, supra,is instructive. In Grant, the Court of
Appeals held that the trial court erred whenit failed to give a defense instruction
regarding the limited use to which it could use other crime evidence. The proposed
special instruction read: “The admissibility of other crimes evidence for the
purpose of proving identity depends on whetherthe offenses shared marks of
distinction. Only common marks having somedegree ofdistinctiveness tend to
raise an inference of identity and thereby invest other crime evidence with
probative value. The strength of the inference in case depends on twofactors: (1)
the degree of distinctiveness of individual shared marks and (2) the numberof
minimally distinctively shared marks.” (Jbid. at 592, fn. 5.) While the decision did
not mandate this language upon request,it is notable that the proposedinstruction
88
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went beyond simply instructing the jury that it must find “some degree of
distinctiveness,” and informed them how todoit.
Here, too, the defense proposed instructions supplied the necessary
explanation by advising the jury that “sufficiently distinctive” shared common
features are those that are “so unusual anddistinctive as to be like a signature” and
“the greatest degree of similarity” is required for evidence of uncharged conduct to
prove identity. The trial court’s opinion that the language proposed bythe defense
should be redacted becauseit introduced a “vague concept” is undercut by the
Supreme Court’s very decision to use that exact language from McCormick on
Evidence (4" Ed. 1992)in its opinion as a necessary explanationof the
circumstances under which other crimes evidence should be admitted to prove
identity.
Similarly, the trial court’s rejection of the defense instruction that “the
greatest degree of similarity is required for evidence of uncharged misconductto
be relevant to prove identity” opened the door for the jury to misconstrue the very
different burdens of proof that the Supreme Court required, depending upon the
purpose for which the uncharged misconduct wasconsidered relevant. Thetrial
court rejected the language becauseit “asked (the jury) to compare.” (R.T. 2862.)
Yet, the trial court’s very decision to instruct thejury that it could consider
evidence by the Delbecq homicide as relevantto the issue of intent or a
89
characteristic design or identity required the jurors to make a comparison, simply
becauseofthe different standards of proof. As the defense counsel pointed out, the
rejected instruction was ‘a pure quotation out of Ewoldt.’” (R.T. 2862.) Thetrial
court’s rejection left the jury with the erroneous and very damaging impression
that the necessary degree of similarity was equivalent (or perhaps was even
greater) for it to consider the uncharged conductonthe issue of intent as it was for
identity.
Finally, the trial court’s decision to reject the defense instruction based on
their language in Guerrero becauseit was an incorrect statementof law, runs afoul
of this court’s admonition in People v. Falsetta (1999) 21 Cal.4" 903, 924,cert.
denied, (2000) 529 U.S. 1089.) In Falsetta, the Supreme Court held that the trial
court erred in failing to tailor the defendant’s proposed instruction to give the jury
some guidance regarding the use other crimes evidence, rather than denying the
instruction outright. Here, while the trial court failed to specify the perceived
defect of delivering a quotation from the Guerrero opinionto the jury, it had an
obligation under Falsetta to modify the proposed instruction in order to propeily
instruct the jury.'° In absenceof the explanatory language in Guerrero, the jury
could have reasonably used circumstantial evidence of Mr. Edwards’s intentin the
’
Hawaii homicide for an improper purpose.
'° For example,if the trial court objected to the proposed instruction ”if you have no doubtthat the perpetrator. . .
was Mr. Edwards,” it could have been easily modified to conform to the reasonable doubtinstruction.
90
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3. Even Assumingthat the Trial
Court Properly Admitted
Evidence of the Delbecq
Homicide,its Special Instruction
and Failure to Grant Defense
ProposedInstructions on “Other
Crimes Evidence” Requires a
NewTrial
An erroneousinstruction renders a criminal trial fundamentally unfair
because it creates an unreliable verdict unless it appears “beyond a reasonable
doubt that the error complainedof did not contribute to the verdict obtained.”
(People v. Petznick (2003) 114 Cal.App.4" 663, 681.) Here, as noted previously,
virtually the entire trial was consumed by a comparison betweenthe features of the
California and Hawaii homicides. The closing argumentsof the parties were
extensively devoted to that comparison. (R.T. 2914 — R.T 2936; R.T. 3022 —R.T.
3054; R.T. 3092 — R.T. 3096.) The degree of necessary similarity was also
discussed in terms of the court’s instruction. (R.T. 2914, Line 5; R.T. 3095, Line
13.) Underthese circumstances, where the comparisonis the very “signature” of
the litigation, so to speak, an instruction that correctly informsthe jury as to the
standard against which it must evaluate whether the similarity is “close enough” to
justify an inference of identity, was vital. (See, e.g., People v. Petznick, supra, and
People v. Beeman (1984) 35 Cal.3d 547, 561, [where conviction were reversed
because Appellant’s defense focused on an area of the defective instructions].)
The danger ofjury confusion and an unreliable verdict was especially pronounced
91
in this case because the jury was instructed that it could consider evidence of the
uncharged murderas proof of identity, commonplan, andintent, but it was only
partially instructed about the standard to use for determining whether such
evidence could be considered to determine identity. (R.T. 3120 — R.T. 3121.)
| Moveover, since the commission of the California homicide (by someone)
wasnot in dispute, the jury never should have beeninstructed that it could consider
the uncharged offense as evidence of a “commonplan.” Asnoted previously,
Ewoldt held that it was improper for evidence of an uncharged offense to be
admitted to prove commonplan when the commission of the crimeis notin issue:
“...ifit is beyond dispute that the alleged crime occurred, such evidence would be
merely cumulative and the prejudicial effect ... would outweigh the probative
value.” (/d. at 405.) Here, the danger of prejudicial confusion was heightened
becausethe prosecutors expressly argued for the existence of a commonplan: to
dominate and kill older, vulnerable womento satisfy a “sexually sadistic purpose.”
(R.T. 3095, Line 21 — R.T. 3096, Line 15.) Compare, People v. Demetrulias,
supra, where no prejudice was found where the jury wasinstructed thatit could
consider evidence on an uncharged offense to prove commonplan yet the
prosecutor “did not argue for the existence of a commondesignorplan as such.”
Finally, it is well-settled that the mere ability of counsel to argue a key
conceptof law is not an adequate substitute for a proper instruction from the court.
92
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(People v. Vann (1974) 12 Cal.3d 220, 227, n.6, [citing Parker v. Atchinson
T&S, 263 C.A.2d. 675, 680: “We dismiss at once the defendant’s contention that
counsel’s arguments to the jury can cure an error in the court’s instructions.. The
arguments of counsel are not a substitute for instructions by the Court.”]) Thus,
‘the trial court’s invitation to counsel to argue that the degree of similarity between
the charged and uncharged offense must be so close as to be a “signature” in order
to establish an assailant’s identity, does not cure the prejudice of having the jury
deliberate without proper guidance from the Court.
4. The Trial Court's Admission of the Evidence
of an Uncharged Homicide was Highly
Prejudicial Error Requiring Reversal of
Robert Edwards Convictions Applying Either
the ChapmanStandard of Reversalor the less
stringent standard of People v. Watson
a. This Court Should Apply the "Harmless
Error" Standard of Reversal of Chapman
v. California because the Trial Court's
Erroneous Ruling Affected Robert
Edwards’ Federal Constitutional Rights
As discussed above,the trial court denied Robert Edwards several
fundamental constitutional rights by admitting prosecution evidence of Mrs.
Delbecq's brutal homicide. Becausethetrial court's ruling impacted these
fundamental nghts, the proper standard of reversal is the "harmless error" analysis
of Chapman vy. California, supra, 386 U.S. 1824. (See, Delaware v. Van Arsdall,
(1986) 475 U.S. 673, 680.) Under the Chapman standard, reversal is required
93
rcvnan.eite casematesn temdacacsttte nfl
unless the state can show "beyond a reasonable doubtthatthe error did not
contribute to the verdict obtained." (/bid.) This familiar rule is a reiteration by the
Supreme Court of the standard in Fahy v. Connecticut (1963) 375 U.S. 65: "The
question is whetherthere is a reasonable possibility that the evidence complained
of might have contributed to the conviction." Most recently, the court has
formulated the inquiry as "whether the guilty verdict actually renderedin this trial
wassurely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S.
275, 279.) Under any of these formulations, one cannot declare that the error in
this case was harmless beyond a reasonable doubt.
b. The State cannot Showthat the Trial
Court's Ruling that Admitted Proof of
the Hawaii Homicide was Harmless
Error because All Parties below Agreed
that Without It, There was Insufficient
Evidence to Convict Appellant of the
Charged Offense
The evidence of the Delbecq murder was simply essential to the
prosecution's case. The following exchanges during the pre-trial litigation amply
illustrate this point:
"The Court Whatyouare saying is that you can't prove I.D. without
the Hawaii case?
Mr. Brent That is correct.
The Court So there is no case?
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Mr. Brent
The Court
Mr. Brent
That is correct.
That is understood.
O.K. Thank you.
(R.T. 145, Lines 13 - 19.)
~The Court
Mr. Brent
(R.T. 1199, Lines 1 - 6.)
The Court
Mr. Brent
(R.T. 1942, Lines 6 - 11.)
This is an I.D. case. Either welet it in for I.D. purposes
and then whateverelse may be relevantor it don't [sic]
comein. If it doesn't comefor I.D., this case is over.
Finished. At least based upon what you both have told
mesofar.
Thatis true.
Now,onthe I.D.issue, if the jury doesn’t find that the
acts are similar enough,there is going to be an acquittal.
Thatis right.
The proceedingsat trial confirmed these predictions that evidence of the
Hawaii murder was an indispensable ingredient of the proof that Robert Edwards
committed the charged offense. During his opening statement, the prosecution
highlighted the importance of the alleged similarities between the two homicides:
he introducedthe case to the jury as “The Tale of Two Mousse Cans." (R.T. 1953,
Lines 25 - 26.) He continued, "Ladies and Gentlemen, as you can see .. . this truly
95
is a case of two separate crime scenes. One crime scene leading to and helping you
as the trier of fact. One crime scene where there is a known perpetrator solving the
crime scene where the perpetrator is unknown. The points of commonality being
so similar and uniquethatit will be fairly easy for you as a trier of fact to conclude
that the perpetrator of one is the perpetrator of the other." (R.T. 1964, Lines 18 -
26.) Predictably, the prosecutor’s trial evidence was weighted towardsproofthat-
Appellant murdered Muriel Delbecq andthe alleged similarities between that
crime and the Deeble homicide.
Appellant's name was not even mentioned during the prosecution's proof of
the Deeble homicide, except to establish that he knew herslightly because he dated
her daughter and wasallegedly aware that a key to the victim's residence was
hidden in a drainpipe in the front of her building. (R.T. 2071 — R.T. 2084.)'' The
vast proportion of the prosecution's proof consisted of comparative descriptions of
the crime scenes and injuries inflicted upon the respective victims. (R.T. 1990 —
R.T. 2055; R.T. 2121 — R.T. 2139; R.T. 2178 — R.T. 2290.)
The prosecution's summation punctuated the crucial importance of the °°
evidence admitted under Section 1101(b). The prosecutor argued that a
comparison between the two murder scenes conclusively demonstrated Robert
Edwards's guilt. (R.T. 2913, Lines 14 - 22; R.T. 2950.) He concludedthat "the
"' As a parentheticalaside, the relevancy of even this disputed factis questionable in light of the prosecution’s proof
that there was forced entry through the window of the Deeble residence. (R.T. 2056 — R.T. 2057.)
96
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ultimate question that you are going to have to determine. . . (1) did Mr. Edwards
kill Muriel Delbecq in Hawaii. That is a simple question to answer. And if he did,
does that give you enough information to concludethat he also killed Marjorie
Deeble? Obviously, I submit to you, that it does.” (R.T. 2913, Lines 14 - 22.)
| The danger of undue prejudice wasparticularly strong in the case. First, the
evidence that Appellant committed the uncharged offense was strong while the
evidence that he committed the charged offense exceedingly weak; indeed, the
prosecution andthe trial court agreed that it was insufficient as a matter of law.
(R.T. 145; R.T. 1199.) Thus, as in People v. Rivera, the prejudice of the improper
admission is especially severe. There, as here, there were no eyewitnesses or
physical evidenceto link the defendant to the charged offense. (bid. at 393.)
(See, also, People v. Dabb (1948) 32 Cal.2d 491, 500, [where there was noreversal
based upon the introduction of evidence of an uncharged offense because "there
wasclear proof" of the charged offense]. This same point was made bythis court
in Williams v. Superior Court [during an improper joinder analysis whenit
commented, "it would be difficult for jurors to maintain doubts aboutthe weaker
case whenpresented with stronger evidence as to the other]. Williams v. Superior
Court (1984) 36 Cal.3d 441, 443, cert. denied, (1998) 522 U.S. 1150. See,
generally, People v. Marshall (1997) 15 Cal.4th1, 28 [where a joinder was
considered proper because evidence of both offenses was substantial].) Indeed, the
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evidence against Appellant was so insubstantial that he wasn’t charged until after
the commission of the Delbecq murder, seven yearslater.
Second ofall, the evidence of the Hawaii homicide was far more cruel and
inflammatory then that of the Deeble homicide, where the physical injuries were
far less severe. (See, People v. Balcom (wherethe court noted that prejudice was
increased "when the other crimeis particularly inflammatory relative to the instant
crime]. (J. Arabian.) Thus, since a substantial portion of the guilt phase was
devoted to proving the Hawaii homicide, there wasa strong possibility that the jury
considered that inflammatory proof for an improper purpose: that Appellant had a —
propensity to commit murder. (See, e.g., People v. Archer (2000) 82 Cal.App.4"
1380, 1392.) In Archer, the court considered a murder prosecution during which
the victim was stabbed with a knife. It held that it was error to admit evidencethat
knives were discovered in the defendant's bedroom, backyard and workshop since
there was no indication that any of the knives were used in the murder. As
defense counsel argued below (R.T. 1189 — R.T. 1190), the vast discrepancy
betweenthe violent mauling that the Hawaii victim received and the assailant’s
efforts simply to immobilize the California victim also created a separate danger
that the jury would improperly consider evidence of the uncharged offense as proof
that Robert Edwards had anintentto kill and torture, in addition to a propensity to
commit the charged offense.
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Third, the prejudicial impact of the improper omission of the Hawaii
homicide wasincreasedstill further because the prosecution used the qualitatively
more violent homicide in Hawaii for the improper purposespecifically forbidden
by Section 1101(a), to prove bad character:
Mr. Brent "I guess that meansthe killer isn't the same one because
(the mousse cans) are not the samekind andtheyare not
used quite the same way. Because Mr. Edwards
graduated to a moresadistic level a few years later. Or
perhaps it was because in Hawaii he could be more
sadistic because Mrs. Delbecq wasn't dead yet. Because
he didn't get the chance to ram the Merci Gelle canall the
way up Mrs. Deeble. Perhapsit was over, she died too
quickly, he didn't prolong it long enough."
(R.T. 2931, Lines 7 - 15.) (Compare, People v. Demetrulias, supra, 39 Cal.4"™ 1.)
(where the court found the danger of potential prejudice from the admission of an
uncharged offense to be low since “the prosecutordid not suggestto the jury thatit
considered (it) for any improper purpose.”)
Although the trial court instructed the jury about the limited purpose for
whichthe othercrime evidence could be considered,” this limiting instruction was
not sufficient to ensure that the jury considered the inflammatory evidenceforits
proper purposesince the strength of the evidence that Appellant committed the
uncharged offense was vastly more convincing than the feeble and legally
insufficient proof that he committed the Deeble murder. In this situation, "(N)o
' (R.T. 3116, Line 21 ~ R.T. 3117, Line 4; R.T. 3120, Line 22 — R.T. 3122, Line 13.)
99
limiting instruction, however thoughtfully phrased or often repeated, could cure the
prejudice of improperly admitted ‘other crimes' evidence." (People v. Guerrero
(1976) 16 Cal.3d 719, 730.) Thus, a reliance uponthetrial court's limiting
instructions to the jury regarding the use ofprioracts in its deliberation is
misplaced. Asthe Supreme Court noted in a related context, "the naive
presumption that prejudicial effects can be overcomebyinstructionsto the jury .. .
all practicing lawyers know to be an unmitigated fiction ...." (Bruton v. United
States (1987) 391 U.S. 123, 129. See, e.g., United States v. Daniels (D.C. Cir.
1985) 770 F.2d 1111, 1118.) ("Weare not nearly so sanguine concerning the
efficacy of jury instructions in curing the prejudice caused by the introduction of
other crimes evidence"); United States v. Figueroa (2d Cir. 1980) 618 F.2d 934,
943 (utility of limiting instructions "is not to be invariably rejected, neither should
it be in variably accepted"); United States v. Delli Paoli (2d Cir. 1956) 229 F.2d
319, 321, aff'd, 352 U.S. 232 (1957) (in which Judge Learned Handarguedthat
limiting instructions are often a "placebo"); People v. Coleman (1985) 38 Cal.3d
69 (whereinstructionsto the jury that letters from the victim which allege prior
threats from the defendant could only be considered for impeachment were
insufficient to ensure that they would not be considered as proof of the accusations
that they contained.) Moreover, since the jury was not adequately instructed about
100
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the quantum of proof needed to properly consider evidence of the Hawaii homicide
‘ to establish the identity of the assailant, any limiting instructions was useless.
Finally, as a general matter, the undue prejudice caused by the improper
admission of an uncharged homicideis particularly pronouncedsince it occurred in
a capital case, in which the conviction carried the gravest consequences. (Williams
v. Superior Court, supra, at 485; see, also, People v. Johnson (1987) 43 Cal.3d
296, cert. denied, (1989) 493 U.S. 829.)
Cc. The Admission of Other Crimes
Evidence wasSo Highly Prejudicial
that Reversal of Appellant's Conviction
is Required
The purpose of Evidence Code Section 1101(a) is to prevent the admission
of evidencethatis likely to produce the wrong result. The wrongresultis the
conviction of an innocent man. Here, substantial amounts of evidencethatis
proscribed by Section 1101(a) was admitted. The record demonstratesthat it was
used by the People for the very purpose that such evidence is excluded by Section
1101. The People argued to the jury that this evidence showed that Appellant had
the character of a man who wasnotonly capable ofkilling, but enjoyedit. In
short, the People produced guilty verdicts, and a death sentence, by proving that
Appellant had the disposition to commit murder.
101
Asset forth above, without such evidence and argument by the People, a
jury would not have convicted Appellantof a first-degree murder and would not
have sentenced him to death. All parties agreed that the evidence of the Deeble
homicide, standing alone, was too weak to support Appellant's conviction and
subsequent sentence of death. Even with the improper admission of the Delbecq
homicide, and the inadequate instructions regardingits use, the jury had a difficult
time reaching a verdict. Deliberations began on October 17, 1996. (R.T. 3144.)
The jury requested substantial portions of Appellant’s trial testimony to be re-read,
pertaining to the events of May 12, 1986. (R.T. 3150.) A verdict was not reached
until October 22™,after three days of deliberations. (R.T. 3166.) Under both the
state and federal standards,the error was prejudicial.
A result reached by evidence andlegal argumentthatis, by definition and by
law, impermissible becauseofits unreliability cannot stand. The Eighth and
Fourteenth Amendments require reliable procedures for a capital offense. (Beck v.
Alabama(1980) 447 U.S. 625, 637 - 638.) Appellant was deprived of his Eighth
and Fourteenth Amendmentrights to such procedures, not only by the evidence
that was presented, but how the People actually used that evidence.
Here, the ". . . simultaneoustrial of more than one offense . . . actually
rendered Appellant's state trial fundamentally unfair and, hence,violative of due
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process.” (Sandoval v. Calderon (9th. Cir. 2000) 231 F.3d 1140, 1146.) As
shown above, prejudice is shown in this case since the de facto joinder had a
substantial and injurious effect or influence in determining the verdict. (/bid.)
Hence, under Federal Constitutional Test of Due Process, Appellant's right to due
process as protected by the Fourteenth Amendmentof the United States
Constitution wasviolated.
d. Even underthe State Error Standard,
Reversal of Robert Edwards Conviction
is Required because the Trial Court's
Evidentiary Ruling Produced a
Reasonable Possibility that it
Considered Evidence that he
Committed an Uncharged Offense as
Proof of a Disposition to Commit
Murder
In People v. Watson (1956) 46 Cal.2d 818, 836, cert. denied, (1957) 355
U.S. 846, this court held that reversal is required whereitis, “reasonably probable"
that a more favorable result would have been obtained absentthe error. Errors
involving a trial court's decision to admit evidence are typically reviewed underthe
Watson standard. However, this court has made an exception for state court errors
implicating important constitutional rights. In People v. Fudge (1994) 7 Cal.4th
1075, 1102 - 1103, cert. denied, (1995) 514 U.S. 1021, this Court held that errors
involving merely state evidentiary rules are analyzed under the Watson standard,
butif the error is of constitutional dimensions, the Chapman_standardis
103
BpageMINNA! weFoo Sn ates magicaERBamiMEETS Aen enee inet ag ante nt
controlling. Robert Edwards submits that the Chapman standard should apply in =
this case, even though reversal of both the convictions and the sentence is required =
if the court applies the less rigorous standard of People v. Watson. pm
-
_Asset forth above, the admission of evidence of the Delbecq murder was ™
highly prejudicial, especially given the undisputed insufficiency of the =
prosecution's case withoutit. Absent the erroneous admissionof that evidence,it fo
is reasonably probable that the jury would have reached a different result and 4
concludedthat there was reasonable doubt concerning Appellant's guilt. Reversal E
of the convictionsis, therefore, required. Ne
IV. THE IMPEACHMENT OF ROBERT EDWARDS WITH HIS FIRST hd
DEGREE MURDER AND BURGLARY CONVICTIONS IN HAWAII
AND HIS BURGLARY CONVICTION IN CALIFORNIA,
VIOLATED STATE LAW AND DEPRIVED HIM OF HIS FEDERAL
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND A
FAIR TRIAL AND A RELIABLE CAPITAL CONVICTION UNDER 5
THE FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS
A. Factual Background =
The prosecution’s first question to Appellant on cross-examination was na
whether he wasconvicted of the murder of Muriel Delbecq on March 10, 1994. a
An immediate objection and motion to strike was made, following a motion for a
mistrial. (R.T. 2605, Lines 8 - 19.)
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The defense alleged prosecutorial misconduct, based on a claim that the
Delbecg murder had only been admitted as a prior act under Section 1101(b) and
that the prosecution had agreed notto introduce Robert Edwards’ arrest for that
offense, muchless his conviction. (R.T. 2605 — R.T. 2606.) The Court replied that
the convictions for murder and burglary in Hawaii, as well as the burglary
conviction in California suffered in August of 1984, were all crimes of moral
turpitude and admissible as impeachment. The court denied the motion. (R.T.
2629, Line 19 — R.T. 2630, Line 1.) The defense argued that, nevertheless, the
conviction should be excluded as prejudicial and cumulative. (R.T. 2605 — R.T.
2612.) The court observed that the crime of burglary bore heavily on credibility
since it was a crime of moral turpitude. Their admission wasnot prejudicial since
Appellant hadtestified that he was “living a life of crime to support a dope habit
and alcohol habit.” They were not remote since Appellant had been “continuously
in and out of trouble,” based upon convictions in 1984, 1987, 1988 and 1994.
(R.T. 2612, Line 15; R.T. 2613, Line 14.) Regarding the murder conviction, the
court acknowledgedthatits similarity to the charged offense was a factor arguing
against its admission, but dismissed it by noting that evidence of the Delbecq
murder had already been admitted under Section 1101(b). (RT 2613, Line 20 — RT
2614, Line 14.) When proceedings resumedin open court, the prosecution asked
Appellant whether, on March 10, 1994, he was convicted of a murder in Hawaii, as
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well as a second burglary in California in August of 1984. Appellant
acknowledgedthat he had been. (R.T. 2616, Lines 4 - 17.)
B. |The Admission of these Felonies to Impeach Appellant
Violated State Law
1. Introduction
In 1982 the “Victims’ Bill of Rights” was addedto the California
Constitution as Sections 28 (d) and (f) of Article 1. These provisions soughtto
expand the permissible use of prior crimes beyondwell established statutory
acceptations. (See, Evidence Code Sections 786, 787, 788, 790, 1101 and 1102.)
Subsection 28(d) provides in relevant part: “Except as provided bystatute
hereinafter enacted by two-thirds vote of the membership in each houseofthe
legislature, relevant evidence should not be excluded in a criminal proceeding ....
Nothingin this section shall affect any existing statutory rule of evidencerelating
to privilege or hearsay or Evidence Code Sections 352, 782 or 1103... .”
Subsection 28(f) provides, inter alia: “any prior felony conviction of any person in
any criminal proceeding, whether adult or juvenile, shall subsequently be used.
withoutlimitation for purpose of impeachment.. . .”
By the time Robert Edwardswastried, it was well settled that the adoption
of the above-cited state constitutional provisions did not entirely eliminate
Evidence Code Section 352 as the basis for excluding evidence of prior felony
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convictions. (People v. Castro (1985) 38 Cal.3d 301, 313 - 314.) In Castro,this
court also ruled that impeachmentusing prior felony convictions amounted to a
violation of due process unless the convictions used for impeachment
demonstrated a general “readinessto do evil.” (Jbid.)
The admission of past misconduct involving moral turpitude to impeach a
witness is subject to the trial court’s discretion under Evidence Code Section 352.
(People v. Feaster (2002) 102 Cal.App.4" 1084, 1092.) On appeal, thetrial
court’s decision is reviewed for an abuseof discretion. (/bid.) In exercising this
discretion under Evidence Code Section 352, the tnal court may consider four
factors identified in People v. Beagle (1972) 6 Cal.3d 441, though it need not apply
them rigidly; (1) whether the prior conviction reflects adversely on an individual’s
honesty or veracity; (2) the nearness or remotenessin time of a prior conviction;
(3) whether the prior conviction is for the same or substantially similar conduct to
the charged defense; and (4) whatthe affect will be if the defendant does nottestify
out of fear of being prejudiced because of impeachmentby prior convictions. _
(People v. Mendoza (2000) 78 Cal.App.4" 918, 925.)
2. Application of the Beagle Factors
The factors identified in Beagle support the exclusion of the conviction as
impeachment; considered together, they form a compelling argumentthat the trial
107
court committed reversible error when it admitted the conviction for the uncharged
homicide with the vain hope that the jury would only considerit as to Appellant’s
veracity.
First, although a crimeof “moral turpitude” need notinclude dishonesty as
an element” to be used for impeachment,’ a conviction for a crime of violence
does notcreate a strong adverse inferencethat an individual lacks veracity. See,
People v. Rollo (1977) 20 Cal.3d 109, 188: “no one denies that different felonies
have different degrees of probative value on the issue of credibility .. . ‘acts of
violence . . . generally havelittle or no direct bearing on honesty and veracity.’
(case cited).”
Moreover,the trial court’s characterization of Appellant as “leading a life of
crime” and “continuously in and outof trouble,” overstates his criminality. During
his direct testimony, Appellant acknowledged purchasingall types of narcotics
duringhis lifetime, but no other criminality beyond selling fake LSD. Other than
those sales, he supported his drug and alcohol habit by legitimate employment.
(R.T. 2529 — R.T. 2560.) The prosecution did not challenge this history on cross-
examination, other than to impeach him with the burglary felonies in 1984 and
3 People v. Feaster, supra, 102 Cal.App. 1084, 1091.
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1994.'* Those widely separated felonies, together with a criminalhistory that
essentially amounts to no more than possession ofthe illegal narcotics, is
distinguishable from the record in those cases which admit remote felonies based
on a finding that the defendants “did not subsequently lead a blamelesslife.”
(People v. Green, (1995) 34 Cal.App.4” 165, 183.) For example, in Green, the’
court justified its admission of a conviction suffered in 1973, 20 years beforetrial,
because Green had a “systematic occurrence” of convictions in 1978, 1985, 1987,
1988 and 1989 that were relevantto his credibility. Likewise, in People vy.
Mendoza,the court noted that the defendant suffered multiple convictions
following the crime in 1974 with which he was impeached: convictionsin 1989,
1991 and 1993. Moreover, the record in Mendoza disclosed that the ten year gap
between convictions in 1979 and 1989 was dueto his imprisonment during most of
that time. (People v. Mendoza, supra, 78 Cal.App.4" at 926.) Here, there is no
evidencein the record that the gaps between Appellant’s convictions for the
relatively minor offenses of theft, possession of a firearm and second-degree
burglary that he suffered in 1984, 1987, and 1988 werefilled in by lengthy pétiods
of incarceration. (R.T. 2605 — R.T. 2610.) Appellant’s continuous unlawful drug
use is hardly comparable; possession of narcotics is not a crime of moral turpitude.
(See, People v. Campbell (1994) 23 Cal.App.4" 1488, 1494.)
' The court refused to admit convictions for auto theft in 1988 and possession ofa firearm in 1987 to impeach
Appellant. (R.T. 2614.)
109
The “black-out” defense would have been impossible to mount without the
testimony of Robert Edwardsthat he did not rememberkilling Mrs. Deeble or any
of the events aroundthe time of her death. Quite simply,if he did nottestify from
fear of impeachment, he could not haveraised this defense of choice. It is evident
from the record that Appellant took the stand under the assumption that he would
not be so impeached. Defense counsel was shockedand outraged by the
prosecutor’s decision to impeachtheir client, because of their belief that he had
been implicitly forbidden from doing so by his agreement that he would not
introduce Appellant’s arrest during his case-in-chief and the court’s decision to
admit only evidence of the circumstances of the Delbecq murder underSection
1101(b). (R.T. 2605, Line 18 — R.T. 2606, Line 24.) Whether or not defense
counsel’s reliance wassensible,'° it cannot be said that Appellant and his counsel
made a decision to have him testify on his own behalf after a full and fair
consideration of the potential dangers of impeachment.
Finally, the danger that the jury would impermissibly consider the Hawaii
conviction for reasons other than impeachment(e.g., a propensity to commit the
charged offense) is plain from the prosecutor’s argument from the very beginning
,
'S The trial court noted that a motion to exclude felony impeachmentis “typically made . . . before every trial.”
(R.T. 2606, Lines 23 - 23.) In an explicit attempt to forestall a claim that defense counsel’s failure to make such a
motion denied Appellant’s constitutionally effective assistance of counsel, the prosecution unsuccessfully sought to
compel counsel to state on the record “tactical reason” for having failed to do so. (R.T. 2658, Line 11 — R.T. 2659,
Line 2.)
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of the trial to its final end that the two crimes were virtually identical, united by
“The Tale of Two Mousse Cans.” (See, People v. Fries, (1979) 24 Cal.3d 222,
230, where this court held that because the prior conviction admitted for
impeachmentwasidentical to the offense for which the defendant wasontrial, its
admission waserroneous; “while the risk of undue prejudice is substantial when
any prior conviction is used to impeachthe credibility of a defendant—witness,it is
far greater when the prior conviction is similar or identical to the crime charged.
(cases cited.) Asthe trial court recognized, the similarity between the alleged
offense and the admission of a conviction for that same offense for impeachment
argued against its admission under Section 352. While unspokenbythecourt, the
same argumentagainst the admission of the burglaries for impeachmentcould be
made, since the Appellant was accused ofthe special circumstance of murder
during the commission of a burglary. Although this court has observed that “prior
convictions for identical offenses are not automatically excluded,the identity . . . is
just one factor to be considered,”'® this record is unique because the alleged factual
identity between the uncharged and charged offense was described in the oreaiest
detail to the jury following the court’s admission of the Delbecq murder under
Section 1101(b). Thus, the accepted danger of admitting the bare fact of a
conviction that shares the same elements of proof as the charged offense to
'© People v. Green (1995) 34 Cal.App.4" 165, 183.
111
impeach a defendant’s credibility was ratcheted up to an unacceptablelevel.
Becauseof the confluence of the court’s evidentiary rulings under Sections 788
and 1101(b) of the Evidence Code, the jury knew that Appellant had been
convicted of a crime that was allegedly identical to the charged offense because of
their unique shared signatures. Counsel has been unable to find any reported case
that considers the massive potential prejudice of this uniquesituation.
C. The Admission of the Three Felony Convictions
Irreparably Prejudiced Appellant’s Right to a Fair Trial
In assessing the prejudice caused by the admission of the conviction and
underlying facts of an allegedly identical offense, one need look no further than the
settled rule that “the scope of inquiry when a criminal defendantis impeached with
evidence of a prior felony conviction does not extendto the facts of the underlying
offense.” (People v. Shea (1995) 39 Cal.App.4"" 1257, 1267 (cited, People v.
Heckathorne (1988) 202 Cal.App.3d 458, 462.)'’ Indeed, evenafter it improperly
admitted evidence of the Delbecq murder underSection 1101, the court honored
the letter, if not the spirit, of this rule when it admonished the prosecution to admit
“Just the facts of these convictions (for impeachment). Nothing further on them.”
(R.T. 2614, Lines 13 - 14.) Here, as noted in ArgumentIII, the underlying facts of
'’ There is a limited exceptionto this rule, not applicable here, when the defendant attempts to mislead or minimize
the facts of that earlier conviction. (/bid.) In People v. Smith, the Supreme Court noted, but did not decide, the
question of whetherthe truth-in-evidence provision of the California Constitution affected the vitality of the rule
prohibiting inquiry into the facts underlying a crime admitted for impeachment. (2003) 30 Cal.4" 581, 633,cert.
denied, (2004) 540 U.S. 1163.)
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the Delbecq murder comprised a substantial — and indeed crucial — portion of the
prosecution’s case against Appellant.
It is evident from the recordthatthetrial court failed to consider the grave
prejudice that flowed from its decision to admit the underlying facts of the Delbecq
murder together with the Appellant’s conviction for that murder, The court
simply, but improperly, assumedthat the jury’s consideration of Appellant’s
conviction for the same offense was no more prejudicial than its consideration of
the facts underlying that conviction.
“The Court The only negative or meaningin the defense favor on the
murderis thatit is an identical crime, butthat is offset by
the fact that they have already heard the 1101(b)
evidence. The test is the same. The evidence in Hawaii
was very strong in that palmprints were left and there is
probably going to be no attack against that. I could be
wrong on that.
Mr. Severin No, there won’t be.”
(R.T. 2613, Line 20 — R.T. 2614, Line 1.)
Counsel’s concessionthat the palm print evidence would not be challenged cannot
be construed as an acknowledgmentthat the combined admission of the underlying
facts of the Hawaii murder and Appellant’s conviction for that crime had no
113
a FeePSIesrNeaeROAe Ahateen re fy canteent ennhumERADAMOSANGimaneea Ee gr ana eatencit He RaeneatBREACeceetatn
potential for prejudice. During the guilt phase, neither Appellant nor his counsel
concededhis responsibility for the Hawaii murder."
Asset forth above, courts have long-recognized that the admission of
uncharged criminal acts poses an inherent danger of prejudice. Here, the
admission of Appellant’s conviction for committing that uncharged act — the brutal
murder of Muriel Delbecq — multiplied the danger of undue prejudice in two ways.
First, it was undoubtedly used by the jury to wholly — but improperly — to
satisfy the prosecution’s burden to prove Appellant’s commission of the Delbecq
murder by a preponderance of the evidence before it could consider that evidence
to establish identity or intent. (People v. McClellan (1969) 71 Cal.2d 793, 804.)
Althoughthe jury wasinstructed that it can only consider Appellant’s conviction
for the Delbecq murderto impeach his credibility,’’ any and fair and honest
evaluation of its impact upon the jury’s verdict would concludethatit had a
decisive, conclusive effect. The recent opinion in People v. Songis instructive.
(2004) 124 Cal.App. 4" 973.)
In Song, the Court of Appeals reversed a kidnapping conviction based upon
a so-called Aranda-Bruton error that occurred whenthetrial court admitted a co-
'8 Indeed, although the prosecution characterized it as “a simple question to answer,” he admitted during closing
argumentthatoneofthe two “ultimate questions” that the jury had to consider was “did Mr. Robert Edwardskill
Muriel Delbecq in Hawaii?” (R.T. 2913, Lines 18 - 19.) In response, the defense closing argumentasked the jury to
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defendant statementthat he saw the defendant force the victim into a car against
her will. The limiting instruction was insufficient to eliminate the error. In so
ruling, the opinion cited Justice Trayor’s observation in Aranda-Bruton: “A jury
cannot “segregate evidencein to separate intellectual boxes.’ (citation omitted.) It
cannot determine that a confession is true insofar as it admits that A has committed
criminal acts with B and,at the same time, effectively ignore the inevitable
conclusion that B has committed those same criminal acts with A.” (bid. at 983.)
Here, of course, the jury’s task to confine its application of a criminal conviction of
an uncharged offense to impeachment, without using it to conclude that Appellant
committed the uncharged offense, is even more difficult than the jury’s task in
Aranda-Bruton or Song. There, the courts found that a limiting instruction could
not protect a defendant against a co-defendant’s accusation of acrime. Here, the
court did not simply admit a mere accusation that Appellant committed the
Delbecq murder; it admitted a conclusive judicial finding that he did so.
Second, as defense counsel argued below,”’ admission of Appellant’s
conviction of the Delbecq murder madeit even morelikely that the jury would
ignore the limiting “similar acts” instruction”' and conclude that since he was
convicted of one brutal murder, he mustalso be guilty of the charged offense.
“look at evidence, Hawaii evidence, analyze it carefully, very carefully, just as you do the Los Alamitos case.”
(R.T. 3019, Lines 23 - 26.)
? RT. 3119, Lines3 - 12.
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Again, this record is unique since the jury was askedto ignore two natural, but
wholly improper conclusions, to be drawn from the admission of evidence of the
“identical” Delbecq murder and Appellant’s conviction for that offense: first, that
the conviction conclusively established his responsibility for the Delbecq murder
and, second, that is undoubted commission of the Delbecq murder showed his
propensity to commit the charged offense. Case after case has held, in
circumstances muchless demanding onthetriers of fact, that fairness and simple
commonsense compel a conclusionthat limiting instructionsare ineffectual. (See,
cases Section III(D)(3)(b) of the Opening Brief.)
The impact of the admission of the Hawaiian conviction uponthe jury’s
deliberation upon whether Appellant committed the Delbecq murder was not
harmless. Neither defense counsel or Appellant ever conceded his commission of
the Delbecgq murder; that issue remained open throughthe conclusion ofthe
closing arguments.” The question of whether Appellant committed the Delbecq
murder wasof signal importance;all parties agreed that if the jury concludedthat
he did not, an acquittal would inevitably follow.
D. —Appellant’s Federal Constitutional Rights to Due Process
of Law, Fundamental Fairness, and a Reliable
> R.T. 2607, Line 26 — R.T. 2608, Line 8.
7" RT. 3120 — R.T. 3122.
*2 During its closing remarks, the prosecution acknowledged that defense counsel had not conceded Appellant’s
commission of the Delbecq murder; rather, he only expressed his opinion that defense counsel appeared to him “to
understand”that the jury would conclude that Appellant did so. (R.T. 3292, Lines 14 - 20.)
116
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Determination of Guilt and of the Penalty were Violated
by the Improper Impeachment
Bythe dual errors of admitting evidence of the Delbecq murderas well as
Appellant’s actual conviction for that offense, the trial court in essence invited the
jury to find that Robert Edwards’ bad character disposed him to commit the
charged offense. This was not only an abuse of judicial discretion under Evidence
Code Section 352, but a violation of Appellant’s right to a fair trial, due process of
law, and a reliable determination in a capital case. (Hicks v. Oklahoma,supra,
447 U.S. 343; Beck vs. Alabama, supra, 447 U.S. 625, 627.) “A concomitant of
the presumption of innocenceis that a defendant must be tried for what he did, not
for whoheis.”” (United States v. Myers 5" Cir. 1977) 550 F.2d 1036, 1044, cert.
denied, (1978) 439 U.S. 847.) As a result of the use of Delbecq murderfor
impeachment, Robert Edwardswasregrettably tried for “whoheis,” and not for
“what he did.” (Ibid.) His federal and state constitutional rights to due process of
law anda reliable determination of guilt and penalty were violated. (U.S. Const.
Amends.V, VI, VIII and XIV.) His convictions must be reversed undereither the
Chapman or Watson standards.
Vv. THE TRIAL COURT EXCLUDED EXCULPATORY DEFENSE
EVIDENCEIN VIOLATION OF STATE LAW AND
APPELLANT’S FEDERAL CONSTITUTIONAL RIGHTS
117
A. The Trial Court Excluded Expert Testimony that Would
Have Established that a Mousse Can was Not Used to
Assault Mrs. Deeble as well as other Evidence that would
have Circumstantially Corroborated his Innocence,
Contrary to State Law and in Violation of his Federal
Constitutional Rights to a Fair Trial, to Present a Defense
and Compulsory Process and Heightened Reliability in a
Capital Trial in Violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments
1. Standard of Review
Asset forth in Section III(C), this court typically reviewsa trial court’s
evidentiary rulings for abuse of discretion. (See, People v. Burgener (1986) 41
Cal.3d 505.) However, Appellant renews his contention, as set forth in that
section, that because this is a capital case and becausethe error wasa violation of
federal constitutional rights, a heightened standard of review should be applied and
this court should independently examine the record to determine whetherthe
erroneous exclusion discussed below was not harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24.)
2. The Trial Court Improperly Excluded Expert
Opinion that the Injuries to Mrs. Deeble’s
Vagina and Rectum were Consistent with
Consensual Vaginal and Rectal Intercourse
a. Introduction
In the guilt phase, the prosecution presented the testimonyof pathologist Dr.
Richard Fukumototo support its theory that Appellant committed the murders of
Marjorie Deeble and Muriel Delbecq because of a uniquely distinctive modus
118
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operendi: the use of hair mousse can to sexually assault both women. Dr.
Fukumoto was allowed to opine that the injuries to Mrs. Deeble were consistent
with those that could have been caused by a mousse can found in the bedroom,
near her body. In rebuttal, the defense called its pathologist, Dr. Paul Wolfe.
However, the trial court prevented Appellant from asking his expert witness
whetherthe injuries to Mrs. Deeble were consistent with consensual sexual
intercourse, finding that the hypothetical questions were not supported by the
evidence. The court’s ruling was erroneous. Since the court applied an arbitrary
and uneven evidentiary standard to the parties when it madetheserulings,it
violated Appellant’s federal constitutional nghts underthe Fifth, Sixth, Eighth and
Fourteenth Amendments and Cal. Const., Article 1, Sections 7, 15.
b. The Testimonies of Drs. Fukumoto and
Wolfe
Dr. Fukumoto did not conduct the autopsy of Marjorie Deeble; he based his
opinions uponhis review of the slides, photographs, and reports prepared by his
partner, Dr. Richards, whoretired since conducting the autopsy. (R.T. 2121 —R.T.
2123.) Dr. Fukumoto noted bruising on the labia and vaginal vault. He also noted
a hemorrhage andlaceration of the posterior fourchette. (R.T. 2137.) The
bleeding wasonly detected microscopically; there was no surface bleeding.
Although Dr. Richards did notindicate the size of the lacerations, the microscopic
119
nature of the bleeding indicated that the lacerations were not deep andthat they
were very tiny. (R.T. 2146, Line 25 — R.T. 2147, Line 5.) The rectum wasdilated,
although Dr. Richards did not measure its extent. The bruising and lacerations
were not deep within the vagina and rectum; they were just inside the openings.
(R.T. 2155, Line 18 — R.T. 2157, Line 1.)
After Dr. Fukomoto’s attention was directed to the injuries that Dr. Richards
observed to Mrs. Deeble’s rectum and vaginal areas, the court permitted the
following questions:
“Q (by Mr. Brent) And I] want to show you what we have marked first of
all, we cannot know from the medical findings by
looking at it, what it was that causedthese injuries, can
we?
A No, I can nottell you. All I can say it is somethingthatis
— does not have any sharp edges.
Q Okay, so if I were to show you what would be marked at
People’s 16 for identification (the mousse can) would
this be consistent with an object that could have caused
these various injuries.
A Yes.”
(R.T. 2138, Lines 8 - 19.)
The defense called Dr. Wolfe in rebuttal. Dr. Wolfe saw “small mucosal
lacerationsin the rectal area.” (R.T. 2487.) He jqined with Dr. Fukumoto in
noting that Dr. Richards did not describe the length and depth of the lacerations
that he observedin the vaginal area. (R.T. 2488.) There was “a very minor
120
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amount of hemorrhage beneath the covering of the vagina.” (R.T. 2489, Lines 13 -
15.) In sum, Dr. Wolfe characterized the injuries to the vagina and rectum as
“extremely minor” and consisting of “small areas of removal of the vaginal
mucosa with a small amount of hemorrhagein the areas of that removal... .”
(R.T. 2492:) The following questions regarding Dr. Wolfe’s opinion of the cause
of Mrs. Deeble’s vaginal andrectal injuries were disallowed:
"Q
Mr. Brent
The Court
Q (by Mr. Bates)
Mr. Brent
The Court
Q (by Mr. Bates)
Mr. Brent
The Court
Q (by Mr. Bates)
Now,doctor, the degree of injuries in the Deeble case,
can you determine as a pathologistthat the trivial amount
of injuries in this case are minor enoughthatthey are
consistent with consensual vaginal and rectal
intercourse?
Assumesthe fact not in evidence, object.
Sustained.
What, if anything, is the degree of submucosalor of
microscopic injury consistent with?
Objection, Your Honor,calls for speculation. Assumes
facts not in evidence.
Sustained.
Doctor, as a pathologist, do you have accessto studies in
particular, and is it accepted in the field that ordinary
vaginal intercourse, ordinary routine intercourse can
cause microscopic injuries in as muchas 61% ofthe
cases?
Objection, assumesfacts not in evidence, Your Honor.
Sustained.
Doctor, do you have any information on that subject?
12]
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Mr. Brent Objection, Your Honor, vague. Same objection, assumes
facts not in evidence. Can we go on to another question?
The Court The objection is sustained.
Q (by Mr. Bates) Doctor, this will just take a yes or no answer. In your
opinion are pathologists in 1996 in a position to be able
to render an opinion as to whether microscopic injury to
the vagina canbe caused by ordinary intercourse?
Mr. Brent Objection, relevance, assumesfacts not in evidence in
this case.
The Court Sustained.”
(R.T. 2490, Line 22 — R.T. 2492, Line 5.)
Cc. The Trial Court’s Rulings were Plainly
Erroneous and underState Law and
Violated the Federal Constitution
The trial court erred when it repeatedly prevented Appellant from asking
questions which wereplainly relevantin light of the prosecution’s theory of the
case and examination of its own expert, Dr. Fukumoto. The prosecutor’s
objections were transparently baseless because the hypothetical questions were
supported by evidence in the record. (People v. Simms (1993) 5 Cal.4" 405, 436,
fn. 6, cert. denied, (1994) 512 U.S. 1253; People v. Hayes (1985) 172 Cal.App.3d
517, 523.) Indeed, in People v. Boyette (2002) 29 Cal.4" 381 , this court recently
stated, “the hypothetical statement of facts posed to an expert witness need not be
limited to evidence already admitted into evidence, ‘so long asit is material of a
type that is reasonably relied upon by expertsin the particular field forming their
122
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opinions ....’ (Ibid. at 449, quoting People v. Gardeley (1996) 14 Cal.4"" 605,
618, cert. denied, (1997) 522 U.S. 854.)
In Appellant’s case, there was ample evidence in the record to support the
challenged hypotheticals. Before they were posed, Dr. Fukumotonoted that the
bleeding was only detected microscopically and that this denoted either very
shallow or very small lacerations; nothing in his testimony aboutthe injuries to the
vaginal and rectal areas rebutted Dr. Wolfe’s characterization of those injuries as
“extremely minor.” Based uponthis record,the trial court’s ruling that the
hypotheticals posed to Dr. Wolfe aboutthe “trivial injuries” assumedfacts “not in
evidence”was unjustified. Indeed, the court did not and could not elaborate upon
its ruling.
Assuming arguendothat counsel’s characterization of Mrs. Deeble’s injuries
as “trivial” was an objectionable fact not in evidence, the court erred whenit
sustained two attempts by counsel to correct the deficiency: first, by asking Dr.
Wolfe to opine upon the cause of the injuries and then,failing that, by simply. :
asking a foundational question of whether pathologist is able to render an opinion
as to whether a “microscopic injury to the vagina can be caused by ordinary
intercourse.” (R.T. 2491, Line 24 —R.T. 2492, Line 2.) The court’s ruling that the
first question called for improper speculation by the expert witness was directly
123
contrary to its willingness to allow Dr. Fukumototo speculate that the cause of the
injuries were consistent with those which could have been inflicted by a hair
mousse can.”
_ Likewise,the court’s ruling that it was “irrelevant” and “assumeda fact not
in evidence” for Dr. Wolfe to express an opinion as to whether pathologists could
express an opinion about whether injuries could be inflicted during intercourseis
difficult to justify. While there was not proof that Mrs. Deeble had intercourse
near the time of her death, there also was no proofthat the mousse can wasused as
an instrumentof assault. The court apparently relied upon the mere presence ofthe
mousse canat the scene of the crimeto justify the hypothetical aboutits possible
use as an instrument of Mrs. Deeble’s injuries. Thus, by the same token, the long
standing romantic relationship between Mrs. Deeble and Paul Royat the time of
her death,” andthe fact that Mr. Roy called her the evening before her death,
should have been sufficient facts in the record to justify a question about whether
sexual intercourse wasthe causeofherinjuries other than a mousse can. Thisis
especially true since the People’s expert did not ever quantify the probability that
the mousse can wasthe source of the injuries. Accordingly, the threshold showing
*3 Again, the court did not elaborate uponthe basis ofthis ruling. Certainly, it cannot be explained by a lack of
qualification to express such an opinion. Dr. Wolfe’s credentials as a pathologist met, and could be fairly said to
have exceeded, those of Dr. Fukumoto. Dr. Wolfe was the Director of Autopsy for the Veteran’s Adr ‘nistration in
La Jolla and Trauma Pathologyat the University Hospital for the University of California at San Diege. (R.T.
2477.)
4 R.T. 2770 — R.T. 2772.
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of relevance that was required to admit an opinionasto the cause of Mrs. Deeble’s
injuries by the defense expert should have been exceedingly low.
d. The Trial Court’s Decision to Sustain the
Baseless Objection Violated Appellant’s
Federal Constitutional Right to Present a
Defense
Appellant has a constitutional right to present a defense:
Whether rooted in the Due Process Clause of the
Fourteenth Amendment, Chambers vy. Mississippi,
supra, or Confrontation clauses of the Sixth
Amendment, Washington v. Texas, 388 U.S. 14, 23
(1967); Davis y. Alaska, 415 U.S. 308 (1974), the
Constitution guarantees criminal defendants “a
meaningful opportunity to present a complete
defense.” California vy. Trombetta, 467 U.S., at
485; cf. Strickland v. Washington, 466 U.S. 668,
684 - 685 (1984) (“The Constitution guarantees a
fair trial largely through the several provisions of
the Sixth Amendment.”) (Crane v. Kentucky
(1986) 476 US. 683, 690.)
Numerousdecisions of the United States Supreme Court affirm this right. In
Chambers y. Mississippi (1973) 410 U.S. 284, the constitutional error arose from
Mississippi’s refusal to admit exculpatory hearsay evidence. In Green v. Georgia,
(1979) 442 U.S. 95, the court reversed for similar reasons a Georgia penalty
determination in which a hearsay statement of a co-conspirator, implicating
himself and exculpating the defendantin the actual murder, was excluded as
hearsay. The high court found a due process violation in Georgia’s application of
125
its hearsay law whenthe excludedtestimony washighly relevantto a critical issue
in the penalty phase, and substantial reasons existed to assumeits reliability. (d.
at 97.) Finally, in Holmes v. South Carolina ______ United States ___ (Decided
May1, 2006), the United States Supreme Court reversed a conviction wherea trial
court excluded evidence of third party culpability because it violated the
defendant’s Sixth Amendmentright to have “a meaningful opportunity to present a
complete defense.”
People v. Cunningham (2001) 25 Cal.4" 926,cert. denied, (2002) 534 U.S.
1141, this court’s most recent word onthe subject, sets forth a controlling
principle. The prosecution’s evidence established that defendant wentto a bar in
Pasadena wherethe victims Treto and Cebreros were socializing. Several times
during the evening, Treto displayed a large amountof cash. (/d. at 957.) At the
end of the evening, Treto and Cebreros proceeded to the parking lot behind the bar
and were aboutto enter Treto’s vehicle when defendant approachedthe two, drew
a gun, demanded Treto’s cash andfinally shot Treto. (/d.) Over defense objection,
the trial court excluded evidence that the two men hadparticipated in a high stakes
gambling tournament twonights earlier. The defense arguedthat this public
exposure of Treto’s high stakes gambling could have motivated othersto steal
Treto’s money. (/d. at 996.) Thetrial court also prevented defense counsel from
cross-examining Treto’s wife concerning letters that had been found in his wallet,
126
|
written by another womanto Treto, apparently concerning their relationship. (ld.
at 997.) The latter ruling was based uponthetrial court’s determination that
defense counsel had not provided information to support a plausible theory that the
murder was somehow connectedto Treto’s personallife. (/d. at 997 — 998.) This
court held that the rulings did not constitute an abuse of discretion, but affirmed the
principle that the Fifth Amendment guaranteed the right to present a defense:
Although the complete exclusion of evidence
intended to establish an accused’s defense
may impair his or her right to due process of
law, the exclusion of defense evidence on a
minoror subsidiary point does notinterfere
with that constitutional rights. (People v.
Fudge, supra, 7 Cal.4" 1075, 1103.)
Accordingly, such a ruling, if erroneous,is
‘an error of law merely,’ which is governed
by the standard of review announced in
People v. Watson (1956) 45 Cal.2d 818, 836,
299 P.2d 342; People v. Fudge, supra, 7
Cal.4"™ at 1103.)
This is not a case of Appellant claiming constitutional error merely from an
erroneousevidentiary ruling. The inequity of allowing a prosecution witness to
express an opinion aboutthe cause of injuries to the victim, and denying that same
opportunity to the defense, is self-evident. As set forth below,the key to the
prosecution’s case wasthat the “signature” use of mousse cans to sexually assault
both womeninexorably pointed to Appellantas the assailant. The defense
reasonably attempted to show that this conjecture was not based upon any
127
evidence, other than Dr. Fukumoto’s expert opinionthat the injuries “could have
been caused”by a mousse can found at the crime scene. Without a doubt,
Appellant was denied “‘a meaningful opportunity to present a complete defense”
whenthe court sustained the prosecution’s objections to hypothetical questions,
amply justified by evidence in the record, to establish that the “Tale of Two
Mousse Cans” was a workoffiction, and not fact. (Crane v. Kentucky, supra, 476
U.S. 689, 690.)
e. The Trial Court’s Decision to Sustain
the Baseless Objection Also Violated
Appellant’s Federal Constitutional
Right to Fair Treatment Between the
Parties
Thetrial court’s refusal to allow defense counsel to pose relevant
hypothetical questions to its expert witness that were based upon evidencein the
record violated not only state law but also Appellant’s federal constitutional rights.
The application of asymmetrical evidentiary standards to the parties violates a
defendant’s constitutional rights, including the Sixth and Fourteenth Amendment
rights to present a defense and to due process. Such arbitrariness also violates the
Eighth Amendmentrequirementof a reliable determination of capital murder.
(Beck v. Alabama,supra, 447 U.S. 625.)
The United States Supreme Court has recognized the need for fairness
between the defense andthe prosecution. In Wardius v. Oregon (1973) 412 US. -
128
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470, 475 fn. 6, the United States Supreme Court warnedthat, “state trial rules
which provide nonreciprocal benefits to the state where the lack of reciprocity
interferes with the defendant’s ability to secure a fair trial” violate the defendant’s
due process rights under the Fourteenth Amendment. (See, also, Washington v.
Texas (1967) 388 U.S. 14, 22; Green v. Georgia (1979) 442 U.S. 95, 97; Webb v.
