PEOPLE v. EDWARDS (ROBERT)

Appellant’s Supplemental Opening Brief

Cal.September 14, 2010

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA oil COPY PEOPLE OF THE STATE ) OF CALIFORNIA, ) Supreme Court ) No. $0733 16 Plaintiff and Respondent, ) ) Orange County NE ) Superior Court ) No. 93WF1180 ROBERT MARK EDWARDS, ) ) SUPREMECOURT Defendant-Appellant. Zs cILc 5 SEP 14 2010 Frederick K. Ohlrich Glerk Meouts APPELLANT’S SUPPLEMENTAL OPENING BRIEF ~~ QUIN DENVIR State Bar No. 49374 Attorney at Law 1614 Orange Lane Davis, CA 95616 Telephone: (916) 307-9108 Attorney for Appellant Robert M. Edwards IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE ) OF CALIFORNIA, ) Supreme Court ) No. 8073316 Plaintiff and Respondent, ) ) Orange County V. ) Superior Court ) No. 93WF1180 ROBERT MARK EDWARDS, ) ) Defendant-Appellant. ) ) APPELLANT’S SUPPLEMENTAL OPENING BRIEF QUIN DENVIR State Bar No. 49374 Attorney at Law 1614 Orange Lane Davis, CA 95616 Telephone: (916) 307-9108 Attorney for Appellant Robert M. Edwards TABLE OF CONTENTS INTRODUCTION I. THE BATSON ERROR REQUIRES REVERSAL Il. THE JURY VENIRE WAS IRREPARABLY TAINTED BY THE REMARKS OF PROSPECTIVE JUROR BERTHOUD Ill. THE CLAIMED SIMILARITIES BETWEEN THE DEEBLE MURDER AND THE DELBECQ MURDER DID NOT JUSTIFY ADMISSION OF EVIDENCE OF THE LATTER MURDERIN HAWAII, THE ADMISSION OF THE EVIDENCE VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW TV. THE TRIAL COURT’S ERROR IN ADMITTING EVIDENCE OF APPELLANT’S 1994 HAWAII CONVICTIONS FOR THE MURDER OF MURIEL DELBECQ AND BURGLARY OF HER HOUSE REQUIRES REVERSAL A. The Facts B. The Law THE TRIAL COURT’S ERRONEOUS EXCLUSION OF TESTIMONY OF TWO DEFENSE WITNESSES 22 22 24 REGARDING APPELLANT’S PREVIOUS ALCOHOLIC BLACKOUTS REQUIRES REVERSAL A. The Facts 34 34 TABLE OF CONTENTS(Cont’d.) B. The Law 35 VI. THE USE OF HEARSAY EVIDENCE REGARDING THE AUTOPSY FINDINGS VIOLATED APPELLANT’S CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AND REQUIRES REVERSAL OF THE CONVICTIONS, SPECIAL CIRCUMSTANCESFINDINGS, AND DEATH SENTENCE 37 A. The Court Must Decide The Merits Of Appellant’s Confrontation Claim 37 B. Dr. Fukumoto’s Testimony Violated The Confrontation Clause 39 C. The Constitutional Violation Requires Reversal OfThe Conviction, Special Circumstance Findings, And Death Sentence 47 VIC. THE ADMISSION OF HEARSAY EVIDENCEOF A STATEMENT BY LABORATORY PERSONNEL THAT A LIST OF POSSIBLE SUSPECTS HAD BEEN ELIMINATED AS DONORSOF SEMEN AND FLUIDS AT THE DEEBLE CRIME SCENE VIOLATED APPELLANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS OF CONFRONTATION AND REQUIRES REVERSAL 55 XVIIA. THE TRIAL COURT’S ERRONEOUS REFUSAL TO GIVE A LINGERING DOUBT INSTRUCTION REQUIRES REVERSAL OF THE DEATH SENTENCE 58 il TABLE OF CONTENTS(Cont’d.) A. The Facts B. The Law TABLE OF AUTHORITIES CASES: Ali v. Hickman (9" Cir. 2009) 571 F.3d 902 Batson v. Kentucky (1986) 476 U.S. 79 Boyd v. Newland (9" Cir. 2006) 467 F.3d 1139 California v. Trombetta (1984) 467 U.S. 479 Colley v. Sumner (9" Cir. 1986) 784 F.2d 984 Crawford v. Washington (2004) 541 U.S. 36 Chapmanv. California (1967) 386 U.S. 18 Crawford v. Washington (2004) 541 U.S. 36 Crittenden v. Ayers (9" Cir. 2010) __—~*F.3d Davis v. Alaska (1974) 415 U.S. 308 oOavis v. Washington (2006) 547 U.S. 813g iii Page 2 2, Passim 5 40 33 55 47, 57, 67 39, 40, 41, 42 TABLE OF AUTHORITIES (Cont’d.) Page CASES(Cont’d.): Delaware v. Van Arsdall (1986) 475 U.S. 673 54 Diaz v. United States (1912) 223 U.S. 442 40 Dixon v. Superior Court (2009) 170 Cal.App.4th 1271 43 Estelle v. McGuire (1991) 502 U.S. 62 21, 33 Fernandezv. Roe (9 Cir. 2002) 286 F.3d 1073 2,5, 12 Franklin v. Lynaugh (1988) 487 U.S. 164 64 Gordon v. United States (D.C. Cir. 1967) 383 F.2d 936 25 enry v. Estelle (9" Cir. 1993) 993 F.2d 1242 21 Hicks v. Oklahoma (1980) 447 U.S. 343 67 In re Winship (1970) 397 U.S. 358 33 Johnsonv. California (2005) 545 U.S. 162 3 Lockett v. Ohio (1978) 438 U.S. 586 64, 67 MarShee v. Maryland Assurance Corp. (1922) 190 Cal. 1 44 Martinez v. State, 2010 Tex.App.LEXIS 2124 45 McKinneyv. Rees (9" Cir. 1993) 993 F.2d 1378 21 iv TABLE OF AUTHORITIES (Cont’d.) Page CASES(Cont’d.): Melendez-Diaz v. Massachusetts (2009) —s_—iUS.. ; 129 S.Ct. 2527 Al, 42, 44, 45, 46 Miller-El v. Dretke (2005) 545 U.S. 231 2,5,7 Morse v. Hanks (7" Cir. 1999) 172 F.3d 983 7 Ohio v. Roberts (1980) 448 U.S. 56 40, 41 Panzavecchio v. Wainwright (5" Cir. 1981) 658 F.2d 337 21 Paulino v. Castro (9" Cir. 2004) 371 F.3d 1083 4,12 People v. Alcala ((1984) 36 Cal.3d 604 21 People v. Allen (1979) 23 Cal.3d 286 13 People v. Antick (1975) 15 Cal. 3d 79 27 People v. Arias (1996) 13 Cal.4th 92 60 People v. Beeler (1995) 9 Cal. 4" 953 38 People v. Black (2007) 41 Cal. 4" 799 38 People v. Braxton (2004) 34 Cal.4th 798 il People v. Brooks (1979) 88 Cal.App.3d 180 67 People v. Butler (2005) 127 Cal. App. 4" 49 39 TABLE OF AUTHORITIES(Cont’d.) CASES(Cont’d.): People v. Castro (1985) 38 Cal.3d 301 People v. Chavez (1980) 26 Cal. 3d 334 People v. Clark (1992) 3 Cal. 4" 41 People v. Cox (1991) 53 Cal.3d 618 People v. Ewoldt (1994) 7 Cal.4th 380 People v. Gay (2008) 42 Cal.4th 1195 People v. Geier (2007) 41 Cal. 4" 555 People v. Hall (1983) 35 Cal.3d 161 People v. Harris (2005) 37 Cal. 4" 310 People v. Harrison (2005) 35 Cal.4th 208 People v. Hinton (2006) 37 Cal. 4" 839 People v. Johnson (2004) 121 Cal. App. 4" 1409 People v. Johnson (2006) 38 Cal.4th 1103 People v. Kipp (1998) 18 Cal.4th 349 People v. Mendoza (2000) 78 Cal. App. 4" 918 ~ People v. Musselwhite (1998) 17 Cal.4th 1216 Vi 23 38 38 63, 64 21 62 39 12 25 60 27 TABLE OF AUTHORITIES (Cont’d.) Page CASES(Cont’d.): People v. Price (1991) 1 Cal.4th 324 63 People v. Ramirez (2007) 153 Cal.App.4th 1422 45 People v. Rist (1976) 16 Cal. 2d 211 27 People v. Rollo (1977) 20 Cal.3d 109 25 People v. Saffold (2005) 127 Cal. App. 4" 979 39 People v. Snow (2003) 30 Cal.4th 43 60 People v. Snow (1987) 44 Cal.3d 216 12 People v. Terry (1964) 61 Cal.2d 137 61, 62 People v. Thomas (2005) 130 Cal. App. 4" 1202 39 People v. Turner (1990) 50 Cal. 3d 668 38 People v. Valentine (1986) 42 Cal.3d 170 34 People v. Wheeler (1978) 22 Cal.3d at 283 11 People v. Woodward (1979) 23 Cal.3d 329 25, 26 People v. Zambrano (2007) 41 Cai. 4" 1082 4 Pointer v. Texas (1965) 380 U.S. 400 39 Vii TABLE OF AUTHORITIES(Cont’d.) CASES(Cont’d.): Sandstrom v. Montana (1979) 442 U.S. 510 Snyder v. Louisiana (2008) 552 U.S. 472, 128 S.Ct. 1203 St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502 State v. Bell (Mo.App. 2009) 274 S.W.3d 592 State v. Johnson (Minn.App. 2008) 756 N.W.2d 883 State v. Locklear (2009) 363 N.C. 438, 452 [681 S.E.2d 293 Sullivan v. Louisiana (1993) 508 U.S. 275 Terranova v. Kinchloe (9" Cir. 1988) 852 F.2d 424 United States v. Esparza-Gonzalez (9" Cir. 2005) 422 F.3d 897 United States v. Gaudin (1995) 515 U.S. 506 United States v. Tindle (4% Cir. 1986) 808 F.2d 319 Williams v. Runnel (9% Cir. 2006) 432 F.3d 1102 Woodv. State (Tex..App. 2009) 299 $.W.3d 200 viii é& o 33 2, 10 45 33 {2 12 44 TABLE OF AUTHORITIES(Cont’d.) Page CODES: Evidence Codesection 352 21, 25, 29 Evidence Code section 1101(a) 21 Evidence Code section 1101(B) 31 Evidence Code Section 1250 56 Evidence Code section 1250(a) 35 Evidence Code section 1250(b) 35 Government Codesec. 27491 43, 44 Government Code sec.27491.1 43 Government Codesec. 27491.4. 43 Penal Codesection 190.3 | 62 Penal Codesection 190.9 14 Penal Codesection 459 26 Penal Codesection 830.35(c) 42 Penal Code section 995 22 Penal Code sections 1093, subd. (f} 63 Penal Code section 1127 63 Penal Code section 1260 11 MISCELLANEOUS: U.S. Const., Fifth Amendment 33, 39 U.S. Const., Sixth Amendment 1, Passim U.S. Const., Eighth Amendment 33,39 U.S. Const., Fourteenth Amendment 33, 39, 46, 67 CALJIC No. 8.85 63, 65 TABLE OF AUTHORITIES(Cont’d.) MISCELLANEOUS(Cont’d.): Minookin, Expert Evidence and the Confrontation Clause Aft Crawford v Washington (2007), 15 J.L. & Poly at 791 Seaman, Triangular Testimonial Hearsay, The Constitutional Boundaries of Expert Opinion Testimony(2008) 96 Geo. L.J.) 827 fir oo t o t U h IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE ) OF CALIFORNIA, ) Supreme Court ) No. $073316 Plaintiff and Respondent, ) ) Orange County V. ) Superior Court ) No. 93WF1180 ROBERT MARK EDWARDS, ) ) APPELLANT’S Defendant-Appellant. ) SUPPLEMENTAL ) OPENING BRIEF INTRODUCTION This supplemental brief provides additional judicial authority, record citations, and argument regarding certain issues raised in Appellant’s Opening Brief and Reply Brief. Asto the other issues previously raised, appellant will rely on his initial briefing. The argumentsin this brief used the argument numbers from Appellant’s OpeningBrief. I. THE BATSON ERROR REQUIRES REVERSAL Where a prosecutor uses a peremptory challenge to excuse a minority juror on the basis of a groupbias, the defendant has been denied his Sixth Amendmentconstitutional right to be tried by an impartial jury. Batson v. Kentucky (1986) 476 U.S. 79. Where a party claimsthat the other party has improperly discriminatedin its use of peremptory challenges, the trial court must follow a three-step process. Batson, 476 U.S. at 96-98. First, the court must determine whether the movingparty has made a prima facie showing that the other party has exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96-97. The prima facie showing is “minimal.” St. Mary’s Honor Centerv. Hicks (1993) 509 U.S. 502, 506. It is met if all the facts and circumstances “raise an inference” that the challenged party has excluded a prospective juror on accountof their race. Batson, 476 U.S. at 96.” Amongthe facts and circumstancesto be consideredis 1. Respondenttakes the position that appellant must establish “a pattern of impermissible exclusion.” RB 30. That position is simply wrong as a matter of law. The Supreme Court has madeclear that a defendantis entitled to relief under Batson if he showsthat even a single prospective juror was struck for discriminatory reasons. See Snyder v. Louisiana (2008) 552 U.S. 472, 128 S.Ct. 1203, 1208. “A pattern of exclusionary strikes is not necessary for findingan inference of discrimination.” Fernandez v. (continued...) ce 6the totality of the relevant facts’ about a prosecutor’s conduct during thetrial.” Miller-El v. Dretke (2005) 545 U.S. 231, 238. If the challenging party makes the prima facie showing,the burden shifts to the other party to provide a race-neutral explanation for its challenge. Batson, 476 U.S. at 97. Ifa race-neutral explanation is provided, the trial court must then determine whether the moving party has established racial discrimination in the other party’s use of peremptory challenges. Batson, 476 U.S.at 98. 7 In the present case, when the defense challenged the excusal of prospective juror Mickens, an African-American,the trial court never reachedthe last two steps of the Batson analysis because it found that that defense had not made the requisite prima facie showing. RT 1. (...continued) Roe (9" Cir. 2002) 286 F.3d 1073, 1078; see also United States v. Esparza-Gonzalez (9" Cir. 2005) 422 F.3d 897, 904; Ali v. Hickman (9" Cir. 2009) 571 F.3d 902. 2. The Batson framework, including the “minimal” burden ofraising an “inference”at the first step, “is designed to produce actual answers to suspicions and inferences that discrimination might have infected the jury selection process. [Citation] The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answercan be obtained by asking a simple question.” Johnsonv. California (2005) 545 U.S. 162, 172. 3 1811: 1-2. However, in making that finding, the trial court committed a seriouserror — it ruled that appellant could not make a primafacie showing unless he could show “a strong likelihood”that the prosecutor had excused Ms. Mickens because of her race. RT 1808: 14-18; RT 1809: 11-15. The Supreme Court has held thatthat is an incorrect standard to determine whether a party has made the required primafacie showing under Batson. See Johnson v. California (2005) 545 U.S. 162. All the challenging party must do to meetits burden of making a prima facie showing is to show “an inference” of discriminatory purpose. Id. at 169. Because thetrial court used the wrong standard in finding no prima facie showing,that finding is entitled to no weight. People v. Zambrano (2007) 41 Cal. 4" 1082, 1105 . Instead, this Court must make its own independent review ofthe record to determine whether appellant made the requisite showing of an inference ofracial discrimination. Id.; Paulino v. Castro (9" Cir. 2004) 432 F.3d 1083. In determining whetherthere is an inference ofracial bias in the exclusion of Ms. Mickens, an African-American,it is extremely significant that there were many facts about her that wouldmakeher appear to be a juror that the prosecution would normally want on the jury: ° she was a pharmacy technician at the Fairview Developmental Center (CT 3764) ° she was a Petty Officer 1* Class in the U.S. Naval Reserve from 1978-present, serving as an Intelligence Specialist (CT 3765) ° she was the mother oftwo (CT 3766) ° she was a member ofNeighborhood Watch, a crime prevention group in her neighborhood (CT 3768) ° she had served on a previous jury in Orange County in an auto theft case and had reached a verdict (CT 3768)” In these respects, she was very muchlike white Juror No. 1, who also worked for the government, “ had served in the Armed Forces, * was.” 3. Since she had previously served as a juror, the prosecution in that case obviously had seen no reason to excludeher. A, Jurors 6, 7, 11 and 12, and alternates 3 and 4 also worked for the government. CT 1977, 1991, 2047, 2061, 2103, 2117. 