SUPREME COURT
FILED
SEP 19 :2008
IN THE SUPREME COURT OF THE STATEOF CALIFORNIA
Frederick K. Ohirich Clerk
PEOPLE OF THE STATE OF CALIFORNIA, ) | ~Deputy
) Supreme Court Case »
Plaintiff and Respondent, ) No.8085578
).
Vv. ) Los Angeles County
. ) . Superior Court Case
CHARLES McDOWELL,JR. ) No. A379326
)
Defendant and Appellant. )
)
APPELLANT’S OPENING BRIEF
Automatic Appeal from Judgment of Death
Hon. William Pounders, Presiding
Tamara P. Holland
State Bar No. 179093
769 Center Bivd., #132
Fairfax, CA 94930
(415) 488-4849
Attorney for Appellant
Charles McDoweil, Jr.
{DEATH PENALTY
9
@
4
3
i
@
s
a
*
fg
©
5
4
8
J
i
4
IN THE SUPREME COURTOF THE STATE OF CALIFORNIA
PEOPLE OF THESTATE OF CALIFORNIA,
Supreme Court Case
Plaintiff and Respondent, No. 8085578
Los Angeles County
Superior Court Case
No. A379326
Vv.
CHARLES McDOWELL,JR.
Defendant and Appellant.
ma
N
e
e
N
e
N
o
n
e
N
e
N
e
e
N
e
e
e
e
e
”
e
e
”
APPELLANT’S OPENING BRIEF
Automatic Appeal from Judgment of Death
Hon. William Pounders, Presiding
Tamara P. Holland
State Bar No. 179093
769 Center Blvd., #132
Fairfax, CA 94930
(415) 488-4849
Attorney for Appellant
Charles McDowell, Jr.
a
s
o
w
f6Ga
e
e
k
e
e
e
e
®
o
e
a
e
o
e
O
e
k
e
e
e
o
e
s
O
e
c
e
O
e
1
,
4
&
4
Table of Contents
Page
Introduction .... 2.0... ceeeeeee eee eee 1
Statement of the Case... 0.0...eeeees 4
Statement of Facts... 2.2...eeeeee nents 6
1. Denying Mr. McDowell’s motion to preclude the state from seeking
death again nearly 20 years after the crimes,thetrial court finds it
necessaryto “balance”the litigation scales — toward the prosecution. .... 6
2. Thetrial court improperly excuses death-qualified jurors for cause. ......9
3. Thetrial court “rebalances” the evidentiary picture in the secondretrial . 11
A. Lay witness mitigation evidence the defense was allowed to present... .11
(1) Mr. McDowell’s earliest years... 0...eee11
(a) Sexual abuse........ 0... 0.ceeens12
(b) Other forms of abuse... 0.0.0.0...0.eeeeee 13
(c) Religious hypocrisy ............. 0... e cece eee eee eens 15
(2) Mr. McDowell’s teenagedyears... 0...ceeee 16
B. Expert witness mitigation evidence the defense was not allowed
OO)KY2|19
C. Lay witness mitigation evidence the defense was not allowed
10 PFESENEo eee eee25
(1) Declaration ofRonald McDowell... 0.0.0.0.ceeeee25
(2) Declaration ofShirley Brakefield McDowell ...........0..0000 0000 5- 27
D. Aggravation evidence ............Debt etnteeetee ee eey 28
i
Table of Contents (cont’d.)
(I) Spousal abuse...6.eeeee nee eens 28
(2) 1977 Curtis Milton incident .......0 00000cccees 29
(3) L981] attack...ceeeeee eee eens 30
(4) 1983 crimes and special circumstances ..........02-0 000 cee 36
(5) Victim impact testimony .... 2...eee42
4. Thetrial court refuses to honortrial counsel’s strategic choice
regarding aggravation instructions, and the prosecutor commits
misconduct in closing argument... .........0.. 0.0202 e eee ee eee45
5. Thetrial court congratulates the prosecutor — andrevealsits
correct prediction — about the jury’s death verdict...................47
Arguments .. 2.0...eeeeee eee eee tee48
1, Mr. McDowell wasdenied his state and federal constitutional rights
by the state’s long-delayed and repeated retrial of the penalty phase
against him... 0...eteeee eens 48
A, The relevantfacts below ..... 0... ccc ceceeee tees 49
B. The state’s repeated retrials ofMr. McDowell after lengthy delays
for which he was not responsible violated Mr. McDowell’s state
andfederal constitutional rights... 0.0.0.0ee33
(1) The delay and retrials are cruel and unusual punishment. ............ 53
(2) Retrial after this delay violates rights to speedy trial and due process. .. 59
(a) Lengthofdelay........... 00...ceeee eee 60
(b) Reason for the delay ............ 0... ceceeens 61
(c) Defendant’s assertion of his right................ 0.0.02 22 eee eee 62
ii
o
e
e
e
i
e
s
e
n
r
y
9
%
,
1
i
|
t
«
,
(d)
(e)
(1)
(a)
(b)
(c)
(d)
(2)
(a)
(b)
(c)
(d)
()
(2)
Table of Contents (cont’d.)
Prejudice to the defendant ............ 0.0.00... eee eee ees 62
Conclusion ........0 00.00 eeeeeeee teen eee 68
Mr. McDowell’s state and federal constitutional rights were violated when
the trial court granted the prosecutor’s requests to excuse two prospective
jurors for cause, despite their expressed abilities to impose the death
penalty. 2...eeee eee ee ene e neers 70
The relevantfacts below... 1.1.0... cece cee eee71
Prospective Juror F6136 0.0.0.6eeeees71
Questionnaire anSWETS ... 0...etter e eee 71
Voir dire bythe trial court... 0.0.0...eeeee 72
Voir dire by the prosecutor........... 2.0.2.0. c ceeeee73
Thetrial court grants the prosecutor’s motion to excuse for cause ...... 75
Prospective Juror R9529 2.0...ene76
Questionnaire answers . 2.2...eeeeee 76
Voir dire by the trial court .. 2.2...eens77
Voir dire by the prosecutor... 2.0...eens78
Thetrial court grants the prosecutor’s motion to excuse for cause...... 81
Excusal ofeach ofthese two prospectivejurors requires reversal.......82
The long-standing United States Supreme Court legal standards ....... 82
The trial court’s improper excusalsfor cause .... 0... eee 85
iii
(a)
(b)
(c)
CD)
(a)
(b)
(2)
(a)
(b)
Table of Contents (cont’d.)
Prospective Juror F6136’squestionnaire and voir dire answers
reflected her honesty and circumspection, and no substantial impairment
in her considering the deathpenalty as punishment.................. 86
Prospective Jurors R9529’s questionnaire and voir dire answers
unequivocally demonstrated that she would follow the law in deciding
the penalty... 0... e eens 92
Examination of the entire voir dire andthe trial court’s improvident
spontaneous post-trial remarks about jury selection are instructive
in evaluating the trial court’s excusals of these prospective jurors.......95
Mr. McDowell’s state and federal constitutional rights were
prejudicially violated by the admission of inappropriate victim
impact testimonyin theretrial, and by the trial court’s
instructions to the jurors about victim impact evidence.............. 102
Admission of “victim impact” testimony about the broken
relationship between Paula Rodriguez’s husband and daughter
was error that violated Mr. McDowell’s state andfederal
constitutional rights.................bcce eee eee104
The relevantfacts below ...... 0... ccceeeees104
The first retrial... 02.2...occeen ene eee 104
The second retrial... 0.1...eeeeee107
Admission ofevidence ofthe Rodriguezfamily’s estrangement
was error that violated Mr. McDowell’s state andfederal
constitutional rights... .. Leen eee ee ee een eee eee eee n ees 109
Evidence of the estrangement was inadmissible as “victim impact”
CVIGENCE. .0.eeeee eee eee eee ee eee nena 110
The timing of the state’s introduction of this evidence deprived
Mr. McDowell of sufficient notice of aggravation and to the
effective assistance of counsel in how to address it................. 113
iv
&
s
it
a
3
8
;
4
&
.
B
i
b
h
k
i
a
@
h
a
é
&
a
al
l
|
j
(1)
(2)
(a)
(b)
()
(a)
(b)
(c)
(2)
Table of Contents (cont’d.)
Thetrial court’s instruction to the jurors about victim impact
testimony was also error..........0 202... cee eeeee 115
The relevantfacts below... 0.00.ooeee 115
The trial court’s instruction was error that violated Mr. McDowell’s
state andfederal constitutional rights .........0.0. 0002. c cee 117
Thougha correct statement of law, the trial court’s instruction to the
jury was nevertheless prejudicially inappropriate in these
circumstances... 0...eeee ee eee eee tee eee eens 117
Thetrial court’s instruction violated constitutional protections........ 119
The errors — individually, and taken together — were prejudicial
and require reversal... 2.2.2.2... ecteeeens 121
Mr. McDowell’s state and federal constitutional rights were
prejudicially violated by exclusion ofcritical mitigation evidence:
social historian expert testimony... ......... 0.2.0.0 c ee eee eee es 124
The relevantfacts below 0... 0...eeeeens 125
Thefirst retrial... 0...cetteeens125
The effects of Dr. Andrews’ testimony and the state’s concerns ....... 125
Dr. Andrews’ expert interpretations and opinionsin thefirst
retrial...eeee ee eee eee tee eee eee eeeenes 127
Thetrial court’s growing antipathy toward Dr. Andrews’
testiMONY. .eeeeee eee e nes 129
The second retrial... 0.00.ccence eee eee e nea 130
The trial court’s complete exclusion ofexpert social historian
Dr. Arlene Andrews’ testimony was error under California state
law, and violated Mr. McDowell’s state andfederal constitutional
TIQHKES.0 ns134
v
(1)
(a)
(b)
(c)
(2)
(a)
(b)
()
(a)
(b)
Table of Contents (cont’d.) ~
Thetrial court’s exclusion ofDr. Andrew’s testimony was error
under State law... 6...ccccctenes134
Dr. Andrews’ testimony was the proper subject of an expert witness. . . .134
Dr. Andrews’ testimony was not cumulative of other witnesses’
testiMONy. .. 2...eeeee ee eee nena 137
Though Dr. Andrews’ testimony was clearly admissible under
California state law, if it had been a close call, it should have been
resolved in favor of Mr. McDowell ..........00.. 00... 0c ce eee eee 141
Exclusion ofDr. Andrews’ expert mitigation testimony violated
the Eighth and Fourteenth Amendments andtheir state
constitutional counterparts... 2.00...nes 142
Mr. McDowell’sjury was precluded from hearing all relevant
mitigation evidence, and from making an individualized sentencing
determination based on complete, accurate and reliable evidence. ..... 142
Mr. McDowell’sjury wasprecluded from being able to fully
considerall of the mitigation evidence it waspresented.............. 144
The prejudicial error requires reversal ........ 0.0. cece eee eee 150
Mr. McDowell’s state and federal constitutional rights were
prejudicially violated by improper exclusion of, and limitations
upon, lay witnesses’ mitigation evidence. .............--..0-2000- 155
The trial court improperly excluded the signed declarations of
deceasedfamily members. ........... ccc eee een eee tenes156
The relevantfacts below .... 1...cctenee eee 156
Declaration of Ronald McDowell ............0.0.....0.....-00. 156
Declaration of Shirley Brakefield McDowell ..................... 158
vi
i
i
&
i
&
8
€
J
&
i
a
@
e
é
e
a
t
g
i
(2)
()
(2)
(D
(a)
(b)
(2)
Table of Contents (cont’d.)
Exclusion ofthese mitigating declarations was error under
state andfederal law and violated Mr. McDowell’s state and
Federal constitutional rights... 00ccccc tenes161
Becausethe highly-relevant declarations were reliable, their
exclusion on hearsay grounds from this capital penalty phase
WAS CITOr..2.eeeeee eee eee vere eeves 162
Because the declarations were not impermissibly cumulative,
their exclusion on this ground was error as well................... 167
The trial court improperly limited Roberta Williams’ testimony
about Charles, Sr.’s violence. .......0.00 00 ccc cece ccc eee cnn170
The relevantfacts below ......0. 6 ccccts170
Exclusion ofthis mitigation evidence was error under state and
federal law and violated Mr. McDowell’s state andfederal
constitutional rights. 2.00.0. cecete ete tenes 171
Exclusion ofthis mitigation evidence was prejudicial............... 173
Mr. McDowell’s state and federal constitutional rights were
prejudicially violated by the prosecutor’s repeated misconduct
in closing argument, which unfairly bolstered the state’s
aggravation CaS€. 6...eeeteen eee nee 174
The relevantfacts below .... 0...ccteens175
Misstatements oflaw 2.0...0ceceens175
Improper summary of capital sentencing law...................05. 175
Improper addition of aggravating factor............. 0.0.2.0. e eee 177
Arguingfacts not in evidence ..... 6.6 ccccnc178
The prosecutor’s improper arguments were misconduct that
violated Mr. McDowell’s state andfederal constitutional rights....... 178
Vil
(1)
(2)
Table of Contents (cont’d.)
The prejudicial misconduct requires reversal. .........0 0000 c ee eens 185
Mr. McDowell was denied his state and federal constitutional
rights by the trial court’s extensive jury instructions — over
explicit defense objection — regarding prior unadjudicated
acts of violence. ... 2.0... ee ceet ees 188
The relevantfacts below ... 1.0... ceceete eens189
The trial court’s voluminousinstructions to thejury regarding
prior unadjudicatedactsofviolence violated this Court’s
holdings and Mr. McDowell’s state andfederal constitutional
TIGHIS.0teeneee eee eens194
The instructional error was prejudicial and therefore requires
eAGY|202
Mr. McDowell was denied his state and federal constitutional
rights by the cumulative errors at this second penalty phase
retrial...etee ence e ene eens 205
California’s death penalty statute, as interpreted by this Court and
applied at Mr. McDowell’s trial, violates the United States
Constitution. 2.0.0.2.eeeee 211
Penal Code section 190.2 is impermissibly broad..............+... 212
The broad application ofsection 190.3(a) violated Mr. McDowell’s
constitutional rights... 0.0.ceeeee nee 213
California’s death penalty statute and thejury instructionsfailed
to setforth the appropriate burden ofproof.............+.....0..- 215
Mr. McDowell’s death sentence is unconstitutional becauseit is
notpremised onfindings made beyond a reasonable doubt. ......... 215
Some burden ofproofis required, or thejury should have been
instructed that there was no burden ofproof. ...........0.00000 ees217
Vili
i
8
4
e
s
a
,
§
6
t
§
&@
2
©
§
8
1
8
8
1
i
Table of Content’s (cont’d.)
(3) The instructions caused the penalty determination to turn on an
impermissibly vague and ambiguous standard. ................45. 219
D. The instructionsfailed to inform the jury that the central
determination is whether death is the appropriate punishment. ...... 219
E. The instructionsfailed to inform the jurors that ifthey determined
that mitigation outweighed aggravation, that they were required to
return a sentence oflife without the possibility ofparole. ........... 220
F. Failure to require that thejury make writtenfindings violated
Mr. McDowell’s right to meaningful appellate review. ............. 222
G. The instructions to the jury on mitigating and aggravatingfactors
violated Mr. McDowell’s constitutional rights... ...........0...... 222
(1) The use ofrestrictive adjectives in the list ofpotential mitigating
JACLOTS20 eet eee 222
(2) The failure to delete inapplicable sentencingfactors ...............223
H. Theprohibition against intercase proportionality review guarantees
arbitrary and disproportionate imposition of the death penalty........224
I. California’s capital sentencing schemeviolates the Equal Protection
Clause...ceceee eee n een ene eeas224
J. California’s use of the death penalty as a regular form of punishment
falls short of international norms. ..........0.... 000: eee eee 225
Conclusion «6.eeeee eee eee nent eees 226
Certification of Word Count
1X
Table of Authorities
Cases
Abdul-Kabir v. Quarterman (2007) ——sU-SS. , 127 S.Ct. 1654 on. 120, passim
Adamsv. Texas (1980) 448 U.S. 28eeeccceceeeescneceesseeeseecsseesseeeeserecsenessseesneennes 84, 85, 90
Ake v. Oklahoma (1985) 470 ULS. 68 .....:eceescesceecesseeeececeereeenesenseeeseeses 141, 146, 147, 152
Apprendi v. New Jersey (2000) 530 U.S. 466 .0......cccccccccssesssecsscecessesserecsuceenseesrseseneesses216
Arizona v. Fulminante (1991) 499 U.S. 279 ooo. .cccccccccescccessssecesseeeesensceseeeeecaeseessesesessanens202
Barker v. Wingo (1972) 407 U.S. 514 vecsccscscssssssssssesseseseseesessessssssssssssssstsssssseee 48, passim
Bell v. Ohio (1978) 438 U.S. 637 o...cccccescescsessecscecessesseeesseeseesesecaeessecasecseceaeeesseseevaneess 143
Blakely v. Washington (2004) 542 U.S. 296 oo... eceecescceseeeeneceeeeneeneenseneecseceeversenseeeeas216
Blystone v. Pennsylvania (1990) 494 U.S. 299 ooo. eccceeceececeeceneeeeeeeceeeeeeneetereeeneenseeees220
Booth v. Maryland (1987) 482 U.S. 496 ......ccccecseccsseesseessteestescessetesseeseenecseeeseesteesesens 117
Boyde v. California (1990) 494 U.S. 370.0... cssssecsscsesensseesesssessssscseseseaeseneeceeseetstasseanseseeenens DOO
Brewer v. Quarterman (2007) ——-U.S.___, 127 S.Ct. 1706.0... 144, 145, 154, 183
Burger v. Kemp (1987) 483 U.S. 776 ....cccsssssssssesscssccssesecsessnsssevsessssesesnessesenessersesesessesens 121
Burkett v. Fulcomer (3d Cir. 1991) 951 F.2d 1431 occceecceeeseeeeeseeeeeeeeeeseceeeeseneetees62
Calderon v. McDowell (1998) 523 U.S. 1103.0... cccccecseseceeseeeeecseeceeeeensnecererteeeeseeeees49
Caldwell v. Mississippi (1985) 472 U.S. 320 oo. eeeeesessceseceeeeseteneceeeeeeneeeneess 109, passim
California v. Brown (1987) 479 US. 538 oo. escesceeseceseeseeeesereeesseeseeeuseeeeseeneseneenees 145, 184
Caro v. Calderon (9th Cir. 1999) 165 F.3d 1223 ooo... eee eeeeeeeeeeeeeteneeeseeeseeesereseesseees 147
Carter v. Kentucky (1981) 450 U.S. 288 ooo... eeeeceeesseceececeeesenseceseeesaeesseesneeeesasersneessees216
x
s
s
r
y
>
t
i
1
e
@
ds
6
«
i
i
v
{
§
e
a
t
43
Table of Authorities (cont’d.)
Cases
Chambersv. Mississippi (1973) 410 U.S. 284 oooeeeeeeeeeseeeeseeesseereneeneeeeeeevsaees 141, 162
Chapman v. California (1967) 386 U.S. 18 occeeeseseeeeneceneeeeeeeeeeeeenenees 150, 173, 202
Chessman v. Dickson (9th Cir. 1960) 275 F.2d 604...eecccsseeescececeececeeesceseeeeesseeeesees 54
Clemons v. Mississippi (1990) 494 U.S. 738.00... ececccesseceseeeeeeeueseeceuereneeeteeseaneeseneenseees 199
Coddington v. State (Okla.Crim.App. 2006) 142 P.3d 427... eecsceeseeseereeeneeeeenerenes65
Coe v. Thurman (9th Cir. 1990) 992 F.2d 528 oo. ececseeeeeeeceseeeseseececeeenneeseenneeenereees60
Coleman v. Balkcom (1981) 451 U.S. 949oeeeececesseesceceneeeseneesseesseesessecseetesneeseneees58
Cunningham v. California (2007)US.127 S.Ct. 856eeeccetecenserereeeeeeeeeeeeees216
Darden v. Wainwright (1986) 477 U.S. 168 0...ceecceseeesseeeeeteeeetenteeeee 96, 179, 182, 185
Doggett v. United States (1992) 505 U.S. 647 ooeeeeecessccsssecessesseeesseeesseeeseeeseenes60, 62, 63
Eddings v. Oklahoma (1982) 455 U.S. 104.0... ceeccesesseessceesseesseeesseesseeeesneesees 120, passim
Estelle v. Smith (1981) 451 U.S. 454... .eeccccceeescecceccesseeceseeceneeesneecaeecsseceneeecseceeeeseneetees 166
Foster v. Florida (2002) 537 U.S. 990 oo... c.secssssccssececssseseecesseessecesseesecessacseseecseeesteeeses 54
Furman v. Georgia (1972) 408 U.S. 238 oe cccecsssccesseeeresseeessneeressaeessnapersesaveenevenes 57, 212
Gray v. Mississippi (1987) 481 U.S. 648 0.2...cecececceeeeeceeceeneceseneeeeneneees 82, 85, 91, 93
Green v. United States (1957) 355 U.S. 184 ....ecccccccccccssssessseeecsneseesssceecsssesssacensneneeeeneees56
Green v. Georgia (1979) 442 U.S. 95 oo. eeeceesceseneeeescessnsesseeeeeeesncecsucenseeesseesseeesseseesaees 162
Gregg v. Georgia (1976) 428 U.S. 153 oon... eeeenecesccnseeensesseescesesecseeeseesstensees 48, 57, 222
Harris v. Champion (10th Cir. 1994) 15 F.3d 1538 oo... cececscecsecesceesececcessesseeseeeeseeenees60
xi
Table of Authorities (cont’d.)
Cases
Hicks v. Oklahoma (1980) 447 U.S. 343 oo. .eceeeseeeeessseeseceseseresseesseseessesseeeseee 200, 218, 221
Hitchcock v. Dugger (1987) 481 U.S. 393 ooo. eeeeccsssessececsneeseeenceesseneesecscessauecseeeasesaeens 143
In re Fields (1990) 51 Cal.3d 1063 00... .eccccseesessseecesscsseeseeseescesaecsscessensecneccseeerersenesnes 14]
In re Gay (1998) 19 Cal.4th 771 ooo. ceceesssecsseseeesssecssessecseeeseesssecessecsecesecesneeseseneeeeens 171
In re Medley (1890) 134 U.S. 160... cccceescesesecseesseesecessesseeesesesssesseeseaeessessanesaeeseees 53
Izazaga v. Superior Court (1991) 54 Cal.3d 356.0... ceceeceeceseceesseeeececeeeeeeeenseeeeeees200, 206
Jackson v. Calderon (9th Cir. 2000) 211 F.3d 1148occeeeeeeeeeeeeeenetenens 147, 148
Jermyn v. Horn (3d Cir. 2001) 266 F.3d 257 oo. ieeeccsscesseeeneeseenenecsseessneeseecssnenseteneeesees 147
Johnson v. Texas (1993) 509 U.S. 350... cccceccesssseessesscecececeseecsaeecseecesecevensessateessneeaes 144
Lackey v. Texas (1995) 514 U.S. 1045 00... eeceeeeeseccesnseesseceesneceeseeceesseeeeesssseeees 54, 57, 58
Lambright v. Schriro (9th Cir. 2007) 490 F.3d 1103 2..eeseeseesecseeensecneeseeeseeeneenesanens 147
Lockett v. Ohio (1978) 438 U.S. 586.0... cccececeseeeseceeeeeseeseenerensceenecesnensrerseneess 120, passim
Lockhart v. McCree (1986) 476 U.S. 162 oceeeseesssseeesseseseeeeseneceereeseeeeenes 84,91, 94, 95
Maynard v. Cartwright (1988) 486 U.S. 356 .....ssscesecseseteseseeteesseseneeteeseeneeenenentens214, 219
McClesky v. Kemp (1987) 481 U.S. 279 ooo. c.cceececcceececeeeeeresseeseeeeceveneecneeeesnessseeneeaeeneees 143
McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833 oo... eee eseseeeseeeeteeeeees 4, 6, 49, 161
McKenzie v. Day (9th Cir. 1995) 57 F.3d 1493 ooo ccceeeneeeeneeceeeeeeeseeeneneneneesnenins54, 143
Mills v. Maryland (1988) 486 U.S. 367.00... esceeceeeseeeeeeeeneeeeeeeeeeeeseepeneeenees 120, 143, 222
New Jersey v. Muhammed (N.J. 1996) 678 A.2d 164 0... ceeeeeeeseeceeseseneeseneeseseoeeeoess 113
Xii
e
s
a
e
e
e
e
&
4
J
i
n
a
t
&
i
t
§
&
8
&
i
a
*
ff
j
Table of Authorities (cont’d.)
Cases
New Jersey v. Portash (1979) 440 US. 450... eeeceesecesseesseeeseseesessesecanesesaeeeneesenees 166
Old Chiefv. United States (1997) 519 U.S. 172 wieeeeecceesseeessseeeeeeeeeenesenenereseneageeseenees 196
Patton v. United States (1931) 281 U.S. 276 oo... ccccecccccessceceeseeeeessseeetencececesenerseeeeeeeees 120
Payne v. Tennessee (1991) 501 U.S. 808eeeeeeeeseeeseeeesceesnersnersnereneeses 109, passim
Penry v. Johnson (2001) 532 U.S. 782cceseeecseeeeneeeeeseeensneenseees soseeessceessneenseerneeseas 144
Penry v. Lynaugh (1989) 492 U.S. 302 oo... ceeesceseeseceeneeeceeeeceeeneeneeseeseenennseetens 143, 144
People v. Acevedo (2001) 93 Cal.App.4th 757 oo... cescccssssesceesrecessereeesseeseeseeseeeneeeaeeenees 153
People v. Anderson (1972) 6 Cal.3d 628 .......ccscccsccsencessceserseceeseeeesterseecseesenseeseenseeeneesaes 53
People v. Anderson (2001) 25 Cal.4th 543... ...ececccecsscesseceeeceeeeeeeeeecersseeceseesneneeaes 59, 215
People v. Arias (1996) 13 Cal.4th 92 ......ecccscessssecesscsscesceesnecsseesseeeeesnsesseseueeesessneess220
People v. Avila (2006) 38 Cal.4th 491 oo...ccecseseessresseeeenecneeeeseseneeseeeeeaeenerss 100, 223
People v. Bacigalupo (1992) 6 Cal4th 457 oo. ccsececccceceseseeesesescaceeeeeseseeeseseseseeseseneaesseecanaees 220
People v. Barnes (1997) 57 Cal.App.Sth 552 oo... ceccscessesescsesesecsecseeseesenseesecesoeeateatenessesees 151, 187
People v. Barnett (1998) 17 Cal4th 1044 oo... eccecesccccessecessseceeseeeeeseneeeesseeeesseeeereeees 194, 196
People v. Bittaker (1988) 48 Cal.3d 1046 ........cccccceccccceesseeeeseseececeneeeeeseaseensneeeesseeeees 100
People v. Blair (2005) 36 Cal.4th 686...........:ccccceccccssscesssceeseceesceeesenseeseeecesseeseneaes214, 217
People v. Bouzas (1991) 53 Cal.3d 467 o......cceeccceseeeeeeceeseceenceeeeseeereneesaceeseeeeeatersneteeneees 196
People v. Breaux (1991) 1 Cal.4th 281 oo...cece cccescccesssseceeesseceessneceesseeeeenseeeseneteres219
People v. Brown (2004) 34 Cal4th 382 .......ccccscscssessseesseesseecsecesneessesseasensssseesneseeeeesees215
Xili
Table of Authorities (cont’d.)
Cases
People v. Cain (1995) 10 Cal.4th 1 oo.eee eccccscssessseesseeesseuecneecnnersseseneees 194, 195, 196
People v. Carpenter (1997) 15 CalAth 312 o....eecceescescecssseeeenceeseeesseceeaeeesaeesseeesseeeens 141
People v. Cleveland (2004) 32 Cal4th 704 ..0.....ceccesccesseeseeeseesscessseseeesseeeactecseseeesseesseens97
People v. Cole (2004) 33 Cal.4th 1158 ooo... cceseeesccesseeenseeesseeessesseeeseneeesesseceesenens202
People v. Cook (2006) 39 Cal.4th 566 ........cecccccecceeececsseessneessneeeeteesseessnees 222, 223, 224
People v. Davenport (1985) 41 Cal.3d 247 o.oo ceieccceeceessessscesseenseenseceeeeseenes 194, 195, 196
People v. Duncan (1991) 53 Cal.3d 955 oo eeeesesceeseeesseesseesecesneesneeseeeesereceeeseeenseeseeaees221
People v. Edelbacher (1989) 47 Cal.3d 983 ....cccccsssssesessssesesesesesseceseseeensssesesesesaeseseseaeeeeeenees 212
People v. Edwards (1991) 54 Cal.3d 787 oo....cccccecsccesseeneteneceeeeencesseeeeeeeeeesseeseeenees 106, 113
People v. Fairbank (1997) 16 Cal4th 1232 .....ecccceescecsseceeccesseeceseceseeecsesevseeeseeesseeeses215
People v. Fauber (1 992) 2 Cal4th 792 oooeeeecccseeeseeeneeeeseseseceveneeeseeersaeessnesssneeesasens222
People v. Gallego (1990) 52 Cal.3d 115 00... ceeeecceecceseeeenesereeeeeeeeeeeesnecsaneeaeeeaseenereaes 181
People v. Gay (2008) 42 Cal4th 1195 oeeeseeeseesecseeeeeeesesceeetseneasenses 122, passim
People v. Ghent (1987) 43 Cal.3d 739 oo... cecssscessseessesseceneeneeseseeessscevecareaeesseseateaeoens225
People v. Griffin (2004) 33 Cal.4th 536 00... cececceeeseesseeenecenccseceneeseveneeeseecneseesseeseesseses217
People v. Hannon (1977) 19 Cal.3d 588 o..ceceseeceescvsceeeseeececececeseeseeesenseenesenersnees 152, 204
People v. Harrison (2005) 35 Cal4th 208oo...eeececesseeseveeseeeceeseeacesesesetecneseeseeseseeeeesneeeny 185
People v. Haskett (1982) 30 Cal.3d 841 oo...eeeeccseseeecsseeeeseceseeeeseneeseseeesareseseensenenenees 113
People v. Hawthorne (1992) 4 Cal.4th 43 oooeeceee eeecesereseeneceseesseenseceseeeeeeeseaeeeasns215
XIV
r
a
F
e
o
s
4
e
s
o
,
4
6
i
B
a
*
®
gg
&
1
8
E
&
Table of Authorities (cont’d.)
Cases
People v. Hernandez (1988) 47 Cal.3d 315 oo... eeeeseseseeeeseeeeeceseneeeneesseseseeeees 151, 187
People v. Hill (1998) 17 Cal.4th 800.00... cseceesseeseesseeeseeeseeeeeceaeeeseeeseeseneeenes 153, passim
People v. Howard (2008) 42 Cal.4th 1000.00...eee eceeeseseeneeeeseeeseesseeesseesseesneeseseesaes 114
People v. Kaurish (1990) 52 Cal.3d 648 oo... ceeeeeseccsesseeceseecscesenecseserenensecsneesseeoneees83, 84
People v. Kelly (1980) 113 Cal.App.3d 1005 vo... cc ceesseecscescssseesesensesseseseeesessesesaesersepenseees221
People v. Kennedy (2005) 36 Cal.4th 595 0...cceccececesceceeeeseesceecerseeerecserersesseeeasasesecseceeeeeses215
People v. Lenart (2004) 32 Cal.4th 1107 0... cccceessesceessecsecseseseneessessetecsesssneeeeeseeneensees218
People v. Lewis (2008) 43 Cal.4th 415.0... cceeseceeseeeneecneeceeseaeeeeetreresseeenasensess 83, 85, 98
People v. Lewis and Oliver (2006) 39 Cal.4th 970 ........eccecccccccsseeeeeeeeeeeseceeeeeseeeseeeneees 112
People v. Lindberg (Aug. 28, 2008, No. S0665527) —-Cal.4th
[2008 DIDAR 12741]... ecccecceeccscesecsneeeseneceneecseeeseseseecsuesseecseeseessaeeenessensaneesseaesoeeses 135
People v. Lucero (1988) 44 Cal.3d 1005.00... cccccsscesssessesesecsseeseeecnseeseteseecenseeeesneeseasens 152
People v. Manriquez (2005) 37 Cal.4th 547.0... .cccescsscssesssecscecececsseceesesseseneesseeesesesaeens225
People v. Marshall (1996) 13 Cal.4th 799 ooo... cecsscseceseccseeneceeeeseeeeecseeseesseeseeess 179, 200
People v. McAlpin (1991) 53 Cal.3d 1289 oo... .ceceecccccesscesesseeeeeessceseeceeeeeseneessensecnseaeeneeesteasens 135
People v. McDonald (1984) 37 Cal.3d 351 o...cceecsscssccssecsscesecseecesesetenseesuecaeeversesseens 134
People v. McDowell (1988) 46 Cal.3d 551 ..ccccccecssessssscsssesssssssesesesesteeevessesesessssseeeevsnass49
People v. Mickey (1991) 54 Cal.3d 612 .o.....ceeccccesccessceessesessseeceeceeasersceeesatecseteenacseenees 120
People v. Moore (1954) 43 Cal.2d 517 ....ececcssccsscsssesssseeecccceeseessseeseseneeesseeesseensees201, 221
People v. Morales (2001) 25 Cal.4th 34.00... ecccccesccessceeecessecsneeeseesseetteeeseeesneeneees 185, 204
XV
Table of Authorities (cont’d.)
Cases
People v. Ochoa (1998) 19 Cal.4th 353ettoeeaneesceseenseeeeanerseeeaeenseeaeeeaeeasees65
People v. Partida (2005) 37 Cal4th 428 oo... ccceccesecccsecsecseesseesecsseesseenseestenseeseeeseeeenees201
People v. Phillips (1985) 41 Cal.3d 29.0....e.ccccccecscesesesessseesssseecesesctevacccsceseaseccscserenseseseseacseesess 195
People v. Prieto (2003) 30 Cal 4th 226 0... eiecccsecscessesceseeeseseesscsesecsneeneaucsnessenseenesesseneeaceeeeeeaes 217
People v. Prince (2007) 40 Cal4th 1179 oo... cccccccccssessscssscesseesseeetecesseesseesseesees 135, 150
People v. Rice (1976) 59 Cal.App.3d 998 o.oo. .iceeecesseeseeeseesserseeceseeeeneeesaeessetneeneeeeteeees221
People v. Richardson (2008) 43 Cal.4th 959 ooo.eececccssescresecseeeecessecsseeeeensaseneessenees 83
People v. Rivera (1985) 41 Cal.3d 388 0... ceececeeseereceneeeeeseeeseeeeees 150, 151, 186, 187
People v. Robbie (2001) 92 CalApp.4th 1075 20... cece eeceesesseeeceeeeeseeeseesseeseeeeeees 152, 153
People v. Roder (1988) 33 Cal.3d 491 oo... cesceceecceseeeeeeseeseeecseecestersreeseeeseeeees 153, 204
People v. Rodriguez (1986) 42 Cal.3d 730...ccsscsssssssssssessessesssessessssessessessesseeseeesen 118, 119
People v. Roldan (2005) 35 Cal4th 646 .0......ccccccesceesceescesarseeceneneceeneeeneeeeeeeneeees 150, 173
People v. Rundle (2008) 43 Cal.4th 76..........cccccessceseseesesereesneeseaesesseeeaereeaesesseseseseneseeseeeaeneney 185
People v. Sapp (2003) 31 Cal.4th 240ooocesceeceseecsneesseevneeecnseeneeseceseeeaeenaes224
People v. Schmeck (2005) 37 Cal.4th 240 ..........eeccceseesscsceeceeecesreceeeeseeneeeeneeseeseesees 97, 212
People v. Sedeno (1974) 10 Cal.3d 703 0... sesesessseeserseesseseesseceesseaeenneeasenteaecetensnerseess216
People v. Sengpadychith (2001) 26 Cal.4th 316.0... ccseecscesseseeseeeseneteseeersaesssenenseeeevavaeetees 225
People v. Slaughter (2002) 27 Cal.4th 1187 2.0... ceeeeeseeesceseeseeeeeceseevaeeeesensnaceaseaeens201
People v. Smith (1992) 9 Cal.App.4th 196 covsseeecsnnssssceccnnnssscensnnntcccanecennnnateccccnnarssstenen201
XV1
P
e
e
e
e
e
s
e
e
e
P
e
r
y
F
S
a
6
8
s
6
5
4
J
q
6
&€
3
7
8
5
&
4
4
h
i
Table of Authorities (cont’d.)
Cases
People v. Snow (2003) 30 Cal.4th 43 ooo... cea csccecesssessessscenseseenssscneceesseessesssssereaeeneeentes225
People v. Stanley (1995) 10 Cal.4th 764 oo... eeececeesceeeeseeeseeeaeeseeveeesseeesieeneeenseeeeass213
People v. Stewart (2004) 33 Cal.4th 425 oo...eeeeeeeecceeeesecceeceeeseeereeseeaeeesenseeseseeescnsees 89
People v. Sutton (1993) 19 CalAth 795 0... eeeeseceesseeseeseseeeeseessessscenseeseeneesereseenesserens200
People v. Taylor (1986) 189 Cal.App.3d 622 0... ..cceeceeeeseeseseecseeeseeeseeneesneeeeaeaes 151, 187
People v. Thomas (1981) 119 Cal-App.3d 960 20.0.0... eeeeeeeeeeceseeeeneeeeeeesseeeneeees 151, 187
People v. Thornton (2007) 41 Cal.4th 391oeeecceeeseeeceneeesseneseeeseeeseseeeneeeensneenees 172
People v. Valencia (2008) 43 Cal.4th 268.0000... escseeseeseceeeseeseeeeeeesecntnataceecsevseneeeaeveceeesee 182
People v. Valentine (2001) 93 Cal.App.4th 1241eeeeeeesscecseecseceseeeseeeeeeeneeeseeessers 153
People v. Watson (1956) 46 Cal.2d 818 oo. eeeeeesseeseecenseecnsccessncesscersseeenecetasseseesersnaee202
People v. Williams (1988) 44 Cal.3d 883 ...0....cccsscssseseessessesesseseseeeeseereveneesseneeveneeneney 162, 218
People v. Williams (2006) 40 Cal.4th 287 .0........cceecscccesseeeeeeeseeeeeeeeeceececeeeneeenereeeeeseeess 167
People v. Wright (1988) 45 Cal.3d 1126...ccceeecescssenseseneesceseeeeseeeereracersnesseersneenseens 118
People v. Yeoman (2003) 31 Cal.4th 93 0...cece cccceceecsaceceeeeeescssecereesuaseepesseeeesesennees202
Porter v. Singletary (11th Cir. 1995) 49 F.3d 1483 ooo. occeeeecccceececeeceeneecneceeeeeteeenseeners54
Querica v. United States (1932) 289 U.S. 466 ......ccccecccccccccesseecessnsecssseessnsceeenteeeesseeeeee 118
Reagan v. United States (1895) 157 U.S. 301 oo. ceeeessecseceseeeseneesseeeeeeneeeceeeeeeneeneeeeseeses201
Ring v. Arizona (2002) 530 U.S. 584 ooo ecceccceeseeecnscececeeseeecessnseeenseeesnseeeseneeeresseecens216
Rompilla v. Beard (2005) 545 U.S. 374 seooasececnnnaseensnnsaceconssseenennsssecsannneseecenaanesseee 148, 149
XV
Table of Authorities (cont’d.)