Texas (1972) 409 US. 95, 97 - 98; Izazaga v. Superior Court (1991) 54 Cal.3d
356, 372 - 377; cf. Goldstein, The State and the Accused: Balance ofAdvantagein
Criminal Procedure, 69 Yale L.J. 1149, 1180 - 1192 (1960).) Noting that the Due
Process Clause “does speak to the balance of forces between the accused and his
accuser,” Wardius held that “in the absence of a strong showingofstate interests
to the contrary”there “must be a two-waystreet” as between the prosecution and
the defense. (Wardius, 412 U.S. at 474.) Other Supreme Court opinionsalso
agree that the Due Process and Equal Protection Clauses of the Fourteenth
Amendmentare violated by unjustified and uneven application of criminal
proceduresin a waythat favors the prosecution over the defense. (/bid.; see, also,
Lindsay v. Normet (1972) 405 U.S. 56, 77 [arbitrary preference to particular
litigants violates equal protection]; Greenv. Georgia (1979) 442 U.S. 95, 97
[defense precluded from presenting hearsay testimony which the prosecutor used
against the co-defendant]; Webb v. Texas (1972) 409 U.S. 95, 97 - 98 [judge gave
defense witness a special warningto testify truthfully but not the prosecution
129
witnesses]; Washington v. Texas (1967) 388 U.S. 14 [accomplice permitted to
testify for the prosecution but not for the defense]; Chambers v. Mississippi (1973)
410 U.S. 284 [unconstitutional to bar defendant from impeaching his own witness
although the governmentwasfree to impeachthat witness]; Hicks v. Oklahoma,
supra.
Based upon these Constitutional principles, the trial court could not prevent
Appellant from posing a hypothetical question to an expert witness regarding the
cause of the vaginal andrectal injuries to Mrs. Deeble and employa different rule
for the prosecutor by allowing him to posit essentially the same hypothetical that
had the same,if not less, evidentiary support. By curtailing only the defense
questioning ofits pathologist, the trial court inexplicably employed different
evidentiary standards without enunciating any rational basis upon which to do so.
Thetrial court’s disparate treatmentof the parties thus violated Appellant’s
constitutional rights, including the rights to present a defense and to due process
underthe Sixth and Fourteenth Amendments,andto a reliable determination ofhis
guilt of capital murder as required by the Eighth Amendment.
f. The Errors Prejudiced Appellant
These arbitrary, erroneous and asymmetrical rulings prejudiced Appellant
underboth state and federal harmlesserror standards. (People v. Watson, supra,
46 Cal.2d 818, 836; Chapmanv. California, supra, 386 U.S. 18, 23.) As set forth
130
in ArgumentITI, all parties, as well as the trial court, agreed that there was
insufficient evidence to convict Appellant of the charged offense unless the jury
considered evidence of the Delbecq homicideto establish his identify as the
assailant in both crimes. In turn, the lynchpin of the prosecution’s argumentfor
the admission of the Delbecq murder, as well as his eventual argumentto the jury
that Appellant committed the Deeble murder, washis assertion that the two crimes
shared a unique signature: the alleged use of a hair mousse can to sexually assault
both women. Asthe prosecution colorfully commented during his opening
statement, his proof against Appellant was “The Tale of Two Mousse Cans.” (R.T.
1953, Lines 25 - 26.) Very simply, Appellant’s guilt or innocence rested upon the
prosecution’s ability to persuade the jury that both womenwereassaulted with hair
mousse cans. During closing argument, the defense repeatedly suggested to the
jury that the relatively minor injuries to Mrs. Deeble’s vagina and rectum, coupled
with the absence ofa definitive conclusion that the reddish-brownsubstance on the
mousse can cap was human blood, undercut the prosecution’s central contention
that the crimes were joined by unique signature. (R.T. 2988 — R.T. 2989; RT:
3055 — R.T. 3058.) The prosecution replied that the use of “The Tale of Two
Mousse Cans” was “arguably (his) strongest piece of evidence.” (R.T. 3103, R.T.
3121 —R.T. 3123.) Indeed, the prosecution somewhat playfully told the jury that
whenhestarted his closing argumenthe thoughtabout “holding up these two
131
mousse cans and saying “mousse cans’ andsitting down.” (R.T. 2898, Line 608.)
The prosecution noted the defense effort to establish, through its expert witness,
Dr. Wolfe, that Mrs. Deeble’s injuries were result of “a consensual sexual
encounter,””° but dismissedit at length by arguing that there was “no apparent
penile penetration.” (R.T. 2931, Line 32.) The prosecution’s readiness to dismiss
the attempt by the defense to rebut its key argument was doubly unfair;first,
because the court improperly permitted the defense from eliciting an expert
opinion that Mrs. Deeble’s injuries were caused by some agentother than a mousse
can and, second, because the prosecution’s argumentitself was not based on any
evidence other than the presence of a moussecanat the crime scene and Dr.
Fukumoto’s opinion that, maybe, the can “could have” caused those injuries.
Thus, the court’s uneven application of the rule of evidencethat allowed the
prosecution’s expert to opine that Mrs. Deeble’s injuries were consistent with those
that could have been inflicted by the mousse can foundat the scene, but prohibited
the defense expert from opining that they were consistent with consensual vaginal
and rectal intercourse, were both plainly unfair and gravely prejudicial.
The conflicting rulings of the trial court allowed the prosecutor to abuse the
hypothetical question and prevent the jury from hearing all relevant testimony Dr.
Wolfe had to offer. The record establishes that these errors were not harmless
3 RT. 2905.
132
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beyond a reasonable doubt because the parties agreed that without connecting the
Hawaii to the California case, there was insufficient evidence to support conviction
for the charged offense. (Chapman vy. California, supra, 386 U.S. 18, 23.)
Alternatively, there is a reasonable probability that the errors affected the outcome
of the trial. (People v. Watson, supra, 46 Cal.2d at 836.) As previously noted, the
jury was unable to reach a verdict for days and asked for significant portions of the
trial to be reread. Appellant’s convictions and sentence of death must be reversed.
B. The Trial Court Improperly Excluded Vital Testimony
that Could have Circumstantially Corroborated
Appellant’s Defense that he was in an UnconsciousState
at the Time of the Murder
1. Introduction
Appellanttestified at trial that he was in a “blackout” or unconsciousstate
on the night of the Deeble homicide, due to alcohol and narcotic abuse. (R.T. 2596
- R.T. 2604.) The “blackout defense,” or argument that Appellant’s degree of
intoxication was so severe that he lacked the specific intent to commit the charged
offense, was the thrust of much ofthe closing argumentto the jury. (R.T. 2992 —
R.T. 3002.) The prosecution attacked the defense, both during cross-examination
of Appellant and during closing argument. (R.T. 2626 — R.T. 2627; R.T. 2963 -
2964; R.T. 2936 — R.T. 2949.) In sum, the prosecution argued that the planning
and complexity of the murder wasinconsistent with the finding that Appellant was
133
so intoxicated that he was in an unconsciousstate. It is significant to the argument
below that the prosecution also argued that there was no corroboration of
Appellant’s claim that he suffered blackouts:
“So the only words you have,the only person that
knows whether they had a blackout was Mr.
Edwards. And you are back to that same issue, why
do you believe Mr. Edwards? Whydo youbelieve a
convicted burglar and a convicted murderer? Why
would you believe him?”
R.T. 2944, Lines 19 - 25.)
2. Excluded Testimony that Corroborated
Appellant’s Claim that He was Unconscious
in an Alcoholic Blackout on the Nightof the
Deeble Murder
Vincent Portello testified that one evening in 1991 or 1992, he spent the
evening with Appellant and his girlfriend, Brenda. The three were drinking
heavily and decided to get some more beer. As Appellant was driving to get some
beer, Brenda began hitting him and threatening him with a screwdriver. As a
result, Appellant lost control of his car. Portello spent the night with Appellant and
Brenda. (R.T. 2713 — R.T. 2715.) The court sustained the prosecutor’s objection
to any testimony about whether Appellant rememberedthefracas:
Q Now,on the following day after this incident, this just
calls for what you said, on the following day after this
incident, did you mention the incident to Rob?
134
Mr. Brent
Mr.Bates
Mr. Brent
The Court
Yes, I did.
Now,did Mr. Edwardsreply back to you that he did not
recall any ofit?
Your Honor,that, of course, calls for hearsay, and I
would objecttoit.
Your Honor, on that issue I would offer it not as hearsay
at all but as circumstantial evidence of an alcoholic
blackout and pursuant to 1250 of the Evidence Code,
Your Honor.
No foundation that ties into any kind of blackout.
Sustained.”
(R.T. 2715, Line 17 —R.T. 1716, Line 16.)
Janice Hunt recalled an evening in Hawaii during which Appellant had been
drinking heavily. She asked him to pick up groceries. The following morning she
found the groceries, including somerefrigerated items, still in the vehicle that
Appellant used to drive to the market. (R.T. 2644 — R.T. 2645.) Whenthe defense
asked the witness for Appellant’s response when she told him hehadleft the
groceries, the following exchange tookplace:
“Q (by Mr. Severin)
A
Q
Mr. Brent
Mr.Severin
The Court
Did you tell him you had found these things down there?
Yes.
And whatwashis response?
Objection, calls for hearsay.
Your Honor,it is not offered for its truth, state of mind.
The objection is sustained.
135
Q (by Mr. Severin) You showed Mr. Edwardsthe items?
A Yes.
Q How did he appear when you showed him the items?
Mr. Brent Objection. Irrelevance.
The Court Overruled.
The Witness Surprised.
Q (by Mr. Severin) Did youtell where you found them?
A Yes.”
(R.T. 2647, Lines 2 - 19.)
3. The Court’s Rulings were Erroneous Under
State Law and Violated Appellant’s Federal
Constitutional Right to a Fair Trial and to
Present a Defense
Under Evidence Code Section 1250(a) (subject to Section 1252) “evidence of
the statementof declarant’s then existing state of mind . . . is not made
inadmissible by the hearsay rule when the evidenceis offered to prove the
declarant’s state of mind at that time or at any other time whenitis itself an issue
in the action.” Section 1250(b) providesthat the section “does not make
inadmissible evidence of a statement of memory orbelief to prove the fact
rememberedor believed.” Section 1252 prohibits the admission of a statement of
mentalstate if it “was made under circumstancessuchasindicate its lack of
trustworthiness.” Here the testimony of Mr. Portello and Ms. Hunt about whether
Appellant recalled certain actions after drinking was offered to provehis state of
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mind at those times as circumstantial proof that he was similarly “blacked out”
when he committed the homicides. Those proffered declarations of mental state
are distinguishable from that rejected in People v. Swain (1962) 200 Cal.App.2d
344. There, the Court of Appeals rejected testimony of the defendant’s wife in an
arson prosecution that some time after the fire he telephoned herandsaid that he
did not know whether he had any insurance. The opinion reasonedthat a statement
by the husband of his past memoryin connection with an alleged criminal act
already committed wasself-serving and therefore untrustworthy. (Ibid. at 352.)
Here, Appellant’s responses would not have been untrustworthysince they
were not statements madein connection with alleged criminal acts; rather, they
were statements of memory of events of which Appellant had no motiveto feign
forgetfulness. Similarly, testimony about whether Appellant said he remembered
certain events does not run afoul of Section 1250(b) since the statements were
indicative of the condition of the mind ofthe declarant at the time he made those
statements and not “merely a declaration as to a past event.” (In re: Estate of
Anderson (1921) 185 Cal. 700; see, generally, Witkin, California Evidence, |
Section 203, V.1, 4" Edition.)
Finally, the objection by the prosecution that the proffered evidence had “no
foundation that ties into any kind of blackout” was not supported by record. In
137
both instances, the witnessestestified that the events in question were preceded by
heavy drinking. Expert testimony had been introduced by Dr. Stalberg that heavy
drinking can cause blackouts. (R.T. 2383, R.T. 2413 — R.T. 2414; R.T. 2432.)
Indeed, the proffered testimony was preceded by testimony from Appellant himself
that he had a history of “blackout” from heavy drinking”® and that on the evening
of the Deeble murderhe wasdrinking heavily and could not rememberhis
activities after 1:30 p.m. (R.T. 2594 — R.T. 2611.) Accordingly, the Court
improperly excludedtestimony that Appellant could notrecall these events.”’
4. The Exclusion of the Evidence Prejudiced
Appellant and Violated his Federal
Constitutional Right to Present a Defense,
Due Process of Law and Heightened
Reliability in a Capital Trial underthe Fifth,
Sixth, Eighth and Fourteenth Amendments
Asset forth in the preceding section, the argument that Appellant’s
intoxication was so pronouncedthat he did not have the requisite degree of
criminal intent for a first degree homicide wascrucial to his defense. The
prosecution objected to Appellant’s attempt to corroborate his explanation andthen
took advantage of the court’s improper decision to prevent Appellant from
circumstantially establishing the legitimacy of this defense by pillorying the
defense for its inability to corroborate this claim; during its closing argument,it
© RT. 2585 — R.T. 2569.
138
argued that the only evidence that Appellant ever had a blackout came from
Appellant himself, a convicted felon. (R.T. 2944, Lines 19 - 25.) Such tactics
violate the Constitution, as well as simple notionsof fair play. Due Process
precludes a prosecutor from asking a jury to convict a defendant because he has
failed to present certain evidence without having given the defendanta full
opportunity to present that evidence. See, Simmons v. South Carolina, 512 US.
154 (1994); Skipper v. South Carolina, 476 U.S. 1, 5 n.1 (1986). Applying the
same principle, due process precludes a prosecutor from asking a jury to convict a
defendant because he hasfailed to present certain evidence whenthat very
evidence was excluded on the prosecution’s own motion. (Paxton v. Ward, (10"
Cir. 1999) 199 F.3d 1197, 1217 - 1218); United States v. Ebens, (6" Cir. 1986)
800 F.2d 1422, 1440 - 1441; United States v. Toney, (6" Cir. 1979) 599 F.2d 787,
790 - 791; State v. Bass, (N.C. 1996) 465 S.E.2d 334, 337 - 338; State v. Ross,
(N.J. App. Div. 1991) 249 N.J. Super. 246, 249 - 250; People v. Daggett, (1990)
225 Cal.App.3d 751, 757 - 758; People v. Varona, (1983) 143 Cal.App.3d 566,
570. See, Franklin v. Duncan, 884 F.Supp. 1435, (N.D. Cal.), aff'd and adopted
in full, 70 F.3d 75 (9"Cir. 1995). Because there is no way for a defendantto
respond to such an argument, such arguments by prosecutors violate a petitioner’s
>“constitutional rights . . . to rebut‘evidence and argumentused against him... .’
*7 Evenif the testimony was inadmissible hearsay, the court should have admittedit since state evidentiary rules
must give way to the constitutional right to present a defense. (Green v. Georgia (1972) 442 U.S. 95.)
139
(Paxton, 199 F.3d at 1218.) Based upon the foregoing, the improper exclusion of
this key corroborating evidence violated Appellant’s federal constitutional right to
present a defense, anda fairtrial under the Fifth and Sixth Amendments.
(Wardius v. Oregon, supra, 412 U.S. 476, 475; Hicks v. Oklahoma, supra, 447
US. 343.)
C. The Court Improperly Excluded Circumstantial and
Opinion Evidence that could have Established that Kathy
Valentine, and not Appellant, Stole Mrs. Deeble’s
Jewelry that was Allegedly Missing
1. Introduction
The defense subpoenaed Marjorie Deeble’s boyfriend, Paul Daniel Roy. Mr.
Royfiled a motion quash the subpoena on the groundthat he was a “sovereign
citizen” and not required to testify. (R.T. 2758; C.T. 792 — C.T. 828.) The court
found that no response wasnecessary to his motion. (R.T. 2558, Line 25 — R.T.
2759, Line 3.) Mr. Roy subsequently appeared as a witness and feigned
forgetfulness. (R.T. 2752 —R.T. 2754.) The court found that he was willfully
evasive. (R.T. 2755, Lines 18 - 19.) The parties agreed that the defense would:
make an offer of proof that would outline Mr. Roy’s relevant testimony, based
upon statements to prosecution and defense investigators. The prosecution would
makeits objections, subject to the court’s rulings, and the investigators would then
be able to recite their conversations with Mr. Roy. The witness would then be
released from subpoena, withoutfurther testimony. (R.T. 2759, Lines 4 - 8; R.T.
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2762, Lines 11 - 13; R.T. 2763, Lines 10 - 18; R.T. 2766, Lines 2 - 26.) Pursuant
to this agreement, the defense proffered the following testimony:
~Your Honor, in relation to her state of mind near
the time of her demise, Marge Deeble told Mr. Roy
that Kathy would comein to the apartment
sometimes when Margewas notthere and would
take things out of the apartment which would upset
the victim quite a bit. That was a statementto
Sergeant Jessen on August 4, of 1986. Again, as to
her frame of mind near the time of her demise, she
also told Mr. Roythat — or his impression,he feels
that the victim finally removed the key from its
hiding place in the drain pipe so that the kids could
not get into the house while she wasgone.’
(R.T. 2761, Lines 10 - 21.)
The prosecution objected on the grounds of hearsay andthat“the victim’s
state of mind (wasnot) relevant to anything.” (R.T. 2763, Lines 15 - 26.) The
Court sustained the objections. (R.T. 2765, Line 4; R.T. 2767, Lines 3 - 26.)
2. Marjorie Deeble’s Statement to Paul
Roy was Relevant and Admissible to
Prove Motive Under an Exception to
the Hearsay Rule
During her testimony, Kathy Valentine testified that several items of her
mother’s jewelry were missing. (R.T. 2080.) Photographsofthe allegedly missing
jewelry were markedas exhibits.. (R.T. 2081 — R.T. 2083.) During cross-
examination, Ms. Valentine admitted that she did not have separate keys to her
141
mother’s apartment; she claimedthat she did notrecall the last time that she used
the set of keys hidden in the drain pipe outside the apartment to enter her mother’s
residence. (R.T. 2107 — R.T. 2108.)
_ During his opening statement and during his closing argument, the
prosecution asserted that Appellant took Mrs. Deeble’s missing jewelry during the
homicide. (R.T. 1956; R.T. 2935; R.T. 3100 — R.T. 3103.) The prosecutor also
invited the jury to speculate that Appellant used the drain pipe key to gain access to
the house. Hecited this alleged access as similar to the unforced entry by
Appellant in the Delbecg murder. (R.T. 2917, Lines 15 - 16.) The defense
contested this speculation during its closing address to the jury. (R.T. 3079.)
Similarly, the availability of the key to Appellant as a meansto enter Mrs.
Deeble’s residence was a hotly contested issue at trial. Kathy Valentine alleged
that Appellant was aware ofthe key and had used it; Appellant denied the
allegation during his testimony. (R.T. 2076, Lines 21 - 25; R.T. 2112; R.T. 2587 —
R.T. 2588.)
There wasno direct proof that Appellant took Mrs. Deeble’s jewelry;
indeed, there was no corroboration that the jewelry was even truly missing. The
prosecution’s argumentrested on the bare allegation of Kathy Valentine.
Similarly, there was no proof that a key was used by Mrs. Deeble’s assailantto
*8 Those photographs (Exhibits 20 thru 27) were not offered as evidence during the guilt phase. (R.T. 2305.)
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enter her residence. Indeed,the police criminologist who investigated the crime
scene noted signs of a forced entry when the screen to the Southwest bedroom
window wasdiscovered laying on the ground. (R.T. 1992; R.T. 2056.) Against
this background,circumstantial evidence that reasonably suggested (1) an
alternative explanation to the missing jewelry and (2) a probability that the key was
not accessible to Mrs. Deeble’s assailant was plainly relevant. Evidence that the
victim wasupsetthat her daughter entered her apartment and took away her
personal belongings without permission easily falls within the category of relevant
evidence. Mrs. Deeble’s statement to her boyfriend wasreliable; neither had a
motive to fabricate evidence about Kathy Valentine’s actions. Finally, while Mrs.
Deeble’s statement to Mr. Royis hearsay,it falls within a recognized exception to
the hearsay rule.
Section 1250 of the Evidence Code providesthat “(s)ubject to Section 1262
(which providesthat the statement must appeartrustworthy,) evidenceof a
statementof the declarant’s then existing state of mind. . . is not made
inadmissible by the hearsay rule when . (2) the evidenceis offered to prove ar
explain acts or conduct of the declarant.” Pursuant to Section 1250, the Supreme
Court approved the admission of a statement of a 12-year-old declarantthat she
intendedto tell her stepfather to stop fondling herto prove the probability of her
future behavior. (People v. Griffin (2004) 33 Cal.4"" 536, 578 - 579.) Here, too,
143
the statement of Mrs. Deeble that she wasupsetby her daughter’s behavior should
have been admitted to show the probability that she removedthe key from the
drainpipe.
Similarly, Mr. Roy’s opinion that Mrs. Deeble removed the key from its
hiding place in the drainpipe to prevent Kathy Valentine from unauthorized entries
into the residence should have been admissible as lay opinion under Section 800 of
the Evidence Code. That section providesthat “(Df a witness is not testifying as an
expert, his testimony in the form of an opinionis limited to such an opinion as
permitted by law, including, but not limited to an opinionthat is: rationally based
on the perception of the witness and helpful to the clear understandof his
testimony.” Here, while Mr. Roy’s opinion wasnotpredicated upon his own
perception of an event, but upon his perception of the statement of another, the
statute does not explicitly exclude it on that basis. (See, People v. Ogg (1968) 258
Cal.App.2d 841, 846, [where the Court of Appeals approved the admissionof a lay
opinion that a defendant was a violent man based ona fight that he had apparently
witnessed].) While Mr. Roy had not seen Mrs. Deeble removethe key from thie
drainpipe, his opinion that she did so was based upon reliable fact that he
perceived: her admission to him that her daughter wentinto the house without her
knowledge and took her personal belongings.
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There are other relevant exceptions to the hearsay rule; Section 1230
provides “that evidence of the statement by declarant having sufficient knowledge
of the subject is not made inadmissible by the hearsay rule if the declarantis
unavailable as a witness if the statement, when made .. . created such a risk of
making her an object of . . . ridicule or social disgrace in the community that a
reasonable manin his position would not have madethe statement unless he
believed it to be true.” Underthis standard, a suggestion to a friend that one’s
child his sneaking into one’s houseandstealing jewelry falls well within the
exception. As in People v. Wheeler, which approved the admission of adultery
under Section 1230, there is no possible motive for Mrs. Deeble to make such a
statement unless she believedit to be true. (People v. Wheeler (2003) 105
Cal.App.4"" 1423, 1428.) Finally, even if properly excluded under the provisions
of the California Evidence Code, the contested testimony should have been
admitted pursuant to Appellant’sconstitutional right to present a defense. (Green
v. Georgia (1972) 442 U.S. 92.) Forall the foregoing reasons,the court’s ruling
violated Appellant’s federal constitutional rights to due process of law, to present a
defense and to compulsory process, a fair trial, and a heightenedreliability of
determinations by the juror. (U.S. Const. Amends. V, VI, VIII and XIV; Hicksv.
Oklahoma,supra, 447 U.S. 343; Beck v. Alabama, supra, 447 U.S. 625, 627;
Wardius v. Oregon, supra, 412 U.S. 470, 475.)
145
D. |The Court Improperly Excluded Evidence of Appellant’s
Surprised Reaction to the News of Marjorie Deeble’s
Murder that Would have Circumstantially Established
that he did Not Commit the Crime Violating his Federal
Constitutional Right to a Heightened Reliability of Jury
Deliberations, Due Process of Law and the Right to
Present a Defense
1. Introduction
Ms.Valentine wasasked to go to the Los Alamitos Police Department
because something had happenedto her mother. She and the Appellant drove to
the police station. Appellant remainedin the lobby; Ms. Valentine spoketo the
police. (R.T. 2594.) The following exchange then followed direct examination of
Appellant about what transpired after Ms. Valentine returned to the police lobby:
“Q
Mr. Brent
The Court
Mr. Severin
The Court
Mr. Severin
The Court
Q (by Mr. Severin)
Mr. Brent
Do you remember whatshe told you?
Objection, calls for hearsay, relevance.
Sustained.
It is not offered for the truth, Your Honor.
It is irrelevant.
It is state of mind.
The objection is sustained.
Mr. Edwards, were you concernedat all about being at
the Los Alamitos Police Department with Kathy Deeble
on that date?
Objection, relevance.
146
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The Court Sustained.
Q (by Mr. Severin) Whenyouleft your aunt’s residence to drive Miss Deeble
to the Los Alamitos Police Department, what were you
thinking?
Mr. Brent Objection, relevance.
The Court Sustained.”
(R.T. 2595, Lines 2 - 20.)
2. The Court Improperly Excluded Testimony
Regarding Robert Edwards’ Reaction to the
Newsof the California Homicide
Asthe defense argued below, Ms. Valentine’s statement to Appellant at the
police station was not offered forits truth, but to explain Appellant’s reaction to
the newsof the murder. As such, her statement was nothearsay underSection
1200 of the Evidence Code which only prohibits evidence of an out-of-court
statement“that is offered to prove the truth of the matter stated.” Appellant’s
reaction andhis innocentstate of mind as he wasdriving to the police station after
Kathy Valentine had been warnedthat “something had happened”to her mother,is
a relevant circumstance for the evaluation of guilt; in the reverse circumstance, it is
well settled that a defendant’s furtive actions after the commission of the crime can
be properly considered by the jury as an indication of guilt. (People v. Pensinger
(1991) 52 Cal.3d 1210, 1244.) Indeed, there is a standard jury instruction on the
issue. CALJIC 2.25 (“flight after crime.) The trial court’s exclusion of this
147
probative circumstantial evidence onthe crucial issue of the identity of the
assailant violated Robert Edwards’ federal constitutional rights to Due Process of
Lawto presenta defense, and to a heightenedreliability of deliberations in a
capital case underthe Fifth, Sixth, Eighth and Fourteenth Amendments. (Hicksv.
Oklahoma,supra; Beck v. Alabama, supra, Wardius v. Oregon.)
E. ‘The Trial Court Excluded Evidence that Would have
Powerfully Rebutted the Prosecution’s Theory that
Appellant Committed the Charged Offense becauseofits
Similarity to the Delbecq Murderin Violation of State
Law and his Federal Constitutional Rights to Due
Process of Law
An envelope addressed to Mrs. Deeble’s son, Steve Deeble, was recovered
by the police on May 16" from trash can in the southwest bedroom ofher
apartment. The envelope and its contents were marked as Defense Exhibit C.
(R.T. 2025.) The envelope contained a photograph of a woman in bondage,a
photograph of Charles Manson and a newspaperarticle about bondage murder.
The defense offered it into evidence as circumstantial proof that someoneother
than Appellant found and murdered Mrs. Deeble. The prosecution objected, .:
withoutstating its grounds; likewise, the court sustained the objection without
specifying the reason. (R.T. 2842 — R.T. 2843.)
Thetrial court abused its discretion by refusing admission of Defense
Exhibit C. As noted above,the court rejected the exhibit ‘without stating the reason
148
“te
that it was inadmissible or requiring the opposing party to do so. The People’s
case against Appellant was wholly circumstantial, based upon an argumentthat the
similarity between the Deeble and Delbecq murders inexorably pointedto his guilt,
despite the yawning temporal and spatial gap between the two crimes. Exhibit C
would have been a powerful reminderto the jury that the allegedly inexplicable
coincidence between the two crimes wasillusionary, since the material mailed to
the decedent’s ownson at the very crime scene closely resembled the method of
his mother’s death. Even if one excludes the argumentthat the material pointed to
a suspect other than Appellant, the mere existence of this material at the crime
~ scene which was unconnected to Appellant is a coincidence that would have
rebutted the notion that the Deeble/Delbecq murders were uniquely Appellant’s
work. Its exclusion violated Appellant’s constitutional right to due process, to
present a defense, and to a heightenedreliability of deliberations. (Hicks v.
Oklahoma, supra; Beck v. Alabama, supra; Wardius v. Oregon.)
F. The Cumulative Impactof the Improper Exclusion of
Exculpatory Evidence Denied Appellant His Federal
Constitutional Rights to Present a Defense, Have a Fair
Trial, and to Heightened Reliability in a Capital Case
In the proceeding argument, Appellant has demonstratedthe reversal of his
convictions is required because of various exclusionsof vital defense evidence.
However, even if this court determines that none of the errors warrant reversal
149
standing alone,it is necessary to consider their cumulative impact. (Taylor v.
Kentucky (1978) 436 U.S. 478, 487, fn. 15; United States v. Frederick (9" Cir.
1996) 78 F.3d 1370, 1381.) This court has also held that the cumulative effect of
multiple errors may be so unduly prejudicial that reversal is necessary though the
prejudice from any oneinstance of error would notbe sufficient standing alone.
(People v. Hill (1998) 17 Cal.4" 800.) In this case, reversal of the convictionsis
required.
VI. THE TRIAL COURT ADMITTED TESTIMONY AND EXHIBITS
CONTRARYTO STATE LAW IN VIOLATION OF ROBERT
EDWARDS’ FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND TO CONFRONT ADVERSE WITNESSES UNDER
THE FIFTH,SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS
A. The Trial Court’s Admission of the Coroner’s Unfounded
Opinionthat Injuries Suffered by Mrs. Deeble were
Inflicted Before Death and were Painful was Contrary to
California Law and a Violation of Appellant’s Federal
Constitutional Rights
1. Factual Background
Richard Fukumototestified about the results of the autopsy of Marjorie
Deeble. (R.T. 2121 —R.T. 2164.) He did not perform the autopsy himself; instead,
his testimony was based upon the examination performed by another pathologist in
his medical group, Dr. Richards. (R.T. 2122, Line 22 ~— R.T. 2124, Line 3.)
150
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During the course of direct examination, Dr. Fukumoto wasrepeatedly
asked whetherthe burst eardrum andlacerations to her neck that Mrs. Deeble
suffered as she struggled against the belt, the incision allegedly caused by a sharp
object inserted into her ear, and the bruising and laceration to her rectum and
vagina would be “highly or extremely painful.” (R.T. 2128, Line 8 — R.T. 2129,
Line 2; R.T. 2137, Line 4 — R.T. 2138, Line 7.) Timely foundational objections
were made. (R.T. 2128.) The court overruled them and the witness agreed with
: . : «2 oe 2
the prosecution’s characterization of the injuries.”
Dr. Fukumoto wasalso asked whetherthe injuries to Mrs. Deeble’s rectum
and vagina were sustained before or after her death. Without explanation, he
replied that they occurred before her death. (R.T. 2138, Lines 15 - 25.) The
immediate defense objection and motionto strike his answeras without foundation
were denied. (R.T. 2138, Line 26 — R.T. 2138, Line 2.)
2. Argument
a. Standard of Review
As a generalrule, a trial court has wide discretion to admit or exclude expert
testimony. (People v. Page (1991) 2 Cal.App.4" 161, 187.) “[T]he question
whetherthe statements fall within a firmly rooted hearsay exception for
”° Tn addition to a lack of foundation,the prosecutor’s questions to Dr. Fukumoto were objectionable because they
151
Confrontation Clause purposesis a question of federal law.” (Lilly v. Virginia
(1999) 527 U.S. 116, 125 (plur. opn. of Stevens, J.).) A trial court’s determination
that a hearsay statement possesses particularized guarantees of trustworthiness to
satisfy the demandsof the Confrontation Clause is subject to independentreview.
(Id. at pp. 136 — 137.) Moreover, as morefully set out below, in addition to
violating Appellant’s right to confrontation, the admission of Dr. Fukomoto’s
opinions also violated Appellant’s rights to due process and heightenedreliability
because they were utterly without foundation.
b. Prejudicial Forensic Evidence was
Admitted in Violation of Crawford v.
Washington
A defendanthasa right under the Sixth Amendmentto the United States
Constitution to confront witnesses testifying against him. In Crawfordv.
Washington (2004) 541 U.S. 36, the United States Supreme Court changed the
manner in which courts consider confrontation clause issues. Crawford rejected
the view that the confrontation clause applied only to in-court testimony and that
its application to out-of-court statements introduced attrial dependedlargely on the
state statutory rules of evidence. Crawford held that out-of-court testimonial
statements are constitutionally admissible only where the declarantis unavailable
and there was a prior opportunity for cross-examination. (Ibid.) Crawford thus
were plainly leading.
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overruled the rule of Ohio v. Roberts (1980) 448 U.S. 56 to the extent that Roberts
held that the confrontation clause did not bar admission of an unavailable
witnesses statement against a criminal defendantif the statementfell within a
firmly established hearsay exception and bore adequate “indicia ofreliability.”
Muchof the evidence concerning the death of Marjorie Deeble was based on
the evidence of an autopsy report which was prepared by a coroner whom the
defense did not have an opportunity to examine. The court in Crawford noted that
“involvement of governmentofficers in the production of testimony with an eye
towardstrial presents a unique potential for prosecutorial abuse”and plainly
suggested that such statements would be testimonial and hence subject to the Sixth
Amendment.” (/bid.) Coroner’s reports such as relied upon by Dr. Fukumoto are
testimonial hearsay within the meaning of Crawford. Smith v. Alabamais directly
in point. (2004) 898 So.2d 907. There, the Appellate Court held that the
admission of autopsy evidence and the autopsy report, without the testimony of the
medical examiner whoperformed the autopsy, violated the defendant’s Sixth -
Amendmentright to confrontation. Experts have traditionally been permitted to
rely on hearsay. See, California Evidence Code Section 801(b). Nevertheless, as
the Smith decision found, the Confrontation Clause, as construed by recent
decisions of the United States Supreme Court, prohibits the introduction of
otherwise admissible evidence, when to do so permits the prosecution to prove an
153
essential elementof the crime by hearsay. Accordingly,it held the admission of
the autopsy report to violate the Sixth Amendment right to confrontation, despite
its admissibility as a business record understate law. (/d. at 917.) Here, too, Dr.
Fukumoto’s opinionsthat the injuries were “extremely painful” and were inflicted
before death were usedto satisfy those elements of proofin the prosecution’s
torture murderand special circumstances allegations against Appellant. (See,
Section 2(d)(5) below.) Consequently, an expert’s general entitlement to consider
hearsayas a basis of his opinion gives way to Appellant’s constitutional right to
confront witnesses against him.
Appellant’s interpretation of Crawford is also consistent with a recent
decision in the California Court of Appeal. In People vy. Sisavath (2004) 118
Cal.App.4" 1396, the statementof a four year old (whocouldnot qualify as a
witness) wasat issue. The boy’s statement was made during a “multi-disciplinary
team interview” conducted by a forensic interview specialist at which a prosecutor
and district attorney investigator were present; the statement was madeafter
charges were filed. Because an objective observer could reasonably foresee that
this statement would be used in a prosecution, it was testimonial and its admission
violated Crawford. The Court of Appeal held: “The pertinent question is whether
an objective observer would reasonably expectthe statementto be available for use
in a prosecution.” (Ibid. at 1401.) As with Sisavath, an objective observer would
154
reasonably expect that Dr. Richards’s autopsy report in this case would be usedin
a criminal prosecution.
In this case, the coronertestified based largely upon his review of the work
of the retired Dr. Richards. Even the photographsandslides he reviewed were
madeat the time of the autopsy, presumably under the supervision of Dr. Richards,
whose workcould not be examined by the defense. Appellant’s right to effectively
cross-examine Dr. Fukomoto onthe presumptivebasis of his key opinions(the
nature and extent of the victim’s injuries) was therefore rendered a nullity; the
witness who described them and supervised the preparation ofthe slides and
photographsthat depicted them was unavailable.’ As such, his testimony is
classic hearsay, within the meaning of California Evidence Code Section 1200(a)
since his statements were offered for the truth of the matters in Dr. Richards’
report. The report relied upon by Dr. Fukumototo describe Dr. Richards
“findings” wastestimonial hearsay because it was madeby a law enforcement
agent’ who preparedit with the express purpose of advancing a criminal
prosecution. As a statement made by law enforcementin preparation for litigation,
the statement implicates the core concern of Crawford: the preparation of
30 Again, since Dr. Fukomoto neverset forth the bases for these opinions, one must perforce guess at the foundation,
if any. As a parenthetical aside, the record did not establish that Dr. Richards was “unavailable” within the meaning
of the Evidence Code; only that he wasretired. (R.T. 2122, Lines 4 - 10.)
31 RT. 2130, Lines 8 - 10 — R.T. 2136, Lines4 - 7.
? Dr. Richards and Dr. Fukumoto werepart of a medical groupthat contracted with the Orange County Sheriff's
Department to perform autopsies in the County of Orange. (R.T. 2124 — R.T. 2122, Line 2.)
155
evidence against a defendant by the governmentwithout the opportunity for the
defendantto cross-examinethe witness whoprepared the evidence. Under the
Crawford analysis, state evidentiary rules do not govern admissibility under the
Sixth Amendment. Dr. Fukumoto’s testimony presents the same confrontation
issues that the autopsy report does: it is evidence prepared by the government
without a defense opportunity to test the information upon which the testimony
was based. As such, the Confrontation Clause bars its admission.
Cc. Reversal is Required
Appellant’s conviction for the first-degree murder of Marjorie Deeble must
be reversed. Evidence admitted in violation of the confrontation and due process
clauses requires reversal unless the government can “prove beyond a reasonable
doubtthat the error complained of did not contribute to the verdict obtained.”
(Chapmany. California, supra, 386 U.S. 18, 24.) Under the Chapmantest, the
questionis “whether the guilty verdict actually renderedin this trial was surely
unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.):
The prosecution cannot meet the Chapmantest because it cannot assure that the
verdict in this case was notattributed to the error admitting the coroner’s
testimony. Dr. Fukumoto’s testimony wasan indispensable part of the
prosecution’s case that Appellant wasthe assailant of Mrs. Deeble.
156
The prosecution’s closing argument focused upon the autopsyresults as the
key ingredientof its contention that the Deeble and Delbecq homicides were so
similar that Appellant must be responsible. (R.T. 2922 — R.T. 2933; R.T. 3095.)
Based upon Dr. Fukumoto’s testimony, the prosecutor argued that the assailant
used a sharp instrument as a meansofassault. (R.T. 2924.) Both women were
severely beaten; Mrs. Deeble suffered a fractured nose. (R.T. 2925.) A hair
mousse canister was used to sexually assault both women. (R.T. 2930 — R.T.
2932; R.T. 3103.) The autopsy results were also prominently featuredin the
prosecution’s argumentthat both womenweretortured, an essential element of the
first degree murder and special circumstance allegations against Appellant. (R.T.
2901 —R.T. 2908.) The defense bitterly contested the conclusions of the autopsy
report, through cross-examination,the testimony of Dr. Wolfe, and during its
closing remarksto the jury. (R.T. 2977 —R.T. 2990.) Indeed, the entire closing
address of Mr. Severin was devoted to attacking the autopsy results in an attempt
to debunk the prosecutor’s claim that the murders carried unique signatures. (R.T.
2978, Lines 10 - 14; R.T. 3024 — R.T. 3038.)
The essential importance of the autopsy results to the prosecution’s very
case that Appellant was the perpetrator of the charged offense cannotbe credibly
disputed. Compare, Smith v. Alabama, supra, 898 So.2d. 907, 918, where the
record “overwhelmingly” supported the conviction, even without consideration of
157
the autopsy report. Because of the dispute over the autopsyresults, the prosecutor
in this case acknowledgedthe absence of Dr. Richards as a problem, but breezily
sought to discussit:
“But in the death of Mrs. Deeble here in Los
Alamitos, there was a significant disagreement. Dr.
Fukumoto — and there was a disadvantage not
having Dr. Richards here, and that is the wayitis,
okay?
(R.T. 2923, Lines 7 - 10.)
The prosecution was wrong; the United States Supreme Court disagrees.
The absence of Dr. Fukumoto wasneither a “disadvantage” or “okay.” It disabled
the defense and violated Appellant’s right to confrontation. Reversal of his
conviction is required.
Assuming Dr. Fukumoto’s Testimony
was not Wholly Inadmissible as a
Violation of Appellant’s Sixth
AmendmentRight to Confront
Witnesses, his Opinion that her Injuries
were “Extremely Painful” and Occurred
Before Death Should have been
Excluded because it Lacked Proper
Foundation and was Therefore
Irrelevant, Violating his Federal
Constitutional Rights to Due Process of
Law and a Heightened Reliability in a
Capital Trial Under the Fifth, Sixth,
Eighth and Fourteenth Amendments
1. Overview of Legal Arguments
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Thetrial court’s decision to allow Dr. Fukumoto to offer an opinion on the
crucial elements of the torture murder allegations of whether the victim’s injuries
were “extremely painful” and occurred before death was erroneousin several
respects. First, as the prosecutor himself recognized, the jurors could draw their
own conclusionsabout the painfulness of the injuries. Because the jury received
no appreciable help from Dr. Fukumoto’s opinion testimonyin this regard, this
testimony wasnotrelevant and should havenot been admitted. (See, People v.
Champion (1995) 9 Cal.4" 879, 924; Soule v. General Motors Corp. (1994) 8
Cal.4"" 548, 567, Section D, infra.) Second, even assuming that an expert opinion
regarding the injuries and whetherthey occurred before death would have been
useful for the jury, the prosecutor did not lay a proper foundation for this witness
to render an opinion on this precise question. (See, Section E, infra; Alef v. Alta
Bates Hospital (1992) 5 Cal.App.4" 208.) Finally, the court erred in its analysis
under Evidence Code Section 352 by concluding that the probative value ofthis
opinion testimony outweighed the resulting prejudice. (See, People v. Clark
(1980) 109 Cal.App.3d 88; People v. Roscoe (1985) 168 Cal.App.3d 1093, Section
F, infra.)
2. This Expert Opinion Testimony
was not Relevant Because the
Jurors Were Capable of Drawing
their Own Conclusions about
Whetherthe Injuries were
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Painful Without the Expert’s
Opinion
The California standard for qualified expert opinion is set forth in Evidence
Code Section 801, which provides, in pertinentpart:
Ifa witnessis testifying as an expert, his testimony in the formof an
opinion is limited to such opinionasis:
(a) Related to a subjectthat is sufficiently beyond common
experiencethat the opinion of an expert wouldassist the trier
of fact.
Both factors listed in Evidence Code Subsection (a) must besatisfied. In
order to be admissible, the expert’s opinion must be on a subject “beyond common
experience,” and the opinion mustalso be of appreciable help to the jury. (People
v. Champion, supra, 9 Cal.4" 879, 924; Soule v. GeneralMotors Corp., supra, 8
Cal.4"" 548, 567.) Wherethe jurors are able to draw a conclusion from thefacts in
evidence as easily andintelligently as the expert could, expert testimonyis not
admissible. (McCleery v. City ofBakersfield (1985) 170 C.A.3d 1059, 1074, n.
10; People v. Hernandez (1997) 70 Cal.App.4™ 271, 280; People v. Torres (1995)
33 Cal.App.3™ 37, 45.)
All living individuals have wide experience in a body’s sensitivity to pain: it
is most certainly not “sufficiently beyond the common experiencethat the opinion
of an expert would assist the trier of fact.” (People v. Hernandez (1997) 70
Cal.App.3d 271, 280.) Unlike the cause of death, whethera particular injury was
160
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a
“extreme painful” is a subjective judgment which could reasonably call forth a
wide range of opinions from jurors, based upon their varying experiences and
consideration of the ample evidenceat trial regarding the nature and degree of
those injuries. The injuries inflicted upon Mrs. Deeble were described in great
detail by Dr. Fukumoto during his direct examination in which he used exhibits
which graphically depicted them. (R.T. 2125; R.T. 2129.) Indeed, the prosecutor |
acknowledged during his closing remarks that the expert testimonyof Dr.
Fukumoto wasnotnecessary to enable the jury to determine whetherthe injuries
were painful; the jury’s common experience wassufficient. (R.T. 2924 — R.T.
2925.)
Despite the admission that Dr. Fukumoto’s opinion wasnot of appreciable
help to the jury, the prosecution argued below that his opinion that Mrs. Deeble’s
injuries were “extremely” painful was necessary to rebut the contrary assertion by
the defense pathologist, Dr. Wolfe:
“—id it really take Dr. Fukumototo tell us that? I
guessit did becausethis other doctorsaid it
wouldn’t be painful.”
(R.T. 2924, Lines 23 - 25.)
161
The prosecution’s contention was wrong on two counts. First of all, Dr.
Fukumoto’s improper opinion®® precededthat of Dr. Wolfe’s.** Thus, the
prosecutor’s justification was backward; it was necessary for the defense to
introduce Dr. Wolfe’s opinion to rebut the improperly admitted opinion of Dr.
Fukumoto. Secondly, and more importantly, even if Dr. Fukumoto’s opinion
regarding Mrs. Deeble’s responseto her injuries was the proper subject of expert
testimony,this did not render it automatically admissible. Under Section 720 and
352, it must have an adequate foundation as well. As set forth below, Dr.
Fukumoto’s testimony that the injuries were extremely painful and inflicted before
death failed to meet this requirement.
In sum,casesin this court and in other California courts have permitted
expert opinion evidence wherethe subject matter calling for the opinion would not
be understood by the average juror. (See, e.g., People v. Champion, supra, 9
Cal.4" 879, 924 [expert in street gangs allowedto testify regarding gang
terminology and unusual slang expressions used in tape recorded conversation];
People v. Harvey (1991) 233 Cal.App.3d 1206, 1226 [police agent’s opinion in
narcotics case aboutrelative roles of defendants in drug organization].) As the
prosecution himself recognized, Dr. Fukumoto’s opinion wasnot necessary to
3 RT. 2128 — R.T. 2129; R.T. 2138.
4 RT. 2486; RT. 2516 — R.T. 2517.
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clarify the significance of the evidence norfill any gap in the jury’s common
experience. His opinionin that precise area, therefore, was not of appreciable help
and ought to have been excluded. (People v. Stoll (1989) 49 Cal.3d 1136, 1154
[exclusion of expert opinion evidence is required where it would add nothing to the
jury’s commonpool of information].)
3. There was No Foundation for Dr. Fukumoto
to Give an Expert Opinion Concerning
Whetherthe Injuries Were Inflicted Before
Death and Were “Extremely Painful”
a. Introduction
In addition to Evidence Code Section 801, which addresses the subject
matter of expert opinion, California law imposes specific requirements for the
qualification of the particular expert witness. Evidence Code Section 720 states in
relevantpart:
A personis qualified to testify as an expert if he has
special knowledge,skills, experience, training or
education sufficient to qualify him as an expert on
the subject to which his testimony relates. Against
the objection of a party, such special knowledge,
skill, experience,training, or education mustbe
shownbefore the witness maytestify as an expert.
Asnoted above, timely foundational objections were raised to Dr. Fukumoto’s
testimony about whetherthe injuries were inflicted ante-mortem andtheir
painfulness.
163
b. Dr. Fukumoto’s Opinion was Not Within
His Area of Expertise
Where a foundational objection is raised, the proponentof the expert
testimony has the burden of proving its admissibility. (Alef v. Alta Bates Hospital,
supra, 5 Cal.App.4™ 208, review denied.) Moreover, the burden will not be met
simply by establishing that the witness has credentials in the general field. The
proponentof the testimony mustaffirmatively show that the witness’ expertise is
directly and specifically related to the subject of the opinion they plan to offer.
(See, Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379
[reversing grant of summary judgmentin favor of the defense in a medical
malpractice action where the defendants relied on the deposition testimony of the
plaintiff's own doctor because nothing in the record demonstrated that the doctor
was a specialist qualified to render an opinion on the precise issues involved in the
action].) The prosecutor failed to meet the statutory burdenin this case.
~‘
The general standard for qualifying an expert to give an opinion is whether
the witness’ peculiar skill, training or experience enable him to form an opinion
which would be helpful to the jury. (Evidence Code Section 720; People v. Davis
(1965) 64 Cal.2d 791.) However, this court has repeatedly held that the
qualifications of a purported expert must be directly related to the subject of the
proposed expert opinion. The competencyof an expert is in every caseis a relative
164
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one;thatis, relative to the topic about which the expert is to make a statement.
(Huffman v. Lindquist (1951) 37 Cal.2d 465.)
Expert qualifications receive especially close scrutiny wherethe proposed
opinion testimony involvesthe interpretation of crucial evidence. In People v.
Hogan (1982) 31 Cal.3d 815, this court held that the expert was not qualified
where, although qualified to testify about whether stains found on defendant’s
pants and shoes were blood and aboutblood typing of the stains, he was not
qualified as an expert on the particular subject of whether blood was deposited by
flying drops or by surface to surface contact. (See, also, People v. Fierro (1992) 1
Cal.4" 173, (1992)cert. denied, 506 U.S. 907[licensedprivate investigator could
not be certified as an expert in ballistics and crime scene reconstruction wherehis
experience was based on military service 20 years earlier at which time he took
photographsof plane and car crashes; witness had never photographeda crime
scene involving a gun shotdeath, and his opinion on the effects of bullets on the
victim’s body was based on viewing of documentary films of men in combat].)
Precise training is never more important than when the opinion is given in a
capital case. In this context, this Court has typically required very specific
credentials before upholdingthetrial courts’ decisions to admit expert opinion.
(See, e.g., People v. Bolin (1998) 18 Cal.4" 297, cert. denied, 526 U.S. 1006
165
[criminalist was qualified to give expert testimony in murderprosecution regarding
the positions of the victimsat the time they wereshotin view ofhis educational
backgroundin biochemistry and serology and his training for 13 years as a
criminalist which included attending and giving lectures on blood-spatter analysis
and crime sceneinvestigation]; People v. Clark (1993) 5 Cal.4" 950, cert. denied,
(1994) 512 U.S. 1253.) [witness was qualified to give expert “blood-spatter”
testimonyin capital murder prosecution where the witnesshadattendedlectures
and training seminars on the subject of blood dynamics, read relevant literature,
and conducted relevant experiments and visited crime scenes where bloodspatter
tests were conducted].)
Thetrial court here failed to investigate the coroner’s credentials to
determine whetherthis witness had the necessary background andtraining to
support his opinion about the way the body’s neurological responseto certain types
of injuries and an evaluation of when they were inflicted, vis-a-vis, the time of
death. Instead the court relied on a brief description of the coroner’s medical
training, the numberofautopsies that he had performed, and a general
representation that he had qualified in court as an expert in an unspecified field a
numberof times:
“Q (By Mr. Brent) Dr. Fukumoto, whatis your profession,sir?
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I am a licensed physician surgeon pathologist by
specialty.
And whatis your background,training and experience in
that area?
I graduated from the Indiana University School of
Medicine 1958. I have taken a year’s rotating internship
in Clinical Medicine followed by four years of training in
pathology. Thelast three years being at Long Beach
Memorial Hospital.
I have served as pathologist in the U.S. Army, and I have
served as Chief of Anatomical pathology at the Orange —
County Medical Center. And since 1966 I have been in
the private practice of Pathology with this group in
Anaheim.
And whatis the nameofthat group?
It is Richards, Fisher, Fukumoto Medical Group,Inc.
Andis that the group that has contracted with the Orange
County Sheriff’s Departmentto perform the autopsies in
the County of Orange?
Yes.
And Dr, Richards is now retired. You said Richards, he
is now retired, is he not?
Yes. Dr. Richards has beenretired since I believe either
1989 or 1990.
Okay. Andso during the time that you have been a
licensed Pathologist, approximately how many autopsies
have you performed?
I would say I have personally conducted now over
12,000 cases.
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Q And wouldit be fair to say that you have qualified as an
expert in this field in the various courts of our State
numerous times?
A Yes, I have.
(R.T. 2121 —R.T. 2122.)
Cases makeclear that medicaltraining aloneis not sufficient. (See, Salasguevara
v. Wyeth Laboratories, Inc., supra, 222 Cal.App.3d 379 [child’s treating physician
did not have medical expertise to offer competent medical testimony on subject of
whether administration of DPT vaccine caused child’s seizures, whereit could not
be determined based on information before the court whether this doctor had
adequate skill training or experience;] Miller v. Silver (1986) 181 Cal.App.3d 652
{psychiatrist lacked credentials permitting him to give expert testimony concerning
surgical technique used in highly specialized field of plastic surgery].) The mere
fact that this witness had general experience in performing autopsiesis similarly
unpersuasive. It is not self-evident that a coroner whosetraining and expertise is
with the dead has an adequate background to offer an opinion on pain response.
(See, also, People v. Cole (2004) 33 Cal.4™ 1158, 1196, cert. denied, 544 US..
1001, where the trial court admitted the testimony of the surgeon whotreated the
victim to prove the commission of the act calculated to cause extreme pain; the
opinion that it was not irrelevant evidence under Code Section 352.) Without
additional information supporting his qualifications to give an opinion aboutpain
168
response and whetherinjuries were inflicted before death, his opinionsin those
areas should have been excluded.
This court’s opinion in People v. Cole (1956) 47 Cal.2d 99 is instructive.
There,a trial court’s decision to admit a pathologist’s opinion that a wound was
self-inflicted was approved. After reviewing conflicting authorities on the matter,
the opinion concludedthat “(a) conclusion that the testimony complained of was
inadmissible would amountto a holding that jurors, although layman, whose
experience with gunshot woundsand suicide waslikely to be limited or
nonexistent, could not have derived assistance from the opinion of a doctor who
was an expert on those matters and had personally examined the body and
performed the autopsyas a specialist on causes of death.” (Ibid. at 105.)
In the instantcase, there is no showing in the record that Dr. Fukumoto was
a specialist on the body’s sensation to various types of trauma. Asthetrial court
admonishedin People v. Kelly, “in considering whether a person qualifies as an
expert, the field of expertise must be carefully distinguished and limited.” (1976)
17 Cal.3d 24, 39. Here, as in Kelly, while Dr. Fukumoto may have had an
impressive list of credentials in one field, there was no showing that those
credentials as a pathologist qualified him to express an opinion asto a body’s pain
response. Assuming for the momentthat expert opinion was even appropriate on
169
that subject, a backgroundin neurologyis a basic prerequisite to offer such an
opinion.
Trial courts are obligated to contain expert opinion testimony within the area
of professed experience and to require that there be an adequate foundation for the
opinion testimony. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4" 1516.) A
trial court must have adequate information in order to exercise its discretion
regarding whether the expert’s credentials are sufficient. (Mayer v. Alexander
(1946) 73 Cal.App.2d 752.) Whetherthe trial court has properly exercisedits
discretion as to qualification of an expert depends on whetherthe witness has
disclosed sufficient knowledge of the subjectto entitle his or her opinion to go to
the jury. (Agnew v. City ofLos Angeles (1950) 97 Cal.App.2d 557.)
In the present case, nothing before the court suggested that Dr. Fukumoto
witness had the necessary expertise to offer an opinion about the degree of pain
that Mrs. Deeble suffered nor the timing of her injuries. Accordingly, the court’s
ruling does notreflect a true exercise ofjudicial discretion but, rather, an
abdication of the court’s duty to evaluate the coroner’s credentials relative to the
subject matter of the expert opinion sought. (See, e.g., Agnew v. City ofLos
Angeles, supra, 97 Cal.App.2d 557.)
c. Dr. Fukumoto’s Opinion was
Conclusionary
170
The second and independent groundfor excluding Dr. Fukumoto’s opinions
wasthat they were impermissibly conclusionary. (R.T. 2127 — R.T. 2129.) The
jury was notinformed asto the reason that these Mrs. Deeble’s injuries were so
painful; it was simply asked to accept bald conclusion as fact. (R.T. 2127 — R.T.
2129.) Similarly, other than the prosecution’s characteristically leading prompt as
to whetherhis conclusion was based upon his “microscopic examination,” Dr.
Fukumoto wasallowedto opine without explanation that the injuries to the
“vaginal, rectal area” were caused before Mrs. Deeble’s death. Dr. Fukumoto’s
opinion about the timing of these injuries was admitted by virtual fiat. (R.T. 2138,
R.T. 2139.)
With regard to the laceration of the posterior fourchette in the vagina and
rectum, the prosecution led the witness to acknowledgethat those areas were
“highly vascular” and “full of lots of nerve endings” » before prompting the
witness in the following improperfashion:
“Q ) Andso traumato those areas would you agree are highly
painful?
Mr. Bates Your Honor,again, objection, no foundation.
The Court Overruled.
The Witness Yes.” .
(R.T. 2138, Lines 3 - 8.)
35 RT. 2137,Lines 4 - 26.
171
The other absence of any foundational basis for Dr. Fukumoto’s opinions
standsin stark contrast to the sufficient foundation found by the Supreme Court in
Cole for the admission of the pathologist’s opinion that the fatal wound was not
self-inflicted: “In elaborating, (the witness) referred to the location of the wound,
the course of the bullet and the obesity of the victim, and he stated that it would be
difficult for a person, whether right-handed orleft-handed, to hold the muzzle of a
gun against himself in the position necessary to produce such a wound. He
testified that his opinion was basedonhis training and experience, as well as the
condition of body, and that he had examinedsuicide victims who had died of gun
shot wounds andhe had neverseena self-inflicted wound“in this position.”” (bid.
at 103.)