5. Jurors 8 and 9 also had served in the Armed Forces, CT 2006, 2020. a father of one, % was a member ofNeighborhood Wa tch, 1 but had not previously servedon a jury. 8’ Thus, the prosecutor’s decision to strike Ms. Mickens and keep Juror No.1 is very suspic ious. a This suspicion is heightened by the fact that the pro secutor “failed to engage in meaningful questioning” of the mi nority juror before excusing her. Fernandez v. Roe,, supra, 286 F.3 d at 1079. Here, when offered the opportunity to question Ms. Mick ens,the prosecutor asked a single question. The single question concerned her statementin the juror questionnaire regarding her “gen eral feelings about the death penalty.” In response Ms. Mickensh ad stated: 6. Jurors 2, 3, 4, 5, 8, 10 and 11, and alternates 1, 3, and 4 also were parents. CT 1923, 1937, 1949, 1965, 2007, 2035, 2049, 2075, 2119. 7. Jurors 3 and 10, andalternate 3 also were members of Neighborhood Watch. CT 1939, 2037. 8. Jurors 3, 4, and 10 also had previous jury service. CT 1939, 1953, 2037. 9. The Supreme Court has endorsed “side-by-side comparisonsof[ ] black panelists who were struck and white panelists allowed to serve” as part of the Batson analysis. Miller-E] v. Dretke, supra, 545 U.S. at 241; Crittenden v. Ayers (9" Cir. 2010) F.3d ; Boyd v. Newland (9" Cir. 2006) 467 F.3d 1139, 1149. “I’ve thought about it 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.” CT 3773. The prosecutor’s question was not aboutthat part of her statement where Ms. Mickenssaid that she would “obey the law of the land” — or about her statement on the questionnaire that she could vote for the death penalty (CT 3775) — or about her statements to the trial judge during his voir dire that (1) she could render either penalty in the event the jury got to the penalty phase, depending uponthe law, (2) after listening the past few days, she was ofthe opinion that she would be “able to keep an open mindrelative to listening to the information that is given and following through with the instructions,” and (3) she could be “objective and fair to both sides.” RT 1804: 8-20. Instead, referring to her pondering whetheror not society should have a death penalty, the prosecutor asked, “Have you resolved that issue in your own mind since you have been here the last few days.” RT 1806: 5-11. The question went only to her personal uncertainty whether society should have a death penalty or not. The question did not explore her uncertainty in this regard and whetherit might affect her jury service. Instead, the question only inquired whether her personal uncertainty had been resolved since called as ajuror. When Ms. Mickenscandidly replied, “Not really,” RT 1806: 13, the prosecutor immediately passed her for cause and struck her with a peremptory challenge. RT 1806: 14, 23-24.” In light of Ms. Mickens’ general statements accepting the death penalty as a potential punishmentin this case, one would “expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising strike.” Miller-El v. Dretke, supra, 545 U.S. at 244. The single cursory question to Ms. Mickens must be contrasted with the prosecutor’s more extensive questioning of white prospective jurors before using a peremptory challenge: . Prospective juror Sorg (excused, RT 1460): six questions (RT 1398-99, 1409) 10. As shown above,this is not a case where “the excused black juror had given an answerthat would exposea clear basis for the state to want to remove[her] from the pool with a peremptory challenge.” Morse v. Hanks (7" Cir. 1999) 172 F.3d 983, 985. 8 ° Prospective juror Davis (excused, RT 1484): ten questions plus a dialogue in responseto the juror’s question (RT 1398, 1410-14) ° Prospective juror Mittle-Reeder (excused), RT 1543: seven questions (RT 1379, 1402-03) ° Prospective juror Henry (excused, RT 1644): ten questions (RT 1549-55) ° Prospective juror Genevay (excused, RT 1679): nineteen questions (RT 1537-43) ° Prospective juror Renzi (excused, RT 1752): four questions (RT 1744-45) ° Prospective juror Major (excused, RT 1846): five questions (RT 1822-23) 1¥ 11. With four white prospective jurors, the prosecutor asked no questions before excusing them. In each instance, there were valid reasons established by their answers on the juror questionnaire or during voir dire by the trial court for the prosecution to wantto excuse them from service. Burke (excused, RT 1497): she had stated in her questionnaire that “I don’t like to believe in the death penalty. Myreligion is against it... .. The criminal should remain in custody for the length of time the victim is hurt. If the victim is killed, the criminal should stay in jail for life.” CT 3549. Amett (excused, RT 1579): he was 78 years old (CT 3273), and his son was an attorney with one ofthe largest firms in Orange County. RT 1488. Hutchinson (excused, RT 1803): she stated, “In the penalty phase, I think I would have a problem convicting somebodyor voting for the death penalty...To actually vote for someone to, you know,for the death penalty, I don’t know if I could do it.” RT 1800. Rankin (excused, RT 1909): he stated, “I think most of the time it would be (continued...) The prosecutor’s treatment of this African-American juror must also be contrasted with his voir dire of white jurors who expressed some uncertainty about the death penalty. In the case of three white jurors who made statements raising questions abouttheir willingness to impose a death sentence, the prosecutor did not ask one question and then excusethe juror, as with Ms. Mickens. Rather, he asked a numberof questions to probetheir feelings on the subject and ultimately allowed them to serve. For example, on the question of general feelings about the death penalty, Juror No.3 stated: “Tt would be a very hard thing to have to think about. The circumstances would play a large part in dealing with this. It would be difficult to know how I would feel.” CT 1944. Rather than asking a single question and then exercising a peremptory (as with Ms. Mickens), the prosecutor questionedthis white juror at length (RT 1722-25) and accepted the juror. 11. (...continued) very difficult for me to vote for the death penalty. I don’t think it would be impossible, but it would be very difficult for me I think in most circumstances.” RT 1906. He agreed that he had a strong feeling opposed to the death penalty. RT 1906. 10 Similarly, to the same question as to general feelings about the death penalty, Juror No. 2 stated: “1’m not sure. I don’t believe it is right to take a life; however, some crimes are so heinous that I do believe the criminal should not be allowedto live.” CT 1930. Rather than asking a single question and then exercising a peremptory (as with Ms. Mickens), the prosecutor questioned this white juror at length (RT 1446-48) and acceptedthe juror. Finally, on the questions of general feelings about the death penalty, Juror No. 9 stated: “I believe the death penalty is appropriate but only in very special circumstances. The crime would haveto be something on the order of the Charles Manson murders. I would look very carefully at the mental state of the defendant and possible motives. CT 2028. Rather then asking a single question and then exercising a peremptory (as with Ms. Mickens), the prosecutor questioned this white juror at length (RT 1793-96) and acceptedthe juror. Thus, the prosecutor’s treatment ofMs. Mickensstands in stark contrast to his treatment of these white jurors. The Supreme Court has madeclear that the burden on the challenging party at the first step of the Batson processis “minimal.” St. Mary’s Honor Centerv. 11 Hicks, supra, 509 U.S. at 506. The defendant need only show that the facts and circumstancesofthe case, including the prosecutor’s conduct, raise an “inference”of racial bias in the case of a peremptory challenge. Batson, 476 U.S. at 96. The facts and circumstances of appellant’s case clearly raise an inference that Ms. Mickens was excused by the prosecutor because ofherrace. Because of the fundamental nature of the constitutional rights of which appellant was deprived,the trial court’s erroneous denial of the Wheeler/Batson motion is reversible per se. See People v. Wheeler (1978) 22 Cal.3d at 283 (“[N]o inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected mustbeset aside.”’].) Appellant recognizes that this Court has held that where the trial court erroneously denies a Wheeler/Batson motionat thefirst step of the Batson analysis, the remedy may be to remand the matter for a hearing at which thetrial court can conduct the second and third steps of the Batson analysis. People v. Johnson (2006) 38 Cal.4th 1103-1104. Remand would not be an appropriate remedyin this case, however, because of the amount of time that will have passed 12 between appellant’s trial in September 1996 and the timethis case is decided. Penal Code section 1260 provides that an appellate court “may, if proper, remandthe case to the trial court for such further proceedings as may be just under the circumstances.” Remandis appropriate “if there is any reasonable possibility that the parties can- fairly litigate and thetrial court can fairly resolve the unresolved issue onremand. ...” People v. Braxton (2004) 34 Cal.4th 798, 819. Here, no such reasonable possibility exists, due primarily to the lapse of time. The time lapse in this case is considerably longer thanthe time periods for which limited remand was deemed appropriate in People v Johnson, supra, 38 Cal.4th at 1103-1104, makinga reliable hearing on the facts impossible as a practical matter. In People v. Johnson, supra, this Court remanded the matter where the lapse since jury selection had taken place was between 7 and 8 years. Id., 1101. Ofthe federal cases cited by the Johnson Court in which remand was ordered, none involved a time lapse as long as that involved here. Id., 1100-1101; Batson v. Kentucky, supra, 476 U.S.at 100 [trial was 2 years prior to reversal of the 13 judgment]; Williams v. Runnel (9" Cir. 2006) 432 F.3d 1102 [trial was held in March 1998, and remand was ordered in January 2006]; Paulino v. Castro (9" Cir. 2004) 371 F.3d 1083 [remand ordered 5 years after the state appellate court decision and a longer time after trial]; Fernandez v. Roe (9" Cir. 2002) 286 F.3d 1073 [remand was ordered about7 yearsafter trial]; United States v. Tindle (4" Cir. 1986) 808 F.2d 319 [remandafter less than 4 years].) In cases prior to People v. Johnson, supra, in which this Court considered and rejected remand, time lapses shorter than involved here were considered too long to allow a realistic chance of a meaningful hearing on remand. People v. Snow (1987) 44 Cai.3d 216, 226-227 [voir dire began approximately six years before reversal ofjudgment]; People v. Hall (1983) 35 Cal.3d 161, 170-171 [trial was less than 4 years before reversal ofjudgment]; People v. Allen (1979) 23 Cal.3d 286, 295, fn. 4 [trial held less than 3 years before reversal ofjudgment].) Thus, the Batson error requires reversal. 