Cases
Roper v. Simmons (2005) 543 U.S. 551 o.eeeccesesscessecssescesseceesacenseeseseecesseeenscssseeseeeses226
Sanford v. Parker (6th Cir. 2001) 266 F.3d 442 oo... ccccccsssessessessesesessesseceeesseeseeeseecaeens 147
Skipper v. South Carolina (1986) 476 U.S. 1 .ic..ceessceeccesseseccessceenseeeseeesseeeeanes 120, passim
Smith v. Arizona (2007)U.S.128 S.Ct. 466.eeceeecsenceseeenseseseeeseneens 54
Smith v. Texas (Smith I) (2007) —=s—sUS.127 S.Ct. 1686.00ee144, 183
Sochorv. Florida (1992) 504 U.S. 527 ....cceccccsscecsseceseseseeeeseeccenscesssenseceseesseesseeeasecsees 199
State v. Bernard (La. 1992) 608 S0.2d 966 ......ccccscscscesssssscsssssessesseesceesseseessessseseseeeseaes 113
State v. Nesbit (Tenn. 1998) 978 S.W.2d 872 ......ccccceccesseesssseesseeseeseeceesetecsssesseesnseeseees 113
Strickland v. Washington (1984) 466 U.S. 668 0.0... .c.:ceeceeeeeseeeeeeeeeeeeeeeeeees 109, 115, 149
Sumner v. Shuman (1987) 483 U.S. 66 ..cc.ccccccecessessseeceessecececseecceecssseeecesesscausenereeespenzes 120
Taylor v. Kentucky (1978) 436 U.S. 478cc ceccccsssceseeceeenceneceeeesnneececesseeeesereessaeersneeees205
Trop v. Dulles (1958) 356 U.S. 86 .....eccecceccesssesscesseeseesecesseceeeseeeseceneeseeaecnesetesseeesseseeeas225
Tuilaepa v. California (1994) 512 U.S. 967 ooo. eesseeeseeececeeeessneeeseeeseceeesnestsaeeseneneesnas214
United States v. Copple (3d Cir. 1994) 24 F.3d 535 oo.eeeeeesseeeceneeseseeseeeeseeenseneees 111
United States v. Glover (D.Kan. 1999) 43 F.Supp.2d 1217 ..0..... ec eeeeceeceeeeeeeeeeeeeeeene’ 113
United States v. Kreutzer (Army Ct.Cr.App. 2004) 59 M.J. 773 vo..eeessescceseceneeseeeeeneeees 148
United States v. Martin Linen Supply (1977) 430 U.S. 5640...ceeeeeeeceesseeeeneeeeeneeeees 118
United States v. McVeigh (10th Cir. 1998) 153 F.3d 1166 000... eeeeeseeeneeeeeee 110, 111
Uttecht v. Brown (2007) ——sUS.127 S.Ct. 2218eects 82, passim
XViii
e
e
e
e
a
a
o
e
ee
>
a
a
=
&
a
@
e
5
a
h
a
h
a
a
t
s
f
?
&
B
i
t
a
k
a
e
é
gai
&
4
Table of Authorities (cont’d.)
Cases
Vasquez v. Hillery (1986) 474 ULS. 254 oieeeccesceeecenesersecsceeneeeseeeseeeeneesresesseeesereases212
Wainwright v. Witt (1985) 469 U.S. 412ceceseeeeseeeseeeeeseeeseeeseaeeeneeeeneeeeaes 83, passim
Wackerly v. State (Okla.Cr.App. 2000) 12 P.3d Loe...eeeecececeeeeeeseceeeeeeeenseeceseeeeseees 114
Wardius v. Oregon (1973) 412 U.S. 470... ccecccccccecsceensnneeecseeeeesseeeseaeereneeees 200, 206, 221
Weeks v. Angelone (2000) 528 U.S. 225 0... eeecceeecececescnceeesencecseeeeeececsceeceesseneeseseneeseens 143
White v. Johnson (5th Cir. 1996) 79 F.3d 432.0... ..cccccccccccesssceesssecessceeessceceesseneeenssssecseees 54
Wiggins v. Smith (2003) 539 U.S. 510 ooo. eeecsseceseeecenseeseeeveceeseeeeseeeseerseneseseserses 148, 149
Williams v. Florida (1970) 399 U.S. 78 ......cescsssesssceseesseesensecseeseseeeseesneeseneenaeeeseesaneaes 120
Williamsv. Taylor (2000) 529 U.S. 362 ........ccccccecccceecscsceeeseeceseeeeeseeesnseeeeseneesecsenseeesans 148
Witherspoon v. Illinois (1968) 391 U.S. 510... eeesssesesseceesseeecesssesseeeesensneees 82, passim
Woodson v. North Carolina (1976) 428 U.S. 280 .......cccscssecssseseesseeeeeeeeneees 109, passim
Zant v. Stephens (1983) 462 U.S. 862 ..........ccceeccceceecesceescceceeceeseeeneeeeenecesseeersseees213, 220
Constitutional Provisions
California Constitution, article I, section 1 oo...icccccscccceeesuseesesesessasseeueeans 48, passim
California Constitution, article I, section 7 ............c ce eee ccc ceeeceeeeesseeeecceveeeeeeeeeees 48, passim
California Constitution, article J, section 13 oi...ccc eeeecccesceeeesscseereeeeseceseseeee 48, passim
California Constitution, article J, section 15 ........cecceceeseeceseseccseseeessseseceessecceveess 48, passim
California Constitution, article I, section 16 woo...tcccceeeseeeeeceereeceesenees 48, passim
California Constitution, article J, section 17 oo...eeece cee ceeessessteeeeeeeeveceeeees 48, passim
California Constitution, article J, section 24 oo... leeeesccceeesereeeseesecescessssneees 48, passim
California Constitution, article J, section 27 o.....eeecccecccecesseeessesesssercoseneveeseneees 48, passim
XIX
Table of Authorities (cont’d.)
Constitutional Provisions
United States Constitution, Amendment 5 ..0.........:cecccsecsssesseseseeeseeneeeensesseesnee 48, passim
United States Constitution, Amendment6 ..............cccececccsessseceeececesssseerevenensnes 48, passim
United States Constitution, Amendment8 0.0.00...ecceeeeeeeeesssecsesseeeeeeeeeens 48, passim
United States Constitution, Amendment 14 .........c cece cesceccesscesecesseececseeeseeseens 48, passim
Statutes
Evidence Code section 520 ...........ccccccccscesssccccecesessereeesscseceerscseceeeececeeecstecsececenseseeeessnees217
Evidence Code section 801 oc.cccccccceeseceeecessessceeecesesnensseetsesensnsseesstecacerevens 134, 141
Penal Code section 187(a).......ceeeccccesssscceecessseceessseceseeecesueeseenseceecseesessascesecaeecesseeserateseas4
Penal Code section 190.3 .0......cceeeccceesseececesssseeeesseeesssecsnseecensneceterscseevenseesensaes 72, passim
Penal Code section 261(2)........essccccsssscccesesssccessenenseseeeessscceeusneessseeasenscsecessntevsnseeeesseeses4
Penal Code section 459.0... .cccecccccccccccccececcstecseeceeeevsnsucatececcensusnstsesnesenscensteuccecsssecusnssnenseers4
Penal Code Section 664.000... ccccccccccccessssessscecceesssnseeeessnececcecsecsseetecesenssensenecesseeeneesesatseses4
Penal Code section 1125 .........cccccccccccccessesssesccccesseseseesessssesecsessreseeceesesesenessucessneetesecnneaes 118
Other
1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982) ooo...eeecccsssseeesteeeeseees 149
California Rules of Court, rule 4.42 oo...ccccceecececcececeeeceeeeeeesesessssertecececeeeeesenees225
CALTIC No. 2.20 oo. ccecccccccecceceeceesncceeeneccceccesseeeeenseeseacecceessssessaesesessuseeeenscecesseees 138, 163
CALJIC NO.8.85 .....cccccccecessssssssresseeneeeceeseecsusnasanseausneuaneneasesesneuseauassececeseenenseess 188, passim
CALJIC No. 8.86 ooo. .ccccceccccecccceseceseceseeceeceecsenseseseeeesaeeeccscrecuecssecnseseseeceeseuseceteeeestaseeeesens215
CALITIC No. 8.87 ...cccccccccssesssccssnseesssseesesssenesusssuvecssussesseeseseseseesassessesseusuesseesersuaseseereees215
CALIJIC No. 8.88 ......ccccccecccccccccccesesssesssssseecessssceseseccceesessseeneseteccesseeeceseesesenenenes 216, passim
Crocker, ChildhoodAbuse andAdult Murder (1999) N.C.L. Rev. 1143 «0.0.0.0... 153, 154
Muir, My First Summerin the Sierra (1911) ..ccesceessesseeseceeeeecesseenseneseescescesserseteseeseeses 112
KX
a
n
Y
B
a
e
4g
a
b
a
@
i
a
B
w
m
®
e
p
e
s
e
é
a
R
a
e
i
i
k
&
k
d
is
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, )
) Supreme Court Case
Plaintiff and Respondent, ) No. 8085578
)
V. ) Los Angeles County
) Superior Court Case
CHARLES McDOWELL,JR. ) No. A379326
)
Defendant and Appellant. )
APPELLANT’S OPENING BRIEF
Introduction
In the crazed eyes of his abusive father, “Eddie” McDowell failed at
everything he evertried. For this, Charles Sr., beat Eddie from the time Eddie was
a baby until he left for the army at age 17. Expert social historian Dr. Arlene
Andrewsdescribed Eddie’s childhood in rural South Carolina was the worst she
had everstudied in 25 years as a professor of social work.
The State of California has received far more chances for success than Mr.
McDowell. Having failed to obtain a valid death conviction against Mr.
McDowell, it has been allowedto try, try again. Literally. After the Ninth Circuit
in 1997 reversed the 1984 penalty judgmentfor trial court error during
deliberations, the state retried the penalty phase against Mr. McDowell. That
penalty phaseretrial resulted in a hung jury. Thestate tried again, and this time
obtained a death verdict. Mr. McDowell appeals from the verdict returned in that
second penalty retrial, asserting thatit, too, is fatally flawed and must therefore be
reversed.
Asset forth in Argument-1, it was error for the trial court to allow thestate to
seek the death penalty in these repetitious, untimely prosecutions. Byits third
penalty phase against Mr. McDowell, the state —.and the trial court — knew exactly
the contours and strengths of the mitigation evidence that had been producedin
the first two trials, and knew exactly the weaknesses in the aggravation evidence.
And with these issues clearly in focus, the tenor of the second 1999 retrial changed
dramatically. As set forth in Arguments 2 through8, thetrial court’s changed
rulings from the first to the secondretrial form the bases for the majority of Mr.
McDowell’s issues on appeal.
The cases in aggravation and mitigation that the parties were allowed to
present to the jury in the secondretrial were vastly different than the cases they
had presented to the jury in the first retrial, which had resulted in a hung verdict.
Moststunning wasthetrial court’s exclusion — in its entirety — of Dr. Andrews’
expert mitigation testimony about Mr. McDowell’s horrific upbringing. That error
is raised below in Argument4.
But even before eviscerating this critical piece of mitigation evidence,the
prosecution — with the aid of favorable rulings by thetrial court -- had already
begun stacking the deck against Mr. McDowell in the secondretrial. As set forth
in Argument2, the jury wastailored for the prosecution bythe trial court’s
inappropriate excusal for cause of two prospective jurors. As set forth in
3
7
o
w
y
t
@
&@
ia
&@
4d
€
3
»
i
B
i
e
4&@
4
8b
a
e
5
,;
@
a
t
k
i
s
©
@
&
2
9
8
1
Argument 3, the prosecution was then allowed to embellish uponits victim impact
testimony, which wasbolstered by the trial court’s improperinstruction to the jury
regarding this evidence.
After the trial court excluded all of Dr. Andrews’ testimony,the trial court also
excluded othercritical mitigation evidence about Mr. McDowell’s upbringing.
(Argument 5.) Thenthetrial court allowed the prosecution to commit misconduct
in closing argument that exacerbated and exploited all of these errors. (Argument
6.) Finally, in direct contravention of strategic defense requests, the trial court
committed instructional error regarding aggravation evidence. (Argument7.)
Included in nearly every argument are remarkable on-the-record statements the
trial court made aboutits rulings. While it should be clear, even without these
statements, that each of these rulings was madeinerror, the trial court’s
statements renderits errors virtually undeniable. The statements reflect an
increasing, inappropriate animosity toward Mr. McDowell’s defense. Theyreflect
the trial court’s concern overits perceived injustice to the prosecution in
California’s death penalty scheme. Andtheyreflect the trial court’s
commensurate, express desire to “balance” the scales -- toward the prosecution.
Indeed, given thetrial court’s rulings, the death result of this secondretrial was no
surprise. As thetrial judge himself stated at the end of the case, “Perhaps the rest
ofyou did not expect the verdict that camefrom this jury, but I did.” (44 RT 6453;
emphasis added.)
Asset forth in each argument, every error that Mr. McDowell raises warrants
reversal of this penalty phase verdict. As set forth in Argument 8, the cumulative
effect of the errors surely does.
Statement of the Case
Appellant Charles McDowell, Jr., had been sentenced to death on October 24,
1984 in Los Angeles County, after a jury found him guilty of felony murder,
burglary, attempted rape and attempted murder, and then returned a death verdict.
(1 CT 7-8, 32.) Thirteen years later, the United States Court of Appeals for the
Ninth Circuit reversed the penalty verdict. (1 CT 1, 32; McDowell v. Calderon (9"
Cir. 1997) 130 F.3d 833.) The reversal was fora trial court instructional error
during deliberations — to which Mr. McDowell had objected from the moment the
trial court agreed with the prosecutorthat it should not provide further instruction
about language the jury indicatedit did not correctly understand. (Ibid.)
On September 23, 1998, the Los Angeles County Superior Court set the case
for penalty-phaseretrial. (1 CT 7-8.)' Mr. McDowell movedto preclude the state
from seeking death in its retrial. He argued that the decade-and-a-half delay
betweenthe instructional error andtheretrial violated the federal Constitution, and
that he would be prejudiced by the deaths of five mitigation witnesses that had
‘The minute order for this date reflects that Mr. McDowell had previously
been found guilty of Penal Code sections 187, subdivision (a) (“felony murder”);
“664/187(a) (attempted felony murder)”; “664/261(2) (attempted forcible rape)’;
and section 459 (burglary). (1 CT 7-8.)
r
o
P
e
6
S
e
s
e
e
s
O
l
s
g
S
F
G
F
S
O
y
e
s
i
’
e
a
e
i
9
&
@
a
4
4
i
e
d
e
s
i
oe
o
r
ee
|
occurred since the original trial. (1 CT 29-166.) However, thetrial court denied
Mr. McDowell’s motion. (1 CT 171.)
Jury selection began on July 22, 1999. On July28, 1999, the panel and
alternates were sworn. (2 CT 298-299, 306-307.) The prosecution began its case
in aggravation on August 2, 1999, and the jury began its deliberations on August
16, 1999. (2 CT 312-314, 377-378.) After deliberating for three days, the jury
sent a note to the trial court: “We have a hung jury. We have had no movement.
Neither side is willing to move.” (2 CT 381B.) Thetrial court asked the jurors to
keep trying. (2 CT 382-383.) On August 26, 1999 — after readback of nine
witnesses’ testimony — thetrial court declared a mistrial when the jury wasstill
hung. (6 CT 1552A, 1555-1556.)
Undeterred, the state again decided to try for death.
Jury selection in this penalty-phaseretrial — the state’s third attempt to obtain a
lawful death verdict against Mr. McDowell -- began on October 20, 1999. (6 CT
' 1646-1647.) The jurors were sworn on November2, and the alternates on
November 3, 1999. (6 CT 1651-1652, 1653-1654.) The prosecution began its
case in aggravation on November 4, 1999. (6 CT 1655-1659.) When thestate
rested on November10, it moved to preclude Mr. McDowell from presenting in
his mitigation case any testimony from his expert social historian witness, Dr.
Arlene Andrews, whohadtestified on Mr. McDowell’s behalfin the first retrial.
(10 CT 2960-2961.) The trial court granted the state’s motion. (Ibid.) On
December1, 1999, the jury returned a verdict of death. (11 CT 3030-3031.) On
January 26, 2000, the trial court denied Mr. McDowell’s motion to modify the
sentence, and imposed a sentence of death. (11 CT 3038-3045, 3071-3072.)
Statement of Facts
1. Denying Mr. McDowell’s motion to preclude the state
from seeking death again nearly 20 years after the crimes,
the trial court finds it necessary to “balance”thelitigation scales —
toward the prosecution.
The crimes occurred on May 20, 1982. (37 RT 5246.) Mr. McDowell was
convicted of all charges and sentenced to death on October 24, 1984. (1 CT 7-8,
32.) Thirteen years after Mr. McDowell was convicted and sentenced, the United
States Court ofAppeals for the Ninth Circuit reversed the penalty verdict for a
trial court error to which Mr. McDowell had objected. (1 CT 1, 32; McDowell v.
Calderon (9th Cir. 1997) 130 F.3d 833.) Accordingly, on September 15, 1998, the
federal district court issued a writ of habeas corpus. (1 CT 1-2.)
Thestate elected to re-try Mr. McDowell for the death penalty. (1 CT 7-
10.)
Mr. McDowell moved to preclude the state from seeking the death
penalty against him again, instead indicating that he would accept the penalty of
LWOP.(1 CT 29-44; see also 1 CT 47-165 [Exhibits in Support ofMotion]; 21
RT 2567-2577.) He explainedto the trial court that retrying the penalty phase
after his sitting on Death Row thirteen years due to an error to which he had
2
e
s
6
"
e
r
e
e
e
e
e
e
a
3
9
a
h
a
n
4
a
i
&@
4
s
e
e
d
6
§
k
e
a
*
®
.
a
objected at trial would violate the Sixth, Eighth and Fourteenth Amendments.
(Ibid.)
Thetrial court denied the motion. (1 CT 171; 21 RT 2577.) Indeed, the
trial court was emphatic that it was Mr. McDowell who had causedall the delay.
For example, “the additional years were taken all by the defendant’s initiative in
seeking habeas corpus.” (21 RT 2569.) Thetrial court stated it did not understand
how the defense “attribute[d] so much of the delay to everyone else, whenin fact
it’s Mr. McDowell, which he hasa right to do, seeking habeas corpusin the
federal system and the delays in the federal system that occurred. . . [that] caused
the delay.” (21 RT 2570.) |
Accordingto thetrial court, the appropriate “remedy” to Mr. McDowell
after reversal was to “require the prosecution to proveall over again” that Mr.
McDowell deserved the death penalty “even 15, 17 years after the event, after the
crime.” (Ibid.) Indeed, according to the trial court, it was the prosecution — not
Mr. McDowell — that was going to experience difficulties after this delay. (21 RT
2577.)
The state retried Mr. McDowell’s penalty phase. The jury hung. (6 CT
1552A, 1555-1556.)
Near the end ofthat first 1999retrial, the trial court also began expressing — on
the record -- its frustration with California’s death sentencing scheme. For
*Thetrial judge who presided over the two 1999retrials was a different
judge than the one whopresided over the 1984trial.
example, duringfirst retrial litigation ofhow the prosecutor would refer to Mr.
McDowell’s housing status, the trial court sympathized with the prosecutor’s
plight as it granted a defense motion to exclude evidence:
I think it should go, but it doesn’t. You’re hamstrung by three factors that I
think are unfair. [Factors] (A), (B) and (C) don’t go to the limits ofeverything
that I think ajury canfairly consider in deciding whatpenalty is appropriate.
[Para.] But ifthey thoughtthat a vicious killer was going to enjoy what he
viewed to be a goodlife in prisonfor the rest ofhis life, I think that would have
an impact on their choice ofpenalty. Butit isn’t under the provisions ofthe
statute, and that’s the end ofthe story.
(31 RT 4449; emphasis added.) Thetrial court reiterated its frustration during
litigation ofjury instructionsin the first retrial. According to the trial court:
I think that the People’s limitations of three factors in aggravation is
what’s unfair, and since they are limited to those, I think that’s what
they can hammer. That is what we’ve got. They don’t have anything
else but those three factors, which as I said before, I think is an unfair
limitation.
(32 RT 4518; emphasis added.) The trial court did not stop there:
It’s very impressive to me to see a defendant in court whois
constantly committing crimes the momenthe’s out ofprison, does
it again, gets caught again, back in jail, back in prison, his entire
life is this. It’s an indication that the only thing we can dois stop
it permanently.
That to me is a very aggravatingfactor and it’s not one that
thejury can consider.
-
r
o
g
s
é
7
&
dé
B
a
t
3
a
a
a
®
e
@
i
e
i
s
4
3
&
3
on
o
e
R
1
9
4
(32 RT 4518-4519; emphasis added.)
After the first re-trial jury hung andthetrial court declared a mistrial, Mr.
McDowell again moved to preclude the state from seeking death. (37 RT 4738.)
Once again, the trial court denied that motion. (37 RT 4739.) The stage was thus
set for the secondretrial.
2. The trial court improperly excuses death-qualified jurors for cause.
Thejury in this second retrial was sworn onthe third day ofjury selection,
after only two daysofvoir dire. (See 6 CT 1646-1647[first day ofjury selection,
October 20, 1999; hardship]; 6 CT 1648-1649 [second day ofjury selection,
November 1, 1999]; 6 CT 1651-1652 [third day ofjury selection, November2,
1999: jurors sworn and alternate selection begins]|;.6 CT 1653-1654 [fourth day of
jury selection; alternates sworn].) Thetrial court allowed only one hourtotal for
follow-up questions by the attorneys after the court-conducted voir dire. (21 RT
2616-2620.)
Thetrial court granted four out of the five motions to excuse for cause
madeby the state to which the defense did not stipulate. (35 RT 4968-4970; 36
RT 5021; 36 RT 5022; 36 RT 5092-5095.) Two of these excusals — ofprospective
jurors F6136 and R9529 -- were of clearly death-qualified individuals. For
example, prospective juror F6136 answered directly during voir dire that, though
she was personally moderately opposed to the death penalty,“in this court if [the
prosecutor] and the judge would give meinstructions, I would abide by those
instructions.” (35 RT 5007.) Similarly, prospective juror R9529 explicitly
answered “Yes” when the prosecutor asked her whetherher decision regarding
punishment could include the death penalty. (36 RT 5088.)
By contrast, the trial court denied both of the defense motions for excusals
for cause to whichthe state did not concede. (36 RT 5007; 5019-5020.) This
included a prospective juror who answeredin her questionnaire that she strongly
agreed that anyone whointentionally kills should always get the death penalty (35
RT 4996-4998 [voir dire]; 36 RT 5007 [denial of defense challenge for cause].)
This pro-death penalty prospective juror also responded on her questionnaire that
“When someonetakes anotherlife, I don’t see why he should notlose his,” and
that regardless ofthe evidence in mitigation, she would always vote for the death
penalty as long as the murder wasintentional. (Ibid.) During voir dire, this pro-
death penalty prospective juror — whom thetrial court did not excuse for cause
upon defense motion — explained, “Well, I wouldn’t want to put somebody to
death without hearing everything,” and that she hadn’t been thinking straight when
she answered the questionnaire so emphatically because she was“just so sick of
innocent people being killed every day.” (35 RT 4998; 36 RT 5004 [trial court
denies defense challenge for:cause].)
10
e
e
e
e
e
e
e
e
e
e
e
e
=
se
>
b
s
&
sp
8
a
€
&
.
B
a
a
4
B
s
4
€
4
i
xy;
h
d
6
8
i
t
3
a
e
3. The trial court “rebalances”the evidentiary picture in the
second retrial.
A, Lay witness mitigation evidence the defense was allowed to present
(1) Mr. McDowell’s earliest years
Charles McDowell, Jr., was born on September 27, 1953, in rural South
Carolina, to 16-year-old Shirley Brakefield McDowell and her husband Charles
McDowell, Sr. (38 RT 5561, 41 RT 5902.) Charles, Jr. was called “Eddie.” (41
RT 5902.) Neither Charles, Sr., nor Shirley ever showed Eddie one shred of
affection. (41 RT 5840, 5874-5875; 42 RT 6137.) Quite to the contrary, they
were violent and hostile to him from birth, onward.
Thefirst time Eddie was beaten was when he was just a few weeksold.
Because Eddie slept all day andcried all night, Charles, Sr. “would beat him to
make him goto sleep.” (41 RT 5902.)°
Charles, Sr.’s younger sister Roberta observed that Shirley virtually ignored
Eddie whenhecried, and it took Roberta’s mother to show Shirley how a bottle
worked — that Eddie was not getting any milk becauseit had curdled in the nipple.
(41 RT 5876.) At times, Roberta saw Eddie’s bottom bleed because he wasleft
wearing a wet diaper too long; his brothers and sisters would experiencethis as
well. (41 RT 5877.)
*This was according to Shirley’s 1984 testimony, which wasread into the
record at both the first and secondretrials. (31 RT 4343-4360; 41 RT 5901-5916.)
She died in 1997. (41 RT 5901.)
1]
Eddie was followedbyfive siblings: Ronnie, Teressa, Tommy, Kathy, and
Carol Belinda. (42 RT 6103.) For most of Eddie’s childhood, the children and
their parents — a family of eight -- lived in a 1,000-1,200 square foot house a
quarter mile from their nearest neighbor, between York and Sharon, South
Carolina. (42 RT 6102-6103, 6107.) The boys slept in one bedroom;thegirls in
another; the parents in a third. (41 RT 5947, 42 RT 6102-6103.)
Charles, Sr. had fashioned a two-by-two-foot hole between the closets that
linked the parents’ and girls’ bedroom. (41 RT 5949; 42 RT 6106.)
(a) Sexual abuse
Charles, Sr., sexually molested his daughter Teressa for as far back as she
could remember. (41 RT 5946.) It was usually in his bathroom,orin thegirls’
room, into which he climbed through the hole between the closets. (41 RT 5946,
5949.) It happened almost every night. (41 RT 5949.) Teressa would beasleep,
then feel his hand touching her. She would cry and pray while he touched her
until he ejaculated. (41 RT 5948.) Then he would cry and ask forgiveness.
Teressa would say, “I forgive you.” (41 RT 5948.)
The boys’ bedroom faced onto the girls’ bedroom, and the doors were always
open. (41 RT 5949; 42 RT 6104.) According to Tommy McDowell, it was
common knowledge amongall the siblings that their father was molesting Teressa.
(42 RT 6134-6135.) He would notlet the boys talk to Teressa, and constantly
accused them ofhaving sex with her. (41 RT 5910; 41 RT 5946;see also 41 RT
12
i
e
e
o
e
eoe
n
e
eee
s
r
y
f
s
P
'
s
i
&
i
J
e
s
e
3
t
s
e
@
t
&
it
@
a
*
¢
€
8
¥
E
5
i
i
5846 [when the boys were teenagers, they were not allowed to go to the bathroom
in the middle of the night because Charles, Sr. thought they were trying to see
Teressa].)
Eddie himself was molested by his mother Shirley’s male relatives. Eddie’s
brother Tommy — who wasseven years younger than Eddie -- witnessed some of
these acts. (42 RT 6098, 6161.) In turn, Eddie sucked Tommy’spenis from as far
back as Tommy could remember. (42 RT 6135-6136.) Eddie also touched
Teressa inappropriately, and once asked herto urinate in his mouth. (41 RT
5962.)
(b) Other forms of abuse
Charles., Sr., was “very, very violent” with his family. (42 RT 6107; 41 RT
5867, 5870.) Charles beat Shirley in the face with hisfists in front of their
children; on several occasions, he broke her nose. (42 RT 6109.) Charles had a
410 rifle, a .22 rifle, and a .22 pistol. He would point the pistol at Shirley. Once
he told her to shoot him. She didn’t. (42 RT 6126.)
Asfor the children, Eddie got the worst of the beatings, and it “[k]ind of went
down the scale the smaller you got the lesser you got.” (42 RT 6108; 41 RT
5944.) The beatings tookplace in the presence of everyone. (42 RT 6109.)
Anything could set Charles, Sr. off.(42 RT 6112.) And even if he was just mad
at one person in particular, his violence would spill over to others. (42 RT 6112.)
13
Charles hit his children with his fists, with his belt, and with hickory switches.
(42 RT 6110.) He would “just beat until the urge passed him,” reported Tommy.
(42 RT 6111.) Eddie got beat almost every day. (41 RT 5905.) When he wasnot
physically beating Eddie, Charles, Sr. was telling him Eddie that he was “dumb
and ignorant and didn’t want to learn, didn’t want to do, didn’t care,” reported
aunt Roberta Williams (41 RT 5874; see also 41 RT 5840.)
When Eddie wasonly two- or three-years-old, Charles, Sr. expected that Eddie
should not wet the bed. (41 RT 5907.) But Eddie wet the bed every night, so
Charles, Sr. beat him every morning, and sometimes rubbed Eddie’s nose in the
urine. (41 RT 5906.) Charles, Sr. once pinched Ronnie McDowell’s penis so hard
for wetting his pants that it required surgery. (41 RT 5907.)
When Eddie wasfive, he and Ronnielit the family dog house onfire. Charles,
Sr. punished the boys by holding them naked overthe fire. (41 RT 5909.) Around
the same time, during a visit to his sister Roberta’s house, Charles, Sr. punched
Eddie in the face with his fists so hard that Eddie’s nose bled. (41 RT 5868-5869.)
Roberta often saw bruises on Shirley and the children. (41 RT 5867, 5872.) In
front of Roberta and her husband, Charles would curseat Shirley, tell her she was
filthy, nasty, and that she stunk. (41 RT 5871.) He told her she was lazy and
didn’t know howto do anything. (41 RT 5871.)
Unfortunately, Shirley took her frustrations out on Eddie. (41 RT 5944.)
Roberta saw Shirley beat Eddie in the back with herfists and with a broom, and
saw her slap him in the face and on the ears. (41 RT 5875; see also 41 RT 5944.)
14
»
B
a
4
d
&
4
6
4
0
a
8
j
4
6
i
v
t
J
e
a
e
.
4
é
When Tommy McDowell was four-years-old, Charles, Sr. kicked him off a
piano stool and began stomping on him. (41 RT 5908, 42 RT 6115.) This broke
one of Tommy’sribs — but no one intervened, or got him any medical care. (42
RT 6116.) Six monthslater, Tommy’s limp led him to the doctor’s office — and he
spent the next 18 months in body casts. (42 RT 6116-6117.) During this time,
Charles, Sr. still beat him, with a belt. (42 RT 6118.)
Despite the amount of abuse suffered bythe siblings, it wasstill agreed among
all the children that Eddie got the worst of it from Charles, Sr. (42 RT 6108; 41
RT 5944.) For example, once at the dinner table, Charles, Sr. threw a fork at
Eddie. Eddie blockedthe trajectory right in front of his face with his hand--
wherethe fork stuck into the webbing betweenhis fingers. (42 RT 6113.)
(c) Religious hypocrisy
According to Shirley McDowell, living in their house was “constantly sex and
the Bible.” (41 RT 5904.) Charles, Sr., “forced [us] to go to church every time
the doors were open, and if we didn’t go, it was hell all day.” (41 RT 5904.) The
family belonged to a Baptist church that held services twice on Sundays, had a
Wednesdaynight prayer service, and hosted three-to-five-day-long revival
meetings. (41 RT 5865.) Charles, Sr.’s sister Roberta attended the same church,
and saw Charles, Sr. as “dogmatic. It was like he was God and everybodyelse
was goingto hell.” (41 RT 5873.)
15
Charles, Sr. constantly quoted from the Bible, and comparedhis family
unfavorably to its religious figures. (41 RT 5912.) Charles, Sr. would tell his wife
and children that they were goingto hell — but that he wasn’t. (41 RT 5912; see
also 41 RT 5843-5844.) He would make them listen at home while he preached
and read the Bible, and would deal violently with anyone whoresisted orfell
asleep. (42 RT 6125-6126.)
(2) Mr. McDowell’s teenagedyears
When Eddie was about 15, the McDowells moved to Pompano Beach,Florida.
(41 RT 5823, 5891; 42 RT 6101.) Charles Sr.’s sister Roberta and her family
movedthere and stayed for about a year and a half, as well. (41 RT 5863.) While
Roberta lived there, both families attended the same Baptist church, and Roberta
saw the McDowells frequently. (41 RT 5878.) She witnessed Charles, Sr. and
Shirley get more, rather than less, violent as Eddie and the other children got
older. (41 RT 5878; see also 42 RT 6122.) Family friend Bonnie Haynes, who
lived down the street from the McDowells for years, witnessed the same. (41 RT
5823-5825.
Once, three-year-old Carol Belinda — the youngest of the McDowell children —
overturned some paint. (41 RT 5945; 42 RT 6120.) As punishment, Charles, Sr.
shoved her head into the paint. (41 RT 5945; 42 RT 6120.) Eddie wentafter
Charles, Sr. and hit him over the head with a two-by-four. (41 RT 5945; 42 RT
16
r
e
o
)
e
e
e
s
F
e
e
r
e
r
e
r
e
O
e
rs
5
&
a
n
a
ft
4
6121.) Charles, Sr. grabbed Eddie by the throat and lifted him a foot off the
ground. Ronnie had to plead with Charles, Sr. not to kill Eddie. (42 RT 6122.)
Soon after, Carol Belinda washit by a car and killed. (41 RT 5826.) Charles,
Sr. blamed his other children for her death. (41 RT 5826; see also 41 RT 5911
[Shirley testifies that Charles, Sr. blamed Eddie and Tommyfor Carol Belinda’s
death].) After dinner, Charles, Sr. would makeall of the children sit in the living
room and would read to them whatthe pastor had said at Carol Belinda’s funeral.
(41 RT 5828.) Then he wouldtell the children that if they had been watching,it
wouldn’t have happened. (41 RT 5829.) Charles, Sr. kept an 8x10 photo of Carol
Belinda on the wall, and would take it down and make everyonelookat it. (41 RT
5829.) Family friend Bonnie Haynes witnessedthis spectacle herself three or four
times. (41 RT 5830.)
Bonnie Haynes frequently saw bruises on the McDowell boys, with Eddie and
Ronnie suffering the most. (41 RT 5831.) She saw the McDowell children at
least every other day, and would sometimesask the boys whythey didn’t all just
get together and beat the hell out of Charles, Sr. (41 RT 5835, 5838.) But Eddie
told Bonnie that he himself “was no good and that he was for sure going to hell.”
(41 RT 5842.)
17
During the time the McDowells lived in Florida, Shirley repeatedly left
Charles, Sr. (41 RT 5896; 42 RT 6123.) She would take the girls and Tommy
with her, but would leave Eddie and Ronnie with Charles, Sr. (41 RT 5896; 42
RT 6123-6124.) Once, when Eddie was 16, he asked his aunt Roberta if he could
comelive with her instead. (41 RT 5897.) But Roberta and her husbandsaid no.
(41 RT 5898.)
Sometime during Eddie’s teens, Shirley heard that he was a “homosexual.” (“I
think that’s what you call them,”she testified). (41 RT 5915; see also 42 RT 6161
[known in the family that Eddie was homosexual].) From then on, Shirley would
not let him kiss her. (41 RT 5915; see also 42 RT 6137.) This wasin direct
contradiction to how shetreated her other children; for instance, she was very
affectionate with Tommy. (42 RT 6137.)
In contrast, when the family lived in Pompano Beach, Teressa hadto kiss
Charles, Sr. “like a husband and wife” every day when he came homefrom work.
(41 RT 5951.) This meant that Teressa had to be homeevery day at that time to
perform the kiss. Whenshe told Shirley she didn’t want to, Shirley told her she’d
better do it so they could all have peace. (41 RT 5953.) By this time, Charles, Sr.
was molesting Teressa mostly on weekends, instead of every night, and would
make her watch out the bedroom windowso she could makesurethe siblings
doing chores outside would not come in and see. (41 RT 5953-5955.) When
‘They eventually divorced, in 1975. (31 RT 4374[first retrial testimony
from social historian expert Arlene Andrews’; see 42 RT 6102 [Tommy
McDowell testifies in secondretrial that his parents divorced in 1976].)
18
e
e
e
e
e
e
w
s
v
s
3
e
s
a
i
6
<
Teressa was 17, she got a pistol from her parents bedroom and was goingto kill
Charles, Sr. when he walked through the door. (41 RT 5958.) Shirley talked
Teressa out of it, and that’s when Teressa told Shirley about the sexual abuse. (41
RT 5958.)
When Eddie was 18, he was arrested in Pompano Beachfor disorderly conduct
and carrying a concealed weaponother than a firearm. (42 RT 6169.) A final
disposition of the charges was withheld so that Mr. McDowell could enlist in the
Army. (42 RT 6169.) However, he was dischargedin less than two months, for
wetting the bed. (42 RT 6167-6169.)
B. Expert witness mitigation evidence the defense wasnot allowedto present
Atthe first retrial, social historian Dr. Arlene Andrewstestified as an expert
witness in mitigation about Mr. McDowell’s upbringing andits likely effect. (31
RT 4361-4389, 4410-4417, 4423-4435.) Dr. Andrews wasa professor ofsocial
work at the University of South Carolina, with a Ph.D. in psychology. (31 RT
4362.) Dr. Andrews had 25 years experience working in areas related to child
abuse, neglect and domestic violence. (31 RT 4362.)
During Dr. Andrews’ testimonyin thefirst retrial and continuing through
jury instruction litigation at the end ofthe first retrial, the trial court belittled the
import of this testimony. Though out of the presence ofthe jury,the trial court’s
° Teressa also testified that at some point, her mother had walked in on
the two havingsex. (41 RT 5957-5958.) Shirley testified to the same. (41 RT
5910.)