Appellant contendsthat since Dr. Fukumoto was not the physician who
performedthe autopsy, and since his expertise to express these opinions was not
evidentin the record, the absence of any credible foundation for those opinions
themselves rendered them inadmissible under Section 720. The jury never should
have been called upon to evaluate the weight of those opinions. (See, generally,
People v. Cole, supra, [concurring and dissenting opinionsof J. Schauerand J.
Carter.] [Proper procedure for an expert opinion without adequate foundation
would be to excludeit entirely from evidence.] 47 Cal.2d 99, 108 - 111.)
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4. The Trial Court’s Admission ofthis
Testimony was An Abuse ofits Discretion
Under Evidence Code Section 352 which was
Contrary to California Law and Abridged
both State and Federal Constitutional Rights
The Court’s decision to admit Dr. Fukumoto’s opinions wasan abuseof the
trial court’s discretion under Evidence Code Section 352, resulting from the
overstatement of the probative value of the expert opinion and a simultaneous
underestimation of the prejudicial effects of this evidence. The trial court here
assigned far too much probative value to the coroner’s opinion in this area. As
demonstrated above,the jury did not need expert testimony to understand the
evidence. Where there is no need for an expert opinion that testimony has no
probative value. It is error under Evidence Code Section 352 to admit expert
Opinion testimony in a criminal case were the need for any expert opinion is
questionable and, on the other hand, the evidence is not overwhelming. (People v.
Clark, supra 109 Cal.App.3d 88 [error to admit testimony of rape expert that the
victim’s conduct was reasonable where the case wasa close contest on credibility
and the trial court had questioned the need for any expert opinion.] See, also; :
People v. Roscoe (1985) 168 Cal.App.3d 1093 [probative value of psychologist’s
testimony regarding specific responses of the victim in that case wasfar
outweighedbythe prejudicial effect especially Where the expert could haverelied
upon general studies and nota detailed, case specific analysis]; United Statesv.
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Boyd (D.C. Cir. 1995) 55 F.3d 667, 672, [reversible error to admit expert opinion
about defendant’s intent to commit the crime.)
Forall of these reasons,the trial court’s admission of this expert opinion was
contrary to established California law. The erroneous admission ofthis evidence
washighly prejudicial, and theerror affected both the guilt and penalty phases of
the capital trial. As a result, Robert Edwards was deniedhis state and federal
constitutional rights to due process of law, to a fundamentally fair trial and reliable
determination of guilt and penalty. (U.S. Const., Amends. V, VI, VII and XIV;
Cal. Const., Art. I, Sections 7(a), 15 and 17; Gardner v. Florida, supra, 430 U.S.
349; Beck v. Alabama, supra, 447 U.S. 625; Ford v. Wainwright, supra, 477 U.S.
399.) The trial court’s actions in the contravention of California law also deprived
Robert Edwardsofa state created liberty interest and denied him equal protection
of the law as guaranteed bythe Fifth and Fourteenth Amendments. (Hicks v.
Oklahoma, supra, 447 U.S. 343.) The conviction should be reversed.
5. Admission of Dr. Fukumoto’s Unfounded
Opinion wasPrejudicial and Violated Robert
Edwards’ Federal Constitutional Right to a
Fair Trial, Due Process and a Heightened
Reliability in a Capital Case Underthe Fifth,
Sixth, Eighth and Fourteenth Amendment
Both parties devoted a substantial portion of their closing arguments to
whetherthe prosecution hadsatisfied its burden of proof to demonstrate that
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Appellant intendedto inflict extreme and prolonged pain, as an elementoffirst
degree murder, and whetherhe did in fact inflict extreme cruel physical pain and
suffering, as an elementof the special circumstanceoftorture. (R.T. 2901; R.T.
2976 — R.T. 2976; R.T. 2980 — R.T. 2989.) The prosecutor argued vociferously
that Dr. Fukumoto’s opinion that Mrs. Deeble suffered intensely was far more
probative than Dr. Wolfe’s rebuttal testimony that she did not. (R.T. 2924 — R.T.
2925; R.T. 2927.) The damage that Dr. Fukumoto’s improperopinioninflicted
upon the defense was immense. Theseriousness of the injuries inflicted upon Mrs.
Deeble wasstrenuously contested by the defense.
During its closing argument, the prosecution used Dr. Fukumoto’s
improperly admitted opinions again and again as a meansto persuadethe jury that
Appellant intendedto inflict extreme pain and that she had,infact, suffered
“extreme cruel and physical pain.” (R.T. 2966, Line 17 — R.T. 2970, Line 3; R.T.
2924, Line 19 — R.T. 2925, Line 2; R.T. 2921, Line 18 — R.T. 2928, Line 17.) Dr.
Fukumoto’s opinion,that struggling against the ligature was “extremely painful,”
wasalso the only direct proofin the record that the acts of torture were a cause of
death, an essential element of the crime of murder bytorture. (R.T. 2118,see,
Section VI.) As previously noted,it also spawned the necessity for the defense to
present expert rebuttal testimonyby Dr. Wolfe. This testimony became the focal
point of an attack upon Appellant both during the prosecution’s cross examination
175
of Dr. Wolfe and during his closing arguments to the jury. (R.T. 2516, Line 11 —
R.T. 2517, Line 7; R.T. 2906, Line 7 — R.T. 2907, Line 3; R.T. 2927, Lines 13 -
17.) In the end,as the prosecutor implicitly conceded during his closing argument,
Dr. Fukumoto’s opinion regarding the pain experienced by Mrs. Deeble wasan
unnecessary and improperintrusion upon the jury’s fact finding responsibility.
The prosecution was allowed to use foundationless opinions as the key elementof
its argument to persuade the jury thatit had satisfied essential elements of the
crimesof first degree murder by torture as well as the special circumstance of
torture. The conviction and finding should be reversed.
B. The Trial Court’s Admission of Unfounded Testimony
that Muriel Delbecq Put her Key Outside her Residence
was Contrary to State Law and in Violation of
Appellant’s Federal Constitutional Rights
1. Factual Background
During direct examination, Peggy Ventura testified that her mother told her
that she was going to hide an extra key to her apartment undera rock nearthe front
door. She never foundthe keyafter that conversation. (R.T. 2194, Line 22 — R.T.
2195, Line 20.) During cross examination, the defense explored whetherthe
witness had any personal knowledgethat her mother had a key outside her door;
when it became evidentthat her testimony wasbasedsolely upon hearsay, the
defense made a motionto strike Ms. Ventura’s testimony upon that ground. (R.T.
2201, Line 25 — R.T. 2202, Line 21.) The motion was denied as untimely. (R.T.
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2201, Lines 22 - 23.) Later in the trial, the defense renewed the motionto strike
Ms. Ventura’s testimony, arguing thatit failed to object during direct examination
because the improper foundation of Ms. Ventura’s testimony wasnotfully
apparentat the timethat it was given. (C.T. 840 — C.T. 843.) The court adhered to
its earlier ruling that the question was untimely, without reaching its merits. (R.T.
2846, Line 1 — R.T. 2847, Line 19.)
2. Argument
a. The Objection Was Not Untimely
Section 353(a) of the Evidence Code providesthat a judgmentshall not be
reversed by reason of erroneous admission unless there appears of record an
objection or motion to strike and so stated as to makeclear the specific ground of
the objection and motion. The general purpose ofthe rule is to give the trial court
an opportunity to correct or avoid errors so that the defendant can receive a fair
trial. (People vy. Carrillo (2004) 119 Cal.App. 4""94, 101.) A motionto strike
evidence that appeared admissible, but is later shown to be inadmissible, shouid be
made whenthe inadmissibility is demonstrated. (People v. Szeto (1981) 29 Cal.3d
20, 32.) Here, the hearsay basis of Ms. Ventura’s testimony that her mother had
hidden a key undera rock outsidé her door was not completely evident until cross-
examination;at that point, a timely objection and motionto strike was made.
177
While, as in Carrillo, defense counsel did not make an immediate objection, it did
not take long for him to do so. There, as here, defense counsel’s oral and written
motion to strike madeit clearto the trial court that he believed the line of inquiry
to be improper. The trial court had ample opportunity to respond. The objection
wastherefore preserved.
b. Ms. Ventura’s Testimony was
Inadmissible
Asnoted above,the trial court did not rule on the merits of Appellant’s
hearsay objection, nor did the prosecutor contend that the testimony was
admissible under any exception to the hearsay rule. This is unsurprising since Mrs.
Deeble’s alleged statement to her daughter that she had hidden the Key outside the
door wasplainly inadmissible hearsay under Evidence Code Section 1200.
3. Admission of Testimony that Mrs. Delbecq
kept a Key outside her Residence deprived
Appellant of his Federal Constitutional Right
to a Fair Trial, Due Process, and Heightened
Reliability in a Capital Case, Pursuantto the
Fifth, Eighth and Fourteenth Amendments
Aspreviously argued,all parties below agreed that the evidence that
Appellant committed the charged murderwasinsufficient to convict him without
the admission of the “similar crime” that he committed seven years later in Hawaii.
Accordingly, the majority of the prosecutor’s closing remarks were devotedto the
alleged similarity between the murders. (R.T. 2913 — R.T. 2937.) A key
178
de
ie
ingredientin this argument wasthe alleged fact that neither crime involved a
forced entry. (R.T. 2917 — R.T. 2918.) The prosecutor’s argumentsspecifically
referenced “evidence . . . about a key being available at both buildings.” (R.T.
2917, Lines 15 - 16.) Inasmuchasthere is no evidence that Mrs. Delbecq had a
key outside her residence, save the hearsay testimony of her daughter, its improper
admission severely prejudiced the defense by cementing the relationship between
the two crimesin the mindsofthe jury.
Forall of these reasons,the trial court’s admission of Peggy Ventura’s
testimony wascontrary to established California law. The erroneousadmission of
this evidence was highly prejudicial, and the error affected both the guilt and
penalty phases of the capital trial. As a result, Robert Edwards was deniedhis state
and federal constitutional rights to due process of law, to a fundamentally fair trial
and reliable determination of guilt and penalty. (U.S. Const., Amends. V, VI, VII
and XIV; Cal. Const., Art.I, Sections 7(a), 15 and 17; Gardner vy. Florida, supra,
430 U.S. 349; Beck v. Alabama, supra, 447 U.S. 625; Ford v. Wainwright, supra,
477 U.S. 399.) The trial court’s actions in the contravention of California lawalso
deprived Robert Edwardsofa state created liberty interest and denied him equal
protection of the law as guaranteed by the Fifth and Fourteenth Amendments.
(Hicks vy. Oklahoma, supra, 447 U.S. 343.) The conviction should be reversed.
179
C. The Trial Court’s Admission of Unfounded Testimony
by Sergeant Jessen that “Based UponInformation from
Lab Personnel” A List of Suspects other than Appellant
had Been Eliminated as Donors of Semen and Fluid at
the Crime Scene Violated State Law as well as the
Appellant’s Federal Constitutional Rights to a Fair Trial
and Heightened Reliability of Determination Underthe
Fifth, Eighth, and Fourteenth Amendments
1. Introduction
During pre-trial proceedings in June of 1995, the prosecution
disclosed to the Court and defense that DNA analysis had not produced
useful results:
“Mr. Brent. I will be very honest with the Court and counsel. DNA
was used. As the Court saw on the Information, there
wasa trial in Hawaii a year ago and DNAwasusedin
that case andthat, I believe, was RFLP and that was done
in this case, which did not generate any kind of
meaningful results, in my opinion. There has been some
attemptto try to do the PSR analysis. Your Honor, I am
saying that I am leaning towards not using any DNAat
all.
(R.T. 8, Line 25 — R.T. 9, Line 8.)
By August, the prosecutor represented that DNA evidence would not be
presented. (R.T. 147, Lines 7 — 10.)
Underthe guise of defusing a defense suggestion that the police rushed to
focus the investigation upon Appellant to the exclusion of other legitimate
suspects, the prosecutortried to present false and/or foundationless evidence: that
potential suspects had been eliminated by DNAtesting, but Appellant had not:
180
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“Q (by Mr. Brent)
A
Mr. Severin
TheCourt
The Witness
Q (by Mr. Brent)
A
Mr. Severin
The Court
Q (by Mr.Brent)
Mr. Severin
The Court
(R.T. 2818 — R.T. 2820.)
First of all, Sergeant Jessen, you began to focus on Mr.
Edwards to the exclusion of the personsthat the defense
mentioned, correct?
Correct.
Objection, irrelevant.
Overruled.
Excuse me.
Andoneofthe reasons was, was it not, what has already
comeout that Mr. Edwards refused to supply you with
samplesof hair, saliva and blood?
Correct.
Objection,irrelevant.
Overruled.
And,in fact, you had to actually get a court order to get
those items, did you not?
Correct.
Okay. Another reason,is it not true that these people had
been eliminated by DNA from providing the samples at
the Deeble residence of semen and fluids, and Mr.
Edwards had not been eliminated, correct?
Objection, no foundation, speculation.
Sustained.”
18]
The trial court found that the prosecutor’s factual assertion about the
results of DNA testimony was wrong. The suspects (were) not eliminated.
They (were) just not tied into a semenstain.” (R.T. 2831, Lines 2 — 3.) The
defense vigorously challenged even the assertion; it contended that no
testing had “tied in” all suspects, save Appellant:
“The Court
Mr. Brent
The Court
Mr. Brent
The Court
Mr. Brent
Mr. Bates
Howarethey eliminated?
By DNAtesting.
On what, the semen stain?
Yes, and other stains on the bed.
Andthen you have two who are | in 20?
No. On the semen stain Edwardsis, but eventually
the other one, the son, heis eliminated altogether.
The only person left is Edwards.
Just a second. The son is so-called — they are both
in the — Dave can correct me if 1am wrong. I
don’t think [am wrong. Theyare both in the
semen stain on the thigh. They are both part of 1
in 20. They could have putthat stain there. There
is another stain in the bed that Rob could be in and
Steve Deeble could not be in. But wait a second. I *~
am sorry. But there is no showing that those two
stains were put there by the same person. There is
only — the semenstain to her thigh has two guys in
it, and those are the two. (emphasis supplied.):
(R.T. 2827, Lines 3 - 21.)
182
The defense challenge to the foundation of the question wasrelentless;
“(Sergeant Jessen) has no basis to form the opinion as to whether these people
were eliminated by DNAinthefirst place.” (R.T. 2821, Lines 16 ~ 18.); “Your
Honor,in response,there is an inference that the DNA reference inculpates Mr.
Edwards, not just that it eliminates others; it is not true. They didn’t file on him for
seven years becausethey did not haveit.” (R.T. 2825, Lines 22 —26.) “Judge,this
is bringing stuff in through the backdoor that was never presented as evidence. He
nevereventestified that the darn stain was semen. Criminologist Reed eyeballed it
and thoughtit might look like it to him. No further testing is in evidenceatall.
We’re far off into the realm of speculation andfor stuff that is so inflammatory.”
(R.T. 2828, Line 20 — R.T. 2829, Line 1.) Notwithstanding these objections and
repeated challenges to the truthfulness of the prosecution’s assertion about the
results of scientific testing, the Court did not compel him to disclose the bases for
that assertion; instead, the court ruled that Appellant’s cross-examination of
Sergeant Jessen about the investigator’s failure to adequately explore the
reasonable possibility that suspects other than Appellant committed the Deeblé
homicide “opened the door”to a re-examination of his motive to focus upon
Robert Edwardsas the key suspect. (R.T. 2829 — R.T. 2831.) Based uponthe
Court’s ruling, the following re-direct examination ensued:
183
“Q (by Mr. Brent)
Mr. Severin
The Court
Mr. Brent
Q (by Mr.Brent)
Mr. Severin
The Court
The Witness
Q (by Mr. Brent)
Mr. Bates
The Court
The Witness
Q (by Mr. Brent)
Sergeant Jessen, isn’t true that as a result of scientific
testing that this group of namesofthe defense had
mentionedas persons who had supplied inadequate
samples that I asked you about before were eliminated as
the donor’s of the various semen andfluidsat the crime
scene?
Objection, misstates the testimony, lack of foundation.
Re-phrase your question.
Yes,sir.
Isn’t it true that in your mind, based upon information
that you had received from other people, lab personnel,
that this list of people that the defense had mentionedas
people who hadprovided inadequate samples were
eliminated as donors of semen andfluid at the crime
scene?
Objection, lack of foundation.
Overruled.
Yes. Excuse me. Yes.
Andwith that and other information that you had, then
you focused on Mr. Edwardsback in yourinvestigation,
right?
Objection, irrelevant, vague as to time period.
Overruled.
Correct.
Butit wasn’t until you received a phonecall from Hawaii
indicating a homicide that took place over there in 1993
that you felt that you had enoughevidenceto actually
arrest Mr. Edwards,true?
184
*
3
A Correct.”
(R.T. 2838, Line 4 — R.T. 2839.)
2. Sergeant Jessen’s Testimony that He Focused
on Appellant after He Received Unspecified
Information from Unspecified Lab Personnel
was Admitted in Violation of State Law and
Appellant’s Right to Due Process of Law and
a Fair Trial under the Fifth, Sixth and
Fourteenth Amendments
There was notan iota of admissible evidencein the record that any scientific
testing was performedthat “eliminated” any suspect as the donor of semen or
fluids at the crime scene. Moreover, defense counsel repeatedly represented to the
trial court that no scientific testing had ever been performedthat eliminatedall
suspects other than Appellant as donors of fluids found at the Deeble crime
scene.’ Notwithstandingthis record, Sergeant Jessen (underthe prosecution’s
customary and impermissible leading interrogatories) was allowed to confirm that
certain individuals associated with Mrs. Deeble had been “eliminated” as donors
and that, as a consequence,the investigation focused on Appellant. This was error
of Constitutional dimension in a numberof ways.
First, the prosecutor’s knowing presentation of false testimony and false argument
denied Edwardshis rights to due process of law anda fair trial guaranteed by the
185
Sixth and Fourteenth Amendments to the United States Constitution and precluded
the reliability required by the Eighth and Fourteenth Amendmentsfor a conviction
of a capital offense. (Beck v. Alabama (1980) 447 U.S. 625, 637 — 638.) “Due
processis violation whenthe prosecutor, although notsoliciting false evidence
from a Governmentwitness, allows it to stand uncorrected when it appears. That
the false testimony goes only to credibility of the witness does not weaken this
tule.” (United States v. Sanfilippo (5" Cir. 1977) 564 F.2d 176, 178.) In Gigliov.
United States (1972) 405 U.S. 105, the Supreme Court considered a case in which
new evidence had been discoveredafter the conviction “indicating that the
Governmenthadfailed to disclose an alleged promise madeto its key witness that
he would not be prosecuted if he testified for the Government.” (/d. at p. 151.)
The prosecution also argued in summation that the witness “received no promises
that he would not be indicted.” (/d. at p 152.) This was false as the new evidence
confirmed “petitioner’s claim that a promise was made”that if the witness
“testified before the grand jury and attrial he would not be prosecuted.”
([bid.)
The Supreme Court reversed the conviction, explaining:
“As long ago as Mooney v. Holohan [citation], this Court
madeclear that deliberate deception of a court and jurors by the
3° Laterin thetrial, the defense repeatedits assertion that no DNA testing was ever performed. While the
prosecution denied the accusation, and countered that there was DNAtesting,it never respondedto the defense
demandfor proofthat it occurred. (R.T. 2886 — R.T. 2888; see, Argument IX(B),infra.)
186
G
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presentation of knownfalse evidence is incompatible with
‘rudimentary demandsofjustice.’ ... In Napuev. Illinois
[citation], we said, ‘{t]he same result obtains whentheState,
although notsoliciting false evidence, allowsit to go uncorrected
whenit appears.’ [Citation.] Thereafter Brady v. Maryland
[citation], held that suppression of material evidencejustifies a
newtrial ‘irrespective of the good faith or bad faith of the
prosecution.’ [Citation.]
Here, defense counsel asserted that the prosecutor had soughtto willfully
mislead the jury into believing that scientific testing had “eliminated” Appellant as
a suspect when,in fact, no such testing had been performed. Such conduct by the
prosecutor plainly violates its obligation of fairness under Giglio and Napue.
Given the absence of any foundationalfacts in the record that “lab personnel ever
conveyed any information to Sergeant Jessen that eliminated potential suspects
(besides Appellant) as the donor of biological material found at the crime scene, as
well as representations by defense counsel that no DNAtesting was ever
performedthat “eliminated” suspects, it was error for the trial court to permit
Sergeant Jessen to presentthis testimony asfact to the jury without requiring
adequate foundation. Quite simply, since the preliminary fact of the testing was
disputed,the trial court had a duty to resolve it. Evidence Code 310(a):
“Determination of issues of fact preliminary in the admission of evidenceare to be
decided by the Court. . . . “(People v. Wilson (2006) 38 Cal.4" 1237, 1250 — 1251.
The United States Supreme Court has held that the
state’s duty to correct false or misleading testimony
187
SartepAMeNPE wryot ome
by prosecution witnesses applied to testimony which
the prosecution knows,or should know,is false or
misleading [citation], and has concludedthis
obligation applies to testimony whosefalse or
misleading character would be evidentin light of
information knownto other prosecutors, to the
police, or to other investigative agencies involved in
the criminal prosecution. [Citations.]” (In re:
Jackson (1992) 3 Cal.4"" 578, 595) overruled on
other grounds,In re: Sassounian (1995) 9 Cal.4""
535, n.6
Nevertheless, the trial court did nothing. The prosecutor was allowed to
present the results of scientific testing when those results were hotly disputed by
the defense and there was no foundationlaid, either in or out of the jury’s presence,
as to what testing was done, by whom, when,and with what results. Even
assuming that the question posed to Sergeant Jensen was relevantto establish his
state of mind,”’ the objection should have been sustained since the Court had
utterly no basis to determine whetherits probative value, if any, was outweighed
by the obviouspotential for undue prejudiceif, in fact, no reliable testing had been
performed. As a consequence, through a leading question that has no basisin fact,
the prosecutor wasable to acquaint the jury with “the results” of forensic testing
that identified Appellant as the only like perpetrator of the charged offense.
Neither the Court nor the jury had any basis for evaluating the probative value of
37 Appellant does not concede that Sergeant Jessen’s state of mind when he focused the investigation on him wasthe
proper subject for re-examination. Indeed, defense counselat trial expressly argued that he did not “open the door”
to this inquiry. (R.T. 2822, Lines 13 - 15; R.T. 2830, Lines 17 - 23.) Defense counsel does not open the doorto
the opinion of a law enforcement officeras to the guilt of his client simply by challenging the investigative choices
that he made. Yet, the defense did no morein this case.
188
Sergeant Jessen’s state of mind since the unspecified information that he received
from unspecified lab personnel was never admitted into the record nor otherwise
described with any probative particularity.
3. The Admission of Sergeant Jessen’s State-Of-
Mind Regarding the Probability of
Appellant’s Guilt Violated Robert Edwards
Federal Constitutional Right to a Fair Trial
In United States v. Agurs (1976) 427 U.S. 97, the Supreme Court held: “In
a series of subsequent cases, the Court has consistently held that a conviction
obtained by the knowinguse of perjured testimonyis fundamentally unfair, and
mustbesetaide if there is any reasonable likelihood that the false testimony could
have affected the judgmentif the jury.” (/d. at p. 103.)
This Court has summarized:
“The United States Supreme Court hasheld that the
state’s duty to correct false or misleading testimony by
prosecution witnesses applied to testimony which the
prosecution knows,or should know,is false or misleading
[citation], and has concludedthis obligation applies to
testimony whose false or misleading character would be evident
in light of information knownto other prosecutors, to the
police, or to other investigative agencies involvedin the
criminal prosecution. [Citations|’ (In re: Jackson (1992) 3
Cal.4" 578, 595 [11 Cal.Rptr.2d 5321, 835 P.2d 371].)
In Jackson, this Court reaffirmed that the prosecution has a “constitutional
obligation” to correct false and misleading testimonyif it should have known of
189
the misleading nature of that testimony. (In re: Jackson, supra, 3 Cal.4"atp.
597.) Here, the defense alleged that the prosecutor had actual knowledgethat the
resulting of scientific testing that he was presented was false. In such
circumstances, this Court has reiterated that this that this Chapman standard
applies, which requires reversal unless the error was harmless beyond a reasonable
doubt. (/d. at pp. 597 - 598.) In Jackson,the error in that case was ruled harmless
because the defendant had made numerousstatements and admissions confessing
to the crime. (/d. at pp. 598 — 599.) There were no such admissions made by
Edwardsin this case. The prosecution’s case was wholly circumstantial and utterly
dependentupon the improper admission of an uncharged offense that occurred
several years after the Deeble homicide.
Even assuming that the error was not the willful presentation of false
evidence,the failure of the trial court to require a proper foundation to present
evidence compels reversal under the Watsonharmlesserror standard. Because of
the phrasing of the leading questions posed to Sergeant Jessen, the jury was
compelled to speculate upon what mannerof “information” from “lab personnel”
caused him to disregard various associates of Mrs. Deeble who hadbeenasked to
furnish fluid samples as suspects and focus upon Appellant. It is reasonable to
8 In People v. Watson, supra, 46 Cal.2d 8128, 836, this Court held that reversal is required whereit is “reasonably
probable”that a more favorable result would have been obtained absentthe error.
190
,
assumethat since the jury was allowed to hear that a key investigative decision —
wasbased upon laboratory information, the Court’s previous admonition to
disregard any reference to DNA evidence was impossible to follow. In any event,
without any basis in the record whatsoever, the jury heard testimony that scientific
testing of some mannerwas performed that wasso reliable that when Sergeant
Jessen wasadvised ofits results, he dramatically changed the course of his
investigation to focus solely on Appellant. Since the record fails to disclose the
natureofthis alleged testing, it is impossible to concludethat the defense had any
effective meansto rebut this devastating backdoor admission of“scientific proof”
of Appellant’s guilt. The “results” of this forensic testing supplied the essential
missing ingredient to the prosecution’s efforts to identify Appellant as the
perpetrator of the offense. Withoutit, there was no evidence tying Appellantto the
murder of Mrs. Deeble, other than the spurious claim that the crime scene shared
unique signature characteristics with the Delbecq homicide, committed during the
following decade, thousands of miles away. Withit, the jury had “proof”that the
prosecutor’s claim had a basis in reliable and impartially obtained scientific fact.
Therefore, its admission severely prejudiced the defense, violated Appellant’s
federal constitutional right to due process of law and to confront adverse witnesses,
heightened reliability in a capital case and therefore entitles him to a new trial
191
underthe Fifth, Sixth, Eighth and Fourteenth Amendments. (Hicks v. Oklahoma,
supra; Beck v. Alabama,supra.)
D. Each of the Evidentiary Errors Require Reversal Since
the State Cannot Establish that their Erroneous
Admission was Harmless Beyond a Reasonable Doubt
Errors involving a trial court’s decision to admit evidence are typically
reviewed underthe less stringent standard of People v. Watson, supra, 46 Cal.2d
818. However, this court has made an exception for state law errors implicating
importantconstitutional rights. In People v. Fudge (1994) 7 Cal.4" 1075, 1102 -
1103, this court held that errors involving merely state evidentiary rules are
analyzed under the Watson standard, butif the erroris of constitutional
dimensions, the Chapmanstandardis controlling. Because federal constitutional
rights are implicated here, this court should independently review the record, and
reverse the convictions and sentence if the errors complained of are not found to
have been harmless beyond a reasonable doubt. (Chapman v. California, supra,
386 U.S. 18, 24; People v. Fudge, supra, 7 Cal.4" 1075, 1102 - 1103.) Under the
Chapmanstandard, the burden shifts to the state to prove that the error was |
harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. 18,
24.) The state cannot meetthis burden on thefacts ofthis case.
Aspreviously discussed, the improper admission of Dr. Fukumoto’s
testimony regarding the autopsy report supplied the key and indispensable
192
vill
ae
ingredient to the prosecutor’s theory that Appellant was the individual who
committed the charged offense becauseofits “signature” similarity to the Delbecq
homicide. His improper opinionthat the injuries occurred before death and were
extremely painful supplied necessary grist for the prosecutor’s argumentthat Mrs.
Deeble wastortured, an essential elementof the first-degree murder charge and the
special circumstance allegation. Peggy Ventura’s inadmissible testimony that her
mother kept a key outside her apartment contributed substantially to the
prosecutor’s theory that the two murders, vastly separated by time and geography,
were no doubt committed by the same individual because neither crime involved a
forced entry. Finally, the improper admissionofa police officer’s state of mind
regarding a defendant’s guilt, based by the false and/or foundationless results of
scientific testing damaged Appellant’s prospects for a fair trial in a mannertoo
obvious to merit any further discussion.
To fully appreciate the prejudicial effects of this evidence, it must be
assessed in conjunction with the other guilt phase evidence. (People v. Hill (1998)
17 Cal.4" 800, 844 - 846.) Quite simply, as the Court and parties agreed, there was
nothing to connect Appellant to the commission of the Deeble murder, other than
its supposedsimilarity to the Delbecq homicide,committed an ocean away during
the following decade.
193
Appellant submits that even underthe less stringent standard of review
announced under People v. Watson, it was “reasonably possible” that a more
favorable result would have been obtained had anyof the improper evidence been
excluded; in combination, and underthe correct Chapmanstandard, the record
compels a conclusion that the errors were not harmless beyond a reasonable doubt.
His convictions must be reversed.
VI. THE SPECIAL CIRCUMSTANCE FINDINGS MUST BE
_ REVERSED BECAUSE OF INSUFFICIENCY OF EVIDENCE
WHICH DENIED APPELLANT HIS FEDERAL
CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND
NARROWING OF HOMICIDE CASES MOST DESERVING
OF THE DEATH PENALTY UNDER THEFIFTH, SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS
A. Standard of Proof
In determining whetherthere is sufficient evidence to support a criminal
conviction, an “appellate court must determine whether a reasonable trier of fact
could have found the prosecution sustained its burden or proving the defendant,
guilty beyond a reasonable doubt.” (People v. Rayford (1994) 9 Cal.4™ 1, 23;
People v. Reyes (1974) 12 Cal.3d 486, 497.) The “substantial evidence”rule is the
yardstick used by the courts to determine whethera verdict meets this minimal
standard of reasonableness.
194
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“The court must determine ‘whether from the
evidence, including reasonable inferences to be
drawntherefrom,there is any substantial evidence of
the existence of each elementof the offense charged.’
[Citation] . . . ‘[T]he court must review the whole
record . . . to determine whetherit discloses
substantial evidence — that is, evidence whichis
reasonable, credible and of solid value — such that a
reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [Citation]
(People v. Williams (1997) 16 Cal.4"” 635, 678; cert.
denied (1998) 523 U.S. 1027.)
“Substantial evidence” does not just mean some evidence that could support
the jury’s verdict; it mans “evidence that reasonably inspires confidence andis ‘of
solid value.’” (People v. Redmond (1969) 71 Cal.2d 745, 755; In re: Khamphouy
(1993) 12 Cal.App.4" 1130, 1134.) “To survive an insufficiency of evidence
challenge, the evidence must be substantial enough to support the finding of each
essential elementof the crime....” (People v. Johnson (1992) 5 Cal.App.4" 552,
558.)
[I]t is not enough for the [prosecution] simply to
point to ‘some evidence supporting the finding,
for, ‘Not every surface conflict of evidence
remains substantial in the light of otherfacts.’”
(People v. Johnson, (1980) 26 Cal.3d 557, 577.)
“The powerofthe factfinder . . . has never been thoughtto include a power
to enter an unreasonable verdict of guilty.” (Jackson v. Virginia (1979) 443 U.S.
307, 317.) A conviction of a capital crime which is not supported by substantial
evidence violates due process of law and a reliable penalty determination
195
guaranteed bythe Fifth, Eighth, and Fourteenth Amendments. (Jackson vy.
Virginia, supra; Woodson v. North Carolina (1976) 428 U.S. 280; Beckv.
Alabama (1980) 447 U.S. 625.) “[T]hecritical inquiry on review of the
sufficiency of the evidence to support a criminal conviction mustbe . . to
determine whetherthe record evidence could reasonably support a finding ofguilt
beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S.at 318.)
B. Introduction
This is an unusual case. Not because Robert Edwards was charged with and
convicted of murder with burglary and torture murderspecial circumstances.
Examples of such convictions abound in the California Reports. Rather, this is an
unusual case because the jurors were presented with two crime scenes,attributed to
a single man,that were not only widely separated by distance and time, but also by
plainly divergent methodsandintent.
In Hawaii, the victim was strangled manually and sexually assaulted with a
foreign object in an obviousandbrutal fashion.
In California, the victim was simply bound, demonstrating nothing more
than her assailant’s intent to immobilize her, not to torture or kill her. Her injuries
are consistent with her struggles to free herself and her assailant’s intent that she
should not. The prosecution’s case that she suffered “extreme pain” before she
196
died is based on solely upon the unfounded and conclusionary testimony of a
coroner whodid not even perform the autopsy. Its case that Robert Edwards was
the assailant is not based upon a shred of forensic evidence, a single percipient
witness, or a discernable motive for him to attack the victim, but instead upon the
hyperbolic “Tale of Two Mousse Cans”that was, in reality, nothing more than
“Great Expectations,” never realized in the evidence.
C. The Torture Special Circumstance Allegation
1. Factual Background
Whenthe body of Mrs. Deeble was discovered lying face down onthe floor
of her bedroom,her hands weretied behind her back. Her neck was suspendedin
a noose fashioned byattaching the free end of a belt to the drawer handle of a
bedroom cupboard. (R.T. 2011 —R.T. 2012.) Blood was running outofherleft
ear and nose. Her eyes were closed. (R.T. 2012.)
According to the state’s forensic pathologist, Dr. Fukumoto, Mrs. Deeble
died because of asphyxiation dueto ligature strangulation. (R.T. 2139.) Death
occurs from ligature strangulation in approximately six minutes; unconsciousness
can occurin less than 60 seconds. (R.T. 2153 — R.T. 2154.) He opined that a deep
furrow on Mrs. Deeble’s neck was created by the ligature; he did not know how.
He speculated that the neck abrasions may indicate a movementof her body with
197
the ligature in place; alternatively, the ligature may have slipped and thus have
been tightened. (R.T. 2126; R.T. 2158.) The right eardrum wastorn, possibly as a
result of a struggle of Mrs. Deeble to get a breath. The left eardrum had a wound
that wasincisional and could have been caused by a sharp instrument. (R.T. 2127
— RT. 2128; R.T. 2151.) Dr. Fukumoto opined (again, without foundation) that
struggling against the belt would have been “extremely painful;” so too would
have been the pressure on Mrs. Deeble’s ears. (R.T. 2128.) Bloody subarachnoid
fluid inside her skull and a blood clot on the membrane between the skull and the
brain indicated that Mrs. Deeble received a blunt force trauma to her head;in the
opinion of Dr. Richards, a flattening of the bridge of her nose indicated that it was
fractured. (R.T. 2130 — R.T. 2133; R.T. 2160.) Yet, at one point during his
testimony, Dr. Fukumoto noted that Dr. Richards’s autopsy report revealed that the
x-rays did not reveal a nose fracture. (R.T. 2142.) Mrs. Deeble’s pancreas was
damaged bya strong blowto the left backside of the abdomen. (R.T. 2135 — R.T.
2136.) Her vagina was bruised and the rectum waslacerated. Dr. Fukumoto could
not describe the size of the lacerations nor did he notice any blood on the lining of
the vagina or rectum. (R.T. 2125 —R.T. 2125; R.T. 2127.) He opined that trauma
to these areas would be highly painful. (R.T. 2138.) *° In his foundationless
opinion,the injuries to the vagina-and rectum occurred before death. (R.T. 2138.)
»° Dr. Fukumoto’s readinessto offer this opinion is inconsistent with his response to the same question posedat the
preliminary hearing:
198
The defense’s forensic pathologist, Dr. Wolfe, testified that bleeding from
the ear canals and incisional tearing of the eardrumsis consistent with ligature
strangulation. Ligature strangulation and hemorrhaging from theears are not
necessarily consistent with extreme or prolonged pain. The presenceofligature
marks on Mrs. Deeble’s ankles likewise did not necessarily establish that she
suffered extreme or prolonged pain. (R.T. 2486.) The injuries to the vagina and
rectum, in Dr. Wolfe’s opinion, were extremely minor and could have been caused
by consensual sexual intercourse. (R.T. 2494 — R.T. 2497; R.T. 2514.) The
lacerations’ depth and length were not measured by Dr. Richards nor wasthe size
or extent of the bruising that he observed. (R.T. 2510 —R.T. 2512.)
2. The Evidence of Torture was Insufficient as a
Matter of Law for this Special Circumstanc
Allegation to be True
a. Introduction
Penal Code Section 190.2(a)(18) provides a special circumstanceif “(t)he
murderwasintentional and involved the infliction of torture. For purpose ofthis
section, torture requires proof of the infliction of extreme physical pain no matter
how longits duration.” The elements necessary to establish the torture-murder
,
“Q The type of injuries that were done to the vagina and rectal areas prior to death,is it fair to say that
these would be very painful?
A I would say there would be pain associated with it.”
(R.T. 73.)
199
special circumstance wereset forth by the California Supreme Court in People vy.
Davenport (1985) 41 Cal.3d 247. The court held that: “the evident purpose ofthis
statute is to encompasskillings in which the perpetrator intentionally performed
acts which were calculated to cause extreme physical pain to the victim and which
were inflicted prior to death.” (/bid. at 271.) The court then concluded:
(Ibid.)
“In sum, wefind that the words used in Section
190.2(a)(18) must be understoodin light of the
established meaning of torture. Proof of a murder
committed underthe torture-murder special
circumstancetherefore requires proofofa first-
degree murder (Section 190.2(a), proof that the
defendantintendedto kill and to torture the victim
(190.2(a)(18)) andthe infliction of an extremely
painful act upon a living victim. The special
circumstanceis distinguished from murder by
torture under Section 189 because under 190.2
subdivision (a)(18) the defendant must haveacted
with the intent to kill.”
Accordingly, the jury wasinstructed as follows:
“To find that the special circumstance referred to in
these instructions as murderinvolvingthe infliction
of torture is true, each of the following facts must
be proved:
1. The defendantintended to kill human being.
2. The defendantintended to inflict extreme
cruel physical pain and suffering upon a
humanbeingfor the purpose of revenge,
200
extortion, persuasion or for any sadistic
purpose, and
3. The defendantdid,in fact, inflict extreme
cruel physical pain and suffering upon a
human being no matter how longits duration.
Awarenessof pain by the deceasedis not a necessary element
of torture.
(R.T. 3137 —R.T. 3138.)
In this case, the People failed to meet each of the three elements
listed above.
b. The People Failed to Produce Sufficient
Evidence that the Injuries Caused Mrs.
Deeble “Extreme Pain”
1. Dr. Fukomoto’s Opinion Lacked
Foundation and was An
Insufficient Basis to Satisfy the
Element of “Extreme Pain”
Asset forth above, Mrs. Deeble’s end could have comerelatively quickly:
unconsciousnessin less than one minute and death approximately five minutes
thereafter. The only direct proof that any of her injuries occurred before death was
Dr. Fukumoto’s foundationless opinion regarding those to her vagina and rectum;
4° Asset forth in Argument X](B), this instruction was erroneoussince it omitted the requirementthat a “living
human being must be tortured.”
201
No opinion wasexpressed as to whether the furrowson herneck,or the injuries to
her head andotherparts of her body, wereinflicted before death. (R.T. 2128.)
The limited numberof ante-mortum injuries was never addressed by the
prosecution during his closing argument. He simply soughtto rely on the injuries
depicted in the crime scene photographs, without referenceto the key issue of
whetherthey were suffered after her death and therefore could not have caused any
pain, extreme or otherwise:
“The torture instruction talks about — anditis
interesting to me becauseit talks about the victim
does not need to be awareof the pain, does not need
to knowthat she is suffering pain. That is
interesting to me because the point I wantto raise
aboutthat is that I was frankly flabbergastedness by
a witness the defense called, Dr. Wolfe. And may
be you picked up on my flabbergastedness, whatever
that is worth, but the point is I assume youfelt the
same way. That that witness said somethings I
wantto talk about, and I couldn’t understand why,
because what wasthe point? He made a ridiculous
statement. I am going to say that is what it was.
(R.T. 2904.)
* * *
Exhibit 1 and Exhibit 33, these are two photographs
[held up. Are youtelling us that these womendid
not feel any pain? And I wasa little sarcastic,
frankly, when J asked that. Do we have that much to
be grateful for that they didn’t feel — yeah they
didn’t feel any pain. Hesaid no, they did notfeel
pain. They did notfeel pain that is ridiculous. That
202
F
a
O
J
defies commonsense. It goes against what Dr.
Fukumoto told us about the extremepain theyfelt,
the torture kind of pain that they felt along the way
leading up to their demise, howeverlong that demise
took. Weall —
Mr.Bates I have to object to that. Dr. Fukumoto didn’t say
anything about torture kind of pain. Moveto strike.
The Court Overruled.”
(R.T. 2906 — R.T. 2907.)
Defense counsel’s objections were well-taken. The opinions offered by Dr.
Fukumotothat the allegedly ante-mortum injuries were “very”or “highly painful”
were an insufficient basis to sustain a special circumstance finding for a numberof
reasons. First and foremost, those opinions were without foundation and therefore
an unreliable basis to impose a death verdict. This point is addressedat length in
Section VI(A) herein. Even if one assumesthat his opinions were admissible, the
absenceof any explanatory testimony as to the reason that they would fall into the
category of “highly painful,” as opposed to merely painful, injuries or were
inflicted before death makes them an inadequate basis upon which to make
Appellant death-eligible. It is certainly not self-evident that minor abrasions to the
neck or bruises andlacerations to the rectum and vagina of an unknownsize, depth
or length, as in this record, would cause extremepain. Secondly, Dr. Fukumoto’s
opinion aboutthe degree of pain caused bythe rectal and vaginalinjuriesis
203
inconsistent with his sworn testimonyat the preliminary hearing; when given an
opportunity to describe those injuries as “very painful,” Dr. Fukumoto declined to
do so. (R.T. 73.) Finally, while the mere conflict between expert opinionsis
normally an issue left to the sounddiscretion of the trier of fact, Dr. Wolfe’s
opinion that the injuries to Mrs. Deeble genitals were minor andthat the injuries to
her neck and eardrums werenot necessarily consistent with extreme pain, when
coupled with the other insufficiencies in the People’s case, compel a conclusion
that there was insufficient evidence as a matter of law to sustain a finding that the
special circumstance wastrue.
2. The Physical Evidence Does Not
Support a Finding that the Victim
Experienced Extreme Pain
The recordin this case sharply differs from those in which the evidence of
extreme pain was found sufficient to satisfy the special circumstanceoftorture in
two ways.
First, unlike the prosecutor’s attemptin this case to satisfy the jury as to this
elementwith the broad strokes of a distasteful crime scene photograph, cases that
haveconsideredthis issue carefully distinguish between injuries that are inflicted
before and after death. Thus, in People v. Proctor (1992) 4 Cal.4"™ 499, 417 - 418,
aff'd, (1994) 512 U.S. 967 and People vy. Crittenden (1994) 9 Cal.4" 83, 109, cert.
denied, (1995) 516 U.S. 849, both opinions focused on the infliction of those
204
4
.
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4
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3
injuries that occurred while the victim wasstill alive. Here, despite the
prosecutor’s efforts to obscure whetherthe injuries were inflicted before the
victim’s death with a crime scene photograph,his witness only identified pre-
mortem injuries that were notvisible in that photograph; indeed, the bleeding from
those injuries was so slight that it was only detected during the autopsy
microscopically. (R.T. 2146 —R.T. 2147.) The prosecutor impermissiblyleft it to
the jurors’ imagination to determine the basis upon which Dr. Fukomotorested his
bald assertion that the isolated injuries to the victim’s genitals were inflicted before
her death; no explanation of the basis for that opinion was given by the witness nor
were the injuries such that common experience wouldtell the jurors that they
necessarily occurred before death. There was novisible bleeding from the injuries
nor were their depth and breadth measured by the physician who performed the
autopsy. Thus, the evidences does not show,with any degree ofreliability, that
even some of the injuries identified during the autopsy occurred before the victim’s
death.
Second, unlike here, where the pre-mortem injuries cited by Dr. Fukomioto
as causing extreme pain consist of superficial wounds, the pre-mortem injuries in
earlier precedent are obviously consistent with the infliction of severe pain. (See,
e.g., People v. Davenport (1985) 41 Cal.3d 247, cert. denied, (1996) 519 U.S. 951,
[a woodenstake driven so deeply into the victim’s rectum that it came to rest by
205
the armpit, piercing internal organs; People v. Proctor, supra, 4 Cal.4" 499, 517-
- 518, [multiple blood force trauma, bruises, together with seven woundsto the right
breast, each approximately two inches deep, and inflicted slowly and deliberately];
People v. Crittenden, supra, 9 Cal.4"" 83, 109 [a knife driven so deeply into the
victim’s chest — probably with a fire extinguisheras a battering ram — thatits
handle disappeared into his body].)
This court’s recent opinion in People v. Elliott (2005) 37 Cal.4" 453is
instructive. There, the element of extreme pain “wassatisfied by evidence of 81
pre-mortem stab and slash wounds, many of which suggested a “meticulous,
controlled approach,” and only three of which were potentially fatal. (/d. at 967.)
Here, there were far fewer, and less calculated, wounds. Moreover, unlike here,
there was evidencein Elliott to suggest a motiveto torture the victim: to get her to
reveal the combination to a floor safe. Thus, while expert testimonythat the victim
suffered extreme pain is not necessary to establish that element of proof, the
woundssuffered by the victimsin earlier decisions were of such a horrifying
nature, that a reasonable jury could find the consequence of extreme pain without
such assistance. Here, no reasonable jury could have concludedthat the abrasions
caused by the ligature around Mrs. Deeble’s neck, and the otherwise undescribed
injuries to her rectum and vagina, caused extreme pain or, indeed, were even
inflicted before death. This special circumstance should be reversed.
206
z
a-
Cc. Even if the Jury Could Have Foundthe
Four Woundsto have been Extremely
Painful, there was Insufficient Evidence
that Appellant Intendedto Inflict
Extreme Pain
Asset forth in People y. Davenport, supra, in orderto establish the torture-
murder special circumstance, the people must produce evidence that Appellant
intended to torture the victim; that is, that he intendedto inflict extreme pain upon
that person. Here, there is no reliable evidence whatsoever that Appellant formed
such an intent. The People attemptedto raise an inference of torture upon the
evidence that Mrs. Deeble sustained several less-than-lethal woundsto her
genitals, which only generated microscopic bleeding and were of unknown
dimensions and those woundsdepicted in the crime scene photograph which were
never identified by Dr. Fukomotoas capableofinflicting “extremepain.” (R.T.
2906 — R.T. 2907.) Although ligature strangulation was the act that was identified
by Dr. Fukomoto as the “extremely painful’ cause of death (R.T. 2128; R.T. 2139),
he admitted that the lacerations of the victim’s neck could have beenself-inflicted,
as she struggled to set herself free from her bindings. Moveover, “murder by
strangulation indicates malice, but does not by itself indicate an intent to make the
victim suffer. (People v. Caldwell (1955) 43 Cal.2d 864, 869.) Finally, although
Dr. Fukomoto’s testimony wasbasedsolely on the woundsthat were inflicted on
the victim,it is well settled that torture cannot be inferred only from the condition
207
of the victim’s body. (People v. Wiley (1976) 18 Cal.3d 162, 168; People v.
Anderson (1965) 63 Cal.2d 351; People v. Soltero (1978) 81 Cal.App.3d 423, 429.
[Other evidence of an intent to cause suffering is also required.] People v. Wiley,
supra, 18 Cal.3d at 168.)
| Inthe cases that have found sufficient evidence of torture, there has always
been compelling evidenceofan intent to inflict extreme pain, in addition to
whatever inferences might have been drawn from the condition of the victim’s
body. (See, e.g., People v. Morales (1989) 48 Cal.3d 527, 560, [evidence
regarding the mannerin which the murderwascarried out along with defendant’s
earlier statement that he intended to “hurt” and strangle a girl, found sufficient to
sustain jury’s implied finding ofintent to inflict extreme pain]; People v.
Robertson (1982) 33 Cal.3d 21, 51, cert. denied, (1989) 493 US. 985 [defendant
admitted in his confession that he stabbed the victim in the vagina while she was
still alive and a witnesstestified that defendant had declared his desire to cause
pain to women]; Ortega v. Superior Court (1982) 135 Cal.App.3d 244, 258;
{evidence that defendant, prior to the murder, hadtold his girlfriend that he agreed
to “hurt” a girl provided a sufficient basis to demonstrate an intent to torture];
People v. Pensinger (1991) 52 Cal.3d 1210, 1240, cert. denied, 502 U.S. 930
(evidence of defendant’s admissionsthat he brokehis baby’s ribs and slashed her
with a knife to stop her crying before he killed her.) People v. Soltero (1978) 81
208
Cal.App.3d 423, 429 - 430 [evidence that defendant sought revenge for having
been “burned”in a drug deal along with threats made to the victim and others that
he would “get them,” as well as evidence that the victim sustained 18 separate non-
fatal stab woundswith two non-fatal strangulations over a four to six hour period
sufficient evidence of a specific intent to inflict pain].) If anything, it is reasonable
to assumethat the blow to Mrs. Deeble’s head rendered her senseless andis
therefore inconsistent with a finding that the perpetrator intended to cause her
extreme and prolonged suffering. (R.T. 2133.) Moreover, Appellant barely knew
Mrs. Deeble and the record is devoid of evidence that he had any animosity
towardsher.
The requirementthat the prosecution produce evidence ofan intent to torture
other than simply the condition of the victim’s bodyis a sound one. Without
additional evidence,the trier of fact is left to speculate how, and under what
circumstances, the injuries occurred. For example, although the prosecution
argued that the injuries to the victim were caused by a sexual assault, Dr. Wolfe
attempted to opinethat the key pre-mortum injuries to the rectum and vaginacould
have been caused by consensual sexual intercourse; this testimony was unrebutted
by the prosecution’s pathologist, Dr. Fukumoto.
This court has also cautioned against divining an intent to torture simply on
the basis of the severity of wounds, since severe wounds maybeinflicted for some
209
other purpose than to inflict pain, such as explosion of violence. (People v.
Mincey (1992) 2 Cal.4" 408, 432, cert. denied, 506 U.S. 104; see, also, People v.
Daveport, supra, 41 Cal.3d at 268.) Thus, in People v. Cole (2004) 33 Cal.4"
1158, 1198 and People v. Proctor, supra, 4 Cal.4th 499, 517-518.) The opinions
relied on statements that were made as the woundswerebeing inflicted as part of
the basis for finding an intent to torture; here, the record reflects no such
explanatory statements by Mrs. Deeble’s assailant.
Lastly, as previously discussed in another context, the woundsare not of
such a nature as to leave no reasonable doubtthat the assailant must have harbored
an intentto torture his victim. (Compare, People v. Pre (2004) 117 Cal.App.4"
413, 423, [where the court had no difficulty finding an intent to torture where the
assailant bit the ear of an immobile victim causing a woundthat needed 100
stitches to close].) Those cases that have consideredthe sufficiency of evidence to
satisfy the elementof intent to torture have also focused upon injuries that were
incidental to the cause of death and,therefore, could be logically attributed to an
intent to cause pain rather than to kill. Thus, in Crittenden, the Supreme Court
found that evidence that the-victim was boundexcludeda finding that the wounds
were caused by “an explosion of rage;”’ it went on to find that the receipt of
woundsthat were “clearly not intended to be fatal” supported a reasonable
conclusionthat they were inflicted solely to cause pain. (/bid. at 142.)
210
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Here, the neck wound was causedbythe very instrumentthat immobilized
Mrs. Deeble: the ligature. Thus, unlike the woundsinflicted in Crittenden which
were non-lethal and therefore inconsistent with any other logical finding than an
intent to cause pain, one could reasonably find that the ligature wound was an
artifact of the assailant’s intent to immobilize, and notto torture or kill her. The
assailant’s use of the ligature to bind Mrs. Deeble is not evidence that he intended
to inflict extreme pain or to kill her. The binding of the victim merely displays an
intent to overcome any resistance to the crime. Dr. Fukumoto theorizedthat the
deep furrow in Mrs. Deeble’s neck wasnot caused by anydirect action by the
assailant; it was causedbythe victim’s election to struggle against the ligature.
(R.T. 2168.) Thus, while it may be reasonable to assume that the assailant used the
ligature to subdue Mrs. Deeble,it is mere speculation to assumethat he did so with
the intent that she would struggle against it and cause her “extreme pain.” Forall
the foregoing reasons, the special circumstanceallegation of torture murder should
have been dismissed becauseofinsufficient evidence. (See, People v. Crittenden,
supra, 9 Cal.4" 83, 140.)
d. Even if the Jury Could Have Found the
Victim’s Wounds to Have Been
Extremely Painful and that Appellant
Intended that Result, There was
Insufficient Evidence that Appellant
Intended to Kill Her
211
Proof of the torture special circumstance requires evidence that the
defendantintendedto torture and kill the victim. People v. Proctor, supra, 4" Cal.
at 533. Here, as previously argued, the bindings of the victim show nothing more
than an intent to immobilize her. Even assuming that the bindings and non-lethal
wounds are enoughto prove an intentto torture the victim, they are notsufficient
to prove an intent to kill her. Proctor is distinguishable. There, the defendant’s
intent to asphyxiate the victim — the eventual cause of her death — supported by
evidence of manual strangulation that precededthe ligature strangulation that led to
her death. Here, no such evidenceis present in the record. Thus, the special
circumstance allegation of torture murder should have been dismissed because of
insufficient evidence.
D. The Burglary Special Circumstance Allegation
1. Factual Background
Aspreviously noted in ArgumentIII(D)(1) herein, there was no persuasive
evidence that the moussecan that was found in the beddingat the scene of the
crime wasused to assault Mrs. Deeble, whose bodylay on the floor below. (R.T.
2013.) There was no convincing forensic evidenceof an assault with a foreign
object; the injuries to her vaginal cavity were relatively minor and consistent with
consensual sex. (R.T. 2153; R.T. 2162; R.T. 2147 —R.T. 2148.) Dr. Fukumoto
could nottestify with any degree of probability that her injuries were caused by the
212
canister. (R.T. 2138, Lines 10 - 19; R.T. 2147, Line 19 —R.T. 2148, Line 16.)
Finally, there was no serological evidence that the can was usedin the assault.
(R.T. 2496 - 2497; R.T. 2446; R.T. 2062.)
The evidencethat a theft occurred at the Deeble residence during the
commission of her murder wassimilarly insubstantial. Although her daughter
alleged certain pieces of her mother’s jewelry were “missing”after the murder.
She had no wayofknowing whetherthey were truly “missing” or simply
misplaced. (R.T. 2081 —R.T. 2083.) Indeed, a ring that Mrs. Deeble was wearing
at the time of her murder wasnot stolen. (R.T. 2060 — R.T. 2061.) The timing of
the alleged thefts, if they indeed occurred, was a matter of speculation.
2. The Evidence of Burglary was Insufficient as
a Matter of Law for this Special Allegation to
be True
a. Introduction
Section 190.2(a)(17)(G) provides,in its pertinent part, that a defendant1s
death-eligible if the following circumstanceis found to be true: “The murder was
committed while the defendant was engagedin, or was an accomplice in, the |
commission of the attempted commissionof, or the immediate flight after
committing or attempting to commit, the following felonies: burglary in the first
or second degree in violation of Section 460.”
213
The elements of the special circumstance of burglary require proof by a
reasonable doubtthat the defendant intended to commit the felony at the time he
killed the victim and that the killing and the felony were part of one continuous
transaction. (People v. Coffman (2004) 34 Cal.4"1, 87, cert. denied, (2005) 544
USS. 953.) Accordingly, the jury was instructed as follows:
“If you find that the special circumstance
referred to in these instructions as murderin
the commission of burglary is true, it must be
proved:
“(1A) That the murder was committed while the
defendant was engaged in the commission of
a burglary,
“(B) The defendant intended to kill a humanbeing,
and
“(2) The murder was committed in order to carry .
out or advance the commission ofthe crime of
burglary or to facilitate the escape therefrom
or to avoid detention. In order words, the
special circumstancereferred to in these
instructionsis not established if the burglary
was merely incidental to the commission of
the murder.