14 II. THE JURY VENIRE WAS IRREPARABLY TAINTED BY THE REMARKS OF PROSPECTIVE JUROR BERTHOUD Prospective juror Berthoud gave a lengthy statement about his experience as a prison guard at a California Youth Authority facility, concluding that defendants sentencedto life imprisonment remained a threat, to guards and fellow inmates. Herelated an incident where a prisonerserving a life sentence beat a guard to death. RT 1700-01. After the trial court made some comments about Berthoud’s statements regarding his CYA experiences,it asked if any juror had any questions about Berthoud’s statements, and apparently no one responded. RT 1736: 24-26. The court then asked if any juror wished to comment on Berthoud’s statements, and juror Dale responded that she did. RT 1737: 1-11. The court told herthat it would talk to her in private. RT 1737: 12-13. Respondentclaims: “Thetrial court questioned herin private, and it does not appear to have been reported.” RB 35. There is no foundation for the claim that she was, in fact, questionedin private. To the contrary, the absence of any reporter’s transcript of private 15 questioning of the juror is proof that no questioning occurred. Penal Code section 190.9 requires that all proceedingsin a capital case, including those in chambers, be “conducted on the record with a court reporter present” and that the reporter prepare andcertify a transcript. Thetrial judge was an experienced judge and held many hearings in this case outside the presenceofthe jury, always with a reporter present and a transcript prepared. The absence ofa transcript of any questioning of Juror Dale indicates that there was no such proceeding. Thus, the record does not support respondent’s claim thatthetrial court insured that Juror Dale was not tainted by Berthoud’s remarks. HI. THE CLAIMED SIMILARITIES BETWEEN THE DEEBLE MURDER AND THE DELBECQ MURDER DID NOT JUSTIFY ADMISSION OF EVIDENCE OF THE LATTER MURDERIN HAWAII; THE ADMISSION OF THE EVIDENCE VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OF LAW The prosecution of appellant for the murder ofMs. Deeble was totally dependent on the admission of evidence of the murder ofMs. Delbecq in Hawaii. Both the trial court and the prosecutor could not have madeit clearer that, absent evidence of the Hawaii crimes, 16 “there is no case,” “the case is over, finished.” RT 145: 13-19, 1199: 1-9. The admissibility of that evidence turned on the claimed similarities between the two incidents. As we now show, respondent’s and the prosecutor’s claimsof striking similarities is overblown,i.e., the similarities are either non-existent, common and generic to many crimes,or insufficiently established. The prosecutor argued that there were 15 similarities between the crimes that were relevant to show a signature-like pattern. See CT 529-30; RB 43. Thetrial court properly found that two were irrelevant, i.e., that the crimes occurred on Mondaynight andthat both womenhadthe initials, M.E.D. RT 1187-88, 1200. A third, that the women were both realtors, was equally irrelevant, since it had no link to the crimes. Ofthe remaining claimed similarities, five were very generic and commonto burglaries and residential robberies: that the premises were ransacked and jewelry was missing; that there was no forced entry, the perpetrator having entered by removing a windowscreen; and that both womenlived in first floor apartments. 17 Three other claimed similarities were generic and common to many homicides: that the womenlived alone, were middle-aged or elderly, and were killed in their bedrooms. Ofthe remaining four similarities claimed by the prosecutor, one wasthat “both women were boundat the wrist and ankles with telephone cords.” RB 43. In fact, the evidence was that Ms. Deeble was found with both handstied behind her back with a piece of cloth and a piece of telephone wire (RT 2011, 2054) and there were abrasions on her ankle that might have been a ligature mark. RT 2070. In contrast, Ms. Delbecq was not found boundin any way, although there were ligature-type marks on her wrists and ankles. The next claimed similarity was that “the victims suffered beatings to the face that resulted in fractured noses.” RB 43. In Ms. Deeble’s case, there was only evidenceofa single blow to the bridge of the nose (RT 2130), and the prosecution and defense pathologists differed on whether she had suffered a fracture. ” In Ms. Delbecq’s 12. Dr. Fukumototestified that Dr. Richards found a crescent in the area of the bridge of the nose that was consistent to Richardsas a fracture of the bridge ofthe nose (RT 2130-31); yet Dr. Wolfe testified that the X -rays failed to confirm the claimed fracture. (continued...) 18 case, in contrast, there was evidence of a very severe beating all over the body (with bruising to the back side and top of her head andscalp, bruises and scrapesto her nose, bruising to the front and side of her neck, and bruises to her left shoulder and both breasts. RT 2293-94), and her nose wasclearly fractured and her jaw abraided. RT 2298. The next claimed similarity was that “both victims were strangled.” RB 43. However, the strangulations could not have been more different. Ms. Deeble died from ligature strangulation, which was carefully planned anddistinctive in its relative (what respondent terms “elaborate” (RB 122)) complexity — the victim was face-down towards the floor with her handstied behind her back and with her neck in a makeshift noose hanging from a dresser drawer. RT 2011, 2045, 2054. In contrast, Ms. Delbecq died from a violent manual strangulation, which left substantial bruising to the front and sides of her neck, incise- type abrasions over the voice box, and fingernail marks on the neck, and which hadresulted in a fracture of the hyoid bone and the small bone right above the voice box. RT 2294-96. 12. (...continued) RT 2478. 19 Anothersimilarity, not claimed by the prosecutor or relied upon by the trial judge but noted by respondent, was that “both women also suffered from incise wounds or wounds caused by a sharpened instrument.” RB 51. In Ms. Deeble’s case, there was a single injury, and it was a matter of great dispute between the prosecution expert and the defense expert as to its cause. Dr. Fukumototestifiedthat there was an incisional type cut to the left ear drum that was caused by a sharp or pointed instrument. RT 2127-29. Dr. Wolfe disagreed andtestified that the injury to the left ear drum was characteristic of a ligature strangulation and did not indicate use of a sharp instrument. RT 2479-86. In Ms. Delbecq’s case,in contrast, the evidence was undisputed she had been repeatedly attacked with a sharpenedor pointed instrument. The Hawaii coronertestified that he found an incise woundcausedby a sharpened instrumentto the left side of her jaw, abrasions and scrapes caused by a sharpened instrument on her neck, on her chest, and on both of her breasts, and scrapes and bruises over both nipples. RT 2293, 2294. In addition, there was a puncture- type woundto the left lower chest caused by a pointed object. RT 2294-95. 20 The final claimed similarity in both cases is the sexual assault. In Ms. Deeble’s case, the evidence of any assault was skimpy at best. There were some minorinjuries to the labia, the vagina, and the rectum,1.e., bruises on the labia and shallow lacerations that were not deep within the vaginal vault and rectum, but rather just inside the openings. RT 2155-2157. There wasa stain on herleg that appeared to be dried semen (RT 2070), and Dr. Wolff testified that the injuries to the vagina and rectum were “extremely minor.” RT 2492. ®' In his opinion, the minor injury could have been caused byinsertion of a penis or a finger and was consistent with consensual sex. RT 2493- 95, 2514. In contrast, the evidence was conclusive that Ms. Delbecq had been sexually attacked in an extremely violent manner. The Hawaii coroner found there were manyinjuries to her genital area such as abrasions and scraping of the skin consistent with having been caused by finger nails and bruising to the entrance of the vaginal cavity. RT 2295. In addition, there were extremeinjuries to the 13. He described the injury as “small areas of removalofthe vaginal mucosa with a small amount of hemorrhagein the areas of removal.” RT 2492. He defined “small areas” as “microscopic.” RT 2492. 21 vaginal and rectal areas. There were tears through the vaginal cavity, actually entering into the rectal cavity. RT 2295. One perforation of the vaginal wall wasin the rectal area approximately two inchesinto the vaginal cavity, and the other in the abdomen and approximately three-four inches into the vaginal cavity. RT 2295, 2301-2302. It wasclear that she had been sexually penetrated with a foreign object, because a metal hair mousse cannister was actually discovered in the latter perforation. RT 2095, 2301-02. Medical literature establishes that in 60% ofwomen who have consensualsex, there can be microscopic injury to the vagina. RT 2495. In contrast, whether there had been such a penetration in the case of Ms. Deeble — what the prosecution termed “the most signature aspect of this whole case” (RT 1190) — was a matter of great dispute. A can of hair mousse was found on top of the bed, among the covers (RT 2014), and a small white cap was found on the floor, which the police thought might fit the cannister. RT 2046-47.” A small amount ofresidue was found underneath the ridge on the mousse can. RT 2046. A presumptive test of that residue for blood resulted in a 14. It was never established that the cap did fit the cannister. 22 positive reaction. RT 2046-47. Sucha test is not specific for blood. RT 2061. It is meant to be a quick test to rule out negatives. RT 2062. The test is not always accurate, because substances other than blood can react positively and the test can’t distinguish between humanblood and animal blood. RT 2061-62. That residue may have been sent to the Serology Laboratory for more definitive testing, but, if so, the results were never produced. RT 2062-63. # Moreover, the state of the vaginal area did not support the theory that there had been a penetration with the can. Dr. Richards made no mention of finding blood in either the vagina or the rectum. RT 2145, 2157.” Dr. Wolfftestified that any blood found wasof a microscopic quantity invisible to the naked eye and was inconsistent with being the source of any blood on the mousse can. RT 2496-97. Thus, the claimed similarities between the two homicidesare overblown, at best. Many are generic, common to many crimes. As 15. There was also a substance that appeared to a police officer to be blood on the inside of the cap, but that substance was not tested. RT 2046-47, 2062. 16. Ifhe saw anyblood, he wouid have mentioned it. RT 2157. 23 to the cause of death, Ms. Deeble wasstrangled by use of a well- planned and “elaborate” ligature; in contrast, Ms. Delbecq was manually strangled in a very violent manner, causing bruises and abrasions and fingernail marks on her neck and breaking two bones, one abovethe voice box and the hyoid bone. Asto physical assault, Ms. Deeble suffered a single blow to the nose that may or may not have causeda fracture; in contrast, Ms. Delbecq was severely beaten in many areas, and there clearly wasa fracture of the nose. Moreover, it was a matter of great dispute whether Ms. Deeble had suffered a single woundto her ear from a sharp instrument, whereasit was undisputed that Ms. Delbecq had been attacked with such an instrument in many areas of the body, including her jaw, neck, chest, beasts, and nipples. Finally, as to a sexual assault — the critical key to the prosecution case — the forensic evidence did not support the theory that Ms. Deeble had been sexually assaulted, as opposed to consensual sex, whereas it was undisputed that Ms. Delbecq had been violently sexually assaulted, including penetration with a mousse can, leaving many forensically-validated injuries. In order to warrant admission of other crimes evidence to prove 24 identity, the patterns and characteristics of the crimes must be “so unusualand distinctive as to be like a signature.” People v. Kipp (1998) 18 Cal.4th 349, 370; People v. Ewoldt (1994) 7 Cal.4th 380, 403. In this case, the “signature” standard cannot be met because, as in People v. Alcala (1984) 36 Cal.3d 604, 632,“the alleged similarities break down under examination. Nor can the evidence be admitted to show a common schemeor plan, where the identity of the perpetrator is in dispute and the similarities between the crimesare not sufficiently distinctive to establish identity. People v. Ewoldt, supra, 7 Cal.4th at 405-406. Thus, the admission of the evidence of the Hawaii murder — what the prosecution described as “the heart of the case” (RT 1190) — over defense objections under Evidence Code sections 1101(a) and 352 wasclearly erroneous and resulted in trial that was so fundamentally unfair as to violate appellant’s right to due process of law. E.g., Estelle v. McGuire (1991) 502 U.S. 62, 75; see also Henry v. Estelle (9 Cir. 1993) 993 F.2d 1242; McKinneyv. Rees (9" Cir. 1993) 993 F.2d 1378; Panzavecchio v. Wainwright (5" Cir. 1981) 658 F.2d 337. The error requires reversal. 