19
comments evincedits hostility toward this evidence. For example, the trial court
characterized the subject matter of Dr. Andrews’ testimony as not “sophisticated.”
(31 RT 4397.) Thetrial court also characterized it “‘as a lot of information that
wasnot necessary and tended to be cumulative and notreliable.” (32 RT 4496;
see also 31 RT 4497, 32 RT 4554.) However, when the prosecutor moved to
strike her testimony as not the proper subject of an expert (maintaining it was not
about anything a juror would not know), the trial court denied the motion because
“underthe case law it’s relatively clear that the defense has a wide range of things
they can bring” and “[mlitigating circumstancesare basically anything that the
defense offers to mitigate the punishment... .” (31 RT 4401.)
The jury that heard Dr. Andrews’ testimony hung, and the court declared a
mistrial. (33 RT 4713-23.)
In the secondretrial, the prosecutor did not movein limine to preclude this
testimony. He gave nonoticeat all duringpretrial litigation, nor during his case in
aggravation. Instead, at the close of his aggravation case, he moved to preclude
Dr. Andrewsfrom testifying at all. The trial court granted the motion. (39 RT
5641-5664.)
Atthe first retrial, Dr. Andrewstestified to the following facts that no other
witnesses — even family members — covered:
Dr. Andrewstestified that Shirley was four years younger than Charles
McDowell, Sr., when they married in 1952 andthat their relationship was
“incredibly hostile.” (31 RT 4373-4375.) Andrewstestified that Charles reported
20
2
e
s
3
r
e
r
e
e
e
F
S
g
O
r
s
,
F
O
o
e
O
G
F
S
y
O
3
5
@6@
+
a
fj
6
6
i
t
)
‘
he was disappointed in Shirley within a week of their marriage. He beat Shirley
while Eddie was in utero. Eddie was born a month early, and weighed less than
five-and-a-half pounds. (31 RT 4378.) Shirley was hospitalized for three weeks
after the birth because she had hemorrhaged badly. (31 RT 4378.)
Dr. Andrewstestified that Shirley was unprepared to be a mother, and didn’t
want to be. She had gotten married to get out of her parents’ house. (31 RT
4378.) She was “very open about saying she didn’t want to have a baby, didn’t
want Eddy[sic] and she didn’t know much abouthowto take care of him.” (31
RT 4379.) She was depressed and lonely when she had Eddie, whocrieda lot.
She did not knowthe right way to feed him and what to feed him until she took
him to the doctor when he was six months old. (31 RT 4380.)
Dr. Andrewstestified that Shirley’s younger brothers Gene and Jerry molested
Eddie. (31 RT 4373.) This started when he was a very young child, and they told
Eddie that his father would beat him if he had reason to believe these things were
going on. (31 RT 4388.) By the time he was nine or ten, Eddie was being
molested by other boys — and eventually men -- in the York, South Carolina
neighborhood. (31 RT 4388.) He would do chores for them, and then was asked
to do sexual things for money. (31 RT 4388.)
Dr. Andrewstestified that Eddie’s school grades were very low. He had to
repeatfirst grade. None ofthe children in the family finished high school. (31 RT
4389.) He also had behavioral problems in school. Eddie was a very young child
in his classes, and was hyperactive. His parents were called into the school several
21
times about his behavior. Teachers eventried using restraints to keep him in his
chair because he couldn’tsit still. (31 RT 4389.)
Shetestified that Eddie’s younger brother Ronnie told her that once when
Charles, Sr. was beating Ronnie, the family’s dog Blacky came throughthe screen
door and jumped on Charles, Sr. Within a day or two, Blacky was gone and never
came back. (41 RT 4386.) Another time, Ronnie had a dog on a rope leash — and
Charles shot the dog. (41 RT 4386-4387.)
Dr. Andrewstestified that Ronnie McDowell was homeless in 1994 and had
been in and out of hospitals for alcohol and heroin addiction. He died a year later,
at age 40. He’d never married or formed lasting relationship. (31 RT 4412.)
Teressa was the most functional ofall the children, but had serious stress reaction
problemsandrarely left home. (31 RT 4412.) Tommyhad spent a good deal of
his adult life incarcerated for rape. (31 RT 4412.)° Kathy lived a reclusivelife, in
a rundowntrailer that she and her boyfriend rented from Teressa. She almost
neverleft the trailer, slept during the day instead of the night, and could not hold a
job. (31 RT 4412.) Carol Belinda died when she wasfive. (31 RT 4412.)’
Except as noted in the footnotes, none of the facts above weretestified to by
other witnesses in the secondretrial. Neither were any ofthe following ofDr.
‘Tommy McDowell did testify in the secondretrial that he had been
convicted in 1987 of second degree rape, second degree sexual offense,
grand theft and attemptedfirst degree burglary. (42 RT 6099.)
7 Evidence of Carol Belinda’s death was introducedin the secondretrial,
as well.
22
e
s
o
s
r
i
r
o
r
e
r
s
o
s
O
g
F
G
E
S
F
Y
§
&©
4@
&
3
4
&
s
¢
s
i
b
i
v
e
«
Andrews’ expert interpretations and opinions ofthe social history evidence, which
she was allowed to presentin thefirstretrial:
Dr. Andrews explained that witnessing parental beatings “can induce a number
of social problemsin a child.” (31 RT 4382.) For example,there is a “deficiency
in their moral and social education” ofhow men and womenrelate to each other,
and the children learn that the way to deal with disagreementis to resort to
violence. (31 RT 4382.) Also,“a level of terror ... develops dealing with fear”
when kids are beaten, and when they fear that a parent might be lost to the
violence or hurt in some way, which “induces a numberoffairly severe emotional
problemsin the children.” (31 RT 4382.) It is also common for parents in
battering relationships to overlook or ignore their children’s needs: parents “don’t
seem to have much emotional energy left for the children, and so they simply
don’t pay muchattention to their development and their emotional needs.” (31 RT
4383.) As for animal abuse,it “creates an aura of terror about what could happen
and does havea definite social impact in terms ofthe fear, of the powerofthe
father, particularly when it involves the death of animals.” (31 RT 4387.)
Dr. Andrewsfound several factors in Mr. McDowell’s upbringing remarkable.
One ofthe most was the complete lack of any form of social support. (31 RT
4413.) There was absolutely no one who wassupportive of Mr. McDowell.
Though many people observed what was happening and were concernedaboutit,
they didn’t express it to him or act protectively on his behalf. (31 RT 4413.)
Neither was there a coalesced support group from the siblings — and Dr. Andrews
23
had never seen a family where the siblings were more in conflict. (31 RT 4414.)
Charles, Sr., also controlled his family’s access to people from the outside — like
from church, or from the school. (31 RT 4414-4415.)
The chronicity of the abuse was also remarkable. Manypeople reported that
the beatings were a daily occurrence, there was no clear sense of what it would be
for, and everyone would get beaten even if only one person did something
“wrong.” (31 RT 4383-4384.) Beatings after Bible readings constituted “a form
of spiritual abuse” that was unusualrelative to other families Dr. Andrews had
dealt with. Moreover, many episodes happened around food and meals, which
was detrimental to social development becauseit wastied to the sense of being
nurtured. (31 RT 4385.) “There was an expectation that there be silence and that
everyone eat whatever the father determined they were going to eat.” (31 RT
4385.) Charles, Sr. would knock the children out of their seats if they did not obey
at the dinner table. (31 RT 4385.) Also remarkable was the extent to which
Charles, Sr. would beat his children in front of other people. (31 RT 4385.)
Abuseand neglectin all its forms “at a very severe level’ was present, on a
“very chronic, repeated basis throughout [Eddie’s] life... .” (31 RT 4415.)
Eddie “basically was a loner” who “formed some very minimal adaptive coping
habits, one which wasa very chronic use of alcohol and other drugs.” (31 RT
4415.) This, and increased use overtime, is something very common in abused
children. It provides “a way of helping to deal with the anxiety and the trauma.”
(31 RT 4416.) Dr. Andrews explained that becoming a sex offenderis also
24
7
F
8
E
S
eS
se
e
c
c
c
#
&
a
t
i
é
af
B
@
s
®
a
i
a
e
o
n
o
e
ee
ee
e
e
ee
e
e
a
e
j
common among sexually-abused children, as is promiscuity. (31 RT 4416.) He
was unable to sustain a marriage, or to finish school. (31 RT 4416.) Because of
his social problems, Eddie never could keep a job (as a carpenter) for very long —
and thus could not feel any sense of success about work, either. (31 RT 4417.)
Butthe jury in the secondretrial never heard anyofthis.
C. Lay witness mitigation evidence the defense wasnot allowed to present
After the trial court excluded the testimony ofDr. Andrewsentirely, Mr.
McDowell sought to introduce the declarations of two family members — who had
died since the 1984trial.
(1) Declaration ofRonald McDowell
In 1991, under penalty of perjury, Mr. McDowell’s younger brother Ronald
signed a declaration stating that he had never before been contacted by anyone
representing Mr. McDowell, and documenting manysignificant incidents from
their childhoods. (6 CT 1627-1630.) This included the stunning fact that when
Ronald wasfive or six years old and Mr. McDowell was seven or eight, Ronald
found Mr. McDowell trying to commit suicide by hanging himself. Ronald also
saw Mr. McDowell jumpedbyolder boys in the neighborhood, who made Mr.
McDowell perform oral sex on them. When Ronaldtold their father, Charles Sr.
aboutthis, his response wasto beat his sons. Ronald also walked in on Mr.
McDowell in bed with a man from the neighborhood whenboth boys were young.
25
And Ronald reported that Charles Sr. shot Ronald’s dog -- while making Ronald
hold its leash. (Ibid.)*
Ronald died in 1995. (6 CT 1632 [certificate of death].)
His signed declaration was submitted, without objection by the state, in Mr.
McDowell’s habeas proceedings in federal court. (6 CT 1634-1643 [Declaration
of Andrea Asaro; RT of 1994 federal proceedings; federal court exhibit list].)
Mr. McDowell moved, on federal constitutional grounds, to introduce
Ronald’s declaration as mitigation in the secondretrial. (6 CT 1622-1643 [Motion
to introduce declaration, and exhibits in support].)
Thetrial court excluded it. (39 RT 5641.)
Thus, the jury never heard that Mr. McDowell had attempted to hang
himself as a child. The jury never heard that menin the neighborhood sexually
molested Mr. McDowell as a young boy,nor that his own father’s response was
not to confront the men, but to beat Mr. McDowell and his brother for it. The jury
never heard that Charles Sr. was so sick that he shot the family dog to death while
he madehis son holdthe leash.’
’Mr. McDowell’s younger brother Ronald did nottestify in the 1984trial.
(6 CT 1630.) Several other incidents that Ronald described in his declaration —
not itemized here -- were also witnessed by other family members, whotestified
about them in the secondretrial.
"In the first retrial, the jury did hear evidence ofthese incidents, because
Dr. Arlene Andrews used them to form her opinion. (See, e.g., RT 31 RT 4373
[uncles Gene and Jerry molesting Mr. McDowell]; 31 RT 4388 [men in the
neighborhood molesting Mr. McDowell when he wasa young boy]; 31 RT 4386-
4387 [Charles Sr.’s cruelty to animals, including shooting the dog].)
26
a
n
a
|
i
J
t
@
&
i
a
@
1
8
R
s
4
€
8
£6
2
8
8
34
i
a
i
i
t
7?
8
i
”
f
e
e
b
a
f
t
a
(2) Declaration ofShirley Brakefield McDowell
In 1984, Mr. McDowell’s mother, Shirley Brakefield McDowell, testified
as a mitigation witness at the penalty phase that was ultimately reversed by the
Court of Appeals. In 1991, under penalty of perjury, Ms. McDowell signed a
declaration that included many, and more significant, family history details than
she’d been asked about during direct examination in the 1984 penalty phase. (11
CT 2968-2974.) Her 1991 declaration was submitted, without objection by the
state, in Mr. McDowell’s habeas proceedings in federal court. (11 CT 2976-2990
[Declaration of Andrea Asaro; RT of 1994 federal proceedings; federal court
exhibitlist].)
Mr. McDowell’s mother Shirley died in 1997. (41 RT 5901.)
After the trial court held in the secondretrial that it would be excluding the
expert testimony of Dr. Arlene Andrews, Mr. McDowell moved on federal
constitutional grounds to introduce his mother’s 1991 declaration as mitigation
evidence. (11 CT 2962-2990; 40 RT 5676-5683.)
Thetrial court denied his motion. (40 RT 5681-5683.)
Whatthe secondretrial jurors “heard” from Shirley McDowell was a
reading-into-the-record of her 1984 penalty phase testimony. (41 RT 5901-
27
5915.)"° Shirley Brakefield McDowell’s 1991 declaration contained the following
information that her 1984 testimony did not: Mr. McDowell was unplanned and
unwanted. Ms. McDowell received no prenatal care during her pregnancy with
him, and was in fact beaten during pregnancy by Charles Sr. Mr. McDowell was
born a month premature. Ms. McDowell wasignorant ofhow to care for babies
and Mr. McDowell was therefore malnourished as an infant. Charles Sr. often
beat her severely in front of their children. Asearly as the first grade, Mr.
McDowell exhibited learning disorders and hyperactivity, and wastied to his chair
or placed upon high shelves byhis teachersto try to control him in class. When a
womanfrom the school cameto the house to speak to Mr. McDowell’s parents
about getting him somehelp, Charles Sr. peppered her with questions about her
religion, called her a Communist and ordered her off the property. Mr. McDowell
began using drugs as a teenager and had been sexually abused as a young boy by
Ms. McDowell’s own brothers. (11 CT 2968-2974.)'!
D. _——Aggravation evidence
(1) Spousal abuse
Ms. McDowell’s 1984 penalty-phase testimony wasalso read into the
record as part of the defense mitigation casein the first retrial. (See 31 RT 4343-
4360.)
"Onceagain,in thefirst retrial, Dr. Andrewstestified about many ofthese
facts as the bases of her opinions about the McDowell family. (See, e.g., 31 RT
4378-4379 [Shirley did not want a baby, didn’t know how to care for one, and was
depressed and lonely when she had Mr. McDowell]. But because she was not
allowedto testify in the secondretrial, this jury did not hear this evidence.)
28
r
e
a
r
s
g
s
?
e
s
d
i
B
a
’
e
s
i
Mr. McDowell’s wife Rebecca was 14 and he was 21 when they married in
1975. They were together for two-and-a-half years, and formally divorced in
1979. (38 RT 4862, 5466.) Mr. McDowell beat Rebecca, choked her, and had sex
with a knife to her throat. He gave her razor blades and told her he wanted to cut
her wrist. He was “into very bizarre sex acts” that included putting items into her
anus. She was not aware when they married that he was bisexual, but he made her
awareofthat shortly thereafter. (38 RT 4862.)
(2) 1977 Curtis Milton incident
On February 24, 1977, 23-year-old Mr. McDowell molested four-year-old
Curtis Milton. (38 RT 5403, 5406, 5410-5413.) Mr. McDowell and his wife
Rebecca were friends of Curtis’ parents, in the trailer park where theyalllived.
(38 RT 5408.) Mr. McDowell asked Curtis if he wanted to earn a quarter. (38 RT
5409.) When Curtis said he did, Mr. McDowell led him to the McDowells’ trailer.
(38 RT 5409.) Mr. McDowell had Curtis perform oral sex on him, and then
performedoral and anal sex on Curtis. (38 RT 5411-5412.) Mr. McDowell gave
Curtis the quarter. (38 RT 5412.) Curtis went homeandtold his mother, who
called the police. (38 RT 5412.) They came and arrested Mr. McDowell. (38 RT
5412.)
Mr. McDowell was convicted of lewd and lascivious conduct for this offense,
and was sent to Chattahoochee State Hospital’s mentally disordered sex offender
program. (38 RT 5403, 5463; 40 RT 5704.) One of the psychiatric diagnoses in
29
his record there was “sexual deviation, mixed type with elements of
homosexuality and pedophilia.” (40 RT 5744.) Another was “character disorder,
sociopathic.” (40 RT 5745.) Nurse Robbie Edwards, who saw Mr. McDowell
almost daily on the ward for a year, wrote on his evaluation that he was doing very
well — attending groups, participating, following the rules. (40 RT 5709-5710.)
Mr. McDowell stayed in the program from 1977 to 1979, whenthestate cut the
program. (40 RT 5708.) Ms. Edwards thought Mr. McDowell genuinely wanted
help and was benefiting from the program. (40 RT 5720.) When the program was
disbanded in 1979,all offenders were returned to court, and discharged unless the
court imprisoned them elsewhere. (40 RT 5708.) Mr. McDowell was among
those whowere discharged.
Mr. McDowell’s wife Rebecca had moved to Chattahoochee early in his
confinement, to be near him. (38 RT 5463.) Charles, Sr., volunteered to help her
pack and move. (38 RT 5475.) On the drive down, Charles, Sr. pulled the truck
overto the side of the road, reached over and grabbed Rebecca’s face with his
handsandtried to kiss her. When she asked whathe wasdoing, Charles, Sr. said,
“You’re my daughter-in-law. It’s all right.” (38 RT 5477.) Rebecca rebuffed this
advance and Charles, Sr. left her alone. (38 RT 5477.) Rebecca eventually left
Chattachoocheeand divorced Mr. McDowell because she cameto believe he
would havekilled her if he could find her. (38 RT 5464.)
(3) 1981 attack
30
‘
a
=
F
s
E
?
4
h
a
®
a
i
a
oo
a
|
i
e
f
8
i
&
@
s
*
4
&
5
F
Q
j
In the summerof 1981, Mr. McDowell was back in Pompano Beach from
Chattahoochee, andlived in a tent at the back of the grounds of the Pompano
Baptist Temple. (38 RT 5420, 5431, 5433.)'° Twenty-eight-year-old Patricia
Huber had just moved with her six-year-old son Paul into a two-bedroom house
that backed up onto the church property. (38 RT 5418, 5420, 5432-5433.)"°
Patricia knew Mr. McDowell from the Baptist Temple, and he had visited Patricia
at the house. (38 RT 5433.)
Patricia and Paul shared the house with a friend of Patricia’s and her young
son. (38 RT 5420, 5432-5433.) The night of July 29, Patricia and Paul were home
alone because their roommates were out of town. (38 RT 5433.) Mr. McDowell
knocked at the front porch and said he needed help because he’d just been
mugged. (38 RT 5421, 5434.) Except for tennis shoes, he was naked. (38 RT
5435.) Patricia let him in to use the phone. He asked for a towel to cover up, and
appearedto call the police to report the mugging. (38 RT 5435.)
Patricia got Mr. McDowell a pair of shorts, which he put on and askedif he
could wait there until the police came. (38 RT 5436.) Patricia agreed — and then
noticed he was wearing jewelry. (38 RT 5436.) She asked why that hadn’t been
taken in the mugging. Mr. McDowell said the muggers had been in a hurry. (38
"Charles, Sr., had made this arrangement. (38 RT 5433.) The record is
unclear why or how.
* Patricia Huber had since remarried and becomePatricia Rumpler. (38 RT
5431.)
31
RT 5436.) She asked how long before the police came;he told her not to be
nervous. (38 RT 5436.)
Mr. McDowell sat beside her on the couch, turned her face towards his and
tried to kiss her. (38 RT 5437.) He smelled like he’d been drinking beer. (38 RT
5457.) He said he’d love to make love to her. Patricia said no — she was seeing
someone else. Mr. McDowell was not angry. Patricia excused herself, went into
her room, called her friend Carol and told her to call back in a few minutes. Carol
did just that. Mr. McDowell wasstill there, and no police had arrived. Patricia
asked Mr. McDowell if he wouldn’t mind waiting outside. He complied. (38 RT
5437.)
Patricia called Carol back, told her what had happened,and askedif she and
Paul could stay the night. (38 RT 5438.) She heard Mr. McDowell outside
saying, “Hey, you know,lady, don’t get all upset now. Nothing is going to
happen.” She woke Paul up and got him dressed. (38 RT 5438.)
Whenthey were walking out to the car, Mr. McDowell jumped up from behind
the car and grabbed Patricia. (38 RT 5423, 5438.) Whereas he had been calm
before, now he looked crazed. (38 RT 5458.) And he was completely naked. (38
RT 5423.) Mr. McDowell said that since she wasn’t going to do it his way, now
he was going to have his way. (38 RT 5423.) Paul started running and screaming,
and Mr. McDowell told Patricia that if she didn’t get Paul, Mr. McDowell would
kill him. (38 RT 5424, 5438.)
32
a
X
@
a
8
i
8
a
€
B
s
a
3
a
e
e
e
r
&
@
i
é
k
t
a
4
0
i
7
f
1
«
Patricia got Paul and took him in the house. (38 RT 5425, 5439.) Mr.
McDowell wasbeside her the whole time. Hetold her to put Paul in the bedroom
and shut the door and call Carol andtell her she’d changed her mind. Patricia did
all of this. (38 RT 5439.)
Patricia kept doing everything Mr. McDowell told her to do: she took off her
clothes, went into the other bedroom, let him put his penis inside her vagina, put
her fingers one by one into his rectum, and performed oral sex on him. Every time
Carol called back, Mr. McDowell made Patricia answer the phoneandactlike
everything wasall right. (38 RT 5440-5441.) Hetold her to play with his balls.
(38 RT 5443.) He told her to make him feel loved. (38 RT 5459.) This lasted
about two hours. (38 RT 5443; see also RT 5427 [Paultestifies the entire time in
the house wasthree to four hours].)
Then Mr. McDowell asked whether there was a razor in the house, andtold
Patricia to crawl on her hands and kneesto get it. (38 RT 5443, 5447.) He asked
whethershe had ever “hadit in the ass.”” (38 RT 5443.) When she said no, he
said, “Well, you’re about to, and you better not scream or I’1] kill you.” (38 RT
5443.)
WhenPatricia retrieved the razor, Mr. McDowell told her to start shaving her
pubic hair, because he didn’t want “all that hair there.” (38 RT 5447.) This was
interrupted by Carol calling again. After Patricia again reassured her things were
fine, she returned to the bedroom where Mr. McDowell was waiting. He finished
the shaving himself. (38 RT 5447-5448.) He madeherlie on the bed on her back,
33
and inserted the razor into her anus. He kepttelling her not to cry, and that if she
didn’t stop he’d dothis to Paul and then kill him. (38 RT 5448.)'4
The phone rang again. This time, it was the police. (38 RT 5448-5449.)
Throughher responses, Patricia let them know things werenot, in fact, all right.
(38 RT 5449.)'° At the endofthe call, Mr. McDowell took her back into the
bedroom and madeher perform oral sex on him. He wasvery specific in his
requests: that when he was going to come, she would hold it in her mouth and
then immediately put it in his mouth. (38 RT 5450.) But when thingsgotto this
point, the phone rang again, so Mr. McDowell told Patricia just to swallow and
answerthe phone. (38 RT 5450.) This time it was Carol again. After that call
wasover, Mr. McDowell told Patricia to go outside to get his cigarettes. (38 RT
5450.)
She brought them backinside and got a glass of iced tea that Mr. McDowell
asked for. (38 RT 5451.) He told her to put a paper towel around the glass. (38
RT 5451.) She asked why — so his fingerprints wouldn’t be on it? He said yes --
that he’d done enough time and knewall the tricks. (38 RT 5452.) Then he took
the keys from her, locked the deadbolt on the door, and handed the keys back to
“Tt is unclear from the record what kind of razor, and which part or end was
used. However, there were no cuts or tears. (See 38 RT 5454 [Patricia goes to
hospital after incident]; RT 5459 [no cuts or woundsto her rectum].)
‘SThe police only had her prior address and whenthey called she could only
tell them no, she no longerlived there, and yes, the perpetrator wasstill with her.
(38 RT 5449.)
34
a
g
s
F
e
e
s
F
e
,
F
E
F
E
r
e
o
F
F
S
6
g
o
y
F
-
3
3
>
@
4d
b
a
€
4
a
&
a
@
g
4
B
a
e
¢
a
'
@
a
is
6
h
@
i
®
4
&
y
o
g
yg
é
her and told her to washtheprints off. (38 RT 5452.) Then they went back to the
bedroom. (38 RT 5452.)
All during this time, Paul kept crying and asking whetherPatricia wasstill
there. The telephone was in the room where Paul was, so when she answered the
several calls that came in during the attack, she was able to reassure him. (388 RT
5425, 5452.)
Finally, lights came on in the driveway. Mr. McDowell jumped outofthe
bedroom and madePatricia walk in front of him. She was naked. Hetold her,
“Go outthere and make that cunt leave,” because he assumedit was Carol.
Patricia grabbed a robe and went out. It was her ex-brother-in-law’s car, and she
ran to it and told him to come with her because there was a man in the house and
she’d been raped. (38 RT 5453.)
She ran backto the house to get Paul. She tried to get in the bedroom window.
She told Paul to moveaside so she could break the window. She did, pulled Paul
out the window, and took him to the car. She told her brother-in-law to drive
away, because she wasterrified ofMr. McDowell. As they were driving away,
they saw the police finally arriving. She waited in the church parkinglot to talk to
them, because she wasafraid of going back onto the property. (38 RT 5428,
5454.)
Patricia told the police what had happened. She saw them gointo the house to
search. She didn’t think they found Mr. McDowell there. (38 RT 5455.) She
35
wentto the hospital for the lacerations on her leg from breaking the window and
pulling Paul out. (38 RT 5454.) The police did not find Mr. McDowell.
(4) 1982 crimes and special circumstances
Mr. McDowellleft Florida with outstanding warrants for his arrest for this
crime, and for violation of his probation on the Curtis Milton conviction. (40 RT
5795.) He adopted the alias Gene Hollon. (40 RT 5785, 5792, 5794.) He ended
up on Santa Monica Boulevard, where he was picked up by high-end gown
designer Lee D’Crenza, wholived in the Hollywoodhills. (37 RT 5368; 40 RT
5765-5768.) Lee wasin his 50s. Mr. McDowell wasin his 20s. They began
living together. (40 RT 5768-5769.)
Mr. McDowell used drugsall the time. Lee’s friend Roger Meunier usedalso,
and saw Mr. McDowell smoke marijuana almost everyday, and do a lot of LSD.
(40 RT 5767, 5771.) Mr. McDowell would come by Roger’s business in the
morning three or four times a week — often already high, and looking for money
for more drugs. (40 RT 4771-5773.) However, Roger never saw Mr. McDowell
act or even speak aggressively. (40 RT 5778.)
Jacoby and Meyers attorney Speare Primpas wasin a billiards league with Mr.
McDowell around this same time. (40 RT 5783-5784.) Speare and Mr.
McDowell played every day at the Four Star Saloon, a gay bar in West
Hollywood. (40 RT 5784-5785.) The Four Star was below Lee D’Crenza’s
gown-making business. (40 RT 5793.) Speare and Mr. McDowell also socialized
36
e
e
2
F
S
S
s
7
,
F
a
e
s
e
f
|
>
h
i
b
i
a
&
5
€
é
.
o
R
a
é
4
4
t
?
f
t
6
t
a
e
s
*
@
8
8
7
8
3
i
together at Speare’s home,and at others’ homes. (40 RT 5786.) They used lot
of drugs together: marijuana, cocaine, and “MDA.”'® (40 RT 5786.) Indeed,
Speare never saw Mr. McDowell sleep. (40 RT 5787.) They would sometimes
stay up four or five days at a time. (40 RT 5787.) There wasrarely a time Speare
saw Mr. McDowell when Mr. McDowell was not high. (40 RT 5788.)
At some point, Mr. McDowell revealed to Speare that he was wanted in
anotherstate, and that he’d probably commit either a robbery or burglary so that
he could go back to prison where “he just knew the system better and hefelt it was
easier to get along.” (40 RT 5797, 5797-5799.) Indeed, Daniel Vasquez (warden
of San Quentin State Prison from 1983 to 1994)testified that Mr. McDowell was a
model prisoner, with only one minorinfraction for possession of a cigarette
lighter. (42 RT 6053-6054.)"”
On May 20, 1982, Mr. McDowell wasliving with Lee D’Crenza at his house
on North Curson Avenue in the Hollywoodhills. (40 RT 5765-5768.) Mr.
McDowell was doing construction work on Lee’s kitchen renovation. (37 RT
5270.) The two had a fight when Mr. McDowell felt Lee did not appreciate his
work. (38 RT 5531-5532.)
'*Speare tesitified that MDA was a combination of methamphetamine
and something else (which he did not know). (40 RT 5787.) No other
evidence on this point was presented.
'’ At the request ofthe defense, the jurors did not learn that Mr. McDowell
had been housed on death row since his 1984 convictions. (See 42 RT 6037-
6040.)
37
That afternoon, Mr. McDowell killed Paula Rodriguez, in the house next door
to Lee D’Crenza’s. (37 5244-5245, 5296; 38 RT 5509.) Paula was a 28-year-old
housekeeper who worked on Thursdays at Frank and Diane Bardsleys’ house. (37
RT 5244, 5245, 5296, 5369; 38 RT 5501-5503, 5587.) Paula had two daughters:
Maria Elena and Valeria. (38 RT 5503-5504.) Toddler Valeria was with her that
day. (37 RT 5281; 38 RT 5499.)
Mr. McDowell hadvisited the Bardsleys’ house on several occasions before, to
use the phone. (38 RT 5509.) Frank and Dianehadlet him. (38 RT 5510, 5513.)
However, Paula was timid and very cautious. (38 RT 5509.)
Mr. McDowell apparently pushed his way in that day, because the front door
knob had puncheda hole in the wall behind it. (87 RT 5266.) There were also
gouges in a closet door, and a broken doorstop. (38 RT 5507.)
The Bardsley’s next-door-neighbors — Ted and Dolores Sum — weresitting on
their sofa just after lunch that day when they heard terrible screaming coming
from nearby. (37 RT 5243-5244, 5368.) When they phoned the Bardsleys’ house,
someonepicked up the phone. There were more screams onthe line, and then it
went dead. (37 RT 5246-5247, 5370.) Seventy-three-year old Ted took off for the
Bardsleys’ house with Dolores following behind with the key. (They had a copy
of the key, for house-sitting). (37 RT 5245, 5247-5248, 5370.)
Ted reached for the closed front door, which usually was locked. Butit
wasn’t. (37 RT 5372.) Ted opened the doorslightly, leaned in, and started called
38
c
p
w
s
o
e
g
e
F
S
e
e
E
S
O
E
)
F
S
U
e
U
e
4
i
6
1
4
6
4
s
6
é
&
e
o
&
4
8
a
i
4
é
i
4
¢
t
a
4
a
r
@
3
s
&
for Paula. (37 RT 5372-5372.) Suddenly, Mr. McDowell appeared — naked, with
blood on him. He slashed Ted across the throat. (37 RT 5248-5249, 5376-5378.)
Ted pushed Mr. McDowell off balance, got out of the house, closed the front
door behind him, and told Dolores to run. (37 RT 5248-5249, 5378, 5386, 5389.)
She ran backto their house, with Ted following behind. (37 RT 5249, 5378.) She
tried to call 911 but was too flustered, so Ted took the phone from her andtalked
to the paramedics. They camequickly and took him to the hospital. (37 RT 5250,
5379-5380.) Ted stayed there for several days, recovering from the eight-to-nine
inch wound onhis neck. (37 RT 5380-5381.)
Los Angeles Police detective Henry Petroski arrived at the Bardsleys’ house
around 2:30 that afternoon. (37 RT 5261.) Paula was lying on the living room
floor with her clothes on, but with her legs spread, her skirt pulled up, and her
panties cut. (37 RT 5266-5267; 39 RT 5595.) There was bloodall overthe living
room. (38 RT 5267-5268.) Other officers, who had arrived before Petroski, had
found Valeria safe in the house, and took her to neighbors. (38 RT 5497-5499.)
There were two shallow wounds on Paula’s throat — as if Mr. McDowell had
come up from behindher, or cut her there while holding a knife to her throat to
control her. (38 RT 5575-5576, 5577-5578.) The fatal wound wasa deep stab
below the collar bone and into the aorta. (38 RT 5571-5573, 5579.) Another deep
stab woundin the lower abdomen wasinflicted soon after death. (38 RT 5574,
5581-5582.) Paula also had numerousdefensive wounds on her hands, as well as
scratches on her knees, legs and feet. (38 RT 5584-5586.)
39
Detective Petroski spotted a trail of blood that led out of the Bardsleys’ house
to Lee D’Crenza’s house. (37 RT 5271.) Inside Lee’s house was a bloody 15”
knife. (37 RT 5272, 5291.) There was also blood in a bedroom and bathroom,
including on thetiles and shower handles. (37 RT 5293-5294.) Petroski followed
drops of blood eight to ten feet apart out of Lee’s house and upthestreet to a
driveway on Curson Terrace. (37 RT 5297-5297.)
Ashe stood on the driveway, Petroski heard a voice coming from a bush near
him, saying, “Don’t shoot me, don’t shoot me,” and, “I’m bleeding,”or “TI give
up.” (37 RT 5298.) Petroski pulled his gun and ordered the personto get out. (37
RT 5298.) Mr. McDowell said he was stuck, and showed his hands — which were
cut and bleeding. (37 RT 5298.) Petroski called for backup. Those officers
pulled Mr. McDowell from the bush. (37 RT 5298-5299.)
Then Mr. McDowell talked nearly non-stop for the next seven hours-- while
he was photographed by news cameras coming out of the bush, while he was
driven to the hospital for attention to his wrist wounds, while he wastreated at the
hospital, and while he was returnedto the hospital because he began to have
seizures. (37 RT 5299-5300; 38 RT 5537, 5541.) He immediately told the
officers he was wanted for rape in Florida. (37 RT 5299.) Hereiterated this
several times to Los Angeles Police officer Roger Michel, who took Mr.
McDowell to the hospital both times. (38 RT 5533.)
Mr. McDowell cried on and off during the first, four-hour hospital visit, and
begged Michel to shoot him in the head. (38 RT 5533, 5539-5540, 5542.) He told
40
§
f
a
i
t
&
e
g
4
s
d
a
§
&
i
& a
b
i
f
e
t
‘
&
Michelto just kill him, and pretend that he tried to escape. (38 RT 5542.) Mr.
McDowell jumped from topic to topic and kept volunteering statements — such as
the that lab tech would find it was Paula’s blood on his stomach, that he was mad
at Lee for not appreciating his work around the house and that was why hekilled
Paula, and that a force had come over him when he watched a television show that
made him kill Paula. (38 RT 5531, 5532, 5541, 5552-5553.) Healso said his real
name was Charles McDowell, and that he had changed his name because he was
wanted for rape in Florida. (38 RT 5533.) He said he had been in a mental
institution, and played games-- like everyone did -- just to get out. He said he
wasan habitual criminal, and that’s why he wanted Officer Michel to kill him.
(38 RT 5533-5534.) On the wayback to the police station from the hospital, Mr.
McDowell began vomiting blood and having seizures. (38 RT 5544, 5557.)
Despite all of this, none of the officers who observed Mr. McDowellthat
afternoon and evening thought he was underthe influence of anything. (37 RT
5300; 38 RT 5527, 5530.)
When Mr. McDowell began having seizures, Officer Michel took Mr.
McDowell back to the hospital. (38 RT 5544.) Mr. McDowell wastreated at the
hospital for an hour or two; then Michel took Mr. McDowell to the Hollywood
station. (38 RT 5545, 5558.) There, Mr. McDowell met with his lawyer and drug-
using friend Speare Primpas. (40 RT 5788.) Mr. McDowell looked to Spearelike
“he was very much high,” and the sameas he did after three or four days without
sleep. (40 RT 5791.) Mr. McDowell told Speare that he had assaulted a woman.
4]
(40 RT 5790.) Speare informed Mr. McDowell that indeed, a woman had been
murdered. (40 RT 5790.) At that, all the blood rushed from Mr. McDowell’s
face. He turned white, put his head betweenhis legs and started to cry. (40 RT
5790.)
(5) Victim impact testimony
Paula Rodriguez’s husband Jose testified that “what the death of Paula
Rodriguez” had “meant to him” wasthat “I have suffered every minute since then,
and our family is not well. We’re really not unitedat all.” (39 RT 5608.)
Nineteen-year-old Valeria Andrade, Paula’s youngest daughter, was permitted to
add, “I wouldn’t be so estranged like I am from mysister” if Paula had not been
killed. (39 RT 5612.) And Maria Rodriguez testified that after her mother died,
Maria had problemswith her father and other members of her family, and wasstill
notat all close to her family. (39 RT 5633.)'®
This victim impact testimony ran far a field ofwhat had been introduced
andlitigated in the first retrial - where no mention ofthe family’s estrangement
was made,at all. (See 26 RT 3494-3512 [entire opening statement]; 26 RT 3497
[prosecutor states that family will testify to the loss they experienced after the
murder]; 28 RT 3935-3956 [Valeria’s testimony]; 28 RT RT 3933-3934 [Jose’s
'8Tn his penalty phase closing argument, the prosecutor expressly argued that
the family estrangement was a reason to impose the death penalty. After readingat
length from the daily transcripts of Maria’s testimony, the prosecutor summedit
up by urging that “[tJhe killing of Paula Rodriguez splintered, and it is clear, the
Rodriguez family.” (43 RT 6269.)
42
F
a
F2
82
E
5
3
g
s
a
g
e
s
F
y
F
S
&
i
é
n
o
_
¥
a
a
d
ai
4
&
i
6
&
a
§
8&8
9
7
%
i
6
i
<
4
testimony]; 28 RT 3930-3931 [Maria’s testimony].) Indeed, Mr. McDowell had
objectedat thefirst retrial that if the prosecutor was goingto gointo this area, the
parties would needtolitigate it before handto ascertainits truthfulness and
admissibility. (RT 25 3381-3390.)
The parties and the trial court agreed before the secondretrial began that,
unless revisited, all motions and objections raised in the first retrial applied
automatically to the secondretrial. (36 RT 5209-5211.) The victim impact issue
wasnotrevisited during in limine motions. The prosecutor did not mention the
Rodriguez family estrangementin his opening statement. (See 37 RT 5213-5232
[entire opening statement]; 37 RT 5229 [prosecutorstates that he will present
victim impact testimony from the people the murderaffected].)
Then, in the middle of his direct examination of Jose Rodriguez, the
prosecutor asked out, of the blue, “After the death ofyour wife Paula, didyou
become estranged with one ofyour daughters, Maria Elena?” (39 RT 5603-5604;
emphasis added.)
Trial counsel objected immediately. (39 RT 5604.)