(R.T. 3137, Lines 9 - 23.)
* * *
“The specific intent to commit burglary and the
commission of such crime must be proved beyond a
reasonable doubt.”
214
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“Every person who enters any building with the
specific intent to steal, take and carry awayto
personal property of another of any value and with
the further specific intent to deprive the owner
permanently of such property or with the specific
intent to commit the crime of penetration with a
foreign object, a felony, is guilty of the crime of
burglary, in violation of Penal Code Section 459.
(R.T. 3130.) For felony murder, the defendant must
form the intent to commit the felony before he
entered the residence.” (People v. Sears, (1965) 62
Cal.2d 737, 744, overruled on other grounds;
People v. Cathill, (1993) 5 Cal.4" 478.)""
b. There is no Evidencethat the Predicate
Crime of Burglary Occurred or was
Intended
1. No Theft or Intended Theft
was Proven
Preliminary, there was insufficient evidence to persuade any reasonable
juror that the predicate felony (a theft) even occurred or was plannedin orderto
satisfy this element. The only evidence introduced wasthe uncorroborated and
high circumstantial opinion of the victim’s daughter that she never saw certain
items of jewelry that were worn by her mother after murder. (R.T. 2080, Line
709.) Obviously, this kind of evidence hardly demonstrates even a probability that
the items in question were stolen or, indeed even missing from her mother’s house,
muchless stolen by Appellant. This is especially true since there is no evidence in
the record that Ms. Valentine even saw anyof these items in her mother’s
“! The elements of burglary were defined for the jury at R.T. 3130, Line 3 — R.T. 3132, Line 7.
215
possession immediately before the homicide, except for a single necklace. (R.T.
2105, Lines 1 - 23.) Moreover, when the police arrived at the crime scene,the
front doorto the residence was unlockedandajar, affording anyoneeasy accessto
the belongings inside. (R.T. 1990.) Indeed,thirty latent fingerprints as well as
pubic body hair were also identified inside the residence; forensic examinations
excluded Robert Edwardsat the donor. (R.T. 2797 — R.T. 2799; R.T. 2330 — R.T.
2332.)
(Compare, People v. Coffman, supra 34 C.4" 1, 88 (where there was compelling
circumstantial evidence that the defendantstole the victim’s answering machine,
thus proving the burglary.)
2. NoPenetration or Intent to
Penetrate with a Foreign Object
was Proven
The samestartling voids of essential evidence is present with regard to the
alternative allegation that Appellant assaulted, or intendedto assault the victim
with a foreign object (the mousse can.) There is no evidence in the record from
which a reasonable juror could have concluded that he did so, beyond a reasoriable
doubt. Indeed, as previously observed,the prosecution’s expert, with all his
training and experience, could not say that Mrs. Deeble was sexually assaulted
with a foreign object with any degree of certainty. (Compare, People v. Coffman,
supra 34 Cal.4"™ 1, 88, where pathologists’ unequivocal testimony that sperm was
216
ah
presentin the victim’s rectum wassufficient to establish the element of penetration
for a sodomy felony-murderspecial circumstance allegation.) Again, even if one
assumesthat Appellant murdered Mrs. Deeble, and even if one further assumes
that he assaulted her with a foreign object, there is no evidence from which a
reasonable juror could have concluded, beyond a reasonable doubt, that he entered
her homewith that intent. There is no evidencethat he had any sexual feelings
towards her, or that he entered her home with the foreign object used to assault her.
(See, People v. Anderson, (1968) 70 Cal.2d 15, 35 (where the intent to commit the
sexual assault -- pre-dating and independent of the homicide — wasnotsatisfied
because the prosecutor failed to present any evidence other than that of the murder
itself).)
c. There was No Evidencethat the
Assailant Entered the Residence with
the Intent to Commit a Felony
Even assumingthat articles of value were taken from Mrs. Deeble’s
residence or that she was assaulted with a foreign object, and even assuming
further that Appellant committed either of these acts, there is utterly no evidence in
the record from which any reasonable juror could have concluded that he entered
her residence with the intent to do so. (Compare, People v. Sears, supra, 62
Cal.2d 737, 746 (where the burden of proof to demonstrate an intent to assault the
victim before the defendant entered the house wassatisfied by evidencethat he did
217
so with a piece of reinforced pipe underneath his short.) In sum, even if one makes
several unjustified leaps of faith and concludes that Appellant stole some of Mrs.
Deeble’s jewelry during the homicide,there is absolutely no basis in the record to
conclude that the theft was anything other than an impulsive opportunistic crime,
wholly incidental to the homicide. There is simply no evidence upon whichto
conclude that he entered the residence with the intent to commit a felony or that he
formed the intent to commit a felony before the application of fatal force.
d. There wasInsufficient Evidence that
the Assailant Intended to Commit the
Felony at the time He Killed the Victim
and thatit was Part of a Single
Continuous Transaction
Even assuming there was proof that a burglary occurred or was intended,
and that Appellant wasthe responsible party, there was no proofthat it was a
continuoustransaction: “... what is required is proof beyond a reasonable doubt
that the defendant intended to commit the felony at the time he killed the victim
and that the killing and the felony were part of one continuoustransaction.” (cases
cited) (People v. Coffman, supra, 34 Cal.4" 1; 88.) In Coffman,this Court was
satisfied that the burglary and murderwasa single transaction because the victim
lived alone in an apartmentthat wasdifficult to find. This supported the jury’s
finding that the defendants formedthe intentto burglarize the apartmentbefore the
victim waskilled. There was also ample evidence to support a finding that the
218
eed
“eer
defendants committed a theft of the victim’s answering machine. (/d.) By
contrast, the record in this case does not support a finding that either a penetration
or theft, assuming they occurred, was plannedas part of the murder of the victim;
either act could have easily been an opportunistic afterthought. (See, People v.
Ford (1966) 65 Cal.2d 41, cert. denied, (1987) 385 U.S. 1018, overruled on other
groundsin People v. Satchell (1971) 6 Cal.3d 28, 35, where the murder of a deputy
sheriff was not motivated by the robbery several hours earlier was therefore not
part of one transaction.) Here, the timing, sequence, and motivation for the
burglary and murderof the victim is a matter of impermissible, arrant speculation.
e. There wasInsufficient Evidence that
the Assailant had an Intent to Kill the
Victim
Since this was a so-called Carlos-era case, the prosecution was required to
provethat the assailant intendedto kill the victim. (See, Carlos v. Superior Court
(1983) 35 Cal.3d 131, 135; People v. Anderson (1987) 43 Cal.3d 1104, 1139 —
1140, cert. denied, 534 U.S. 1136 (overruling Carlos); People v. Duncan (1991)
53 Cal.3d 955, 973 fn.4, cert. denied, (1992) 503 U.S. 908 (holding that Anderson
cannotbe applied retroactively.) For reasonsset forth in Section VII(C)(2)(d), the
prosecution failed to introduce sufficient evidence to support a finding that Robert
Edwardsintendedto kill the victtm.
219
E. Conclusion
“Conviction of a capital crime which is not supported by substantial
evidence violates Due Process of Law and reliable penalty determination
guaranteedby the Fifth, Eighth, and Fourteenth Amendments. (Jacksonv.
Virginia (1979) 443 U.S. The failure of the prosecution to sustain its burden of
proof on both special circumstance allegations also fails to narrow Appellant’s case
to those most deserving of death, in violation of his Federal Constitutional right
under the Eighth Amendment. (Zant v. Stephens (1983) 462 U.S. 862, 876 - 877.)
VU. THE FIRST DEGREE MURDER CONVICTION MUST BE
REVERSED BECAUSE OF INSUFFICIENCY OF EVIDENCE
A. Introduction
The jury wasinstructed that it could return a verdict of guilty of first degree
murder upon one of two theories: murder by torture or felony-murder. (R.T. 3125
—R.T. 3126.) When the verdict was returned, there was no showing as to which of
these two theories was adopted. (R.T. 3163 — R.T. 3166; C.T. 969.)
Section 189 of the Penal Code provides “all murder whichis perpetrated
by...torture... is murderof the first degree.” The crime of murderby torture
requires findings, beyond a reasonable doubt, that:
1) one person murdered another person;
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2) the acts or actions taken by the perpetrator to
inflict extreme and prolonged pain were a
cause of the victim’s death;
3) the perpetrator committed the acts with a
willful, deliberate, and premeditated intent to
inflict extreme and prolonged pain upon a
humanbeingfor the purposeof revenge,
extortion, persuasion or for any sadistic
purpose. (People v. Davenport (1985) 41
Cal.3d 247, 207.) (R.T. 3132, Lines 11 — 19.)
Section 189 of the Penal Code also providesthat“all murder . . . which is
committed in the perpetration of, or attempt to perpetrate, ... burglary . . . is
murderofthe first degree. The elements are:
“The unlawful killing of a human being, whetherintentional or accidental
which occurs during the commission of burglary is murderofthe first degree when
the perpetrator had the specific intent to commit such crime.” “The specific intent
to commit burglary and the commission of such crime mustbe provide beyond a
reasonable doubt.” (R.T. 3129, Line 24 — R.T. 3132, Line 7; People v. Cain
(1995) 10 Cal.4" 1, 36, cert. denied, (1996) 516 U.S. 1077.)
B. Argument
1. There wasInsufficient Evidence to Prove
Torture Murder
Historically, this Court has “strictly construed the definition of torture in
Section 189,” (People v. Steger (1976) 16 Cal.3d 539, 543.) The Court has taken
this approach in part because many homicidesnot involving torture also leave the
22)
victims with horrific woundsthat are repulsive to view, wounds that may be
indistinguishable from those torturously inflicted, and in part because a finding of
torture murderrelieves the jury of the obligation to determine whetheror not the
murder was premeditated and deliberate. “[A] restrictive definition of torture was
reemphasized in People v. Tubby (1949) 34 Cal.2d 72...[and] we have consistently
followedthis strict construction of torture in cases applying Section 189.” (People
y. Steger, 16 Cal.3d at 544.)
Here, the cause of the victim’s death was asphyxiation dueto ligature
strangulation. (R.T. 2139.) Thus,to satisfy the requirementthat “the acts ...to
inflict extreme or prolonged pain were a cause of the victim’s death,” the
prosecution must demonstrate the ligature had that effect, beyond a reasonable
doubt.
Aspreviously argued in Section VII, there is no proof-- save the
inadmissible and unreliable opinion of Dr. Fukomoto — that the burst eardrum and
lacerations caused bythe ligature strangulation actually caused the victim extreme
and prolonged pain. Moreover, unlike the special circumstance allegation, whitch
requires proofof the infliction of extreme physical pain “no matter how longits
duration,” in order to prove murderbytorture, the prosecution mustestablish that
the torturous wounds wereinflicted over a prolonged period of time. People vy.
Steger, supra; “[M]urder by meansoftorture under Section 189 is murder
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committed with a willful, deliberate, and premeditated intent to inflict extreme and
prolonged pain.” (People v. Steger, supra, 16 Cal.3d at 546; People v. Crittenden,
supra, 9 Cal. 4" at 137; proof that pain wasinflicted continuously for a lengthy
period could well lead to a conclusion that the victim wastortured. ...” (People v.
Steger, supra, 16 Cal.3d at 548.)
Death from ligature strangulation occurs in approximately six minutes;
unconsciousness can occurin less than sixty seconds. (R.T. 2153 — R.T. 2154.)
There is simply no evidence whatsoeverestablishing how long(if at all) the victim
suffered extreme pain during that period. There is no evidencethat the eardrum
burst before death. There is no evidence that her neck was lacerated before death.
Indeed, Dr. Fukomoto concededthat the lacerations could have occurred when the
ligature slipped and wasre-tightened, an event that could have easily occurred after
death. Finally, as previously argued,the assailant’s use of a ligature is merely
consistent with an intent to immobilize Mrs. Deeble to overcomeresistance to the
burglary; no reasonable juror could conclude, beyond a reasonable doubt, that the
binding wasa suresign that he intended his victim to suffer and die. (Compare,
People v. Demond, in which evidencethat the defendant forced a child to eat her
own feces strongly suggested that the weekly beatingsthat lead to his death were
promptedby sadistic impulses. (1970) 59 Cal.App.3d 574, 585.) Accordingly,
there wasinsufficient evidence of torture murder because there was no solid
223
evidence that the victim suffered extreme or prolongedpain, that her assailant had
the intentto inflict it, and that injuries that caused extreme or prolonged pain were
the cause of her death.
2. Thereis Insufficient Evidence to Prove
Felony Murder
Similarly, for the reasonsset forth in Section VII, Appellant contendsthat
the evidenceas insufficient to show that Mrs. Deeble was murdered during a
burglary. There was insufficient evidence, as a matter of law, that 1) a theft or
penetration occurred; 2) that Appellant was responsible or 3) that it was anything
more than a spontaneousact, wholly incidental to the homicideitself. (Compare,
People v. Osband (1996) 13 Cal.4" 622, 691, cert. denied, (1977) 519 U.S. 1061,
where the elementof a taking wassatisfied by proof that the contents of the murder
victim’s purse had been emptied outat the crime scene, personal possessions were
missing, and the victim’s wallet was mailed backto herrelatives by the Post Office
two weeksafter the homicide; People v. Hayes (1990) 52 Cal.3d 577, 630 - 631,
cert. denied, (1991) 502 U.S. 958, where the element of taking and a continuous
transaction wassatisfied by testimony that defendant admitted killing the victim as
he was loading 30 cartons of cigarettes into the back side of his automobile and the
discovery of the victim dead, with approximately30 cartons of cigarettes missing
from his office.
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Likewise, for the reasons set forth in Section VII, Appellant contendsthat
there was insufficient evidence that the victim’s assailant entered her residence
with the specific intent to penetrate her with a foreign object or commita theft.
Again, there wasinsufficient evidence to establish every essential predicate fact;
there was no evidence from which a reasonable juror could find, beyond a
reasonable doubt that 1) a theft occurred or that the victim was penetrated with a
foreign object; 2) that her assailant entered the residence with the intent to commit
that act, as opposed to committing it spontaneously, wholly apart from his intent as
he entered the dwelling or 3) that Robert Edwards wasthe assailant who was
responsible for the alleged penetration or theft. For felony murder, the defendant
must form the intent to commit the felony before he entered the residence. (People
y. Sears, (1965) Cal.2d 737, 455.)
“[MlJere speculation cannot support a conviction.” (People v. Marshall,
supra, 15 Cal.4" 1, 35.) “A jury is entitled to draw a vast range of reasonable
inferences from evidence, but may not base a verdict on mere speculation.”
(United States v. Long (D.C. Cir. 1990) 905 F.2d 1572, 1576.)
“A reasonable inference, however, ‘may not be
based on suspicion alone, or imagination,
speculation, supposition, surmise, conjecture, or
guess work. [{].... A finding of fact must be an
inference drawn from evidencerather than a...
mere speculation as to probabilities without
evidence.” (People vs. Perez, (1992) 2 Cal.4" 1117,
1133.) ©
225
Thefact that the jury apparently boughtthe first-degree murder argument, as
shownbythe verdict, does not end the matter. Although a jury’s factual findingis
entitled to great deference,it is not immune from judicial review. “[T]he
application of the beyond-a-reasonable-doubtstandard to the evidenceis not
irretrievable committed to jury discretion... .. The powerofthe fact finder...has
never been thoughtto include a powerto enter an unreasonable verdict of guilt.”
(Jackson v. Virginia, supra, 443 U.S. at 317; United States v. Hogue (5" Cir.
1998) 132 F.3d 1087, 1090.) The evidence wasinsufficient as to each ofthe first-
degree murdertheories, in violation of Appellant’s Federal Constitutional Rights to
a fair trial, due process, and heightenedreliability of determinationis a capital
case. (U.S. Const. Amends. V, VIJJ and XIV; Woodson y. North Carolina (1970)
428 U.S. 280, 305; Beck v. Alabama (1980) 447 U.S. 625, 638.)
IX. THE PROSECUTOR’S PERVASIVE PATTERN OF
PRESENTING INADMISSIBLE EVIDENCE BEFORE THE
JURY, PRESENTING EVIDENCE THAT WAS EITHER
FALSE OR UTTERLY WITHOUT FOUNDATION,
MISSTATING THE EVIDENCE, AND DISREGARDING THE
COURT’S ADMONITIONS AGAINST IMPROPER
QUESTIONS CONSTITUTED REVERSIBLE MISCONDUCT
RESULTINGIN A DENIAL OF APPELLANT’S RIGHTS TO
DUE PROCESS, A FAIR TRIAL, AND RELIABLE CAPITAL
TRIAL AS GUARANTEEDBYTHEFIFTH, EIGHTH AND
FOURTEENTH AMENDMENTS
A. Introduction
226
weed
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Defying the rules of evidence and the court’s admonitions, the prosecutor
engaged in a pervasive andprejudicial campaign to obtain a conviction at any cost.
The prosecutorrelied on such tactics as misstating the evidence, presenting
evidencethat waseither false or utterly without foundation,referring to
inadmissible evidence, and improperly using cross-examination to argue his case to
the jury. This type of conduct has no place in the criminal judicial system: “Our
justice system will crumble should those, in whose handsare entrustedits
preservation andsanctity, betray its fundamental values and principles. Attorneys
are obliged by oath to give due respect to the court and its officers. (citation)”’
(Morrow v. Superior Court (1990) 30 Cal.App. 4" 1252, 1261.)
“Improper remarks by a prosecutor can so infect the trial with unfairness as
to makethe resulting conviction a denial of due process.” (Darden v. Wainwright
(1968) 477 U.S. 168, 181.) A prosecutor’s intemperate behaviorviolates the
federal constitution when it comprises a pattern of conduct so egregiousthatit
infects the trial with such unfairness as to make the conviction a denial of due
process. (People v. Gionis (1995) 9 Cal.4" 1196, 1214.) Conduct bya prosecutor
that involves“the use of deceptive or reprehensible methods to attempt to persuade
either the court or jury also violates state law.” (People v. Espinosa (1992) 3
Cal.4"" 806, 820, cert. denied, (1994) 512 U.S. 1253.)
227
The Fifth Circuit has articulated the importance of the rules governing
criminaltrials.
“The Supreme Court and several federal appellate
courts have long recognized that the prosecutor has
the distinctive role in criminal prosecutions. As a
representative of the government, the prosecutoris
compelled to seek justice, not convictions. Justice is
served only when convictions are sought and
secured in a mannerconsistent with the rules that
have been crafted with great care over the centuries.
Those rules have not resulted from happenstance or
indifference but are the product of measured,
reasoned thought, marching underthe guidonthat
criminal convictions should be based upon guilt
clearly proven in a calm, reflective atmosphere,free
from unduepassion andprejudice.”
(United States v. Murrah (5™ Cir. 1989) 888 F.2d 24, 27.)
In recognition of the respected position held by prosecutors, the Supreme
Court has warned that improper the suggestion of a prosecutor“carries with it the
imprimatur of the government and may inducethe jury to trust the government’s
judgmentrather than its own view of the evidence.” (United States v. Young
(1985) 470 U.S. 1, 18.) This court has emphasized that “(a) prosecutoris held to a
standard higherthan that imposed on other attorneys because of the unique
function he or she performsin representing the interests, and in exercising the
sovereign power, of the state. (People v. Hill, supra, 17 Cal.4"" 800, 820.) The
prosecutor’s importantrole in society carries with it equally important
responsibilities: “It is as much (the prosecutor’s) duty to refrain from improper
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methods calculated to produce a wrongful conviction asit is to use every legitimate
meansto bring abouta just one.” (Berger v. United States (1935) 295 U.S. 78,
88.) Here, the prosecutor’s conduct throughout Appellant’s trial demeaned the
integrity of the proceedings and underminedthe fairnessoftrial.
B. The Prosecutor Falsely Suggested to the Jury that
Scientific Testing of DNA had Excludedall
Suspects but Appellant, by Asking a Question of his
Witness which He knew to be Leading and Without
Foundation
Asset forth in Section VI(C), infra, the prosecution may not present
testimony which it knows,or should know,is false or misleading. In re: Jackson,
supra, 3 Cal.4" 578, 595, citing, United States v. Agurs, supra, and Napuev.
Illinois (1959) 360 U.S. 264, 269. Additionally, a prosecutor may not question
witnesses solely to get before the jury the inferred facts, insinuations and
suggestions raised by the question rather than attempting to seek a truly responsive
answer. (People v. Wagner (1975) 13 Cal.3d 612, 619; United States v. Sanchez,
co" Cir. 1999) 176 F.3d 1214, 1223.) Repeated questions calling for inadmissible
or prejudicial answers may also be misconduct. (People v. Evans (1952) 39 Cal.2d
242, 248-49) (misconduct where prosecutor repeatedly asked leading questions for
apparent purpose of getting uncorroborated testimony before a jury.) It is
“improper to ask questions which clearly suggest . . . the existence of facts which
are (harmful) to the defendants, in absence of a good faith belief by the prosecutor
229
that the questions would be answeredin the affirmative, or with a belief on his part
that the facts could be proved, and a purpose to prove them,if their existence
should be denied.” (People v. Mooc (2001) 26 Cal.4"™ 1216), (citing People v.
Perez (1962) 58 Cal.2d 229, 241).) The prosecutoreliciting inadmissible
testimony during the examination of witnesses can be “dynamite”to the jury
becauseof the special regard the jury has for the prosecutor, thereby effectively
circumventing the rules of evidence. (People v. Bolton (1979) 23 Cal.3d 208,
213.) “Statement of supposedfacts not in evidence . . . are a highly prejudicial
form of misconduct, and a frequent basis for reversal.” (5 Witkin & Epstein, Cal.
Crim. Law 2d ed. 1988) (Trial, Section 2901, p. 3550.)
During pre-trial proceedings, the prosecutor affirmatively represented that
evidence of DNAtesting would not be presented. (R.T. 147, Line 9.)
Consequently, there wasnolitigation, and no court finding, aboutthe reliability of
whatever DNAtesting of potential suspects may have occurred, let alone whether
any DNAtesting actually occurred. Nevertheless, under the guise of a “question,”
the prosecutor asked Sergeant Jessen”. . . “is it not true that (other suspects) had
been eliminated by DNA from providing the samples at the Deeble residence of
semen and fluids, and Mr. Edwards had not been eliminated, correct?” (R.T. 2820,
Lines 14 - 17.) At the time the prosecution interjected the alleged results of testing
before the jury, there was not a shred of evidence to support his unqualified
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assertion to the jury thatall suspects who had donated DNA samples had been
eliminated, but not Appellant. Not surprisingly, the court sustained the immediate
objection to the bombshell containedin this question.
The defense made a timely motion for a mistrial. (R.T. 2823, Line 4.) It
argued that the witness had no basis upon which to “form an opinion as to whether
those people were eliminated by DNAinthefirst place.” (R.T. 2821.) The
prosecution’s statement to the jury aboutthe alleged results of scientific testing
was simply untrue. (R.T. 2886, Lines 4 — 15.) Secondly, the prosecutor’s
description of the results of DNA testing to the jury was improperrebuttal since no
mention of that testing had been made during the defense. (R.T. 2822.) Finally,
the defense argued that the insinuatedresults of the testing was so “incredibly
inflammatory”that the attempted introduction simply to explain Sergeant’s
Jessen’s “state of mind” when he chose to pursue Appellant as a prime suspect
could not be justified. (R.T. 2826.) The court noted the absence of any proofat
trial to justify the question and directed the prosecutor to “stay away from DNA
unless you are going to put it on.” (R.T. 2824.) In makingthis ruling, the court
also noted that “DNA requires a hearing foundational evidence,” none of which
wasin the record at the time the prosecutorelectedto tell the jury that the focus of
the investigation fell on Appellant because of DNA testing. (R.T. 2828.) The
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court also noted that the prosecutor’s description of the results to the jury were
simply wrong:
“The Court: And I ama little concerned about DNA,
without a hearing on it, even though he wastold that
they were all eliminated, that the other names were
eliminated as suspects. Actually, they are not
eliminated. They are just not tied into a semen
stain.”
(R.T. 2830 — R.T. 2831.)
Over continuing defense foundational objections, the prosecutor then asked
the witness whether“scientific testing” had eliminated suspects who had donated
samples as a donor of semen and fluid discovered at the crime scene and whether
those people had beeneliminated in his mind based upon the information received
from “lab personnel.” The witness responded affirmatively to the misleading
inquiry. (R.T. 2832, Lines 4 - 21.) The court also refused to deliver a
supplemental admonition to the jury prepared by the defense.** Although the
defense alleged that this stronger admonition was necessary because no DNA
testing was ever donethat eliminated all suspects other than Appellant, the court
denied that request for the admonition; yet, it did not resolve the dispute as to
whether the prosecutor’s question about DNAtesting had a factual basis and,
therefore, was in good faith. (R.T. 2885 — R.T. 2889.)
” Thefailure to give that proposedinstruction is addressed in Argument XI,herein.
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Appellant contends that the prosecutor could not have a goodfaith belief
that DNA testing had “eliminated”all suspects, save Appellant. The prosecutor
acknowledgedthat the analysis that had been performed wasuseless. (R.T. 8 - 9.)
The prosecutor made noeffort to produce any evidence of DNA,despite the
court’s invitation to do so. (R.T. 2823 — R.T. 2824.) Similarly, the prosecutor
made no effort to demonstrate to the court that DNA testing had been performed
that eliminated all suspects as donors, other than Appellant despite defense
counsel’s assertion thatit had not. (R.T. 2820 — R.T. 2821; R.T. 2888.) As
previously argued in Section VI(C),it is reversible misconductfor a prosecutor to
introduce misleading evidence (United States v. Agurs, supra, Napuev.Illinois,
supra. Nevertheless, the court ruled that there was no misconduct because the
6sofficer’s “state of mind as to the exclusion of other possible suspects (was relevant)
and the prosecutor had the capability of introducing DNA evidence, inconclusive
as it was.” Therefore, it denied the motion for a mistrial. (R.T. 2823, Line 20 —
R.T. 2824, Line 11.) The court then delivered an admonition to the jury to
disregard the letters “DNA”andthat the questions posed to Sergeant Jessen were
to be considered only to determinehis state of mind. (R.T. 2837, Line 14 — R.T.
2838, Line 2.)
233
Preliminarily, while a defendant need not prove misconductwasintentional
in orderto obtain a reversal,” it is fair to assert that the prosecutor intentionally
placed the alleged result of DNAtesting before the jury; this is not a situation
where a witness unexpectedly blurts out inadmissible evidence in response to a
proper inquiry. (Compare, People v. Sapp (2003) 31 Cal.4"™ 240, 299, cert. denied,
(2004) 541 U.S. 1101, where a prosecution witness blurts out that the defendant
took a polygraph.); People v. Valdez (2004) 32 Cal.4"" 73, 125, cert. denied, (2005)
543 U.S. 1145, where the court noted that the “prosecutor did not intentionally
solicit, and could not have anticipated, the witnesses’ improper disclosure of
immaterial and prejudicial matter.” Secondly,it is also fair to observe that the
prosecution knew that he had notlaid a foundation to demonstrate that his question
had a good faith basis; indeed, after the court heard his description of the DNA
testing at sidebar, it commentedthat his assertion that all other suspects had been
“eliminated” as donors of the fluids found at the murder scene had no basisin fact.
(Compare, People v. Ramos (1997) 15 Cal.4" 1133, 1173, (1998) 523 U.S. 1027
[where the prosecutor had certified records of facts to support his question to 4
defense character witness about Appellant’s possession of a weaponin prison].)
In People v. Boldon, the court held that “it is improper for a prosecutor to
ask questions of a witness that suggests facts harmful to a defendant, absent a good
3 (People v. Hill (1998) 17 Cal.4" 800, 822 - 823.)
234
faith belief that such facts exist.” (cases cited) (2002) 29 Cal.4" 515, 562 - 563,
cert. denied, (2003) 538 U.S. 1016.) Here — even assuming that some questioning
pertaining to Sergeant Jessen’s state of mind was properrebuttal — it is evident that
the prosecution did not have a good faith belief that he could lay a proper
foundation for the facts that he asserted; none wasprovenattrial, either before the
question wasaskedor, or that matter, even after it was asked, despite the court’s
invitation to do so. (R.T. 2828, Line 6; R.T. 2868, Lines 9 - 14.) “(Dt is improper
‘over the guise of artful cross-examination,’ to tell the jury the substance of
inadmissible evidence.” (United States v. Sanchez, supra, 176 F.3d 1214, 122
(quoting United States v. Hall (4° Cir. 1993) 989 F.2d 711, 716.)) As the Ninth
Circuit observed, “while prosecutors are not required to describe sinnersassaints,
they are required to establish the state of sin by admissible evidence unaided by
aspersions that rest on inadmissible evidence, hunch or spite.” (United Statesv.
Schindler (9"" Cir. 1980) 614 F.2d 227,228.)
Petitioner was clearly prejudiced by the prosecution’s attempt to present
false evidence. In People v. Farnam (2002) 28 Cal.4™ 107, 168 - 169, cert. °
denied, (2003) 537 U.S. 1124.) There, the court held that there was no misconduct
when a prosecutor asked an investigating officer whether the murderthat the
defendant allegedly committed was investigatedas part of a series of murders of
elderly women. The court noted that the inquiry was relevant background and that
235
its prejudicial impact wasdispelled by the detective’s testimony that the murderfor
whichthe defendant wastried was unrelated and dissimilar to the others. On the
other hand,in this case, despite the trial court’s recognition that the prosecutor had
falsely told the jury that suspects other than Appellant had been “eliminated” by
DNA testing, no clarification was providedto the jury that ameliorated the
prejudicial impact of this assertion; the jury was simply told that the witness’
response regarding the outcome of DNAtesting wasstricken andthatall further
questions abouthis investigation were offered for the limited purpose of showing
his “state of mind” when he focused upon Appellant. The jury was not
individually polled about their willingness to follow the court’s admonitions; no
response is evident in the record when the court askedthe jury after its admonition
“Can you handle that alright?” (R.T. 2837.)
Theprosecutor’s election to place the inadmissible results of DNAtesting
before the jury was particularly prejudicial since there was no other evidence
connecting. Appellant to the commission of the crime, save the disputed “other
acts” evidence. While Sergeant Jessen did not reply to the prosecutor’s “question,”
its argumentative and improper leading nature causedit to be more of a statement
of fact to the jury, rather than an unanswered inquiry. Becauseof the high regard
with which prosecutors are held, it is reasonable to assumethat the jury could not
ignore the assertion of fact contained in the impermissible question, especially
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whenit bore on sucha critical issue of fact as the elimination of other possible
suspects to a murder which remained unsolved for manyyears.
The dangerof prejudice washeightenedstill further by the prosecutor’s
assertion that scientific testing - as opposedto less empirical evidence — eliminated
all suspects but Appellant. The danger that the juror would considerthe alleged
results of DNA testing as a reliable and important indication of Appellant’s guilt
was multiplied to an almostincalculable degree by the trial court’s improperruling
that permitted Sergeant Jessen to testify that unspecified information that he had
received from unidentified “lab personnel” had eliminated all suspects, save
Appellant, ‘“‘as donors of the semen andfluid at the crime scene. (RT. 2838 —R.T.
2839; see, Argument VI(C), herein.)
Sergeant Jessen’s failure to respond to the improper question, and the court’s
subsequent admonition to the jury, did not cure its prejudice. In an analogous
context, the Court of Appeals remarked, “noris the impropriety of such cross-
examination cured by the fact that the questionselicit negative answers.” (People
v. Pitts (1990) 223 Cal.App.3d 606, 637.) As Justice Richards wrote:
“The impropriety of the prosecutor’s conductin this
case wasnotcured bythe fact that his questions
elicited negative answers. By the very nature the
question suggested to the jurors that the prosecutor
had a source of information unknownto them which
corroborated the truth of the matters in question.
Therule is well established that the prosecuting
attorney may not interrogate witnesses solely “for
237
the purpose of getting before the jury the facts
inferred therein, together with insinuations and
suggestions they inevitable contained, rather than for
the answers which might be given.’” (People v.
Wagner,supra, 13 Cal.3d 612, 619; quoting People
v. Hamilton (1963) 60 Cal.2d 105, 116.)
Finally, an instruction to the jury to disregard insinuations contained in questions
to a witness do not invariably cure prejudice. (See, e.g., People v. Wagner, supra,
where a reversal was required despite the delivery of such a curative instruction;
see, also, People v. McGreen (1980) 107 Cal.App.3d 504, 517, overruled on her
other grounds (1983) 34 Cal.3d 92.) Clearly, Appellant was prejudiced andhis
convictions and sentence mustbereversed.
C. The Prosecutor Repeatedly Ignored Court Rulings by
Referring to Inflammatory and Inadmissible Matters
before the Jury
It is misconductfor a prosecutorto intentionally elicit inadmissible
testimony. (People v. Bonin (1988) 46 Cal.3d 659, 689), (overruled on another
point, People v. Hill, supra, 17 Cal.4" 800, 823 fn. 1.) Such misconductis
exacerbatedif the prosecutor continues to attempt to elicit such evidence after an
adverse ruling. (People v. Smithey (1999) 20 Cal.4" 936, 960, cert. denied, (2000)
529 U.S. 1026; People v. Bell (1989) 49 Cal.3d 502, 532, cert. denied, (1990) 493
U.S. 963.)
238
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The prosecutor demonstrated his disregard for the court’s rulings and
Appellant’s rightto a fair trial by repeatedly and improperly denigrating Dr.
Wolfe’s testimony during its cross examination of him:
“Q
Mr. Bates
The Court
Q (by Mr. Brent)
Q
Mr. Bates
The Court
Now,from whatI have heard youtold us these women
were really both pretty darn lucky becauseneither of
‘them suffered nor felt any pain before they died?
Objection, misstates the witness, argumentative.
It is argumentative, sustained.
Didn’t you, in response to Mr. Bates’ series of questions,
basically have both of these women unconscious and not
feeling any pain before they died?
Yes.
And so if I would show you Exhibit 1, a photograph of
Mrs. Deeble in death, and Exhibit 33, a photograph of
Mrs. Delbecq in death, you are goingto tell us, doctor,
that these womendid notfeel any pain before they died?
Yes.
They were fortunate, indeed, weren’t they?
Your Honor, that is argumentative, Your Honor.
Sustained.”
(R.T. 2516, Line 10 —R.T. 2517, Line 6.)“
“ The prosecutor’s habitual denigration of defense witnesses ts also demonstrated when he asked Janis Hunt why
she exposed her daughter to Appellant’s drug use. (R.T. 2673, Lines 10 - 14.) During cross-examination, the
prosecutor also challenged Appellantif he was willing to take responsibility for the choices he made. (R.T. 2627,
Lines 3 - 17) and if individuals who sought drug abuse treatment could find it. (R.T. 2628, Lines 17 - 22.)
Although the court overruled timely objections to these sarcasms, Appellant contends that they are further examples
of the prosecutor’s improperly argumentative style of examination.
239
Despite these rulings, the prosecutor reminded the jury during his closing
argumentof his improper attack on Dr. Wolfe:
“Exhibit 1 and Exhibit 3, these are the two, these are
the two photographs [held up. Youaretelling us
that these womendid notfeel any pain? And I was
a little sarcastic, frankly, when I asked that. Do we
have that muchto be grateful for that they did feel —
yeah, they didn’t feel pain he said, no, they did not
feel pain. They did not feel pain. Thatis ridiculous.
That defies commonsense.”
(R.T. 2906, Lines 16 - 25.)”
D. The Prosecutor Repeatedly made Remarks During his
Examination of Witnesses and During his Closing
Argumentthat He Must of Known were Improper
Asnoted above, a defendant need not demonstrate bad faith to gain appellate
relief on the basis of prosecutorial misconduct. Yet, in finding reversible
prejudice, cases have cited “blatant” misconduct by the prosecutor. (See, e.g.,
People v. Hill, supra, 17 Cal.4"" 800, 844.) Here, the prosecutor’s continuous
remarks that denigrated Appellant, his witnesses, and his counsel were blatantly
improper, since no trial attorney would have believed that they were appropriate.
Furthermore,it is reversible error for a witness to testify over objection
whethera previous witness wastelling the truth. (United States v. Geston (9" Cir.
* Although no objection or request for an admonition was madeto this portion to the prosecutor’s closing argument,
Appellant contends that this point is nevertheless preserved for appeal because an admonition would not have cured
the prejudice caused by the prosecutor’s pervasive pattern of misconduct. (People v. Hill, supra \7 Cal.4" 800, 820
- 882.)
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2002) 299 F.3d 1130, 1136; see, e.g., United States v. Henke cg" Cir. 2000) 222
F.3d 633, 643; United States v. Sanchez, supra, 176 F.3d 1214, 1219 - 1220.) It is
the jurors’ responsibility alone to determine credibility. (United States v. Sullivan
(1* Cir. 1996) 85 F.3d 743, 749 - 750,[improper for the prosecutorto ask
defendant a series of questions regarding whether another witness had lied because
counsel should not ask one witness to commentonthe veracity of the testimony of
another witness]; (United States v. Richtery (2d. Cir. 1987) 826 F.2d 206, 208
[error for prosecutor to induce a witnessto testify that another witness, in
particular, a government agent, haslied on the stand].)
Despite this settled rule, the prosecutor repeatedly asked Appellant if Kathy
Valentine lied under oath; his misbehavior was especially blatant since it continued
despite repeated rulings by the court that it was improper:
“Q (by Mr. Brent) What I am wondering, Mr. Edwards, is with people in
your condition losing inhibitions and becoming more
aggressive, progressively losing fine motor coordination
and then gross motor coordination, if you were under
these conditionsall the time, how could you have hidden
that from Kathy Valentine?
A Is that a question?
Q That is a question. How did you doit?
A I didn’t hide from her. She knew mydrinking and my
using. °
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Mr. Severin
The Court
Q (by Mr. Brent)
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Butshe testified that other than having a few beers one
time and seeing you inject, she never saw you underthe
influence of anything?
J thought that wasinteresting whenshetestified to that.
She lied, right?
Evidently.
Do you know whyshe would lie against you?
Well, may be because I am accused of murdering her
mother. I don’t know.
Do you think the acquisition is enough for her to come in
here and lie in a serious crime?
Objection, speculation.
Sustained.
Is that what you are saying, the reason they camein here
to lie?
I don’t know whyshe answered the — what she did the
other day.
Shetestified you were aware of a key at her mother’s
residence of a screen. Wasthatthe lie or the truth? .
It is not the truth?
Do you know whyshe would lie aboutthat?
No,sir, I do not.
She didn’t seem to paint you in a particularly awful light
whenshetestified, did she?
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Mr. Severin
The Court
Q (by Mr. Brent)
Mr. Severin
The Court
Q (by Mr. Brent)
Mr. Severin
The Court
Q (by Mr. Brent)
Mr. Brent
The Court
Objection,this calls for speculation. It is an improper
question.
Sustained.
Did she comein here and makeup story that she
admitted that you killed —
Objection, improper question.
Sustained.
I am just wondering, Mr. Edwards, why you think she
came in here andlied?
I am going to object, improper question, speculation.
Sustained.
If you know.
Objection,it is the same objection.
Sustained.”
(R.T. 622, Line 12 — R.T. 2624, Line 13.)
Unfortunately for Appellant, the prosecutor’s denigration of defense
witnesses continued throughoutthe trial. When the defense witness Janis Hunt
gave an answerthat displeased him, the prosecutor improperly challenged her
credibility in front of the jury, rather than requesting a motion to strike or
rephrasing his question; again, the court sustained a defense objection:
“Q (by Mr. Brent) Ms.Hunt, I noticed that when we were breakingat the
lunch break, that you looked over at Mr. Edwards and
243
gave him a big wave and big smile. Do you remember
doing that?
Yes.
Youstill carry a little bit of a torch for him?
I still feel he is innocent.
That is not what my question madam.
I am sorry.
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You wanted to say that, didn’t you?
Mr.Bates I will object, hostile and argumentative.
The Court It is argumentative, sustained.”
(R.T. 2668, Lines 12 - 24.)
Questions such asthese that are designed to engage a witness in an argument
or a debate are improper. (People v. White (1954) 43 Cal.2d 740, 474 (cross-
examination designed to argue with the prosecutrix properly excluded.)
Nevertheless, despite no less than five consecutive court rulings that sustained
objections to his improper attempts to have Appellant brand another witness as.a
liar, the prosecutor continued his improper behavior by asking Appellantto
comment uponthe testimonyof the defense expert, Dr. Alex Stalcup.”° Again,the
court sustained a defense objection:
The prosecutor’s habit of ignoring adverse rulings was also demonstrated during his cross-examination of defense
witness, Alden Olson. The court recognized the prosecutor’s improperly argumentative style of cross examination
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“Q (Dr. Stalcup) talked about someof the things in the body,
the loss of inhabitation that takes place as one begins to
drink and get above a .08. Do yourecall that?
A Yes, sir.
Q Yourfine motor coordination begins to go away whereit
would be difficult to tie things or use your fingers to do
fine type work. Do yourecall that?
A Yes,sir.
Q Andthat eventually — it is only eventually that the gross
motor coordination, stumbling and staggering takes
place?
A ~ A buh.
Q Dr. Stalcup neversaid that you as an addict or a user of
alcohol didn’t go through those stages, did he?
A No. I don’t — he doesn’t know me.
Q He doesn’t know you?
A Dr. Stalcup, he never interviewed me.
Q Okay. And he talked about people in your condition, did
he not?
A Yes.
Q That was the whole point of his testimony, wasn’tit?
A Yes.
Mr. Severin Objection,calls for speculation.
by sustaining a defense objection to whether Appellant asserted that “50 million addicts” who wanted rehabilitative
help could not get it. (R.T. 2628, Lines 10 - 16.)
245
The Court Sustained.
Mr. Severin Motionto strike the answer.
The Court If there was an answer,it is stricken. The jury is ordered
to disregardit.”
(R.T.2621, Line 9 — R.T. 2622, Line 11.)
These commentsby the prosecution are notisolated, sarcastic asides made in
the heat oftrial that didn’t bear on any material issue. (See, e.g., People vs.
Hillhouse (2002) 27 Cal.4" 469, 502, cert. denied, (2003) 537 U.S. 1114.)
(During cross-examination, defense expert could notrecall a particular meeting
with defense counsel; the prosecutor replied “good move. Leaveit off yourbill.’’)
Rather, they were repeated and improperefforts to strike at the heart of the fact-
finding process: the jurors’role as the arbiters of credibility.
The prosecutor also improperly attacked defense counsel. A defendant’s
conviction should be based on evidence, and not the purported improprieties of his
counsel. When a prosecutor denigrates defense counsel, it directs the jury’s
attention away from the evidenceandis therefore improper. (People v. Frye |
(1998) 18 Cal.4" 894, 979;citing, People v. Sandoval (1992) 4 Cal.4" 155, 183,
aff'd, (1994) 511 U.S. 1.) Nevertheless, during defense counsel Daniel Bates
portion of Appellant’s closing argument, the prosecutor interrupted him. Instead of
imposing a proper objection, the prosecutor angrily voiced his opinion to the jury
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that defense counselhad intentionally sought to mislead them by asking them to
consider whether Mrs. Deeble was unconsciousduring the assault:
“Q (by Mr. Bates)
Mr. Brent
Mr. Bates
The Court
Mr. Bates
The Court
Whydo you haveto getinto these gory details, the acts
taken by perpetrator to inflict extreme and prolonged
pain. Yougotto find that the guy or gal intended to
inflict the prolonged pain, somethingthat lasts a long
time. You haveto find that intent. Okay? If the first
thing that happened wasthat she wasstrangled, she
would be unconsciousin less than a minute. Dr.
Fukumoto and Dr. Wolfe were not far off on that period.
Dr. Fukumoto said less than a minute. Go back, review
their testimony. Dr. Wolfe said maybe less than 30
seconds. They are within a few seconds of each other.
Very quick. What about unconsciousness? Any of you
who have seen a boxing match knowsthat when a knock-
out blow lands,there is no lapse of time. Andthatis
what Dr. Wolfe said. And again that is why Dr.
Fukumoto was notcalled back on rebuttal to refute him.
Dr. Fukumotoisn’t going to say anything different from
him —
Thatis not true, You’re Honor, and in fact that
unconsciousnessis irrelevant and Mr. Bates knowsit.
I objection to the constant objections.
The objection is sustained.
Doctor.....
Mr. Brent’s objection is sustained.”
(R.T. 2983, Line 2 — R.T. 2984, Line 2.)
247
Regardless of whether defense counsel’s argument waslegally sound,”it is
improperfor the prosecutor to suggest to the jury that he wasintentionally raising
an irrelevancy for it to consider. The allegation that defense counsel “knows”that
his argumentis frivolous distinguishes this record from that considered in other
caseswhere the prosecution did not directly allege defense counsel’s bad faith.
(See, e.g., People v. Frye, supra, 18 Cal.4" 894, 978, where the prosecution
charged that defense counsel was “irresponsible” for raising arguments that were
“ludicrous” and “a smoke screen”’].) Rather, it is a plain example of the type of
denigration that has been condemned bythe California Supreme Court. (See, e.g.,
People v. Sandoval, supra, 4 Cal.4" 155, 184, [accusation that defense was
perpetrating “a fraud upon the court” went “far beyond”the boundaries of
appropriate argument].)
In addition to the improper suggestion that defense counsel wasintentionally
attempting to mislead the jury, he was interrupted twice during his closing
argumentby the prosecutor’s complaint that he had been personally attacked. In
the first instance, defense counsel remarkedthat “Mr. Brent wantedto ride through
his false front western townreal fast.” The court admonished him to “stick with
the evidence.” (R.T. 2989 — R.T. 2990.) Later, as defense counsel was describing
the reliability of Dr. Stalcup’s testimony, he noted that he had workedfor the
‘7 The victim’s consciousness is shownto be relevant in Argument XI(C), herein.
248
Departmentof Justice, headed by Janet Reno. He speculated that the prosecution
might discount the association because Janet Reno was a Democrat. This
provokedthe following exchange:
“Mr. Brent Whydoes Mr. Bates bring meinto every argument?
The Court J don’t know whatpolitics have to do with this particular
case, Mr. Bates.
Mr. Bates Nothing at all, Your Honor.
The Court Then stay awayfrom it.”
(R.T. 2995, Lines 9 - 14.)
Defense counsel described the prosecutor’s suggestion that Dr. Wolfe was
underqualified, compared to Dr. Fukumoto,as “derisory.” (R.T. 2980, Lines 8 -
24.)
Apparently goaded by these innocuous remarks,the prosecutorretaliated
during rebuttal argument:
“Mr. Brent There is a word Mr. Bates used in describing me twice
yesterday, a word called ‘derisory.’ J don’t know what
he meant. And he wasin the middle attacking me —
personally over and over and over again when he was
using that word.
Mr. Bates I am going to object, this is not proper argument.
The Court Overruled.
Mr.Brent So I figured it had to be some kind of snap at me
“derisory.” So I looked this word up. And ‘derisory,’ I
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got a copy ofit out of the dictionary here,a little page of
it. “‘Derisory’ meansit is worthy of derision. That didn’t
help me very much. Whatis this derision? Well, I
looked up ‘derision’ which is about two words above
there, and it says an object of ridicule or scorn, a
laughing stock. That is what they think of me. Thatis
whatthey think ofthis case.
(R.T. 3091, Line 10 — R.T. 3092, Line 1.)
Mr. Brent
* * *
They don’t know whatthe defense is. They are
defending the defendant without knowingthe defense.
They are hoping that by attacking the police, by attacking
the crime scene, by attacking me,that is the old — you
know, you know, I’m sure Judge Ryanhas heardthis
hundreds of times, a thousand times, the old law school
deal; we heard Mr. Bates and Mr. Severin, “‘a law school
professor.” You usedto hearthis all the time: ‘if the
facts are on yourside, you arguethe facts. If the law is
on yourside, you argue the law. If neither is on your
side, you attack your opponent.’ Thatis the only wayI
can explain. Why Mr. Severin didn’t do that. I don’t
know why — I don’t know why Mr. Bates had to get up
there andstart this attack.
I am going to object to the personal attacks, improper argument.
The Court Overruled.’”®
(R.T. 3099, Line 10; R.T. 3100, Line 2.)
It is misconductfor the prosecutor in argumentto impugn theintegrity of
defense counsel. (People v. Cash (2002) 28 Cal.4" 703, 732 - 733, cert. denied,
“8 The trial court’s ruling was improper, orat least inconsistent. Asthe trial court appeared to recognize whenit
repeatedly sustained the prosecutor’s objections to Mr. Bates comments about him, closing argument should be
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(2003) 537 U.S. 1199; People v. Herring (1993) 20 Cal.App.4" 1066, 1075-76.)
Here, the prosecutor’s remarks purported to simply respond to whathe perceived
to be as an unfair attack upon him. It is well-settled that improper comments by a
prosecutor during his closing argument cannot be justified even though they may
be made in reply to those made by defense counsel. (People v. Perry (1972) 7
Cal.3d 756, 789.) In any event, the prosecutor’s comments far exceeded the
appropriate boundaries of fair commentto defense counsel’s relatively mild
remarks; indeed, since his objections to defense counsel’s remarks were sustained
by the Court, one wonders whythe prosecutorfelt that a reply was necessaryatall,
except as a pretext to savage defense counsel.
The prosecutor’s comments wentfar beyond pointing out deficiencies in the
defense case, which is permissible. (See, e.g., People v. Cash, supra, 28 Cal.4"
703, 733, prosecutor’s comment supported by evidenceattrial.) The prosecutor
accused defense counsel of thinking that he, as well as the caseitself, was “a
laughing stock.” (R.T. 3091, Line 25.) Given the seriousnessof the charges and
the brutality of the two murders, the prosecutor’s accusation that defense counsel
waslaughingat its case is an example of an inflammatory and personal attack that
“directed the jury’s attention to an irrelevant matter and (was) not proper
comments on the evidenceor inferences to be drawn therefrom. (case cited)”
based upon evidence in the record, or common knowledge and experience. People v. Brown, (2004) 33 Cal.4" 382,
399 - 400, cert. denied, 125 S.Ct. 1297.)
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(People v. Herring, supra, 20 Cal.4" 1068, 1075.) Certainly, defense counsel’s
personal assessmentof the prosecutorandhiscaseis irrelevant. (See, e.g., People
v. Herring, supra, “whether Appellant’s counsel believed Appellant’s testimonyis
irrelevant.’’)
| The prejudice of the prosecutor’s impermissible attack on defense counsel
escalated when he chargedthat “(t)hey don’t know whatthe defense is. They are
defending the defendant without knowing the defense.” (R.T. 399, Lines 11 - 12.)
His objection carried the clear implication that defense counsel did not believe in
Appellant’s innocence, an implication which wasasirrelevant and improperasit
was inflammatory. “The role of the prosecutoris to see that those accused of
crime are affordeda fairtrial . . . and far transcends the objective of high scores of
convictions. (case cited) Personal attacks on the integrity of opposing counsel
constitutes prosecutional misconduct.” (People v. Herring, supra, 20 Cal.App. 4"
1068, 1076.) Here, as in Herring, the prosecutor’s remarks wentto the heart of the
defense by asserting that “defense counsel did not believe his ownclient.” (/bid.)
(See, also, People v. Perry, supra, 7 Cal.3d 756, 789, [where a conviction was.
reversed for prosecutorial misconduct, including a closing argumentthat
“questionedthe sincerity of “defense” counsel].)” In Herring, the Court of
Appeals recognized that admonitions by the courtwould not have cured the harm
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and held that the judgment would haveto be reversed. (People v. Herring, supra,
20 Cal.App. 4" 1068, 1077.)
This case is distinguishable from the record in People v. Perry, supra, where
this court found that the misconductdid not require reversal. In the instantcase,
the prosecutor's remarks were notbrief; they were an extended diatribe on defense
counsel’s supposed attack upon him. Defense counsel’s remarks cannot be
construed as an inflammatory attack upon the prosecutor. At worst, they were a
mild political irrelevancy and claim that the prosecutor rushedby certain
weaknesses in his case during his opening addressto the jury. Onthis record,it is
unreasonable to dismiss the prosecutor’s allegation that Appellant’s counsel were
laughing at the case and that they did not believe in the defense that they mounted
onhis behalf as a “mere polemicretaliation.” (/bid. at 791.) Finally, the evidence
against Appellant“did not point unerringly to his guilt.” (People v. Pitts, supra,
223 Cal.App.3d 606, 816.) Therefore, reversal is required.
E. Extensive Misconduct in Closing Argument Misled the
Jury on Several Critical Issues and Resulted in a
Fundamentally Unfair Trial in Violation of the State Law
and the Federal Constitution
“A prosecutor’s closing argument is an especially critical period of the trial.”
(People v. Pitts, 223 Cal.App.3d 606, 694.) It is long been recognized that:
“The argumentof the district attorney, particularly
his closing argument, comesfrom an official
representative of the People. As such,it does, andit
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should, carry great weight. Defense counsel and the
prosecuting attorney do not stand as equals before
the jury. Defense counsel are known to be
advocatesfor the defense. The prosecuting
attorneys are governmentofficials and clothed with
the dignity and prestige of their office. What they
say to the jury is necessarily weighted with that
prestige. (People v. Tally, (1992) 111 Cal.App.2d
650, 677.)”
Accordingly, improprieties in closing arguments can, in themselves, violate
due process. Chapmanitself recognized that a prosecutor’s closing argument
could be so improperas to create federal constitutional error. (Chapman v.
California, supra, 386 U.S. 18, 25-26; People v. Bolton, supra, 23 Cal.3d 208,
214, fn. 4.) “Prosecutor’s statements may violate Due Process in two ways: First,
the statements may implicate a specific provision of the Bill of Right incorporated
into the Fourteenth Amendmentby the Due Process Clause; second, the statement
may constitute a denial of due process generally.” (Rogers v. Lynaugh (5"Cir.
1988) 848 F.2d 606, 608.) As will appear, both forms of due process violation are
presenthere.
It is improperfor the prosecution to misstate the law during its closing —
argument, particularly if it has the effect of absolving the prosecution from its
prima facie obligation to overcome reasonable doubtin all elements. (People v.
Marshall (1996) 13 Cal.4" 799, 831, cert. denied. (1997) 520 U.S. 1157; People v.
Gonzalez (1990) 51 Cal.3d 1179, 1214 — 12115, cert. denied, (1991) 502 US.
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835; People v. Hill, supra, 17 Cal.4" 977, 831.) “Tinkering” with the reasonable
doubtinstruction qualifies as a structural error and reversal per se. (People v.
Johnson (2004) 119 Cal.4"" 976, 986; People v. Johnson (2004) 115 Cal.App.4"
1169, 1172.) Nevertheless, during his closing argument, the prosecution urged the
jury that whenit assessed Appellant’s conduct“not to give him the benefit of any
factual or mental, or anything to his benefit.” (R.T. 2932, Lines 8 - 10.) The
defense immediately objected:
“Mr. Bates
The Court
Mr. Brent
Your Honor,this is an improper lessening of the burden
of proof of the prosecution. I asked that the prosecutor
be admonished.
I am goingto instruct the jury. You are going to get a
chanceto rebut and the jury will follow the Court’s
instructions.
You understand what I am saying? I wantto repeatit. I
don’t want the defense to be doing something I should
be. I am not talking about the burden of proof. I am
talking about when Mr. Edwards,for example, gets up on
the stand and gives you a story. These are the wordsof a
convicted murderer. You can put those words in
perspective. That is a man whohasbeen convicted of
murder. And whenhetells you about the waythings
happen, yougetto filter whathe says to the factthatheis
a convicted murderer as opposed to someonetestifying
whois not a convicted murderer. It makes a difference,
doesn’tit?
(R.T. 2932, Line 11 —R.T. 2933, Line 4.)
Even though (unlike Gonzalez and Marshall) defense counsel made a timely
objection,the trial court did not use the opportunity to rule on it and deliver a
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curative instruction. Its commentthat it would instruct the jurors later was
inscrutable and did not havethe curative effect that an immediate reminderto the
jury about the prosecutor’s burden of proof beyond a reasonable doubt would have
had. Similarly, the prosecutor’s attempt to recover from his misstatementby a
quick remarkthat he “wasn’t talking about the burden of proof’ could not have had
the ameliorative effect of a clear and immediate curative instruction from thetrial
court. Lastly, Gonzalez and Marshall are distinguishable since defense counsel’s
attempt to provide his own curative instruction during rebuttal was quashedby the
Court:
“By Mr. Bates
Mr. Brent
The Court
You know,Mr. Brent, and God Bless him, he did a nice
job whenhetries to make you think what you are doing
here is easy. It is not easy. When hetries to make you
think it is all obvious, it is not obvious. And when he
tells you at the tail end of his argumentthat he is not
asking to decide this case on less then beyond a
reasonable doubt, well, you know, you all can remember
15 years — 15 minutes ago,it seems like 15 years — 15
minutes in the core of his argument, you know,he said
exactly that. He said — you know hesaid it. You can
have the reporter read it back. He said don’t givethis
man the benefit of the doubt, and hesaid asto the issues
of specific intent and mental state, don’t give him the’
benefit of the doubt. Hesaid that —
Your Honor, that is not whatI said.