25 me THE TRIAL COURT’S ERRORIN ADMITTING EVIDENCE OF APPELLANT?’S 1994 HAWAII CONVICTIONS FOR THE MURDER OF MURIEL DELBECQ AND BURGLARY OF HER HOUSE . REQUIRES REVERSAL A. The Facts Appellant had several prior felony convictions that could have potentially been used for impeachment whenhe took the stand. Four were theft-related and thus very probative on the issue of honesty and veracity — convictions for auto theft and for receiving stolen property in 1988, for auto burglary in 1984, and for robbery in 1994. RT 2609. The rest were not theft-related and did not go to honesty andveracity, but qualified for impeachment only because they were crimes of moral turpitude: a 1987 conviction of ex-felon with a gun, and five other 1994 convictions arising out of the Delbecq case in Hawaii, for murder, kidnaping, burglary, and sexual assault (2 counts). Defense counsel did not make a motion in limine to limit impeachmentofappellant with his prior convictions, should he take the stand. RT 2606. The stated reason was that counsel was under the mistaken impression that the court’s ruling on a Penal Code 26 section 995 motion precluded the prosecution from using evidence of appellant’s Hawaii convictions for impeachment. RT 2605.After appellant testified, the prosecutor’s very first question on cross- examination was “Mr. Edwards, on March 10" of 1994, you were convicted of the murder of Muriel Delbecq in the state of Hawaii . . . .” RT 2605: 88-10. Defense counsel objected and movedto strike, ® and a bench conference was held, where counsel sought to exclude the evidence of the Hawaii convictions. RT 2605: 11-17. In deciding what convictions would be admitted under People v. Castro (1985) 38 Cal.3d 301, the trial court selected only one theft- related conviction involving honesty and integrity (the 1984 auto burglary) and allowed two other convictions involving only moral turpitude (the 1994 murder and burglary). In selecting the latter two, it prejudicially chose the convictions most similar to the present charge ofmurder with a special circumstance of commission during a 17. In that ruling, the Court dismissed a prior murder special circumstance allegation involving the Hawaii murder on the basis of insufficient evidence presented at the preliminary hearing. 18. The court never ruled on the motionto strike, leaving before the jury the stated fact that the 1994 conviction was for the murderofMs. Delbecq. 27 burglary. Instead, the court should have chosenthe three other theft- related convictions, or the kidnaping conviction, all of which were dissimilar to the present charges. Whenthe prosecutor continued his questioning on the subject after the break to rule on the defense motion, the court let the prosecutorestablish that the murder and burglary convictions were from 1994 and from the State ofHawaii (RT 2616: 4-12), thus solidifying the fact that they involved Ms. Delbecq. ” Thus, there could be no doubt in the jurors’ minds that appellant had been found guilty of the murder and burglary of Ms. Delbecq -- either by a jury like themselves or by his own guilty plea. Moreover, the prosecution’s theory wasthat, due to the similarities between the crimes, the perpetrator of the Hawaii crimeshadto be the perpetrator of the present offenses. Thus, evidence that appellant was guilty of the Hawaii crimes wasthe de facto equivalent of a directed verdict on the present charges, relieving the prosecution of its burden ofproof and renderingthe trial so fundamentally unfair as to deny appellant 19. The prosecutor had previously told the jury in his opening statement that appellant had been arrested for the Delbecq murder. RT 1961. 28 due process of law underthe state and federal constitutions. B. The Law While a prior conviction for conduct involving moral turpitude that has some bearing on the veracity of a witness in a criminal proceeding may be admissible to impeach, admission is subject to exercise of the trial court’s discretion under Evidence Codesection 352. E.g., People v. Harris (2005) 37 Cal. 4" 310, 337. The court must exclude evidence ofthe prior conviction whenits probative value on credibility is substantially outweighed bythe risk ofundue prejudice. E.g., People v. Mendoza (2000) 78 Cal. App. 4" 918, 925. Onthe probative value side, an important factor is the degree to whichthe prior conviction reflects on the issue of honesty or veracity. Id. “Ifa court determines that a prior conviction involvestruthfulness it must consider the degree of probative value it has on that issue...” People v. Woodward (1979) 23 Cal.3d 329, 336. “No one denies that different felonies have different degrees ofprobative value on the issue of credibility.” People v. Rollo (1977) 20 Cal.3d 109, 118. As the late Chief Justice Burger has pointed out, “In common human experience acts of deceit, fraud, cheating, or stealing, for example, are 29 universally regarded as conduct whichreflects adversely on a man’s honesty andintegrity. Acts of violence ... generally havelittle or no direct bearing on honesty and veracity.” Gordon v. United States (D.C. Cir. 1967) 383 F.2d 936, 940. In appellant’s case, his murder conviction — although involving moral turpitude — had no direct bearing on his honesty or integrity, and thus its probative value on his credibility was limited. 2’ His burglary conviction wassimilarly limited in probative value, because(as the trial court conceded) the court did not know whether it was for entry with intent to commit larceny, a theft-related crime, or with intent to commit some other crime, both of which constitute burglary under California Penal Code section 459, 2¥ Onthe prejudicial effect side, an equally important factor is whetherthe prior conviction is for the same or similar conduct as the 20. Cf. People v. Woodard, supra, 23 Cal. 3d at 340: “The voluntary manslaughter conviction established the commission of a violent act, which may, at the most, have indicated a character for violence...It cannot be inferred from the commission of a violent act that he wasalso disposedto falsify.” 21. On the other hand, the 1984 burglary conviction admitted for impeachment wasfor auto theft. RT 2610: 13-14. 30 charged offenses. When the prior convictions involve the same crimes charged against the defendant, the risk of undue prejudiceis substantial. As Chief Justice Burger pointed out, “Where multiple convictions of various kinds can be shown, strong reasonsarise for excluding those which are for the same crime because ofthe inevitable pressure onlay jurors to believe if he did it before’ he probably did so this time.’ ” Id. Moreover, “[t]he exclusion of a similar prior conviction is especially warranted when the defendant has also suffered a prior conviction or convictions for conduct dissimilar to that for which he is on trial, as the dissimilar crimes are available as grounds of impeachment and exclusion ofthe similar one is the wiser path.” People v. Rist (1976) 16 Cal. 2d 211, 219; emphasisin original. In Rist, this Court held it was error in a robbery prosecution to admit a prior robbery conviction where a prior forgery conviction was available for impeachment, whereas in People v. Hinton (2006) 37 Cal. 4" 839, the Court held it was not error in a murder prosecution to admit prior convictions for murder and attempted murder,“[i]nasmuch as defendant had no otherprior felony convictions available for impeachment.” Id., at 888. 31 A separate consideration on the prejudice side of the analysisis whether admission of the prior conviction risks a confusion of the issues. People v. Antick (1975) 15 Cal. 3d 79, 92. The concern is that, “{d]espite limiting instructions, the jury is likely to consider this evidence for the improper purpose of determining whether the accusedis the type ofperson who would engage in criminal activity.” Id. “This is particularly likely where the prior conviction is for the same crime as that which forms the charges against the defendant.” Id. It is against this established legal framework that the Court must measurethe trial court’s ruling on impeachmentof appellant. After appellant had testified on direct and was offered to the prosecutor for cross-examination, the first question was whether he had been convicted on March 10, 1994 of“the murder ofMuriel Delbecg in Hawaii.” RT 2605: 8-10. When defense counsel objected, the trial court noted the absenceofa prior in limine motion and then stated: “Tf I was asked to prohibit the prosecutor from impeaching Mr. Edwards underCastro,et al., I would have denied the motion. It is a crime of moral turpitude, the worst type ofmoral 32 turpitude. Highly relevant on credibility. I don’t know how I say, okay, Mr. Brent [the prosecutor], you can’t useit.” RT 2607: 8-13. When defense counsel pointed out the availability of other prior convictions besides the murder for purposes of impeachment, the court responded,“I am dealing with the last objection [to the murder conviction] first, and then we will take on- - do you wantto be heard any further on the last objection.” RT 2607: 23-25. When defense counsel then argued that once the jury heard that appellant had been convicted of the Hawaii crimes, “they are going to assume once a guy has donea crimelike this, he has — must have done the onehere too,” RT 2608: 5-8, the trial court’s response was: “IT must be missing something here. I don’t follow the logic of your argument... And if requested to impeach, I would have admitted it. There is just no question in my mind I would have permitted impeachment with this felony. Would you like to be heard on whatother felonies did you have in mind.” RT 2608: 16-23. The court then ruled the 1994 burglary admissible: “T think that the prosecutor for impeachment purposes should be permitted to get into the fact that he was also convicted of a burglary related to the homicide because that bears heavily on credibility grounds, even thoughit is a muchless serious crime than murder. It is moral 33 turpitude. And J am assuming the burglary was with intent to commit theft or robbery as well as anything else. So that is a very heavy factor in determining admissibility. RT 2612: 22-2613: 4. Finally, the court ruled the 1984 auto burglary admissible, and the rest of appellant’s convictions inadmissible. RT 2613: 15-2614: 21. Thetrial court’s rulings were riddled with errors. First, as to the murder conviction, the court failed to engage in the weighing process required under Evidence Code section 352 before ruling the conviction admissible for impeachment purposes. Without any consideration of the other relevant factors, the court jumpedto the flat-out position of “It’s a crime of moral turpitude, the worst kind of moral turpitude. Highly relevant on credibility. I don’t know how I could say, okay, Mr. Brent, you can’t use it.” RT 2607: 10-13. Having doneso,the court closed its mind on the subject and never wavered from that position. The court’s clear failure to perform the weighing process and to considerall the factors before ruling whether the conviction was admissible is a substantial error. Second,although the court stated that the murder conviction was highly relevant oncredibility, it ignored the critical fact that the 34 probative value of such a violent crime conviction is limited because the offense does not involve prevarication or dishonesty. Contrary to the trial court’s ruling, the fact that murder may involve “the worst type of moral turpitude” (RT 2607) does not make the conviction “highly relevant on credibility.” Id. Third, the court ignored the fact that appellant’s murder conviction and the present murder charge against him were identical, not just similar.. Fourth, the court failed to consider the availability for impeachmentof other felony convictions that were dissimilar to the murder charge and were more probative on the issue of appellant’s credibility. There was appellant’s 1988 conviction for auto theft, his 1988 conviction for receiving stolen property, and his 1994 conviction for robbery. Each of these theft-related crimes bears directly on the issue of veracity, unlike the crime of murder. Indeed, the trial court appeared to be unawarethat the law required it to considerthe availability of other prior convictions for impeachment. whenruling on the admissibility of the murder conviction. When defense counsel pointed out that the prosecutor had “a wholelist” of 35 prior convictions available, the court refused to consider the other convictionsas alternatives to the murder conviction, stating “I am dealing with the last objection, and then we will take on - - do you wantto be heard any further on the last objection?” RT 2607: 23-25. Finally, the court failed to consider the risk of confusion of the issues. The jury was instructed that it could not consider that appellant had committed the Hawaii crimes unless convincedthat the evidence regarding those crimes established appellant’s culpability by a preponderance of the evidence. CT 936. On the other hand, the admission of evidence of the Hawaii prior conviction showed that he had either been found guilty of that crime beyond a reasonable doubt, or had knowingly and voluntarily pleaded guilty to the crime. Rather than recognize the extremerisk ofprejudice and confusion of the jury raised by this dichotomy,the trial court stated that “[t]he only negative or meaning in the defense favor on the murderisthat it is an identical crime, but that is offset by the fact that they have already heard the 1101(B) evidence. The test is the same.” RT 2613: 20-23 (emphasis added). The court was wrong. While the jury was instructed that it could not consider the Hawaii crimes evidence 36 unless proved by a preponderanceofthe evidence, admission of the evidence of the Hawaii convictions made that analysis unnecessary, since the convictions conclusively established his guilt of those crimes. Asto the 1994 burglary conviction, the court also committed a numberoferrors. First, it failed to consider whethera third prior conviction was necessary for impeachment. Second,it failed to considerthe similarity of that burglary conviction to the allegation that appellant had committed the present murder during the commission of a burglary. Third, it failed to consider the availability of other prior convictions that were dissimilar to the burglary special circumstance and were even moreprobative on credibility because they were theft-related.” Thetrial court’s erroneous admission of the 1994 murder and burglary convictions could not be more prejudicial. In any case 22. In fact, the court admitted that it did not even know whether the burglary was for entering with intent to only commit a non-theft crime. Its decision to admit evidence ofthe conviction was based onits “assuming, a dual purpose; maybe the purpose of going in wasto steal and then a secondintent arising. Those are thingsI don’t have any information of.” RT 2614: 9-13. 