Butthe prosecutor’s proffer that “the family is splintered, it’s ruined his
life, it’s ruined all oftheir lives by the death of Paula Rodriguez” was, according
to the trial court, “fair and specific victim impact evidence.” (30 RT 5607.) The
trial court thus overruled Mr. McDowell’s objection. (39: RT 5607.)
Then, over defense objection, the trial court instructed the jury at the end of
the family members’ testimony:
43
I do wantto let the jurors know that as family members
testify, victim’s family memberstestify, Ms. Rodriguez’ family
memberstestify, their opinion, their desire about the penalty that
should be imposedin this caseis not legally admissible, so they
can’t be asked questions aboutthat.
(39 RT 5610-5611.) Trial counsel had objected to this instruction on Eighth
Amendment grounds. Trial counsel! explained that such an instruction “suggests
the family has an opinion, and that the opinion is he should be executed, and we
don’t even know that.” (39 RT 5610.)
Butthe trial court overruled the objection, explaining — as it did regarding
many ofits other rulings — that what wasat stake wasessentially unfair to the
prosecution:
No,it doesn’t suggest that, and you’re going to in your
phase of the case going to offer the evidence by the family members
as muchasthey detest a lot of what he’s done, that they don’t think
he should die forit.
The balance is not there, and the reasonforitis it’s not
admissible, and I’m goingto tell them why.
(39 RT 5610; emphasis added.)
44
e
e
eee
e
O
e
e
e
e
e
r
e
o
m
o
T
j
é
#
h
d
s
@
&
@
6
&£
2
P
a
id
6
.
i
a
4. Thetrial court refuses to honortrial counsel’s strategic choice
regarding aggravation instructions, and the prosecutor commits
misconductin closing argument.
In the first retrial, the prosecutor’s closing argumentdid not draw a single
defense objection. (See 33 RT 4573-4619.) In the secondretrial, the prosecutor’s
closing argument wasnearly identical (see 43 RT 6249-6310) — exceptthat it
contained three misstatements of law and fact to whichtrial counsel objected or
about whichthetrial court itself raised concern. (43 RT 6252, 6282, 6309.)
Then,the trial court gave lengthy instructions regarding the elements of the
unadjudicated prior bad acts — overtrial counsel’s express objection to them. (11
CT 3012, 3013, 3016-3017.)
During litigation of this issue in the first retrial, trial counsel stated that
because the defense was not challenging commissionofthe prior crimes, there
wasno needto instruct on motive and flight, nor on the elements of the crimes.
(32 RT 4505.) Trial counsel stated that it washis tactical intent not to “overload
jury with what I consider unnecessary instructions.” (Ibid.) Indeed, trial counsel
stated he waswilling to stipulate as to the prior violent crimes in order to avoid
that instruction. (32 RT 4506.) The prosecutor nonetheless requested that the trial
court instruct regarding all the elements of the all crimes. (32 RT 4511.)
Trial counsel again expressly objected:
Not only do I think it’s as a matter of policy not a good idea to give
[the instructions], I’m going to object to giving them in light of the
fact that I’ve indicated there’s going to be noissueraised as to the
45
commission of those offenses, and J think nevertheless giving those
instructions now unfairly emphasizes those incidents.
(32 RT 4517-4518.) Trial counsel concluded that“it becomes unfair” to the
defense to instruct in this manner. (32 RT 4518.)
Consistent with its attitude in so many other rulings against Mr. McDowell,
the trial court responded that the circumstances were unfair — but, to the state, not
to the defendant facing the death penalty. (32 RT 4518) Asset forth earlier,
according to the trial court:
I think that the People’s limitations of three factors in aggravation is
what’s unfair, and since they are limited to those, I think that’s what
they can hammer. That is what we’ve got. They don’t have anything
else but those three factors, which as I said before, I think is an unfair
limitation.
(32 RT 4518; emphasis added.) Thetrial court did not stop there:
It’s very impressive to me to see a defendant in court whois
constantly committing crimes the momenthe’s out ofprison, does
it again, gets caught again, backin jail, back in prison, his entire
life is this. It’s an indication that the only thing we can dois stop
itpermanently.
That to me is a very aggravatingfactor and it’s not one that
thejury can consider.
(32 RT 4518-4519; emphasis added.) The trial court continued:
46
e
s
w
u
sr
t
r
u
g
g
r
o
F
s
e
t
F
s
g
g
F
e
e
F
S
F
Y
a
is
-
Tm
|
im
am
@
i)
8
3
s
e
e
s
&€@
8
&
8
B
2
6
8
4
i
that the death penalty would be abolished some day. [Para.] Would you explain
that?” (35 RT 4925.) The prospective juror answered directly: “I have read, sir,
that it’s not a deterrent for crime in the long term. That’s why I wrote it down.”
(Ibid.)
Thetrial court then asked, “Do youbelieve that in your view the death
penalty is a realistic, practical possibility for you to vote for, depending on the
evidence that you hearin this case, aggravating and mitigating circumstances?”
(Ibid.) The prospective juror answered, “Yes, J thinkit is.” (Ibid.; emphasis
added.)
The remainderofthe trial court’s voir dire of this prospective juror was
unrelated to capital punishment. (35 RT 4926-4929.)
(c) Voir dire by the prosecutor
After the trial court completed its voir dire of the first twelve prospective
jurors, the prosecutor moved to excuse one juror for cause — but not prospective
juror F6135. Thetrial court granted that motion. (35 RT 4968-4971.)
The next day, when the prosecutor was givenhis first opportunity to
conduct individual voir dire, he went straight to prospective juror F6136. The
prosecutor began, “[A]s far as your position on the death penalty”:
Prospective Juror No. 3: Yes, sir. I question the value of the death
penalty as a deterrent for crime. I have more questions than answers
myself, limited information, but I really wonder [about] the value of the
73
death penalty as a detérrent for crime.
Mr. Barshop: You understandit’s the law in the state of California?
Prospective Juror No. 3: Yes, I do.
Mr. Barshop: You’ve indicated that you’ve lived in a number of
various jurisdictions, and I would believe that some of them do not
have a death penalty; is that right?
Prospective Juror No. 3: That’s correct.
Mr. Barshop: Your statement, which I think sort of surprised the court
and also surprised me, your statement was your general feelings about
the death penalty penalty wasthat “Hopeit will be abolished some day.”
Is that right?
Prosepective Juror No. 3: Again if it has no value as a deterrent of
crime, I think it has no point to continue.
Mr. Barshop: Andis that yourbelief, that it has no value and therefore
no point?
Prospective Juror No. 3: As a deterrent to crime,yes, sir.
Mr. Barshop: And you then respond to the next question about your
opinion regarding the death penalty that you are moderately against.
Prospective Juror No. 3: As a memberofthis society, I understand
it is a part of the rules of the game, so, for example, in this court if
you and thejudge would give me instructions, I would abide by
those instructions.
Mr. Barshop: Well, let me, in response to another question about the
death penalty, it says, “When the defendant is sentenced to death,
whatdoes that mean to you?”
And yourresponse to that was, “A terrible sentence.”
Now,there are some peoplethat are abolitionists as far as the
death penalty are concerned, andthat is a legislative function.
Do you understand that?
Prospective Juror No. 3: Uh-huh.
74
e
e
r
y
o
e
i
§
&
i
8
8
G
a
&
2
@
e
4
5
@
)
@&
4
5
8&8
1
9
0
§
£
?
a
a
t
a
Mr. Barshop: And the real questionis, is with your position — do you
understand this is a penalty phasetrial only?
Prospective Juror No. 3: I do understand that.
Mr. Barshop: And you have to make a decision on the penalty to
be imposed. You do not decide guilt. That has already been decided.
Prospective Juror No. 3: I understand that.
Mr. Barshop: Doyouthink that because of your feelings about the
death penalty, that it will impair or influence to any substantial degree
yourability to decide this case on the issue of punishment.
Prospective Juror No. 3: It could.
Mr. Barshop: Andthat it would affect your ability to be fair and
impartial to the prosecution in this case because you favorlife
without the possibility of parole.
Prospective Juror No. 3: It could be.
Mr. Barshop: Okay. Thank you.
(36 RT 5006-5008; emphasis added.)
Thetrial court grants the prosecutor’s motion to excuse for cause
Trial counsel anticipated the prosecutor’s motion to excuse Juror F6136 for
cause, and objected that the prosecutor had put the wrong question to her:
The proper question is whether her views would prevent or
substantially impair, and the question Mr. Barshopputto heris
whether they would substantially impair or influence, and I don’t
think there’s room in the law to excuse somebodybecause their
views might have someinfluence.
(36 RT 5021.)
75
The prosecutorprotested, “That’s not what she said.” Instead, according to
the prosecutor, the prospective juror “said she was substantially impaired,
39shouldn’t be on this jury.” (Ibid.) Trial counsel correctly pointed out that the
prospective juror had in fact answered on her questionnaire that she could impose
the death penalty. (Ibid.)
Thetrial court excused prospective juror F6136 for cause:
Initially | was confused by the answers she gave in the questionnaire,
and I had somedoubt about it, especially given that one statement. But
based on the answers she’s givenorally, it did seem to me that she was
substantially impaired ....
(Ibid.)
(2) Juror R9529
(a) Questionnaire answers
Prospective juror R9529 was a 38-year-old African-American female typist
for the city of Los Angeles who livedin South Central. (6 CT 1760.)*! She
answered on her questionnaire that she was “moderately against” the death penalty
(6 CT 1773), and that she did not “believe that people should decide if someone
should die,” (6 CT 1774), but that she could also set aside her personal views
about the death penalty to render a verdict in accordance with the law. (6 CT
Under the same system set forth in the footnote above, Prospective Juror
R9529 wasalso referred to by the parties during voir dire by another number —
Eight, which reflected her seat in the jury box. Also as set forth abovein that
footnote, Mr. McDowellrefers to her here by her lengthier, individuated number.
76
re
p
f
e
e
e
8
e
S
P
D
F
S
O
e
e
o
e
e
e
S
F
e
E
S
O
E
,
O
U
U
e
C
s
i
j
J
&
&
2
@
a
n
j
§
@
s
€
®
9
8
s
t
p
t
fs
@
t
O
t
B
d
H
S
&
1777.) She answered that she would not always vote for life without parole, nor
would she always vote for death. (6 CT 1773.) Overall, she believed that life in
prison without the possibility of parole would be a worse fate than the death
penalty. (6 CT 1772-1777.) Though she circled “No” when asked whether she
could impose the death penalty in a case that involved murder in the commission
of attempted rape, she wrote in explanation, “I don’t know I would haveto hear
the aggravating evidencefirst.” (6 CT 1774.)
(b) Voir dire by the trial court
Mostofthe trial court’s voir dire concerned this prospective juror’s
contacts with law enforcement, through family members whohad been involved in
crimes, and through officers that she knew socially. (36 RT 5063-5068.) Thetrial
court’s voir dire of this prospective juror about her questionnaire answers
regarding capital punishment consisted of the following:
The Court: Page 14, you’ve indicated you're moderately against
the death penalty, and as to the question whether you would always
vote against death, you said — you circled no and then it looked like
you had a question marknextto it and then you crossed it out.
How do you now feel aboutit?
Prospective Juror No. 8: How do I feel about the death penalty?
The Court: Yes. Is it a realistic, practical possibility in your mind
that you would vote for the death penalty, depending on the
aggravating and mitigating circumstances that are presented in this
case?
77
Prospective Juror No. 8: I think if [ had to, that yes, I could. Ifit
wasup to me, no, | wouldn’t wantto.
'
3
2
F2
32
Y
s
~ The Court: Okay. Hadto is never appropriate. No juror is going
to be told you have to vote for the death penalty. That’s one of the
things that will not occur in thistrial.
As I’ve indicated, there is no burden of persuasion. Neither
side has an obligation to prove that a particular penalty is necessary,
and you will never be instructed that if you find any of these factors
or all of them that you must vote for the death penalty. So you’re
not going to have to vote for the death penalty.
In that case would you ever vote for the death penalty?
Prospective Juror No. 8: I’m not sure. I really don’t. [Sic].
The Court: Okay. You also indicated you really didn’t have much
of a choice between the two penalties as to which is worse.
Again, can you adjust the decision based on our anticipation
here that the death penalty is a greater penalty, the life imprisonment
whichis the lesser penalty?
Prospective Juror No. 8: Yes, J could.
The Court: Thank you.
(36 RT 5067-5068.)
(c) Voir dire by the prosecutor
The prosecutor’s voir dire of this prospective juror consisted of the
following:
Mr. Barshop: Juror No. 8, youindicated on your questionnaire
that, “I really don’t believe in the death penalty. Life in prison
would be more of a punishment.”
Is that your state of mind?
78
e
e
e
e
e
e
e
a
e
6
&
i
=
e
a
@
,
4
i
@
¢
©
@
£
5
* a
@
s
?
a
s
e
a
‘
8
Prospective Juror No. 8: Was that my state of mind? Yeah,
when I filled out the questionnaire.
Mr. Barshop:Isit still your state of mine?
Prospective Juror No. 8: No, no, not after hearing everything
here today, no.
Mr. Barshop: Youalso say, “I don’t believe that people should
decide if someone should die, whether” — I can’t read your next
word — something “doing the killing verbally or physically.”
I haven’t quoted you exactly correctly, but the substance
of what you are saying, it seems to me, that people, jurors,
shouldn’t decide whether someonelives or dies, that that is not
something that you could do.
Is that what you were saying at the time?
Prospective Juror No. 8: Yes.
Mr. Barshop: Do you believe that today?
Prospective Juror No. 8: No. I believe today thatI could make
a decision on death orlife in prison after I heard everything, after
I heard all the circumstances.
Mr. Barshop: Well, you have said you don’t believe in the
death penalty, right. Is that right?
Prospective Juror No. 8: Well, at that time — well, no, I didn’t
believe in the death penalty, no. I didn’t believein it.
Mr. Barshop: Your answerto another question on page 15, 55,
“When defendant is sentenced to death, what does that mean
to you?”
And yousay, “They got off easy.”
Prospective Juror No. 8: Yeah. I would think spending your
life in prison actually — well, if it was me, J think I would rather
die than spend mylife in prison.
Mr. Barshop: Well, the court’s informed youthat as far as the
gravity of the penalties, the more severe the penalty is the death
penalty, and then the other choice, which the jury has to make,
79
is if they determine — if you determinethat death is not
appropriate, then it’s life without the possibility of parole.
Do you understand that?
Prospective Juror No. 8: Yes.
Mr. Barshop: And you understand that the more serious of the
two penaities is the death penalty?
Prospective Juror No. 8: Yes, ] understand that.
Mr. Barshop: So again to get to the bottom line, do you think that
you could impose the death penalty if you don’t believe in it.
Prospective Juror No. 8: You’re kind of confusing me.
Mr. Barshop: I’m nottrying to. I’m trying to have you answer.
Prospective Juror No. 8: You're asking me if1 could sentence
someoneto death ifI don’t believe in it. When I wasfilling that
out, I never thought about whether I could or not, so I was just
answering the questionnaire.
At this point, yeah, I think I would have to make the
decision that I thought wasright.
Mr. Barshop: And that could include the death penalty?
Prospective Juror No. 8: Yes.
Mr. Barshop. Thank you.
(36 RT 5086-5088; emphasis added.)
80
e
e
e
e
e
e
e
e
9
o
e
§
&
i
0
3
4
4
&
&
e
s
@
,
&
@
e
&
a
4
f
@
é
?
é
@
4
<<
, &
'
@
43
&
(d) The trial court grants the prosecutor’s motion to excuse for cause
The prosecutor challenged this prospective juror for cause:
[S]he got very angry with me, which I thought wasinteresting
when I asked her questions about the death penalty.
Whenherinitial answers were that she was against the
death penalty, that she couldn’t impose the death penalty and
that she would not impose the death penalty, and that was
basically the same questionsthat the court asked and gotthe
same answers and then she changedherposition. I think that
the court should concludethat she is substantially impaired ....
(36 RT 5092.)
Trial counse! objected:
Ms. McLean: [I] believe her answersare that she could impose
the death penalty if it was required. The angerI think comes from
the way Mr. Barshop addressed her. It appeared, and I can see
why she would think that, he was speaking downto heror
questioning herintelligence, so | think that’s what happened.
Mr. Barshop: I don’tlike that, and we should just stop that.
The Court: Calm down. She’s entitled to her opinion.
Ms. McLean: That’s it, your Honor. She was — she neversaid
that she could not vote for the death penalty. In fact, many times she
said that she could if she thoughtthat it was what the case required,
and that’s all that should be required of anyone.
(36 RT 5093-5094.)
Butthe trial court granted the state’s motion, and excused this prospective
81
juror for cause:
[A|s far as Juror No. 8 is concerned,just judging on the answers, not
that she gave to Mr. Barshop but that she gave to me, I do think she’s
substantially impaired as to the penalty. There wasn’t too much
question about that in giving the answers that she did and confirmed
in the questionnaire.
Initially saying she doesn’t believe in the death penalty, she’s
moderately against it. She said as to always vote against death, she
circled no, but she put a question mark by that, and that’s really
the nature ofher position.
She also said on page 15 couldyou impose the death penalty,
she circled no. She said she’d have to consider the aggravating
circumstances.
So although there’s some ambiguity in what she said, it’s
clear to me that she is substantially impaired, and IJ will allow the
challenge for cause as to her.
(36 RT 5094; emphasis added.)
B. Excusalofeach ofthese two prospectivejurors requires reversal.
(1) The long-standing United States Supreme Court legal standards.
“{A] criminal defendant has the right to an impartial jury drawn from a
venire that has not been tilted in favor of capital punishmentbyselective
prosecutorial challenges for cause.” (Uttecht v. Brown (2007)= —SsU.S.__5: 127
S.Ct. 2218, 2224, citing Witherspoonv. Illinois (1968) 391 U.S. 510, 521; see also
Gray v. Mississippi (1987) 481 U.S. 648, 668.) Otherwise, the systematic removal
of venire members opposed to the death penalty leads to a jury “uncommonly
willing to condemn a manto die,” and thus “woefully short of that impartiality to
82
3
e
8
ry
r
e
e
e
F
S
g
t
R
e
e
e
e
S
O
S
OF
8
eG
F
s
6
&
@
a
&@
3
6
>
&
a
@
g
i
&
e
e
e
a
t
a
a
s
t
a
5
We
,
s
&
s
*
which[a defendantis] entitled under the Sixth and Fourteenth Amendments.”
(Witherspoon at pp. 521 and 518; U.S. Const., Amends. 6 and 14; see also People
v. Lewis (2008) 43 Cal.4th 415, 482; Cal. Const., art. I, sec. 16.) Removing such
venire members “stack[s] the deck against” a criminal defendant suchthat “[t]o
execute [such a] death sentence would deprive him ofhis life without due process
of law.” (Witherspoon at p. 523; U.S. Const., Amend. 14.)
Of course, counterbalancing the rights of the accusedis the state’s “strong
interest in having jurors whoare able to apply capital punishment within the
framework state law prescribes.” (Brown at p. 2224, citing Wainwright v. Witt
(1985) 469 U.S. 412, 416.) To balance theseinterests, “‘a juror whois
substantially impaired in his or her ability to impose the death penalty under the
state-law framework can be excused for cause... .” (Brown at p. 2224,citing
Witt at p. 424; see also People v. Richardson (2008) 43 Cal.4™ 959, 986 [excusal
for cause proper only where juror’s views “prevent or substantially impair the
performance ofthe juror’s duties;” internal quotations omitted].)
“A sentence of death cannot be carried out” where prospective jurors were
excused for cause simply “because they voiced general objections to the death
penalty.” (Witherspoon at p. 522.) As the United States Supreme Court expressly |
holds, “A man who opposesthe deathpenalty, no less than one whofavorsit, can
makethe discretionary judgment entrusted to him by the State.” (Witherspoon at
p. 519; see also People v. Kaurish (1990) 52 Cal.3d 648, 699 [‘‘Neither
Witherspoon nor Witt, nor any of our cases, requires that jurors be automatically
83
excused if they merely express personal opposition to the deathpenalty’’].)
Indeed:
It is important to rememberthat not all who opposethe death penalty
are subject to removalfor case in capital cases; those whofirmly
believe that the death penalty is unjust may nevertheless serve as
Jurors in capital cases so long as theystate clearly that theyare
willing to temporarily set aside their own beliefs in deference to
the rule oflaw.
?
e
(Lockhart v. McCree (1986) 476 U.S. 162, 176; emphasis added.) Similarly:
[T]he State may bar from jury service those whosebeliefs about
capital punishment would lead them to ignore the law orviolate
their oaths. But [the Constitution does not allow the State] to
exclude jurors whoseonlyfault was to take their responsibilities
with special seriousness or to acknowledge honestly
that they might or might not be affected.
(Adamsv. Texas (1980) 448 U.S. 38, 50-51; emphasis added.)
Indeed, the Adams Court reversed a penalty verdict because the Texas
statutory test for jury service excluded jurors whostated that they would be
“affected” by the possibility of imposing the death penalty. The Adams Court
recognized this impermissibly excluded jurors who apparently meantthat the
potentially lethal consequences of their decision would invest their deliberations
with greater seriousness and gravity, and would involve them emotionally, or who
were unable positively to state whether or not their deliberations would be in any
84
e
o
F
e
e
t
F
a
g
S
F
S
F
Y
7
)
i
R
i
s
t
ds
8
4
6
%
@
8
‘
4
h
o
?
&@
4
§
@
s
&
4
&
O
9
8
3
way “affected.” (Id. at pp. 49-50.) In short, this did not amount to “substantial
impairment.” (1d. at pp. 45, 49-50.)
A trial court’s determination of whether a prospective juror is substantially
impairedis “a judgment owed deference by reviewing courts” becausethetrial
court’s determination has been “based in part on the demeanorofthe juror.”
(Brown, 127 S.Ct. at p. 2224, citing Witt at pp. 424-434; see also People v. Lewis,
supra, 43 Cal.4th 415, 483.) Reviewof “the entire voir dire is instructive” in
evaluating the trial court’s application of the Witherspoon and Witt principles.
(Brownat p. 2225.)
If a juror is not substantially impaired, removal for cause is impermissible.
(Brown, 127 S.Ct. at p. 2224.) Erroneous excusal of even one prospective juror
based upon her views regarding capital punishmentresults in the reversal of the
death sentence. (Gray v. Mississippi, supra, 481 U.S. at p. 668; People v. Schmeck
(2005) 37 Cal.4th 240, 257, fn. 3 [same].)
Asset forth below, the trial court erred when it excused Prospective Juror
F6136, and erred again when it excused Prospective Juror R9529. Reversalis
certainly required.
(2) Thetrial court’s improper excusalsfor cause.
Asset forth in detail above, both the trial court and the prosecutor
challenged these women for their personal views against the death penalty. Also
as set forth at length above, that focus was inappropriate (in addition to being
85
belligerent, unseemly treatment of citizens by a court and oneofits officers). The
focus should have been on whether, as sworn jurors whohadlistened to the
evidence and then deliberated penalty, the womenwould be able to set aside these
personal views. Asset forth above and below, both women answered consistently
that they would be able to. But those answers were misconstrued and ignored. In
addition, examination of the record of the entire voir dire and ofthe trial court’s
spontaneouspost-trial comments about the jury’s composition support what
should be clear: the trial court’s excusal for cause of these women was borne of
the trial court’s desire to see a death verdict returned, wasin error, and requires
reversal.
(a) Prospective Juror F6136’squestionnaire and voir dire answers reflected
her honesty and circumspection, not a substantial impairment in her ability
to consider the death penalty as punishment.
Prospective Juror F6136’s answers -- to the questionnaire, to the trial court,
and to the prosecutor — reflected that she was precisely the type ofjuror qualified
to sit on a capital trial, and one the United States Supreme Court would find error
in excusing for cause. Though personally “moderately against” the death penalty,
she answered on her questionnaire that she could put aside those personal views
and follow the law, and would nevervote either automatically for the death
penalty, or automatically for LWOP. (6 CT 1692, 1693, 1694, 1695, 1696, 1697.)
Her explanation for this position — that the death penalty does not deter crime — is
practical, not based on a deep-seated moral, religious, or ethical viewpoint.
86
’
a
®
n
g
a
&
<
@
e
a
*
®
6
6
6
9
8
3
Hence, deliberating about and voting for a death sentence would not involve a
crisis of conscience.
Nevertheless, after answeringall of these questions consistently, the
prospective juror was hammered byboth thetrial court and the prosecutor for her
views about the death penalty. Indeed, the prosecutor confessed he was
“surprised” by her views— as if personal opposition to capital punishment were
somesort of shocking position. (36 RT 5006.) Forits part, the trial court
essentially accusedher of lying on her questionnaire by answering both that she
hoped the death penalty would one day be abolished, but that she was “only”
moderately against it. (35 RT 4922.) The prospective juror explained several
times that though she wasagainst the death penalty becauseit did not seem to
have any deterrent value, she really did not have strong feelings either way.
However, neither the prosecutor nor the trial court could tolerate what they
stubbornly viewed as inconsistent positions.
This focus -- let alone attack -- was absolutely unjustified, and off-base.
Asset forth above, it is error to exclude jurors for cause based upon their personal
beliefs about the death penalty. A juror may only be excused for cause where
those beliefs leave her unable to follow thetrial court’s instructions and the law
regarding penalty — which in California require jurors to consider imposing the
death penalty.
Prospective Juror F6136 was consistent in her questionnaire and voir dire
answers that she would be able to followthe law. (See 6 CT 1697 [questionnaire
87
answer]; 35 RT 4925 [voir dire by trial court].) Indeed, she came up with this very
example herself when trying to explain her viewpoint to the prosecutor: “/Ijn this
court ifyou and thejudge would give me instructions, I would be able to abide by
those instructions.” (36 RT 5007; emphasis added.)
That should have beenthe end of the inquiry. As the United States
Supreme Court case law set forth above makesclear, jurors who are capable of
following the law regarding penalty are death-qualified, no matter whattheir
personalbeliefs about the death penalty. This Court holds the same. In Peoplev.
Kaurish, supra, 52 Cal.3d 648, this Court found error in exclusion for cause of a
woman personally opposed to the death penalty but who was “nonetheless[]
capable of following [her] oath and the law.” (Id.at p. 699.)
But after receiving this textbook example of a death-qualified answer, the
prosecutor continued to houndthis prospective juror. He asked this radiation
physicist several times whether she even understood what was going on — whether
she even understoodthat this was a penalty phasetrial, and whethershe realized
that California had the death penalty. (36 RT 5007-5008.)
Then, when the prosecutor got downto asking her expressly whether she
thought her feelings about the death penalty would substantially impair her
abilities as a juror, what the prosecutor asked was a compound question: whether
her views would “impair or influence to any substantial degree your ability to
decide this case on the issue of punishment.” (36 RT 5008; emphasis added.) The
prospective juror answered, “It could.” The prosecutor then asked whether “it
88
i
y
f
fi
a
8
,
5
kt
q
B
a
e
e
td
&
fF
8
a
k
a
*
3
would affect your ability to be fair and impartial to the prosecution in this case,”
and the prospective juror again answered,“It could be.” (Ibid.; emphasis added.)
It is apparently these two answersthat tipped the balance againstthis
prospective juror when it cameto thetrial court’s excusal of her for cause. But,
for the reasons set forth below,the trial court’s ruling was absolutely improper.
First, as trial counsel correctly pointed out when objecting to excusal for
cause ofthis prospective juror, the prosecutor’s first “impairment” question was
faulty. The prosecutor asked whether the prospective juror’s personal views
would “impair or influence to any substantial degree” her ability to decide penalty.
Trial counsel correctly argued there was no “room in the law to excuse somebody
because their views might have someinfluence.” (36 RT 5021.) For example, as
this Court has recognized, a juror whosepersonal opposition toward the death
penalty may predispose him to assign greater than average weightto the mitigating
factors presented at the penalty phase may not be excluded,unless that
predilection would actually preclude him from engaging in the weighing process
and returning a capital verdict. (People v. Stewart (2004) 33 Cal.4th 425, 446.)
Thus, whether a juror’s views would influence her deliberations is not the correct
test.
Indeed, as set forth above, the United States Supreme Court has explicitly
held that the test for excusing a juror for cause is whether her personal feelings
about the death penalty will leave her “substantially impaired in . . . her ability to
impose the death penalty underthe state-law framework.” (Brown, 127 S.Ct. at p.
89
2224,citing Witt, 469 U.S. at p. 424.) Whether a juror would be “influenced by”
her feelings about the death penalty is not the test, as the United States Supreme
Court expressly recognized in Adams, where the Texasjury selection statute
impermissibly excluded jurors who acknowledgedthat deliberations in a capital
case would involve greater seriousness and gravity and/or would involve them
emotionally. (Adams, 448 U.S. at pp. 49-59.) Here, the prosecutor did not ask the
prospective juror whether she would be substantially impaired. Instead, he
confused the issue and cheated the strict standard by expandingthe inquiry to
whether she might simply “be influenced.”
Second, andalso as set forth above, the United States Supreme Court has
explicitly held that it is impermissible to excuse a prospective juror for cause
simply becausethat individual “acknowledge[s] honestly that they might or might
not be affected” by their beliefs about capital punishment. (Adams, 448 U.S.at p.
51; emphasis added.) It is impermissible to excuse for cause jurors who are
unable positively to state whether or not their deliberations would be in any way
affected. (Id. at pp. 49-50.)
That is precisely what Prospective Juror F6136 told the prosecutor during
voir dire — that she might be affected. Indeed, in his second question, the
prosecutor specifically used the word “affect” — not the much stronger phrase (and
ironclad test for death-qualification, under United States Supreme Court
precedent) “substantially impair.” (36 RT 5008.) And the prospective juror’s
90
r
a
F
s
3
F
a
e
e
s
F
F
)
F
S
F
R
e
e
e
e
e
s
a
e
e
aI
a
k
e
46
€8
5
9
8
3
answer was only that “Jt could be.” (Ibid.; emphasis added.) She did not answer
that it necessarily would, nor even that it waslikely.
In contrast, the prospective jurors recognized by the United States Supreme
Court as properly struck have made strong, unequivocal statements about their
inabilities to follow the law or impose the death penalty. For example, in Witt, a
prospective juror confirmed — by repeating over and over again, “TJ think it would”
— that her personal beliefs would interfere with her ability to judge the defendant’s
guilt or innocence. (Witt, 469 U.S. at p. 416.) Another prospective juror stated he
would not be able to “follow the law as instructed by the Court” when the death
penalty was in isssue. (Id.at p. 438, fn. 7; conc. opn. of Stevens, J.) Another
stated he could not “keep an open mindas to whether to vote for the death penalty
or life.” (Ibid.) On the other hand, a juror who seemed“somewhat confused” but
whostated that she “could” vote for the death penalty was “clearly qualified” to be
seated as a juror. (Gray, supra, 481 U.S. 648, 653-654.)
In sum, it waserror for the trial court to exclude Prospective Juror F6136
for cause. Her questionnaire and voir dire answers “state[d] clearly” that she was
“willing to temporarily set aside [her] own beliefs in deference to the rule of law.”
(Lockhart v. McCree, supra, 476 U.S. at p. 176.) Indeed, that should have been
the end of the inquiry. But, as set forth above, even the answers to questions
belligerently put to this womanafter she repeatedly declared that she would follow
the law do not warrant excusal for cause. Reversal is therefore required.
91
(b) Prospective Juror R9529’s questionnaire and voir dire answers
unequivocally demonstrated that she would follow the law in deciding
the penalty.
Thetrial court’s excusal of Prospective Juror R9529 wasjust as obviously
error. As detailed above, every single answerthat she gave — on her questionnaire,
in her voir dire by thetrial court, and in her voir dire by the prosecutor — indicated
that she would listen to the evidence and the law, and then decide the appropriate
punishment. She wasjust as clear that this included the possibility ofvoting for
death.
The onlycall that could even be considered close occurred whenthetrial
court explained that she was never going to “have to vote for the death penalty,”
but the trial court wondered, “would you ever vote for the death penalty,” and the
prospective juror answered, “I’m not sure. I really don’t. [sic]” (36 RT 5068;
emphasis added.) In other words, she did not know whether she would, or
whether she would not. This seems an eminently scrupulous, rational and honest
response, and consistent with the prospective juror’s answers everywhereelse that
she would needto hearthe entire case before deciding anythingat all. For
example, when asked whether she could impose the death penalty in a case that
involved murder in the commission of attempted rape, she circled “No” on her
questionnaire — elaborating, “I don’t know I would haveto hear the aggravating
evidencefirst.” (6 CT 1774.)
This prospective juror was absolutely unequivocal about herability to set
aside her personal views on the death penalty and apply the law as instructed. For
92
r
a
s
e
e
e
e
e
e
e
e
e
*
£
4
B
s
O
n
a
e
q
1
i
*;
6
3
9
h
a
t
e
g
£8
1
9
8
1
example, she told the prosecutor during his repetitive and condescending voirdire,
‘T believe today that J could make a decision on death orlife in prison after I heard
everything, after I heard all the circumstances.” (36 RT 5087.) She told him
again, “You’re asking meif I could sentence someoneto death if ] don’t believe in
it.... At this point, yeah, I think I would have to make the decision that I thought
wasright.” When the prosecutor expressly asked, “And could that include the
death penalty?” the prospective juror answeredjust as expressly, “Yes.” (36 RT
5088; emphasis added.)
This woman’s responses were more strongly death-qualified than many
others the United States Supreme Court has held were death-qualified. For
example, in Gray v. Mississippi, supra, 481 U.S. 648, the Court reversed a death
sentence wherethetrial court impermissibly struck a prospective juror for cause
who appeared confused and whoat times seemed to equivocate. (Id. at 655, fn. 7 —
[trial court characterizes her initial answers as “totally indecisive” and observes
“She can’t make up her mind”].)” However, because she eventually
acknowledged that “she could consider the death penalty in an appropriate case,”
the Court found the woman should not have been excused for cause. (Id. atp.
653.) Here, prospective juror R9529 expressly told the prosecutor that yes, she
could include the death penalty in her consideration ofpunishment.
For example, when asked if she had objection to the death penalty, juror
Boundsreplied that she “didn’t know.” When asked if she would automatically
vote against a death sentence, she replied “I don’t think I would.” When asked if
she could impose a death verdict, she said, “I think I could.” (Gray v. Mississippi,
No. 85-5454, Joint Appendix at 16, 17-18, 22.)
93
Moreover, in his motion to have this prospective juror excused for cause,
the prosecutor completely mischaracterized the prospective juror’s answers. He
said that “her . . . answers were that she was against the death penalty, that she
couldn’t impose the death penalty ....” (36 RT 5092.) As the record makes
clear, and as trial counsel argued, nothing could be further from the truth. The
prospective juror said precisely the opposite: that she could impose the death
penalty, even though personally againstit.
Thetrial court’s stated reasons for excusing the woman for cause are just as
remarkable. The trial court concluded that “although there’s some ambiguity in
whatshesaid, it’s clear to me that she is substantially impaired,” because, for
example, when asked whether she could impose the death penalty, “she circled no.
She said she’d have to consider the aggravating circumstances.” (36 RT 5094;
emphasis added.)
In other words, this was precisely the kind of person who should be seated
on a capital jury: one unwilling to come to a conclusion about how she would
decide penalty until she heard all the evidence. But instead, unbelievably,thetrial
court held this against the prospective juror, and even cited it as a reason for
excusing her for cause.
In sum, just as did Prospective Juror F6136, this prospective juror’s
questionnaire and voir dire answers “state[d] clearly” that she was “willing to
temporarily set aside [her] own beliefs in deference to the rule of law.” (Lockhart
94
7
2
a
F
S
6
S
e
e
e
e
e
e
e
e
e
e
e
e
+
&@
@
b
a
t
&
i
6
a
1
8
a
3
a
|
;
G
i
n
a
8
i
v. McCree, supra, 476 U.S. at p. 176.) It was thuserror for the trial court to
excuse Prospective Juror F9529 for cause.
(c) Examination of the entire voir dire and the trial court’s improvident
spontaneouspost-trial remarks aboutjury selection are instructive
in evaluating the trial court’s excusals of these prospective jurors.
A trial court’s determination ofwhether a prospective juror is substantially
impairedis “a judgment owed deference by reviewing courts” becausethetrial
court’s determination has been “basedin part on the demeanorofthe juror.”
(Brown, 127 S.Ct. at p. 2224, citing Witt at pp. 424-434.) However, the United
Supreme Court also recognizes that reviewof “the entire voir dire is instructive”
in evaluating the trial court’s application of the Witherspoon and Witt principles.
(Brownat p. 2225.)
Asset forth fully below, review ofthe entire record confirms whatis
already apparent from these two women’s individual voir dire and questionnaire
answers: their excusals for cause were improper, because the prospective jurors
could set aside their personal views against the death penalty and consider capital
sentencing. In other words, they were not substantially impaired. Reversal is
therefore required. |
The salient facts weighed by the Brown Court in its analysis of “the entire
voir dire” included: the length of the entire voir dire, and how muchofit was
devoted to death-qualification questions; when, how often, and in what mannerthe
defense made challenges for cause, and the results of those motions. (Brown, 127
95
S.Ct. at pp. 2225-2226.) As set forth below, analysis of these factors in this case
confirms what Mr. McDowell has shown above: that excusal of these women for
cause waserror.
In Brown, the United States Supreme Court upheld thetrial court’s excusal
for cause of a prospective juror. (Brown at pp. 2229-2230.) According to the
Brown Court, the prospective juror’s “assurances that he would consider imposing
the death penalty and would follow the law” did not overcomethe reasonable
inference from the entirety of his own voir dire, and the record of the entire voir
dire. (Id. at p. 2229.)
Mostsalient ofall to the Brown Court in this determination wasthe fact
that the defense did not objectat trial to the excusal for cause of this prospective
juror. (Id. at pp. 2226-2227.) Indeed, in response to the prosecutor’s motion to
excuse this prospective juror for cause, defense counsel voluntarily and expressly
stated, “We have no objection.” (1d. at p. 2227.) Thus, the Supreme Court could
appropriately conclude upon review that “the interested parties present in the
courtroom all felt that removing [the prospective juror] was appropriate under the
Witherspoon-Witt rule.” (Id. at p. 2229.) In fact, a defendant’s failure to object at
trial to an excusal for cause has long been recognized as evidence of the juror’s
impairment. (See Darden v. Wainright (1986) 477 U.S. 168, 178; Witt, supra, 469
U.S. at pp. 434-435 [in light of counsel’s failure to question the prospective juror
’The entire voir dire of the juror, set forth in an appendix to the Opinion,
consists of six pages in the Official Reports.