Well, it is in the record and it is in your memories. If you
need any help, my reporter will find it for you, okay?
The People have the burden ofproof, I don’t recall
anybodytrying to lessen that. If somebodydid,ignoreit.
You will get the law. J will read it to you very carefully,
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and I am goingto give it to you in writing. And whatI
tell you about the law is what counts.
Mr. Bates Ladies and Gentlemen, when Mr. Brent asked you to
decide the case against Mr. Edwardsonless than a
reasonable doubt, which is what he means when hesays
don’t give him the benefit of the doubt —
Mr. Brent That is not what it means. That is not what I said, and I
am going to object. It is improper. It is misstating my
argument.
The Court Your objection is sustained.”
(R.T. 2953, Line 6 — R.T. 2954, Line 13.)
The court’s belated reminderto the jury that the “People have the burden of
proof’ was no substitute for a favorable ruling on defense counsel’s original
objection and complete instruction that the People have the burden ofproof,
beyond a reasonable doubt. “(S)ince it is reasonably likely (the prosecutor’s)
comments taken in context, were understood by the jury to mean defendant had the
burden of producing evidence to demonstrate a reasonable doubtofhis guilt... we
conclude (the prosecutor) committed misconduct by misstating the law.” (People
v. Hill, supra, 17 Cal.4" 800, 831 - 882; see, also, United States v. Roberts ci’ Cir.
1997) 119 F.3d 1006, 1015, [prosecutor’s improper commentsthat when defendant
testifies he has responsibility to present compelling case is reversible error where
no curative instructions requested or given]; Mahorney v. Wallman (10Cir.
1990) 917 F.2d 469, 473 - 474 [prosecutor’s remark that presumption of innocence
257
no longer applied to defendant reversible error where remarks underminedfederal
constitutional rights].) The unequivocal invitation by the prosecutor to deny
Appellant any benefit when analyzing the proof, together with the absence of any
immediate and clear curative instruction, requires reversal. (Compare, People v.
Bell, supra, 49 Cal.3d 502, 540, a combination of trial court’s admonitions and
instruction were sufficient to cure the potential prejudice of the prosecutor’s
misconduct.)
Finally, the prosecutor repeatedly and improperly suggested to the jury that
the Deeble and Delbecq homicides were uniquely similar and, if they weren’t, the
defense would have introduced evidence to the contrary. During his examination
of Dr. Wolfe, the defense pathologist, the prosecutor asked him “how manyviolent
deaths have you heard about where there are mousse cans foundat both scenes.”
The court sustained a defense objection. (R.T. 2520, Lines 8 - 14.)
Notwithstanding the court’s ruling, the prosecutor repeated the improper point
during its closing argument and compoundedthe prejudice by arguing a factthat
he must have knownwasnotestablished in the record: that the defense team had
accessto “all the other murders” to compare to the charged offense:
“Mr. Brent So, you know, what did you hear any of the defense
witnesses — did you hear anybodyin cross-examination
by the defense on anyoftheir experts, any of the buddies
of Mr. Edwards, did you hear anybody comein here and
tell you how these mousse cansgotin both places? Do
they have an explanation for you at any point along the
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way? None. It can not be explained. Do they have
access to showusall the other murders out there that
happened this same way? Of course they do. There
aren’t any.
Mr. Bates Your Honor, that assumesfacts not in evidence —
The Court Sustained.
Mr. Bates Ask that commentbe stricken.
The Court It is stricken.”
(R.T. 2933, Lines 4 - 20.)
F. The Trial Court Abused its Discretion When it Denied
Motion for A Mistrial Following the Prosecution’s
Breach of Its Promise that it Would Not Disclose
Appellant’s Arrest for the Delbecq Murderto the Jury
The prosecutor’s habit of ignoring rulings of the court extended to
agreements with counsel. Shortly before trial began, defense counsel approached
the prosecution to seek his assurance that no mention would be made during his
opening statement of Appellant’s arrest for the Delbecq murder. It was given.
Nevertheless, not ten minutes later, during his opening address, the prosecutor
disclosed to the jury that Appellant was “ultimately arrested” for that murder.
(R.T. 1916, Lines 19 - 20.) At the sidebar conference that shortly ensued, the
prosecutor admitted that he had breached his promise, but argued that defense
motion for a mistrial should be denied because it was inadvertent and harmless.
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(R.T. 1966, Lines 17 - 26.) The court commented, that “an arrest (was) a far cry
from a conviction,” and denied the motion. (R.T. 1967, Lines 13 - 16.)
In People v. Valdez, supra, (2004) 32 Cal.4"" 73, the Supreme Court held
that a witness’ explanation that he obtained a defendant’s photograph from jail was
too ambiguousa reference to a prior conviction to support a reversal, especially
since no objection was made andthe prosecutor didn’t intendto elicit the
disclosure from the witness. (Ibid. at 122 - 123.) Here, the record is quite
different. The prejudicial remark camedirectly from the prosecutor; it was not an
anticipated response fromthe third party witness. The prosecutor’s attempt to
minimize his responsibility by characterizing his disclosure as something that “just
slipped out”in the heatoflitigation must be viewed with considerable reservation
in light of his concession that he promised not to makethat disclosure only a few
moments before he began to address the jury, as well as his disturbing habit of
ignoring adverse evidentiary rulings by the Court. Unlike Valdez, a timely
objection and motion for a mistrial was made. Lastly, the disclosure did not
require the jury to guessat its relevance. The jury was explicitedly told that
Appellant had been arrested for the Delbecq murder. A mistrial must be granted
when a defendant’s chanceof receiving a fair trial are irreparably damaged;a trial
court’s ruling is reviewed for an abuse of discretion. (People v. Silva, supra,
(2001) 25 Cal.4"" 345, 372.)
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es
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i Here, neither the court nor prosecutor sought to excuse the disclosure as
proper. Although Appellant’s conviction for Delbecq murder wasdisclosed to the
jury as impeachmentofhis direct testimony (R.T. 2605), the prosecution’s
disclosure of his arrest for the crimeat the earliest stage of the trial wasnot
harmless since it can be reasonably assumedthat it may have strongly influenced
Appellant’s very decisiontotestify.
Althoughthis court held in People v. Price (1991) 1 Cal.4" 324, 480 - 481,
cert. denied, (1992) 506 U.S. 851, that disclosure of a defendant’s arrest was
harmless becausehelatertestified about it, the case is distinguishable. There, the
improper disclosure was made during the penalty phase ofthe trial and pertained to
an attempted robbery that was otherwise unrelated to the case. By sharp contrast,
the improper disclosure of Appellant’s arrest was made during the guilt phase of
his trial and pertained to a uncharged offense which the prosecutor expressly used
as a basis for its argument that Appellant committed the charged offense.
Therefore, it was an abuse of discretion to deny the motion for a mistrial.
G. Asserting “Heis the Killer,” the Prosecutor Injected his
Belief as to Guilt
A prosecutor “may not express a personal belief in defendant’s guilt, in part
because of the dangerthat jurors may assumethere is other evidencein his
commandon whichhe baseshis conclusion.” (People v. Thompson (1988) 45
Cal.3d 86, 112, cert. denied, 488 U.S. 960.) In this case, the prosecutor repeatedly
261
accused Appellant of lying and of fabricating his defense, which he asserted was
necessary becausethe prosecution had presented an open-and-shut case. Indeed,at
the beginning of his final remarks to the jury, the prosecutor, with tongue in cheek,
confided to the jury that he was going to hold up the two moussecans and say
“mousse cans” and sit down. (R.T. 2898.) He then concluded his remarks with the
following assertion:
“You know,wejust — you know,any killer that
knew both had access to these women, one knew
her, onelived by,that is just any killer would have
done. See, when you cometo that conclusion, when
you arrive there, then whetheror not pubic hairs got
left or not blown around or whatever doesn’t mean
very much. Because you knowthat, whereas that
evidence would be in a crime sceneor it wouldn’t.
You knowit wasn’t here, legitimately wasn’t here.
Andthatis just the way it was. Becauseheis the
killer and it just didn’t happen. I hope you see what
I amsaying by that. The possibilities of
interpretation go away when you know what
happened. So,folks, thanks so much.”
(R.T. 3108 — R.T. 3109.)
The bald assertion “he is the killer” was not conditioned or linked directly to
any argumentfrom the evidence. It dispensed with the absence of proof. It was a
pure assertion of prosecutorial opinion as to Appellant’s guilt and the lack of merit
in his defense, based on his personal knowledgethe “truth.” “(A) prosecutor may
not, of course, vouch personally for the appropriateness of the verdict he or she
urges.” (People v. Benson (1990) 52 Cal.3d 754, 795, cert. denied, (1991) 502
262
&
U.S. 924.) This type of factual assertion was condemned in People v. Bain (1971)
5 Cal.3d 839, p. 848, and it should be condemnedhere.
H. The Prosecutor’s Continuing Pattern of Misconduct
Deprived Appellant of his Federal Constitutional Right to
a Fair Trial and a Reliable Capital Trial in Violation of
the Fifth, Eighth and Fourteenth Amendments
1. Introduction
Prosecutorial misconduct requires reversal under federal law if it “so
infected the trial within fairness as to make the resulting conviction the denial of
due process.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) Conduct by
a prosecutor that does not render a criminaltrial fundamentally unfair is
prosecutorial misconduct understate law if it involves “the use of deceptive or
reprehensible methodsto attempt to persuade the court of the jury.” (People v.
Samayoa,(1997) 15 Cal.4" 795, 841, cert. denied, (1998) 522 U.S. 1125.)
Appellant need not establish “a pattern of misconduct” before obtainingrelief; a
single act of misconduct, in closing argument or examination of witnesses, for
example, is sufficient to require reversal if it violated due process or another _-
constitutional guarantee, undermined Appellant’s right to a fair trial, or was
otherwise prejudicial. (See, e.g., Hicks v. Oklahoma, supra; Chapman v.
California (1967) 386 U.S. 18, 26; People v. Bain, supra, 5 Cal.3d 839, 849;
People v. Alverson (1964) 60 Cal.2d 803, 810; [‘it seems quite clear that
263
prejudicial error occurred” based on one instance of misconduct during cross
examination].)
2. The Drumfire of Unjustified and
Comprehensive Misconduct Requires a New
Trial, without Resort to a Prejudice Analysis
The misconduct at Robert Edwards’ trial was pervasive. The tactics used to
convict him cannot be explained as impulsive acts, spawned bythe heatof
litigation, or justified as hard blows,but not foul ones. They destroyed any
realistic hope that he hadfora fair trial, based upon the evidence impartially
applied to the law. The misconduct extended to every category of prosecutorial
impropriety that has been identified by precedent overthe years.
° Hetold the jury that he was personally convinced of
Robert Edwards’ guilt;
° He attempted to introducefalse and/or foundationless
testimony that scientific testing, excludedall suspects
to the homicide but Robert Edwards, but madenoeffort
whatsoeverto introduce the results of that alleged
testing into the record;
° He denigrated defense witnesses, including Mr.
Edwards, with argumentative and sarcastic asides and
interjections;
e He attacked the competence of defense counsel by
claiming that “they were defending the defendant
without knowing the defense;”
° He misstated the law;
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e He repeatedly ignored the trial court’s efforts to enforce
fair conduct.
Based uponthis unremitting pattern of unfair and palpable prejudicial behavior, a
per se reversal is compelled. United States v. Kerr (9" Cir. 1992) 981 F.2d 1050,
1052 - 1054; United States v. Burse (2" Cir. 1976) 531 F.2d 1151, 1153-1154;
[where “a pattern of prosecutorial misconduct,” combined withtrial error “infects
the integrity of the proceeding,” relief should be granted without evaluatingits
affect on the jury verdict]; Brecht v. Abrahamson (1993) 507 U.S. 619.) Thus,
where,as here, the prosecutorial misconductis egregiousit “infected the entire
proceeding and destroyedits fairness,” it is so “incapable of redemptionby actual
prejudice analysis.” (Hardnett v. Marshall (9" Cir. 1994) 25 F.3d 875, 879 — 880,
cert. denied, (1995) 513 U.S 1130.)
3. The Cumulative Prejudice of Prosecutor’s
Misconduct Requires Reversal
The persuasive prosecutorial misconduct in the case requires a new trial
under both the federal and state standards becausethe trial was infected by the
repeated use of deceptive and reprehensible methods of persuasion. Asset forth
above,the guilt phase of the trial was replete with instances ofthe prosecutor
employing various improper methodsto presentprejudicial facts before the jury.
What emergesis the troubling pattern of a prosecutor repeatedly ignoring both the
265
rules of evidence and the court’s rulings and admonitions. The prosecutor
breached pre-trial agreements with the court and counsel about staying away from
potentially prejudicial areas such as DNAtesting and Appellant’s criminal record.
The prosecutor repeatedly asked Appellant if witnesses were liars, despite clear
precedentforbidding him from doing so. In closing argument, he sought to reduce
the prosecution’s burden of proof. He also argued facts which he knew werenotin
the record when he claimedthat the murders were unique since the defense didn’t
introduce any proofto the contrary, despite its access to “all the murders.” (R.T.
2933.) In the words of the United States Supreme Court, “such a machine gun
repetition of denial of constitutional rights, designed and calculated to make
(Appellant’s) version of the evidence worthless, can no more be considered
harmlessthan the introduction against a defendant of a coerced confession.”
(United States v. Chapman, supra, 386 U.S. 18, 24.)
The prosecutor’s actions in this case were “of a type which repeatedly has
been condemnedas flagrant misconduct. Rather than consisting of a single
statementinterjected in the heat of debate, they were interspersed throughout thie
closing argumentin such a mannerthat their cumulative affect was devastating.”
(People v. Kirkes, (1952) 39 Cal.2d 719, 726.) Although one particular instance of
misconduct maybe sufficient to require reversal, the cumulative prejudice of
overall misconduct requires a newtrial. (See, People v. Hill, supra, 17 Cal.4"
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800, 845 (“although we might concludeany single instance of misconduct was
harmless standing along, we cannot ignore the overall prejudice to defendant’s fair
trial rights caused (by prosecutor’s) pervasive campaign to mislead the jury of key
legal points, as well as her unceasing denigration of defense counsel before the
- jury];” People v. Purvis (1963) 60 Cal.2d 323, 348, 353 [combination of
“relatively unimportant misstatementof law in fact,” when considered onthe “total
record”and in “connection with other errors” required reversal]; People v.
Herring, supra, 20 Cal.App.4" 1066, 1075 - 1077 [cumulative prejudicial effect of
prosecutor’s improper statements in closing argumentrequired reversal]; People v.
Pitts, supra, 223 Cal.App.3d 606 [although manyinstances of prosecutorial
misconduct were mild and, if considered singly, would be inconsequential, the
court considered their cumulative effect].)
Cumulative prejudice is not harmless error. (See, United States v. Sanchez,
supra, 176 F.3d 1214, 1225 [conviction reversed because prosecutor committed
misconductin attempting to destroy defendant’s credibility and in his argumentto
the jury]; United States v. Hands (1 1" Cir. 1999) 184 F.3d 1322, 1331 - 1332
[prosecutor’s improper attacks on defense witness credibility were not harmless
because key to defense case rested on witnesscredibility]; United States v. Wilson
(4" Cir. 1998) 135 F.3d 291, 299 - 302 [prosecutor’s improperclosing argument
indicated that defendant murdered someoneduring soured drug deal was not
267
harmless error because the remarks were not supported by the record, misled the
jury, and were prominentand well developed; therefore, general curative
instructions were insufficient of correct the record].)
In sum, as this Court has observed “you can’t unring a bell.” (People v. Hill,
supra, 17 Cal.4" 800, 846.) As in Hill, the jury in this case “heard notjust a bell,
but a constant clang of erroneous law andfact.” Id. Edwards should be given a
constitutionally fair trial, free of pervasive prosecutorial misconduct. Because the
misconduct assumed federal constitutional dimensions, the Chapman standard
applies and Appellantis entitled to relief unless the state proves the misconduct
was harmless beyond a reasonable doubt. However, even if the misconductdid not
arise to a constitutional violation, prejudice exists under the Watsonstandard.
(People v. Pitts, supra, 223 Cal.App.3d 800, 815, “a miscarriage ofjustice (under
Watson)has occurred whenthe caseis closely balanced and the acts of misconduct
are such as to have contributed materially to the verdict. (People v. Wagner,
supra, 13 Cal.3d 612, 621.) Undeniably, the case here was closely balanced and
the acts of misconduct were of the type likely to contribute materially to the
verdict.
X. THE TRIAL COURT’S REPEATED INTERRUPTIONS OF
DEFENSE COUNSEL’S CLOSING ARGUMENT TO THE
JURY VIOLATED STATE LAW AS WELL AS APPELLANT’S
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CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND
HEIGHTENED RELIABILITY IN A CAPITAL TRIAL
A. Introduction
During his summation, defense counsel was prevented from arguing a key
inference from evidence in the record that Appellant did not harborthe requisite
intent to cause “extreme and prolonged pain” as well as prevented from
introducing a demonstrative exhibit to rebut the central theme of the prosecution:
that the California and Hawaii homicides were uniquely similar.
Section 1093(e) of the Penal Code providesthat “(w)hen the evidenceis
concluded,unless the case is submitted . .. without argument. . . counsel for
defendant mayarguethe case to the court and jury.” A corollary to the Sixth
Amendment’s constitutional right to be represented by counselis the right of
counsel to present argumentto the jury in an attempt persuadethe fact finder of the
defendant’s innocence. (People v. Manning (1981) 120 Cal.App.3d 421, 423.)
Under Section 1040 of the Penal Code, the court has the duty to limit argument of
counselto relevant and material matters, with a view to the expeditious and
effective ascertainmentof the truth regarding the matters involved.
B. Standard of Review
Thetrial court has broad discretion under Section 1040 to assure a defendant
is afforded a fair trial. Unless there is a patent abuse of discretion, a trial court’s
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determination underthis section must be upheld on appeal. (People v. Cline
(1997) 60 Cal.App.4" 1327, 1334.)
C. The Trial Court’s Rulings Violated State Law
1. Unconsciousness was A Relevant Issue
Asset forth in Section VIII, an essential element of the crime of murder by
torture is the elementthat the perpetrator acted with the intent to inflict extreme
and prolongedpain for any sadistic purpose. (C.T. 943; C.T. 962.) Likewise, for
the special circumstance of murder involvingthe infliction of torture to be true, the
perpetrator must have the samespecific intent. (C.T. 943; C.T. 953.)
Nevertheless, when defense counsel began to argue that the act of quickly
rendering the victim senseless by a “knock-out blow” wasinconsistent with a
finding of an intent to cause extreme and prolongedpain,the court sustained the
prosecutor’s objection.
“Q (by Mr. Bates) What about unconsciousness? Any of you who have
seen a boxing match knowsthat when a knock-out blow
lands, there is no lapse of time. And that is what Dr.
Wolfe said. And again that is why Dr. Fukumoto wasnot
called back on rebuttal to refute him. Dr. Fukumoto isn’t
going to say anything different from him.
Mr. Brent Thatis not true, Your Honor, andin fact that
unconsciousnessis irrelevant and Mr. Bates knowsit.
Mr. Bates I object to the constant objections.
The Court The objection is sustained.
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Mr. Bates Doctor —
The Court Mr. Brent’s objection is sustained.”
(R.T. 2983, Line 16 —R.T. 2984, Line 2.)
While a victim’s actual awareness ofpain is not an elementof the crime of
murder by torture or the special circumstance of murder involvingtorture,’ the
court’s ruling failed to recognize the legitimacy of defense counsel’s argumentthat
an assailant’s decision to renderhis victim quickly insensible to pain is powerful
circumstantial evidence that he did not intend to cause “extreme and prolonged
pain;” in this important way, consciousnessis not “irrelevant,” as the prosecutor so
strongly advised the jury in a typically improper “speaking” objection. As the
Court held in People v. Cole, evidence that a murder victim suffered extreme pain
is “part of the circumstances of the crime relevant to prove intent to torture, both
for murderby torture and the torture murder special circumstance. (cases cited)”
(2004) 33 Cal.4" 1158, 1197.) Counselis entitled to make relevant arguments,
based upon properly admitted evidence. (See, People v. Washington (1969) 71
Cal.2d 1061, 1083 - 1084, [in murderbytorture, prosecutor wasentitled to
commentuponthe injuries suffered by the victim and reaction ofhertreating
health professional during its closing argumentto proveits theory of the case].)
” (C.T. 943: C.T. 962.)
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Here, likewise, based upon the testimonyof the pathologists that Mrs.
Deeble suffered a heavy blow to her head (R.T. 2130 — R.T. 2133) and that
strangulation could cause loss of consciousness in seconds (R.T. 2153 — R.T.
2154), defense counsel should have been permitted to arguethat the assailant
lacked the requisite intent to cause extreme and prolonged pain. The prosecutor’s
interruption, which contained an improper argumentbefore the jury and an unfair
charge that defense counsel wastrying to mislead the jury was, in effect, adopted
by the court whenit construed it as an objection and sustained it. The net
consequence ofthe court’s ruling was to persuade the jury,first of all, that defense
counsel could not be trusted because he advanced arguments which he knewto be
misleading and, second,to instruct them to disregard a powerfully exculpatory
piece of circumstantial evidence bearing upon essential elements in both the crime
of murderand the special circumstance of murderby torture. In this regard, the
court’s ruling had the exact opposite effect of a curative instruction; it magnified
and gave credenceto the dual improper suggestionsin the prosecutor’s speaking
objection. (Compare, People v. Thomas (1970) 3 Cal.App.3d 859, 864; [where the
court’s stern admonition to the jury to disregard an improper suggestion by the
prosecutor during closing argument cured the prejudice to the defendant].)
2. The Demonstrative Exhibit Should Have Been
Allowed
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Asset forth in SectionIII, the alleged similarity in the charged offense and
the murder of Muriel Delbecq seven years later was an indispensable argumentfor
the prosecution; quite simply,if the jury found that the similarities were
coincidental, rather than circumstantial proofthat the assailants were the same,the
prosecution had no case. The trial court should takea liberal posture towards
counsel’s right to argue its case as eloquently and as persuasively as possible.
(California v. Palmer (1984) 154 Cal.App.3d 79, 89, fn. 9.) Accordingly, defense
counsel has been given broad discretion to read such things as newspaperarticles
to the jury on the issue of identification, if the material deals with matters of
common knowledge. (People v. Travis (1954) 129 Cal.App.2d 29.)
Notwithstanding these authorities, the court prohibited defense counsel from
playing not more than five minutes of a television program that depicted striking
similarities in the lives of two women,such as the samedate of birth, the same
maiden name, same wedding anniversary, children born in the same years, and the
same social security numbers. (R.T. 3043 — R.T. 3053.) The court denied
permissionto play the exhibit because there was no foundation of the accuracy of
the information presented in the program; it permitted counsel to describe the
contents of that program to the jury. (R.T. 3052 — R.T. 3053.)
In exercising its discretion to determine whetheran outside source, not in
evidence, can be used during closing argument, cases haveheld thatthe trial court
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should read the material and consider whetherit relates to matters of common
knowledgeor substantially illustrates common experience, whetherthe materialis
relevant to the case, and whetherit may confuse the issues in the case. (People v.
Palmer, supra.) The court denied the request to play the videotape without
listening to the brief segment, despite defense counsel’s urging to “see the tape,
look at the tape and judgefor yourself.” (R.T. 3048, Lines 17 - 18.)°° In so doing,
the court abusedits discretion by ruling without fully informingitself. Thetrial
court’s failure to review the brief segment of the videotape in order to properly
exercise its discretion is similar to the error in People v. Guzman (1975) 47
Cal.App.3d 380, overruled on other grounds, 44 Cal.3d 137.) There, the Court of
Appeals founda violation of the rule of Travis because defense counsel was
“stopped from reading from a book merely because he wasreading and not
because the court examined whathe intendedto read.” (Ibid. at 392.) Although
defense counsel attempted to describe the contents from the videotape program to
the jury following the court’s decision to “let him play with it for awhile” (R.T.
3046 — R.T. 3048; R.T. 3052), this summation wasno substitute for the dramatic
impactof the actual program itself.
The videotape, although not more than five minutes, included interviews
with not two but three women named Patricia and Campbell with the samedate of
°° The videotape was madepart of the supplemental record. Clerk’s Supplemental Transcript, July 2004, page 20.
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birth. Two of the women not only shared the same social security numbers, butall
otherlife circumstances far more detailed and dramatic then could be reasonably
and effectively described by defense counsel during his closing argument.
(Compare, People v. Guzman [wherethe error was found non-prejudicial because
“counsel was allowed fully to state those considerations in his own words without
reference to supporting authorities.” (/bid. at 392.) (emphasis supplied).)
Forall the foregoing reasons, the trial court abusedits discretion and
unfairly limited defense counsel’s closing argument,in violation of Appellant’s
- Sixth, Eighth and Fourteenth Eighth Amendmentrights to counsel, to present a
defense, to due processof law, and-to heightenedreliability in a capital case.
(Hicks v. Oklahoma,supra; Beck v. Alabama, supra.) Appellantis entitled to a
newtrial.
XI. THE COURT VIOLATED STATE LAW, AND DENIED
APPELLANT HIS FEDERAL CONSTITUTIONAL RIGHTS
UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
WHENIT REFUSED JURY INSTRUCTIONS PROPOSED BY
THE DEFENSE
A. The Court Erred When it Refused to Deliver A Further
Cautionary Instruction to the Jury about the Limited Use
for Which it Could Consider Sergeant Jessen’s
Testimony that the Investigation Focused Upon
Appellant after He was Advised that Scientific Testing
had Eliminated All Other Suspects
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1. Factual Background
Asset forth in Section VI(C), the court sustained a timely defense objection
to a question posed to Sergeant Jessen which asked him whether he began to focus
on Appellant to the exclusion of other individuals who furnished fluid, hair, and
fingerprint exemplars because those persons had been “eliminated by DNA”and
Appellant had not. (R.T. 2820, Lines 14 - 20.) The defense made a timely motion
for mistrial which was denied. (R.T. 2837 — R.T. 2838.) The court delivered the
following admonition to the jury:
“The Court Earlier in the trial certain evidence wasbeing offered for
a limited purpose. Well, the last question by the way.
The jury is ordered to disregard it. But these questions of
this officer are being offered for a limited purpose, and
the limited purposeis this officer’s state of mind. And
whatthatis relevantto, I think will become obvious by
the questions and by any cross-examination on those
questions. The letters “D-N-A”were usedin the last
question. Don’t assumeor think aboutit. Those letters
are stricken. They are meaningless as far as your dutyis
concerned. Is that understood? Can you handle thatall
right?”
(R.T. 2837, Line 14 — R.T. 2838, Line 2.)
The record doesnotreflect any affirmative response from the jury in
response to the court’s inquiry. The defense proposed that the following
supplemental instruction was necessary to protect Appellant’s rightto a fair trial:
“Sergeant Jessen testified yesterday that seven
named individuals were eliminated by “~DNA’
testing. After consultation with the attorneysit
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appears that the statement was false. There never
was DNAtesting regarding the seven named
individuals. Othertesting led Sergeant Jessen to
believe they were not viable suspects in his mind.”
(R.T. 2885, Line 8 - 10; C.T. 852.)
The defense asserted that the admonition was necessary and appropriate
because the prosecution’s question to Sergeant Jessen wasin badfaith:
“Your Honor,I think in light of what I am bringing
before the Court now we need a muchstronger
admonition for this reason: It is not that there just
wasn’t a 402 regarding DNA and other foundational
issues, the statementitself is apparently not true.
The seven named individuals were never tested for
DNAandthey were never excluded by DNA. I
thinkother various testing of perhaps an ABO type
was done. But the specific invocation of the kind of
evidencethat people find I believe to be one of most
powerful ofall is not true. It is factually unfounded.
And for that reasonI think a much stronger
admonition is — I’m not going to reargue our motion
for a mistrial, but I think a muchstronger
admonition is required. And | included People v.
Bolton for the People and the Court becauseI think
it is a very comparable kind ofsituation. That
happened to come up during closing argument. This
came up during rebuttal. Evidenceat the end of the
case is taken to have a disproportioned impact,
whetherit be closing argumentor rebuttal. And in
fact in Bolton there was a comparable typesituation
in that the prosecutor alluded in argument to
evidence which,in fact, did not exist. It wasn’t just
that the defendant’s prior record hadn’t been
introduced. He did not have one. And I think that is
directly comparable here, too. It is just not the DNA
wasn’t introduced. There wasn’t any DNAtesting
in the seven namedindividuals. So I think as in
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Bolton it would be appropriate to admonish now and
then given them the same wording as aninstruction
for them to take back in the jury room.”
(R.T. 2886, Line 4 — R.T. 2887, Line 10.)
The prosecutor replied that the defense was wrong and that DNAtesting was
performed. However, he offered no proof of that fact. Instead, he argued against
proposed admonition:
“Mr. Brent Well, Mr. Bates is wrong. There was DNAtesting; but
even if he were correct andit was othertesting, the
matter has been — is solved. Because the only time the
words “DNA” came from my mouth was when I asked
Sergeant Jessen if based upon DNAtesting — and I went
on with the question. At that point the defense objected.
Sergeant Jessen never answered. We hadoursidebar
conference. Weagreed that — or the court said that the
way I should ask the question wasscientific testing, and
the court admonishedthe jury to forget DNA. Andso the
only thing the jury has heard, the only question that the
detective was asked to which there was an answer was
specifically on scientific testing. And so this is
completely unnecessary.”
(R.T. 2887, Lines 11 - 26.) |
The defense demandeda “citation to the record” by the prosecution to back
up his claim that DNA testing was performed; he received none. (R.T. 2888, Lines
2-10.) Nevertheless, the court denied his motion for a further admonition,
finding that the instruction that was delivered was an adequate response. It
concluded with this observation:
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“The Court Your motion for a further admonition is denied. Your
request for further instruction is denied. This material
was adequately covered yesterday. And I also disagree
with your assumption that people, which includes the
jurors, have this great reliance on DNA. I mean that has
been disproved in a very major case which wasrecently
litigated. This jury as far as I know hasn’t heard
anything about DNA. Theyheard theletters, and they
were told to disregard that. [ have to assume andI think I
am legally correct on this that they would follow my
admonition to disregard it. There was no evidence. They
wouldn’t — even if they did believe that, it is a highly
reliable form of identification evidence; they didn’t hear
that. They didn’t get it. So you opened the area up, you
have, and properly so, by the way. I am notcriticizing
the defense. You have torn the crime scene investigation
apart from top to bottom,hairs, stains, et cetera, et cetera,
et cetera. You weretrying to line up for the jury all these
other possible suspects. What are the People suppose to
do, just sit back and say go ahead and do; wedid not
have a good reason for doing further testing? They came
back with what they werelegally entitled to come back
with. And that may have included DNA. The People
chosenot to go through the 400 Hearing with the DNA
evidence, but the officer’s state of mind wascertainly
relevant. And for good reason the People chose not to do
it. It may never come in because ofthe figures.
(R.T. 2888, Line 10 — R.T. 2889, Line 15.)
The Court was Required by State Law to Deliver the
Defense Curative Instruction
Neither the court nor the prosecution responded to defense counsel’s explicit
request for proof to corroborate the claim that DNAtesting was performed. The
prosecution’s failure to reply to defense counsel’s reasonable requestto resolve the
factual dispute of whether DNAtesting was performed makeit equally reasonable
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to assumethat no testing was done. In fairness, the court’s failure to press the
prosecution on defense counsel’s request before it ruled compel that assumption
for purposesof this appeal.
The defense objection to the adequacyof the court’s curative instruction was
timely. (Compare, People v. Mayfield (1997) 14 Cal.4" 668, 778,cert. denied,
(1997) 522 U.S. 839, [defense did not ask the court to clarify or amplify a
“pinpoint instruction;” therefore, it can not complain on appeal].) The court did
not reject defense substitute because it was an improperstatementof the law.”!
Nor, as set forth above, did it contain any misstatements of fact. The trial court
rejected the proposals solely because the admonition was“adequately covered”in
its own instruction.
>! Compare, People v. Lenart, supra, 32 Cal.4" 1107, 1133, {defense proposed instruction rejected becauseit
incorrectly stated the law].)
» Plainly, the trial court’s observation that evidence may have been admissible to rebut the defense complaintthat
the police failed to pursue otherlikely suspects did not invite the prosecution’s assertion about the alleged results of
DNAtesting nor reduce the need for a powerful and unambiguouscurative instruction to the jury.
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The defense asserts that the court’s curative instruction to the jury was not
an adequate responseto the prosecution’s faulty assertion to the jury that DNA
testing “eliminated”all suspects, save Appellant. For the reasons set forth below, a
reasonable juror would not have been able to disregard this factual statement
during the deliberations unless he received the curative instruction proposed by the
defense. (See, People v. Ashmus (1991) 54 Cal.3d 932, 981, cert. denied, (1992)
506 U.S. 841 [to evaluate a defense claim that a jury instruction defining intent to
kill was improper, the court mustask itself did the instructions adequately inform
the jury of the elements of proof and how a hypothetical reasonable juror would
have,or at least could have, understood the charge].)
Firstof all, the prosecutor’s comments were in bad faith. At the time the
assertion about DNAtesting was made,no evidenceofit had been presentedto the
jury nor wasthe defense given an opportunity to litigate the admissibility of the
supposed “DNAtesting.” Since the prosecution essentially represented to the jury
that DNAtesting had “fingered” Appellant, so to speak, the defense deserved an
equally unambiguous corrective instruction; indeed,all parties agreed that the
assertion was improper and that a curative instruction must be madeto the jury to
utterly disregard it during its deliberations.
There wasa high probability that the jury would considerthe “fact” that
DNAtesting had eliminated all suspects, except Appellant, in its deliberations.
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Because the prosecution chose to lead Sergeant Jessen, the question posed to him
wasnottruly an interrogatory; it was an assertion of fact. Thus, the prosecutor’s
argumentbelow that no prejudice occurred because Sergeant Jessen did not
respondto his question was disingenuous. (R.T. 2887, Lines 18 - 21.) He did not
have to. The jury well understood that DNAtesting allegedly picked out Appellant
by the very nature of “the question.” Since the prosecutor himself described the
results of the testing, the jury wasless likely to follow the admonition it was given.
Asthe Supreme Court recognized in Bolton, juries have a special regard for
statements by prosecutors, as opposed to witnesses and defense attorneys. (Ibid. at
213.)
The court’s reliance upon the fact that the jury did not hear any evidence
about DNAtesting was misplaced.” As this Court has recognized,by the time of
Appellant’s trial, juries were being asked to convict defendants of serious felonies
almost exclusively uponDNAevidence. (See, e.g., People v. Venegas (1998) 18
Cal.4" 47, 94, 96.) Contrarywise,it is a matter of common experience that since
the 1980’s, DNA testing had lead to numberof spectacular exonerations of the
falsely convicted.’ Indeed, three years before Appellant’s trial, the ability of
° “They heard the letters, and they were told to disregard that.” (R.T. 2888, Lines 18 - 19.)
4 According to the Innocence Project, a national group that works on preventing and reversing wrongful
convictions, 159 people who have been convicted have been exonerated through post-conviction DNAtesting since
it has becomeavailable in 1989, San Francisco Chronicle, May 9, 2005, “Rough Landing for Exonerated Inmate;”
See, also, PBS Frontline “Burden of Innocence,” discussing the release of more than 100 inmates who have been
exonerated by DNA testing. (www.pbs.org); Senate Bill (S. 233) introducedat the First Session of the 107"
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scientist to use DNA was dramatized in the popular consciousness bythe release of
the movie Jurassic Park. Against this background, it was unreasonable to hope that
the letters “DNA” would havelittle significance to the jury, unless actual evidence
wasintroduced.
Lastly, and most importantly, there is a qualitative difference between
instructing the jury “don’t think about (DNA)”andinstructing them to disregard
the statement of fact expressed in the prosecutor’s question becauseit wasfalse.
The formerinstruction requires the jury to perform the impossible mental
gymnastics recognized by the Supreme Court in the United States v. Bruton.By
contrast, the defense instructiontells the jury the reason it must disregard the
prosecutor’s assertion: because it was untrue. This latter instruction was patently
more effective to address the mischief whichall parties soughtto correct.
3. The Trial Court’s Failure to Deliver the Instruction
Violated Appellant’s Federal Constitutional Rights
to aFair Trial
The record in this case is easily distinguishable from those cases in which a
defense special instruction wasrejected as duplicative. (People v. Mayfield, supra;
People v. Ashmus, supra; People v. Jackson (1944) 63 Cal.App.2d 586, 595.)
Unlike those cases, there wasa distinctive and material difference between an
Congress to place a moratorium on executions by the federal government found that “at least 10 individuals
sentenced to death have been exonerated through post-conviction DNAtesting, some within days of execution.”
°° “The naive presumption that prejudicial effects can be overcomebyinstructionsto the jury . . . all practicing
lawyers know to be an unmitigatedfiction.” (/bid.at 129.)
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instruction that was delivered to the jury and that proposed by the defense. This
instruction told the jury that DNAtesting was never performed. For the reason set
forth above, this factual rebuttal to the prosecutions improperassertion of fact was
necessary to prevent the jury from factoringit into their deliberations. A useful
comparison can be madeto the record People v. McAfee (1927) 82 Cal.App. 389.
There, in an incest prosecution, the jury heard testimony from a bacteriologist
abouta stain described by the prosecution as smears of blood and spermatozoa
from a handkerchief found by investigators near some bushespointed out by the
child victim. The court sustained a defensefoundational objection and instructed
the jury to “disregard all testimony with reference to the handkerchief in
connection with this case.” (bid. at 400.) However, unlike here, the court’s ruling
and admonition was preceded bya lengthycritique in the presence of the jury
which,in a language of the opinion, “could have left no doubt in any juror’s mind
that the court deprecated theevidentiary value of the handkerchief.” Here, by
contrast, despite the assertion of the prosecution, the court refused to follow the
defense request to “deprecate the evidentiary value ofthe (alleged testing.)”
Instead,it simply told the jury to disregard it. While the court’s admonition was
forceful as far as it went, as the McAfee opinion suggests,its failure to advise the
jury of the reason that it should disregard the test madeit ineffective, compared to
the defense instruction. A reasonable reliance upon the efficacy of the court’s
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admonition is undercut further by the fact that there is no record of an affirmative
response by the jury to the court’s inquiry of whetherit could follow its
admonition to disregard the letters “DNA.” (R.T. 2838 — R.T. 2838.)
The evidence of Appellant’s guilt is not so overwhelmingas to render the
court’s failure to deliver the special instruction harmless. (See, e.g., People v.
Lenart, supra, 32 Cal.4"" 1107, 1133 - 1134.) Asall parties recognized below,the
evidence linking Appellant to the charged offense waslegally insufficient, without
the circumstantial evidence of his alleged participation in the Hawaii murder seven
years later. The prosecution’s assertion of fact paraded before the jury quite
simply supplied the imageof a conclusive forensic proof of his guilt in a case
where there was no forensic evidence of any kind to establish his guilt. For all the
foregoing reasons,the refusal of the trial court to deliver the defense proposed
instruction denied Appellant his federal constitutional right to a fairtrial.
Chapman v. California, supra, and People v. Watson, supra.
B. The Murder by Torture and Torture-Murder Special
Circumstance Verbal Instructions were Erroneous
because They Omitted an Essential Elementthat
Appellant Inflict Pain on A “Living” Human Being
1. Factual Background
The court’s written instruction to the jury regarding the elements of the
special circumstance of murder involvingthe infliction of torture read:
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(C.T. 962.)
“No. 1, that defendantintended to kill a human ~
being; No. 2, the defendant intendedto inflict
extreme cruel physical pain and suffering upon a
living human being for the purpose of revenge,
extortion, persuasion or any sadistic purpose and
No.3, the defendant did in fact inflict extreme cruel
physical pain and suffering upon a living human
being no matter how long its duration. Awareness
of pain by the deceasedis not a necessary element of
torture.”
The court’s written instruction to the jury regarding the elements of murder
which wasperpetrated by torture read as follows:
(C.T. 953.)
“The essential elements of murder by torture are:
No. 1, one person murdered another person and No.
2, the perpetrator committed the murder with a
willful, deliberate, and premeditated intent to inflict
extreme and prolonged pain upon a living human
being for the purpose of revenge, extortion,
persuasionor for any sadistic purpose, No. 3, the
acts or actions taken by the perpetratorto inflict
extreme and prolonged pain werethe cause of the
victim’s death.”
However, during its verbal delivery of the instructionsto the jury, the court
omitted the word “living” from the second andthird paragraph ofits special
circumstanceinstruction. (R.T. 3138, Lines 4 - 10.) Likewise, the court omitted
the word “living” from thesecond paragraph of the murderby torture instruction.
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(R.T. 3132.)°° At the conclusion ofthe charge, the defense immediately brought
the omission from the special circumstanceinstruction to the court’s attention, but
declined to pursue the matter since the clerk verified that written instructions
contained the requirementthat the act of torture must be upon a “living” human
being. (R.T. 3143 — R.T. 3144.) During his closing argument, the defense read
that portion of the Court’s written instruction that required the jury to find the
infliction of extreme cruel pain upon a “living person”andthatintent to do so in
orderto find the torture special circumstanceas true (R.T. 2977); the prosecutor
did the sameforthe first-degree torture murder allegation. (R.T. 2901.)
2. The Trial Court’s Failure to Verbally Instruct
the Jury that a Finding of Torture Murder
Special Circumstance and A Conviction of
Murderby Torture Required Proofthat
Appellant Inflicted Extreme Cruel Physical Pain
Upon a “Living” Human Being is Reversible
Error
a. -- AHarmless Error or Waiver Analysis
of the Instructional Error in
Appellant’s Case is Precluded
because the Instructional Error
Removed an Elementof the Offense
from the Jury’s Consideration and
Therefore Violated Appellant’s Right
to Trial by Jury Guaranteedby the
Sixth Amendmentto the United States
Constitution
©In its introductory comments, the Court also omitted the word “living” from the special circumstance instruction,
but included it in its definition of murder by torture. (R.T. 3126, Lines 7 - 15.)
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Longago,this court held “(1)t is the trial court’s duty to see to it that the jury
are adequately informed of the law governing all elements of the case submitted to
them to the extent necessary to enable them to perform their function in conformity
with the applicable law.” (People vy. Ford (1964) 60 Cal.2d 772, 792 — 793,cert.
denied, 377 U.S. 940.) Consequently, failure by the trial court to instruct on the
elements on the offense is in violation of Appellant’s Sixth Amendmentright to
trial by jury. Apprendi v. New Jersey (2000) 530 U.S. 466; Ring v. Arizona
(2002) 536 U.S. 584; People v. Lee (1987) 43 Cal.3d 666, 673.
Thefailure of the court to instruct the jury on an essential element of the
crime chargedis the legal equivalent of directing a verdict for the prosecution on
that issue. It is not subject to a harmless error analysis. It is error per se. (Rose v.
Clark (1986) 478 U.S. 570; Connecticut v. Johnson (1983) 460 U.S. 73; Jackson
v. Virginia (1979) 443 U.S. 307; Cole v. Young (7" Cir. 1987) 817 F.2d 412,425-
426. (See also, People v. Valdez (2004) 32 Cal.4™ 73, 115 [“even in absenceof a
request, the trial court must instruct on the general principles of law relevantto the
issues raised by the evidence.”].) This court’s decision in People v. Crittenden,
supra, is not to the contrary.
In Crittenden,the trial court’s verbal instructionsto the jury regarding the
elements of the special circumstance of torture murderstate that “if’’ Appellant
inflicted extreme pain, the victim need not be aware of it. On appeal, Appellant
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argued that the instruction eliminated that he must, if fact, inflict extreme pain for
the special circumstance allegation to be true. This court rejected the argument for
three reasons. First, the court’s verbal instruction did not eliminate the element of
extreme pain; it merely advised the jury that the victim’s awarenessofit was
irrelevantif the infliction of extreme pain occurred. Second, the written
instructions to the jury unambiguouslyset forth the requirement. Third, the closing
arguments of the parties discussed the element. (Jbid. at 138 - 139.)
Here, unlike Crittenden, the verbal instructions to the jury unquestionably
omitted an element of the special circumstance and murderbytorture; that is, that
Appellant inflicted extreme pain and intendedto do so, upon a “living” person.
Secondly, during their closing arguments, both parties did not inform the jury of
the requirementof a “living” person, for the special circumstance to be true. While
the prosecution read the instructions setting forth the elements of murder by
torture, which advised the jury that an intentto inflict extreme pain on a “living”
person was required (R.T. 2901.), he never advised the jury that it need find a
“living” human being in orderto find the special circumstances of torture to be
true. Indeed, he warned the jury a numberoftimesthat the special circumstance
elementsare “a little bit different” and “actually contains some other language.”
(R.T. 2903.) Defense counsel also warnedthe jury that “murder by meansof
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torture and the special circumstance oftorture are not the same. They don’t have
the same elements.” (R.T. 2981.)
The dangerthat the jury might conclude from the court’s verbal instructions
and the prosecution’s closing remarksthat the requirementofa “living” human
being was not necessary to find the special circumstanceto be true was particularly
acute becauseof the prosecution’s repeated emphasisthat the victim did not have
to be aware of the pain in orderforthe allegation to be true. (R.T. 2927; R.T.
2904; R.T. 2707.) This increased the chancethat the jury may have mistakenly
concluded that the victim could have beenactually dead at the time the relevant
injuries wereinflicted, and the special circumstance allegation could still be true.
Indeed, the proviso that a victim need not be aware of pain and suffering in the
murderbytorture instruction also has the logical tendency to create doubt in the
jury’s mind as to whether the defendantneed inflict pain upon a “living” human
being, notwithstanding the instruction’s requirementthat his acts must be the cause
of the victim’s death; were it otherwise, the very requirementthat the instruction
advised the jury that the defendant mustintend to inflict pain on a “living” human
being would be surplusage. Thus, while defense counsel read the special
circumstance instruction to the jury, including the requirementofthe infliction of
pain, and the intent to do so, on a “living” humanbeing,the failure of these
comments to match the verbal instruction by the Court as well as the argument of
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the prosecutor is another important distinguishing fact from the record in
Crittenden. (R.T. 2977.) Similarly, the failure of the trial court to verbally instruct
the jury that a “living person” was required as an elementofthefirst-degree torture
murder crime wasnot cured by the prosecutor arguing that it was so; defense
counsel did not expressly agree that this requirement existed during his closing
argument and the conflict between the verbal and written instructions, and the
varying arguments of counsel, was never explicitly resolved by the Court for the
jury. Thus, the failure of the court’s verbal instruction to the jury that the
Appellant mustinflict pain upon a “living” humanbeing created an ambiguity
aboutan essential element that was never expressly resolved for the jury.
b. Even Assuming that an Instructional
Error which Omits an Essential element
of a Capital Crime is Subjectto
Harmless Error Review,the Error in
Appellant’s Case was not Harmless
Because the Jury Never Found,
- Pursuant to any Properly Given
Instruction, that Appellant did In Fact
Inflict Extreme Crue] Physical Pain
Upon the Living Victim or Intended to
Do So
In People v. Odle (1988) 45 Cal.3d 386, 414, cert. denied, 488 U.S. 917,this
Court held that the failure to instruct the jury on an elementofa special
circumstance is subject to the Chapman “harmless beyond a reasonable doubt
standard.” Subsequent decisions by the United States Supreme Court and the
29)
Ninth Circuit have undermined the continuing authority of People v. Odle. It has
now becomeclear that where the jury was not instructed on an elementof the
crime, such an error may be found to be harmless only wherethe instructional
issue that was omitted was, in fact, resolved bythe jury, albeit, in another context;
the focus of an appellate court’s inquiry must not be whetheror not the jury could
have found the omitted element based on the evidencein the record, but whether or
not the jury actually found the omitted elementto be true based upon another,
properly given instruction. (People v. Lewis (2006) 139 Cal.App.4"™ 874, 890;
People v. Ochoa (1991) 231 Cal.App.3d 1413.) (See, also, McCormick v. United
States (1990) 500 U.S. 257, 270; United States v. McClelland (9" Cir. 1991) 941
F.2d 999, 1002 - 1003.)
The jury was never unequivocally instructed that it must unanimously agree
that Appellantin fact tortured a “living” victim andhadtheintentto do so; there
wasa conflict between the Court’s verbal and written instructions that was never
expressly resolved by the Court nor addressed bythe parties during closing
argument. Since that issue was never resolved in anotherinstructional context or
resolved by the jury in a different context. The jury’s verdict does not exclude a
reasonable possibility that it was reached withouta finding that Appellant intended
to inflict extreme pain on a “living” human being. Thefirst degree murder
conviction and special circumstance finding mustbe reversed.
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3. The Failure of the Trial Court to Instruct the
Jury that both a Conviction of Murder by
Torture and a Finding of Torture Murder
Special Circumstance Required Proof that
Appellant Inflicted Extreme, Cruel Physical
Pain Upon a “living” human being and had
the Intent to do so Violated Appellant’s Due
Process Right under the Fifth and Fourteenth
Amendmentsto the United States Constitution
The failure of the trial court to instruct the jury on this critical element of the
crime of murder by torture and the torture murder special circumstance violated
Appellant’s federal constitutional due process right to have his casetried in
accordancewith applicable state law. (Hicks v. Oklahoma (1983) 447 U.S.343,
346; Hernandez v. Y1st (9"" Cir. 1991) 930 F.2d 714.) Consequently,the trial
court’s failure to properly instruct the jury violated Appellant’s federal
constitutional right to due process of law. The murder by torture conviction and
torture murder special circumstance must be reversed and the death sentence
imposed upon Appellant mustbeset aside.
XII. CUMULATIVE ERROR
State law errors might not be so prejudicial as to amountto a deprivation of
due process when considered alone, but may cumulatively producea trial setting
that is fundamentally unfair. (See, Greer v. Miller (1987) 483 U.S. 756, 765;
Marshall v. Walker (1983) 464 U.S. 951, 962; Taylor v. Kentucky (1978) 436
293
U.S. 478, 488; Donnelley v. DeChristoforo (1974) 416 U.S. 637, 642 - 645; Mak
v. Blodgett (9" Cir. 1992) 970 F.2d 614, 622, cert. denied, (1993) 507 U.S. 95.)
In the present case, Appellant’s trial was fundamentally unfair because the
numerousstate law and federal constitutional errors precluded Appellant from
adequately defending against the charges and the jurors’ verdict from meeting the
heightened reliability requirements constitutionally mandatedin a capital
proceeding, and deprived Appellant of his rights to due process,fair trial by jury,
confrontation, compulsory process, representation of counsel andthe right to
present a defense, in violation of the Fifth, Sixth, Eighth and Fourteen
Amendments. (See, Beck v. Alabama (1980) 447 U.S. 625, 627 - 645; see, also,
Kyles v. Whitley (1995) 514 U.S. 419, 422; Burger v. Kemp (1987) 483 U.S. 776,
785; Gilmore v. Taylor (1993) 508 U.S. 333, 342; White v. Illinois (1992) 502
U.S. 346, 363 - 364; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646.)
The errors were cumulatively prejudicial. The doctrine of establishing
prejudice through the cumulative effect of multiple errors is well settled. (See,
People v. Hill (1998) 17 Cal.App.4" 800, 845 [numerousinstances of prosecutorial
misconductand othererrors at both stages of the death penalty trial were
cumulatively prejudicial: the combined (aggregate) prejudicial effect of the errors
wasgreater than the sum of the prejudice of each error standing along]; Delzell v.
Day (1950) 36 Cal.2d 349, 351; People v. Buffum (1953) 40 Cal.2d 709, 726;
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People v. Ford (1964) 60 Cal.2d 772, 798; Du Jardin v. City ofOxnard (1995) 38
Cal.App.4" 174, 180; People v. McGreen (1980) 107 Cal.App.3d 504, 519 - 520.)
Moreover, whenerrors of federal constitutional magnitude combine with
nonconstitutional errors, the combined effect of the errors should be reviewed
under Chapmanstandard. (People v. Williams (1971) 22 Cal.App.3d 34, 58 - 59;
In re: Rodriguez (1981) 119 Cal.App.3d 457, 469 - 470.) Accordingly,this
court’s review of guilt phase errors is not limited to the determination of whether a
single error, by itself, constituted prejudice. In such cases, ““a balkanized,issue-
by-issue harmless error review’is far less effective than analyzing the overall
effect of all the errors in the context of the evidence introducedattrial against the
defendant.” (United States v. Frederick (9" Cir. 1996) 78 F.3d 1370, 1381.)
Here, Appellant has identified numerouserrors that occurred during the guilt
of his trial:
e The jury was improperly allowed to consider
evidence that Appellant allegedly committed an —
uncharged and unrelated homicide, even though
the evidence that he was responsible for the
charged offense wasinsufficient as a matter of
law.
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The jury was improperly allowed to consider
testimonythat scientific testing “eliminated”all
the suspects, save Appellant, as the donors of
biological material discovered at the scene of the
charged offense, even thoughthereliability (and
indeedthe simple occurrence) of that alleged
testing was neverestablishedin the record.
The trial court improperly excludedthe basis for
expert testimonythat the minorinjuries to Mrs.
Deeble’s genitals were consistent with those that
could have been caused by consensual sexual
intercourse, which would havesignificantly
undercut the key prosecution assertion that the
charged and uncharged homicides were “The Tale
of Two Mousse Cans,” committed by a single
individual: the Appellant.
The jury was inundated by improper remarks,
suggestions and highly prejudicial but unfounded
factual assertions by the prosecution, despite
repeated, though ineffectual; attempts by the trial
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court to control him by rulings, admonitions and
cautionary instructions.
Eachofthese errors individually, and all the more clearly when considered
cumulatively, deprived Appellant of due processofa fair trial, of the right to
‘compulsory process and to confront the evidence against him, of a fair and
impartial jury, of the right to present a defense, of the right to representation of
counsel, and offair and reliable guilt and penalty determinationsin violation of
Appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.
Further, each error, byitself, is sufficiently prejudicial to warrant reversal of guilt
and/or death judgment. Even if that were not the case, however, reversal would be
required because of the substantial prejudice flowing from the cumulative impact
of the errors.
Becausethe errors violated Appellant’s federal constitutional rights, the
judgment should be reversed unless the prosecution demonstrates beyond a
reasonable doubtthat there is no reasonable possibility the errors could have
affected the proceedings. (Chapman vy. California (1967) 386 U.S. 18, 23 - 24;
see, also, In re: Rodriguez (1987) 119 Cal.App.3d 457, 469 - 470 [Chapman
standard applied to combinedimpactof state and federal constitutionalerrors];
People v. Williams (1971) 22 Cal.App.3d 34, 58 - 59 [same].) Given the closeness
of the evidence andthe substantial impactofthe error, the prosecution can not
297
meet this burden. Therefore, the judgment should be reversed underthe federal
harmless-error standard.
ARGUMENT — PENALTY PHASE ISSUES
XI. THE TRIAL COURT’S HANDLING OF THE VOIR DIRE DURING
THE SECOND PENALTY PHASE TRIAL VIOLATED CALIFORNIA
LAW AND DENIED ROBERT EDWARDSHIS CONSTITUTIONAL
RIGHTS TO EQUAL PROTECTION OF THE LAW,A FAIR TRIAL
BEFORE AN IMPARTIAL JURY, AND A RELIABLE
DETERMINATION OF PENALTY UNDER THE FIFTH,SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS
A. Reversal is Required Because the Trial Court’s
Mishandling of Voir Dire Prevented Appellant from
Intelligently Exercising Challenges for Cause
1. Introduction
The trial court interfered with Appellant’s attempt to gather information
from prospective jurors about whether their views regarding capital punishment
would substantially impair the performanceof their duties. As a result, there is no
guarantee that the jurors selected were fair and impartial. This court must reverse
the convictions and judgmentof death without a specific showing of prejudice
becausethe errors during voir dire prevented an assurance of an impartial jury,
thus undermining the very structure of a capital trial. (People v. Wheeler (1978)
22 Cal.3d 258, 283.) Here, there was not mere an erroneous denial of challenges
for cause or an erroneousrestriction on the substance or numberof voir dire
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questions; the combination oferrors in these aborted the trial process and rendered
it fundamentally unfair. The total failure of the voir dire process deprived Robert
Edwardsofthe basic protection of an impartial jury without which “a criminal trial
cannotreliably serve its function as a vehicle for determination of innocence and
no criminal punishment may be regarded as fundamentally fair.” (Rose v. Clark
(1986) 478 U.S. 570, 577; Neder v. United States (1991) 527 U.S. 1, 9; Beck v.