37 wherea defendant is charged with murder during the course of a burglary, the prejudicial effect of allowing impeachmentwith a prior murder conviction and a prior burglary conviction is enormous because any juror would be hard pressed not to conclude that the defendant had a propensity for such crimes — “if he did it before, he must have doneit again.” In this case the prejudicial effect was multiplied by the importance of the evidence of the Hawaii convictions to the prosecutor’s theory of the case. The prosecutor’s theory wasthat the murder of Ms. Deeble was so similar to that of Ms. Delbecg that the perpetrator had to be the same person. In pretrial proceedings, both the trial court and the prosecutor had agreed that, without evidence of the Hawaii crimes, “there is no case” (RT 145: 13-19); “the case is over, finished” ( RT 1199: 1-9); “there is going to be an acquittal” (RT 1942: 6-11). In closing argument, the prosecutor rested his entire case on that theory, telling the jurors that they had to answer two questions: ‘Numberone is did Mr. Mark Edwards kill Muriel Delbecg in Hawaii? That is a simple question to answer. And,ifhe did, does that give you enough information to conclude healso killed Marjorie Deeble? And obviously, I submit to you it does. 38 RT 2913: 14-22. The reason why question number one, whether appellant murdered Ms. Delbecq, turned out to be “a simple question to answer” wasthe erroneous admission of appellant’s 1994 convictions of murder and burglary in Hawaii. Thus, evidence that appellant was guilty of the Hawaii crimes wasthe de facto equivalent of a directed verdict on the present charges (United States v. Gaudin (1995) 515 U.S. 506, 514; Sullivan v. Louisiana (1993) 508 U.S. 275, 277), and improperly relieved the prosecution of its burden ofproof. (In re Winship (1970) 397 U.S. 358, 364; Sandstrom v. Montana (1979) 442 U.S. 510, 513). The admission of the evidence rendered appellant’s trial so fundamentally unfair as to violate his right to due process of law underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. Estelle v. McGuire (1991) 502 U.S. 62; Colley v. Sumner (9" Cir. 1986) 784 F.2d 984, 990; Terranova v. Kinchloe (9" Cir. 1988) 852 F.2d 424, 428-29: People v. Valentine (1986) 42 Cal.3d 170, 177. Thus, the error in admitting evidence of the Hawaii convictions requires reversal. 39 VB. THE TRIAL COURT’S ERRONEOUS EXCLUSION OF TESTIMONY OF TWO DEFENSE WITNESSES REGARDING APPELLANT’S PREVIOUS ALCOHOLIC BLACKOUTS REQUIRES REVERSAL A. The Facts Vincent Portello testified that one evening in 1991 or 1992, he, appellant, and appellant’s girlfriend were out drinking heavily. As appellant drove to get more alcohol, the girlfriend began to hit him and threaten him with a screwdriver, and appellant lost control of the car. RT 2713-2715. Portello testified that the following day he mentioned the incident to appellant, and then was asked whether appellant had stated he had norecall of the incident. RT 2715-16. The prosecution’s hearsay objection was sustained. RT 2716. Janice Hunttestified that on an evening in 1992, she asked appellant, who had been drinking heavily, to buy some groceries. The next morning she found the groceries, including somerefrigerated items, in the car appellant had driven to the store. RT 2644-45. Whenshe was asked what appellant said when she confronted him with that fact later that day, the prosecution’s hearsay objection was 40 sustained by thetrial court. RT 2647. B. The Law Defense counsel proffered that each witness would have testified that in response appellant had stated that he had no memory of the previous night’s events, and argued that these responses were admissible under Evidence Codesection 1250(a). RT 2716, 2545. That section provides that a statement of the declarant’s then-existing state of mind is not inadmissible as hearsay when offered to prove the declarant’s state of mind at that time when it is an issue in the action. Respondent does not dispute that the excluded evidence was a statement of appellant’s state of mind at the time it was made,i.e., a lack of memory of the previous night’s happenings. Respondent does not dispute that defendant’s lack of memory at that time, evidencing an alcoholic blackout, was circumstantial evidence corroborating appellant’s testimony that he had no memory of the Deeble or Delbecq killings and, if he was involved in those killings, he had been in an alcoholic blackout at the time. Rather, respondent claims the evidence was inadmissible under Evidence Code section 1250(b), which prohibits a statement of memory to prove the fact remembered. 4] RB 79. The argumentis meritless. Section 1250(b) would prohibit admission of a statement “I remembermygirlfriend hitting me and mylosing controlof the car” to prove the fact remembered,i.c., that the girlfriend had hit him and he hadlost control of the car. It does not prohibit admission of a statement “I cannot remember mygirlfriend hitting me or my losing control of the car” because the statementis not offered to prove that the girlfriend did (or did not) hit him or that he did (or did not) lose control of the car. Thus, the trial court erred in excluding the defense evidence. Moreover,the error was highly prejudicial. The prosecutor urged the jury to dismiss appellant’s testimony that he had suffered a blackout regarding Ms. Deeble’s death: Andso the only words, you have,the only person that knows whetheror notthat (sic) he had a blackout was Mr. Edwards. And you are back to the same issue, why do you believe Mr. Edwards? RT 2944. If the trial court had not erred, the answer, of course, would be that he should be believed because two witnesses confirmed that he had a 42 history of alcoholic blackouts. That testimony washighly credible, since at the times that appellant had stated he didn’t remember the previous night’s events, he had no reason to prevaricate or feign a lack of memory. Thus, the court’s erroneous exclusion ofcritical defense evidence requires reversal. VI. THE USE OF HEARSAY EVIDENCE REGARDING THE AUTOPSY FINDINGS VIOLATED APPELLANT’S CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AND REQUIRES REVERSAL OF THE CONVICTIONS, SPECIAL CIRCUMSTANCES FINDINGS, AND DEATH SENTENCE The autopsy ofMs. Deeble was conducted by Dr. Richards. RT 2122. By the time of appellant’s trial, Dr. Richards had retired. RT 2122. Instead of calling Dr. Richardsto testify as to his autopsy findings, the prosecutor elected to call Dr. Fukumoto, a pathologist and memberofthe same medical group as Dr. Richards. RT 2121. The purposeofcalling Dr. Fukumoto was, in the prosecutor’s words, “to go through with you someofDr. Richards’ specific findings.” RT 2124. He then had Dr. Fukumoto devote the bulk of his testimony on 43 direct, re-direct, and re-re-direct examination to telling the jury what Dr. Richards hadset out in his written autopsy report. RT 2126-39, 2159-61, 2163-64. As we now show,this hearsay evidence violated appellant’s constitutional right to confront witnesses and requires reversal. A. The Court Must Decide The Merits Of Appellant’s Confrontation Claim Defense counsel did not object to Dr. Fukumoto’s testimony regarding Dr. Richards’ findings. However, that is not a procedural bar, and the Court must decide the constitutional issue on the merits. The Court has madeclear that “(t]hough challenges to procedures or to the admission of evidence normally are forfeited unless timely raised in the trial court, ‘this is not so when the pertinent law later changed so unforeseeably that it is unreasonable to expecttrial counsel to have anticipated the change.’ ” People v. Black (2007) 41 Cal. 4" 799, 810-11, quoting People v. Turner (1990) 50 Cal. 3d 668, 703; see also People v. Chavez (1980) 26 Cal. 3d 334, 350, fn. 5 (counsel’sfailure to object to admission of hearsay statements did not forfeit a claim of error under the Confrontation Clause, because a number of appellate court cases had 44 upheld the admissibility of such statements in the face of similar challenges). Appellant’s trial was held in 1996. In 1992, this Court had held that the testimony of a pathologist regarding the contents of an autopsy report prepared by another pathologist, who had since passed away,did not violate the Confrontation Clause because it was admitted “undera firmly rooted exception to the hearsay rule that carries sufficient indicia of reliability to satisfy the requirements of the confrontation clause.” People v. Clark (1992) 3 Cal. 4" 41, 158, see also People v. Beeler (1995) 9 Cal. 4" 953, 979 (testimony of Dr. Fukumoto, the prosecution witness in this case, regarding the autopsy findings of another pathologist did not violate the confrontation clause). In 2004, the Supreme Court issued its decision in Crawfordv. Washington (2004) 541 U.S. 36. As this Court has recognized, Crawford “abandoned” the indicia-of-reliability standard used bythis Court in Clark. See People v. Geier (2007) 41 Cal. 4" 555, 597. Because ofthis wholesale change in the law, a series of Court of Appeal decisions have held that a Crawford claim is not waived or 45 forfeited by the failure to make a Sixth Amendment objection in the trial court. See People v. Johnson (2004) 121 Cal. App. 4" 1409, 1411, fn. 2 (“the failure to object was excusable, since governing law at the time of the hearing afforded scant grounds for objection”); People v. Butler (2005) 127 Cal. App. 4 49, 54,fn. 1 (same); People v. Saffold (2005) 127 Cal. App. 4" 979, 984 (“any objection would be unavailing under pre-Crawford law”); People v. Thomas (2005) 130 Cal. App. 4" 1202, 1208 (same). Thus, the Court should decide the merits of appellant’s claim. B. Dr. Fukumoto’s Testimony Violated The Confrontation Clause The Sixth Amendment, made applicable to the states by the Fourteenth Amendment (Pointer v. Texas (1965) 380 U.S. 400, 401, provides: “In all criminal prosecutions, the accused shall enjoy the right . .. to be confronted with the witnesses against him.” Theright of confrontation has been construed to include not only the right to face-to-face confrontation, but also the right to meaningful and effective cross-examination. Davis v. Alaska (1974) 415 U.S. 308, 315-316. 46 Even prior to Crawford, supra, 541 U.S. 36, United States Supreme Court decisions suggested that the Confrontation Clause requires the prosecution to presentthe findingsofits forensic examiners through live testimony at trial. See California v. Trombetta (1984) 467 U.S. 479, 490 [“defendantretains the right to cross- examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind ofthe fact- finder whether the test was properly administered”]; Diaz v. United States (1912) 223 U.S. 442, 450 [autopsy report and otherpretrial 99 6 statements, characterized as “testimony,” “could not have been admitted without the consent of the accused . . . because the accused wasentitled to meet the witnesses face to face”’]. For a few decades preceding Crawford, however, an out-of- court statement could be admitted over a Confrontation Clause objection if the witness was unavailable to testify and the statement carried with it adequate “indicia ofreliability.” Ohio v. Roberts (1980) 448 U.S. 56, 66. In order to meetthis test, the evidence had to either “fall within a firmly rooted hearsay exception” or “have particular guarantees oftrustworthiness.” Ibid. 47 Following Crawford, however,the fact that evidencefails within a firmly rooted hearsay exception or has guarantees of trustworthiness is not germane to the Confrontation Clause analysis. Crawford expressly overruled Ohio v. Roberts and divorced the law of hearsay from its Confrontation Clause jurisprudence. In Crawford, the Supreme Court affirmed that the Sixth Amendment guaranteed a defendant’s right to confront those “who ‘bear testimony against him.’” and that a witness’ testimony against a criminal defendant is inadmissible unless the witness appearsat trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. 