96
n
e
o
ee
o
e
s
a
d
té
&4
&
ji
a
B
a
n
a
&
.
t
e
s
&
9
0€
3
9
9
8
)
i
&
i
&
J
or object to her excusal for cause, “it seems that ... no one in the courtroom
questionedthe fact that her beliefs prevented her from sitting”]; People v.
Cleveland (2004) 32 Cal.4th 704, 734-735 [although “failure to object does not
forfeit the right to raise the issue on appeal, .. . it does suggest counsel concurred
in the assessmentthat the juror was excusable”4;. People v. Schmeck, supra, 37
Cal.4th 240, 262 same.)
But that was not the case here. When the prosecutor movedto have these
women excused for cause, trial counsel expressly objected and argued against their
excusals. (35 RT 5021; 36 RT 5093-5094.) Thus — and in direct opposition to the
facts of Brown -- the record does not reflect that the parties in the courtroom all
felt that removal was appropriate under the Witherspoon-Witt principles. Indeed,
whatthe cold record reflects is that these women were death-qualified under those
principles and that trial counsel expressly objected and pointed this out to thetrial
court — which erred excusing these two prospective jurors for cause.
The Brown Court also foundtelling that the entire voir dire took more than
two weeks, eleven days of which were devoted to the death-qualification issue.
(Brown at p. 2225.) In Brown, 11 of the defense’s 18 challenges for cause during
the death-qualification phase were granted. The defense objected 7 timesto the
state’s 12 motions for cause. Only two of those seven were excused over defense
objection. (Ibid.) Moreover, “[b]efore deciding a contested challenge, thetrial
court gave each side a chanceto explain its position and recall the potential juror
for additional questioning.” (Ibid.) The appendix to the opinion in Brown
97
chronicles the six-official-reports-pages-worth of voir dire in which the parties
engaged with the challenged prospective juror. In sum,the “entire voir dire” in
Brownreflects that there was ample time, and a fair and open atmosphere, in
whichto ascertain prospective jurors’ true feelings about imposition of penalty.
The record ofthe entire voir dire in this case stands in stark contrast to the
facts ofBrown.
First, trial counsel’s attempts to establish a voir dire processas fair and
informative as the one that took place in Brown wererejected whenthetrial court _
denied the defense motions for individual voir dire about death-qualification
issues, for sufficient time for attorney-conductedvoir dire, and even for the ability
to call prospective jurors by their names instead ofjury numbers. (6 CT 1610-
1611 [defense-filed motion for attorney-conducted voir dire and sequestered voir
dire regarding death-qualification]; 21 RT 2616-2620 [trial court’s denial of those
motions]; 35 RT 4853-4856 [defense objects to referring to prospective jurors by
numbers instead of names;trial court overrules, but instructs prospective jurors
that this anonymity procedure is not unusual or limited to this case].)
Thetrial court allowed only one hour fotal for follow-up questions by the
attorneys after the court-conducted voir dire. (21 RT 26 16-2620.)* The jury in
“Mr. McDowell acknowledges this Court’s holdingsthat it is not error to
limit attorney voir dire time andthat it is not error to deny sequestered voir dire
regarding death-qualification. (See, e.g., People v. Lewis, supra, 43 Cal.3d at pp.
493-495 and casescited therein.) However — especially in light of the United
States Supreme Court’s examination ofthe entire record of voir dire in Brown —
the practical effects of these limitations remain important facts for this Court to
98
|
e
s
a
S
e
s
&@
*
O
S
b
h
a
t
t
a
on
oe
oe
|
B
s
a
*
4
8
1
8
8
s
&
4
this second-retrial was sworn on the third day ofjury selection, after only two days
ofvoir dire. (See 6 CT 1646-1647 [first day ofjury selection, October 20, 1999;
hardship]; 6 CT 1648-1649 [second day ofjury selection, November 1, 1999]; 6
CT 1651-1652 [third day ofjury selection, November2, 1999: jurors sworn and
alternate selection begins]; 6 CT 1653-1654 [fourth day ofjury selection;
alternates sworn].) Thus, in contrast to the two-week period recognized by the
United States Supreme Court in Brown as a condition under whichthetrial court’s
ruling should be given deference, the voir dire in this case was anemic, and
unfortunately seemed geared towardthe state’s purposes.
Second -- and, given these limitations, it comes as no surprise — that, as set
forth above, the voir dire of each of these two prospective jurors comparedto the
voir dire of the properly-excused prospective juror in Brown was completely
truncated. There are not pages and pages of voir dire in the Reporter’s Transcript
whichreflect that all parties had adequate time and opportunity to sound out these
women; nor does the record suggest that this was what the prosecution wastrying
to do in the first place. Instead, when the prospective jurors gave textbook
answers of death-qualification, the prosecutor cut the women off and then
misrepresented their answers to the court.
Third, comparing the results of challenges for cause demonstrates
significant problems with the trial court’s evaluation ofjurors’ responses. The
consider when evaluating the trial court’s excusals for cause of these prospective
jurors.
99
trial court granted four out of the five motions to excuse madebythestate to
whichthe defense did not stipulate. (35 RT 4968-4970; 36 RT 5021; 36 RT 5022;
36 RT 5092-5095.) But when it came to the defense, the trial court denied both of
the motions for excusal to whichthe state did not concede. (36 RT 5007; 5019-
5020.)
Moststunning — andtelling -- wasthe trial court’s refusal to excuse for
cause a prospective juror who answeredin her questionnaire that she strongly
agreed that anyone whointentionally kills should always get the death penalty (35
RT 4996-4998[voir dire]; 36 RT 5007 [denial of defense challenge for cause]) —
which was even more emphatic than Prospective Juror F6136’s questionnaire
answerthat she was moderately opposedto the death penalty (6 CT 1692), that led
to her state-requested excusal for cause. This pro-death penalty prospective juror
also responded on her questionnaire that “When someonetakes anotherlife, I
don’t see why he should notlose his,” and that regardless ofthe evidence in
mitigation, she would always vote for the death penalty as long as the murder was
“Mr. McDowell acknowledges this Court’s holdings that in order to
preserve a claim of erroneous denial of defense challenge for cause, a defendant
must either show (1) he used an available peremptory challenge to removethe
juror; (2) he exhausted all of his peremptory challenges; (3) objected to the jury as
finally constituted, or justify his failure to exhaust these three requirements. (See,
e.g. People v. Wilson (2008) 43 Cal. 4th 1, 34 (conc. opn. of Werdegar,J.); People
v. Avila (2006) 38 Cal.4th 491, 539; People v. Bittaker (1988) 48 Cal.3d 1046,
1087-1088.) Trial counsel did not exercise all peremptory challenges or offer
justification at the time of trial. Nevertheless, for the same reasonsset forth above
in the footnote above, the facts regarding this denial of excusal for cause remain
important for this Court to consider in evaluating the trial court’s excusals for
cause of Prospective Jurors F6136 and R9529.
100
4
8
0
i
6
8
€
8
J
a
a
a
a
e
a
|
/
@
4)
8
3
6
@
a
*
6
6
6
9
8
dD
8
i
intentional. (Ibid.) During voir dire, this pro-death penalty prospective juror —
whom thetrial court did not excuse for cause upon defense motion ~ explained,
“Well, I wouldn’t want to put somebody to death without hearing everything,” and
that she hadn’t been thinking straight when she answeredthe questionnaire so
emphatically because she was “just so sick of innocent people being killed every
day.” (35 RT 4998; 36 RT 5004 [trial court denies defense challenge for cause].)
Thus, under analysis of the very voir dire circumstancesthat the United
States Supreme Court found instructive whenit upheld the trial court’s ruling in
Brown,this Court cannot but conclude that the trial court’s excusals for cause of
prospective jurors F6136 and R9529 were error. The truncated voir dire precluded
obtaining a complete picture ofprospective jurors’ views on the death penalty; and
whenthetruth did manageto inject itself into this abridged process, thetrial court
aided the state by granting its motions to excuse for cause while denying the
defense motions to excuse for cause.
Indeed, given the entire record of the voir dire, the trial court’s on-the-
record comments madeafter trial should not be so shocking-- exceptthattrial
transcripts do not typically include such stunning and candid statements ofbias.
Whenthe prosecution succeeded in obtaining a death verdict in the secondretrial,
it received open praise from thetrial court for its victory. Thetrial court’s
conclusions about the way the state wonits case specifically included praise for
the jury composition:
101
Perhapsthe rest of you did not expect the verdict that came from this
jury, but ] did. And ] think that’s the difference between the two
[re-trials]. That first jury had, I believe, six jurors that did notreally
believe in the death penalty. They were neutral on the subject, and
it’s very difficult to draw people with that attitude to unanimously
agreeing with the death penalty.
(44 RT 6453.)
The record could not be more clear. This was not a victory achieved by the
prosecutor alone. The state wasfinally able to obtain a death verdict in the second
retrial becausethe trial court helped. As Mr. McDowell has demonstrated, the
trial court improperly excluded for cause prospective jurors who — asthetrial
court itself expressly stated after the verdict was rendered -- “did notreally
believe in the death penalty” or who were even “neutral on the subject.” As a
result — and as reflected in the trial court’s own jubilant praise for the verdict--
the jury in the secondretrial was one that was “uncommonly willing to condemn a
man to die.” (Witherspoon, supra, 391 U.S. at p. 521.) Reversal is therefore
required.
3. Mr. McDowell’s state and federal constitutional rights were
prejudicially violated by the admission of inappropriate
victim impact testimony in the retrial, and by the trial court’s
instructions to the jurors about victim impact evidence.
In a hearing held out of the presence of the jury before thefirst retrial
regarding “victim impact” evidence,the trial court put voice to its dramatic
102
e
y
»
e
s
F
S
e
e
C
U
y
e
é
i
b
i
t
JS
e
a
@
a
g
e
a
t
4
f
&@
@
&
§
@
a
*
9
8@
9
8
9
8
9
feelings about whatit viewed as the long-term consequences of Paula Rodriguez’s
murder:
This is a pebble dropped into a pond[that] has [a ]certain numberof
ripples. The fact that there are too many of them is not a reason
to object to the fact that the pebble caused a ripple. This is a result
of the homicide, that these people have been devastated bythis.
Not just a dead person,it is a dead family.
(25 RT 3389.) Thetrial court’s sympathies did not changein the secondretrial —
but what the prosecution untimely decided to introduce as victim impact evidence
did.
Asset forth fully below, the trial court’s erroneous ruling during the second
retrial that improperly expanded victim impacttestimony, and thetrial court gave
unconventional instructions to the jury about victim impact evidence duringthis
testimony. These rulings violated Mr. McDowell’s Sixth, Eighth and Fourteenth
Amendmentrights and their state constitution analogues. (U.S. Const., 6th, 8th
and 14th Amends.; Cal. Const., art. I, secs. 1, 7, 13, 15, 16, 17, 24, 27.) These
errors — singly, and in combination — require reversal.
103
A, Admission of “victim impact”testimony about the broken
relationship between Paula Rodriguez’s husband and
daughter was error that violated Mr. McDowell’s state and
federal constitutional rights..
(1) The relevantfacts below.
(a) Thefirst retrial
In the first retrial, trial counsel objected in limine to a numberof family
photographs that were ofpeople and time framesnotclearly related to Paula
Rodriguez at the time of the murder — which,by the time of the secondretrial, had
occurred nearly 20 years earlier. (25 RT 3377-3380.) According to the
prosecutor, photos from dates far-removed from the murder were admissible
because there were few photos remaining of Paula herself, due to a family rift:
The death caused by Mr. McDowell has caused a complete
break up of this family as a family unit. The elder daughter has no
contact with the father at all. She blames himfor her mother’s
death. She will not get married. She won’t have children.
(25 RT 3379; see also 25 RT 3381.)
Trial counsel pointed out that it would be unfair to put the defense in the
position of having to cross-examine the family members aboutthe photos “and
make us look frankly like insensitive ghouls, when in fact we’re stretching the
104
2
a
F
S
8
e
r
t
>
e
s
r
e
i
@
&
@
i
a
k
a
i
s
e
J
&
1
@
s
3
@
s
a
*
®
4
€@
$
0
5
@
*F
8
a
۩@
bs
b
d
e
8
5
€
3
rules in advance to accommodate the People becausethey claim it’s the only
photograph they have.” (25 RT 3381.)°
Thetrial court disagreed that there was anystretching going on, because
“Tt]he fact thatit is the only photograph ofthe victim as a semiadult or adult I
think is very significant by itself, that this is the memory the children have of ...
their mother.” (25 RT 3382.)
The prosecutor also sought to introduce a photo of the elder daughter,
Maria, which the prosecutor argued was relevant“[b]ecause the father doesn’t talk
to the daughter, she doesn’t talk to him... .” (25 RT 3382.) When thetrial court
asked why Maria blamed her father, Jose Rodriguez, for Paula’s death, the
prosecutor answered, “Because he told the mother to go to work on the day she
waskilled.” (25 RT 3383.) The prosecutor added, “If you believe that these
crimes end... they don’t. I mean the father was in myoffice crying for an hour.
There’s no logical explanation as to why she blames him.” (25 RT 3383.)
Trial counsel pointed out that there was, in fact, also evidence that “the real
reason the daughter is so angry with him” wasthat “he fail{ed] to honor the
mother’s memory and remarried and set about setting up a new family for
himself.” (25 RT 3384.) Trial counsel objected that evidence ofthe family’s
estrangement went beyondthe limits ofproper victim impact testimony, under
“However, as set forth in Arguments 1 and 5, Mr. McDowell was not
similarly “accommodated”bythe prosecutororthe trial court regarding evidence
or the passageoftime.
105
People v. Edwards.*’ Trial counsel arguedthat it was necessary to “delineate
limits, because it is not wide open, and I think going into alienation on the part of
the children ... is . . . certainly pushing the limits,” especially where there were
“conflicting explanations for this alienation.” (25 RT 3384.)
Trial counsel also requested that if the prosecutor intended to go intothis
estrangementin his opening statement, that the trial court allow the defense to
argue the matter further and receive an in limine ruling, “so we can all understand
in advance what you are going to rule are the limits to victim impact evidence.”
(25 RT 3389; emphasis added.)
Thetrial court simply asked, “If you have something, Ill be happy to hear
it.” (25 RT 3389.) Trial counsel stated, “I can give you Edwards right off the
top.” (bid.) Thetrial judge then cut offtrial counsel by impatiently asserting that
he had written a manual on death penalty trials that was 50 pages long, had
lectured to judges on the issue, and could quote to trial counsel any cites on victim
impact evidence necessary. He then moved onto the next in limine issue without
issuing a direct ruling. (25 RT 3389-3390.)
The prosecutor did not make any mention of the Rodriguez family rift in
his first retrial opening statement. (See 26 RT 3494-3512 [entire opening
statement]; 26 RT 3497 [prosecutor states that family will testify to the loss they
experienced after the murder].) Neither did the prosecutor ask any of the
Rodriguez family members about the estrangement duringtheir direct
*'People v. Edwards (1991) 54 Cal.3d 787.
106
r
e
r
e
e
t
F
s
e
S
F
e
e
O
E
O
S
j
@
e
S
®
e
g
i
&@
>
B
i
6
e
a
e
d
t
a
i
6
a
n
ee
|
«
examinations. (28 RT 3935-3956 [Valeria’s testimony]; 28 RT RT 3933-3934
[Jose’s testimony]; 28 RT 3930-3931 [Maria’s testimony].) For example, Maria
testified that she had been nine years old whenPaula was killed. After that, Maria
wentto live with her grandparents in Mexico. Now an adult, Maria did not have
any children of her own “because I don’t want them to go through what I’m going
through.” (28 RT 3930-3931.)
(b) The secondretrial
Theparties and the trial court agreed before the secondretrial began that,
unless revisited, all motions and objections raised in the first retrial applied
automatically to the secondretrial. (36 RT 5209-5211.) The victim impact issue
wasnot revisited during in limine motions. The prosecutor did not mention the
Rodriguez family estrangement in his opening statement. (See 37 RT 5213-5232
[entire opening statement]; 37 RT 5229 [prosecutor states that he will present
victim impact testimony from the people the murder affected].)
Then, in the middle of his direct examinationof Jose Rodriguez, the
prosecutor asked out, of the blue, “After the death ofyour wife Paula, didyou
becomeestranged with one ofyour daughters, Maria Elena?” (39 RT 5603-5604;
emphasis added.)
Trial counsel objected immediately. (39 RT 5604.)
Atthe lengthy sidebar interrupting Mr. Rodriguez’s testimony before the
jury, trial counsel objected: 1) this was improper victim impact testimony because
107
it was collateral to Mr. Rodriguez’s emotional feelings about the murder, and
because of the uncertainty about what actually had causedthe rift; and 2) the
defense had been sandbagged with this evidence — which had not been introduced
in thefirst trial, after it had been fully litigated there — and admitting it waserror.
(39 RT 5605-5605.)
Both the prosecutor andthetrial court balkedat trial counsel’s assertion
that this issue had been fully litigated, and that this was sandbagging. (39 RT
5605-5606.) The prosecutor stated he had not posedthis questionin the first
retrial “becauseI tried to limit each of the individual witness’ testimony.” But,
“Now I'd like to expand it because I think they have a right to be heard.” (39 RT
5606.)
Thetrial court agreed that if the reason for the estrangement was
remarriage, it was inadmissible as victim impact testimony. (39 RT 5605.) But
the prosecutor’s proffer that “the family is splintered, it’s ruinedhis life, it’s
ruinedall of their lives by the death of Paula Rodriguez” was, according to the
trial court, “fair and specific victim impact evidence.” (30 RT 5607.) Thetrial
court thus overruled Mr. McDowell’s objection. (39 RT 5607.)
Jose Rodriguez then testified that “what the death of Paula Rodriguez” had
“meant to him” wasthat “I have suffered every minute since then, and our family
is not well. We’re really not united at all.” (39 RT 5608.) Nineteen-year-old
Valeria Andrade, Paula’s youngest daughter, was permitted to add, “I wouldn’t be
so estranged like I am from mysister” if Paula had not been killed. (39 RT 5612.)
108
F
!
2
e
f
t
F
y
F
S
i
6
5
:
8
6
4
5
&
J
&
e
8
,
4
&
i
a
e
a
e
t
a
e
f
?
é
@
4
69
&
i
©
6
8
b
E
3
&
And Maria Rodriguez testified that after her mother died, Maria had problems
with her father and other membersofher family, and wasstill not at all close to
her family. (39 RT 5633.)
In his penalty phase closing argument, the prosecutor expressly argued that
the family estrangement wasa reason to impose the death penalty. After reading at
length from the daily transcripts of Maria’s testimony, the prosecutor summedit
up byurging that “[t]he killing of Paula Rodriguez splintered, and it is clear, the
Rodriguez family.” (43 RT 6269.)
(2) Admission ofevidence ofthe Rodriguezfamily’s estrangement was
error that violated Mr. McDowell’s state andfederal constitutional rights.
Admission of evidence of the Rodriguez family’s estrangement was error
that violated Mr. McDowell’s Sixth, Eighth and Fourteenth Amendmentrights to
effective assistance of counsel, to a sufficiently-individualized death-
determination based on accurate, complete, and reliable evidence, and to Due
Process. (U.S. Const., Amends. 6, 8 and 14; Cal. Const., art. I, secs. 1, 7, 13, 15,
16, 17, 24, 27; Strickland v. Washington (1984) 466 U.S. 668; Payne v. Tennessee
(191) 501 U.S. 808; Caldwell v. Mississippi (1985) 472 U.S. 320; Woodsonv.
North Carolina (1976) 428 U.S. 280.) The nature of the evidenceitself ran
unconstitutionally far a field of appropriate “victim impact” testimony. Moreover,
the timing of its admission deprived Mr. McDowell of sufficient opportunity for
109
counsel appropriately to challenge the legitimacy of the prosecution’s spin on the
family’s estrangement.
(a) Evidence of the estrangement was inadmissible as “victim impact”
evidence.
In Payne v. Tennessee, supra, the United States Supreme Court held that the
Eighth Amendmentdoesnot bar the admission of victim impact testimonyin the
sentencing phase ofa capital trial. The Payne Court reasonedthat:
Victim impact evidence is simply another form of informing the
sentencing authority about the specific harm caused by the crime in
question .. . . [A] state may properly conclude that for the jury to
assess meaningfully the defendant’s moral culpability and
blameworthiness,it should have before it at the sentencing phase
evidence ofthe specific harm caused by the defendant.
(Payne, 501 US.at p. 825; emphasis added.)
Butas trial counsel correctly pointed out, and as the trial court’s own
characterization of the evidenceas “ripples” emanating from the crime suggests,
evidence of the family’s long-term estrangement was inadmissible. As sad and
unfortunate as it was, the family’s estrangement wasbythis time nearly two
decades removed from the crime. Such attenuation in time clearly removesit from
the category of “specific harm” envisioned by the High Court in Payne. (See also
United States v. McVeigh (10th Cir. 1998) 153 F. 3d 1166, 1203-1204 [no due
processviolation to allow guilt-phase testimony about “immediate effects” on
110
e
e
e
e
e
e
e
e
e
e
3
6
&
1
6
4
6&6
o
d
,
&
s
s
5
a
a
a
§
&
B
@
a
®
§£
@
7
8
3
i
victims of bombing, “not the long-range effects”].) Moreover, and astrial counsel
argued, there was a question whetherthe rift had indeed occurred because Maria
was madat her father for remarrying too quickly — a “ripple” that was not a
“specific harm caused by the defendant.” (Payne at p. 825; see also United States
v. Copple (3d Cir. 1994) 24 F.3d 535, 545-546 [error, in non-capital case, to admit
“victim impact” testimonyregarding collateral effects of financial losses on the
health andlifestyles of fraud victims].}
Thus, both in time and in circumstance, the family’s estrangement was
much too far removed from the crime for it to have any reasoned, logical, valid
bearing on the jury’s determination of Mr. McDowell’s culpability for Ms.
Rodriguez’s death. Instead, it was purely an appealto the jurors’ emotions, and
thus waslikely to provoke arbitrary and capricious, and non-individualized,
imposition of the death penalty in this case, in violation of the Eighth Amendment.
Moreover, admission of this prejudicial victim impact testimony violated Mr.
McDowell’s federal constitutional right to due process. (See Payne at p. 825 [the
Due Process Clause of the Fourteenth Amendment provides a mechanism for
relief’ where admission of unduly prejudicial victim impact testimony renders the
trial fundamentally unfair], 836 [“Evidence about the victim and survivors .. . can
of course be so inflammatory asto risk a verdict impermissibly based on passion,
not deliberation”J.)
Admission of this evidence wasalso error under the California state law
decisions of this Court. “Unless it invites a purely irrational response from the
111
jury, the devastating effect of a capital crime on loved ones and the communityis
relevant and admissible as a circumstanceofthe crime under section 190.3, factor
(a).” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) Forall the
reasonsset forth above, admission of evidence of the estrangement could have
done nothing but have invited a “purely irrational response from the jury.”
Linking the family’s continued estrangementto the crime was dramatic, and
sentimental — in other words,irrational.
Of course, and as John Muir wrote, “When wetry to pick out anything by
itself, we find it hitched to everything else in the universe.”** This “butterfly
effect” is a wonderful principle in movies, dreams, and in motivating and
encouraging a spirit of community. But as the lawsoflogic and ofthe state of
California recognize, at some point, the decisions and choices of other
independentactors intervene. In short, it would be unfair and improperto attribute
every sad and unfortunate occurrence in Maria, Valeria and Mr. Rodriguez’s lives
after Paula’s 1984 murder fo her murder. Moreover, it was unfair and improper
for the state to take advantage of the lapse in time between the murder and the
secondretrial to suggest as much to the jury, especially given the question whether
the rift had arisen from the murderatall.
(Muir, My First Summerin the Sierra (1911).)
112
F
e
o
k
t
8
F
E
F
S
F
S
G
S
a
@
s
e
i
6
(b) The timing of the state’s introduction of this evidence deprived
Mr. McDowellofsufficient notice of aggravation and to the
effective assistance of counsel in how to addressit.
The United States Supreme Court, this Court, and sister courts are virtually
unanimousin their recognition that because victim impact testimony is extremely
volatile, trial courts must be extremely judicious in their rulings upon it — and this
includesthat their rulings be judiciously-timed. (See, e.g., Payne, supra, 501 U.S.
808, 825, 831 (conc. opn. O’Connor, J.), 836 (conc. opn. Souter, J.); People v.
Edwards (1991) 54 Cal.3d 787, 836 [“irrelevant information or inflammatory
rhetoric that diverts the jury’s attention from its properrole or invites an irrational,
purely subjective response should be curtailed,” quoting People v. Haskett (1982)
30 Cal.3d 841, 864]; New Jersey v. Muhammad(N.J. 1996) 678 A.2d 164, 180
[holding that trial court should normally conduct in limine hearing to determine
admissibility of victim impact evidence, including written description of each
witness’ testimony]; State v. Nesbit (Tenn. 1998) 978 S.W.2d 872 [state must
notify trial court of its intent to produce victim impact testimony,andtrial court
must hold hearing outside presence ofjury to determine admissibility]; United
States v. Glover (D. Kan. 1999) 43 F.Supp.2d 1217, 1235-1236 [prosecution
required to submit written statement describing proposed testimony, which the
court reviews for undue prejudice in advance of penalty phase]; State v. Bernard
(La. 1992) 608 So.2d 966, 973 [defense entitled to notice of the evidence sought to
be introduced bythe prosecutor, and to pretrial determination of admissibility];
113
Wackerly v. State (Ok.Cr.App. 2000) 12 P.3d 1 [failure to hold in camera hearing
to determine admissibility of victim impact evidence waserror].)
Indeed, Penal Code section 190.3 and this Court’s decisions requiring the
state to provide adequate notice of aggravation evidencereflect the same. Penal
Code section 190.3 “bars presentation of any evidence in aggravation, except
whenoffered in rebuttal, ‘unless notice of the evidence to be introduced has been
given to the defendant within a reasonable period of time. . . priorto trial.’”
(People v. Howard (2008) 42 Cal.4th 1000, 1015.) “The purpose of the notice
requirementis to allow a defendant sufficient opportunity to prepare a defense to
the aggravating circumstances.” (Id. at p. 1016.)
Here, the state provided no notice to Mr. McDowellthat it intended to
introduce this specific aggravation evidence in the secondretrial. Indeed, the only
above-board, reasonable interpretation of events prior to the state’s sandbagging
question to Mr. Rodriguez during direct examination wasthat the state was not
going to introduce evidence of the estrangement. Thestate did not do so in the
first retrial, after Mr. McDowell objected on all the grounds set forth above: that it
wascollateral and questionably-based; that counsel would look ghoulish for cross-
examining witnesses about the estrangement; andthat if the state planned to seek
admission of this evidence, the defense needed sufficient opportunity to challenge
it and receive a specific ruling from thetrial court before-hand.
The prosecutor did not provide notice. Instead, the prosecutor asked Mr.
Rodriguez this improper question about his daughter’s estrangementin front of the
114
e
e
e
e
e
e
e
e
a
e
k
’
‘
4
&
a
v
a
*
rea
t
jury in the middle of direct examination in the secondretrial. Thetrial court
overruled Mr. McDowell's objections. Three Rodriguez family members were
then allowedto testify that one of the effects ofPaula’s murder was that the whole
family had been estranged for decades. Of course,trial counsel was correct that to
cross-examine these witnesses regarding the actual reasons for the estrangement
would have lookedterrible to the jury. Accordingly, he did not.
The prosecutor’s sandbagging and thetrial court’s erroneous ruling thus
deprived Mr. McDowell of notice of this aggravation evidence to allow Mr.
McDowell sufficient opportunity to prepare a defense to the aggravating
circumstances. As such, he was deprived of due process, was deprived of
effective assistance of counsel, and was subjected to a penalty verdict that was not
sufficiently individualized or based on accurate, complete, and reliable evidence.
(U.S. Const., Amends. 6, 8 and 14; Cal. Const., art. I, secs. 1, 7, 13, 15, 16, 17, 24,
27; Strickland v. Washington (1984) 466 U.S, 668; Payne v. Tennessee (1991) 501
U.S. 808; Caldwell v. Mississippi (1985) 472 U.S. 320; Woodson v. North
Carolina (1976) 428 U.S. 280.)
B. The trial court’s instruction to thejurors about victim impact testimony
was also error.
(1) The relevantfacts below.
After Jose Rodriguez testified in the secondretrial, the prosecutor requested
that the trial court instruct the jury as it had in the first retrial — “that the family
115
can’t tell the jury about whattheir feelings are in relation to whether the defendant
should be executed ornot.” (39 RT 5609.)” Trial counsel objected on Eighth
Amendment grounds. Trial counsel explained that such an instruction “suggests
the family has an opinion, and that the opinion is he should be executed, and we
don’t even knowthat.” (39 RT 5610.) Thetrial court overruled the objection,
explaining — as it did regarding many ofits other rulings — that what wasat stake
wasessentially unfair to the prosecution:
No,it doesn’t suggest that, and you’re going to in your
phase of the case going to offer the evidence by the family members
as muchasthey detest a lot of what he’s done, that they don’t think
he should die forit.
The balanceis not there, and the reasonforit is it’s not
admissible, and I’m goingto tell them why.
(39 RT 5610; emphasis added.) And thetrial court did just that. The trial court
informedthejury:
I do wantto let the jurors know that as family members
testify, victim’s family memberstestify, Ms. Rodriguez’ family
memberstestify, their opinion, their desire about the penaltythat
should be imposed inthis case is not legally admissible, so they
can’t be asked questions aboutthat.
(39 RT 5610-5611.)
See 28 RT 3947 (instruction given bythetrial court in thefirstretrial).
116
r
a
hU
۩
rS
lC
UC
UE
SS
r
e
r
e
€
t
F
e
e
s
F
V
F
S
F
Y
e
S
e
s
F
D
E
S
a
n
%:«
i
r
e
t
i
(2) The trial court’s instruction waserror that violated Mr. McDowell’s
state andfederal constitutionalrights.
(a) Though correct statement of law, the trial court’s instruction
to the jury was nevertheless prejudicially inappropriate
in these circumstances.
Mr. McDowell acknowledges that the trial court’s instruction wasa correct
statement of the law: the Eighth Amendmentforbids victim impact witnesses
from testifying about punishment. (Payne v. Tennessee (1991) 501 U.S. 808, 827
[in overruling the Eighth Amendmentprohibition against victim impact testimony
held in Booth v. Maryland (1987) 482 U.S. 496, 509, the Payne Court does not
disturb that portion of Booth which forbids victim’s family members from
testifying about their opinionsrelated to sentencing].)
What waserror here wasfor the trial court to instruct — especially over
defense objection -- at all. What the trial court should have done,as trial counsel
objected, was say nothing. But instead, immediately after Jose Rodriguez finished
testifying, the trial court gave the jurors this unorthodox mid-trial instruction about
whatelse to consider — about what they had not heard in Jose Rodriguez’s
testimony.
Astrial counsel correctly pointed out, this instruction could do nothing
other than draw the jury’s attentionto this matter, and suggest all manner of
potentialills. Thetrial court’s instruction suggested (given the context) that if
these witnesses were allowed to give their opinions, they would want Mr.
117
McDowell to be executed. Also, the trial court’s instruction suggested that the
Constitution and trial process were unfair to victim impact witnesses, who were
tragically prevented from giving full voice to their anguish on their days in court.
Indeed,the trial court’s instruction was nothing less than a nod and a wink to the
jurors about whatthetrial court itself viewed — asit explicitly stated at the sidebar
conference-- -- as the infirmities and unfairnesses of the capital trial process to the
prosecution.
Judges have a duty to refrain from instructing the jury as to the facts. “In a
trial for any offense, questions of law are to be decided by the court, and questions
of fact by the jury.” (Pen. Code sec. 1125.) The court’s instructions should
indicate “no opinion ofthe court as to any fact in issue.” (People v. Wright (1988)
45 Cal.3d 1126, 1135, internal citation omitted.) “Thetrial judge is thereby barred
from attempting to override or interfere with the jurors’ independent judgmentin a
mannercontrary to the interests of the accused.” (United States y. Martin Linen
Supply(1977) 430 U.S. 564, 573.)
Even a judge’s comments on the evidence, therefore -- which carry less
potential for prejudice because, unlike instructions, they are not binding on the
jury -- “must be accurate, temperate, nonargumentative, and scrupulously fair.”
(People v. Rodriguez (1986) 42 Cal.3d 730, 766; accord Querica v. United States
(1932) 289 U.S. 466, 470.) Comments on the evidence should not mislead the
jury and especially “should not be one-sided.” (Querica at p. 470.) Thetrial court
with its comments may not “withdrawmaterial evidence from the jury’s
118
e
e
|
i
k
i
b
a
é
,
a
B
a
a
a
ft
4
i
e
i
t
3
*
consideration, distort the record, expressly or impliedly direct a verdict, or
otherwise usurp the jury’s ultimate fact-finding power.” (Rodriguez at p. 766.)
Thougha technically-correct statement of law, the trial court’s instruction
here violated every single one ofthese principles.
Thetrial court’s instruction was one-sided. Thetrial court, in its
overweening desire to “balance” the scales toward the prosecution’s side, did not
take into accountall of the Eighth Amendmentjurisprudence underlying the
reasons for introduction and exclusion of appropriate aggravation and mitigation
evidence in capital cases. Instead, the trial court drew attention to what the
prosecution was (unfairly, accordingto the trial court) not allowed to do.
Thetrial court’s instruction misled the jury. It suggested to them that the
Rodriguez family would have told them to vote for death, if only the family
members were allowedto testify about their opinions. But astrial counsel pointed
out, there was no evidencein the record whether this was even true. Thus,thetrial
court’s instruction was argumentative, withdrew material evidence from the jury’s
consideration, distorted the record, and otherwise usurped the jury’s ultimate fact-
finding power. Its delivery waserror.
(b) The trial court’s instruction violated constitutional protections.
Delivery of this instruction violated Mr. McDowell’s state and federal right
to trial by jury (U.S. Const., Amends. 6 and 14; Cal. Const., art. I, sec. 16) and the
state statutes which govern the respective functions ofjudge and jury. An
119
essential feature of trial by jury is that the jurors shall be “under the
superintendenceof ajudge empoweredto instruct them on the law... .” (Patton
v. United States (1931) 281 U.S. 276, 289, overruled on other groundsin Williams
v. Florida (1970) 399 U.S. 78, 92.) As set forth above in section (a),thetrial
court’s instruction was misleading and unfair. It prohibited the jury from
exercising its ultimate fact-finding power regarding aggravation evidence and
mitigation evidence, and the jury’s fair weighing ofall of it. Thus, the instruction
violated Mr. McDowell’s right to trial by jury.
Moreover, the instruction effectively prevented the jury from considering
relevant mitigating evidence. Under the Eighth and Fourteenth Amendments to
the United States Constitution and the parallel provisions of the California
Constitution, a defendant in a capital case is guaranteed the right to have relevant
mitigating evidence considered by the sentencing jury. (U.S. Const., Amends. 8
and 14; Cal. Const., art. I, secs. 7, 15 and 17; Skipper v. South Carolina (1986)
476 U.S. 1, 4; Lockett v. Ohio (1978) 438 U.S. 586, 604; Abdul-Kabirv.
Quarterman (2007) ——s-US.127 S.Ct. 1654, 1664-1666.) Indeed, “’Lockett
requires the sentencerto listen.’” (Sumner v. Shuman (1987) 483 U.S. 66, 76,
quoting Eddings v. Oklahoma (1982) 455 U.S. 104, 115, fn. 10.) Any barrier
which precludesajury, or any of its members, from considering relevant
mitigating evidence constitutes federal constitutional error. (Mills v. Maryland
(1988) 486 U.S. 367, 375; People v. Mickey (1991) 54 Cal.3d 612, 693.)
120
R
a
t
a
i
|
a
a
&
.
2
@
a
e
a
*
.
3
i
Thetrial court’s erroneous instruction in this case erected a barrier which
prevented the jury from considering Mr. McDowell’s mitigating evidence. The
trial court pointed out to the jury that the victim’s family members could not
testify about punishment. This:neécessarily cast a pall over Mr. McDowell’s entire
mitigation case — where his evidence wasall about his family life, how he had
been raised, what his family thought of him, and about his punishment. Having
been instructed by the trial court that Paula Rodriguez’s family could not do the
same, the jury operated inside a barrier which prevented it from fairly considering
Mr. McDowell’s mitigation evidence.
C. Theerrors — individually, and taken together -- were prejudicial and
require reversal.
Asthe United States Supreme Court recognized in Payne v. Tennessee,
supra, “Evidence about the victim and survivors, and anyjury argument
predicated onit, can of course be so inflammatoryasto risk a verdict
impermissibly based on passion, not deliberation.” (Payne, 501 U.S. 808, 836;
emphasis added.) Indeed, the Payne Court exhorted that in reviewing claims
about erroneous admission of victim impact testimony, “With the command of due
process before us, this Court and other courts of the state and federal systems will
perform the ‘duty to search for constitutional error with painstaking care,’ an
obligation ‘never more exacting than it is in a capital case.°”(Id. at p. 837, citing
Burger v. Kemp (1987) 483 U.S. 776, 785.)
121
In performing that duty here, this Court should take into account the
following strong indicators of the prejudicial effects of these errors.
First, as the Payne Court recognized, evidentiary error related to victim
impact testimony 1s compoundedbyany jury argumentpredicated on it. (Payne at
p. 836.) Here, the prosecutor expressly argued that the estrangement between
Maria and her father was the very sort of victim impact evidence that made Mr.
McDowell worthyofthe death penalty. After reading at length from the transcript
ofMaria’s testimony, the prosecutor urged that “[t]he killing of Paula Rodriguez
splintered, and it is clear, the Rodriguez family.” (43 RT 6269.) The prosecutor
then read from the transcripts of Jose Rodriguez’ testimony, and from Valeria’s.
(43 RT 6269-6271.) This included their testimony about the family’s
estrangement. (43 RT 6269 [Jose]; 43 RT 6230 [Valeria].) The prosecutor argued
that Mr. McDowell had thus “affected them” and “infected them” and should
therefore receive the maximum sentencepossible. (43 RT 6271.)