Alabama(1980) 447 U.S. 629, 637 638; Zant v. Stephens (1983) 462 U.S. 862,
879; Johnson v. Mississippi (1988) 486 U.S. 578; 584 - 585.)
2. The Unconstitutionally Restrictive Voir Dire
Thetrial court repeatedly refused to allow Appellant’s counsel to ask two
prospective jurors (Nos. 166 and 212), who eventually were selected to serve and
voted for a death verdict, whether they would automatically return a verdict of
death in a case involving generalized facts likely to be presented by the prosecutor
(a brutal double homicide):
“Q (to Prospective) Can you,sir, see yourself returning a verdict
Juror 166) of life without the possibility of parole for a person who
has been convictedoffirst degree premeditated,
intentional murder, torture, burglary, sexual assault,
strangulation and there is another homicide in Hawaii of
a similar nature that you as a juror, I am just telling you
factually, have foundto be true that he is responsible for
as well?
Mr. Brent I am going to object, Your Honor, it calls for
prejudgmentandspeculation as phrased.
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The Court
Q (by Mr. Severin)
Mr. Brent
The Court
Mr. Brent
The Court
Mr. Brent
The Court
Q (by Mr. Severin)
Sustained.
Can you see yourself returning a verdict of life without
possibility of parole, depending upon the evidence that
has been presented to you for a person who has been
convicted of first degree murder, torture and burglary and
that homicide involved a sexual assault, strangulation,
and you find as a juror that Mr. Edwardsis also
responsible for a similar type of homicide in Hawaii?
Same objection.
Well, it is the same question.
Right.
Should I change the ruling?
I don’t think so.
I don’t either, sustained.
Are you open to considering the evidencein this case,
mitigating factors that may be presented to you in this
case and havingthe possibility of returning a verdict of
life without possibility of parole?
I am definitely open to considering all the facts before I
render any type of decision.
Okay. Would you vote for the death penalty in every
case in a Situation where you have found a person guilty
of more than one homicide?
No, I would not.”
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(R.T. 4875 — R.T. 4877.)
Thetrial court also prevented meaningful voir dire with respect to another person
who actually sat on the jury (Juror No. 212) by defense counsel, Ms. Bernadette
Cemore:
“Ms. Cemore
(R.T. 4514 — R.T. 4515.)
*
Ms. Cemore
Prospective Juror 212
Ms. Cemore
Mr. Brent
The Court
Ms. Cemore
Now, I am going to ask you eachthis question, and I am
going to give you somefacts. It is something we talked
about this morning. I want you to assumefor the
purposesof this question that if you are to sit here as a
juror, you are going to hear evidence, okay? And the
kind of evidence you are going to hear is about a murder
that involves a strangulation; it involves a sexual assault
with a foreign object; it involves blowsto thehead; a
second murderthat involves sexual assault with a foreign
object, blows to the head and strangulation. Okay? Now
you haven’t heard anyfacts in mitigation. You have
heard some circumstancesof the crime.
Andyou hearda little factual scenario that I have given.
Thoseare really awful crimes.
Yes.
Andis that the kind of crime where you think that the
death penalty is always going to be warranted?
Objection as phrased, asks to prejudge.
Sustained.
Is that the kind of case where the death penalty would
always be warranted in your mind withoutlistening to
any other evidence?
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Prospective Juror 212
(R.T. 4520 — R.T. 4521.)
To answer your question, I don’t think the death penalty
is always warranted in any case.”
In addition to prohibiting inquiry into whether prospective jurors’ views on
capital punishment would substantially impair the performance of their duties
based on the generalized circumstances of the murders,the trial court also
prohibited any inquiry into whether prospective jurors wouldconsider mitigation
evidencethat waslikely to be presentedattrial.
“Q (to Prospective )
Juror No. 286)
A
Mr. Brent
The Court
Q (by Ms. Cemore)
Mr. Brent
Prospective Juror
No. 286
The Court
(R.T. 4746.)
Are you going to be moved or persuaded in any way
about evidence that involves Mr. Edwards childhood? Is
that going to be the kind of evidence that would move
you in any way?
No.
Objection, asks for prejudgment.
Sustained.
Are you going to be open — let me ask you, you saidit’s
going to be hard to convince you. What would you need
to hear to even to get you to consider evidence that you
would find mitigating in any way?
Objection,calls for speculation.
I don’t know.
Sustained.”
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The court curtailed similar questioning for anotherjuror.
Ms. Cemore
(to Prospective
Juror No. 113)
The Court
Ms. Cemore
Mr. Brent
Ms. Cemore
Prospective Juror
No. 113
Ms. Cemore
Prospective Juror
No. 113
Ms. Cemore
Okay. If you wereto sit as a juror and you wereto be
told that some of these factors that I’ ve made reference to
earlier, not so long ago, that we called aggravating and
mitigating factors, if you wereto betold that one of the
factors that you maybe able to consider in aggravation,if
there’s evidence to support it, his alcohol and druguse,
how do youfeel about that? Because some people feel
that that’s an aggravating thing.
You may have misstated it.
Do you want meto read it specifically?
You said aggravated, not mitigated.
Did I misstate it? Thank you. I said aggravating; I meant
mitigating, okay? It’s one of the factors that can only be
mitigating, okay? The reason I am asking is because a
lot of people find that to be aggravating, but the lawis
going to tell you if you hear that evidence, you can only
considerit as mitigating. What do you think about that?
I think its mitigating as far as he had the choice on
whether to go on the drugs. Now - whether he’s under
the influenceat the timeof the crime, well, then that’s
something that we’ll have to look at.
Okay.
But other than that, I am not — I heard of few people that
were on drugsthat handled it quite well and others that
don’t handle it very wellat all.
Okay. And if His Honor wereto instruct you that that’s a
factor that you can use only as a mitigating factor, based
on all the evidence you hear and depending on how much
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Mr. Brent Your Honor, I am going to object. Can we approach
briefly? Ill just say misstates the law, what counseljust
said.
The Court Sustained.
Ms. Cemore You’d follow the law?
Prospective Juror I would.”
No.113
(R.T. 4536 — R.T. 4537.)
Appellant used a peremptory challenge to excuse Prospective Juror No. 113.
(R.T. 4775.) Prospective Juror No. 286 was excusedbystipulation. (R.T. 4754.)
Asset forth above, Prospective Juror Nos. 166 and 212, in seat numbers 6 and 9,
respectively, were sworn and were part of the panel that eventually returned a
verdict of death. (R.T. 4499; R.T. 4873; R.T. 5015.)
3. The Trial Court Prevented Permissible and
Necessary Voir Dire in Violation of State Law
and the Appellant’s Federal Constitutional
Rights
This court has reversed a death judgment due to inadequate voir dire in
another capital case, People v. Cash (2002) 28 Cal.4" 703, cert. denied, (2003) 537
U.S. 1199. The limitation on voir dire in Cash wassimilar to the trial court’s
restriction on-voir dire in Appellant’s case.
In Cash, defense counsel anticipated two prior murders would be introduced
in aggravation during the penalty phase ofthe trial. During voir dire, counsel
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wanted to ask prospective jurors if there were “any particular crimes”or “any
facts” that would cause them to automatically recommenddeath overlife without
possibility of parole. The trial court refused to allow the inquiry, holding that
counsel could not “go past the information.” (Ibid. at 554 - 555.) Defense counsel
then requested to ask the prospective jurors whether there were any aggravating
circumstances which would cause them to automatically vote for the death penalty,
withoutconsidering the alternative of life imprisonment without possibility of
parole. Thetrial court again prevented the inquiry, ruling that any questions about
specific acts of mitigation or aggravation would impermissibly require the
prospective jurors to prejudge the case. This Court ruled that the trial court’s
rulings unduly restricted Appellant’s right to determine “whether the jurors’ views
about capital punishment would prevent or impair the jurors’ ability to return a
verdict of death in the case before the jury (case cited.)” (Id. at 720.)
In so ruling, the Cash opinion re-affirmed the principle that counsel should be
allowedto ask about circumstanceslikely to be present in the case tried which
would impair the jurors’ ability to impose a verdict of life without the possibility of
parole. The opinion noted precedent that had allowed defense counsel to ask
whether jurors would automatically vote for death “in cases involving any
generalized facts, whetherpleaded ornot, that were likely to be shown by the
evidence.” (Emphasis in the original.) (Id.)
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Although counsel wasable to ask whether Juror No. 166 would
automatically vote for death in a double homicide case, the limited inquiry was “so
abstractthatit failed to identify those jurors whose death penalty views would
prevent or substantially impair the performanceof their duties ... .” (People v.
Cash, supra, 28 Cal.4"" 703, 721.) In order to flush out bias, counsel should have
been permitted to add to his hypothetical the generalized facts of the double
homicides: that they allegedly involved torture, burglary, sexual assault, and
strangulation. Neither the prosecution northe trial court contended that these facts
were notlikely to be introducedattrial; indeed, the torture and burglary were
specifically pled.
The disallowed question posed by Ms. Cemore to Prospective Juror 212 is
the very distillate of proper inquiry under the Cash opinion: whether a prospective
juror would invariably vote for or against the death penalty because of one or more
circumstanceslikely to be present in the case tried. While the trial court allowed
her to rephrase the question by amendingit to add “withoutlistening to any other
evidence,” this amendment muddied the crucial inquiry, rather than clarified it,
since the “other evidence”wasnot specified. Under Cash,the only relevant
amendment, if any, to the disallowed inquiry should have been whetherthe juror
would automatically vote for death in the generalized circumstances of the case
“without regard to the strength of aggravating and mitigating circumstances.” (Jd.
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at 720.) Thus,the trial court’s ruling, in effect, replaced a wholly proper inquiry
with one that gutted the relevance of the answer.
Furthermore, the prosecutor’s objectionsto the trial court’s ruling of the voir
dire of Juror Nos. 113 and 286 were baseless. The high court has consistently
maintained thatin capital cases “the fact finder must have beforeit all possible
relevant information about the individual whose fate it must determine.” (Fordv.
Wainwright (1968) 477 U.S. 399, 413, quoting Jurek v. Texas (1976) 428 U.S.
262, 276.) A defendant’s childhood and history of substance abuse indisputably
falls within the Supreme Court’s mandates. (See, Hitchcock v. Dugger (1986) 481
U.S. 393 (sentence reversed where jury was precluded from hearing evidence that
defendant“had the habit of inhaling gasoline fumes from automobile tanks; that he
had once passedoutafter doing so; that thereafter his mind tended to wander; that
(defendant) had been one of seven children in a poor family that earnedits living
by picking cotton; that his father had died of cancer; and that (defendant) had been
a fond and affectionate uncle to the children to one of his brothers.) Eddingsv.
Oklahoma (1981) 455 U.S. 104, 108 - 109, 112 - 116 (sentence reversed where
sentencer refused to consider evidence of defendant's unhappy upbringing and
emotional disturbance or his violent background.)
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Asthetrial court later acknowledged,” in the context of penalty phase ~
evidence, drug and alcohol abuse can only be considered by the jurors as
mitigating evidence. Based uponthis principle of law, the court erred whenit
ruled that whether asking Prospective Juror No. 286 would “be moved or
persuadedin any way aboutevidence that involved Mr. Edwards childhood”
impermissibly asked him to prejudge the case; the inquiry was necessary and
proper to determine whetherthe juror’s views on capital punishment would
substantially impair his ability to consider mitigating evidence that waslikely to be
presentedat trial. Similarly, preventing an inquiry into whether Prospective Juror
No. 113 would consider alcohol and drug abuse — which would figure prominently
in the evidence presented on the Appellant’s behalf — only as mitigation evidence
as the law required, significantly prejudiced his ability to secure an impartial jury.
4, The Restriction of Voir Dire in this Caseis
Reversible Per Se
“California courts have long held that insufficient
voir dire is presumptively prejudicial becauseit
underminesthe entire trial structure. The right to a
fair and impartial jury is one of the most sacred and
important guarantees of the constitution. Whereit
has been infringed, no inquiry asto the sufficiency
of evidence to show guilt is indulged and a
conviction by the jury so selected mustbesetaside.
(People v. Wheeler (1978) 22 Cal.3d 258, 283; see,
also, People v. Gilbert (1992) 5 Cal.App.4" 1372,
1379.)”
57 (R.T. 4625, Line 23 — R.T. 4626, Line 21.)
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Courts of Appeal in California have also refused to apply a harmless error
analysis and have reversed convictions without a specific showing of prejudice
where voir dire is ineffective. In People v. Mello, the California Court’s of Appeal
found thatthe error in the trial court’s handling of voir dire was not subjectto
harmlesserror analysis.
“The failure of the trial court to allow inquiry into
whether mitigating evidence would be consideredis
outcomedeterminative. This error — which
inevitably skewed the integrity of the entire voir dire
process and adversely affected the mannerin which
the jurors could evaluate the evidence — is a defect
effecting frame within whichthetrial proceeds that
is not subject to harmless error analysis. (2002) 97
Cal.App.4" 511, 519.”
The denial of the right to an impartial jury is a structural defect.
Casesthat hold that a violation of the guarantee of a publictrial
requires reversal without any showing of prejudice, even though the
values of a public trial maybe intangible and improvable. (Waller v.
Georgia (1984) 467 U.S. 39, 49). Likewise, the failure to allow general
voir dire to ensure a defendant’s right to an impartial jury should
require reversal without showing any prejudice.
Wherea jury is selected based upon scantor inaccurate information,
defendant’s constitutional guarantee of an impartial jury is rendered meaningless.
The voir dire in Appellant’s case was repeatedly deficient. As a result, there was
309
no assurancethat any prospective jurors where cause were impartial, including two
(Juror Nos. 166 and 212) who actually sat in judgment over whether Mr. Edwards
would live or die.
Asthis Court has observed:
“By absolutely barring any voir dire beyond facts
alleged on the face of the charging document, the
trial court created a risk that a juror who would
automatically vote to impose the death penalty on a
defendant whohad previously been convicted of
murder was impaneled and acted upon those views,
thereby violating defendant’s due processright to an
impartial jury. (case cited) Thetrial court’s
restriction of voir dire leads us to doubt that
defendant was sentenced to death by a jury
impaneled in compliance with the Fourteenth
Amendment.” People v. Cash, supra, 28 Cal.4"at
723.)
Because Appellant was repeatedly forced to use peremptory challenges to
excuse prospective jurors “by guess and by God,”so to speak, withoutvital
information regarding their attitudes towards the death penalty to which he was
entitled, his trial was structurally deficient. As such, his case is distinguishable
from the record in People v. Stewart, (2004) 33 Cal.4" 425, 452 - 454. There, the
trial court did not, on its own initiative, conduct voir dire in specific areas which
Appellant later claimed on appeal imperiled his right to an impartial jury, such as
his criminal record and drug use. This court held that while inquiry in these areas
might have assisted defense counsel in exercising challenges, they were not
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constitutionally compelled since the voir dire, as a whole, adequately explored
potential bias. Here, by contrast and as in Cash, inquiry into whether mitigating
evidence would be considered or whether the death penalty would be automatically
imposedis “outcome determinative.” (People v. Cash, supra.) Thus, unlike
Stewart, Appellant has provided a persuasive basis upon whichto view thetrial
court’s error as a structural defect.
In Cash, the penalty decision was reversed becausethetrial court neglected
to voir dire the jury in one area that might have been outcome determinative in
sentencing. The circumstances in Appellant’s case are even more problematic
since he was prevented from proper inquiry into numerousareas that might have
been outcome determinative. Appellant’s convictions must be reversed because
the court’s wholly inadequate voir dire failed to protect the Sixth Amendmentright
to an impartial jury and his Eighth Amendmentrightto a reliable penalty
determination.
5. The Death Verdict Must be Reversed, Even Under
the Most Differential “Abuse of Discretion”
Standard, Because the Trial Court Violated
Appellant’s Constitutional Right to an Impartial Jury
and Right to a Reliable Penalty Determination
Asargued above, under Cash, Appellantis entitled to an automatic reversal
of his judgment of death. However, even if this court applies the more differential
“abuse of discretion” standard, reversal is still mandated. Thetrial court abusesits
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discretion under when the scopeofits voir dire is too narrow to producesufficient —
information related to challenges for cause. (People v. Banner (1992) 3
Cal.App.4" 1315.) An inadequate voirdire is one in which “the questioning is not
reasonably sufficient to test the jury for partiality.” (People v. Wilborn (1990) 70
Cal.App.4" 339, 347.) In such case,the manner in which voir dire is conducted
is a basis for reversal becausethe resulting trial is fundamentally unfair.
Asset forth above, the inadequate voir dire in this case did not provide
defense counsel sufficient information to appropriately determine challenges for
cause. This caseis distinguishable from People v. Champion, supra, 9 Cal.4" 879
and People v. Kirkpatick (1994) 7 Cal.4"" 988,cert. denied, (1995) 514 U.S. 1015.
There, unlike here, the record supported a finding that trial counsel had the ability
to ask questions to discover whether prospective jurors’ attitudes towardsthe death
penalty would substantially impair the exercise of their duties. Additionally, in
Champion, noneofthe jurors affected by undulyrestricted voir dire were
erroneously retained in the face of a challenge for cause by defense counsel.
Accordingly, the Supreme Court foundthatthe trial court’s voir dire caused no
prejudice. (Ibid. at 910.) Here by contrast, the trial court’s restriction of voir dire
fatally impairedtrial counsel’s ability to ensure that jurors who actually sat in
judgment would not vote for death, simply upon charged allegations in the case.
Questions to Juror No. 212 regarding whether facts described by other jurors as
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“heinous” would cause her to automatically vote for death or whether unspecified
“facts” would overwhelm herability to listen to the evidence are no substitute for
responses based uponthe actual allegations against Robert Edwards. (R.T. 4557 —
R.T. 4560.) Similarly, asking Juror No. 166 whether he would automatically vote
for death in a multiple homicide case described the allegations against Mr.
Edwards too incompletely to satisfy the constitutional entitlement under Cash to
question prospective jurors about generalized facts likely to by shown bethe
evidence. (R.T. 4877.) There, as here, the limited inquiry allowedbythetrial
court wastoo abstract to allow defense counsel to identify those jurors whose death
views would substantially impair the performance of their duties.
Based upon the foregoing,the trial court’s decision regarding voir dire
cannotconstitute a valid exercise ofits discretion andis notentitled to deference
on appeal. This court should independently review the record and reverse the
judgment because thereis no assurancethat impartial jurors were selected to hear
Appellant’s capital case.
XIV. THE TRIAL COURT VIOLATED APPELLANT’S STATE
AND FEDERAL RIGHT TO AN IMPARTIAL JURY BY
IMPROPERLY RULING UPON CHALLENGES FOR CAUSE
ABOUT WHETHER THE ATTITUDES OF PROSPECTIVE
JURORS WOULD AFFECT PENALTY DELIBERATIONS
A. The Trial Court Violated Appellant’s Federal
Constitutional Right to an Impartial Jury by Granting a
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Prosecution Challenge for Cause to a Juror Who Simply
Expressed Reservations About Her Willingness to Vote
for Death
1. Introduction
Prospective Juror No. 180 told the court that she was somewhatunsure if she
could vote for a death verdict. The prosecution moved to discharge her for cause.
The trial court sustained the challenge. These actions violated Appellant’s right to
an impartial jury, composed of a representative cross section of the community, a
fair capital sentencing hearing, a heightened reliability in a capital case and due
process of law. (U.S. Const. Amends. V, VI, VIII & XIV; Cal. Const. Art. I,
Sections 1,7, 15, 16 & 17; Witherspoon v. Illinois (1968) 391 U.S. 510, 521 - 523;
People v. Hayes, supra, 21 Cal.4" 1211, 1285.) Prospective Juror No. 180 did not
state with the requisite degree of certitude that she would not consider death as an
option underproperinstructions from the trial court. The error is structural, and
reversal of the penalty is required. (People v. Heard (2003) 31 Cal.4" 946, 969,
supra, (2004) 541 U.S. 910; see, Arizona v. Fulminante (1991) 499 U.S. 270,
310.)
The Supreme Court held that “(t)he state may not, in a capital trial, excuse
all jurors who express conscientious objections to capital punishment. Doing so
violates defendant’s Sixth Amendmentright to an impartial jury and his right to
due process, and subjects the defendantto trial by a jury uncommonly willing to
314
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condemn a manto die.” (Witherspoon v. Illinois, supra, 391 U.S. 510,521.) All |
the state may require is “that jurors will consider and decide impartially and
conscientiously apply the law as charged by the Court.” (Adams v. Texas (1980)
448 U.S. 38, 45.) The same standard is applicable under the California
Constitution. (See, e.g., People v. Guzman (1988) 45 Cal.3d 915, 955.)
In applying this standard, an appellate court determines whetherthetrial
court’s decision to exclude a prospective juror is supported by substantial
evidence. People v. Ashmus, supra, 54 Cal.3d 932, 962. Thetrial court bears a
special responsibility to conduct adequate death qualification voir dire, as this
Court recently emphasized. When a prospective juror’s views appear uncertain,
the trial court must conduct careful and thorough questioning, including follow-up
questions, to determine whetherhis “views concerning the death penalty would
impair his ability to follow the law or otherwise perform his duties as a juror.”
(People v. Heard, supra, 31 Cal.4" 946, 965.)
In People v. Stewart (2004) 33 Cal.4" 425, 440-455, this Court held that the
trial court committed reversible error by excusing five prospective jurors for cause
based solely on an expression of general objections to the death penalty. This
Court reiterated the United State Supreme Court’s holding that personal objection
to the death penalty is not a sufficient basis for excluding a person from jury
service in a capital case. (Ibid. at 446. Citing, Lockhart v. McCree (1986) 476
315
U.S. 162, 176.) However, this Court has held that where the record shows a
prospective juror is equivocal abouthis or her ability to vote for death, (1)a trial
court may decide to discharge the juror and (2) that decision is binding on the
reviewing court. (See, e.g., People v. Cleveland (2004) 32 Cal.4" 704,cert.
denied, (2005) 543 U.S. 1058.) However Appellant respectfully requests this
Court to review this standard, based upon the argumentbelow.
Seven years after the Supreme Court decision in Adams v. Texas, supra, the
Court held that a trial court’s exclusion of a juror who has been equivocal about
her ability to serve was unconstitutional. (See, Gray v. Mississippi (1987) 481
U.S. 648.) During voir dire in that case, prospective juror H.C. Bounds was
questioned. According to the State Supreme Court, this voir dire was “lengthy and
confusing” and resulted in responses from Ms. Boundsthat were both equivocal.
(Gray v. State (Miss. 1985) 472 So.2d 409, 422.) The prosecutor movedto strike
Ms. Bounds for cause. Thetrial court resolved the ambiguity by sustaining the
challenge. In both the Adams and Gray opinions, the United States Supreme Court
madeclear that when a prospective capital case juror gives equivocal responses,
the state has not carried its burden to prove that those views would “preventor
substantially impair the performance of his duties as a juror.) (Adams v. Texas,
supra, 448 U.S. 38, 45.) In light ofAdams and Gray, Appellant urges this Court to
reconsiderits precedentthat permits the state to satisfy its burden of proof by
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eliciting equivocal answersfrom perspective jurors. This rule cannot be squared
with the rule applied in either Adamsor Gray, or the Eighth Amendment
jurisprudence upon whichthey are based. United States Supreme Court
precedence requires that where a juror is ambivalent about the imposition of the
death penalty, he may not be excluded from service.
2. Application of the Adams Standard Requires
Reversal because Prospective Juror No. 180’s
Equivocal Responsesdid not clearly Exclude Her
Consideration of Death as a Penalty
a. The Voir Dire in this Case
At various times during hervoir dire, Juror No. 180 repeated that she would “have
a great deal of difficulty” voting for the death penalty andthat life without
possibility of parole was “probably as high as (she) could go.” (R.T. 4451; R.T.
4491.) She explained that her reservations were personal, and not based upon
religious conviction. (R.T. 4451, Line 19 — R.T. 4452, Line 9.) She speculated
that those reservations might prevent her from reaching a penalty decision:
“Prospective Juror I think I might cometo a place where, I mean,in that
No. 180 process where I could not make anydecision.
The Court Are you saying that you would either vote forlife
without possibility of parole or not even voteat all?
Prospective Juror I am saying that sometimesI find decision making
No. 180 extremely stressful. And it might cometo that.
Sometimes I get very depressed when I have to make a
hard decision.”
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(R.T. 4491 —R.T. 4492.)
In the end, however, she confirmed that while she didn’t want to vote for the death
penalty, she could weigh mitigating against aggravating evidence and consider
death as a potential penalty:
“Q (By Ms. Cemore) Can you see yourself weighing aggravating and
" mitigating factors and finding the aggravating
outweighing mitigating and considering death as a
potential penalty?
A I could considerit, but I don’t want to vote for it.”
(R.T. 4496, Lines 5 — 10.)
Based on the foregoing, the court granted a prosecution motion to excuseher for
cause, over a defense objection that her equivocation did not sufficiently establish
impairment:
“The Court See, that is the problem, Mr. Severin, we know whereit
lies. We can play words on the record all we want. Here
is whereit lies: this lady was very emotional and wasto
- my questions, to Ms. Cemore’s questions and to Mr.
Brent’s questions, very emotional. And if you watched
her walk back to the jury room, she was near tears. We
are talking about a stressful event. There is no way, no
matter what evidence, no matter whatthe law,that this
lady could ever vote for a penalty of death. No way. Or
vote at all. That is another problem. Sheindicated or
vote at all. Not in those words,but that is the concept.
So she is excused on Mr. Brent’s motion.”
(R.T. 4499, Lines8 - 21.)
b. The Challenge was Improperly Granted and
the Penalty of Death must be Reversed
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In Heard, this Court held that the trial court erred when it granted a
challenge for cause based simply upona jurors affirmative responseto the
following written question: “Do you have a conscientious opinion orbelief about
the death penalty which would present or makeit very difficult for you to ever vote
to imposethe death penalty?” The opinion explainedthatthetrial court could not
summarily grant the challenge, without further inquiry, based upon a juror’s
strongly expressed unwillingness to vote for death:
“Tn light of the gravity of the punishment, for many
membersof society their personal and conscientious
viewsregarding the death penalty would makeit
‘very difficult’ ever to vote to impose the death
penalty. As explained below, however, a
prospective juror who simply wouldfind it ‘very
difficult’ ever to impose the death penalty, is entitled
— indeed, duty bound to sit on a capital jury, unless
his or her personal viewsactually would present or
substantially impair the performanceofhis or her
duties as a juror.” (People v. Heard, 31 Cal.4"at
446.)
In this case, although the trial court and counsel questioned Juror No. 180
before the challenge wasgranted, the decision to remove the juror was similarly
flawed since she did nothing more than repeatedly express her personal reluctance
to vote for death. As set forth above, where she wasasked if she could effectively
pasticipate in the deliberative process and consider death as a penalty, she stated
that she could do so, although she didn’t “want” to vote for death. Under Heard,
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this personal reluctance, even when forcefully repeated, is not groundsfor a
successful challenge for cause. The trial court simply did not ask the
constitutionally relevant question.
In People v. Harrison (2005) 35 Cal.4" 208,cert. denied, 126 S.Ct. 201, this
court uphelda trial court’s ruling that a juror’s ability to discharge her duties was
substantially impaired because she was equivocal about whethershe could vote for
death; at one point she said that she could not, while at other points during the voir
dire she allows that “maybe” she could do so. The opinion also noted the trial
court’s observation that the juror was “quite uncomfortable” during voir dire. The
record in this case is distinguishable. Although Prospective Juror No. 180 was
unsure about her ability to vote for death and participate in deliberations, she
eventually stated that she could consider death as a penalty alternative and
deliberate. As previously argued, under United States Supreme Court precedent in
Adamsand Gray, a prospective juror’s equivocal responsesdo notsatisfy the
state’s burden of proving impairment, the challenge was therefore improperly
granted.
The impropergranting of even a single challenge for cause requires reversal
of a death verdict. (People v. Heard, supra, 31 Cal.4" 946, 969: Gray v.
Mississippi, supra, 481 U.S. 648, 660.)
B. The Trial Court violated Appellant’s Federal
Constitutional Right to an Impartial Jury by Refusing a
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Defense Challenge for Cause to a Juror Whose Views
about the Death Penalty Substantially Impaired her
Ability to Perform her Duties as a Penalty Phase Juror
1. General Principles of Law
The preceding argumentin Section A considered a prosecution challenge
against a juror whosebeliefleft her allegedly pre-disposed against the death
penalty. This argument considers a prospective juror with beliefs that made her
unfairly pre-disposed in favor of the death penalty. Although Witherspoon v.
Illinois did not expressly considerthis group, this court has madeit clear that
California Statutory law requires exclusion of such persons from a capital jury
regardless of whether the federal constitution would compel such exclusion. (See,
Morganv.Illinois (1992) 504 U.S. 719; Ross v. Oklahoma (1988) 487 U.S. 81;
Hovey v. Superior Court (1980) 28 Cal.3d 1, 63-64, fn. 1106.)
A challenge for cause against a prospective juror should be granted if there
is a “state of mind onthe part of the juror in referenceto the case, or to either of
the parties, which would prevent him from acting with entire impartiality and
without prejudice to the substantial rights of either party....”” (Penal Code Section
1073.) In the present case, any doubts regarding the application of this standard in
specific instances should have been resolved in favor of the defense. Special
sensitivity is required because of the fact that this was a capital case. This court
recognized in People v. Armendariz (1984) 37 Cal.3d 573, 583, that whenever the
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integrity of the jury is at issue, the special role of the jury in capital cases calls for
even greater concern than in other cases. (See, also, People v. Hogan (1982) 31
Cal.3d 815, 848.) Thus, special sensitivity to jury selection issues in a capital case
should be given not only by thetrial court, but also by this court in its appellate
review.
In view of the extra sensitivity that should have been exercised bythetrial
court in this case, and the particular care that this court should give in reviewing
issues pertaining to the fairness of the jury selection procedures, the denial of the
challenge for cause in the present case constituted an abuse of discretion. With
these principles in mind, we can proceed with the discussion of the specific
challenge for cause that was wrongfully denied.
2. Argument
Prospective Juror No. 254 felt that imprisonmentfor a deliberate murder was
a waste of time and thatbased upon the court’s description of Appellant’s crime
alone, she would vote for death. (R.T. 4813 — R.T. 4814.) The prospective juror
also held strong views about alcohol and drug abuse. She stated that such abuse
was “a choice”and that the individuals who madeit were “responsible for their
actionsas far as that goes.” (R.T. 4815, Lines 16 - 22.) When informedthat she
could only consider drug and alcohol addiction as a mitigating factor, the
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prospective juror professed to be open minded, but then made the following replies
to summarize herattitude, if she were selected to serve:
“Q
OO
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Q
A
(R.T. 4817, Lines 4 - 21.)
If those are your feelings about drug and alcohol, and you
see them as something bad about a person — that’s not a
very descriptive word butlet’s just go with that for now —
how could you everreally consider them in termsofif
you heard evidence of them as a mitigating factor when
you think it makes somebody bad? Do you see what I
am asking?
Yeah.
I need you to be honest.
I don’t know. I can’t think of any words.
I am notsaying you will reject it if you hearit, but ’m
- asking if you can lookat it and considerit as a mitigating
factor?
Myexperience with it has been limited. What I’ve seen,
I couldn’t see it as a mitigating factor, no.
Okay. Andthat’s how you feel aboutit and everything
~ that you know aboutit tells you aboutit, right?
Yeah, I have not had a lot of experience with it though.”
In response to an aggressive inquiry by the prosecutor, Prospective Juror No. 254
agreed that she was “open to listening to evidence” of alcohol and drug abuse and
“open to the possibility of being persuaded.” (R.T. 4821, Lines 15 - 21.)
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The court denied the subsequent defense challenge for cause to Prospective
Juror No. 254. Although the court agreed that the juror “clearly” didn’t like
substance abuse,it reyected the defense argumentthat her prejudice would
substantially impair her ability to consider such abuse as a “wild jump.” In so
ruling, the trial court never addressed the juror’s initial commentthat life
imprisonmentfor a deliberate murder wasa waste of time. (R.T. 4821, Line 11 -
R.T. 4825, Line 25.) The defense then immediately excused Prospective Juror No.
254 with a peremptory challenge. (R.T. 4826, Lines 4 - 7.)
3. The Challenge for Cause Was Improperly Denied
Underexisting California precedent, if a prospective juror’s statements
regarding bias are conflicting or equivocal, the trial court’s determination of the
actual state of mindis binding. If the statements are consistent, the court’s ruling
will be upheld if supported by substantial evidence. (People v. Horning (2004) 34
Cal.4" 871, 896 — 897, cert. denied, (2005) 126 S.Ct. 45.) Although Appellant
contendsthat this analysis violates Gray v. Mississippi, the conflict need not be
addressed here becausethe trial court made no expressfinding asto the juror’s
state of mind nordid it characterize her responses about whether she would
consider substance abuse as a mitigating factor as conflicting or consistent. Based
upon the allegations against Mr. Edwards, the juror stated that she would vote only
for death. (R.T. 4818.) While she acknowledged that she had not yet heard the
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defense, her unequivocal distain for the alternative penalty of life without the
possibility of parole for a deliberate murder should haveleft no realistic doubt
about her pronounced auto-death penalty bias. Furthermore, Appellant contends
that her affirmative response to the prosecution’s single, leading, virtual command
that she would be “open to persuasion”regarding evidence of substance abuse
hardly qualifies as an “inconsistent” reply to a previously-stated acknowledgment
that she could not see herself viewing that evidence as mitigating.
Unlike the record in People v. Horning, Prospective Juror No. 254 did not
reassure the trial court that she could follow the law, including the prosecution’s
burden of proof. In this regard, the trial court’s recollection of the record was
faulty when it commentedthat (Prospective Juror 254) did indicate quite clearly
that she would following the law. “I can ask her again, but I am sure that is what
she was saying.” (R.T. 4823, Lines 7 —9.) Additionally, the prospective juror
never specifically denied being unfair as in Horning,nor did she specifically
‘retract her statement that she couldn’t see substance abuse as a mitigating factor;
her bare affirmation to the prosecutorthat it was possible that she might be
“persuaded”by defense evidence was wholly unconvincing, given herfailure to
explain how that evidence might “persuade” during her deliberations. In sum,
since the record cannot support a finding that Prospective Juror No. 254 even gave
a truly inconsistent reply to her stated position that substance abuse was not a
325
mitigating factor, this court must evaluate whetherthe trial court’s ruling was
supported by substantial evidence. Plainly, it was not.
Asset forth above,this record lacks any of the assurances of fairness that
were given by the juror during voir dire in Horning. As in Horning,this
prospective juror believed imprisonment was a waste of resources for a person
convicted of an intentional homicide; unlike Horning, she never assured the court
that she would notselect the death penalty just to save the state money. Thus,
while this prospective juror stated a general acknowledgmentthat herfinal penalty
decision would await the presentation of all evidence, this generally professed
willingness is not conclusive. (See, People v. Williams (1989) 48 Cal.3d 1112,
1129 (“a juror’s declaration of impartiality ... is not conclusive.”) Indeed,
Prospective Juror No. 254’s belief that the crime merited the death sentence and
that life imprisonment would be a waste further undercuts a finding that
“substantial evidence” supports the trial court’s implicit conclusion that the juror
would notbe auto-death. Based uponthis record, her views would have
substantially impaired the performanceof her duties as a penalty phase juror; the
trial court erred whenit overruled the defense challenge for cause.
4. The Trial Court’s Error Requires Reversal of
Appellant’s Sentence of Death
This Court has held that to preserve a claim based ona trial court’s
overruling of a defense challenge for cause, Appellant must (1) use a peremptory
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challenge to remove the juror; (2) exhaustall his peremptory challengesorjustify
his failure to do so; (3) express dissatisfaction with the jury ultimately selected.
(People v. Horning, supra, 34 Cal.4" 871, 896.) Here, although the defense used a
peremptory challenge to remove Prospective Juror No. 254, he did not exhaust his
‘challenges nor express overt dissatisfaction with the jury that was eventually
accepted. (R.T. 4859.) Nevertheless, Appellant contends that he was denied his
federal and state constitutional rights by the improper denial of the challenge since
trial counsel had no reason to believe that the exercise of additional peremptory
challenges would produce a jury that was morefairly disposed. Asset forth in
Argument XIII, herein, defense counsel was“flying blind” becausethe trial court
had improperly restricted voir dire; consequently, his ability to judge the
qualifications of the panel wasfatally impaired.
Analogousstrategic considerations have been recognized. In People v.
Motton (1985) 39 Cal.3d 596, 607 - 608, this Court recognized that experienced
trial attorneys mayseek a tactical advantage by passing their challenges when they
are confidentthat there are particular jurors who will be challenged by opposing
counsel. In People v. Box (1984) 152 Cal.App.3d 461, 465, the Court of Appeals
noted that, “experienced counsel seldom exercised one remaining challenge unless
they are confident that they will get a better juror than the one who will be
excused.” While the Box principle is clearest when there is only one remaining
327
challenge, it is just as real when there are numerous remaining challenges,if there
is no reason to believe that the end result will be any better than the 12 people in
the jury box. Thus, although Appellant did not exhaust his supply of peremptory
challenges, the trial court’s erroneous refusal to grant challenges for cause had an
unfair impact on the jury selection. Since they prejudiced Appellant’s night to an
impartial jury underthe Sixth, Eighth, and Fourteenth Amendments,the errors
cannot be deemed harmless. (See, Woodson v. North Carolina (1976) 428 U.S.
280, 305; see also, Justice Harlan’s concurring opinion in Reid v. Colvert (1957)
354 U.S. 1, 77.) The death sentence mustbe reversed.
XV. THE CUMULATIVE IMPACT OF THE PROSECUTOR’S
RELENTLESS PATTERN OF OBJECTIONABLE QUESTIONS,
ARGUMENTSAND ASIDES, DESPITE COURT RULINGS
PROHIBITING HIM FROM DOINGSO, VIOLATED APPELLANT’S
FEDERAL AND STATE CONSTITUTIONAL RIGHTSTO A FAIR
TRIAL AND A RELIABLE DETERMINATION OF PENALTY; THE
JUDGMENT OFDEATH MUST BE REVERSED
A. Introduction
In Section IX, Appellant noted that improper remarksby a prosecutor can so
infect a trial with unfairness, that the resulting judgment becomesa denial of due
process under the fourteenth Amendment. (Darden v. Wainwright (1968) 477
U.S. 168, 181.) Throughoutthe guilt phase, the prosecutor violated Appellant’s
constitutional rights, as well as simple, commonsense notionsoffair play, by
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making prejudicial and foundationlessassertions before the jury disguised as
“questions” and by misleading the jury during closing argument. The
prosecution’s behavior was especially reprehensible since it continued after the
court admonished him to stop. See, Argument [X(C)herein.
As Appellant will develop more fully below, the jury that was impaneled to
consider whetherhe should live or die was also bombarded with patently improper
and gravely prejudicial remarks by the prosecutor, including a wholly gratuitous
disclosure that the jury that convicted Appellant of the Delbecq murder did not
have the discretion to impose a death verdict. Although Appellant need not prove
bad intent to receive a reversal, the defense asks the court to view the arguments
below against the backdrop of improperly argumentative questions that peppered
the penalty phase, despite the trial court’s intervention.
The prosecutor asked its expert witness to offer an opinion whether
Appellant was “blacked out” during the crimes whenthetrial court expressly
prohibited him from doing so. The prosecutor asked a defense witness who had a
history of substance abuse whyhe neverkilled anyone. The objection was
sustained. (R.T. 5830 — R.T. 5831.) The prosecutor asked the defense psychiatrist
if she determined the consequences of a death verdict on Appellant’s son if he
wereto feel that his attendanceat the penalty phase contributed to the verdict. The
objection was sustained. (R.T. 6176.) The prosecutor repeatedly asked Appellant
329
provocative and argumentative questions about the circumstances under which he
would haveused the “shank”in prison, despite the court’s ruling prohibiting him
from doing so. (R.T. 5507 — R.T. 5509.) He continued to ask Appellant about
other inmates’ substance abusein prison,despite the court ruling not to do so.
(R.T. 5513.) He continued to question witnesses about their knowledge of the law,
despite a court ruling not to do so. (R.T. 6030; R.T. 6192, Line 20 — R.T. 6192,
Line 2.)
B. The Prosecutor Committed Reversible Misconduct When
He Ignored a Trial Court Ruling and Elicited
Inadmissible Expert Testimony that Appellant
Committed the Murders “Intentionally and Voluntarily”
and Lied when heTestified that he Didn’t Recall
Committing those Alleged Crimes
1. Statement of Facts
During the defense opening statement, and during Appellant’s testimony, the
jury wastold that Appellant did not recall committing either murder. (R.T. 5112 —
R.T. 5113; R.T. 5445; R.T. 5459 — R.T. 5457.) Dr. Alex Stalcup generally opined
that a substance-induced blackoutcaused “anterograde amnesia;” that is, from the
*8 It is worth noting that the prosecutor’s improper behavior, despite the court’s repeated attempts to rein him in, was
also on display during the first penalty phase trial that ended in a hung jury. For example,at the first penalty phase,
the Court sustained an objection as to why murders don’t appear to affect defense witnesses. (R.T. 3465 — R.T.
3466.) The prosecutor repeated asked the Appellant “aren’t you saying that yourlife has more value than your
victims?” after objections were sustained. (R.T. 3632, Lines 3 — 11); the prosecutor repeated asked Appellant about
his tattoos, after objections were sustained; the trial court directed him to “cease and desist.” (R.T. 3646, Line 12.)
The court sustained an objection to the prosecutor’s question to a defense witness: “how many murders wouldit
take to change your opinion (of the Appellant)?” (R.T. 3345, Line 23 — R.T. 3346, Line 6.) The court sustained an
objection to the prosecutor’s inquiry of a defense witness if another witness’ testimony was“a lie.” (R.T. 3347,
Line 16.) The court sustained an objection to an inquiry of a defense witness of whether if Appellant committed a
violentact against her family, would it change her opinion that he was a good person. (R.T. 3418, Lines 13 - 20.)
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time of the onset of the intoxication until the time its affect dissipated, an
individual’s memory did not record any events that transpired. (R.T. 5576 — R.T.
5577.)
The prosecution proposed to call Dr. Park Dietz as a rebuttal witness to
testify that Appellant wasnot in a blackoutand established that the motivation for
the murders was sexual sadism. (R.T. 6300, Lines 1 — 11.) The defensefiled
written objections to the proposed testimony. (C.T. 1525 —C.T. 1590.) In sum,
the defense argued that the proposed testimony was (1) improper rebuttal because
the defense had notintroduced opinion testimony that Appellant was “blacked-out”
during the crimes (C.T. 1532),°’ (2) improper becauseit lacked foundation, since |
the jury did not need the assistance of an expert to determine whether Appellant
was in a blacked-out state (C.T. 1535 — Lines 17 — 23), and(3) inadmissible under
Section 352 of the Evidence Code. (C.T. 1542, Lines 2 —-11; R.T. 6302, Lines 5 —
21; R.T. 6306.)
The court made a preliminary ruling that Dr. Dietz could offer expert
opinion to rebut the defense that Appellant was not in a blackout during the crime.
°° Defense counsel’stactical decision to omit the presentation of Dr. Ervin’s expert testimony onthis issue to
forestall Dr. Dietz’s testimony in rebuttal was explained to the Court in camera before the trial began. (R.T. 4425 —
R.T. 4428.)
f 33]
(R.T. 6309 — R.T. 6312.) Dr. Dietz then testified in a so-called “402 hearing.”
(R.T. 6312 — R.T. 6325.) The court then ruled that Dr. Dietz could testify that an
individual “would have known whathe was doing” during the commission of the
murders. (R.T. 6326, Lines 2 — 25.) The court clarified that Dr. Dietz could only
offer an opinion “generally” that during a blackoutstate an individual would have
present memoryandthat acts would be conscious,intentional choices; a specific
opinion that Appellant was acting voluntarily and intentionally, based upon his
review of the case, was improper rebuttal. (R.T. 6327, Lines 9 — 22.)
Dr. Dietz then testified before the jury that an alcoholic who commits
homicides, andis in a true “blacked-outstate, acts intentionally and voluntarily,
but simply lacks any long-term memoryof his behavior.” (R.T 6343.) In violation
of the limits demarcated bythe trial court, the prosecution then elicited from the
witness his opinion that Appellant did not suffer a blackout and that in the Maui
homicide, when he placed a comforter over the window,he knew what he was
doing was wrong and wastrying to hide it from the outside world. (R.T. 6344,
Lines 6 — 23.) The court sustained a defense objection to the question which asked
Dr. Dietz to describe the evidence upon whichhis opinion wasbased. (R.T. 6344,
Line 24 — R.T. 6345, Line 17.)
2. Dr. Dietz’ Testimony that Appellant was not
in a Blackout State was Admitted in Violation
of State Law, as well as the Trial Court’s
Ruling
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As noted above,after lengthy arguments, legal briefing, and an evidentiary
hearing specifically designed to identify the limits of Dr. Dietz’ expert rebuttal
testimony, the court ruled that he could opine — in the abstract — that an individual
in an alcoholic blackout could act intentionally and voluntarily. Upon a defense
request, the court specified that Dr. Dietz could not offer an opinion whether
Appellant was “blacked-out” during the crimes. No defense expert gave such an
opinion regarding Appellant’s mental state during the commissionofthe alleged
crimes. The court ruled that for Dr. Dietz to do so would be improperrebuttal.
(R.T. 6327, Lines 20 — 22.) A few momentslater, the prosecution elicited Dr.
Dietz’ opinion that Appellant did not suffer a blackout, in open disregard of the
court’s earlier ruling.
3. Admissionof Dr. Dietz’ Improper Opinion
Violated Appellant’s Federal Constitutional
Rights to a Fair Trial and a Heightened
Reliability of the Determination of Penalty
Underthe Fifth, Sixth, Eighth and Fourteenth
Amendments and a New Trial Must be Granted
as a Consequence
The prosecutor well-knew that Appellant’s testimony that he did not
remember the commission of the crimes wasa keyto his mitigation defense:
“Mr. Brent So, I mean, the defense, in essence,is trying to slow
because heis in a blackoutstate, you know,he can’t — I
guess he can’t feel the adequate amount of remorse
because he has no memoryofit. He can’t be cross-
© As noted in pages 237 — 238 and 330 - 333ofthe brief, the prosecution’s disregard of the trial court’s evidentiary
rulings, to the prejudice of Appellant’s right to a fair trial, was unfortunately all too common.
333
examined about the crimes because he has no memory of
it. I am trying to showthatthatis nottrue.”
(R.T. 6311.)
Nevertheless, the prosecutor made extensive use of Dr. Dietz’ impermissible
testimony during his closing argument. (R.T. 6385 — R.T. 6386; R.T. 6388 - R.T.
6394.) Indeed, during his closing argumenthe specifically quoted Dr. Dietz’
testimony that Robert Edwards did not suffer a blackout to exhort the jury to
disregard Appellant’s testimony abouthis addiction and feelings of remorse. (R.T.
6394, Lines 15 — 16.) Based uponthis testimony, the prosecutor went on to argue:
“Okay, so that being the case, that being the
undisputed evidence, then, you know,then one
wonders how much weightthis evidence of
addiction or whetheror not the defendant wasina
blackout, what it can have, how muchevidenceit
can have, other than maybeonething,and that.
would beif the defendant really was in the
blackout and doesn’t rememberit. Andif he really
doesn’t rememberit. And if he really doesn’t, then
maybeits hardfor him to say I am sorry. Right?
Maybethat’s all there is. May that’s all thereis.”
(R.T. 6394, Lines 15 — 26.)
The prosecutor continued to exploit Dr. Dietz’ improperly admitted opinion to
inflame the jury by branding Appellant as “this monster whosays I don’t
remember”and to deride the misplacedloyalty of his friends and family who
credited his explanation andtestified on his behalf as a result. (R.T. 6412.)
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Oneneed notspeculate about the impact upon the jury’s deliberation of
expert opinionthat, in effect, Appellant was a liar. Dr. Dietz testified that
Appellant was not “blacked out’ only a few moments before the closing argument
began. This court has held that the purpose ofrestricting rebuttal testimony “‘is to
ensure an orderly presentation of evidence so that the trier of fact will not be
confused; to prevent a party from unduly magnifying certain evidence by
dramatically introducingit late in trial; and to avoid any unfair surprise that may
result when a party thinks he has met his opponent’s case and is suddenly
confronted at the end ofthe trial with an additional piece of crucial evidence.”
(People v. Brown (Andrew) (2003) 31 Cal.4"" 518, 579, cert. denied, (2004) 54]
U.S. 1041.) Nevertheless, the prosecutor’s decision to violate the court order did
just that; the improperly elicited expert opinion wasstill ringing in the jury’s ears
as the prosecution usedit as the keystone of his emotional plea for the death
verdict. The jury called for the expert’s testimony to be re-read. (C.T. 1605.) The
defense specifically objected to a re-read of that portion of the expert testimony
that Appellant had not suffered a blackout; the objection was improperly overruled
and the testimony was read, compoundingthe prejudice. (R.T. 6515 —R.T. 6516.)
The nextday, a death verdict was returned. (R.T. 6519.)
The death judgment for Appellant was returned in a penaltyretrial, after the
original jury became hopelessly deadlocked during its deliberationsat the first
335
penalty phase. Both parties substantially altered the presentation of their evidence
at the second penalty. At the first penalty phase, Appellant himself offered the
opinions of two highly qualified health professionals that he was in a blackoutstate
at the time he committed the homicides (Dr. Emest Klatte: R.T. 3760 — Line 11 —
R.T. 3761, Line 12; Dr. Frank Ervin: R.T. 3824, Line 24, - R.T. 3830, Line 25.)
These opinions were unrebutted by any expert testimony from the prosecution at
the first penalty phase. By contrast, at the second penalty phase, the defense did
not present expert opinion on the matter of whether the Appellant was “blacked-
out,” reasoning that the prosecution could not introduce rebuttal testimony to the
contrary. (R.T. 4425 - R.T. 4427.) Nevertheless, the prosecution introduced such
evidence contrary to the court’s ruling. The significance that a prosecutorassigns
to erroneously admitted evidence provides a recognized measure for assessing the
evidence’s prejudicial impact. (See, e.g., People v. Minifie (1996) 13 Cal.4" 1055,
1071, 1072; People v. Patino (1984) 160 Cal.App.3d 986, 994 (no prejudice where
prosecution does not dwell upon the evidence improper admitted).)
Asset forth above, the prosecution used Dr. Dietz opinion to devastating
effect during its closing argument. The prosecution’s revised strategy in the
penalty re-trial was effective, resulting in a death judgment. This successis strong
indication of the prejudicial impact of the improperly admitted evidence. This
court has recognized that where certain evidence is not admitted in onetrial, and
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subsequently introduced during a secondtrial where a different verdict results, the
prejudicial nature of the error is demonstrated almostto a certainty. (See, People v.
Kelly, supra, 66 Cal.2d 232, 245; People v. Taylor (1986) 180 Cal.App.3d 622,
634.)
The record in this case is distinguishable from that considered in Ramirez.
There, this court held that there is no reasonable possibility that the error could
have affected the judgmentin that case because (1) the inadmissible rebuttal
evidence wasrelatively inaccurate; (2) the court’s instruction to the jury minimized
the possibility that it would be considered as an aggravating circumstance and (3)
the prosecution did not dwell on the evidence during closing argument. (Jd. at
1193 — 1194.) Here, as set forth above, the prosecution did everything that it could
to rivet the jury’s attention on the opinion that he improperly elicited; there were
no prophylactic instructions to isolate Appellant from the improperattack. It is
evident that the jury considered the improper testimony from its request to have it
specifically read back. Forall the foregoing reasons, the judgment of death must
be reversed.
C. The Prosecution Committed Reversible Misconduct by
Explicitly Telling the Jury that He Had Undisclosed
knowledge of Appellant’s Guilt
It is well settled that a prosecutor may not even imply that the People have
evidence of guilt to which the jury is not privy; to do so is misconduct. People v.
337
Hill, supra, 17 Cal.4" 800, 828 — 829; see, People v. Valdez, supra, 32 Cal.4" 73.)
Here, the prosecutor did not imply that he had undisclosed evidence of the
Appellant’s guilt; he expressly asserted it. During his opening statementin the
second penalty phase, the prosecutortold the jury:
“Tam not going to retry, as I mentioned to yourfolks
early on, I am not goingto retry the guilt phase of this
case. And you have acceptedthat he has been proven
guilty. I am not going to bring in every bit of evidence.
But I don’t wantto mislead you either, and I won’t do
that. So although I am notbringingin all the evidence,
I am not goingto tell you that there was something
there that wasn’t or leave you with the inference. I
don’t want youto infer that either becauseall those
years I mentioned to you that case was unsolved.”
(R.T. 5103, Lines 6 — 16.)
The prosecutor’s attempt to qualify his repeated assertions of unrepresented
evidence was nonsensical and ineffective. A prosecutor cannotinsulate his
improper behavior from appellate review by telling the jury that there is
unrepresented evidence then explain (“for the record’’) that he hasn’t invited the
trier of fact to consider that plainly improper representation. Indeed, the
prosecutor’s very attempt to mischaracterize his explicit statement of secret
knowledge betokenshis recognition that he had just made an improperandhighly
prejudicial remark to the jury. This assertion of secret knowledge is far more
blatant than that found to be misconduct in Hill. There, this court found that the
prosecutor’s implication that she could have had an expert analyze blood found at
338
the murder scene to be misconduct. This is not a case where the prosecution
simply made permissible inferences from the record. (See, People v. Valdez,
supra, 32 Cal.4" 73, 133 — 134, where there wasnoerror for the prosecutorto
argue that the mitigation testimony of defendant’s relatives was unconvincing
since they onlytestified out of “family commitment.”) Rather, the express
representation that the jury would only receive a fraction of the prosecution’s guilt
phase evidence against Appellant violated his Fifth, Eighth and Fourteenth
Amendmentrights to a fair and reliable verdict by diminishing its sense of
responsibility and thus “skew(ing) the jury’s decision towards imposing the death
verdict.” (People v. Valdez, supra, 32 Cal.4" 73, 134, citing, Cadwell v.
Mississippi (1985) 472 U.S. 320; Beck v. Alabama, supra, 447 U.S. 625.)
D. The Prosecutor Committed Reversible Misconduct by
Telling the jury that Appellant Could Not Have Received
the Death Penalty in Hawaii for the Murder of Muriel
Delbecq Because the Law Prohibitedit
| A substantial portionof the People’s penalty phase evidence detailed
Appellant’s murder of Muriel Delbecq in Hawaii. (R.T. 5287 — R.T. 5356.) The
penalty phase jury was also aware that Appellant had been convicted in Hawaii of
this murder. (R.T. 5371.) The prosecution relied upon this evidence to
characterize Appellant to the jury as a “monster” and urge his execution. (R.T.
6411 —R.T 6412.)
339
Duringits penalty phase case, the prosecution did not seek to introduce
evidence that, under Hawaiian law,the jury that convicted Appellant did not have
the discretion to impose the death verdict. The reason is obvious. It is an
inadmissible circumstance in aggravation. Nevertheless, during its cross
examination of a defense witness from Hawaii about his conviction for vehicular
manslaughter, the following exchange tookplace:
“Q (Mr. Brent)
A
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Mr. Severin
The Court
Mr. Brent
What were youin for?
Vehicular manslaughter.
So that means you killed somebody while you were
drunk, right?
Yeah.
Do you know?
Yes.
Andthat’s a felony, right?
Yes,it is.
And you only spent six monthsor so in jail?
Yes.
There is no death penalty in Hawaii, is there?
Objection,irrelevant.
Sustained.
That’s it.”