541 U.S.at 51, 54. In the controlling case of Melendez-Diaz v. Massachusetts (2009) US.___,129S.Ct. 2527, the High Court faced the issue whether a defendantis denied his right to confrontation when, rather than calling a laboratory analyst to testify to. the tests that were performed andthe results of those tests, the State elected to rely on a certificate of the analyst stating that the test results showedthat the substance submitted contained cocaine. The Court held “under our decision in Crawford the analysts’ affidavits were 48 testimonial statements, and the analysts were ‘witnesses’ for purposesof the Sixth Amendment. Absent a showingthat the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner wasentitled to “be confronted with’” the analysts at trial. Crawford, supra, at 54.” 129 S.Ct. at 2532. The Court stated that the certificates came under Crawford, for two reasons. First, they were clearly affirmationsof fact: “The fact in question is that the substance foundin the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine — the precise testimony the analysts would be expected to provideif called at trial. The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ Davis v. Washington, 547 U.S. 813, 830 (2006) (emphasis deleted).” Second,the certificates were “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a latertrial.’” Id., at 2536, quoting Crawford, at 52. Under Melendez-Diaz, it is clear that testimony regarding Dr. Richards’ autopsy report is testimonial. The report was clearly made under circumstances which would lead an objective witness to believe that the statement would be available for use at a later trial. Coroners 49 and deputy coroners whose primary duty is to conduct inquests and investigations into violent deaths are designated as peace officers under California law. Penal Code section 830.35(c). The purpose of an autopsy is to determine the circumstances, manner, and cause of violent, sudden or unusual deaths. Gov. Code sec. 27491 7”; Dixon v. Superior Court (2009) 170 Cal.App.4th 1271, 1277 (“It is through the coroner and autopsy investigatory reports that the coroner ‘inquire[s] into and determine[s] the circumstances, manner, and cause’ of criminally related deaths.”) Thefindings resulting from the 23. part: death deaths ground to include law Government Code section 27491 provides, in pertinent “Tt shall be the duty of the coroner to inquire into and determine the circumstances, manner, and cause ofall violent, sudden or unusual death; . . . known or suspected homicide ...;... deaths due to .. . strangulation . . .; in whole or in part occasioned by criminal means; .. . under such circumstances as to afford a reasonable suspect that the death was caused bythe criminal act of another... . Inquiry pursuantto this section does not those investigatory functions usually performed by other enforcement agencies.” 50 autopsy must be “reducedto writing” or otherwise permanently preserved. Gov. Codesec. 27491.4. Upon determining that there are reasonable grounds to suspect that a death “has been occasioned by the act of another by criminal means,” the coroner must “immediately notify the law enforcement agency having jurisdiction over the criminal investigation.” Gov. Code sec.27491.1. Officially inquiring into and determining the circumstances, manner and cause of a criminally related death is certainly part of a law enforcement investigation. Dixon, supra, 170 Cal.App.4th at 1277. As this Court observed in Mar Shee v. Maryland Assurance Corp. (1922) 190 Cal. 1, 4, the primary purpose of a coroner’s inquest “is to provide a means for prompt securing of information for use of those who are charged with the detection and prosecution of crime.” These circumstances, coupled with the fact that Dr. Richards’ report was prepared in the midst of a homicide investigation and a homicide detective who wasinvestigating the death waspresentat the autopsy (Government Code section 27491), establish that the autopsy report was testimonial. As with the certificates at issue in Melendez- Diaz, the autopsy report constitutes a “solemn declaration or 51 affirmation madefor the purposesofestablishing or proving some fact,” namely the ‘circumstances, manner and cause’ of Ms. Deeble’s death. Moreover, it plainly was “made under circumstances which would lead an objective witness reasonably to believe that would be available for use at a later trial.” Melendez-Diaz, supra, 129 S.Ct. at 2536, 24. Following Melendez-Diaz, a numberofappellate courts have found autopsy reports prepared in cases of suspected homicide to be testimonial statements. For example, in Woodv.State (Tex..App. 2009) 299 S.W.3d 200, a Texas appellate court held that while not all autopsy reports are categorically testimonial, where the autopsy was conducted in a suspected homicide and homicide detectives were present during the autopsy, the pathologist preparing the report would understandthat the report containing her findings and opinions would be used prosecutorially. The autopsy report thus “was a testimonial statement and [the pathologist who authored the report] was a witness within the meaning of the Confrontation Clause.” Id., at 210; see also Martinez v. State, 2010 Tex.App.LEXIS 2124 *15 [agreeing with Wood]. The North Carolina Supreme Court found that the United States Supreme Court in Melendez-Diaz “squarely rejected” the argument that an autopsy report wasnot “testimonial,” and held that evidence of forensic analyses performed by a non-testifying forensic pathologist and a non-testifying forensic dentist violated the defendant’s right to confrontation. State v. Locklear (2009) 363 N.C. 438, 452 [681 S.E.2d 293]; see also State v. Johnson (Minn.App. 2008) 756 N.W.2d 883, 890 [pre-Melendez-Diaz case holding that autopsy report prepared during pendency of homicide investigation wastestimonial]; State v. Bell (Mo.App. 2009) 274 S.W.3d 592, 595 (continued...) 52 Moreover, the fact that Dr. Fukumoto was available for cross- examination did notsatisfy defendant’s right of confrontation. Where,as here, an expert baseshis testimony on statements by another and discloses those statements to the jury, Crawford requires that the defendant have the opportunity to confront the individual whoissued the statements. Substituted cross-examination is not constitutionally adequate. (See Minookin, Expert Evidence and the Confrontation Clause After Crawford v Washington (2007), 15 J.L. & Poly at 791, 834 [“Crawford’s language simply does not permit cross- examination of a surrogate when the evidence in question is testimonial.”] Moreover, “any expert’s opinion is only as goodas the truthfulness of the information on whichit is based.” People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427. “[I]f the [expert’s] opinion is only as goodas the facts upon whichit is based, and if those facts consist of testimonial hearsay statements that were not subject to cross-examination, thenit is difficult to imagine how the defendant is expected to ‘demonstrate the underlying information[is] 24. (...continued) [same]. 53 incorrect or unreliable.”].) Seaman, Triangular Testimonial Hearsay, The Constitutional Boundaries of Expert Opinion Testimony (2008) 96 Geo. L.J.) 827, 847-848 Asthe court observed in Melendez-Diaz, the prosecution’s failure to call the lab analysts as witnesses prevented the defense from exploring the possibility that the analysts lacked propertraining or had poor judgmentand from testing their “honesty, proficiency, and methodology.” 129 S.Ct. at 2538. The sameis true here. The prosecution’s failure to call Dr. Richards as a witness prevented the defense from exploring the possibility that he lacked propertraining or had poor judgmentand from testing his honesty, proficiency, and methodology. Thus, Dr. Fukumoto’s testimony regarding the facts set forth in Dr. Richard’s autopsy reports violated appellant’s rights under the Sixth and Fourteenth Amendments, as did Dr. Fukumoto’s testimony regarding his own opinions based on the autopsy report. As to the latter, it is no answerthat the facts from the autopsy were not offered for the truth of the matter stated, but only as the basis for Dr. Fukumoto’s opinions. The jury was never instructed that the autopsy facts were admitted for a limited purpose and could not be considered 54 for the truth of the mat ter stated. Indeed, the jurors were told that, i n evaluating the opinion of an expert like Dr. Fukumo to, they were to consider“the facts and ot her matters upon which it was based.” CT 940. In other words, th e jury was told, in effec t, that the expert’s opinions were dependent upon the accuracy of Dr. Richard’s autopsy findings and they should consider whether those fi ndings were accurate. C. The Constitutiona l Violation Requires Rev ersal Of The Conviction, Spec ial Circumstance Findings, And Death Se ntence The confrontation violat ion requires reversal, unle ssthe prosecution can show “b eyond a reasonable doubt that the error complained ofdid not con tribute to the verdicts obt ained.” Chapman y. California (1967) 386 U SS. 18, 24. Dr. Richards’ autopsy findings played a key role in the g uilt trial and clearly cont ributed to the verdicts. In the guilt phase, Dr. Fu kumoto testified at lengt h during direct examination about Dr. Richards’ report of th e autopsy ofMs. Deeble. Hetestified that Dr. Richards made the fo llowing findings in his autopsy report: 55 There wasbleeding in the whites of the eyes. RT 2126- 27 There were injuries to the ears — the internal exam showed extensive hemorrhage in the middle ears; tearing was noted in the right ear drum; a break in theleft ear drum, which Dr. Richards described as incisional in type, was caused by a sharp instrumentor an instrument with a point. RT 2127. There were twoscratch-like lacerations on the right ankle, which Dr. Richards described as going from bottom to up and as being caused by wires coming together and causing the injury. RT 2129-30. There wasa finding of marked engorgement; marked blood vesselstatis or presence ofblood in the neck, upper neck and face area. RT 2130. There was a crescentin the area of the bridge of the nose which Dr. Richards said was consistent with fracturing of the nose. RT 2130-31. There was an abraided laceration in the left chin area. RT 2131. The internal examination showed numerouspetechia, pinpoint hemorrhaging in the scalp and muscletissue. RT 2132. The subarachnoid fluid was bloody throughout; there was somelayering of blood on the dura; and some blood clot on the inner surface of the dura. RT 2133. There was no broken hyoid or other bone in the neck. RT 2133. 56 10. 11. 12. 13. 14, 15. There wasfresh bleeding in the tissues closeto the tail of the pancreas. RT 2135. There was food untouched by digestion. RT 2136. There were bruises on the labia and on the vaginalvault; there was hemorrhageandlaceration in the area ofthe posterior fourchette. RT 2137. The anus wasdilated. There were mucosallacerations of the rectum, including tearing of the inner covering of the rectum within the dilated anus. RT 2137. The cause of death was asphyxiation dueto ligature strangulation. RT 2139. Onredirect, Dr. Fukumoto again testified to the findings from Dr.. Richards’ report of the autopsy, including the following: 1. There wasno tissue responsein the area of the vagina. RT 2159. Dr. Richards said there “is” a fracture of the nose, not “may be.” RT 2160. An area extending from the mouth overto the left cheek appeared to have a residue of adhesive tape. RT 2160. In his closing argumentin the guilt phase, the prosecutor ~ placed great reliance on Dr. Fukumoto’s testimony regarding Dr. Richards’ findings. First, he reminded the jury that Dr. Richards 57 found microscopic injuries to the rectal and vaginal areas. RT 2905. Then, in his argument to show the claimedsimilarities between the two murders, the very crux of the prosecution case, he relied on numerousfindings by Dr. Richards: a) b) g) h) j) ligature marks on Marjorie Deeble’s ankles. RT 2921. a sharp instrument wasusedto cut herear (“Dr. Richards says ... in speaking of the eardrumsontheleft ear on the left side, the tearing is sharp,that is, incisionalin its aspect”). RT 2923. her nose wasfractured. RT 2924-25; see also RT 2935. her head was swollen. RT 2925. there were injuries to her pancreas. RT 2925. (“Rememberthe pancreasis that organ that is deepin. It takes severe beating to injure it.”) the cause of her death wasstrangulation. RT 2925-26. her eyes had petechial hemorrhaging. RT 2928. her ear drums exploded. RT 2928. “the injuries that were visible to Dr. Richards’ eyes.” RT 2934. there was residue on her face. RT 2935-36; see also RT 3097. 