Second, in People v. Gay (2008) 42 Cal.4th 1195, this Court reversed a
penalty-phaseretrial under remarkably similar circumstances: where a
combination of evidentiary error and the related triai court instruction was
prejudicial. In Gay,the trial court improperly excluded mitigation evidence
supporting the defendant’s theme oflingering doubt, and over defense objection,
the trial court instructed the jury that the defendant’s responsibility for the crime
had already been conclusively proven. (Id. at p. 1224.) Underthese
circumstances, this Court held that it “need not decide whether the evidentiary
122
3
F
T
=
g
e
T
h
o
e
g
t
F
s
e
s
e
s
s
e
F
e
O
E
§
8
&
1
8
@
@
4
3
B
s
a
a
t
4
ee
o
r
e
e
e
e
a
e
rulings alone were prejudicial here . . . because the error was compounded bythe
trial court’s instruction to the jury... .” (Ibid.)
The sameis true here. The evidentiary error allowed the prosecution to
admit testimony, and then argue, that the Rodriguez family’s decades-long
estrangement wasone of the effects of the murder for which Mr. McDowell
should be held accountable by death. The trial court’s instruction — which took
place in the middle of the victim impact testimonyitself -- telegraphed to the jury
that the Rodriguez family would like to see Mr. McDowell dead, but that pesky
unfair legal technicalities were keeping these victims from havingtheir full say on
the stand. This would becomeall the more prejudicial when Mr. McDowell’s
family members were allowedto testify that they did not want him to receive the
death penalty. Thus, the trial court’s instruction alone is cause for reversal. And
as in Gay, the combination of these twoerrors certainly requiresit.
Finally, as is true of so manyerrors, this Court has before it two virtual
petri dishes of prejudice demonstration: the first retrial andits result, and the
secondretrial and its result. Once again, this combination of error did not occur in
the first retrial: the prosecutor did not introduce evidence of the Rodriguez family
rift. That trial ended in a hung jury. In the secondretrial, the prosecution did
introduce this evidence. The secondretrial ended, of course, in a death verdict.
That result should be reversed.
123
4. Mr. McDowell’s state and federal constitutional rights were
prejudicially violated by exclusion of critical mitigation
evidence: social historian expert testimony.
Dr. Arlene Andrews, a professor of social work at the University of South
Carolina with 25 years of experience working in areas related to child abuse,
neglect and domestic violence, testified at length in the first retrial about Mr.
‘McDowell’s horrific family history and the necessary ramifications to Mr.
McDowell’s life from that history. (31 RT 4361-4389, 4410-4417, 4423-4435.)
Dr. Andrews wasthe only expert witness offered by the defensein the first retrial
. 0
aboutthese issues.’ Thattrial ended in a hung jury.
In the secondretrial, after concluding presentation of his aggravation case,
the prosecutor movedto preclude Dr. Andrewsfrom testifying -- at all — in
mitigation. (39 RT 5641.)
Unbelievably, over express and complete defense objection, thetrial
court granted the state’s motion. (39 RT 5660, 5664.) Thetrial court held that Dr.
Andrews’ testimony was not the proper subject of an expert, that it was cumulative
of other mitigation evidence, and that it was based on hearsay. (39 RT 5660-
5664.)
Asset forth at length below, Dr. Andrews’ expert testimony wasabsolutely
appropriate, relevant and admissible under California state law. Moreover, Dr.
“The only other expert witness to testify in mitigation in the first retrial was
Daniel Vasquez, former Warden of San Quentin, whotestified about Mr.
McDowell’s lack of future dangerousness and prison adjustment. (31 RT 4456-
4478.) Vasquez also testified in the secondretrial. (42 RT 6045-6083.)
124
a
4
J
a
s
e
a
&
‘
rf
b
i
t
5
8
1
8
=
€
Andrews’ testimony wascritica] mitigation evidence, the exclusion of which
violated Mr. McDowell’s Eighth and Fourteenth Amendmentrights andtheirstate
constitutional analogues. (U.S. Const., Amends. 8 & 14; Cal. Const., art. I, secs.
1, 7, 13, 15, 16, 17, 24, 27.) This stunning exclusion wasabsolutely prejudicial,
and reversal is therefore required.
A. The relevantfacts below.
(1) Thefirst retrial
(a) The effects of Dr, Andrews’ testimony and the state’s concerns
Dr. Andrews wasa professor of social work at the University of South
Carolina, with a Ph.D. in psychology. (31 RT 4362.) Dr. Andrews had 25 years
experience workingin areas related to child abuse, neglect and domestic violence.
(31 RT 4362.) Shetestified at length about the McDowell family history and
dynamics, and about what her experience led her to believe were the effects of
those horrific experiences. (31 RT 4361-4389, 4410-4417, 4423-4435.)
Dr. Andrews’ testimony was one of nine witnesses whose entire testimonyfirst
retrial jury requested readback. (2 CT 381A.) After deliberating August 16, 17,
18, 19, 20, 25 and 26, 1999, the jury in the first retrial hung. (2 CT 377-381B,
383-385, 386-387; 5 CT 1555-1556.) The trial court declared a mistrial. (5 CT
1555-1556.)
125
Mid-way through Dr. Andrews’ direct exam inthefirstretrial, the
prosecutor had requested a ruling about whether he would be able to cross-
examine Dr. Andrews about psychiatric reports prepared after the crimes
underlying the 1984 guilt convictions. (31 RT 4396-4398.) Defense counsel
offered that Dr. Andrews’ “ultimate opinion” would be to “describe what the
abuse wasin this family . . . and she’I] describe it as one of the most abusive
families she’s studied . . . and she’Il testify that she thinks in her opinionthatit had
a substantial impact on the developmentofhis character.” (31 RT 4397.)
“Substantial impact? The jury could figure that one out,” scoffed thetrial
court. “I thought we were going to get into something sophisticated... .” (31 RT
4397.) Defense counsel reiterated that the purpose of Dr. Andrews’ testimony was
not to go into Mr. McDowell’s mentalstate at the time of the crimes, but instead to
offer her expertise on the social dynamics(andtheir significant ramifications) of
upbringing in families like the McDowells. (31 RT 4398.) The prosecutor asked
then to “strike her testimony and let’s get on the road. It’s irrelevant.” (31 RT
4399.) The prosecutor maintained that Dr. Andrews’ testimony was not about
anything a juror would not know himself. (31 RT 4401.)
Thetrial court agreed with the prosecutor in sentiment, but denied the motion
because “underthe case law it’s relatively clear that the defense has a wide range
of things they can bring” and “[m]itigating circumstancesare basically anything
that the defense offers to mitigate the punishment... .” (31 RT 4401.)
126
|
ae
r
o
o
s
w
t
i
@
3s
6
4
4
§
€£
1
%
f
é
fe
w
(b) Dr. Andrews’ expert interpretations and opinionsin thefirst retrial
Dr. Andrews explained in her first retrial testimony that witnessing parental
beatings “can induce a numberofsocial problemsin a child.” (31 RT 4382.) For
example, there is a “deficiency in their moral and social education” of how men
and womenrelate to each other, and the children learn that the way to deal with
disagreementis to resort to violence. (31 RT 4382.) Also, “a level of terror ...
develops dealing with fear” when kids are beaten, and when they fear that a parent
might be lost to the violence or hurt in some way, which “induces a numberof
fairly severe emotional problemsin the children.” (31 RT 4382.) It is also
commonfor parents in battering relationships to overlook or ignore their
children’s needs: parents “don’t seem to have much emotional energy left for the
children, and so they simply don’t pay muchattention to their development and
their emotional needs.” (31 RT 4383.) As for animal abuse by parents, it “creates
an aura of terror about what could happen and does havea definite social impact
in terms of the fear, of the powerofthe father, particularly whenit involves the
death of animals.” (31 RT 4387.)
Dr. Andrews found several factors in Mr. McDowell’s upbringing remarkable.
Oneofthe most significant was the complete lack of any form of social support.
(31 RT 4413.) There was absolutely no one who was supportive of Mr.
McDowell. Though many people observed what was happening and were
concerned aboutit, they didn’t express it to him or act protectively on his behalf.
(31 RT 4413.) Neither was there a coalesced support group from the siblings: Dr.
127
Andrewshad never seen a family where the siblings were more in conflict. (31
RT 4414.) Charles, Sr., also controlled his family’s access to people from the
outside — like from church, or from the school. (31 RT 4414-4415.)
The chronicity of the abuse was also remarkable. Many people reported that
the beatings were a daily occurrence, there was no clear sense of whythe children
were beaten, and everyone would get beaten even if only one person did
something “wrong.” (31 RT 4383-4384.) Beatings after Bible readings
constituted “a form ofspiritual abuse” that was unusualrelative to other families
Dr. Andrewshad dealt with. Moreover, many episodes happened around food and
meals, which was detrimental to social development because ofits warped
relationship to nourishment. (31 RT 4385.) “There was an expectation that there
be silence and that everyone eat whatever the father determined they were going to
eat.” (31 RT 4385.) Charles, Sr. would knock the children out of their seats if
they did not obey at the dinner table. (31 RT 4385.) Also remarkable was the
extent to which Charles, Sr. would beat his children in front of other people. (31
RT 4385.)
Abuse and neglectin all its forms “at a very severe level” was present, on a
“very chronic, repeated basis throughout [Eddie’s] life... .” (31 RT 4415.)
Eddie “basically was a loner” who, Dr. Andrewsobserved, “formed somevery
minimal adaptive coping habits, one which wasa very chronic use of alcohol and
other drugs.” (31 RT 4415.) This, and increased use over time, is something very
128
o
l
r
e
g
s
e
r
e
O
S
e
e
t
t
O
e
Y
S
U
r
y
e
S
§
6&6
4
&8
3
@
a
a
®
s
3
i
4
i
iv
y
ft
3
§
@
a
e
t
gf
j
commonin abused children. It provides “a way of helping to deal with the anxiety
and the trauma.” (31 RT 4416.)
Dr. Andrewsreviewed the sexual abusein the family, and explained that
becominga sex offender is also common among sexually-abused children,asis
promiscuity. (31 RT 4416.) Mr. McDowell was unable to sustain a marriage, or
to finish school. (31 RT 4416.) Because of his social problems, Eddie never
could keep a job (working as a carpenter) for very long — and thus could notfeel
any sense of success about work,either. (31 RT 4417.)
(c) Thetrial court’s growing antipathy towards Dr. Andrews’ testimony
Duringlitigation ofjury instructionsat the first retrial, the trial court
spontaneously and gratuitously voiced his disdain for Dr. Andrews’ mitigation
evidence:
* “T think it brought in a lot of information that was not necessary and tended
to be cumulative and notreliable.” (32 RT 4496.)
* “T think a lot of information she came up with was inappropriate and
unnecessaryto her conclusion” (Ibid.)
* “T found it — personally found it to be unnecessary going into a tremendous
amount of information that was entirely hearsay, not supported by the evidence in
this case, and just the evidence we heard would allow somebody to draw these
conclusions, and I’m not so sure that an expert was necessary to doit.” (32 RT
4497.)
129
* “7 think it’s logical that having given the testimony ofthe sister and the
brother and the neighbor and everyoneelse, we had more than enoughto draw
those conclusions ....” (Ibid.)
* “T really don’t think I fully understood what she was going to be doing with
it. I thought there would be more impact of what she had to say.” (Ibid.)
In keeping with this disdain, the trial court excluded from evidence the family
tree that Dr. Andrewsprepared because, according to the court, “She’s testified to
what’s significant, and, in fact, far more so than is necessary or appropriate,I
think.” (82 RT 4554.)
The prosecutortold the trial court at this point, “If we ever see her again, the
court may consider, if I’m the prosecutor, a motion to determine whether she’s got
any expert testimony.” (Ibid.)
(2) The second retrial
One month after the first retrial resulted in a mistrial, the parties were back in
court for a status conference about the secondretrial. (6 CT 1566.) The next day,
the prosecutorfiled notice of the state’s factors in aggravation. (6 CT 1567.) This
time, the state added Mr. McDowell’s sexual molestations ofhis siblings Tommy,
Theresa, and Kathy McDowell. (6 CT 1567; compare 1 CT 20-21 [state’s notice
of aggravating circumstances from first retrial].) However, the prosecutor did not
file any motions requesting a ruling on admissibility ofDr. Andrews’ testimony.
130
e
e
e
e
e
e
8
f
a
t
a
é
J
&
a
@
a
4
5
4
4
}
&
3
&
i
*
t
a
*
Neither did the prosecutor seek any such ruling before jury selection, before
opening statements, or before he put on his entire case in ageravation.”!
Instead, at end ofthe prosecutor’s case in aggravation, he movedto preclude
Dr. Andrewsfrom testifying -- at all -- in mitigation: “Miss Andrews. That’s my
motion.” (39 RT 5641.)”
Whenthetrial court asked for elaboration, the prosecutor stated that “she does
not testify to anything that requires expert testimony.” (39 RT 5642.) “Miss
Andrewstestifies that people that have bad childhood[sic] may have bad
adulthood [sic] and create a process whereby they do criminal acts because oftheir
childhood.” The prosecutor had no “quarrel with that” and therefore believed no
expert was necessary. (39 RT 5642.) The prosecutor argued that also, “even
though I know the court limited her testimony,it allows unfettered hearsay... .”
(Ibid.)
Of course, trial counsel correctly objected that under Evidence Code section
801, and this Court’s case law interpretating that section, Dr. Andrews’ expert
testimony was indeed admissible. (39 RT 5646-5648.) Trial counsel also argued
“Indeed, during jury selection and shortly before opening statements, while
the parties were discussing the logistics of objections and admissibility in the
secondretrial, the prosecutor offered by way of example, “If there’s something
[from the first retrial] that we want to revisit, like one ofthe things I wantto revisit
is ifthe court allows Miss Andrewsto testify, | would like to go into to the amount
of money she’s been paid... .” (36 RT 5209; emphasis added.) However, the
prosecutor did not make any motion then to exclude her testimony. The
prosecutor did notraise that issue until the afternoon before the mitigation case
began.
“Though Dr. Andrews was a Ph.D. and a grown woman,the prosecutor
nevertheless referred to her throughout as “Miss Andrews.”
131
that if the issue were whether Dr. Andrewswastestifying for the defense as a
mental health expert about Mr. McDowell’s mentalstate at the time of the crime,
it would mean that the door was opento the state to address these issues in
rebuttal;it certainly would not mean that the defense was precluded from
presenting Dr. Andrews’testimonyin its mitigation case. (39 RT 5656.)
Trial counsel also pointed out that the trial court could rule and instruct upon
specific potential instances of hearsay as they developed in Dr. Andrews’
testimony (39 RT 5646), but to exclude her testimony entirely was nothing short
of “incredible,” in light of the United States and California Supreme Court cases
recognizing defendants’ rights to present mitigating evidence. (39 RT 5654.)*
Dr. Andrews’testimony was necessary to help the jurors understand whatthe
prosecutor would argue against Mr. McDowell: that though “[w]eall have bad
things happento us, we don’t all don’t go become murderers.” (39 RT 5657.)
Trial counsel also argued that the prosecutor’s “over simplification” of Dr.
Andrews’ testimony did not “fairly depict the various opinions that she gave in the
course of her testimony.” (39 RT 5643.) Trial counsel itemized, page by page,
Dr. Andrews’ opinion testimonyin thefirst retrial, which had been, and continued
to be, essential to aid the jury’s evaluation of Mr. McDowell’s childhood as
mitigation evidence. Trial counsel also proffered the ways in which he had
planned to enlarge the scope of Dr. Andrews’ opinionsin the secondretrial —
“The next day,trial counsel clarified that all of his points related to this
argumentwerealso raised on Eighth and Fourteenth Amendmentgrounds. (40 RT
5683.)
132
e
s
J
&
1
@
e
3
e
s
@
8
i
v
M
t
}
@
F
&
a
n
e
e
e
|
including the effects of the family’s low socio-economicstatus, the highly
sexualized nature of the family abuse, and that the McDowell family’s social
history wasoneofthe worst Dr. Andrews’ had ever encountered. (39 RT 5645-
5654.) Trial counsel also pointed out that defense attorneys had been found
ineffective in other capital cases for failing to develop and introduce just such
evidence of family abuse. (39 RT 5661-5663.)
Nevertheless, the trial court excluded Dr. Andrews’ testimony completely. (39
RT 5660, 5664.)
Thetrial court held that Dr. Andrews’ testimony wasnot the proper subject of
an expert witness because, “[e]verybody knowsthat the way you’re raised is going
to affect you as an adult... .” (39 RT 5660.) Moreover, “the details” of her
testimony hadeither been cumulative of other witnesses, or involved hearsay. (39
RT 5645, 5663 .) For instance, “It reiterates the testimonyof all of these
witnesses, goes back into the background, and basically emphasizes how badthe
other children were treated as well, which is not relevant to the case.” (39 RT
5660.) Moreover, accordingto the trial court, “the defendant himself can testify to
that,” which “would be the best measure of what happenedto him asa result of the
way hewasraised.” (39 RT 5661.)
The defense began its mitigation case the next day. (40 RT 5701.) Neither
Dr. Andrewsnor any other expert testified about Mr. McDowell’s social history or
its effects. After deliberating for a total of two full days — parts ofwhich were
consumedby listening to readback-- the jury returned its recommendation for
death. (11 CT 2999-3000, 3001-3002, 3003-3004, 3028, 3030-3031.)
B. The trial court’s complete exclusion ofexpert social historian Dr. Arlene
Andrew’s testimony was error under California state law, and violated
Mr. McDowell’s state andfederal constitutionalrights.
Asset forth fully below,the trial court’s exclusion ofDr. Andrews’
testimony is a stunning error. Dr. Andrews’ expert testimony was absolutely
appropriate, relevant, and admissible under California state law. Moreover, Dr.
Andrews’ testimony wascritical mitigation evidence, the exclusion ofwhich
violated Mr. McDowell’s Eighth and Fourteenth Amendmentrights and the state
constitution analogues. (U.S. Const., 8th and 14th Amends.; Cal. Const., art. I,
secs. 1, 7, 13, 15, 16, 17, 24, 27.)
(1) The trial court’s exclusion ofDr. Andrews’ expert testimony was
error understate law.
(a) Dr. Andrews’ testimony wasthe proper subject of an expert witness.
Evidence Codesection 801 provides that an expert maytestify to a subject
sufficiently beyond commonexperiencesoastoassist the trier of fact, when that
opinion is based on her expertise. Expert testimony is excludable underthis
section “only when it would add nothingatall to the jury’s fund of information.”
(People v. McDonald (1984) 37 Cal.3d 351, 367.) As this Court has explained:
134
F
a
e
k
s
F
y
F
S
F
Z
r
e
r
e
e
t
F
S
w
e
S
e
O
e
O
e
g
s
@
é
i
«
é
«
@
4
3
a
s
e
@
n
,
sg
6
4
if
&
4
@
i
v
t
3)
t
@
b
h
e
i
t
®
3
The jury need notbetotally ignorant of the subject matter of the
opinion to justify its admission;if that were thetest, little expert
opinion testimony would ever be heard. Instead, the statute declares
that even if the jury has some knowledge of the matter, expert
opinion may be admitted wheneverit would “assist” the jury. It will
be excluded only whenit will add nothingat all to the jury’s common
fund of information, i.e., when “the subject of inquiry is one of such
common knowledge that men of ordinary education could reach a
conclusion as intelligently as the witnesses.”
(People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300; citations omitted; see also
People v. Prince (2007) 40 Cal.4th 1179, 1222 [“pertinent question is whether,
even ifjurors have some knowledge of the subject matter, expert opinion
testimony wouldassist the jury”]; accord People v. Lindberg (August 28, 2008,
No. 8066527) —-Cal.4th —_, [2008 DJDAR 13741, 13758] [state’s introduction
of expert testimony about White Supremacist’s hatred of Jews was admissible to
prove racial motivation of murder].)
Asto the pertinent question at issue here — namely, whether Dr. Andrews’
expert testimony would have assisted Mr. McDowell’s penalty phase jury in
evaluating his childhood — this Court has answered in the affirmative: the effects
of brutality in childhoodare not, in fact, of common knowledge to jurors, and thus,
are the proper subjects of expert testimony. In People v. Smith (2005) 35 Cal.4th
334, this Court held that, in a capital prosecution for murder and sodomy,the state
wasproperly allowed to present expert testimony about children’s reactions to
sadistic molestation. This Court expressly rejected the capital defendant’s
assertion that “the experiences of child victims of violent sexual assaults are not
135
sufficiently beyond common experience that expert assistance is required.” (Id. at
p. 363.) Instead, this Court held that the experiences of child victims of violent
sexual assault are sufficiently beyond commonexperience so that expert testimony
is required:
Only a fraction of the general population, and presumably noneof
the jurors, has been personally victimized. Of course a juror can
try to imagine what it would be like for a child to experience such
-an assault, but this kind ofimagining does not substitute for
expert testimony.
(Ibid.; emphasis added)
| The United States Supreme Court is in agreement. In Abdul-Kabirv.
Quaterman (2007) =~ U.S.__,_: 127 S.Ct.1654, the Supreme Court stated about
evidence of childhood abuse in a mitigation case:
There is of course a vast difference between youth — a universally
applicable mitigating circumstance that every juror has experienced
and which necessarily is transient ~ and the particularized childhood
experiences ofabuse and neglect that Penry I and Cole described —
which presumably mostjurors have never experienced and which
affect each individual in a distinct manner.
(id. at p. 1673; emphasis added.)
Mr. McDowell’s childhood was fraught with sadistic abuse and
molestation. Mr. McDowell’s childhood was fraught with nightmarish treatment
136
a
i
@
§
&
ij
J
a
#
s
®
a
s
6
‘
5
8
3
9
%
«
all around — indeed, the worst that Dr. Andrewshad ever seen. As the United
States Supreme Court and this Court both recognize, such childhood abuseitself is
not something that lay people can contextualize without the assistance of an expert
witness. Mr. McDowell’s childhood wasrife with abuse of every kind. It was
absolutely necessary for an expert to explain the complex effects that such terrible
treatment would have upon him — because, as this Court held in Smith, even the
jury’s imaginings could not substitute for expert testimony. Mr. McDowell was
prepared to offer such expert testimony in mitigation, as he did inthefirst retrial.
But in the secondretrial, the court completely excluded this expert testimony.
(b) Dr. Andrews’ testimony was not cumulative of other witnesses’ testimony.
Anotherbasis for the trial court’s exclusion of Dr. Andrews’ testimony was
that it would be cumulative of other mitigation witnesses.’ (39 RT 5645, 5663.)
Asset forth below,the trial court’s reasoning was completely off base.
First, an expert’s testimony is of fundamentally different character than that
of lay witnesses. An expert has skills, knowledge, training and experience that
allow her to explain the subject of her expertise to jurors. Lay witnesses, on the
other hand,testify about what they have observed, not abouta field as a whole,
and certainly not as objective experts, who havestudied it, understand it, and can
explain it to jurors.
Second, that objectivity in the eyes ofjurors also meansthat an expert’s
testimony is not “cumulative” of lay witnesses’ testimony-- even if they do end up
137
testifying about the same events. The jury wasinstructed to evaluate witnesses’
credibility based upon,inter alia, their biases. As members ofMr. McDowell’s
family, the lay witnesses all were subject to jurors’ reasonable beliefs that their
mitigation testimony was skewedbytheir relationship to him. (See, e.g., CALJIC
No.2.20; 11 CT 3010-3011; 43 RT 6384-6386.) Of course, expert witnesses do
notfall into the same related — and therefore, biased — category as family
members.
Third, Dr. Andrews’ testimonyin thefirst retrial properly included
underlying facts supporting her opinions — many of which werenot introduced in
the secondretrial at all, because Dr. Andrews wasnotallowedto testify regarding
them, and no lay witnessestestified to them,either.
The following mitigating facts from Dr. Andrews’ testimonyin thefirst
retrial did not come in through any witnesses’ testimony in the second retrial — and
thus, none ofthese would have been “cumulative”:
Dr. Andrewstestified that Shirley was four years younger than Charles
McDowell, Sr., when they married in 1952 and that their relationship was
“incredibly hostile.” (31 RT 4373-4375.) Dr. Andrewstestified that Charles
reported he was disappointed in Shirley within a week of their marriage. He beat
Shirley while “Eddie” (which was the family name for Mr. McDowell) was in
utero. Eddie was born a month early, weighing less than five-and-a-half pounds.
(31 RT 4378.) Shirley was hospitalized for three weeksafter the birth because she
had hemorrhaged badly. (31 RT 4378.)
138
r
e
8
e
e
eee
e
>
F
s
6
J
1
a
3
‘
Dr. Andrewstestified that Shirley was unprepared to be a mother, and didn’t
want to be. She had gotten married to get out of her parents’ house. (31 RT
4378.) She was “very open about saying she didn’t want to have a baby, didn’t
want Eddy [sic] and she didn’t know much abouthow to take care of him.” (31
RT 4379.) She was depressed and lonely when she had Eddie, whocrieda lot.
She did not know the right way to feed him nor what to feed him until she took
him to the doctor when he was six months old. (31 RT 4380.)
Dr. Andrewstestified that Shirley’s younger brothers Gene and Jerry molested
Eddie. (31 RT 4373.) This started when he was a very young child. They told
Eddie that his father would beat him if he had reasonto believe these things were
going on. (31 RT 4388.) Bythe time he wasnine or ten, Eddie was being
molested by other boys — and eventually men -- in the York, South Carolina
neighborhood. (31 RT 4388.) He would do chores for them, and then was asked
to do sexual things for money. (31 RT 4388.)
Dr. Andrewstestified that Eddie’s school grades were very low. He had to
repeatfirst grade. None of the children in the family finished high school. (31 RT
4389.) Eddie also had behavioral problems in school. He was very young for his
grade level, and was hyperactive. His parents were called into the school several
times about his behavior. Teachers even tried using restraints to keep him in his
chair because he couldn’t sit still. (31 RT 4389.)
Dr. Andrewstestified that Eddie’s younger brother Ronnie told her that once
when Charles, Sr. was beating Ronnie, the family’s dog Blacky came through the
139
screen door and jumped on Charles, Sr. Within a day or two, Blacky was gone
and never cameback. (41 RT 4386.) Another time, Ronnie had a dog on a rope
leash — and Charles shot the dog. (41 RT 4386-4387.)
Dr. Andrewstestified that Ronnie McDowell was homeless in 1994 and had
been in and out of hospitals for alcohol and heroin addiction. He died a yearlater,
at age 40. He’d never married or formeda lasting relationship. (31 RT 4412.)
Teressa was the most functional ofall the children, but had serious stress reaction
problemsandrarely left home. (31 RT 4412.) Tommyhad spent a good deal of
his adult life incarcerated for rape. (31 RT 4412.) Kathylived a reclusivelife,
in a rundowntrailer that she and her boyfriend rented from Teressa. She almost
neverleft the trailer, slept during the day instead ofthe night, and could not hold a
job. (31 RT 4412.) Carol Belinda died when she wasfive. (31 RT 4412.)”
Clearly, the trial court was absolutely wrong when it held that Dr.
Andrews’ testimony was “cumulative” of percipient testimony offered by others,
and therefore was absolutely wrong for excluding it."°
“Tommy McDowell did testify in the secondretrial that he had been
convicted in 1987 of second degree rape, second degree sexual offense,
grand theft and attemptedfirst degree burglary. (42 RT 6099.)
** Evidence of Carol Belinda’s death was introduced in the secondretrial,
as well. (See 41 RT 5826-5830, 5911.)
“As forthe trial court’s ostensible alternate ruling — that Dr. Andrews’
testimony should be excluded becauseit involved hearsay, no more needsbe said
than 1) thetrial court itself correctly recognized — but ultimately failed to take into
accountin its ruling -- that experts are indeed allowedto rely upon hearsay to form
their opinions (39 RT 5645-5646); and 2) that trial counsel wasabsolutely correct
that any potential hearsay issues could be addressed and ruled upon in a case-by-
case way during Dr. Andrews’ testimony — andthat the appropriate solution was
140
f
a
3
y
s
jd
i
&
i
»s
a
e
ad
o
e
ee
4
Es
«
e
s
e
k
a
(c) Though Dr. Andrews’ testimony was clearly admissible under California
state law,if it had been closecall, it should have been resolved in favor of
Mr. McDowell.
Asset forth above, it is clear that California state evidentiary law did not
preclude Dr. Andrews’ expert witness testimony. Dr. Andrews’ certainly should
have been allowed to testify as an expert in Mr. McDowell’s mitigation case. But,
as set forth below,if there was any doubt atall, that doubt should have been
resolved in Mr. McDowell’s favor.
State rules of evidence “may not be applied mechanistically to defeat the
ends ofjustice.” (Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.) In
Chambers, the United States Supreme Court held that where those rules are
invoked to exclude fundamental defense evidence, the defendantis denied his
federal constitutional rights to due process and to present a defense. (Ibid.)
While Chambers discussed hearsay evidence excludedin a guilt trial,
clearly the principle is even morecritical in a capital penalty phase. “In capital
casesthe finality of the sentence imposed warrants protections that may or may
not be required in other cases.” (Ake v. Oklahoma (1985) 470 U.S. 68, 87 (Burger,
C.J., concurring).) Because the death penalty is “qualitatively different” from any
not simply to exclude her testimony completely. (39 RT 5646.) (See also Evid.
Code sec. 801, subd. (b) and Jn re Fields (1990) 51 Cal.3d 1063, 1070 [“An expert
many generally base his opinion on any ‘matter’ known to him, including hearsay
not otherwise admissible, which may ‘reasonably . . . be relied upon for that
purpose.’”; People v. Carpenter (1997) 15 Cal. 4th 312, 403 [“Ondirect
examination, the expert may explain the reasonsfor his conclusions, including the
matters he considered in forming them’’].)
141
other criminal punishment, “there is a corresponding difference in the need for
reliability in the determination that death is the appropriate punishment in a
specific case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305 (opinion of
Steward, Powell, and Stevens, JJ.) The United States Supreme Court thus “has
gone to extraordinary measuresto ensure that the prisoner sentenced to be
executed is afforded process that will guarantee, as much as is humanlypossible,
that the sentence was not imposed out of whim,passion, prejudice, or mistake.”
(Eddings v. Oklahoma (1982) 455 U.S. 104, 118 (O’Connor, J., concurring).)
Thus, evidentiary rulings in capital sentencing phases require heightened scrutiny
— which only serves to make it more clear that tt was error to exclude Dr.
Andrews’ testimony.
(2) Exclusion ofDr. Andrews’ expert mitigation testimony violated the Eighth
and Fourteenth Amendments and their state constitutional counterparts.
(a) McDowell’s jury was precluded fromhearing all relevant mitigation
evidence, and from making an individualized sentencing determination
based on complete, accurate and reliable evidence.
The Eighth and Fourteenth Amendments require sentences of death to be
based on an individualized determination of an individual’s death-worthiness, and
be based on accurate, complete, and reliable evidence. (U.S. Const., Amends. 8
and 14; Cal. Const., Art. I, secs. 1, 7, 13, 15, 16, 17, 24, 27; Caldwell v. Mississipii
(1985) 472 U.S. 320; Woodson v. North Carolina (1976) 428 U.S. 280.) The
Eighth and Fourteenth Amendments also require jurors to consider any aspect of a
s
o
r
s
8
3
r
e
r
e
F
y
F
e
F
S
r
e
g
s
F
t
e
S
O
E
OF
S
r
y
e
s
e
t
>
£
&
i
h
i
@
4
@
s
e
g
a
6
.
&
o
f
&
@
a
s
e
a
t
if
7
t
j
defendant’s character that the defendant proffers in the penalty phase as a basis for
sentence less than death. (Mills v. Maryland (1988) 486 U.S. 367, 373; Eddingsv.
Oklahoma (1982) 455 U.S. 104, 121; Lockett v. Ohio (1978) 438 U.S. 586, 604.)
The “sentencer may not be precluded from considering, and may notrefuse to
consider, any constitutionally relevant mitigating evidence ....” (Weeks v.
Angelone (2000) 528 U.S. 225, 232.) “States cannot limit the sentencer’s
consideration of any relevant circumstance that could causeit to decline to impose
the [death] penalty.” (McClesky v. Kemp (1987) 481 U.S. 279, 305-306.)
Suffering deprivation or mistreatmentas a child is mitigating. (Abdul-
_ Kabir vy. Quarterman (2007) ——sU'S.__, 127 S.Ct. 1654, 1673-1674; Penry v.
Lynaugh (1989) 492 U.S. 302, 319 (Penry I); Hitchcock v. Dugger (1987) 481
U.S. 393, 398; Eddings v. Oklahoma (1982) 455 U.S. 104, 116.) So are emotional
problems. (Abdul-Kabir at pp. 1673-1674; Penry I, 492 U.S. at p. 319; Eddings at
p. 115; Bell v. Ohio (1978) 438 U.S. 637, 641-642.) And as set forth above, both
this Court and the United States Supreme Court have recognized that expert
testimony on these subjects is appropriate, because the expert’s observations are
beyond the common knowledgeofjurors.
Here, Mr. McDowell’s sentencing jury was precluded from considering
constitutionally-relevant mitigating evidence, and from considering circumstances
that could cause the sentencing jury to decline to imposethe death penalty.
Indeed,in thefirst retrial, the jury that heard Dr. Andrews’ testimony did not
143
impose the death penalty. Moreover, because the jury in the secondretrial did not
hear Dr. Andrews’ expert testimony, the secondretrial’s jury was precluded from
making an individualized determination of Mr. McDowell’s death-worthiness, and
the jury’s determination clearly was not based on complete andreliable
evidence.*’ Mr. McDowell’s mitigation case was simply not complete without Dr.
Andrews’testimony.
(b) Mr. McDowell’s jury was precluded from being able to fully consider all of
the mitigation evidence it was presented.
The Eighth and Fourteenth Amendmentsalso require that the sentencer be
able to fully considerall the mitigating evidence that is presented. (Smith v. Texas
(2004) 543 U.S. 37, 26; Penry v. Johnson (2001) 532 U.S. 782, 797 (Penry I);
Johnson v. Texas (1993) 509 U.S. 350, 369; Penry I, supra, 492 U.S.at pp. 320-
321.)
The United States Supreme Court last term resoundingly affirmed this
“Tl]ong recognized” requirement whenit reversed, in three separate opinions, three
death judgments: Brewer v. Quarterman (2007) —U.S.__, 127 S.Ct. 1706,
1709; Abdul-Kabir v. Quarterman (2007) —=—-U.S.__, 127 S.Ct. 1654; and Smith
v. Texas (Smith II) (2007) —-;U.S.__—, 127 S.Ct. 1686. The underlying Eighth
Amendmentclaim in each case wasthat, as a result of the prosecution’s argument
“For example, the trial court itself excluded the signed mitigating
declarations of deceased family membersas unreliable, becausethe trial court
believed they were signed “to encouragethe grant of the habeas corpus.” (39 RT
5641.) It requires no stretch to imaginethat at least some jurors would not have
viewedthe family’s mitigation testimony as unbiased — and therefore, notreliable.
144
a
g
S
r
e
r
e
F
y
F
S
r
s
g
s
F
e
S
O
Y
,
F
S
U
U
e
C
g
r
o
f
s
E
t
J
h
p
i
B
d
8
d
€
3
‘
@
e
@
e
a
*
8
€£
1
4
8
1
and/or the trial court’s instructions, the jury could not give “meaningful” effect to
the defendant’s mitigation evidence. The Supreme Court reversed in each for
these Penry I errors — because, as the Court reaffirmed in Brewer:
[A] sentencing jury must be able to give a reasoned moral response to
a defendant’s mitigating evidence — particularly that evidence which
tends to diminish his culpability - when deciding whether to sentence
him to death.
(Brewer, 127 S.Ct. at p. 1709; internal quotations omitted.) Where trial errors
preclude the sentencing jury from being able to give a “reasoned moral response”
to the mitigation evidence the defense has provided, the death sentence must be
reversed. (Id. at p. 1710; see also California v. Brown (1987) 479 U.S. 538, 545
[“‘the sentence imposedat the penalty stage should reflect a reasoned moral
responseto the defendant’s background, character and crime’’] (conc. opinion of
O’Connor,J.; emphasis in original). |
Mr. McDowell’s jury could not give a reasoned moral response to the
mitigation evidence that was supplied. Without Dr. Andrews’ testimony, the
jurors could not effectively understand, nor accurately evaluate, the anecdotal
evidence supplied by the lay witnesses. Mr. McDowell wasprecluded from
presenting the expert testimony necessary to place his childhood experiences in
external and internal context for the jurors — to show them what Mr. McDowell’s
upbringing was like compared to others’, and how that would have affected him.
145
Indeed, the error here is arguably worse than in Abdul-Kabir — whereat least the
sentencing jury heard the mitigating evidence, including from expert witnesses —
but then the mitigating evidence was undercuteither by the state’s argumentor the
court’s instruction. (Abdul-Kabir, 127 S.Ct. at pp. 1671-1673 [court’s instructions
and the prosecutor’s argument may have causedthe jury not to give meaningful
mitigating effect to testimony of two mental health expert witnesses who
discussed the consequencesofthe defendant’s childhood neglect and
_ abandonment].) In this case, Mr. McDowell’s sentencing jury was not even
provided the expert testimony — testimony that would have allowed them to give
full consideration to Mr. McDowell’s other mitigation evidence.
In this regard, the United States Supreme Court clearly recognizes the
import of expert testimony, especially in death cases. “[T]estimony emanating
from the depth and scopeof specialized knowledge is very impressiveto a jury.
The sametestimony from another source can haveless effect.” (Ake v. Oklahoma
(1985) 470 U.S. 68, 81, fn. 7.) In Ake, the Supreme Court held that where the state
places a defendant’s mental condition at issue regarding “criminalliability and...
the punishment he mightsuffer, the assistance of a psychiatrist may well be crucial
to the defendant’s ability to marshal his defense.” (Id. at p. 80.) The Supreme
Court recognized that experts are critical becauseoftheir abilities to “gather facts,
through professional examination, interviews, and elsewhere, that they will share
with the judge or jury; they analyze the information gathered and from it draw
plausible conclusions” and can also “tell the jury whytheir observations are
146
a
e
e
e
e
e
e
e
e
"
s
i
t
a
6
&
3
&
?
@
3
h
a
e
4
t
i
s
t
5
¢
.
relevant.” Ultimately, [t]hrough this process of investigation, interpretation, and
testimony,” experts “ideally assist lay jurors . . . to make a sensible and educated
determination” about the subject of the expert’s testimony. (Id. at pp. 80-81.)
Of course, lower courts agree. (See, e.g., Caro v. Calderon (9th Cir. 1999)
165 F.3d 1223, 1227 [reversing death verdict for counsel’s ineffectiveness in
failing to develop and present expert testimony to explain the ramifications of
beatings, head trauma, and pesticide exposure]; Jackson v. Calderon (9th Cir.