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(R.T. 6030, Lines 8 ~ 21.)
The prosecutor could not have had a goodfaith belief that his disclosure to the
jury, disguised as a “question,” could haveelicited an admissible response. To
begin with, the inquiry of whether Hawaii had the death penalty had no relevance
to the credibility of the defense witness. The prosecution had no goodfaith basis
to believe that the lay witness had any knowledge about whethercapital
punishmentwasa sentencing option in Hawaii. The prosecutor’s question was an
obvious pretext to bring an inadmissible matter to the jury’s attention.”’ His
decision to do so was especially reprehensible since defense counsel had expressly
warnedhim andthetrial court of the danger that the jury would improperly seek to
punish Appellant for the commission of the Hawaii homicide. (R.T. 3994.) Itis
indisputable that the only purpose for asking this “question” wasto alert the jury to
the fact that their brethren in Hawaii were not empoweredto impose the death
penalty, no matter how deserving they may have thought Appellantto receiveit. It
is likewise indisputable that the intent, and the inexorable fact, of this disclosure
wasto incite the penalty phase jury to imposethat verdict, based upon the
unspoken argumentthat they must “make up”for the jury’s inability to do so in
Hawaii.
s Compare, People v. Clark, where this court held that a defendant’s knowledge of the California law regarding
mandatory re-trials of deadlock capital penalty phase proceedings wasrelevant to impeach his testimony on direct
examination. ((1990) 50 Cal.3d 583, 630.)
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E. The Prosecutor Committed Reversible Misconduct by
Impermissibly Inflammatory Remarks about Appellant’s
Character and Future Dangerousness during Closing
Argument
A prosecutoris allowed to make vigorous arguments and mayuseepithets as
warranted by the evidence, as long as those arguments are not inflammatory, and
not principally aimed at arousing the passion or prejudice of the jury. (People v.
Haskett, supra, 30 Cal.3d 841, 864.) Nevertheless, during his closing argument,
the prosecutor repeatedly referred to Appellant as a “monster” and “an animal” and
urged them to considerthe sufferings of his “vulnerable and weak” victims who
“couldn’t fight back” and “couldn’t plead properly for mercy.” (R.T. 6407, Line 7
—R.T. 6416, Line 12.) The demandforthe jury to consider the victim’s suffering
wasrelentlessly and explicitedly detailed during the prosecutor’s closing address
as he described her bindings, wounds and imaginedsufferings and humiliations.
The lengthy tirade culminated with the following appeal to the jury:
“What happened? So what happensduringthis
murder? Is it quick, defendant seeing the victim
and ‘I don’t like you’ and pulling a gun and
shooting her and that’s it? As awful as that would
have been, wasit that merciful? Or does he,in fact,
engage in toying with his prize? Almost a cat and
mousesituation where he begins a — J don’t know —
I wantto say a night ofterror.
(R.T. 6408 — Lines 16 — 22.)
* * *
342
She did nothing to deserve nothing what happened
to her, nothing. And before he thrust his mousse
can deep throughher vagina, up into her
abdominal cavity — can any of us conceive the
unimaginable terror of this? No we can’t. But
please don’t hold that against the memoryof these
victims. Do your best to imagineit as your
determining this penalty. We can’t but giveit a
show, would you? This terror beyond
comprehension.It is, its unimaginableterror, is it
not.
(R.T. 6410, Lines 10 — 18.)
* * *
She wasn’t your daughter. She wasn’t your
mother. She wasn’t you. But she was a human
being. She deserved for this defendant to make a
different choice. She did nothing to invite or
encourage this murderer to comeinto herlife. She
did nothing. She was not given a penalty phase.
She wasnotallowed to present mitigating
evidence. Whetheror not she pled and begged for
mercy, we’ll never know,butif she did, her pleas
were unanswered. She was shown no sympathy
whatsoever. He showed Marjorie Deeble no
sympathy. He brutally raped and murdered herin
such fashionto satisfy his sadistic desires. To feel
better himself. To make himself feel good and
pleasure, he did the things to her he did. Heleft
her dying like to much garbage.”
(R.T. 6415, Lines 4 - 17.)
The prosecutor’s characterization of Appellant as a monster and his appeal
to the jury aboutthe victim’s pleas for mercy “that might have been made”cannot
be construed as anything other than arguments principally aimed at arousing the
343
passionsof the jury. While the Haskett opinion allowed that some assessmentof
the offense from the victim’s point of view may be permissible to evaluate the
nature of the charged offense, it cautioned that “the jury mustface its obligation
soberly and rationally.... Inflammatory rhetoric that diverts the jury’s attention
from its proper role or invites an emotional, purely subjective response should be
curtailed. (Id. at 864.) Here, the prosecutor’s lengthy and emotional exhortation
far exceed anything previously approved by this Court. (Compare, People v.
Wash, (1993) 6 Cal.4" 215, 263, cert. denied, (1994) 513 U.S. 836, imagine the
victim thinking of her family.) The prosecutor’s performance was sui generis,
combininga lurid recitation of the victims’ injuries with an invitation to speculate
on whetherthey pled for mercy during an “almost cat and mouse”nightofterror.
It culminated in a cry that Robert Edwards was a “monster” wholeft his helpless
victims “like so much garbage.” Such imagery was not anchored in evidence, but
can only be seen as a relentless and impermissible appeal to the passions of the
jury.
The characterization of Appellant as less than human also exceeds the
boundaries of evidence-based epitaphsthat are not principally designed to inflame
the jury. (Compare, People v. Pensinger, supra, 52 Cal.3d 1210, where the term
“perverted maniac” was held not to exceed the boundaries of proper argument.)
This court has never approvedthe repeated denigration of a defendant as a
344
“monster” or an animal. The characterization of Appellant as sub-human
improperly seeksto lighten the jury’s sense of responsibility in deciding whetherto
impose death on a fellow humanbeing.
The prosecutor also committed reversible misconduct whenhe urged the
jury to consider Appellant's future dangerousness:
“Can you, ladies and gentlemen, as representative of
the community, as conscience of this community,
can you take a chancethat this defendantis not
going to use a weapon when he wants to? That he’s
going to kill some innocent guard; that he’s going to
kill some innocent, frankly, inmate. Can you take
that chance with this man? Because by giving him
life without parole, you are. You would give him
that freedom of choice, and he doesn’t deserveit any
longer. And that’s why this evidence is so powerful.
I am sorry that it happened this way. And I’m going
to tell you, in a certain sense, he forces your hand
with this. He’s trying to force little bit to
determine who’s goingto raise his son. Nut he
forces your hand little bit here, too. He is a
danger. He is a danger to prison. He shouldn’t be
allowed to‘have the chancesto kill somebodythere.
You can’t believe that he would only use this when
he is attacked. You can’t believe that. You can’t
believe that he could prevent a weaponsuchasthis
from getting into someone’s hands. You can’t take
that chance. I submit to you,as sad asit is, he seals
his fate when he starts manufacturing weapons in
prison.”
(R.T. 6405, Line 5 — R.T. 6406, Line 1.)
®In People v. San Nichols, the prosecutorreferred to the defendantas “that animal” and as a “base individual.”
This court commented that even if the epitaphs “crossed the line in prosecutorial misconduct,” Appellant’s failure to
object precluded review. (2004) 34 Cal.4" 614, 666, cert. denied, (2005) 126 S.Ct. 46.)
345
This court has held that a prosecutor maynot argue future dangerousness unless
there is sufficient evidence in the record to support this statement. (People v.
Brown (Andrew), supra, 31 Cal.4" 518, 533, citing, People v. Hughey (1987) 194
Cal.App.3d 1383, 1396.) Thus, in Hughey, the appellate court found no
misconduct when a prosecutor asked the jury whetherit wanted the case in the
future where the victim was deadsince the evidence showedthat the defendant
threatenedto kill the victim of his assault and their three-month-old daughter.
Here, although the evidence suggested that Appellant had access to a homemade
weaponin prison for the purpose ofself-defense, there was utterly no evidence to
support a reasonable conclusion that he posed a danger of an unprovoked assault
on prison guardsor inmatesif his life was spared. On the contrary, the evidence at
the penalty phase from prison guardsin California and Hawaii, as well as former
inmates, unanimously agreed that he was a peaceable and positive force in the
institutions to which he. was sentenced. He wasusually respectful to correctional
officers; he had no disciplinary infractions for acts of violence; when presented
with an opportunity to join an escape attempt, he declined to do so. (R.T. 5798 —
R.T. 5830.)
Finally, while proof the bad faith is not a prerequisite for reversal, it is
nonetheless worth noting that the prosecutor should have been especially mindful
of the danger which unsupportedallegations of future dangerousness posed to a
346
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fair trial. During the guilt phase jury selection, the court removed prison guard
Randy Bethod from potential juror service and admonished the remaining panel,
based upon his commentaboutthe potential danger which inmatespose to
correctional officers. (See, ArgumentII, herein.) The prosecutor’s lack of good
faith and fair dealing is further demonstrated by his concéssionto the trial court
that the defense was “clearly within its rights to argue lingering doubt the jury and
his later demand to that same jury to disregard any claim that “Mr. Edwards was
not the killer of Marjorie Deeble” as “shameful.” (R.T. 6274; R.T. 6359.)
F. The Issueis Preserved for Review and the Cumulative
Impact of Misconduct Compels Reversal of the Death
Verdict
In order to be prejudicial, “prosecutorial misconduct must bear a reasonable
possibility of influencing the penalty verdict.” (People v. Farnam, supra, 28
Cal.4" 107, 200.) Evenif no objections are made to the misconduct, appellate
review would not be foreclosed if the objection would have been futile and an
admonition would not have cured the harm caused by the misconduct. (People v.
Hill, supra, 17 Cal.4" 800, 820 — 822.)
Appellant contendsthat, as in Hill, the gravity and repetition of misconduct
preserves the issue for review, notwithstanding trial counsel’s failure to interpose
timely objections to each and every instance. The prosecutor’s explicit
representation that he had had undisclosed evidence of Appellant’s criminal
347
conduct, his indefensible disclosure that thejury in Hawaii could not have imposed
the death penalty even if it wanted to, and his baseless argument that Appellant
posed a danger to guards and inmatesalike if his life was spared “createda trial
atmosphere so poisonousthat (defense counsel) was thrust upon the hornsof a
dilemma.” (Jd. at 831.) he could continue to object, creating a dangerthat the jury
would view him as obstructionist, or remain silent and expose Appellant to the
consequences. Asset forth above,it is noteworthy that even when defense counsel
did object to the prosecutor’s behavior, and the court did sustain these objections,
the prosecutor continued to pursue the same improper conduct. Thus, objection
were futile both because the prosecutor ignored them and because the conduct was
so fundamentally damaging that an admonition would not have resurrected a fair
trial. The bell simply could not be unrung.
The cumulative impact of the misconduct was not harmless. Asthe
prosecutor acknowledged during his closing addressto the jury,” the defense
introduced a substantial amountof mitigating evidence. The evidence was wide-
ranging and compelling. It included unrebutted lay and expert testimony about
Appellant’s abused childhood and consequent descent into profound addiction.
Numerous witnessestestified that on the evening of Mrs. Delbecq’s homicide,
Appellant was genuinely impaired, both because of substance abuse and because of
6 “The defense called a lot of witnesses.” (R.T. 6354.)
348
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the unexpected death of his pet. Likewise, on the evening of Mrs. Deeble’s
homicide, Appellant was drinking heavily, smoked marijuana and injected
narcotics repeatedly. Correctional officers, family and psychologist all testified
that Appellant would have a meaningful life in prison, both to staff, inmates and
more importantly, to his son, Robby, with whom he had a very strong and positive
relationship. Even with the prosecutor’s thumbonthescales, so to speak, the jury
had difficulty returning a death verdict. Indeed, the first penalty phase was
deadlocked. The secondtook three full days of deliberations to reach a verdict
(April 14 through 16), even though there wasonly eight days of testimony. During
those three days, the jury called for the testimony of Appellant and Dr. Dietz to be
read back. (R.T. 6513 —R.T. 6517.) (See, People v. Herring, supra, 20
Cal.App.4" 1066, 1076, wherethis court cited a jury’s inability to reach a verdict
on the most serious offense and its questions to the court as evidenceof reversible
prejudice.) Asin Herring, and as suggested in Hall, the cumulative impactof the
misconductin this case would have overwhelmed any attemptat a curative
instruction. Since the misconductinvolved federal constitutional error, the burden
is in the prosecution to prove beyond a reasonable doubtthat I did not contribute to
the verdict. (Chapmanv. California, supra, 386 U.S. 18; People v. Herring,
supra, 20 Cal.App.4" 1066, 1076.) Under this standard or, indeed, even underthe
lesser standard of People v. Brown (1988) 46 Cal.3d 432,cert. denied, (1989) 489
349
U.S. 1059, the death verdict must be reversed as violations of due process and the
requirementof heightenedreliability in a capital case under the Eighth and
Fourteenth Amendments.“
XVI. THE TRIAL COURT’S ADMISSION OF IRRELEVANT AND
HIGHLY PREJUDICIAL TESTIMONY AND EXHIBITS WAS
CONTRARY TO CALIFORNIA LAW AND IN VIOLATION
OF APPELLANT’S FEDERAL CONSTITUTIONAL RIGHTS
TO DUE PROCESS OF LAW AS WELLAS A HEIGHTENED
RELIABILITY OF THE DETERMINATION OF PENALTY
UNDER AMENDMENTSFIVE, SIX, EIGHT AND FOURTEEN
A. Standard of Review
The United StatesSupreme Court has madeit clear that capital cases require
a higher standard ofreliability for the fact-finding process and an overall
heightened attention to due process and fundamental fairness. (Beck v. Alabama,
supra, 447 U.S. 625.) Accordingly, this court should review de novothetrial
court’s admission of expert and victim impact testimony as well as the admission
of another alleged criminal act. (People v. Gordon (1990) 50 Cal.3d 1223, 1265,
cert. denied, (1991) 499 U.S. 913.) The admission of the evidence below deprived
Robert Edwardsofa state liberty interest due processof law,and a reliable
sentencing determination. (U.S. Const. Amends. V, VIII, XIV, Calif. Const. Art.
* In People v. Brown, this Court reaffirmed the “reasonable possibility” test as the appropriate standard for
assessing the effect of state law error on the penalty phase ofa capital trial: [W]hen faced with a penalty phase error
not amounting to a federal constitutional violation, affirm the judgment unless we concludethere is a “reasonable
possibility that the jury would have rendered a different verdict had the error or errors not occurred.” (/d. at 448.)
350
1, Sections 7, 15, 17 and 24; Hicks v. Oklahoma, supra, 447 U.S. 343, 346. When
a violation of the Constitution occurs in the penalty phase of a capital case, the
reviewing court must proceed with special care, Satterwhite v. Texas (1988) 486
U.S. 249, 258. In evaluating the effects of error, the reviewing court does not
consider whether a death sentencewould or could have been reachedin a
hypothetical case wherethe error did not occur, rather, the court mustfind that, in
the particular case, the death sentence was“surely unattributable to error.”
(Sullivan v. Louisiana, supra, 508 U.S. 275, 279.) The prosecution cannotsatisfy
the standard inthis case.
B. The Trial Court Committed Reversible Error WhenIt
Admitted Expert Testimony Regarding “Black-Outs” and
Appellant’s Mental State at the Time of the Homicide’s
as Improper Rebuttal Testimony
1. Introduction
Asset forth in Section XVI(B), the defense made a comprehensive and
timely objection to the introduction of expert testimony by Dr. Park Dietz,
ostensibly to rebut Appellant’s “black-out” defense. The defense asserted that the
testimony lacked foundation, was improperrebuttal and,finally, that its probative
value outweighedits potential for undue prejudice under Evidence CodeSection
352. The trial court overruled the objections, with exception that the prosecution
could not introduce any specific opinion that Appellant was “blacked out” during
the crimes. Dr. Dietz then testified that a black-out would not“tell us anything
351
about (Appellant’s) mental state at the time of the homicides except that he was
drunk.” (R.T. 6341.) The expert noted for the jury that Appellant’s intoxication
did not prevent him from getting access to the victims, doing things to them and
their property and leaving the scene. He repeated that a “black out” would not
begin until after the commission of the homicidesand did not offset Appellant’s
mental state at the time of their commission. (R.T. 6342.) In the opinion of Dr.
Dietz, “as (Appellant) is committing the homicides,I think it is fair to say that he is
behaving intentionally voluntarily. He knows wherehe is, what he is doing, who
he is with, why he is engaging in each action, what he wants to do next, which
things please him and whichthings don’t. All of those are known to him, and he
also knows whathejust did before that, moments before that. Now, he may not
know what he did give minutes ago or ten minutes ago. He maybein a black out
already for those. But for what he just did and whatheis going to do next,he is |
not in any black outat all. Heis right there in the present tense in the moment
doing as he pleases.” (R.T. 6343, Lines 7 — 20.)
Asset forth in Argument XVI(B), Dr. Dietz concluded his expert testimony
by voicing the very opinion prohibited by the trial court: that Appellant did not
suffer a black-out. (R.T. 6344.)
2. The Expert Testimony was Admitted in
Violation of state Law and Violated
Appellant’s Constitutional Rights to a Fair
Trial and Reliable Sentencing Determination
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Expert opinion testimonyis not admissible under Section 720(a) of the
Evidence Code ofit consists of influences and conclusions which can be drawn as
easily and intelligently by the trier of fact as by the witness. (People v. Hernandez
(1977) 70 Cal.App.2d 271, 280; see, generally, discussion at pages 159 - 162,
infra.) During the colloquy with counsel that preceded the court’s ruling,the trial
court’s specifically noted that you don’t need an expert (to rebut evidence that a
black out occurred.) (R.T.6309 Lines 11 ~16.)° Moreover, since no defense
expert testified that Appellant wasin a black outstate during the crimes, allowing
the prosecution to do so “in rebuttal” is impermissible under People v. Ramirez
(1990) 50 Cal.3d 1158, 1192, cert. denied, (1991) 498 U.S. 1110. There, this court
held that the prosecution’s attempt during the penalty phase of a capital case to
admit evidence of truancy, drug abuse andother juvenile misbehavior was
improper rebuttal since the defense only introduced a numberof adverse
circumstancesthat the defendant
6 Compare, People v. Carpenter (1997) 15 Cal.4" 312, 406, where this court held that an explanation of the term
“personality disorder” was an appropriate subject for expert testimony.
353
experienced; these generally mitigating circumstancesdid not“open the door” for
rebuttal to “all bad character evidencethat the prosecution (could) dredge up.” (/d.
at 1192 — 1193.)
Finally, the probative value of the objectionable testimony under Evidence
Code Section 352 was far outweighed byits potential for undue prejudice. As the
trial court ruled, there was no probative value to an “expert” opinion that Robert
Edward was notin a black outstate since the jurors were capable of drawing that
conclusion for themselves, based upon the evidence. The potential for undue
prejudice was equally obvious: the jurors’ function asthetrier of facts on the issue
of intent was endangered by an impermissible “expert” opinion that Robert
Edwards wasin a conscious and deliberate frame of mindat the time of the
homicide. As set forth below,the prosecutor fully exploited this potential for
prejudice during his closing remarks to the jury. In so doing, Appellant was
deprived ofa state rightin violation of his right to Due Process of Law under the
Fifth and Fourteenth Amendments. (Hicks v. Oklahoma (1980) 477 US.343.)
3. Admission of Dr. Dietz Improper Opinion
Gravely Prejudiced Appellant and Requires a
New Penalty Trial
As detailed in Section XVI(B)(3), Appellant’s testimony that he did not
remember the commission of the crimes wasthe keyto his mitigation defense.
The prosecution made extensive use of the inadmissible opinion testimony to
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exhort the jury to disregard the feelings of remorse that he expressed on the stand
and sentence him to death as “this monster whosays I don’t remember.” (R.T.
6412.) Over a timely defense objection, Dr. Dietz’ testimony wasre-read to the
jury during its deliberations. (R.T. 6515 —R.T. 6516.) It is evident from the
record that Dr. Dietz testimony wasliterally the difference betweenlife and death
for Appellant; his appearanceat the secondtrial transformed a hopelessly
deadlocked jury into unanimouscall for death. For all the foregoing reasons,the
judgmentof death mustbe reversed.
C. The Trial Court Improperly Admitted the Testimony of
Naomi Titus (Nee Linderman)that Four Years after the
Commission of the Charged Offense, Appellant, While
Intoxicated, Woke her up by Trying to Insert a Bottle into
her Vagina and Rectum
1. Statementof Facts
The defense objected to the introduction of testimony by Naomi Titus that
Appellant attempted to insert a bottle into her vagina and rectum. The defense
argued thatit did not constitute “criminal activity ... which involved the use of
355
attempted use of force or violence,” within the meaning of Section 190.3(b) of the
Penal Code. (R.T. 4370 — R.T. 4381.)The court rejected that argument, finding
that the attempted assertion of a bottle, in an unconsenting, sleeping woman was
admissible underthat section. (R.T. 4381, Lines 11 — 17.) The prosecutor then
described the alleged incidentas “an act of malice” during his opening statement
and called Ms. Titus as a witness. (R.T. 5110.) Ms. Titus then testified that she
had a “dating relationship” with Appellant in 1990 on Maui. Although they both
lived together for a time, she eventually kicked him out. Appellant later woke her
up one night, drunk. The witness wentback to sleep, but was awakened later. At
first, Ms. Titus denied that she remembered what wokeher up. In responseto the
prosecutor’s leading inquiry, she eventually alleged that Appellant woke her up by
attempting to assert a bottle into her vagina and rectum. (R.T. 5211 — R.T 5212.)
She wasn’t frightened and didn’t call the police. She angrily ordered Appellant out
of the house. (R.T. 5212.—R.T. 5215.)
2. The Trial Court’s Admission of Appellant’s
Drunken Fumblings Many Years After the
Charged Offense was Against California Law
Section 190.3(b) of the Penal code provides:
“In determining the penalty, the trier of fact shall take into account any one
of the following factors if relevant:
°° This same objection was raised and rejected during the first penalty phase trial. (R.T. 3194 — R.T. 3202.)
356
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The presence of absence of criminal activity by the defendant which
involved the use or attempted use of force or violence or the express or
implied threat to use force or malice.”
This court has held that to admit evidence underthis section requires a rational
trier of fact to be able to find that the activity actually occurred, beyond a
reasonable doubt. (People v. Griffin (2004) 33 Cal.4" 536, 584 — 587.) Thetrial
court has the discretion to exclude particular items of evidence proffered underthis
subsection on the groundthat it might unfairly persuade trier of fact to find that a
defendant engagedin otherviolentactivity. (/d.)
Unlike the testimony considered in Griffin, no rational trier of fact would
have found Ms.Titus’ testimony aboutthe alleged penetration with a bottle to be
true, beyond a reasonable doubt. The testimony was wholly uncorroborated; no
testimony waselicited from Appellantthat the incident ever took place. There was
no contemporary complaint to law enforcementdespite the witnesses’ contention
that Appellant both broke into her house and sexually assaulted her. The witness
had a motive to fabricate the incident’ she was a formergirlfriend and displayed
obviousdistain and anger towards Appellant during her testimony. She did not
rememberthe incident clearly; her eventually allegation that appellant assaulted
her with a bottle came only in responseto the mostleading questions by the
prosecutor. Indeed, the prosecutor later conceded to the jury that her testimony
wasnot very credible. (R.T. 6399, Lines 6 — 14.) This foundation standsin stark
357
contrast to the record in Griffin where this court held that a rationaltrier of fact
could have credited the testimony of the sexual assault because was“detailed,
internally consistent, and not in conflict with any other evidence presented....” (Id.
at 587.)
3. The Improper Admission of the Alleged
- Sexual Assault Violated the Appellant’s Right
to Due Process of Law and Heightened
Reliability of a Penalty Determination Under
the Fifth, Sixth, Eighth and Fourteenth
Amendments to the Federal Constitution
The admission of the alleged sexual assault deprived Appellant of a state
liberty interest, due process of law, and reliable sentencing determination. (U.S.
Const. Amends. V, VII, XIV, Calif. Const. Art. I, Sections 7, 15, 17 and 24; Hicks
vy. Oklahoma, supra, 447 U.S. 343, 346.)
The defense mitigating evidence was designedto establish that Appellant’s
behavior wasa result of years of child abuse and substance addiction. The
prosecution derided the claim. Thefirst portion of his closing argument was
devoted to his assertion that Appellant had a choice of how to behave. (R.T. 6384
—R.T. 6385.) Prosecutor asserted that Appellant was simply a sexual sadist. He
enjoyed hurting and dominating women sexually: “He wants to commit sadistic
acts.” (R.T. 6466 — R.T. 6467.) Appellant was “monster” who“brutally raped and
murdered(his victims) in such a fashionto satisfy his sadistic desires.”” (R.T. 6412
—-R.T. 6413.) He cited Dr. Dietz’ opinion that as Appellant was committing the
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homicides, “he knows ... what he wants to do next, which things please him and
which don’t.” (R.T. 6393, Lines 15 — 17.)
Against his background, the improper admissionof the testimony of Naomi
Titus had a disproportionately prejudicial affect as it was used to punctuate the key
theme of the prosecutions argumentfor a death verdict:
“So (Naomi Titus) just didn’t drop out of the sky.
Weknowthe defendantlikes inserting foreign
objects into the anal and vaginal areas of women.
And here’s an eyewitness whotells us aboutit
because the two dead womencan’t becausehe killed
them.”
(R.T. 6400, Lines 16 — 20.)
The nature of Ms. Titus’ allegations made them especially prejudicial;
Appellant could not call witnesses to rebut conductthat allegedly occurred in
private. (Compare, People v. Koontz (2002) 27 Cal.4™ 1041, 1088, cert. denied,
(2003) 537 U.S. 1117, where this court found that any potential preyudice caused
by the admission of evidenceof other violent acts was reducedbythe factthat
defendant was able to rebutit by calling witnessesto the alleged incident.) Ms.
Titus testimony was not redundant; as set forth above, the prosecutor usedit as
proofthat Appellant sexually assaulted Marjorie Deeble with a foreign objectas
well as proof that appellant was not “blacked out,” but was engaged in a pattern of
*” Asset forth in pages 58 - 62 of the Opening Brief, there was no persuasive evidence that Ms. Deeble was
assaulted with an aerosol canister. This heightened the prejudicial impact of the improperly admitted testimony of
NaomiTitus.
359
sexually sadistic acts which he thoroughly intended, planned and enjoyed.
(Compare, People v. Sapp, supra, 31 Cal.4" 240, 304, where this court found that
the admission of Appellant’s statements that he intendedto kill an individual
caused no possible prejudice because the jury was already aware that he was
responsible for multiple murdersat the time the penalty phaseas tried.) On this
record,it cannot be said that the death sentence was“surely unattributed to error.”
(Chapman v. California (1967) 386 U.S. 18.) Accordingly, judgment of death
must be reversed. (Satterwhite v. Texas, supra, 486 U.S. 249, 258; Sullivan v.
Louisiana, supra, 508 U.S. 275, 279.)
D. The Trial Court Improperly Admitted “Victim Impact
Testimony” in Violation of Appellant’s Fifth, Sixth,
Eighth and Fourteenth AmendmentRights under the
United States Constitution to a Fair Trial and Heightened
Reliability of the Determination of Penalty
1. Statementof Facts
The murder of Marjorie Deeble occurred in 1986, at a time when so-called
victim impact testimony wasinadmissible under People v. Boyd (1985) 38 Cal.3d
762; see, Booth v. Maryland (1987) 482 U.S. 496; People v. Gordon (1990) 50
Cal.3d 1223, re-affirming the rule. The United States Supreme Court changed the
law five years later in Payne v. Tennessee (1991) 501 U.S. 808.
The prosecution introduced emotionally charged victim impact evidenceat
the second penalty phase trial. Marjorie Deeble’s older sister, Lorraine Johnson,
360
testified that she was like a motherto the victim and that Mrs. Deeble was the
youngersister that she always wanted. (R.T. 5264 — R.T. 5267.) Hersister’s
murder made herphysically ill and she received treatment by a traumatherapist as
aresult. (R.T. 5207 — R.T. 5208.) Kathy Valentine testified that she felt guilty
that she contributed to her mother’s death by bringing appellantinto herlife. (R.T.
5244.) When she learned of her mother’s death, “her life stopped momentarily.”
She had just established a friendly relationship with her mother andit was taken
away from her. (R.T. 5241.) Photographs of Mrs. Deeble and her family were
identified by her daughter. (R.T. 5233, R.T. 5237; PX 20 — 27; PX 48.) Following
Kathy Valentine’s testimony, the prosecutor offered the following photographs
into evidence: PX 48 (Mrs. Deeble aroundthe time of the homicide,) PX 22 (Mrs.
Deeble and nine membersof her family,) PX 26 (Mrs. Deeble and Lorraine
Johnson,) and PX 27 (Mrs. Deeble and hersister-in-law.) (R.T. 5365 — R.T. 5367.)
The defense made timely objections to the testimony and exhibit evidence
described above on two grounds. First, the defense arguedthat its admission
violated the Ex Post Facto clause, as construed by Bouie v. City of Columbia
(1964) 378 U.S. 344. (R.T. 5079 — R.T. 5081.) The trial court commentedthatit
was a “good argument,” but ruled that the new rule of evidence was not subject to
the Ex Post Facto Clause, since it was not a “crime, defense or punishment.” (R.T.
5082 — R.T. 5083.) The defense also objected to People’s Exhibit 22, 26 and 27,
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on the groundthat their probative value was substantially outweighed by the
potential for undue prejudice. (R.T. 5224 —R.T. 5229; R.T. 5362; R.T. 5367.)
The court overruled the defense objections, and admitted the photographsalong
with people’s Exhibit 48. (R.T. 5362 — R.T. 5367.)
2. Victim Impact Testimony was Improperly
~ Admitted Underthe Fifth, Sixth, Eighth and
Fourteenth Amendmentsto the United States
Constitution, as well as Analogous Provisions
of the California Constitution
a. The Admission Violated the Ex Post
Facto Clause
As noted elsewherein this Brief,” the United States Supreme Court has held
that judicial options are bound by the Ex Post Facto Clause as well as legislative
acts. (Marks v. United States, supra, 430 U.S. 188, 92.) In Marks, the Supreme
Court held that in a transportation of obscene materials prosecution the Due
Process and the Ex Post Facto Clause prohibited the retroactive application of
Mello v. California, which announced a new standard for isolating pornography
from First Amendmentprotections. Appellant likewise contends that the
introduction of victim impact testimony under Payne v. Tennessee violated those
sameconstitutional rights.
* See, Ex Post Facto claim under ArgumentIII, pertaining to the admission of other crimes evidence under Section
1101(b).
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Thetrial court’s rejection of the Ex Post Facto claim conflicts cases in
United States Supreme Court and elsewhere. In Stogner v. California (2003) 539
U.S. 607, the Supreme Court held that a law enacted after the expiration of a
previously applicable limitations period violated the Clause when it was applied to
revive a previously time-barred prosecution. In so ruling, the Opinion’s reasoning
applies with equal force to this case.
First, the Court noted that the retroactive application of the new limitations
period deprived the defendantof “fair warning.” (/d. at 611.) Here, as defense
counsel argued below,the prevailing law at the time the Deeble homicide was
committed held that victim impact evidence was inadmissible; the change ushered
in by Paynefive years later was unforeseeable. (R.T. 5080.) Second,the new rule
of Paynefalls literally within the categorical descriptions of those applicationsthat
the Supreme Court has identified as prohibited by the clause. Specifically, the
Stogner decision recognized that the Clause traditionally prohibited four
applications, including:
“Every law that alters the legal rules of evidence, and
requiredless, or different testimony, than the law
required at the time of the commission of the offense, in
order to convict the offender.”
(Id. at 612, citing, Calder v. Bull 3 Dal. 386, 390 — 391.)
State v. Metz (1999) 162 Ore.App.448is also instructive. In Metz during the
first penalty phase proceedings, the prosecution introduced victim impact evidence.
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On appeal, the Appellate Court found that the evidence should have been excluded
because existing law only permitted consideration of mitigating evidence. By the
time of the remand, Oregon law had been amendedto permit consideration of
victim impact evidenceandit was, again, admitted at the second penalty phase
proceeding. The Appellate Court reversed and held that the Ex Post Facto Clause
prohibited the application of the new rule, which,“although ostensibly merely a
change in a rule of evidence, actually changed the fundamental nature of the
question the jury was to answer”since it authorized the consideration of
aggravating as well as mitigating evidence. (/d. at 460.) Here, too, the retroactive
application of the rule permitting the consideration of victim impact testimony,
fundamentally changed the nature of the penalty decision that the Edwards jury
had to make.
b. The Admission of Photographsof the
Victim with her Family and the
.--Testimony of Family Members were
Improperly Admitted
Asset forth above, the defense made timely objections to the admission of
Exhibits 22 through 26 and 27, photographs of Mrs. Deeble with her family. The
photographshadlittle probative value since the family members hadtestified about
the impact with her death had upon them,pointedly and withoutrestriction.
(Compare, People v. Griffin, supra, 33 Cal.4" 536, 582, where the introduction of
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oF
crime scene photographsat the penalty phase was approved because they best
demonstrate the circumstancesof the crime.)
People v. Carpenter, supra, 15 Cal.4'" 312, 400,cited by the prosecution
below,is distinguishable. There, although this court acknowledgedthat the
admissibility of the photographs of other victims(e.g., the surviving relatives) was
less clear, it found that the trial court did not abuseits discretion when it allowed
the jury to see them. Here, unlike Carpenter, the surviving relatives were not
anonymous. Twoof them testified before the jury. The photographs of other
family members whodid nottestify and, indeed, whose responsive to Mrs.
Deeble’s death were never even described to the jury by any witness, only served
to inflame the jury with speculative imaginings. The court therefore abusedits
discretion under Section 352 when it admitted them.
Similarly, testimony by Lorraine Johnsonthat she felt like a mother to the
victim, who was the youngersister that she always wanted, and Kathy Valentine’s
feelings that she contributed to her mother’s death by introducing her to Mr.
Edwards,fall outside the parameters of admissible impact testimony. First, victim
impact evidence may demonstrate “the specific harm” caused which would be
relevant “for the jury to assess meaningful and defendant’s moral culpability and
blameworthiness....” (/d. at p. 825.) Second, the prosecution is entitled to balance
mitigating evidence present by the defense. (/bid.) Here, Ms. Valentine’s feeling
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of guilt, and Mrs. Johnson’s metaphysical comparison, neither demonstrate
“specific harm” nor balance any similarly expressed mitigation evidence
introduced bythe defense. The trial court therefore should have excludedit under
Section 352.
Cc. The Admission of Victim Impact
Evidence Unduly Prejudiced Appellant
and Requires a New Trial
The prosecution used the improperly admitted victim impacttestimonyinto
evidence to disadvantage the defense in the most prejudicial way possible: As the
finale to his closing remarksto the jury. (R.T. 6417 — R.T. 6424.) He specifically
drew the jury’s attention to the disputed photographs of Mrs. Deeble and her
family. (R.T. 6424, Lines 2 — 17.) He cited extensively from the transcript of the
testimonies of Kathy Valentine and Lorraine Johnson about the devastating impact
which the murder had upontheir lives. (R.T. 6419 —R.T. 6423.) Emotion must
not “reign over reason at-the penalty phase.” (People v. Haskett (1982) 30 Cal.3d
841, 847.) The death sentence wasnot“surely unattributable”to this error.
(Sullivan v. Louisiana, supra, 508 U.S. 275, 279; Chapmanv. California, supra.)
The death judgment mustbe reversed.
E. The Trial Court Abused its Discretion When it Admitted
Evidence that Appellant was in Possession of a Home-
Made Weaponwhile in Custody on July 8, 1997, Nine
Years after the Commission of the Charged Offense
1. Statement of Facts
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In its second amended notice of evidence in aggravation, the prosecution
identified “the facts and circumstances surrounding the use and possession of a
piece of metal or shank in the Orange County Jail on July 8, 1997.” (C.T. 1256 -
C.T. 1260.) The defense made a timely objection and the matter was briefed
before the beginning of the second phase. (C.T. 1472 — C.T. 1476; R.T. 4776 —
R.T. 4779.) The defense argued that the extenuating circumstances surrounding
the incident (the need for Appellant to protect himself in prison) should cause the
court to exercise its discretion to exclude the incident as outside Section 190.3(b).
The trial court disagreed and denied the defense motion to exclude the incident.
(R.T. 4778 — R.T. 47799; C.T. 1478.)
At the second penalty phase the prosecution called Orange County Shenff
Timothy Martin as a witness. While he was on duty at the Orange County Central
jail on July 8, 1977, Deputy Martin observed Appellant sharpeninga piece of metal
in the shower. A few days before his observation, an incident had occurredin that
showerinvolving serious injury. Appellant had never been disciplined for any
assault while he was in custody at the Orange County Jail. (R.T. 5262 — R.T.
5285.)
While Appellant took the stand on his own behalf, he was extensively cross-
examined about the weapon and acknowledged that he had manufacturedit to
protect himself. (R.T. 5498 — R.T. 5510.) He refused to identify others in prison
367
who helped him make the weapon because he wasafraid ofretaliation. When he
wasdirected to do so bythetrial court, he testified that he didn’t remember who
gave him the metal to manufacture the shank. (R.T. 5498 — R.T. 5499.) During
closing argument, the prosecution arguedat length that Appellant’s possession of
the shank showeredthat he was a continued dangerto others even if sentenced to
life behind bars and that therefore a death verdict was required. (R.T. 6368; R.T.
6401 — R.T. 6406.)
2. The Evidence of Appellant’s Transitory
Possession of the Home-Made Weapon was
Admitted in Violation of California Law and
Federal Rights to Due Process of Law and
Heightened Reliability in Sentencing a
Guaranteed by the Fifth, Eighth and
Fourteenth Amendment
Appellant recognizes that the “availability of an innocent explanation for
criminal activity ... does not make(it) inadmissible. (People v. Mason (1991) 52
Cal.3d 909, 957.) Appellant contends, however,that his case is distinguishable
from those that have admitted evidence of weaponsat the penalty phaseoftrials
under Section 190.3(b) because, unlike those cases” (1) his position of the shank
wastransitory; (2) his spotless disciplinary record in prison wasutterly inconsistent
with any otherfinding that he intendedto useit,if at all, for self defense and not to
®See, e.g., People v. Combs (2004) 34 Cal.4" 821, 860, cert. denied, (2005) 125 S.Ct. 2549; People v. Tuilaepa
(1992) 4 Cal.4"" 569, 589, aff'd, (1994) 512 U.S. 967.
368
engage in criminal activity. Therefore, the court improperly admitted the evidence
and the death verdict must be reversed.
XVILTHE TRIAL COURT VIOLATED APPELLANT’S EIGHTH AND
FOURTEENTH AMENDMENT RIGHTS WHEN IT PREVENTED
HIM FROM INTRODUCING EVIDENCE OF REMORSE AND
MITIGATING VICTIM IMPACT TESTIMONY
A. The Trial Court Prevented Appellant from Introducing
Evidence of Remorse
1. Statement of Facts
In 1993, inmates escaped from a housing area where Appellant was confined
at the Maui Community Correctional Center. The escape was described by two
correctional officers on duty at the time. Sergeant Herbert Aguilar and Sergeant
Robert Morris. (R.T. 5803 — R.T. 5804; R.T. 5814 — R.T. 5815.) Both witnesses
discussed the escape with Appellant and his decision to remain behind; the court
sustained hearsay objections to questions that called for the witnesses to describe
Appellant’s response. (R.T. 5803, Lines 17 — 25; R.T. 5814, Lines 18 — 25.)
The court also repeatedly sustained objections to questions which asked
Father John McAndrew whether Appellant expressed remorse for committing the
homicide, on grounds of hearsay andthat it was cumulative. (R.T. 6132, Line 22 —
R.T. 6133, Line 6.) Finally, the court sustained objections to testimony by William
369
Farmer as to whether Appellant remembered committing the crime on the ground
that it was hearsay andthat it was cumulative. (R.T. 5840, Lines 5 — 21.)
2. The Trial Ended in Concludingthat the
Hearsay Rule Superceded Appellant’s
Constitutional Right to Present Mitigating
Evidence
It is now well established that “the jury in a capital case may not be .
precluded from considering as a mitigating factor any relevant evidence bearing on
defendant’s character, record or offense. (Eddings v. Oklahoma (1981) 455 U.S.
104, 110 — 116, Lockett v. Ohio (1978) 438 U.S. 586, 604 — 608.) Jurors are not
limited to considering statutory mitigating factors. (People v. Thompson (1988)
45 Cal.3d 86, 132.) Indeed, the Eighth Amendment“requires consideration of the
character and record of the individual offender and circumstancesof the particular
offense as a constitutionally indispensable part of the processofinflicting the
penalty of death.” (Woodson v. North Carolina (1976) 428 U.S. 280, 304.) The
high court has consistently maintainedthat in a capital case “the fact finder must
‘have before it all possible relevant information aboutthe individual about whose
fate it must determine’” (Ford v. Wainwright (1986) 477 U.S. 399, 413, quoting
Jurek v. Texas (1976) 428 U.S. 262, 276.)
Appellant’s decision to “do his time” and subject himself to a murdertrial
instead ofjoining other inmatesin their bid for freedom is powerful circumstantial
evidence of remorse; direct expressions of post-conviction remorse to others
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likewise indisputably falls within the Supreme Court’s expansive definition of
admissible mitigation evidence. (See, People v. Jones (2003) 29 Cal.4™ 1229,
1265, cert. denied, 540 U.S. 952, post-conviction remorseis relevant mitigating
evidence.) Finally, the parties and the court agreed that the question of whether
Appellant “blacked out” his memory of the homicide wasa relevant issue for the
jury to decide. Despite the relevancy of this evidence,the trial court apparently
concludedthat the hearsay rule superceded Appellant’s right to introduce such
evidence in mitigation. In this, the trial court wasin error.
In Green vy. Georgia (1979) 442 U.S. 95, the trial court precluded the
defendantfrom introducing penalty phase mitigation evidence on the groundsthat
testimony was hearsay. Green and co-defendant Moore were separately tried and
convicted of murder. Green soughtto introduce the testimony of a prosecution
witness that he had not been present when the victim was murdered. The trial
court refused to allow the testimony of this evidence, ruling that the witness’s
testimony was inadmissible hearsay. (/d. at 96.) The Supreme Court reversed.
“Regardless of whether the proffered testimony comes within Georgia’s hearsay
rule, underthe facts of this case its exclusion constituted a violation of the Due
Process Clause of the Fourteenth Amendment. The excluded testimony washighly
relevantto the critical issue in the punishment phase ofthe trial ... and substantial
reasons existed to assumeits reliability.” (Zd. at 97.) With the relevance and
371
reliability requirements met, the court went on to hold that the hearsay rule could
not be applied mechanistically to defeat the ends of justice. (Ibid, citing,
Chambersv. Mississippi (1973) 410 U.S. 484, 302.)
This court applied Green in People v. Harris (1984) 36 Cal.3d 36,cert.
denied, California v. Harris 469 U.S. 965, where the defendantwas precluded
from introducing as evidence in mitigation poetry that he had written. The people
arguedthat the poetry was hearsay. The Harris court noted that evidence could
nevertheless be admissible: “In punishmentof a capital case, a defendant’s
proffered evidence must be admittedif it is highly relevant and substantial reasons
exist to assumeits reliability, despite the fact that the evidence is inadmissible
hearsay understate law.” (People v. Harris, supra 36 Cal.3d 36, 70.) The Harris
opinion admitted evidence of the defendant’s poetry under Green and Section 1250
of the Evidence Code even though its relevance was unclear and even in the face of
the well-settled rule that.a defendant may not introduce hearsay evidencefor the
purposeoftestifying while avoiding cross examination. (/d. at 69.)
Here, Appellant testified and the relevancy of the evidence cannot be
doubted. Moreover,the trial court’s conclusion that Appellant’s expression of
remorse to Father John McAndrew andprofessed inability to remember the
commission of the crime were cumulative is unjustifiable in light of its decision to
allow the prosecution to introduce expert testimony from Dr. Dietz in rebuttal that
372
Appellant did not block out his memory of the crime. As previously noted, the
prosecution vigorously attached Appellant for his remorseless murders. (R.T. 6407
—R.T. 6416.) The only issue, then, is whether “substantial reasons existed to
assumeits reliability.” The indicia of reliability surrounding Appellant’s
Statements are as strong as those in Green.
First and foremost, there is no question that Appellant had an opportunity to
escape awaiting trial, and yet chose not to. This indisputable objective facts lead
special weight to Appellant’s expressions of remorse, which otherwise might be
dismissedas self-serving. Likewise, there is no question that Appellant was a
heavy drinkerat the time of the homicide and that the phenomena of a memory
“blackout” truly exists. Anecdotal evidence from Janis Hunt wasalso before the
jury that Appellant suffered such blackouts around the time of the homicides.
(R.T. 5961 — R.T. 5965.) Again, under such circumstances, Appellant’s
protestation that he didnot remember committing the crimes cannot be dismissed
as a convenientfabrication to avoid punishment.
Underthese facts, the rigid and formulistic application of the hearsay rule
“defeated the ends ofjustice.” It denied the Appellanta fair trial on the issue of
punishmentnecessitating that the sentence mustbe vacated. (Green, supra, 44
U.S. at 97.)
B. The Trial Court Prevented Appellant from Introducing
Mitigating Victim Impact Testimony
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1. Statement of Facts
Appellant called Marjorie Deeble’s son, Scott, to testify about how his mother’s
murder impacted him. The following exchange occurred:
“Q
Q
Q (Mr. Brent)
The Court
Q (Mr. Severin)
Q (Mr. Brent)
The Court
In the nearly twelve years since your mother’s death,
have you reflected upon her death and how yourlife has
changedas a result?
Yes.
Whatsort of things have you thought aboutthat is caused
changed in yourlife?
J have learned the big lesson ofthe blessing of grief, in
that I cannot appreciate the ecstasy of my joy if I do not
embrace the depth of mygrief. I have learned the big
lesson in forgiveness.
Whatdo you mean by forgiveness?
Objection, relevance.
Sustained.
Do you feel forgiveness for Mr. Edwards?
Objection, Your Honor, relevance.
Sustained.”
(R.T. 5653, Lines 16 —22.)
The court also struck Scott Deeble’s testimonythat “J am entitled (to
forgiveness) if I don’t deny someoneelse the same” and prevented the defense
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from bringing out that he wastestifying voluntarily, and not in response to a
subpoena. (R.T. 5858.)
2. The Court Erred in Concluding that Scott
Deeble’s Feeling of Forgiveness was an
Inadmissible attempt to Introduce his Opinion
that Appellant Should Not Receive the Death
Penalty
In restricting Scott Deeble’s testimony, the court madeit clear thatit
consideredit as an impermissible attempt to voice an anti-death penalty sentiment:
“J am going to sustain the objection to anything that
soundslike he’s asking this jury not to impose the
death penalty.”
(R.T. 5656, Lines 20 — 22.)
Yet, the tempering of Scott Deeble’s grief by an eventual feeling of forgivenessis
plainly distinguishable from an opinion as to the appropriate punishment. Indeed,
defense counsel represented to the court that it did not know whether the witness
was opposedto capital punishment. (R.T. 5656, Lines 13 — 15.) Thus,the case is
distinguishable from People v. Smith (2003) 30 Cal.4” 581, 622 — 623, cert.
denied, 540 U.S. 1163. There, this court prevented a rape victim from testifying
that a defendant should live, based upon her general views-of the death penalty.
Similary, Mr. Deeble’s testimony pertained to the impact of his mother’s death
upon him, and not the potential impact of Mr. Edward’s execution. (See, People v.
Smith (2005) 35 Cal.4" 334, 367: “(E)videncethat a family memberof friend
375
wants the defendantto live is admissible to the extent it relates to the defendant’s
character, but not if it merely relates to the impact of the execution on the
witness.””) Rather, the excluded testimony outlined in People v. Boyette, supra, 29
Cal.4" 381, which explainedthat victim impact testimonyis part of the
circumstancesof the crimeas it informs the sentence authority about the homicide
the harm caused by the crime. Underthis standard,the cessation ofgrief, orits
moderation, is a relevant consideration, no matter what the cause. The court erred
in preventing the jury from consideringit.
3. The Trial Court Committed Reversible Error by
Infringing Upon Appellant’s Constitutional
Right to Present Mitigating Evidence
This court has recognized that in cases involving the unconstitutional
exclusion of evidence, the United States Supreme Court has reversed “without
discussing a test of prejudice.” (People v. Lucero (1988) 44 Cal.3d 1006, 1031 —
1032, citing Skipper, Eddings, Lockett.) This court concluded, however,that “the
appropriate test to prejudice is ... Chapman v. California...: Underthat test, error
is reversible unless the state proves ‘beyond a reasonable doubt’that the error
complained of did not contribute to the verdict obtained.’” (Lucero, supra, 44
376
Cal.3d at 1032. Accord, People v. McLain (1988) 46 Cal.3d 97, 901, cert. denied,
(1989) 489 U.S. 1072.)”°
The unconstitutional exclusion of direct and circumstantial evidence of
Appellant’s remorse, as well as evidence that Scott Deeble’s grief was not as
unrelenting as that of his sister and aunt, cannot be said, beyond a reasonable
doubt, not to have affected the jury’s verdict. This is especially true in case as
close as the instant case. Appellant’s prison behavior was exceptional, and he
demonstrated compassion andcare for others throughouthis life. He was closely
bondedto his family, particularly his son, Robbie. It is noteworthythat the first
penalty phase jury was unableto reach a death verdict. After it heard and
considered significant portions of the evidence that the trial court excluded at the
second penalty phase. At the first proceeding, Sergeant Morris was permitted to
describe Appellant’s response to his inquiry as to why hedid not join the escape
attempt: he wanted to“do his time.” (R.T. 3593.) Likewise, Father McAndrews
wasallowedto tell the first penalty phase jurythat Appellant did not have a clear
recollection of his crimes, and that he expressed remorse. (R.T. 3897, R.T. 3898;
R.T. 3913.) Under these circumstances, it cannot be said beyond a reasonable
doubtthat had the jury been allowedto hear this and other excluded evidence of
7 Appellantrequests that the court reconsiderthis holding in Lucero and McLain. Appellant believes that the
standard under Skipper and Hitchcock is whether the court can conclude that the excluded evidence would have “no
effect” on the jury.
377
the Appellant’s remorse it would have had no effect upon their verdict.
Appellant’s death sentence must therefore be reversed.
XVIII. THE COURT VIOLATED STATE LAW AND DENIED
APPELLANT HIS FEDERAL CONSTITUTIONAL RIGHTS
UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTTO THE UNITED STATES CONSTITUTION
WHENIT REFUSED JURY INSTRUCTIONS PROPOSED BY
THE DEFENSE
A. The Court Erred when it Refused to Deliver a
“Lingering Doubt”Instruction, Which it Gave in the
First Penalty Phase, where the Jury was Unable to
Unanimously Agree that Appellant Deserved Death
1. Introduction
Atthe first penalty phase, Appellant requested the so-called “lingering doubt
jury instruction. (C.T. 1198.) The court agreed to deliverit, even though the
People objected, arguing that it was unnecessary because the defense had conceded
Appellant’s guilt. (R.T. 3979.) As set forth above, after the jury heard the court’s
instructions, including that pertaining to lingering doubt, it was unable to reach a
unanimousverdict and a mistrial was declared.
At the second penalty phase trial, evidence of “lingering doubt” was
introduced without objection. This included testimony from Sharon Kenz, a senior
forensic specialist for the Orange County Sheriff’s Department, as well as from
Sergeant James Jessen, a retired police sergeant from the Los Alamitos Police
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Department, which established that a quantity of latent fingerprints were found at
the crime scene, but did not belong to Appellant. (R.T. 5598 — R.T. 5631.) At the
close of the evidence, the defense asked for a lingering doubtinstruction, as the
court delivered at the first trial. (R.T. 1629.) The court denied the request, ruling
that the defense was entitled to argue the concept and thatthe jury would be
adequately informedby the court’s instruction on Subsection (k) of Section
190.3." (R.T. 6273, R.T. 6278.)
The defense filed a written motion for the court to reconsiderits ruling.
(C.T. 1591 —C.T. 1593.) The defense argued that fairness required an instruction
on lingering doubt, especially since the prosecution was receiving a “pin point”
instruction victim impact evidence.” The court denied the motion. (R.T. 6297.)
During closing argument, the defense argued that if the jury had a “lingering
residual doubt”it was entitled to consider that doubt as a reason to vote for life
imprisonmentwithout parole, instead of death, citing to the absence of any
1 Subsection (k) reads:
In determining which penalty is to be imposed,“the jury shall consider, taken into account, and be guided by the
following factors, if applicable: any circumstance which extenuates the gravity of the crime even thoughit is not a
legal excuse for the crime.even thoughit is not a legal excuse and any sympathetic or other aspect of the defendant’s
characteror record that the defendantoffers as a basis for a sentence less than death whetheror notrelated to the
offense for which heis on trial.” (R.T. 6493, Lines 20 — 26.)
” The proposed defense instruction read as follows:
“Although the defendant has been found guilty of murderin the first degree, and the
special circumstancesof torture and burglary have been foundto be true, by proof
beyond a reasonable doubt, the jury may demanda greater degreeofcertainty of
guilt for the imposition of the death penalty. It is appropriate to consider in
mitigation any lingering doubt you may have concerning the defendant’s guilt.
Lingering or residual doubtis defined as that state of mind between beyond a
reasonable doubt and beyond all! possible doubt.”
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evidencelinking Appellant to the charged murder as well as the many
dissimilarities between that crime and the murder of Muriel Delbecg many years
later. (R.T. 6456 —R.T. 6464.) Although the court had previously ruled that it was
properfor the jury to consider this defense argument, the prosecutor soughtto
persuadeit that it was not an appropriate consideration:
“There wasa portion of defense case that seemed to
be pointing to this notion that Mr. Edwards wasn’t
really guilty of any crime. That Mr. Edwardsreally
was notthe killer of Marjorie Deeble. And I started
thinking, oh, my gosh, do I have to worry about
that? Do I got to worry there is going to be a juror
up here, who is going to say could I ever vote for
the death penalty? I am not even sure he did it. So
if the defense is trying to do that, shame on them.
As a matter of law, this defendant was convicted
and is guilty of those murders beyond a reasonable
doubt, as a matter of law. Since you can consider
really anything you want to be mitigating, the
defense presents that kind of evidence.”
(R.T. 6359, Lines 6 — 20; emphasis supplied.)
The jury began deliberations on the morning of April 14 After two days of
deliberations, during which the testimony of Appellant and Dr. Park Dietz was
read backto the jury, it reached a unanimousverdict. (R.T. 6513 — R.T. 6520.)
The defense filed a motion for a new trial, based upon the court’s failure to
deliver the lingering doubtinstruction. (C.T. 1790 — C.T. 1883.) In this motion,
and during its argument, the defense pointed outthat a lingering doubtinstruction
(C.T. 1594; C.T. 1596; C.T. 1629.)
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was especially important since the penalty phase jury had not heard the guilt phase
portion of the trial and was therefore unfamiliar with the evidence that supported
the guilt verdict and whatever residual reservationsthe trier of fact may have had
to reach it. (R.T. 6525 — R.T. 6533.) The prosecutor disingenuously replied that
there was noreason to believe thatthe jury didn’t consider the defense’s lingering
doubt argumentas legitimate. (R.T. 6531.) The court ruled that the instruction
wasdiscretionary and denied the motion. (R.T. 6532 — R.T. 6533.)
2. The Trial Court Abused Its Discretion When
It Refused to Deliver the Lingering Doubt
Instruction Since the Prosecution Attempted
to Dissuade the Jury from Even Considering
the Defense Argumentonthis Point
As a preliminary matter, it is important to recognize that the proffered
“lingering doubt” instruction was neither argumentative nor a duplicative pinpoint
instruction. (See, e.g., People v. Brown, supra, Cal.4" 518, 568 — 570, where the
court upheld the refusalof the trial to deliver a special penalty phase instruction on
various aspects of the defense background as argumentative.) Rather, this court
has favorably characterized an instruction to the jury that “the adjudication of guilt
is not infallible and any lingering doubt you entertain on the question of guilt may
be considered by you in determining the appropriate penalty, including the
possibility that at some time in the future, facts may cometo light which have not
yet been discovered.” (People v. Snow (2003) 30 Cal.4" 43, 125, cert. denied, 540
381
U.S. 1076.) Indeed, recent cases have more often addressed the proper formula of
lingering doubt instructions to penalty phase jurors, rather than whetherthe
instruction was improperly denied. (See, e.g., People v. Harrison, supra, 35
Cal.4" 208, 255 — 256; People v. Snow, supra.) Similarly,it is also important to
recognize that arguments of counselare not adequate substitute for proper
instructions by the court. People v. Vann, supra, 12 C.3d 220, 227, n. 6. Finally,
counsel had the right to expect that the instruction would be given as the “law of
the case” and craft its mitigation presentation accordingly. This is especially true
since the trial court acknowledgedbefore the beginning of the second penalty
phasetrial that “lingering doubtis typically an issue.” (R.T. 4385, Line 19.) It is
certainly evident from the record that the defense wasblindsidedbythetrial
court’s decision at the end of the second penalty phase proceeding.