25. RT 2925. He termed Itemsc) - e) above “significant similarities.” 58 Finally, in order to proveits theory of torture-murder andthe torture special circumstance, the prosecution placed its primary reliance on the claim that appellant had sexually penetrated Ms. Deeble with the mousse can and had penetrated her ear with a sharp or pointed object. The defense expert, Dr. Wolff, had testified that the evidence did not support either of the claimed penetrations. The prosecutorrelied on Dr. Richards’ autopsy findings to defeat the defense expert’s testimony. As to the sexual penetration, he stated: “They avoided those moussecanslike the plague. They have a doctor talking about how the microscopic injuries to Mrs. Deeble would not haveleft any blood.” Whenasked then what aboutthe injuries that were visible to Dr. Richards’ eyes? Well, there weren’t any of those. Dr. Richards is wrong. That is the best they can do on this. RT 2933: 22 - 2934: 4. Asto the injuries to the ear, he stated: “Now, the defense puts on a witness to say that they could have beentearing or it could have been a sharp instrument. We can’t know which. “Well, the autopsy surgeon whodid the autopsy, whois experienced in violent death autopsies, says it is not. He talks about otherinjuries to the ear being tearing. He differentiates between 59 the two. But he said the one injury was from a sharp instrument. Okay, again, you are going to have to determine who youbelieve on that.” RT 2923: 22 - 2924: 5. After the first penalty jury resulted in a mistrial, there was a second penalty trial, where Dr. Richards’ autopsy findings again played a prominentrole and the prosecution againrelied on Dr. Fukumototo testify as to “some of Dr. Richards’ findings.” RT 5185: 23-24. Dr. Fukumototestified as to the following findings by Dr. Richards from the Deeble autopsy: l. There was extensive bleeding in the areas of the eyes and face. RT 5188. There were petechial hemorrhagesin the eyes and facial areas and inside the brain. RT 5188. There wasperforation of both eardrums; the left was a torn eardrum, where the pressure was so great it broke,it actually tore; the right had a sharp break which Dr. Richards describedas incisional, meaning caused by a sharp instrument. RT 5189. There were ligature marks down around the ankles. RT 5191. There were ligature marks on the wrists. RT 5191. There was a scratch or mark on one of the ankles that was causedby a wire or ligature itself. RT 5191-92. 60 10. 11. 12. 13. 14. 15. 16. There was evidence of blunt force traumaresulting in the swelling of the face, bleeding around the eyes, and a broken nose. RT 5192. There was marked engorgementofthe facial area. RT 5193. There was bleeding inside the muscle area ofthe skull, inside the skull, a subarachnoid hemorrhage and an area of subdural hemorrhage. RT 5193. The hyoid bone was not broken. RT 5194. There was bleeding in the area of the pancreas. RT 5194-95. There wasdilation of the anus. RT 5195. There was bruising of the vaginal wall with small lacerations. RT 5195. There were small lacerations of the mucous membrane covering the anus and rectum. RT 5195. The cause of death was asphyxiation dueto a ligature strangulation. RT 5196. There was a substance Dr. Richards described as consistent with adhesive tape in the area of the mouth. RT 5197. In his closing argument seeking the death penalty, the prosecutorrelied on the following of Dr. Richards’ findings in urging the jury to sentence appellant to death: (a) one eardrum exploding, 61 (b) a sharp object rammed into the other eardrum, causing an incisional cut, (c) tape residue in the moutharea, (d) petechial hemorrhaging, (e) damageto the head, (f) fractured nose, (g) damage in the area of the pancreas, and (h) damageto the vaginal and anal areas. RT 6414-15. The Supreme Court hasruled that, in determining prejudice from a confrontation clause violation, among the factors for the Court to consider are “the importance of the witness’ testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutor’s case.” Delaware v. Van Arsdall (1986) 475 U.S. 673, 684. In this case, in both the guilt phase and the second penalty phase,(a) the testimony regarding the autopsy findings was absolutely essential to the prosecution case; (b) the testimony was in no way cumulative to any other properly admitted evidence;(c) in the guilt phase there was testimony from the defense expert, Dr. Wolff, contradicting several important findings; (d) there was no cross-examination of Dr. Richards abouthis findings; and(e) 62 the prosecution case on guilt was weak, totally dependent on the other crimes evidence, while the case on penalty was evenly balanced. Thus,the critical Sixth Amendmentviolation requires reversal of the convictions, special circumstance findings, and death sentence. VIC. THE ADMISSION OF HEARSAY EVIDENCE OF A STATEMENT BY LABORATORY PERSONNEL THATA LIST OF POSSIBLE SUSPECTS HAD BEEN ELIMINATED AS DONORS OF SEMEN AND FLUIDS AT THE DEEBLE CRIME SCENE VIOLATED APPELLANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS OF CONFRONTATION AND REQUIRES REVERSAL The defense established that seven possible suspects in the Deeble murder had been required to provide hair samples for comparison with hair found at the Deeble crime scene. RT 2800. The samples had proved to be inadequate, but no new samples were provided or analyzed. RT 2800-2801. In an attemptto justify that failure, the prosecutor had Sergeant Janssen testify that laboratory personnel had told him that this list ofpeople had been eliminated as donors of semen and fluids at the Deeble crime scene. RT 2838. The admission of this hearsay evidence violated appellant’s Sixth 63 Amendmentright of confrontation, as delineated in Crawford v. Washington (2004) 541 U.S. 36. 2% Respondentattempts to justify admission of the evidence under Evidence Code section 1250. RB 115-117. The attempt fails, for two reasons. First, Section 1250 only provides for admission of “a statementof the declarant’s then existing state of mind.” The statement at issue here — laboratory personnel hadstated that the list ofpeople had been eliminated as donors of semen andfluidsat the scene — has nothing to do with the state of mind of the declarants,i.e., the laboratory personnel. 2” Second, regardless of the admissibility under the Evidence Code, use of the hearsay evidence violates the Sixth Amendmentifthe defendant is not allowed to confront the witness. 26. Although defense counsel objected to the evidence on several grounds, they did not object on Sixth Amendment confrontation grounds. However, because the Crawford decision was a wholesale change in the law, counsel’s failure to object does not forfeit appellant’s Crawford claim, and the Court must reach the merits of the claim. See pp.31-33, supra. 27. Noris the state ofmind ofthe laboratory personnel “an issue in the action” or “offered to prove or explain [their] acts or conduct,” as separately required under Section 1250. 64 Respondentalso notesthat the trial court instructed the jury that “these questionsofthis officer is being offered for a limited purpose, and the limited purposeis this officer’s state of mind.” RT 2837. However,the instruction doesnot cure the error. It only refers to the limited “purpose”of “these questions” and places no limitation on the jury’s use of the evidence in response to the questions,i.e., the hearsay evidencethat the suspects had been eliminated. It certainly does nottell the jurors that they may not consider the lab personnel hearsay statements for the truth of the matter stated, the crux of a confrontation clause violation. The Sixth Amendmentviolation requires reversal, because the prosecution cannot prove beyond a reasonable doubt that the error did not contribute to the guilty verdicts. Chapman v. California (1967) 386 U.S. 18. Just prior to this testimony, the prosecutor had asked Sergeant Janssen whether“it is 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?” RT 2820. The defense objection was sustained, the evidencestricken, and the jury instructed not to “assumeor think 65 about” DNA. Whenthe prosecution was then allowed to introduce the hearsay evidence that laboratory personnel hadstated that the suspects “were eliminated as donors of semen andfluid at the crime scene,”it is hard to believe that any juror would not conclude thatit was DNAtesting that had eliminated them, particularly when the prosecutor referred to other people being eliminatedin his closing argument. See RT 2913. Thus, the Sixth Amendmentviolation was highly prejudicial becauseit led the jury to believe — incorrectly — that DNAanalysis, which the average layperson considers foolproof, had eliminated all suspects other than appellant in the Deeble murder. Reversal is required. XVIII A. THE TRIAL COURT’S ERRONEOUS REFUSAL TO GIVE A LINGERING DOUBT INSTRUCTION REQUIRES REVERSAL OF THE DEATH SENTENCE A. The Facts In the first penalty phase, where the jury hung 9-3, the defense had submitted a lingering doubtinstruction. Thetrial court stated that “lingering doubt would be relevant,” because “the lingering doubt cases talk aboutjurors being able to require a higher degree ofproof 66 than proof beyond a reasonable doubt.” RT 3979. Instead of the requested defense instruction, however,thetrial judge gave “a proposedinstruction on lingering doubtthat Iput together” (RT 3988-89), explaining “what [defense counsel] want the court to dois tell the jury that they can apply a higher standard in this phase” (RT 3993). 28 Accordingly, the first penalty phase jury was instructed as follows: “Although the jury has found the defendant guilty of murder in the first degree and found the special circumstances of torture burglary to be true by proof beyond a reasonable doubt, the jury may demand a greater degree of guilt for the imposition of the death penalty. “Tt 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 a reasonable doubt and beyondall possible doubt.” RT 4192. In closing argumentthe prosecutor stated: “You are also told something thatis sort of interesting. You are allowed to consider a concept known as lingering or possible doubt. In other words, maybe he 28. When the prosecutor argued that the court was not required to give a lingering doubt instruction (RT 3991), the court replied “[i|t is not error to give this instruction,” to which the prosecutor agreed: RT 3992:Ins. 6-8. 