2000) 211 F.3d 1148, 1163 [reversing death verdict where, dueto trial counsel’s
ineffectiveness, “the penalty phase wasleft without any expert at all ”]; Lambright
v. Schriro (9th Cir. 2007) 490 F.3d 1103, 1118-1121 [reversing death verdict for
counsel’s ineffectiveness in failing to discover and present expert testimony that
petitioner suffered from PTSD, depressive disorder, and polysubstance
dependency]; Jermyn v. Horn (3d Cir. 2001) 266 F.3d 257, 311 [reversing death
verdict where the jury heard lay evidence of child abuse but no expert testimony
discussing the effect of the abuse on the defendant’s adult functioning]; compare
Stanford v. Parker (6th Cir. 2001) 266 F.3d 442, 461 [mitigation witness’ “lack of
expert qualification” and other circumstances supportedtrial court’s exclusion of
his testimony].)
Indeed, in view ofthe uniformity and consistency of opinions on the
importance ofsocial historians in capital penalty phasetrials, it is nothing short of
remarkable that the trial court would exclude Dr. Andrews’ testimony. Astrial
counsel urgedthetrial court to see, reviewing courts consistently reverse death
147
verdicts for ineffective assistance of counsel wheretrial attorneys havefailed to
investigate and develop social history evidence as mitigation. (39 RT 5661-5663;
see, e.g., Williams v. Taylor (2000) 529 U.S. 362, 415 [effective assistance
requires counsel to conduct “diligent investigation into his clients’ troubling
backgroundand unique personal circumstances”]; Wiggins v. Smith (2003) 539
U.S. 510, 521-524 [defense attorney prejudicially ineffective for, inter alia, failing
to follow prevailing 1989 professional normsbyretaining a forensic social worker
to conduct further investigation of relevant social history documents|; Rompillav.
Beard (2005) 545 U.S. 374, 390-394 [trial counsel’s penalty-phase performance
prejudicially deficient where she failed to unearth abuse and alcoholism in
defendant’s history]; see also Jackson v. Calderon, supra,211 F.3d 1148at p.
1163 [finding trial counsel prejudicially ineffective for failing to “compile a social
history of Jackson, to indicate the conditions in which he had been brought up and
lived,” where “a major component of counsel’s duty at the penalty phase is to
prepare and present such a history”); United States v. Kreutzer (Army Ct.Cr.App.
(2004) 59 M.J. 773, 775, 777 [trial court erred in denying funds for a requested
expert mitigation specialist to provide “an inter-disciplinary, scientific analysis of
the psycho-social history of an individual accused in a capital case”’].)
Moreover, the United States Supreme Court has consistently cited with
approval the ABA Standards for Criminal Justice as indices of the obligations of
defense attorneys in capital cases. (See Williamsat p. 396; Wiggins at p. 524
[noting that “welong havereferred to [the ABA Standards] as ‘guides to
148
r
e
,
e
s
6
s
o
g
j
@
a
e
s
e
a
-
s
e
a
8
«
§
8b
i
v
e
|
.
j
determining whatis reasonable,’” quoting Strickland v. Washington (1984) 466
U.S. 668, 688 ]; Rompilla at p. 387.) At the time of Mr. McDowell’s retrials,
those standards required counselto investigate and develop evidence of Mr.
McDowell’s medical history, educational history, employmentandtraining
history, family and social history, prior adult and juvenile correctional experience,
and religious and cultural influences. (Wiggins at p. 524, citing 1 ABA Standards
for Criminal Justice 4-4.1, commentary, pp. 4-55 (2d ed. 1982).)
As required underprevailing professional norms, under the ABA
Standards, and under clear United States Supreme Court precedent, trial counsel
retained an expert social historian who investigated and developed this mitigation
evidence. For the highest Court to hold defense counsel responsible for
developing this evidence but for a lower court then to preclude the defense from
introducingit at trial makes absolutely no sense. There is simply no way around
it: the trial court’s ruling excluding Dr. Andrews’ testimony waserror.
Lastly, the timing of the trial court’s error also kept the jury from fully
considering the mitigation evidence that Mr. McDowell presented. Counsel for
Mr. McDowell did not learn until the eve of the mitigation case’s start that thetrial
court was going topreclude this expert witness from testifying atall. The
prosecutordid notraise this issue before jury selection began (as he did when, for
example, he filed notice of the factors in aggravation the day after the first status
conference for the secondretrial). The prosecutor did not moveto preclude Dr.
149
Andrews’ testimony until his own case was done, and counsel for Mr. McDowell
wasaboutto begin his case in mitigation.
C. The prejudicial error requires reversal.
Improper exclusion of mitigating evidence is reviewed under the Chapman
standard: the death penalty must be reversed unlessthe error is harmless beyond a
reasonable doubt. (Peeple v. Roldan (2005) 35 Cal.4th 646, 739, citing Chapman
v. California (1967) 386 U.S. 18, 24; Skipper v. South Carolina (1986) 476 U.S.
1.)* Thereis simply no waythe state can credibly maintain that this error did not
affect the verdict. Virtually every indicia ofprejudice that reviewing courts use to
measure prejudice exists here.
Mostobviousis that where Dr. Andrews was allowedto testify — in the first
retrial -- the result was a hung jury. Whenthetrial court did not allow Dr.
Andrewsto testify, the result was a death verdict. This providesa virtual petri
dish demonstration of the effect of excluding her expert testimony. Moreover, this
Court and the Courts ofAppeal logically recognize that a prior hungjury itself is
indisputable evidence of a close case. (See, e.g., People v. Rivera (1985) 41
“(Cf. People v. Gay (2008) 42 Cal. 4th 1195, 1223 [“Error in admitting or
excluding evidenceat the penalty phase ofa capitaltrial is reversible if there 1s a
reasonable possibility it affected the verdict”]; and cf. People v. Prince, supra, 40
Cal.4th 1179, 1222 [““We apply an abuse ofdiscretion standard in reviewinga trial
court’s decision to admit the testimony of an expert”; capital case].) However, as
set forth at length herein, no matter what the standard, reversal here is required.
150
in
e
e
e
e
e
e
e
e
e
e
a
s
a
i
«
i
f
ft
|
£
pb
h
a
t
§
Cal.3d 388, 393, fn. 3 and 395; People v. Taylor (1986) 180 Cal.App.3d 622, 634;
People v. Thomas (1981) 119 Cal.App.3d 960, 966.)
This Court also recognizes that jurors’ requests for readback and further
instruction indicate a close case, and indicate prejudice from errors that have
occurredin the trial. (People v. Gay, supra , 42 Cal.4th at pp. 1223-1227; People
v. Hernandez (1988) 47 Cal.3d 315, 352) Here, the jury asked for readback of the
testimony of two of Mr. McDowell’s siblings, and asked for further instruction on
the meaning of Tommy McDowell’s second degree rape conviction. (11 CT
3000A, 3002A.) This jury focus on Mr. McDowell’s family and its criminal
history strongly suggests the jury was considering the effects of his upbringing.
(See, Gay at p. 1227 [jurors’ request of readback of eyewitness and expert
testimonyrelated to circumstances of murder wasan indicia of jurors’ focus on
defendant’s role in murder].)
And even with the granted requests for readback, Mr. McDowell’s jury
only deliberated for what amountedto a total of two days. (11 CT 2999-3000,
3001-3002, 3003-3004, 3028, 3030-3031.) In comparison, the jury in thefirst
retrial (which had the benefit of hearing Dr. Andrews’ expert testimony),
deliberated on August 16, 17, 18, 19, 20, 25 and 26, 1999, and ultimately failed to
reach a verdict. (2 CT 377-381B, 383-385, 386-387; 5 CT 1555-1556.) When a
jury deliberates for a very short time,it is possible that the short deliberation is the
product of the error — and thusindicatesits prejudice. (See, e.g., People v. Barnes
(1997) 57 Cal.App.4th 552, 557, fn. 3; see also People v. Gay, supra, 42 Cal.4th at
151
p. 1226 [“It is discomforting, though, that, following this inadequate reinstruction,
the jury reached a verdict the very next morning”’].)
The type oferror itself— exclusion of expert testimony — provides another
indicia of prejudice. Errors related to expert testimony are extremely prejudicial.
Asset forth above, “[T]estimony emanating from the depth and scope of
specialized knowledge is very impressive to a jury. The sametestimony from
another source can haveless effect.” (Ake v. Oklahoma, supra, 470 U.S. 68, 81,
fn. 7; see also People v. Lucero (1988) 44 Cal.3d 1005, 1009 [an “expert’s
authority and expertise may persuade the jurors to a conclusion they would not
reach on their own”’]; People v. Robbie (2001) 92 Cal.App.4th 1075, 1088
[erroneous admission of expert evidence “significantly bolstered”state’s case, and
was therefore especially prejudicial].)
Moreover, the prosecutor used the exclusion ruling to his advantage in
closing argument. In Skipper v. South Carolina (1986) 476 U.S. 1, the United
States Supreme Court reversed a death verdict for erroneous exclusion of
testimony regarding lack of future dangerousness-- specifically finding prejudice
in the prosecutor’s focus in closing argument uponthis lack. (Id.at p. 5, fn. 1.)
This Court, too, has long recognized the prejudice from errors that prosecutors
exploit during closing argument. (See, e.g., People v. Hannon (1977) 19 Cal.3d
588, 603; People v. Roder (1988) 33 Cal.3d 491, 505.) The Courts ofAppeal are
in agreement. For example, in People v. Robbie, supra, 92 Cal.App.4th 1075, the
court reversed underthe stringent Watson standard of review because of the highly
152
>
i
b
a
6
8
€
&
e
a
a
&
«
i
J
f
i
e
a
|
j
i
prejudicial nature of erroneously-admitted expert testimony, and the prosecutor’s
reliance upon it during closing argument. (Id. at p. 1088; see also Peoplev.
Valentine (2001) 93 Cal.App.4th 1241, 1253 [prosecutor’s argument “dramatically
increased the risk the jury would base its verdict” on an erroneousinstruction];
People v. Acevedo (2001) 93 Cal.App.4th 757, 770-771 [preclusion of defense
cross-examination on a point that the prosecutor then emphasizedin closing
renderedthe error prejudicial.)
Here, the prosecutor argued that Mr. McDowell’s childhood was not
mitigating. “Mitigating evidence is to make less severe, reduce moral culpability.
... In this case if you have a bad childhood, you can havea bad adulthood.” (43
RT 6308.) However, according to the prosecutor, that did not explain Mr.
McDowell’s criminality, for which Mr. McDowell alone was responsible. “Don’t
blame someone, don’t blame anyone other than whereit belongs. [Sic.] Put this
criminality exactly where it belongs.” (43 RT 6309.) Without the testimonyof
the very social historian expert witness that the prosecutor had successfully
excluded, the jury would not understand otherwise. And the prosecutor -- whom
jurors typically hold in “special regard” -- urged them to not to even try. (People
v. Hill (1998) 17 Cal.4th 800, 828.) Indeed, the prosecutor preyed upon what
(without expert testimony to the contrary) lay persons typically conclude:
A juror mayintuitively understand, based solely on facts of physical
abuse, that a childhood marred by abuse would have been traumatic.
That evidence may make a jury feel sorry for the defendant, but it is
153
unlikely to cause her to vote for a life sentence. Thecritical part of
the defense case for mitigation is explaining how and whythe
defendant’s history of abuse caused long-term cognitive, behavioral,
and volitional impairments that relate to the murder he committed.
Without testimony making this connection, jurors probably will not
comprehendthe significance of the defendant’s backgroundto their
sentencing decision.
(Crocker, ChildhoodAbuse andAdult Murder (1999) 77 N.C.L.Rev. 1143, 1183-
1185; see also Brewer v. Quarterman, supra, 127 U.S. 1706 at p. 1711 [quoting
prosecutor’s argumentthat there is a link between child abuse and adult
criminality, and the link is aggravating, not mitigating].)
Thus, virtually every indicia of prejudice that the courts recognize is
present in this case. The state cannot therefore credibly argue that exclusion of Dr.
Andrews’ testimony from the secondretrial! did not contribute to the death verdict.
Even without all the other indices of prejudice, one very simple,
compelling, common-sense fact remains: when Dr. Andrews’testified, the jury
hung; whenshe wasnot allowedto testify, the jury returned a verdict of death.
This Court cannotfind that exclusion of Dr. Andrews’ testimony was harmless.
This Court must reverse the death verdict that was prejudicially tainted by this
error.
154
e
a
g
e
r
e
F
e
8
F
e
K
t
r
e
F
S
O
e
O
D
e
S
O
e
§
@
«
@
2
6
¥
a
2
9
s
4
a
4
4
€
4
@
i
4
4
4
5. Mr. McDowell’s state and federal constitutional rights were
prejudicially violated by improperexclusion of, and limitations
upon,lay witnesses’ mitigation evidence.
Trial counsel soughtto fill part of the gap created by the loss of expert
social historian Dr. Arlene Andrewsby introducing declarations from two family
members, Mr. McDowell’s mother Shirley, and his brother Ronald, both ofwhom
werealive for the initial 1984 trial, but who had died in the time that elapsed until
Mr. McDowell’s challenge to his 1984 death sentence proved successful.
Having successfully prevented the expert social historian from testifying to
crucial mitigation evidence, the prosecutor wasstill not satisfied that he had
sufficiently gutted Mr. McDowell’s mitigation case. The prosecutor objected to
admission ofthese declarations. Once again, the trial court granted a motion
whichfavoredthestate.
The declarations, signed under penalty of perjury and introduced in the
federal habeas proceedings without objection by the state, detailed significant
incidents in Mr. McDowell’s childhood that helped explain his adult behavior.
The declarations focused on the core of what the Ninth Circuit had recognized as
crucial and appropriate mitigation: the history of daily mental and physical abuse,
and exposure to deviant sexual behavior. Thus, under clear and long-standing
United States Supreme Court precedent, though the declarations were technically
hearsay, they were reliable and critical mitigation evidence that should therefore
have been admitted.
155
Asset forth below,the trial court erred in its exclusion of these declarations
on every groundit stated. Thetrial court also erred when it excluded Roberta
Williams’ direct examination testimony that Mr. McDowell’s father, Charles Sr.,
beat his own father. Exclusionofall of this critical mitigation evidence violated
Mr. McDowell’s rights to due process and to have his penalty phase sentencers
considerall relevant mitigation evidence. (U.S. Const., Amends5, 8 & 14; Cal.
Const., art. I, secs. 1, 7, 13, 15, 16, 17, 24, 27.) Ultimately, these exclusions
require reversal.
A. Thetrial court improperly excluded the signed declarations of
deceasedfamily members.
(1) The relevantfacts below
(a) Declaration of Ronald McDowell
In 1991, under penalty of perjury, Mr. McDowell’s younger brother Ronald
signed a declaration stating that he had never before been contacted by anyone
representing Mr. McDowell, and documenting manysignificant incidents from
their childhoods. (6 CT 1627-1630.) This included the stunning fact that when
Ronald wasfive or six years old and Mr. McDowell was seven or eight, Ronald
found Mr. McDowell trying to commit suicide by hanging himself. Ronald also
saw Mr. McDowell jumped by older boys in the neighborhood, who made Mr.
McDowell perform oral sex on them. When Ronald told their father, Charles Sr.
aboutthis, his response wasto beat his sons. Ronald also walked in on Mr.
156
e
a
t
s
j
a
&
@
s
*
@
6
@
4
t
7
@
ss
&
a
€
.
4
McDowell in bed with a man from the neighborhood when both boys were young.
And Ronald reported that Charles Sr. shot Ronald’s dog -- while making Ronald
hold its leash. (Ibid.)”
Ronald died in 1995. (6 CT 1632 [certificate of death].)
His signed declaration was submitted, without objection by the state, in Mr.
McDowell’s habeas proceedings in federal court. (6 CT 1634-1643 [Declaration
ofAndrea Asaro; RT of 1994 federal proceedings; federal court exhibitlist].)
Mr. McDowell moved, on federal constitutional grounds, to introduce
Ronald’s declaration as mitigation in the secondretrial. (6 CT 1622-1643 [Motion
to introduce declaration, and exhibits in support].)
Thetrial court excluded it. (39 RT 5641.) Accordingto thetrial court,
Ronald’s declaration was unreliable because “it’s highly susceptible to
exaggeration and outright fabrication because he’s trying to get his brother off.”
(39 RT 5640.) Also accordingto thetrial court, it was “highly unfair to the
prosecution [for the defense] to offer testimony ... [that] wasn’t subject to cross-
examination.” (Ibid.) Regarding the incidents that only Ronald’s declaration
addressed, the trial court stated that Mr. McDowell himself could testify if he
wanted to; otherwise, the material was not going to be admitted. (39 RT 5636-
5637, 5641.) As far as other incidents addressed in Ronald’s declaration,the trial
“Mr. McDowell’s younger brother Ronald did nottestify in the 1984trial.
(6 CT 1630.) Several other incidents that Ronald described in his declaration —
not itemized here -- were also witnessed by other family members, whotestified
about them in the secondretrial.
157
court stated they were cumulative of other family members’ testimony, and were
thus inadmissible. (39 RT 5641.) Thetrial court reaffirmedthis ruling when the
defense moved again,at the end ofits mitigation case, to introduce any portion of
Ronald’s declaration. (42 RT 6182-6183.)
Thus, the jury never heard that Mr. McDowell had attempted to hang
himself as a child. The jury never heard that men in the neighborhood sexually
molested Mr. McDowell as a young boy, nor that his own father’s response was
not to confront the men, but to beat Mr. McDowell andhis brotherfor it. The jury
neverheard that Charles Sr. was so sick that he shot the family dog to death while
he madehis son hold the leash.”
(b) Declaration of Shirley Brakefield McDowell
In 1984, Mr. McDowell’s mother, Shirley Brakefield McDowell, testified
as a mitigation witness at the penalty phase that was ultimately reversed by the
Court of Appeals. In 1991, under penalty of perjury, Ms. McDowell signed a
declaration that included many, and more significant, family history details than
she’d been asked about during direct examination in the 1984 penalty phase. (11
CT 2968-2974.) Her 199] declaration was submitted, without objection by the
‘Tn the first retrial, the jury did hear evidence ofthese incidents, because
Dr. Arlene Andrews used them to form her opinion. (See, e.g., RT 31 RT 4373
[uncles Gene and Jerry molesting Mr. McDowell]; 31 RT 4388 [men in the
neighborhood molesting Mr. McDowell when he was a young boy]; 31 RT 4386-
4387 [Charles Sr.’s cruelty to animals, including shooting the puppy].)
158
e
r
t
o
m
g
s
i
s a
s
a
a
d
t
‘
i
€
43
i
J
t
1
5
&
a
*
®
3
4
state, in Mr. McDowell’s habeas proceedingsin federal court. (11 CT 2976-2990
{Declaration of Andrea Asaro; RT of 1994 federal proceedings; federal court
exhibit list].)
Mr. McDowell’s mother Shirley died in 1997. (41 RT 5901.)
After the trial court held in the secondretrial that it would be excluding the
expert testimony of Dr. Arlene Andrews, Mr. McDowell moved on federal
constitutional groundsto introduce his mother’s 1991 declaration as mitigation
evidence. (11 CT 2962-2990; 40 RT 5676-5683.)
Thetrial court denied his motion. (40 RT 5681-5683.) According to the
trial court, the declaration contained, and wasitself, unreliable hearsay because it
had been “set up with a particular objective in mind,in this case to release Mr.
McDowell from custody and get him a newtrial.” (40 RT 5678; see also 40 RT
5682-5683.) Moreover, accordingto thetrial court, the matters covered in the
declaration were cumulative of other testimony. (40 RT 5678, 5682.)
Whatthe secondretrial jurors “heard” from Shirley McDowell was a
reading-into-the-record of her 1984 penalty phase testimony. (41 RT 5901-
5915.)°' Shirley Brakefield McDowell’s 1991 declaration contained the following
information that her 1984 testimony did not: Mr. McDowell was unplanned and
unwanted. Ms. McDowell received no prenatal care during her pregnancy with
him, and was in fact beaten during pregnancy by Charles Sr. Mr. McDowell was
*'Ms. McDowell’s 1984 penalty-phase testimony wasalso read into the
record as part of the defense mitigation case in the first retrial. (See 31 RT 4343-
4360.)
159
born a month premature. Ms. McDowell was ignorant ofhow to care for babies
and Mr. McDowell wastherefore malnourished as an infant. Charles Sr. often
beat her severely in front of their children. As early as the first grade, Mr.
McDowell exhibited learning disorders and hyperactivity, and wastied to his chair
or placed upon high shelves by his teachers to try to control him in class. When a
woman from the school came to the house to speak to Mr. McDowell's parents
about getting him some help, Charles Sr. peppered her with questions about her
religion, called her a Communist and ordered her off the property. Mr. McDowell
began using drugs as a teenager and had been sexually abused as a young boy by
Ms. McDowell’s own brothers. (11 CT 2968-2974.)”
Atthe end ofthe defense mitigation case, the trial court denied the defense
request to admit any portions of Ms. McDowell’s declaration, for the same reasons
set forth above. (42 RT 6179-6183.) Thus, the jury never heard this evidence from
Mr. McDowell’s own mother. And no oneelse testified about many ofthese facts,
including prenatal beatings, early learning disabilities, mistreatment at the hands
of teachers, and Charles Sr.’s fanatic response against anyone giving Mr.
McDowell help.
“Once again, in the first retrial, Dr. Andrewstestified about many of these
facts as the bases ofher opinions about the McDowell family. (See, e.g., 31 RT
4378-4379 [Shirley did not want a baby, didn’t know how to care for one, and was
depressed and lonely when she had Mr. McDowell]. But because she was not
allowedto testify in the secondretrial, this jury did not hear this evidence.)
160
>
a
3
a
«
9
&
@
a
t
3
j
(2) Exclusion ofthese mitigating declarations was error under state and
Jederal law and violated Mr. McDowell’s state andfederal constitutional
rights.
Asset forth below,the trial court’s exclusion of these declarations violated
Mr. McDowell’s Eighth and Fourteenth Amendmentrights and their state
constitution analogues. (U.S. Const., 8th and 14th Amends.; Cal. Const., art. I,
secs. 1, 7, 13, 15, 16, 17, 24, 27.)
Asset forth above in section 4.B.(2)(a) and reincorporated by reference
herein, the Eighth and Fourteenth Amendments require sentences of death to be
based on an individualized determination of a person’s death-worthiness; on
accurate, complete and reliable evidence, and those Amendments require that
jurors consider — and that they not be precluded from considering -- any
constitutionally-relevant mitigating evidence.
It is beyond dispute that the information contained in Ms. McDowell’s and
Ronald’s declarations was constitutionally-relevant mitigating evidence. Indeed,
neither the state nor the trial court said otherwise. Andin its decision reversing
the 1984 death penalty verdict, the Ninth Circuit expressly recognized this very
type of family history evidence as mitigating, and as critical. (Af4cDowellv.
Calderon (9th Cir. 1997) 130 F.3d 833.)
Instead, the trial court excluded the declarations as unreliable hearsay, and
as cumulative of other testimony. As set forth below,the trial court erred in both
regards. Contrary to the trial court’s ruling, the declarations were reliable hearsay
statements that should have been admitted as mitigating evidencein this capital
161
penalty phase. And contrary tothe trial court’s alternative ruling, the declarations
were not “cumulative.” Much information in the declarations was not cumulative
of any testimonyat all — because no oneelse testified to many of these facts. And
to the extent that other information in the declarations did recount what the few
other family history witnessestestified, the declarations provided valuable
corroboration, and thus should not have been excluded as “cumulative.” In sum,
the trial court’s exclusion of these declarations clearly waserror.
(a) Because the highly relevant declarations were reliable, their exclusion on
hearsay grounds from this capital penalty phase waserror.
Exclusion from a capital penalty phase, on hearsay grounds, of highly
relevant and reliable evidence violates due process. (Green v. Georgia (1979) 442
U.S. 95, 97; People v. Williams (2006) 40 Cal.4th 287, 318.) Similarly, the rule
against hearsay may not be applied mechanistically to defeat the ends ofjustice.
(Chambers v. Mississippi (1973) 410 U.S. 284, 302.) Here, the trial court applied
the rule against hearsay mechanistically, and excluded reliable hearsay that was
highly relevant to Mr. McDowell’s mitigation case. Thetrial court therefore erred
whenit excluded the declarations on this basis.
In Green, the United States Supreme Court found a hearsay statement
reliable, and therefore admissible at the punishment phase, where “substantial
reasons existed to assumeits reliability.” (Green at p. 97.) This included
corroboration of the statements by other evidence. (Ibid.) As set forth in the
162
é
JS a
8
s
?
a
ds
b
j
following paragraphs, there was ample evidenceof the declarations’ reliability:
they should have been admitted, not excluded.
First, just as in Green, manyofthe statements included in the declarations
were corroborated by other evidence — here, family history witnesses whotestified
about the same events. Indeed, the alternate ground upon which the trial court
excluded the declarations wasthat, accordingto the trial court, they were
cumulative of other testimony. (See, e.g., 40 RT 5678 [“the information is
covered from other sources”].) Therefore, they were certainly corroborated by
other evidence, and borethat indicia ofreliability.
Second, this hearsay evidence consisted of written declarations signed
under penalty ofperjury.
Third, the state of California had seen these declarations before -- in the
federal court habeas proceedings-- and had not objected to them on any grounds,
let alone allege that they were unreliable.
Fourth,the trial court’s assessment that the declarations were inherently
unreliable because they had been submitted by family members wanting to help
Mr. McDowell is an assessment one could validly make about anyonetestifying in
mitigation — and therefore, a weak reason upon whichto base exclusion ofthis
important material. Moreover, as in every criminal case, the jurors were instructed
to factor bias into their evaluations of evidence andits credibility. (CALJIC No.
2.20, 11 CT 3010-3011; 43 RT 6384-6386.) Thus, this instruction should have
cured any possible taint from “bias.”
163
Fifth, the trial court’s lamentation about how unfair it would be to the
prosecution notto be able to cross-examine the deceased wascertainly undercut
by the fact that, when Ms. McDowelldid testify in 1984, the state did not pose one
single question in cross-examination. (See 41 RT 5916 [reporter’s transcript of
1984 testimony read to jury indicates no cross-examination was requested].)
In sum, such substantial indices of the declarations’ reliability exist that it is
clear the trial court manifestly erred when it assumed otherwise and excluded
them.
Thetrial court also erred by mechanistically applying the rule against
hearsay to defeat the ends ofjustice. That the ends ofjustice were defeated here is
apparentin the nature of excluded evidenceitself. Whatthe trial court excluded
would have shown the jurors, in excruciating detail, exactly how hopeless and
horrifying was Mr. McDowell’s childhood — that he would attempt suicide as a
Seven or eight year old; that his father was the kind ofman who shot a puppy dead
while his child held its leash; that his father beat his own children when he found
out that men in the neighborhood were molesting them. The excluded evidence
also would have shownthe jurors that Mr. McDowell’s mother did not want him,
either; that he suffered not only at home, but at the hands of his teachers; and that
his father drove away the one and only authority figure it appears evertried to help
Mr. McDowell.
Moreover,the trial court’s exclusion of this evidence was extremely
“mechanistic,” becausethetrial court’s ruling failed to take into account the
164
e
e
e
e
e
i
s
et
_i
¢£
# a
P
a
a
&
€
te
i
problems facing Mr. McDowell in presenting his mitigation case — problems
whichthetrial court created itself in each ofits rulings against Mr. McDowell.
First, the trial court failed to acknowledge the reason why Ms. McDowell’s
and Ronald’s written declarations, instead of their live testimony, were being
offered in the first place: they were dead. During the 15 years that had elapsed
between the first penalty phase, its reversal, and the state’s retrials, Ms. McDowell
and Ronald had died. Asset forth in Claim 1, that delay was not of Mr.
McDowell’s making. He pursued a valid claim over which the state fought with
him for 15 years. Also as set forth in Claim 1, Mr. McDowell objected that the
state should not be allowed to pursue the death penalty against him in itsretrials,
because he could notreceivea fair retrial since these very mitigation witnesses had
died. As set forth in Claim 1, the trial court denied that motion,too.
Second,the trial court failed to acknowledgethe fact that, by excluding Dr.
Arlene Andrews’ expert social history testimony, the jurors in the secondretrial
were prevented from hearing significant family history testimonythat only she
provided — including most of the material in these declarations. Thus, given that
the trial court excluded Dr. Andrewstestimony, thetrial court should have taken
into account that these declarations provided significant family history and should
have been admitted to allow the defense to present evidence that otherwise — as in
the first retrial - would have been presented to the jury via Dr. Andrews.
Third, the trial court failed to acknowledge ~ and, indeed, seemed intent on
ignoring — another evidentiary bind into which it repeatedly placed Mr.
165
McDowell. Thetrial court stated again and again that Mr. McDowell himself
should testify if he wanted to introduce mitigation evidencethatthe trial court
intended to exclude.” Here,the trial court stated the same: “The defendant can
testify . .. and so the reason for introducing [the declaration] is absent.” (42 RT
6183.)
It was wrong forthe trial court to demand,let alone suggest, that mitigation
evidence had to be presented through Mr. McDowell’s own testimony, instead of
through the other permissible avenues. The Fifth and Fourteenth Amendments
provide that no person “shall be compelled in any criminal case to be a witness
against himself.” (New Jersey v. Portash (1979) 440 U.S. 450, 459; Estelle v.
Smith (1981) 451 U.S. 454, 462-463 [Fifth Amendmentright to freedom from
self-incrimination applies to both guilt and penalty phasesofcapitaltrial].) By
denying Mr. McDowellthe right to introducecritical mitigation evidence via any
means — here, the valid declarations — other than through his own testimony, the
trial court effectively blackmailed him: compelling him either to be a witness
against himself (because, of course, he would be subject to the state’s cross-
See, e.g., 39 RT 5636-5637 [“It may well be a defensetactic not to have
Mr. McDowell testify, but that doesn’t mean because you don’t want him to
testify that there’s no other source of this information and that’s why it should
comein”]; 39 RT 5637 [“If [Mr. McDowell] testifies and something is missing
and somebodyelse can explorethat . . . . [bJut not until he testifies and is cross-
examined onit”}; 39 RT 5641 [“the most important information can come from
Mr. McDowell personally and be subject to cross-examination”]; 39 RT 5661
[the defendant himself can testify to that, and he has the absolute right to dothat.
Even over your objection he cantestify to it, and that would be the best measure of
what happened to him as a result of the way he wasraised”].
166
r
e
y
e
v
a
>
e
s
a
a
&
i
‘
b
s
F
t
'
6
€
j
examination), or to forego introduction of critical mitigation evidence. Moreover,
the trial court’s analysis — that it should be Mr. McDowell himself to testify to
these facts -- did not take into account(or rather, and more nefariously, maybe
did) the jaundiced eyes through which jurors would likely view Mr. McDowell’s
testimony in his own behalf. It requires no stretch of imagination to see how
jurors would likely feel about a convicted first-degree murderer trying to save
himself from the death penalty by testifying about his childhood abuse, versus
how they would feel hearing the details of the McDowell family’s dysfunction
from other unfortunate souls who had also enduredit.
In sum, not only were the declarations themselvesreliable hearsay and
therefore admissible, but the trial court also erred by mechanistically applying the
rule against hearsay to defeat the ends ofjustice and deny Mr. McDowell the
opportunity to present essential mitigation evidence. Thetrial court’s exclusion of
the declarations on hearsay grounds wastherefore clearly in error.
(b) Because the declarations were not impermissibly cumulative, their
exclusion on this ground wasas error as well.
“The Eighth Amendmentto the United States Constitution requires that a
capital jury not be precluded from ‘considering, as a mitigating factor, any aspect
of a defendant’s character or record and any circumstancesoftheoffense that the
defendant proffers as a basis for a sentence less than death.”” (People v. Williams
(2006) 40 Cal.4th 287, 320, citing Lockett v. Ohio (1978) 438 U.S. 586, 604.) To
be sure, thetrial court still determines admissibility under Evidence Codesection
167
352. (Williams at p. 320.) But as set forth below,thetrial court’s exclusion of the
declarations as “cumulative” waserror.
First (and as set forth above, and as arguedbytrial counsel), much ofwhat
Ms. McDowell and Ronaldstated in their signed declarations could not be called
cumulative at all -- because no other witnessestestified toit.
For example, no oneelse in the secondretrialtestified to at least the
following facts from Ms. McDowell’s declaration: Mr. McDowell was an
unwanted child from the beginning; Ms. McDowell received no prenatal care; Mr.
McDowell was born a month premature; Charles Sr. beat Ms. McDowell during
her pregnancy with Mr. McDowell; as early as first grade, Mr. McDowell
exhibited learning disorders and hyperactivity, and wastied to his chair or placed
upon high shelves by his teachers to try to control him in class; when a woman
from the school cameto the house to speak to Mr. McDowell’s parents about
getting him somehelp, Charles Sr. peppered her with questions aboutherreligion,
called her a Communist and orderedher off the property.
Asfor Ronald’s declaration, no oneelse testified to at least the following
facts: when Ronald wasfive or six years old and Mr. McDowell was seven or
eight, Ronald found Mr. McDowell trying to commit suicide by hanging himself;
Ronald saw Mr. McDowell jumped by older boys in the neighborhood, who made
Mr. McDowell have oral sex with them — and when Ronald told Charles, Sr., he
beat his own sons; Charles Sr. shot Ronald’s dog while making Ronald holdits
168
w
e
r
s
oe
s
6
g
a
e
e
e
e
a
e
e
i
.
a
n
:
a
|
i
s
6
3
i
%
4
@
a
®
e
s
)
@
4
9
6
35
‘
4
€
4
€&
leash; Ronald walked in on Mr. McDowell in bed with a man in the neighborhood
when the boys were small.
Second,the trial court’s working definition of “cumulative” was completely
flawed. Thetrial court flatly answered “Yes” whentrial counsel asked whether
the court considered matters “cumulative” the “second timeit’s mentioned” in
testimony. (40 RT 5682.) In other words, underthetrial court’s definition and
ruling, a defendant would not be allowed to corroborate any fact by having
multiple witnesses attest to it— because, accordingto thetrial court, the testimony
is “cumulative” if a second witnesstestifies about that fact. Clearly that is not
correct. Indeed, historians recognize that multiple independentattestation is the
mosteffective proof of anecdotal facts.*4
Third, the logistics of the mitigation caseitself flewin the face ofthis
“cumulative” ruling. Few family history witnesses offered live testimony in the
second retrial. Mr. McDowell called his paternal aunt Roberta Williams (41 RT
5861-5899), two siblings — Tommy and Teressa (42 RT 6098-6167; 41 RT 5942-
5980), and family friend Bonnie Haynes. (40 RT 5822-5857.) His mother’s 1984
testimony wasreadinto the record. (41 RT 5901-5916.) The entire mitigation
case — whichalso included testimony from four other witnesses about issues other
than Mr. McDowell’s upbringing, and which wasinterrupted by a state’s rebuttal
“Moreover, the prosecution was not precluded from allowing multiple
witnesses to testify about the same events. For example, both Theodore (through
read-in testimony in the 1999 trials) and Dolores Sum testified about running to
their next-door neighbors’ house when Paula waskilled. (See 37 RT 5243-5258
[Dolores Sum testimony]; 37 RT 5367-5389.)
169
witness presented out-of-order — lasted only three days. Thestate’s aggravation
case took four days. Given the brief amountoftimeit took Mr. McDowell to
present his entire mitigation case, given the few witnesses whotestified about Mr.
McDowell’s childhood, and given the prosecutor’s credibility attacks on two of
those witnesses -- Roberta Williams and Teressa McDowell Rabon duringtheir
cross-examinations -- it was certainly error to exclude these declarations as
“cumulative.” (see e.g., 41 RT 5881-5891, 5898, 5967-5980) To the extent the
declarations contained information that was duplicative of others’ testimony, Mr.
McDowell should have been allowed to introduce the declarations to corroborate
these mitigation witnesses’ testimony.
B. The trial court improperly limited Roberta Williams’ testimony
about Charles, Sr.’s violence.
(1) The relevantfacts below
During the testimony of his paternal aunt Roberta Williams, Mr. McDowell
sought to introduce evidenceofhis father Charles Sr.’s violence against his own
father, Floyd. (40 RT 5759-5764.) Trial counsel argued that the Eighth and
Fourteenth Amendments warranted admission of this mitigation evidence about
Mr. McDowell’s background. (40 RT 5761-5762, 5764.)
Thetrial court excluded this from Roberta’s testimony. (Ibid.) Thetrial
court held that if Mr. McDowell had seen the violence and wantedto testify about
it, it would be admissible. (40 RT 5763-5764.) Otherwise, accordingto thetrial
court, Roberta’s testimony about Charles Sr.’s violence toward their own father
170
e
e
e
e
eee
e
e
s
7
a
f
ae
i
d
o
e
|
4
an
a
|
i
wasinadmissible, because it was irrelevant to Mr. McDowell’s character. (40 RT
5760.) According to the trial court, “the background of the defendant’s family is
of no consequence exceptto the extentit relates to the background of the
defendant himself... .” and an attack by his father upon his grandfather did not
qualify. (40 RT 5760.) Moreover, Roberta’s testimony that this happened was no
proof that Mr. McDowell was awareofit. (40 RT 5763-5764.)
(2) Exclusion ofthis mitigation evidence was error under state andfederal
lawand violated Mr. McDowell’s state andfederal constitutional
rights.
Thetrial court’s exclusion of Roberta’s testimony about Charles Sr.’s
violence waserror under California state evidentiary law, and also violated Mr.
McDowell’s Eighth and Fourteenth Amendmentrights and their state constitution
analogues. (U.S. Const., 8th and 14th Amends.; Cal. Const., art. I, secs. 1, 7, 13,
15, 16, 17, 24, 27.)
This Court has explicitly recognized regardingjust such evidence that “[a]t
the penalty phase a defendant must be permitted to offer any relevant potentially
mitigating evidence,i.e., evidence relevant to the circumstances of the offense or
the defendant’s character and record.” (dn re Gay (1998) 19 Cal.4th 771, 815.)
Citing Penal Codesection 190.3 and the long line of United States Supreme Court
cases that have so held, this Court in Gay reversed a penalty phase verdict where
counsel wasineffective in many regards -- including failing to present evidence of
his client’s father’s abuse ofotherfamily members. (1d. at p. 813; pp. 826-828.)
171
Indeed, counsel for Mr. McDowell pointed out to the trial court that Jn re
Gay, supra, required that Roberta’s testimony about Charles Sr.’s acts of violence
toward their father be admitted. (40 RT 5762.) Butthe trial court held that “the
backgroundofthe defendant’s family is of no consequence except to the extent it
relates to the backgroundofthe defendant himself... .” (40 RT 5760.)