In holding that lingering doubt instruction was unnecessary in the case, the
trial court relied on an argumentraised in Brown; thatis, that the so-called “Factor
(k) Instruction” allowed jurors who had never even considered defendant’s guilt at
a penalty phase “to consider any lingering doubts the juror might have had and/or
reject the death penalty in favor of a life sentence.” (R.T. 6278.) (People v.
Brown,supra, 31 Cal.4" 518, 568.) However, there is one crucial difference
betweenthis record and that considered in Brown. Here, the prosecutorfrustrated
the court’s expectation that the jury would freely and fairly consider the defense
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counsel’s attempt to argue “lingering doubt” by telling the juror that it was a
“shameful” argument. The prosecution did not respond to the lingering doubt
argumentas a legitimate, but factually unsupported, contention by the defense.
Rather, the plain thrust of the prosecution’s closing remarks wasthatlingering
doubt should not be considered at all; it was a “shameful” improper attemptto
subvert the guilt phase findings. The prosecution defenseto freely and fairly ask
the jury to consider the conceptof lingering doubt by arguing that “since you can
considerreally anything you want to be mitigating, the defense presents this kind
of evidence.” As the prosecutor well knew,the court ruled that the could argue
lingering doubt becauseit was potentially an appropriate circumstance which
extenuated the gravity of the crime under Section 190.3(k). The law did not allow
the defense to argue “really anything (it) wanted” as mitigating evidence; the
prosecutor’s suggestion on the contrary wasan invitation to disregard a legitimate
defense argument as amakeweight fantasy. To put in another way,had the court
refused the prosecutor’s “pinpoint” victim impactjury instruction as superfluous
becauseof the factor (k) instruction, it would have been equally improper for the
defense to suggest to the jury that the prosecution’s reliance upon that evidence —
was a “shameful” attempt to inflame the jury’s passion. Thus, underthe
circumstancesin this case, the generalized language of the subsection (k)
instruction did not “adequately convey the concept of lingering doubtin its proper
383
relevanceto the penalty decision; People v. Snow, supra, 30 Cal.4" at 125.”
Rather, the record displays an “appropriate circumstance” where the trial court was
required to give “a requested instruction that pin points a defense theory of the
case.” (People v. Harrison, supra, 35 Cal.4" 208, 235, citing, People v. Bolden,
(2002) 29 Cal.4"" 515, 558; see, also, People v. Roncon-Pineda (1975) 14 Cal.3d
864, 884 — 886.)
3. The Failure to Instruct the Jury on Residual
Doubt Compels a Reversal of the Death
Sentence
The Supreme Court has clearly stated that in capital cases “the fact finder
must have beforeit all possible relevant information about the individual defendant
whosefate it must determine.” (Jurek v. Texas (1976) 428 U.S. 262, 276.) In
Lockheart v. Ohio (1978) 438 U.S. 586, 604, the Court held that the Eighth and
Fourteenth Amendments”require that the sentencer, in all but he rarest kind of
capital case, not be precluded from considering, as a mitigating factor, any aspect
of the defendant’s character or record or circumstancesof the offense that the
defendantproffers as a basis for a sentenceless than death.” (438 U.S. 586.)
Finally, as set forth in another context, Appellant has constitutional rights to
present a defense, heightened reliability and to due process underthe Sixth, Eighth
and Fourteenth Amendments. (Beck v. Alabama, supra; Hicks v. Oklahoma,
supra.
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As the court and prosecution conceded, standing alone, the evidence that
Appellant committed the charged offense was insufficient as a matter of law.
There are manydissimilarities between the manner and meansby whichthe
offense was committed in the commission of the Delbecq murder thousands of
miles away. When presented with these facts, the jury that received the lingering
doubtinstruction could not reach a unanimousverdict. Underthe particular facts
of this case, it is reasonably possible that at least some members ofthe jury
harbored residual or lingering doubts. It therefore cannot be said that the failure to
the requested instruction did not, beyond a reasonable doubt, affect the jury’s
verdict. (Chapman vy. California (1967) 386 U.S. 18, 24.)
B. The Trial Court Committed Per Se Reversible Error
Whenit Failed to Discharge its Duty, Sua Sponte, to
Instruct the Jury that it Cannot Base its Verdict upon
Circumstantial Evidence Unlessit is Consistent with the
Defendant’s Guilt and Cannot be Reconciled with any
other Rational Explanation
1. StatementofFacts
The prosecution and court initially agreed that neither standard instruction
on circumstantial evidence (CALJIC 2.01 or CALJIC 2.02) need be given to the
jury. The defense asked to consider the question further. (R.T. 6259.) Eventually,
the defense requested CALJIC 2.02 because the defendant’s mental state needed to
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~ be proven by circumstantial evidence. (R.T. 6479 — R.T. 6481.) The court agreed
and delivered CALJIC 2.02, but not CALJIC 2.01. (R.T. 6486; C.T. 1637.)”
2. The Court had a Sua Sponte Duty to Deliver
the Omitted Instruction
It is well settled that CALJIC 2.01 or a similar instruction mustbe given by
the court, on itsown motion, where the case rests substantially on circumstantial
evidence. (People v. Yrigoyen (1995) 45 Cal.2d 46, 49; California Jury Instruction
(Criminal) October 2005 Ed., CALJIC 2.01 (use note); Judicial Counsel of
California; General Jury Instructions, Section 224, V.I Page 53 (bench notes.) This
duty applies to the penalty phase instructionsin a capital case. (See, e.g., Peoplev.
Anderson (2001) 25 Cal.4" 543, 581 — 582,cert. denied, (2002) 534 U.S. 1136.)
CALJIC 2.01 and CALJIC 2.02 are alternative instructions. The use note to
CALJIC 2.01 provides, in its pertinent part, as follows: :
“|. . if the only circumstantial evidence relates to
specific intent or mental state, CALJIC 2.02 should
be given. If the circumstantial evidencerelates to
other matters, or relates to other matters as well as
specific intent or mental state, CALJIC 2.01 should
be given and not CALJIC 2.02.” (cases cited.)
Manycaseshas approved the deliver of CALJIC 2.01 over a defendant’s request
for CALJIC 2.02, reasoning that “(b)ecause the more general instruction logically
includes the more specific, and because more than one element here rested on
3 CALJIC 2.01 instructs the jury as to the sufficiency of circumstantial evidence, generally, CALJIC 2.02 limits the
discussion to the sufficiency of circumstantial evidence to prove specific intent or mentalstate.
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circumstantial evidence, the trial court did not commit error by providing only the
more inclusive instruction.” (People v. Cole, supra, 33 Cal.4" 1158, 1222.) Here,
however,the reverse situation is present: the jury was given the narrower
instruction, limited to mental state, rather than the more expansiveinstruction
contained in CALJIC 2.02. Appellant contendsthat this improperelection violated
his right to due process under the Fourteenth Amendmentto the United States
Constitution and his right to a reliable sentence under the Eighth Amendmentto
that Constitution.
Asset forth in the previous argument regarding the failure of the court to
deliver the “lingering doubt”instruction, a substantial portion of the defense
argument was based uponan attempt to persuade the jury that Appellant did not
commit the charged offense as well as other acts attributed to him. (R.T. 6456 —
R.T. 6466.) Although the prosecution improperly sought to denigrate the argument
and prointed to Appellant’s conviction of the offense,“ a substantial portion of the
penalty evidence was devoted to circumstantially establishing the alleged factual
similarities between the charged offense in the Delbecq murder. Accordingly,its
proof was substantially based on circumstantially evidence; the court’s failure to
deliver CALJIC 2.01 violates Appellant’s federal constitutional right to due
process of law, under the Fifth, Eight and Fourteenth Amendments anda reliable
“RT. 6359.
387
determination of the sentence and requires a new trial. (Hicks v. Oklahoma,
supra, 447 U.S. 343, 346; Chapman y. California, supra, 386, U.S. 18, 24.
(Compare, People v. Anderson, supra, 25 Cal.4" 543, 582, where a CALJIC 2.01
wasnot required because the circumstantial evidence merely corroborated direct
eyewitness testimony.)
C. The Court Erred WhenIt Refused to Deliver an
Instruction that Factors (d), (h) and (k) can only be
Considered as Evidence in Mitigation of Punishment
Atthe defense request, the jury was only instructedas to factors (d), (h) and
(k) as evidencethatit “shall consider” in determining the appropriate penalty.
(R.T. 6265 — 6266):
(d) whetheror not the offense was committed while the
defendant was underthe influence of extreme mental or
emotional disturbance;
(h) whether or notat the time of the offense the capacity of
the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect or the
effect of intoxication;
(k) any other circumstances which extenuatesthe gravity of
the crime even thoughit is not a legal excuse for the
crime and any sympathetic or other aspect of the
defendant’s character or record that the defendant offers
as a basis for a sentence less than death whetheror not
related to the offense for which heis on trial.” (R.T.
6493.)
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The defense specifically requested an instruction that these factors could
only be considered as mitigating. (R.T. 6268, Line 8.) Thetrial court deniedit
and,instead, substituted an instruction that “All evidence related to factors (d), (h)
and (k) cannot be considered as aggravating factors.” (R.T. 6494, Lines 1 — 2.)
For the reasonsset forth in Argument XX(C)(7), the trial court’s failure to instruct
that statutory mitigating factors were relevant solely as potential mitigators was
erroneousand precludeda fair, reliable and evenhanded administration of the
capital sanction in violation of Appellant’s Eighth and Fourteenth Amendment
rights. (Woodson v. North Carolina, supra, 428 U.S. 280, 304; Zant v. Stephens,
supra, 462 U.S. 862, 876.)
XIX. THIS COURT SHOULD REVERSE ROBERT EDWARDS
SENTENCE OF DEATH DUE TO THE CUMULATIVE
EFFECT OF THE ERRORSIN THIS CASE
In the proceedingarguments, Robert Edwards has demonstrated that reversal
of his sentence of death is required as a result of the various errors occurring at
trial. However, even if this Court determines that none of the errors warrant
reversal standing along,it is necessary to consider their cumulative impact.
(Taylor v. Kentucky (1978) 436 U.S. 478, 487, fn. 16.) This Court has also held
that the cumulative effect of multiple errors may be so unduly prejudicial that
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reversal is necessary though the prejudice from any oneinstance of error would not
be sufficient standing alone. (People v. Hill, supra, 17 Cal.4" 800.)
The penalty phase of Robert Edwards’trial was dominated bythe unlawful
admission of expert testimony from Dr. Dietz. The prosecutor used his
inadmissible opinion that Robert Edwards consciously intended the murders to
brand Appellantas a liar, as well as a “monster” and an “animal,” and to deride his
blackout defense as a sham. Any hopeof a fair outcome was extinguished when
the prosecutor gratuitously, but with obvious intent, disclosed to the jury that the
handsof its brethren in Hawaii had been tied because the death penalty was
unavailable as a penalty in that state. He therefore urged them to imaginethe
sufferings of the two victims in the most lurid and speculative rhetoric possible in
an obvious, and successful, attempt to make sure that Robert Edwardsdid not,
once again, avoid his “just punishment.”
The defense was hobbledin its efforts to tem the tide of prejudice.
Admissible mitigation evidence from the victim’s family was excluded, which
would have counterbalanced the improperly inflammatory victim impact evidence
admitted against Robert Edwards. Robert Edwards’ ability to argue a defense
routinely raised in virtually every capital case — lingering doubt — wascrippled
whenthetrial court improperly refused to instruct the jury that lingering doubt was
a permissible reason underthe law to vote against death. The importanceofthis
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omitted instruction need not be imagined;it is evident in the record. Thefirst
penalty phase jury that received it could not agree death was an appropriate
sentence; the jury that had the defense withheld from its instructions imposed
death.
The errors in the guilt and penalty phases of Robert Edwards’ capital trial
were tremendously prejudicial because they involved interrelated issues. Each
erroneous evidentiary ruling strengthened the overall presentation of the
prosecution’s theory of the case while simultaneously weakening the defense.
Underthese circumstances, it cannot be said that the errors had “no effect” on at
lease one juror. (Caldwell v. Mississippi, supra, 472 U.S. 320, 341.) The
combined effect of the guilt phase and penalty phase errors was a fundamentally
unfair capital trial. Robert Edwards’ sentence of death must be reversed.
XX. CALIFORNIA’SDEATH PENALTY STATUTE,AS
INTERPRETED BY THIS COURT AND APPLIED AT
APPELLANT’S TRIAL, VIOLATES THE UNITED STATES
CONSTITUTION
Manyfeatures of California’s capital sentencing scheme, alone or in
combination with each other, violate the United States Constitution. Because
challenges to most of these features have been rejected by this Court, Appellant
presents these arguments here in an abbreviated fashion sufficient to alert the Court
39]
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 of the defects
identified below in isolation, without considering their cumulative impact or
addressing the functioning of California’s capital sentencing schemeas a whole.
This analytic approach is constitutionally defective. As the United States Supreme
Court hasstated, “[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,at p.
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 may be so
lacking in other checks onarbitrariness that it would not pass constitutional muster
without such review).
Whenviewed as a-whole, California’s sentencing schemeis so broad inits
definitions of whois eligible for death and so lacking in procedural safeguards that
it fails to provide a meaningful or reliable 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
™In Marsh, the high court considered Kansas’s requirementthat death be imposedif a jury deemed the aggravating
and mitigating circumstancesto be in equipoise and on that basis concluded beyond a reasonable doubtthat the
mitigating circumstances did not outweigh the aggravating circumstances. This was acceptable,in light of the
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sentencing schemesthat are narroweror have other safeguarding mechanisms, may
render California’s scheme unconstitutionalin that it 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 murdererintoits
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
young versusthe fact that the victim wasold, the fact that the victim was killed at
homeversusthe fact that the victim was killed outside the home) — to justify the
imposition of the death penalty. Judicial interpretations have placed the entire
burden of narrowingtheclass of first degree murderers to those most deserving of
death on Penal Code Section 190.2, the “special circumstances” section of the
statute — but that section was specifically passed for the purpose of making every
murderereligible for the death penalty.
There are no safeguards in California during the penalty phase that would
enhancethe reliability of the trial’s outcome. Instead, factual prerequisites to the
imposition of the death penalty are found by jurors who are not instructed on any
burden of proof, and who maynot agree with each otherat all. Paradoxically, the
fact that “death is different” has been stood on its head to mean that procedural
overall! structure of “the Kansas capital sentencing system,” which,as the court noted, “ is dominated by the
presumptionthat Jife imprisonmentis the appropriate sentence for a capital conviction.” (126 S.Ct. at 2527.)
393
protections taken for grantedin trials for lesser criminal offenses are suspended
whenthe question is a finding that is foundational to the imposition of death. The
result is truly a “wanton and freakish” system that randomly chooses amongthe
thousands of murderers in California a few victimsof 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 mustprovide a “meaningful
basis for distinguishing the few cases in which the death penalty is
imposed from the manycasesin whichit is not. (Citations omitted.)”
(People v. Edelbacher (1989) 47 Cal.3d 983, 1023.)
In order to meetthis constitutional mandate, the states must genuinely
narrow,byrational 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 came into being, however, not to narrow those
eligible for the death penalty but to make allmurderers eligible. (See, 1978
Voter’s Pamphlet, p. 34, “Arguments in Favor of Proposition 7".) This initiative
statute was enacted into law as Proposition 7 by its proponents on November7,
1978. At the time of the offense charged against appellant the statute contained
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over twenty special circumstances”° purporting to narrow the categoryoffirst
degree murders to those murders most deserving of the death penalty. These
special circumstances are so numerousand so broadin definition as to encompass
nearly every first-degree murder, per the drafters’ declared intent.
In California, almostall felony-murders are now special circumstancecases,
and felony-murder cases include accidental and unforeseeable deaths, as well as
acts committed in a panic or under the dominionof a mental breakdown,or acts
committed by others. (People v. Dillon (1984) 34 Cal.3d 441.) Section 190.2's
reach has been extendedto virtually all intentional murders by this Court’s
construction of the lying-in-wait special circumstance, which the Court has
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 manyothercategories of special-circumstance murderthatthe statute
now comesclose to achieving its goal of making every murderereligible for death.
The United States Supreme Court has madeit clear that the narrowing
function, as opposedto the selection function, is to be accomplished by the
legislature. The electorate in California and the drafters of the Briggs Initiative
threw down a challenge to the courts by seeking to make every murderereligible
for the death penalty.
The numberof special circumstances has continued to grow and is nowthirty-three.
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This Court should accept that challenge, review the death penalty scheme
currently in effect, and strike it down asso all-inclusive as to guarantee the
arbitrary imposition of the death penalty in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the U.S. Constitution and prevailing international
law.’” (See, Section E ofthis Argument.)
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 almostall features of every murder, even features
squarely at odds with features deemed supportive of death sentencesin othercases,
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 of the crime.” This Court has never applied a limiting
™n a habeaspetition to be filed after the completion of appellate briefing, appellant will present empirical evidence
confirming that section 190.2 as applied, as one would expectgivenits text, fails to genuinely narrow the class of
personseligible for the death penalty. Further, in his habeas petition, appellant will present empirical evidence
demonstrating that, as applied, California’s capital sentencing schemeculls so overbroad a poolofstatutorily death-
eligible defendants that an even smaller percentage of the statutorily death-eligible are sentenced to death than was
the case underthe capital sentencing schemes condemnedin Furman v. Georgia (1972) 408 U.S. 238, 33 L.Ed.2d
346, and thus that California’s sentencing scheme permits an even greater risk of arbitrariness than those schemes
and,like those schemes,is unconstitutional.
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construction to factor (a) other than to agree that an aggravating factor based on the
“circumstancesof the crime” must be some fact beyond the elements of the crime
itself.’ The Court has allowed extraordinary expansions offactor (a), approving
reliance uponit to support aggravating factors based upon the defendant’s having
sought to conceal evidence three weeksafter the crime,” or having had a “hatred
”8 or threatened witnesses after his arrest,*’ or disposed of the victim’sof religion,
body in a mannerthat precluded its 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’s relatives of the prosecution’s theory of how the crime
was committed. (See, e.g., People v. Robinson (2005) 37 Cal.4th 592, 644 - 652,
656 - 657.)
The purposeof section 190.3 is to inform the jury of whatfactors it should
consider in assessing the appropriate penalty. Although factor (a) has survived a
facial Eighth Amendmentchallenge (Tuilaepa v. California (1994) 512 U.S. 967),
it has been used in waysso arbitrary and contradictory as to violate both the federal
guarantee of due processof law and the Eighth Amendment.
8People v. Dyer (1988) 45 Cal.3d 26, 78; People v. Adcox (1988) 47 Cal.3d 207, 270; see also CALJIC No. 8.88
(2006), par. 3.
People v. Walker (1988) 47 Cal.3d 605, 639, fn.10, cert. denied, 494 U.S. 1038 (1990).
People v. Nicolaus (1991) 54 Cal.3d 551, 581-582, cert. denied, 112 S.Ct. 3040 (1992).
*'People v. Hardy (1992) 2 Cal.4th 86, 204, cert. denied, 113 S.Ct. 498.
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Prosecutors throughoutCalifornia have argued that the jury could weigh in
aggravation almost every conceivable circumstance of the crime, even thosethat,
from case to case, reflect starkly opposite circumstances. (Tuilaepa, supra, 512
U.S. at 986 - 990, dis. opn. of Blackmun,J.) Factor (a) is used to embrace facts
which are inevitably present in every homicide. (Ibid.) As a 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’s side of the scale.
In practice, Section 190.3's broad “circumstances of the 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 narrowing principles 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 U.S. 420].)
Viewing section 190.3 in context of howit is actually used, one sees that every fact
without exception that is part of a murder can be an “aggravating circumstance,”
thus emptying that term of any meaning,and allowing arbitrary and capricious
death sentences, in violation of the federal constitution.
C. California’s Death Penalty Statute Contains No
Safeguards To Avoid Arbitrary And Capricious
®°People v. Bittaker (1989) 48 Cal.3d 1046, 1110, cert. denied, (1990) 496 U.S. 931.
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Sentencing And Deprives Defendants Of The 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 shown above, California’s death penalty statute does nothing to narrow
the pool of murderersto those most deserving ofdeath in eitherits “special
circumstances” (Section 190.2) or in its sentencing guidelines (Section 190.3).
Section 190.3(a) allows prosecutors to argue that every feature of a crime that can
be articulated is an acceptable aggravating circumstance, even features that are
mutually exclusive.
Furthermore, there are none of the 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 nothave to find beyond a reasonable doubtthat
aggravating circumstancesare proved, that they outweigh the mitigating
circumstances, or that death is the appropriate penalty. In fact, except as to the
existence of other criminal activity and prior convictions, juries are not instructed
on any burden of proofat all. Not only is inter-case proportionality review not
required; it is not permitted. Underthe rationale that a decision to impose death is
“moral” and “normative,” the fundamental components of reasoned decision-
making that apply to all other parts of the law have been banished from the entire
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process of making 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 Doubtby 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 of All Facts
Essential to the Imposition of a Death Penalty
Was Thereby Violated
Except as to prior criminality, Appellant’s jury was nottold thatit had to
find any aggravating factor true beyond a reasonable doubt. The jurors were not
told that they neededto 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 whetheror not to impose a death
sentence.
All this was consistent with this Court’s previousinterpretations 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];
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Ring v. Arizona (2002) 536 U.S. 584 [hereinafter Ring]; and Blakely v.
Washington (2004) 124 S.Ct. 2531 [hereinafter Blakely].
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, which
authorized a judgesitting without a jury to sentence a defendantto death if there
wasat least one aggravating circumstance and no mitigating circumstances
sufficiently substantial to call for leniency. (/d. at 593.) The court acknowledged
that 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 betweenlife and death, and not elements of the
offense. (Id., at 598.) The court found that in light ofApprendi, Walton no longer
controlled. Any factual finding which increases the possible penalty is the
functional equivalent of an element of the offense, regardless of when it must be
found or what nomenclature is 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 ina
case wherethe sentencing judge was allowed to impose an “exceptional” sentence
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outside the normal range uponthefinding of“substantial and compelling reasons.”
(Blakely v. Washington, supra, 124 S.Ct. at 2535.) Thestate of Washingtonset
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 Supreme Court ruledthat this
procedure wasinvalid becauseit did not comply with the right to a jury trial. (/d. at
2543.)
In reaching this holding, the supreme court stated that the governing rule
since Apprendiis that other than a prior conviction, any fact that increases the
penalty for a crime beyondthe statutory maximum must be submitted to the jury
and found beyond a reasonable doubt; “the relevant “statutory maximum?’is not the
maximum Sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” (Ud. at 2537, 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 preponderanceof the evidence.
Bookerreiterates the Sixth Booker, supra, 543 U.S.at 244.)
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a. In the Wake ofApprendi, Ring, and
Blakely, any Jury Finding Necessary to
the Imposition of Death 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,
exceptas to proofof prior criminality relied upon as an aggravating circumstance —
and even in that context the required finding need not be unanimous. (Peoplev.
Fairbank, supra; see, also, People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty
phase determinationsare “moral and . . . not factual,” and therefore not
“susceptible to a burden-of-proof quantification’’].)
California statutory law and jury instructions, however, do require fact-
finding before the decision to impose death ora lesser sentenceis finally made. As
a prerequisite to the imposition of the death penalty, section 190.3 requires the
“trier of fact” to find that at least one aggravating factor exists and 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 wasread to Appellant’s jury (R.T.
6507,)” an aggravating factor is any fact, condition or event attending the
commission of a crime whichincreasesits guilt or enormity, or addsto its injurious
consequences whichis above and beyondthe elementsofthe crimeitself.”
(CALJIC No. 8.88; emphasis added.)
403
Thus, before the process of weighing 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 whetheror 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 meanthat death is the inevitable verdict; the jury canstill
reject death as the appropriate punishment notwithstanding these factual findings.™
In People v. Anderson (2001) 25 Cal.4th 543, 589, this Court held that since
the maximum penalty for one convicted offirst degree murder with a special
circumstanceis death (see section 190.2(a)), Apprendi does not apply. After Ring,
this Court repeated the same analysis in People v. Snow (2003) 30 Cal.4th 43
[hereinafter Snow], and People v. Prieto (2003) 30 Cal.4th 226 [hereinafter
Prieto]: “Becauseany finding of aggravating factors during the penalty phase does
not ‘increase the penaltyfora crime beyondthe prescribed statutory maximum’
(citation omitted), Ring imposes no new constitutional requirements on
33In Johnsony. State (Nev., 2002) 59 P.3d 450, the Nevada Supreme Court found that undera statute similar to
California’s, the requirement that aggravating factors outweigh mitigating factors was a factual determination, and
therefore “even though Ring expressly abstained from ruling on any ‘Sixth Amendment claim with respect to
mitigating circumstances,’ (fn. omitted) we conclude that Ring requires a jury to makethis finding as well: ‘Ifa
State makes an increase in a defendant’s authorized punishmentcontingent on the finding ofa fact, that fact — no
matter how the State labels it — must be found by a jury beyond a reasonable doubt.’” (/d., 59 P.3d at p. 460)
This Court has held that despite the “shall impose” language of Section 190.3, evenif the jurors determine that
aggravating factors outweigh mitigating factors, they maystill impose a sentence of life in prison. (People v. Allen
(1986) 42 Cal.3d 1222, 1276 - 1277; People v. Brown (Brown I) (1985) 40 Cal.3d 512, 541.)
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California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th at p.
263.)
This holding is based on a truncated view of California law. As section 190,
subd. (a)* indicates, the maximum penalty for any first degree murder conviction
is death.
Arizona advanced precisely the same argumentin 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 orlife
imprisonment, and Ring wastherefore sentenced within the range of punishment
authorized by the jury’s verdict. The Supreme Court squarely rejectedit:
This argument overlooks Apprendi’s instruction that “the
relevant inquiry is one not of form, but of effect.” 530 U.S.at
494, 120 S.Ct. 2348. In effect, “the required finding [of an
aggravated circumstance] expose[d] [Ring] to a greater
punishmentthan that authorized by the jury’s guilty verdict.”
Ibid.; see 200 Ariz., at 279, 25 P.3d, at 1151
(Ring, 124 S.Ct. at 2431.)
In this regard, California’s statute is no different than Arizona’s. Just as
whena defendantis convicted of first-degree murder in Arizona, a California
conviction of first degree murder, even with a finding of one or more special
circumstances,“authorizes a maximum penalty of death only in a formal sense.”
405
(Ring, supra, 530 U.S. at 604.) Section 190, subd. (a) provides that the
punishmentfor first degree murderis 25 years tolife, life without possibility of
parole (““LWOP?”’), or death; the penalty to be applied “shall be determined as
providedin Sections 190.1, 190.2, 190.3, 190.4 and 190.5.”
Neither LWOPnor death can actually be imposed unless the jury finds a
special circumstance (Section 190.2). Death is not an available option unless the
jury makesthe further findings that one or more aggravating circumstances exist
and substantially outweigh the mitigating circumstances. (Section 190.3; CALJIC
8.88 (2006).
It cannot be assumedthat a special circumstancesuffices as the aggravating
circumstance required by Section 190.3. The relevant jury instruction defines an
aggravating circumstanceas a fact, circumstance, or event beyond the elements of
the crimeitself (CALJIC 8.88). This Court has recognized that a particular special
circumstance can even be arguedto the jury as a mitigating circumstance. (See,
People v. Hernandez (2003) 30 Cal.4th 835, 863-864.)
Arizona’sstatute says that the trier of fact shall impose death if the sentencer
finds one or more aggravating circumstances, and no mitigating circumstances
substantial enoughto call for leniency (Ariz. Rev. Stat. Ann. Section 13 - 703(&)),
®Section 190, subd. (a) provides as follows: “Every person guilty of murderin the first degree shall be punished by
death, imprisonmentin the state prison for life without the possibility of parole, or imprisonmentin the state prison
for a term of 25 yearstolife.”
406
while California’s statute providesthat the trier of fact may impose death only if
the aggravating circumstances substantially outweigh the mitigating circumstances
(Section 190.3). There is no meaningful difference between the processes
followed under each scheme.
“If a State makesan increasein a defendant’s authorized punishment
contingent on the finding ofa fact, that fact — no matter how the State labelsit —
must be found by a jury beyond a reasonable doubt.” (Ring, 530 U.S. at 604.) In
Blakely, the high court madeit clear that, as Justice Breyer complainedin dissent,
“a jury mustfind, 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
offendercarried out that crime.” (/d., 124 S.Ct. at 2551; emphasis in original.)
The issue of the Sixth Amendment’s applicability hinges on whetheras a practical
matter, the sentencer must make additional findings during the penalty phase
beforedetermining whether or not the death penalty can be imposed. In California,
as in Arizona, the answeris “Yes.”
A California jury mustfirst decide whether any aggravating circumstances,
as defined by Section 190.3 and the standard penalty phase instructions, exist in the
case before it. Only after this initial factual determination has been made can the
jury move onto weigh those factors against the proffered mitigation. Further, as
noted above, the Arizona Supreme Court has foundthat the statutorily-specified
407
finding asto the relative weightiness of aggravating and mitigating circumstances
is the functional equivalent of an elementof capital 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); Woldtv.
People, 64 P.3d 256 (Colo.2003); Johnsonv. State, 59 P.3d 450 (Nev. 2002); see,
also, Stevenson, The Ultimate Authority on the Ultimate Punishment: The
Requisite Role of the Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126
- 1127.)
No greater interest is ever at stake than in the penalty phase ofa capital case.
(Mongev. California (1998) 524 U.S. 721, 732 [the death penalty is uniquein 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 whichthe legislature
conditions an increase in their maximum punishment. ... The right to
trial by jury guaranteed by the Sixth Amendment would besenselessly
diminished if it encompassedthe fact-finding necessary to increase a
defendant’s sentence by twoyears, but not the fact-finding necessary
to put him to death.
Thelast step of California’s capital sentencing procedure, the decision
whether to imposedeath orlife, is a moral and a normative one. This Court errs
greatly, however,in using this fact to allow the findings that make oneeligible for
death to be uncertain, undefined, and subject to dispute not only as to their
408
significance, but as to their accuracy. This Court’s refusal to accept the
applicability of Ring to the death-eligibility components of California’s penalty
phase violates the Sixth, Eighth, and Fourteenth Amendmentsto the United States
Constitution.
b. The Requirements of Jury Agreement
and Unanimity
This Court “has held that unanimity with respect to aggravating factors is
not required bystatute or as a constitutional procedural safeguard.” (People v.
Taylor (1990) 52 Cal.3d 719, 749; People v. Stanley (2006) 30 Cal.4th 913, 963.)
Consistent with this construction of California’s capital sentencing scheme, no
instruction was given to appellant’s jury requiring jury agreement on any particular
aggravating factor.
Here, there was not even a requirementthat a majority ofjurors agree on any
particular aggravating factor, let alone agree that any particular combination of
aggravating factors warranted the sentence of death. On the instructions and
recordin this case, there is nothing to preclude the possibility that each of 12 jurors
voted for a death sentence based on a perception of what was aggravating enough
to warrant a death penalty that would havelost by a 1 - 11 vote had it been putto
the jury as a reason for the death penalty.
With nothing to guideits decision, there is nothing to suggest the jury
imposed a death sentence based on any agreementon reasonstherefore — including
409
which aggravating factors were in the balance. The absenceofhistorical authority
to support such a practice in sentencing makesit further violative of the Sixth,
Eighth, and Fourteenth Amendments.*° Andit violates the Sixth, Eighth, and
Fourteenth Amendments to imposea death sentence whenthereis no assurance the
jury, ora majority of the jury, ever found a single set of aggravating circumstances
which warranted the death penalty.
The finding of one or more aggravating factors, and the finding that such
factors outweigh mitigating factors, are critical factual findings in California’s
sentencing scheme, and prerequisites to the final deliberative process in which the
ultimate normative determination is made. The United States Supreme Court has
madeclear that such factual findings must be madebya jury and cannot be
attended with fewer procedural protections than decisions of muchless
consequence. (Ring, supra; Blakely, supra.)
These protections-include jury unanimity. The U.S. Supreme Court has held
that the verdict of a six-person jury must be unanimousin orderto “assure. . . [its]
reliability.” (Brown v. Louisiana (1980) 447 U.S. 323, 334 [100 S.Ct. 2214, 65
L.Ed.2d 159].*’) Particularly given the “acute needforreliability in capital
See, e.g., Griffin v. United States (1991) 502 U.S. 46, 51 [112 S.Ct. 466, 116 L.Ed.2d 371] [historical practice
given great weight in constitutionality determination]; Murray’s Lessee v. Hoboken Land and Improvement Co.
(1855) 59 U.S. (18 How.) 272, 276-277 [due process determination informed by historical settled usages].
Ina non-capital context, the high court has upheld the verdict of a twelve memberjury rendered by a vote of 9-3.
(Johnson v. Louisiana (1972) 406 U.S. 356; Apodaca v. Oregon (1972) 406 U.S. 404.) Evenif that level ofjury
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sentencing proceedings” (Mongev. California, supra, 524 USS. at p. 731-732;
accord, Johnson v. Mississippi (1988) 486 U.S. 578, 584), the Sixth, Eighth, and
Fourteenth Amendments are likewise not satisfied by anything less than unanimity
in the crucial findings of a capital jury.
An enhancingallegation in a’California non-capital caseis a finding that
must, by law, be unanimous. (See, e.g., Sections 1158, 1158a.) Capital defendants
are entitled, if anything, to more rigorous protections than those afforded non-
capital defendants (see, Monge v. California, supra, 524 U.S.at p. 732; Harmelin
v. Michigan (1991) 501 U.S. 957, 994), and certainly no less (Ring, 122 S.Ct. at p.
2443).*8 See, Section D, post.
Jury unanimity was deemedsuch anintegral part of criminal jurisprudence
by the Framersof the California Constitution that the requirement did not even
have to be directly stated.’ To apply the requirementto findings carrying a
maximum punishment ofone year in the county jail — but not to factual findings
that often have a “substantial impact on the jury’s determination whetherthe
defendant should live or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764)
consensus were deemedsufficient to satisfy the Sixth, Eighth, and Fourteenth Amendmentsin a capital case,
California’s sentencing scheme wouldstill be deficient since, as noted above, California requires no jury consensus
at all as to the existence of aggravating circumstances.
*8Under the federal death penalty statute, a “finding with respect to any aggravating factor must be unanimous.” (21
U.S.C. Section 848, subd. (k).)
The first sentence ofarticle 1, section 16 of the California Constitution provides: “Trial by jury is an inviolate right
and shall be secured toall, but in a civil cause three-fourths of the jury may rendera verdict.” (See, Peoplev.
Wheeler (1978) 22 Cal.3d 258, 265 [confirming the inviolability of the unanimity requirementin criminaltrials].)
411
— would byits inequity violate the equal protection clause (See, Section D,post),
and byits irrationality violate both the due process and cruel and unusual
punishmentclauses of the state and federal Constitutions, as well as the Sixth
Amendment’s guarantee ofa trial by jury. (See, Richardson vy, United States
(1999) 526 U.S. 813, 815 - 816.)
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
Impose a Sentence of Death Only If They 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 outcomeof a judicial proceeding necessarily depends on an appraisal of
the facts. “[T]he procedures by whichthe facts of the case are determined assume
an importance fully as great as the validity of the substantive rule of law to be
applied. And the more importantthe 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 of the burden of proof. The
burdenof proof represents the obligation of a party to establish a particular degree
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of belief as to the contention sought to be proved. In criminal cases the burden is
rooted in the Due Process Clauseof 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 of the Due Process Clause.”
(Gardnerv. Florida (1977) 430 U.S. 349, 358; see, also, Presnell v. Georgia
(1978) 439 U.S. 14.) Aside from the question of the applicability of the Sixth
Amendmentto California’s penalty phase proceedings, the burden of proof for
factual determinations during the penalty phase of a capital trial, when life is at
stake, must be beyond a reasonable doubt. This is required by both the Due
Process Clause of the Fourteenth Amendmentand the Eighth Amendment.
b. Imposition of Life or Death
The requirements of due process relative to the burden of persuasion
generally depend uponthe significance of whatis at stake and the social goal of
reducing the likelihoodof erroneous results. (Winship, supra, 397 U.S. at 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 more significant than humanlife.
Far less valued interests are protected by the requirement of proof beyond a
reasonable doubt before they may be extinguished. (See, Winship, supra
(adjudication ofjuvenile delinquency); People v. Feagley (1975) 14 Cal.3d 338
413
(commitment as mentally disordered sex offender); People v. Burnick (1975) 14
Ca1.3d 306 (same); People v. Thomas (1977) 19 Ca1.3d 630 (commitmentas
narcotic addict); Conservatorship ofRoulet (1979) 23 Cal1.3d 219 (appointment of
conservator).) The decision to take a person’s life must be made undernoless
demanding a standard.
In Santosky, supra, the U.S. Supreme Court reasoned:
[I]n any given proceeding, the minimum standardof proof
tolerated by the due process requirementreflects not only the
weight of the private and public interests affected, but also a
societal judgment about howtherisk of error should be
distributed betweenthelitigants. ... When the State brings a
criminal action to deny a defendantlibertyorlife, . . . “the
interests of the defendant are of such magnitudethat historically
and without any explicit constitutional requirement they have
been protected by standards of proof designed to exclude as
nearly as possible the likelihood of an erroneous judgment.”
[citation omitted.] The stringency of the “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 a judgmentthat those interests
together require that “society impos[e] almostthe entire risk of
error uponitself.”
(455 U.S. at 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 of the [jury].” (Santosky, supra, 455 U.S.
at 763.) Imposition of a burden of proof beyond a reasonable doubt can be
effective in reducingthis risk of error, since that standard has long proven its worth
414
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as “a prime instrument for reducing the risk of convictions resting on factual
error.” (Winship, supra, 397 U.S.at 363.)
Adoption of a reasonable doubt standard would not deprive the State of the
powerto impose capital punishment; it would merely serve to maximize
“reliability in the determinationthat death is the appropriate punishmentin a
specific case.” (Woodson, supra, 428 U.S. at 305.) The only risk of error suffered
by the State underthe stricter burden of persuasion would be the possibility that a
defendant, otherwise deserving of being put to death, would instead be confinedin
prison for the rest of his life without possibility of parole.
In Monge,the United States Supreme Court expressly applied the Santosky
rationale for the beyond-a-reasonable-doubt burden of proof requirementto capital
sentencing proceedings: “[I]n a capital sentencing proceeding,as in a criminaltrial,
‘the interests of the defendant [are] of such magnitudethat . . . they have been
protected by standards of proof designed to excludeas nearly as possible the
likelihood of an erroneous judgment.’ ([Bullington v. Missouri,| 451 U.S.at p.
441 (quoting, Addington v. Texas, 441 U.S. 418, 423-424, 60 L.Ed.2d 323, 99
S.Ct. 1804 (1979).)” (Monge v. California, supra, 524 U.S.at p. 732 (emphasis
added).) The sentencer of a person facing the death penalty is required by the due
process and Eighth Amendmentconstitutional guarantees to be convinced beyond
415
-a reasonable doubtnot only are the factual bases for its decision are true, but that
death is the appropriate sentence.
3. California Law Violates the 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 regarding
aggravating factors deprived appellant of his federal due process and Eighth
Amendmentrights to meaningful appellate review. (California v. Brown, supra,
479 US.at p. 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Especially given
that California juries have total discretion without any guidance on howto 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 y. Sain-(1963) 372 U.S. 293, 313-316.)
This Court has held that the absenceof written 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 elementof
due process so fundamental that they are even required at parole suitability
hearings.
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A convicted prisoner whobelieves that he or she was improperly denied
parole mustproceed via 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 seekingto establish that his application for
parole wasarbitrarily denied can makenecessaryallegations with the requisite
specificity unless he has some knowledge of the reasons therefore.” (/d., 11 Cal.3d
at p. 267.)”° The sameanalysis 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. (/bid.; Section 1170, subd. (C).)
Capital defendants are entitled to more rigorous protections than those afforded
non-capital defendants.-(Harmelin v. Michigan, supra, 501 U.S.at p. 994.) Since
providing more protection to a non-capital defendant than a capital defendant
would violate the equal protection clauseof the Fourteenth Amendment(see,
generally, Myers v. YIst (9th Cir. 1990) 897 F.2d 417, 421; Ring v. Arizona, supra;
Section D, post), the sentencer in a capital case is constitutionally required to
A determination ofparole suitability shares many characteristics with the decision of whetheror not to impose the
death penalty. In both cases, the subject has already been convicted of a crime, and the decision-maker must
417
identify for the record the aggravating circumstances found, and the reasons for the
penalty chosen.
Written findings are essential for a meaningful review of the sentence
imposed. (See, Mills v. Maryland, 486 U.S. 367, 383, fn. 15.) Even where the
decision to impose death is “normative” (People v. Demetroulias, 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-Furman state 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
Amendmentright to trial by jury (See, Section C.1, ante.)
There are no other procedural protections in California’s death penalty
system that would somehowcompensate for the unreliability inevitably produced
by the failure to require an articulation of the reasons for imposing death. (See,
Kansas v. Marsh, supra [statute interpreting a jury’s equipoise as a vote for death
held constitutional in light of a system filled with other procedural protections,
including requirementsthat the jury find unanimously and beyonda reasonable
doubtthe existence of aggravating factors and that such factors are not outweighed
consider questions of future dangerousness, the presence of remorse, the nature of the crime,etc., in makingits
decision. (See, Title 15, California Code of Regulations, Section 2280et seq.)
418
by mitigating factors].) The failure to require written findings thus violated not
only federal due process and the Eighth Amendmentbutalso the rightto 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
punishmentsthat 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 sentencingis
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
essential component of every constitutional capital sentencing scheme, noted the
possibility that “there could be a capital sentencing scheme so lacking in other
checks onarbitrariness that it would not pass constitutional muster without
comparative proportionality review.”
419
California’s 1978 death penalty statute, as drafted and as construed by this
Court and applied in fact, has become just such a sentencing scheme. The high
court in Harris, in contrasting the 1978 statute with the 1977 law whichthe 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 numberhas continued to grow, and
expansive judicial interpretations of section 190.2's lying-in-wait special
circumstance have madefirst-degree murders that cannot be charged with a
“special circumstance”a rarity.
As wehaveseen,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 of this Argument, ante.) The statute lacks numerous other
procedural safeguards commonly utilized in other capital sentencing jurisdictions
(see section C of this Argument), and the statute’s principal penalty phase
sentencing factor hasitself proved to be an invitation to arbitrary and capricious
sentencing (see, Section B of this Argument). Viewing the lack of comparative
proportionality review in the context of the entire California sentencing scheme
(see, Kansas v. Marsh, supra), this absence renders that schemeunconstitutional.
420
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Section 190.3 does not require that either the trial court or this Court
undertake a comparison betweenthis and other similar cases regardingthe relative
proportionality of the sentence imposed,i.e., inter-case proportionality review.
(See, People v. Fierro, supra, | 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 on similarly situated defendants is
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 Not Rely 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
Any use of unadjudicated 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, 108
S.Ct. 1981, 100 L.Ed.2d 575; State v. Bobo (Tenn.
1987) 727 S.W.2d 945.)
421
Theinclusionin thelist 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 of mitigation 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.)
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
Theinclusionin the list of potential mitigating factors of such adjectives as
“extreme”acted as barriers to the consideration of mitigation 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.
7. The Failure to Instruct That Statutory
Mitigating Factors Were Relevant Solely as
Potential-Mitigators Precluded a Fair,
Reliable, and Evenhanded Administration of
the Capital Sanction
Asa matter of state law, each of the factors introduced by a prefatory
“whether or not” — factors (d),(e), (D, (g), (h), and (j) — were relevant solely as
possible mitigators (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v.
Edelbacher (1989) 47 Cal.3d 983, 1034). The jury, however, wasleft free to
concludethat a “not” answeras to any of these “whether or not” sentencing factors
422
could establish an aggravating circumstance, and wasthusinvited to aggravate the
sentence upon the basis of non-existent and/orirrational aggravating factors,
thereby precluding the reliable, individualized capital sentencing determination
required by the Eighth and Fourteenth Amendments. (Woodson v. North Carolina
(1976) 428 U.S. 280, 304; Zant v. Stephens (1983) 462 U.S. 862, 879.)
Further, the jury wasalsoleft free to aggravate a sentence uponthe basis of
an affirmative answerto one of these 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 argumentthat a jury would apply
factors meantto be only mitigating as aggravating factors weighing towards a
sentence of death:
“The trial 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 nonexistentor irrational aggravating 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 reasonable
juror could be misled by the languageof section 190.3
concerning the relativeaggravating or mitigating nature of the
various factors. (People v. Arias, supra, 13 Cal4th at p. 188,
51 Cal.Rptr.2d 770, 913 P.2d 980.)
423
People. v. Morrison (2004) 34 Cal.4th 698, 730; emphasis added.)
This assertion is demonstrably false. Within the Morrisoncaseitself, there
lies evidence to the contrary. Thetrial judge mistakenly believed that section
190.3, factors (e) and (j) constituted aggravation instead of mitigation. (/d., 32
Cal.4th at 727 - 729.) This Court recognized that the trial court so erred, but found
the error to be harmless. (Ibid.) If a seasoned judge could be misled by the
language at issue, how can jurors be expected to avoid making this same mistake?
Othertrial judges and prosecutors have been misled in the same way. (See, e.g.,
People v. Carpenter (1997) 15 Cal.4th 312, 423-424.)”
The very real possibility that appellant’s jury aggravated his sentence upon
the basis of non-statutory 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, at-772 - 775) — violated appellant’s Fourteenth Amendment
right to due process. (See, Hicks v. Oklahoma (1980) 447 U.S. 343; Fetterly v.
Paskett (9th Cir. 1993) 997 F.2d 1295, 1300 (holding that Idaho law specifying
mannerin which aggravating and mitigating circumstancesare to be weighed
created a liberty interest protected under the Due Process Clause of the Fourteenth
*!There is one case now before this Court in which the record demonstratesthat a juror gave substantial weight to a
factor that can only be mitigating in order to aggravate the sentence. See, People v. Cruz, No. S042224,
Appellant’s Supplemental Brief.
424
- ail
“ah
ood
Amendment); and Campbell v. Blodgett (9th Cir. 1993) 997 F.2d 512, 522 [same
analysis applied to state of Washington].
It is thus likely that Appellant’s jury aggravated his sentence uponthe basis
of what 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 madeit likely that the jury treated appellant
“as more deserving of the death penalty than he might otherwise be by relying
upon . . . illusory circumstance[s].” (Stringer v. Black (1992) 503 U.S. 222, 235.)
From case to case, even with no difference in the evidence, sentencing juries
will discern dramatically different numbers of aggravating circumstances because
of differing constructions of the CALJIC pattern instruction. Different defendants,
appearing before different juries, will be sentenced onthe basis of different legal
standards.
“Capital punishment [must] be imposed fairly, and with reasonable
consistency, or notat all.” (Eddings, supra, 455 U.S.at 112.) Whether a capital
sentence is to be imposed cannotbe permitted to vary from case to case according
to different juries’ understandings of how manyfactors on statutory list the law
permits them to weigh on death’s side ofthe scale.
D. The California Sentencing Scheme Violates The Equal
Protection Clause Of The Federal Constitution By
425
Denying Procedural Safeguards To Capital Defendants
Which Are Afforded To Non-Capital Defendants
Asnoted in the preceding arguments, the United States Supreme Court has
repeatedly directed that a greater degree of reliability is required when deathis to
be imposed andthat courts must be vigilant to ensure procedural fairness and
accuracy in fact-finding. (See, e.g., Monge v. California, supra, 524 U.S. at 731 -
732.) Despite this directive California’s death penalty scheme provides
significantly fewer procedural protections for persons facing a deathsentence than
are afforded persons charged with non-capital crimes. This differential treatment
violates the constitutional guarantee of equal protection of the laws.
Equalprotection analysis begins with identifying the interestat stake.
“Personal liberty is a fundamental interest, second onlytolife itself, as an interest
protected under both the California and the United States Constitutions.” (People
v. Olivas (1976) 17 Cal.3d 236, 251.) If the interest is “fundamental,” then courts
have “adopted an attitude ofactive and critical 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 showingthat it has a compelling interest whichjustifies the
classification and that the distinctions drawn are necessary to further that purpose.
(People v. Olivas, supra; Skinner v. Oklahoma (1942) 316 U.S. 535, 541.)
426
The State cannot meet this burden. Equal protection guarantees mustapply
with greater force, the scrutiny of the challenged classification be morestrict, and
any purported justification by the State of the discrepant treatment be even more
compelling becausethe interest at stake is not simply liberty, butlife itself.
In Prieto,” as in Snow,” this Court analogized the process of determining
whetherto impose death to a sentencing court’s traditionally discretionary decision
to impose oneprison sentence rather than another. (See, also, People v.
Demetroulias, 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 sentenced to prison
for receiving stolen property, or possessing cocaine.
An enhancing allegation in a California non-capital case must be found true
unanimously, and beyond a reasonable doubt. (See, e.g., Sections 1158, 1158a.)
Whena 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
PuAS explained earlier, the penalty phase determination in California is normative, not factual. Jt is therefore
analogous to a sentencing court’s traditionally discretionary decision to impose one prison sentence rather than
another.” (Prieto, 30 Cal.4th at 275; emphasis added.)
The final step in California capital sentencing is a free weighing ofall the factors relating to the defendant’s
culpability, comparable to a sentencing court’s traditionally discretionary decision to, for example, impose one
prison sentence ratherthan another.” (Snow, 30 CalAth at 126, fn. 3; emphasis added.)
427
shall be stated orally on the record, and shall include a concise statementof the
ultimate facts which the court deemed to constitute circumstances in aggravation or
mitigation justifying the term selected.”
In a capital sentencing context, however, there is no burden of proof except
as to other-crimes 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 personsare 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 oflife; they violate equal
protection of the laws.”* (Bush v. Gore (2000) 531 U.S. 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 theEighth and Fourteenth Amendments. (See, e.g., Mills v.
Maryland, supra, 486 U.S. at p. 374; Myers v. Yist (9th Cir. 1990) 897 F.2d417,
421; Ring v. Arizona, supra.)
E. —_California’s Use Of The Death Penalty As A Regular
Form Of Punishment Falls Short Of International Norms
“Although Ring hinged onthe court’s reading of the Sixth Amendment,its ruling directly addressed the question of
comparative procedural protections: “Capital defendants, no less than non-capital defendants, we conclude, are
entitled to a jury determination of any fact on whichthe legislature conditions an increase in their maximum
punishment. ... The right to trial by jury guaranteed by the Sixth Amendmentwould be senselessly diminishedifit
encompassed the factfinding necessary to increase a defendant’s sentence by twoyears, but not the factfinding
necessary to put him to death.” (Ring, supra, 122 S.Ct. at pp. 2432, 2443.)
428
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 of punishment. (Soering v. United Kingdom:
Whether the Continued Use ofthe Death Penalty in the United States Contradicts
International Thinking (1990) 16 Crim. and Civ. Confinement 339, 366. The
nonuse of the death penalty, or its limitation to “exceptional crimes such as
treason” — as opposedto its use as regular punishment — is particularly uniform in
the nations of Western Europe. (See, e.g., Stanford y. Kentucky (1989) 492 U.S.
361, 389 [109 S.Ct. 2969, 106 L.Ed.2d 306] [dis. opn. of Brennan, J.]; Thompson
v. Oklahoma, supra, 487 U.S.at p. 830 [plur. opn. of Stevens, J.].) Indeed, all
nations of Western Europe have now abolished the death penalty. (Amnesty
International, “The Death Penalty: List of Abolitionist and Retentionist Countries”
(Nov. 24, 2006), on Amnesty International website [www.amnesty.org].)
Althoughthis country is not bound by the lawsof 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 became,to use the
language of Chancellor Kent, ‘subject to that system of rules which reason,
morality, and custom hadestablished amongthe civilized nations of Europe as
429
999their 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, supra, 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 neitheris the Eighth Amendment. In
the course of determining that the Eighth Amendment now bansthe execution of
mentally retarded persons, the U.S. Supreme Court reliedin 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, 122 S.Ct. at 2249, 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 of human decency,its use as regular punishmentfor
substantial numbers of crimes — as opposed to extraordinary punishment for
extraordinary crimes — is. Nations in the Western world no longer accept it. The
Eighth Amendmentdoes not permit jurisdictionsin this nation to lag so far behind.
(See, Atkins v. Virginia, supra, 122 S.Ct. at p. 2249.) Furthermore, inasmuch as
the law of nations now recognizes the impropriety of capital punishmentas regular
punishment,it is unconstitutional in this country inasmuchasinternational law is a
430
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9
CERTIFICATE OF WORD COUNT
I, MICHAEL D. ABZUG,counsel on appeal for Appellant Robert M.
Edwards in Automatic appeal No. SO73316, certify that Appellant’s Opening Brief
consists of 99,973 words excluding tables, proof of service, andthis certificate,
according to the word countof the word-processing program with which it was
produced. (Cal. Rules of Court, Rule 36(b)(1)(A).) Appellant has separately filed
“‘Appellant’s Application to File Over Length Opening Brief (Rule 36(b)(5).” On
November 9, 2006, this Court granted permission to file an Opening Brief notto
exceed 460 pages.
Dated: December 72.2006
Respectfully submitted,rt
ws
Michael D. Abz
California Bar No. 63306
Counsel for Appellant
432
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 crimesthat particularly warrant a close comparison with actual
practices in other cases include the imposition of the death penalty for felony-
murdersor other non-intentional killings, and single-victim homicides. See Article
VI, Section 2 of the International Covenant on Civil and Political Rights, which
limits the death penalty to only “the most serious crimes.””” Categories of
criminals that warrant such a comparison includepersons suffering from mental
illness 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 besetaside.
Dated: December ?=,-2006
Respectfully submitted,
A
Michael D. Abzug
California Bar No. 63306
Counsel for Appellant
>See, Kozinski and Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. 1, 30 (1995).
431
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DECLARATIONOF SERVICE
Re: People v. Robert M. Edwards — Automatic Appeal No. SO73316
Orange County Superior Court
Case No. 93WF1180
I, MICHAEL D. ABZUG,declare that I am over 18 years of age, and not a party
to the within case; that my business address is: PMB 47, 137 North Larchmont
Boulevard, Los Angeles, California 90004; that on Pascale 2006, I served a true
copy of the attached, APPELLANT’S OPENING BRIEFoneach ofthe following, by
placing same in an envelope addressed respectfully as follows:
Michael Lasher
California Appellate Project
101 Second Street, Suite 600
San Francisco, CA 94105-3672
Robert M. Edwards
P-11700 5-EB-92
San Quentin Prison
San Quentin, CA 94974-0002
David Brent
Orange County District Attorney’s Office
Office
401 Civic Center Drive West
Santa Ana, CA 92702-4515
Clerk, Criminal Appeals
Orange County Superior Court
700 Civic Center Drive West
Santa Ana, CA 92702-1994
Arlene Sevidal
California Attorney General’s Office
P.O. Box 85266
San Diego, CA 92186-5266
The Honorable John Ryan
Orange County Superior Court
401 Civic Center Drive West
Santa Ana, CA 92702-4045
Timothy Severin
Orange County Public Defender’s
14 Civic Center Plaza
Santa Ana, CA 92701-4014
and that each said envelope as then, on December/, 2006, sealed and deposited in the
United States mail at Los Angeles, California, in the county in which I am employed,
with the postage thereon fully prepaid. I declare under penalty of perjury that the
foregoing is true andcorrect.
EXECUTED on December], 2006, at Los Angeles,calor)
sat9“g,
DECL NT
Sra mpc getttom MEER GESNENart AEPe Te
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