67 RT 4021. really didn’t do it. You are allowed to considerthat as a factor in mitigation. I don’t know if the defense is going to argue that. That is the law. That is part of it. You are going to determine what applies or not; what doesn’t.” The second penalty phase wasfar different. Defense counsel requestedthat the trial court give the following instruction authorizing the jury to consider any lingering doubt regarding appellant’s guilt as a possible mitigating factor: “Although the defendant has been found guilty of murderin the first degree, and the special circumstancesoftorture and burglary have been foundto be true, by proof beyond a reasonable doubt, the jury may demanda greater degree ofcertainty 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 doubt is defined as that state of mind between beyond a reasonable doubt and beyondallpossible doubt.” Theinstruction is virtually identical to the instruction given by the trial court in the first penalty phase and to instructions approved by this Court in People v. Arias (1996) 13 Cal.4th 92, 183; People v. Snow (2003) 30 Cal.4th 43, 125; and People v. Harrison (2005) 35 68 Cal.4th 208, 256. This timethetrial judge did an about-face and refused to give the instruction. The court stated: “The theory is adequately covered by factor (k). The Court is not going to give it. All of the recent cases, although they haven’t disapproved ofthe instruction, nothing clearly saysit’s not [sic] necessary to be in. So the court is not giving the defense special instruction.” RT 6277. In spite of itsprevious statement (in a different context) that it would not changea ruling “unless you can show me where I made a mistake” (RT 4361: 10-14), the court never explained whyit had decided to exercise to give the instruction in the first penalty phase, only to turn around and refuse it in the second penalty phase. The court never evenhinted at any changed circumstancescalling for this huge about-face. Citing the court’s reference to factor (k), defense counsel then requested that the factor (k) instructions be modified to list lingering doubt as something that could be considered underthat factor. RT 6277: 12 - 6278: 19. The court refused the modification, telling defense counselthat they could argue that point. RT 6277: 18 - 6278: 69 2. Counsel aptly responded,“But, judge, I can tell them anything. You know that. They’re not going to believe me.” RT 6278: 3-4. With the change in the penaltyphase instructions came a changein the prosecution closing argument. Instead of conceding lingering doubt as a validpotential factor in mitigation, as he had in the first trial (RT 4021), the prosecutor called any argumentto that effect shameful: “shame on them.” RT 6359: 14-15. The court’s refusal to give the lingering doubt instruction was error, requiring reversal of the death sentence, B. The Law It is well-established that California state law authorizes the defendantin a capital case to present to the sentencing jury evidence raising a lingering or residual doubt as to his guilt. In People v. Terry (1964) 61 Cal.2d 137, the Court held that the California death penalty statute in effect at that time, which authorized the presentation in the penalty phase of evidenceasto “the circumstances surrounding the crime... and of any facts in... mitigation of the penalty,” entitled the defendant to present evidenceraising a lingering doubt asto his guilt in a penalty retrial. As Justice Tobriner explained, 70 Id., at 146. “Indeed, the nature of the jury’s function in fixing punishment underscores the importance of permitting the defendantthe opportunity of presenting his claim of innocence. The jury’s task, like the historian’s, must be to discover and evaluate events that have faded into the past, and no human mind canperform that function with certainty. Judges and juries must time and again reach decisions that are not free from doubt; only the most fatuous would claim the adjudication of guilt to be infallible. The lingering doubts ofjurors in the guilt phase may well cast their shadowsinto the penalty phase and in some measureaffect the nature of the punishment. Even wereit desirable to insulate the psychological reactions of thejurors as to eachtrial, no legal dictum could compel such decision, and, in any event, no statute designs it.” Thepresent California death penalty statute is even broader in its authorization of evidenceat the penalty phase than thatat issue in Terry. Penal Code section 190.3 permits the defendant to present evidence “as to any matter relevant to aggravation, mitigation and sentence including but notlimited to, the nature and circumstances of the presentoffense .. . and the defendant’s character, background, history, mental condition, and physical condition. Thus in Peoplev. 71 Gay (2008) 42 Cal.4th 1195, this Court held that “evidence creating a lingering doubt as to the defendant’s guilt of the offense is admissible at apenalty retrial under Penal Code 190.3.” Id., at 1221. “Terry did notpurport to base its holding or analysis on any constitutionalright, state or federal; rather, it was our deathpenalty statute that authorized the admission of evidence of innocenceat apenalty retrial — and, although the statute has since beenrevised,the rule ‘obtainsto this day.’ ” Id. at 1220, emphasis omitted. This Court has also held that, just as there is no federal or state constitutional requirement that the defendant be allowed to present evidenceoflingering doubt, there is no federal or state requirement that the jury beinstructed that it may consider lingering doubts as a matter in mitigation of sentence. People v. Cox (1991) 53 Cal.3d 618, 675-78. However, the Court has held that such a lingering doubt instruction is required understate statutory law: “As a matter of statutory mandate, the court must charge the jury on any points pertinent to the issue, if requested.” Id., at 678, fn.20,citing Penal Code sections 1093, subd. (f) and 1127. “Thus, [the trial court] may be required to give a properly formulated instruction when warranted 72 by the evidence.” Id.; emphasis supplied. Here, in refusing the defense’s lingering doubt instruction, the trial court stated that the subject was adequately covered by CALJIC No.8.85, because it authorizes the jury to consider “any other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime and any sympathetic or other aspects of a defendant’s character or record that the defendantoffers as a basis for a sentence less than death, whether or not related to the offense for which heis on trial.” In People v.Price (1991) 1 Cal.4th 324, 488, the Court held that this instruction wassufficient to encompassthe notion of residual doubt about a capital defendant’s guilt. In People v. Musselwhite (1998) 17 Cal.4th 1216, the Court declined to reconsider the Price holding where “the defendant provides no explanation whythe factor (k)-derivedinstruction that was given to the jury failed to convey the notion of residual doubt in his case.” Id., at 1273. Appellant would like to now offer that explanation. Turning first to the phrase allowing evidence of “sympathetic aspects of a defendant’s character or record,” both the United States Supreme 73 Court and this Court have specifically held that lingering doubt is not encompassed within the terms “defendant’s character” or “defendant’s record.” See Franklin v. Lynaugh (1988) 487 U.S. 164, 174; People v. Cox, supra, 53 Cal.3d at 725 (holding that a capital defendant’s federal constitutional right to have the penalty phase jury consider, as a mitigating factor, “any aspect of a defendant’s character or record or any circumstance of the offense” (Lockett v. Ohio (1978) 438 U.S. 586, 605), did not include lingering or residual doubt as to guilt). “Such lingering doubts are not over any aspects ofpetitioner’ s ‘character,’ ‘record,’ or a ‘circumstance ofthe offense.’ ” Cox, 53 Cal.3d at 725, quoting Franklin, 487 U.S. at 174. The conclusions of the High Court and of this Court in this regard comport with the plain meaning of the words “character” and “record.” Ifthe highest court of the nation and the highest court of this state both cometo the conclusion that the plain meaning of these wordsdoesnot include lingering doubt, how can we expecta lay juror to conclude otherwise? Thus, the language of CALJIC 8.85 regarding the defendant’s “character or record” does not adequately advise the jury that it may consider any lingering or residual doubtas to the 74 capital defendant’s guilt as a matter in mitigation. The questions then becomes whetherajury would understand that CALJIC 8.85’s authorization to consider as mitigation “any other circumstance which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime” includes lingering doubt about the defendant’s guilt. The clear answeris “no.” “Extenuate” is defined as “to lessen ortry to lessen the seriousness or extent ofby making partial excuses.” Merriam-Webster’s Online Dictionary. The identity of the perpetrator has no relationship to “the gravity of the crime,” and thus lingering doubts as to that identity do not in any way extenuate the crime’s gravity. Therefore, the Court should reconsider the Price holding and should rule that CALJIC 8.85 does not adequately instruct the jury that it may considerresidual or lingering doubt as a matter in mitigation. A lingering doubtinstruction is even morecritical when the jury deciding penalty is not the jury that decided guilt. The guilt phase jury, as a necessary part of their deliberations, will have analyzed the evidenceas to guilt and will have measuredit against the standard ofproofbeyond a reasonable doubt. In so doing, thejurors 75 will have evaluated the evidence’s strengths and weaknessesto see if it raised any doubtas to the defendant’s guilt. The jurors will then have adjudged these doubts to determine, in the words of the standard reasonable-doubtinstruction, whether these doubts were “reasonable doubts” or only “possible doubts.” Thus, the guilt phasejury will enter the penalty phase having searched the evidencefor possible, i.e., residual or lingering, doubts about guilt and with those doubts in mind. By contrast, a jury sitting in a penalty re-trial will never feel a need to evaluate the evidence for possible doubts, unless instructed by the trial judge that such doubts could legitimately be considered a factor in mitigation of penalty. Instead,theretrial jury will only be presented evidence regarding guilt and then instructedthat, based upon that evidence, the defendant has already been found guilty of first degree murder with special circumstances. They will not be told to — and will see no need to — evaluate the strength of that evidence to determine whetherit left a lingering or residual doubt aboutguilt. Absentinstruction by the court, they will not consider whetherthe evidenceleft them with a lingering doubt, defined in thejury 76 instruction given in the firstpenalty phase, as “that state of mind between beyond a reasonable doubt and beyondall possible doubt.” Absentinstruction by the court, the retrial jury will never consider lingering doubt, and the defendant will have been denied a factor in mitigation ofpenalty long established in California law. Thus,the trial court’s rejection of the defense lingering doubt instruction violated California law. Moreover, because ofthis state- created liberty interest, denial of the instruction denied defendanthis Fourteenth Amendmentright to dueprocess of law. E.g., Hicks v. Oklahoma (1980) 447 U.S. 343. Since the state authorizes the use of lingering doubt as a factor in mitigation of sentence, appellant has a right under both the dueprocess clause and the cruel and unusual punishment clause to have the jury instructed that it may consider lingering doubt in determining penalty. E.g. Lockett v. Ohio, supra, 438 U.S. 586. Finally, the error was highly prejudicial and requires reversal of the death sentence. When the instruction wasgivenin thefirst penalty phase, thejury did not return a death verdict, with three jurors voting for life. If the instruction had been given in the second penalty 77 trial, it is reasonably likely that once again there would not have been a death verdict. Cf., People v. Brooks (1979) 88 Cal-App.3d 180, 185. Thus, the denial of the instruction contributed to the death verdict returned. Chapman v. California (1967) 386 U.S. 18. In this regard, the prosecutor exacerbated the innate prejudice arising from the absence ofan instruction authorizing the jury to consider lingering doubt as a matter in mitigation. When defense counseltried to raise this mitigating factor in closing argument without the support of a jury instruction on the subject, the prosecutor termed the argument shameful: “shame on them.” RT 6359. Theerror requires reversal of the death sentence. Dated: August 30, 2010 Respectfully submitted, QUIN DENVIR Attorney for Appellant 78 CERTIFICATE OF COMPLIANCE Counsel of Record hereby certifies thatpursuant to Rule 8.204( c)(1) or 8.360(b)(1) of the California Rules of Court, the enclosed brief isproduced using 14-point Roman type including footnotes and contains approximately 15,988 words, whichis less than the total words permitted by the rules of court. Counsel relies on the word countof the computerprogram usedtopreparethis brief. Dated: August 30, 2010 Signed: Print Name: Quin Denvir Attorney for: _Robert Mark Edwards 79 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. ROBERT MARK EDWARDS, Defendant-Appellant. L e Supreme Court No. 8073316 Orange County Superior Court No. 93WF1180 PROOF OF SERVICE I am a citizen of the United States over the age of eighteen years and nota party to the within above-entitled action. On the below nameddate, I served the following APPELLANT’S SUPPLEMENTAL OPENINGBRIEFonthe parties in said action as follows: XXX (By REGULAR MAIL)by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box at Rocklin, California, addressed as follows: Arlene Aquintey Sevidal California Appellate Project Deputy Attorney General 520 South Grand Avenue P.O. Box 85266 Los Angeles, CA 90071-2671 San Diego, CA 92186-5266 Attorney for Respondent Orange County Superior Court 700 Civic Center Drive Robert Mark Edwards Santa Ana, CA 92701 P-11700 San Quentin State Prison Michael Lawrence San Quentin, CA 94974 Habeas Corpus Resource Center 303 2nd Street, Ste. 400 South San Francisco, CA 94107 I, the undersigned, declare under penalty of perjury that the foregoing is true and correct. Executed this 30th day of August, 2010, at Rocklin, California. JEAN KROM