Thetrial court erred in its interpretation and exclusion. Charles Sr.’s
criminal behavior — even when not directly aimed at Mr. McDowell — was
absolutely relevant mitigation evidence. For example, this Court in Gay recounted
dysfunctional parental behavior that was relevant mitigation evidence:
Petitioner was physically beaten by his father, Van Gay. His father
was also abusive to other family members. Van Gay was cashiered
from the military for improprieties of a sexual nature, had difficulty
holding a job and used drugsandalcohol regularly.
(id. at pp. 813-814; see also People v. Thornton (2007) 41 Cal.4th 391, 448
[acknowledging authority for mitigation evidence that violence by one parent
against another harmschildren even if they do not witness it].) Thus, the trial
court erred when it excluded Roberta Williams’ testimony about Charles Sr.’s
violence.
o
s
3
F
e
o
r
a
F
y
r
u
r
e
g
y
a
t
s
a
a
e
o
e
|
£
«
C. Exclusion ofthis mitigation evidence was prejudicial.
Improper exclusion of mitigating evidence is reviewed under the Chapman
standard: the death penalty must be reversed here unless the error is harmless
beyond a reasonable doubt. (People v. Roldan (2005) 35 Cal.4th 646, 739, citing
Chapmanv. California (1967) 386 U.S. 18, 24; Skipper v. North Carolina (1986)
476 U.S. 1.)°°
For many of the same reasonsset forth above (and incorporated herein by
reference) in section 4.C., it is apparent that this exclusion of mitigation evidence
prejudiced the outcome against Mr. McDowell. Particularly based on the jurors’
requests for readback andreinstruction regarding the family history testimony of
brother Tommy McDowell, and for readbackof sister Teressa McDowell Rabon’s
testimony, this Court can see that the jurors were focusing on these witnesses and
their testimony. (See, e.g., People v. Gay, supra, 42 Cal.4th at p. 1227 [jurors’
request of readback of eyewitness expert testimony related to circumstances of
murder was an indicia ofjurors’ focus on defendant’s role in murder].) Nearly all
of their testimony was aboutliving in the McDowell household as children.
Lastly, the ghastliness of the details excluded strongly indicates that, had
the jurors heard this evidence, they would have reacheda different result. Indeed,
in the first retrial the jurors did hear these details — through Dr. Andrews, who was
*Cf. People v. Gay (2008) 42 Cal.4th 1195, 1223 [“Error in admitting or
excluding evidenceat the penalty phaseofa capital trial is reversible if there is a
reasonable possibility it affected the verdict”]. No matter what the standard,
reversal is required.
173
allowedto testify about these matters as part of Mr. McDowell’s social history.
(See 31 RT 4373 [molestation of Mr. McDowell by paternal uncles]; 4378 [Ms.
McDowell beaten while Mr. McDowell was in utero, and Mr:McDowell born a
month premature]; 4379 [Ms. McDowell did not want the baby and did not know
howto care for him]; 4386-4387 [Charles Sr. shot the dog while making Ronald
hold the leash rope]; 4388 [Mr. McDowell being molested by men in the
neighborhood] ; 4389 [hyperactivity in class and teachers’ maltreatment of him];
4414 [Charles’ Sr.’s treatment of woman from school who cameout to the house
to see about getting help for Mr. McDowell].) As set forth before, the jury in the
first retrial reached a hung verdict.
Thus, this Court cannot but concludethat exclusion of this mitigation
evidence from the secondretrial affected its outcome. Reversal of the penalty
phaseis therefore required.
6. Mr. McDowell’s state and federal constitutional rights were
prejudicially violated by the prosecutor’s repeated misconduct
in closing argument, which unfairly bolstered the state’s
aggravation case.
In the first retrial, the prosecutor’s closing argument did not draw a single
defense objection. (See 33 RT 4573-4619.) In the secondretrial, the prosecutor’s
closing argument wasnearly identical (see 43 RT 6249-6310) — exceptthatit
contained three misstatements of law and fact to whichtrial counsel objected or
about whichthetrial court itself raised concern. (43 RT 6252, 6282, 6309.)
174
r
s
w
e
r
e
g
t
P
e
e
F
S
F
Y
F
S
o
s
o
e
F
l
g
™
S
F
o
F
S
F
E
r
a
_
s
a
e
a
d
a
o
6
a
l
i
l
t
$
s
i
a
x
i
a
t
h
i
ok
«
Asset forth below, these prejudicial instances of misconduct violated Mr.
McDowell’s state and federal constitutional rights to due process, and to allow the
sentence fully to consider the mitigation evidence. (U.S. Const., 8th and 14th
Amends.; Cal. Const., art. I, secs. 1, 7, 13, 15, 16, 17, 24, 27.) This misconduct
requires reversal.
A, The relevantfacts below
(1) Misstatements oflaw
(a) Improper summary of capital sentencing law
The prosecutor argued that once someone had been found guilty of felony
murderin the first degree with special circumstances:
There are only two choicesat that point in time. The minimum,
the absolute minimum sentence which I put downhereis life without
the possibility of parole. [fa defendant, ifMr. McDowell, has no
history ofcriminality atall, period, not one day, the minimum sentence
that he receives is life withoutparole. That’s the law in this state.
(43 RT 6252; emphasis added.) Trial counsel objected that this misstated the law,
and would confuse the jury. The trial court overruled the objection. (Ibid.)
The prosecutor explained to the jury that this meant, “Therefore, you have
to consider whatis the punishment for the aggravating criminal conduct,” (43 RT
6253) which the prosecutor enumerated as “the sodomy of Curtis Milton,”“the
rape and kidnapping of Patty Huber,”“the attempted murder of Theodore Sum,”
175
“the molestation of Teressa McDowell Rabon”and“the assaults of [sic] Rebecca
McDowell Kelly.” (Ibid.)
Throughoutthe rest of his argument, the prosecutor would return again and
again to this improper theme: “What is the punishmentfor the rape of Patty
Huber? That is for you to decide” (43 RT 6289); “And what is the punishmentfor
Mr. McDowell’s conductin relation to Patty Huber?” (43 RT 6295); regarding
Theodore Sum’s attempted murder: “Whatis the punishmentfor that crime?” (43
RT 6307.)
The prosecutor did not make any such argumentinthefirst retrial. (See 33
RT 4573-4619.) Indeed, there the prosecutor argued, “Now,ultimately weall
know whatthis case is about. It’s about the death ofPaula Rodriguez asfar as the
appropriate punishment.” (33 RT 4575; emphasis added.) While the prosecutor
described the aggravating crimes, he did not argue or even suggest that it was the
jury’s responsibility to punish Mr. McDowell for them. (See 33 RT 4583-4595,
4598-4599.) Instead, he argued aboutall of them in total that “this escalating
violence in relation to the victims in this case is way above and beyondthe
elements of the crimeitself’ and thus death was an appropriate sentence. (33 RT
4582.)
176
r
y
F
E
«
3
F
S
6
S
r
o
e
D
p
w
e
F
s
r
s
e
s
g
s
&
@
s
®
a
a
e
l
a
“«
*
4@
&
4
7
4
1
a
o
a
(b) Improper addition of aggravating factor
The prosecutor arguedthat the mitigating evidence of “a bad childhood”
wasinsufficient for the jury to vote for life. (43 RT 6309.) The prosecutor then
presented a laundry list of Mr. McDowell’s transgressions:
The testimony is defendant sexually molested his sister. The
testimony is that the defendant molested his brother. The
testimony is that the defendant molested Curtis Milton. The
testimony is the defendant raped Patty Huber. Thetestimonyis the
defendant killed Paula Rodriguez. The testimony is the defendant
slit the throat of Theodore Sum because he liked and enjoyedit.
(43 RT 6309; emphasis added.)
On a break outside the presence ofthe jury, the trial court itself addressed
this improper argument, about whichthe trial court had notedtrial counsel’s
physical response during closing. (43 RT 6311.) Thetrial court stated that “it
soundedlike you were making an aggravating circumstance out of Tommy
McDowell’s sexual encounter.” (Ibid.) The trial court explained that it had
already ruled, on defense motion, that there was insufficient evidence ofthis
molestation to include it as an aggravator. (Ibid.) Thus, the argument waserror.
Butthe trial court stated that it believed the error would be cured by instructions.
(ibid.)
177
(2) Arguingfacts not in evidence
The prosecutor read from 1970s psychiatric examination records that
diagnosed Mr. McDowell as a “sociopath.” (43 RT 6282.) The prosecutor then
argued, “So whatis a sociopath? It’s an anti-social personality behavior that
violates the rights —“ (Ibid.)
Trial counsel objected that, “There is no evidence as to these words. These
are specialized words. Counsel is not permitted to make up a definition now and
offer it to the jury.” (43 RT 6282-6283.) Thetrial court responded,“I doubt that
it’s made up. Objection is overruled.” (43 RT 6283.)
The prosecutor continued, “Behaviorthat violates the rights of others or
criminal behavior, a disease against society.” (43 RT 6283.) Later, the prosecutor
enlarged the scope of his own diagnosis, arguing “The defendantis a predator, he
is a murderer, he is a sociopath,” and rhetorically asking the jury, “Do you think if
this defendant wasnotstill dangerous that the defense wouldn’t call a psychiatrist
to testify to that fact? They chose not to.” (43 RT 6303.)
B. Theprosecutor’s improper arguments were misconduct that violated
Mr. McDowell’s state andfederal constitutional rights.
Mr. McDowell was denied due process anda reliable penalty determination
in violation of the Eighth and Fourteenth Amendmentsto the United States
Constitution and parallel California constitutional provisions when the prosecutor
committed these prejudicial instances ofmisconduct during closing argument.
178
“
3
°
7
8
8
g
y
‘
a’
R
a
®
a
d
a
6
x
(U.S. Const., 8th and 14th Amends.; Cal. Const., art. I, secs. 1, 7, 13, 15, 16, 17,
24,27; Darden v. Wainwright (1986) 477 U.S. 168, 181 [due process violation
from prosecutorial misconduct]; Caldwell v. Mississippi (1985) 472 U.S. 320, 328-
334, 337-341 [reliable penalty determination]; Abdul-Kabir v. Quarterman (2007)
__US.__, 127 S.Ct. 1654 [Eighth Amendmentreliable penalty determination
violation from combination of instructional error and prosecutor’s improper
argument].)
“A prosecutoris held to a standard higher than that imposed on other
attorneys because of the unique function he or she performs in representing the
interests, and in exercising the sovereign power,of the state.” (People v. Hill
(1998) 17 Cal.4th 800, 819.) Under the federal Constitution, prosecutorial
argument “worthy of condemnation”violates the Constitution if it “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.”
(Ibid., citing Darden, supra, 477 U.S. at p. 181.)
A prosecutor commits misconduct when he misstates the law. (Peoplev.
Morales (2001) 25 Cal.4th 34, 43; Hill, supra, at p. 829.) Thisis particularly true
wherethe argumenterroneously absolves the prosecution ofits obligation to
overcome its burdens of proof. (People v. Marshall (1996) 13 Cal.4th 799, 831.)
For example, in Hill, the prosecutor committed misconduct -- for which this Court
reversed a capital guilt phase verdict — when she misstated the way in which the
jury should consider circumstantial evidence, misstated an element of robbery, and
179
shifted the burden ofproof to the defendant by arguing, “There has to be some
evidence on whichto base a doubt.” (Hill at pp. 829-830.)
Here, the prosecutor made two key misstatements of law.
First, as the trial court observed, the prosecutor’s list of aggravating crimes
of force and violence included molestation of Tommy McDowell — which was not
an aggravator. Indeed,the trial court had already expressly held that there was
insufficient evidence to include it as an aggravator. (42 RT 6198.) By including
this in his list of aggravating crimes, the prosecutor unfairly imputedto the state
more aggravation evidence than waslegally admitted at trial. This relieved the
state ofits “burdens ofproof” in this penalty trial.
Second, the prosecutor completely oversimplified and mangled capital
sentencing law. The prosecutortold the jury that after someone had been found
guilty of first degree murder with special circumstances, if he “has no history of
criminality at all, period, not one day, the minimum sentencethat he receivesis
life without parole.” (43 RT 6252.) Then, after the trial court overruled the
defense objection that this misstated the law, the prosecutor drew the conclusion
from this that the jurors should therefore concentrate on, and punish, Mr.
McDowell for the aggravating crimes. (43 RT 6253 [“Therefore, you have to
consider whatis the punishmentfor the aggravating criminal conduct]; 43 RT
6289 [“Whatis the punishmentfor the rape of Patty Huber? That is for you to
decide”); 43 RT 6295 [“‘And whatis the punishment for Mr. McDowell’s conduct
180
u
s
C
N
g
F
h
FE
,
E
T
N
#
8
v
s
‘
a
oe
a
a
e
|
X
,
&@
s
i
f
t
3
«
j
in relation to Patty Huber?’’]; 43 RT 6307 [regarding the attempted murder of
Theodore Sum, “What is the punishment for that crime?”’].)
The prosecutor’s argument misstated the law significantly in ways that
reduced the state’s burden in this penalty trial. The prosecutor was correct in
concluding that, once the first-degree-murder conviction with special
circumstances was returned, the minimum sentence that could be imposed was
LWOPP. However, the prosecutor’s formula for calculating penalty represented
utter contortion of capital sentencing law.
First, that the prosecutor offered any formulaatall (here: conviction + need
to punishmentfor other bad acts = death penalty) discounted the moral evaluation
of all the evidence, and instead improperly suggested that the jury’s task simply
involved a scorecard. Relatedly, the prosecutor’s argument incorrectly implied
that past criminal conduct wasthecritical factor in determining whether someone
waseligible for death sentencing or not.
Second, his argumentincorrectly implied that “factor (b)’ evidence — in
essence, prior criminal activity involving force or violence or threats of it — was
necessarily aggravating. That is incorrect: it may actually be aggravating, or
mitigating. (People v. Gallego (1990) 52 Cal.3d 115, 208, fn. 1 (conc. opinion of
Mosk,J.).)
Third, his argument urged the jury to focus on factor (b) aggravation
evidence essentially to the exclusion of everything else, and also implied to the
181
jury that it was their job not only to sentence Mr. McDowell for Paula Rodriguez’s
murder, but also to mete out punishment for the other crimes as well.
A prosecutor also commits misconduct when he arguesfacts or inferences
not based on the evidence presented. (People v. Valencia (2008) 43 Cal.4th 268,
284; People v. Hill at pp. 823, 827; Darden v. Wainwright, supra, 477 U.S.at p.
181 [prosecutor commits misconduct when he manipulates or misstates the
evidence].) These statements “tend to make the prosecutor his own witness —
offering unsworn testimony not subject to cross-examination.” (Hill at p. 823;
citations omitted.) Moreover, although these statements are “worthless as a matter
of law,” they can be “dynamite to the jury because of the special regard the jury
has for the prosecutor, thereby effectively circumventing the rules of evidence.”
(Ibid.; citations omitted.)
Here, the prosecutor committed misconduct when he becamehis own
psychiatric expert witness. He defined “sociopath” for the jury in terms that were
technical and diagnostic: from “anti-social personality behavior”that “violates the
rights of others,” to “a disease against society.” (43 RT 6282, 6283.) But there
wasno psychiatrist whotestified about this diagnosis, or who usedthis
terminology. The prosecutor was apparently free to use whatever terms he wanted
to describe the 1970 written diagnosis of one doctor, unimpeded by the
impropriety ofthat diagnosis, made when Mr. McDowell was younger than 18
years old. The prosecutor simply made up expert testimony, and argued it himself
to the jury.
182
r
s
F
e
r
e
g
e
F
a
g
F
t
F
p
F
E
r
t
e
e
s
e
r
e
r
e
g
s
F
S
e
t
F
g
F
T
O
E
i
i
J}
e
a
e
td
6
.
@
s
r
t
1
§
e
d
g
s
*
1
é
i
Along with the due process violations set forth above, the prosecutor’s
three instances of misconduct interfered with the jury’s ability fully to consider
Mr. McDowell’s mitigation evidence, in violation of the Eighth Amendment. (See
Caldwell v. Mississippi, supra, 472 U.S. 320 [prosecutor’s comments that led jury
to believe that an appellate court could mitigate the jury’s death sentence violated
the Eighth Amendment].) Indeed, the United States Supreme Court last term
resoundingly affirmedthis “[{l]ong recognized” requirement whenit reversed, in
three separate opinions, three death judgments: Brewer v. Quraterman (2007)
—_US.___, 1278.Ct. 1706, 1709; Abdul-Kabir v. Quarterman (2007) __—iULS.
__, 127 S.Ct. 1654; and Smith v. Texas (Smith I) (2007)= —s-U.S.127
S.Ct.1686. The underlying Eighth Amendmentclaim in each case wasthat, as a
result of the prosecution’s argument and/orthetrial court’s instructions, the jury
could not give “meaningful” effect to the defendant’s mitigation evidence. The
Supreme Court reversed in each for these Penry J errors — because, as the Court
reaffirmed in Brewer:
[A] sentencing jury mustbe able to give a reasoned moral response to
a defendant’s mitigating evidence — particularly that evidence which
tends to diminish his culpability — when deciding whether to sentence
him to death.
(Brewer, 127 S.Ct. at p. 1709; internal quotations omitted.) Wheretrial errors
preclude the sentencing jury from being able to give a “reasoned moral response”
183
to the mitigation evidence the defense has provided, the death sentence must be
reversed. (Id. at p. 1710; see also California v. Brown (1987) 479 U.S. 538, 545
[“‘the sentence imposedat the penalty stage should reflect a reasoned moral
response to the defendant’s background, character and crime” (conc. opinion of
O’Connor, J.; emphasis in original).|
Thus, when a prosecutor’s actions are so egregiousthat they effectively
“foreclose the jury’s consideration of . . . mitigation evidence,” the jury is unable
to make a fair, individualized determination as warranted by the evidence and as
required by the law. (Buchanan v. Angelone (1998) 522 U.S. 267,277.) Asa
result, such actions violate the Eighth Amendment, becausethey “constrain the
manner in whichthe jury [is] able to give effect” to meaningful evidence. (Ibid.)
That is what occurred here. Mr. McDowell’s jury could not give a
reasoned moral responseto the mitigation evidence that was supplied. The
prosecutor’s misstatements of the law andfacts effectively foreclosed the jury’s
consideration ofMr. McDowell’s mitigation evidence. After successfully
objecting to introduction of expert testimony about Mr. McDowell’s childhood,
the prosecutor denigrated Mr. McDowell’s mitigation evidence, reducingit to a
single statement: evidence of “a bad childhood”is insufficient to warrant a vote
for life. (43 RT 6309.) Then the prosecutor misstated the law andthe facts in the
waysset forth above, which lessened the state’s burden ofproducing aggravation
evidence: (1) the prosecutor’s “expert” conclusions about what“sociopath”
meant; (2) the prosecutor’s erroneousinclusion ofa sibling molestation in the list
184
o
R
r
e
g
t
F
U
g
t
r
l
,
a
4
nd
@
s
S
@
a
a
0
%
a
t
t
«
4
6
of aggravating prior crimes; and (3) the prosecutor’s erroneous arguments about
how the jurors should look at — and punish Mr. McDowell for — those prior crimes.
In sum, the prosecutor’s misstatements precluded the jurors from giving a
reasoned moral response to the mitigation evidence, because the prosecutor’s
argument misled the jury as to the role of aggravation evidence in making a
sentencing decision, and by impermissibly inflating the aggravation evidence.
C. The prejudicial misconduct requires reversal.
A prosecutor’s misconduct violates the Fourteenth Amendmentto the
federal Constitution whenit “infects the trial with such unfairness as to make the
conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44;
accord Wainwright, supra, 477 U.S. 168, 181.) In other words, the misconduct
must be “of sufficient significance to result in the denial of the defendant’s right to
a fair trial.” (United States v. Agurs (1976) 427 U.S. 97, 108; People v. Harrison
(2005) 35 Cal.4th 208, 242.) Under California law, a prosecutor commits
reversible misconduct if he uses deceptive or reprehensible methods when
attempting to persuade the jury, and whenit is reasonably probable that without
such misconduct, an outcome more favorable would have occurred. (Peoplev.
Rundle (2008) 43 Cal.4th 76, 157; quotation and citation omitted.)°°
**There is no requirementthat the bad behavior be intentional. (Peoplev.
Hill, supra, 17 Cal.4th 800, 822.)
185
The prosecutor’s misconduct here wasprejudicial under either standards. It
wassignificant enough to deny Mr. McDowell fairtrial. It was also deceptive
and reprehensible, and it is reasonably probable that without such misconduct, an
outcome more favorable would have occurred.
That the prosecutor used deceptive and reprehensible means to persuade the
jury is clear. As set forth above, the prosecutor made none of these improper
argumentsin thefirst retrial. That trial ended with a hung jury and mistrial. In his
second time aroundin theretrial process, the prosecutor pushed the closing
argument envelope, treading closer to — and ultimately over — the line of
permissible conduct. Abusing the process in his secondbite at the apple is
reprehensible, indeed.
Asfor measuring the prejudice, this Court once again has beforeit the
record ofthe first retrial to compare to the record of the second retrial. Where the
prosecutor did mot commit this misconduct — in thefirst retrial -- the result was a
hung jury and mistrial. Where the prosecutor did commit this misconduct — here,
in the secondretrial — the result was a death verdict. This circumstanceitself
should sufficiently demonstrate the prejudice from the prosecutor’s misconduct.
However,as set forth at length above in Argument4. section C., this case also
presents virtually every hallmark of the kind of “close case” where courts
recognize that errors result in prejudice.
For example, this Court and the Courts of Appeal logically recognize that a
prior hungjury itself is indisputable evidence of a close case. (See, e.g., People v.
186
r
e
a
>
w
a
g
3
e
r
r
e
4
e
t
F
g
F
S
T
y
F
s
we
.
g
s
>
t£
3
s
a
s
6
i
&
j
a
?
f
€
B
a
t
.
3
é
Rivera (1985) 41 Cal.3d 388, 393, fn. 3 and 395; People v. Taylor (1986) 180
Cal.App.3d 622, 634; People v. Thomas (1981) 119 Cal.App.3d 960, 966.)
This Court also recognizes that jurors’ requests for readback and further
instruction indicate a close case, and recognizesthe relative prejudice from errors
that have occurredin the trial. (People v. Gay, supra , 42 Cal.4th at pp. 1223-
1227; People v. Hernandez (1988) 47 Cal.3d 315, 352) Here, the jury asked for
readback of the testimony of two of Mr. McDowell’s siblings, and asked for
further instruction on the meaning of Tommy McDowell’s second degree rape
conviction. (11 CT 3000A, 3002A.) Its focus on Mr. McDowell’s family andits
criminal history strongly suggests the jury was considering the effects of his
upbringing. (See, Gay at p. 1227 [jurors’ request of readback of eyewitness and
expert testimonyrelated to circumstances of murder was an indicia of jurors’
focus on defendant’s role in murder].)
And even with the granted requests for readback, Mr. McDowell’s jury
only deliberated for what amountedto a total of two days. (11 CT 2999-3000,
3001-3002, 3003-3004, 3028, 3030-3031.) In comparison, the jury in the first
retrial, deliberated on August 16, 17, 18, 19, 20, 25 and 26, 1999, and ultimately
retumed a hung verdict. (2 CT 377-381B, 383-385, 386-387; 5 CT 1555-1556.)
When a jury deliberates for a very short time, it is possible that the short
deliberation may have been the product of the error ~— and thus indicatesits
prejudice. (See, e.g., People v. Barnes (1997) 57 Cal.App.4th 552, 557, fn. 3; see
also People v. Gay, supra, 42 Cal.4th at p. 1226 [“It is discomforting, though,that,
187
following this inadequate reinstruction, the jury reached a verdict the very next
moring”].)
With all of these indices of prejudice, the state cannot credibly argue that
the prosecutor’s misconduct was harmless. The prosecutor’s misconduct requires
reversal of the penalty conviction.
7. Mr. McDowell wasdenied his state and federal constitutional rights
by the trial court’s extensive jury instructions — over explicit defense
objection — regarding prior unadjudicated acts of violence.
During jury instruction discussionsin the first retrial, trial counsel
expressly objected that the trial court should not instruct the jury with the laundry
list of criminal elements associated with Mr. McDowell’s prior criminalactivity —
aggravating factors under Penal Code section 190.3, and enumerated in CALJIC
No. 8.85. (32 RT 4517-4518.) These included instructions regarding the 1977
sodomyandoral copulation of four-year-old Curtis Milton and the 1987 rape,
sodomy, and oral copulation of Patricia Huber. (1 CT 20-21 [state’s filed list of
aggravating circumstances]; 6 CT 1542-1543 [jury instructions].)
Thetrial court nonetheless gave the instructions. (32 RT 4519; 6 CT 1542-
1543.) Thetrial court explained that it was overruling Mr. McDowell’s objection
because “the People’s [statutory] limitations of three factors in aggravation is
what’s unfair, [so] I think that’s what they can hammer.” (31 RT 4518.)
188
C
e
e
e
w
s
o
R
‘
2
&
e
®
e
a
d
a
6
a
i
f
@
a
e
e
a
o
t
43
In the secondretrial, trial counsel renewed Mr. McDowell’s objections. (36
RT 5208-5210; 42 RT 6198.) Over objection, the trial court once again instructed
on all the elements of the prior criminalactivity, as well as instructing about
motive andflight after crime, which the prosecutor maintained were relevant to
this crimes. (11 CT 3013, 3016-3017.)
As set forth below, the trial court’s instructions violated Mr. McDowell’s
Sixth Amendmentright to effective assistance of counsel, Fifth and Fourteenth
Amendmentrights to due process, and Eighth Amendmentrightto a reliable
penalty phase determination, as well as to the analogous provisions of the
California Constitution. (U.S. Const., Amends. 5, 6, 8 & 14; Cal. Const., art. I,
secs. 1, 7, 13, 15, 16, 17, 24, 27.) The prejudicial error requires reversal.
A. The relevantfacts below.
During jury instruction discussion in the first retrial, the prosecutor
indicated he would be requesting instructions regarding motive and flight — which,
according to the prosecutor, were relevant to the prior unadjudicated violent
incident involving Patricia Huber Rumpler. (32 RT 4500-4502.)
Trial counsel stated that because the defense wasnot challenging
commission ofthe prior crimes, there was no needto instruct on motive andflight,
nor on theelements ofthe crimes. (32 RT 4505.) Trial counsel stated that it was
his tactical intent not to “overload jury with what I consider unnecessary
instructions.” (Ibid.) Indeed, trial counsel stated he waswillingto stipulate as to
189
the prior violent crimes in order to avoid that instruction. (32 RT 4506.) Trial
counsel reiterated that, when it cameto the prior crimes, the defense was even
willing to “concede force or fear” as to all of the crimes, and would only be
unwilling to concede the “serious injury” component of the Curtis Milton incident
— which wasnoteven relevant to the elements of that crime, but was only relevant
to the jury’s determination of the seriousness of the offense. (32 RT 4510.) The
prosecutor nonetheless requested that the trial court instruct regardingall the
elements ofthe all crimes. (32 RT 4511.)
Trial counsel again expressly objected:
Notonly do I think it’s as a matter ofpolicy not a good idea to give
[the instructions], I’m going to object to giving them in light of the
fact that I’ve indicated there’s going to be noissueraised as to the
commission of those offenses, and I think nevertheless giving those
instructions now unfairly emphasizes those incidents.
(32 RT 4517-4518.) Trial counsel concluded that “it becomes unfair” to the
defense to instruct in this manner. (32 RT 4518.)
Consistent with its attitude in so many other rulings against Mr. McDowell,
the trial court respondedthat the circumstances were unfair — but, to the state, not
to the defendant facing the death penalty. (32 RT 4518) Accordingto the trial
court:
190
=
r
-
r
e
y
s
F
e
g
s
F
F
A
G
FS
C
O
r
y
O
s
U
l
g
s
e
G
F
S
U
e
,
OC
F
r
s
e
i
2
R
a
®
a
e
s
e
t
w
i
@
s
t
e
t
a
0
a
e
@
a
t
®
of
é
I think that the People’s limitations of three factors in aggravation is
what’s unfair, and since they are limited to those, I think that’s what
they can hammer. That is what we’ve got. They don’t have anything
else but those threefactors, which as I said before, I think is an unfair
limitation.
(32 RT 4518; emphasis added.) Thetrial court did not stop there:
It’s very impressive to me to see a defendant in court whois
constantly committing crimes the moment he’s out of prison, does
it again, gets caught again, back in jail, back in prison, his entire
life is this. It’s an indication that the only thing we can dois stop
itpermanently.
That to me is a very aggravatingfactor andit’s not one that
the jury can consider.
(32 RT 4518-4519; emphasis added.) The trial court continued:
Andespecially if they’re egregious offenses where there’s
a personal injury involved, rape or robbery, which is traumatic, or
certainly murder, the jury should haveall of that in hand, but they
don’t. So I] think it’s fair.
(32 RT 4519.) Thetrial court concluded that it would give the instructions
over the defense objection. (Ibid.)
Thetrial court instructed the jury at length with the elements of sodomy
and of rape, and with instructions the trial court saw as related to these incidents —
motive and flight. (6 CT 1538, 1542-1543.)
191
a
In the secondretrial, trial counsel renewed Mr. McDowell’s objections. (36
RT 5208-5210; 42 RT 6198.) Over objection, the trial court once again instructed
on all the elements ofthe prior criminal activity, as well as regarding motive and
flight, and concurrenceofact and intent (11 CT 3012, 3013, 3016-3017):
e
y
Motive is not an element of a crime and need not be shown.
However, you may consider motive or lack of motive as a circumstance
in this case. Presence of motive may tend to establish the defendantis
guilty. Absence of motive may tend to show the defendantis not guilty.
r
e
g
|
S
The flight of a person immediately after the commission of a crime,
or after he is accused of a crime, is not sufficient in itself to establish his
guilt, but is a fact which, if proved, may be considered by youin the light
of all other proved facts in deciding whether a defendantis guilty or not
guilty. The weight to which this circumstanceis entitled is a matter for you
to decide.
(11 CT 3012.)
In the crimes of Sodomy and Rape, there must exist a union or
joint operation of act or conduct and general criminal intent. General
intent does not require an intent to violate the law. When a person
intentionally does that which the law declares to be a crime,he is
acting with general criminal intent, even though he may not know
that his act or conduct is unlawful.
(11 CT 3013.)
After instructing that the prosecution was required to provethe prior
r
e
g
r
e
re
ry
r
o
r
ee
gs
unadjudicated criminal acts beyond a reasonable doubt, thetrial court instructed
with the elements of sodomy and rape:
192
4
@
@
s
G&G
4d
6t
»
a
a
*
®
e
a
t
i
x
&
i
6
3
f
a
s
t
2
6
«
.
Every person whoparticipates in an act of sodomy when the
act is accomplished against the victim’s will by means offorce, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the
alleged victim,is guilty of the crime of unlawful Sodomy.
“Sodomy”is sexual conduct consisting of contact between the
penis of one person and the anus of another person. Any sexual
penetration, no matter howslight, is sufficient to complete the crime
of sodomy. Proof of ejaculation is not required. “Against the will”
means without the consentofthe alleged victim.
In order to prove this crime, each of the following elements must
be proved:
1. A person participated in an act of sodomywith an alleged
victim; and
2. The act was accomplished against the alleged victim’s will
by meansof force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the alleged victim.
Every person who engagesin an act of sexual intercourse with
another person whois not the spouse of the perpetrator accomplished
against that person’s will by meansof force, violence, duress, menace,
or fear of immediate an unlawful bodily injury to that person or to
anotherperson,is guilty of the crime of Rape.
Any sexual penetration, howeverslight, constitutes engaging in
an act of sexual intercourse. Proof of ejaculation is not required.
“Against that person’s will’ means without the consentofthe
alleged victim.
“Menace” meansany threat, declaration, or act which showsan
intention to inflict the injury upon another.
“Duress” meansa direct or implied threat of force, violence,
danger, or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to perform an act which she would not
otherwise have performed, or acquiesce in an act to which she
otherwise would not have submitted. The total circumstances, including
the age of the alleged victim, and his or her relationship to the defendant,
are factors to consider in appraising the existence of the duress.
The fear of immediate and unlawful injury must be actual and
reasonable under the circumstances.
In order to prove this crime, each of the following elements must
be proved:
1. A male and female engaged in an act of sexual intercourse;
2. The two persons were not married to each otherat the time of
the act of sexual intercourse;
193
3. The act of intercourse was againstthe will of the alleged victim;
4. The act was accomplished by meansof force, violence, duress,
menace, or fear of immediate and unlawful bodily injury to the alleged
victim or to another person.
(CT 3016-3017.)
B. The trial court’s voluminous instructions to thejury regarding prior
unadjudicated acts ofviolence violated this Court’s holdings and
Mr. McDowell’s state andfederal constitutionalrights.
This Court has consistently held that trial courts have no sua sponte duty to
instruct on the elements of crimes presented as aggravators under section 190.3,
subdivision (b). (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1175;
People v. Osband (1996) 13 Cal.4th 622, 704; People v. Cain (1995) 10 Cal.4th 1,
72; People v. Davenport (1985) 41 Cal.3d 247, 281-282.) This rule is grounded in
this Court’s just-as-consistent recognition that:
as a tactical matter, the defendant may not want the penalty phase
instructions overloaded with a series of lengthy instructions on the
elements of alleged other crimes because he may fear that such
instructions could lead the jury to place undue emphasis on the crimes
rather than on the central question of whether he should live or die.
(People v. Davenport, supra, 41 Cal.3d at p. 281; accord People v. Barnett, supra,
17 Cal.4th at p. 1175; People v. Cain, supra, 10 Cal.4th at p. 72.)
Thus, this Court has expressly recognized precisely the concern thattrial
counsel raised here whenhe objected that the trial court should not give these
194
;3
a
e
n
e
e
e
ee
e
"
3
3
g
g
§
F
»
5
7
3
9
4
i
J
8
s
a
n
i
6
{
§
&
£
a
*
4
@
5
4
8
1
instructions. In response,the trial court ran roughshod overtrial counsel’s
concern, overtrial counsel’s expressed tactical decision, and overtrial counsel’s
emphatic objection on his client’s behalf. In doing so, thetrial court ran
roughshod over Mr. McDowell’s right to the effective assistance of counsel, in
violation of the Sixth Amendment. (U.S. Const., Amend.6.)
To be sure, this Court has “also noted that a trial court is not prohibited
from giving such instructions on its own motion whenthey are ‘vital to a proper
299consideration of the evidence.’” (People v. Cain, supra, at p. 72; emphasis in
original; quoting People v. Davenport, supra, at p. 282 [trial court not prohibited
from instructing on the elements of other crimes offered as aggravating factors
whereeither the defendant or the prosecution request such instruction, or the court
itself deems them necessary].) But that is not this case. For example, in Peoplev.
Phillips (1985) 41 Cal.3d 29 — the case in which this Court originally recognized
the salience of the tactical decision about whetheror not to request instruction on
the elements of prior crimes-- the state had introduced evidencethat ran a field of
simply proving the elements of the prior crime. (Id.) One of this Court’s remedies
for parsing out proper consideration of aggravation evidence was a suggestion that
trial courts could instruct on the elements of the crimes. (Id. at p. 71, fn. 25.)
Mr. McDowell’s case stands in stark contrast. Here, the defense was not
challenging what evidence about the prior crimes was relevant as aggravation, nor
195
even whetherthe prior crimes had occurred. In fact, trial counsel expressly offered
to stipulate that the prior crimes had occurred.”’
In short, there was absolutely no valid reason for the trial court to instruct
the jury with the laundry list of elements and related instructions about these prior
crimesset forth at such length above. Indeed,this is a textbook example ofthe
very circumstance this Court recognized as a real concern for capital defendants:
wheretheir jury would be “overloaded with a series of lengthy instructions on the
elements of alleged other crimes” which a defendant could reasonably fear would
“lead the jury to place undue emphasis on the crimesrather than on the central
question of whether he should live or die.” (People v. Davenport, supra, 41
Cal.3d at p. 281; accord People v. Barnett, supra, 17 Cal.4th at p. 1175; People v.
Cain, supra, 10 Cal.4th at p. 72.)
Thus, the circumstances themselves makeclearthat the trial court erred
whenit gave these instructions over defense objection. Because this case did not
involve any kind ofsituation in which the instructions would have been “vital to a
proper consideration of the evidence,” the trial court should have abided by Mr.
McDowell’s request not to give them. (People v. Cain, supra, at p. 72.)
This Court and the United States Supreme Court have recognizedin a
numberofsituations that a defendant may stipulate to prior convictions to avoid
having the jury hear evidence and receive instruction upon the alleged prior
conviction. (See, e.g., People v. Bouzas (1991) 53 Cal.3d 467; People v. Kipp
(1998) 18 Cal.4th 349; see also Old Chiefv. United States (1997) 519 U.S. 172.)
Though thatis not precisely the issue here (because, for instance, it is not apparent
that the prosecution would have agreed to any stipulation) these cases nevertheless
recognize whatis at issue here: a defendant’s tactical decision about how to
addressinstruction regarding prior bad acts, given the way jurors focus upon them.
196
C
e
e
e
O
ee
e
e
e
e
e
e
e
e
e
&
3
j
Z
e
e
e
2
6
«
B
i
t
}
ee
a
e
e
Whatis also clear, unfortunately, is the stark injustice expressed in thetrial
court’s own statements in support of its ruling, and therefore another clear
dimensionoferror in the trial court’s ruling. Thetrial court did find the
instructions vital — to bolster the prosecution’s case sufficiently so that the jury
would return a death verdict. As set forth below,there is really no other rational
wayto interpret thetrial court’s improvident remarks.”*
First, the trial court’s statements reflect an improperly activist response to
California’s statutory death penalty scheme, whichthetrial court viewed as
skewed against the prosecution:
I think that the People’s limitations ofthreefactors in aggravationis
what’s unfair, and since theyare limited to those, I think that’s what
they can hammer. That is what we’ve got. They don’t have anything
else but those three factors, which as I said before, I think is an unfair
limitation.
* OF OK Ok OF
**By this point, there can be no doubt: the trial court loathed Mr.
McDowell. As set forth throughout Appellant’s Opening Brief, the trial court’s
rulings and on-the-record statements reflect an animosity toward Mr. McDowell
from the beginning that increased right through to the end of the proceedings. By
the timethe trial court rejected Mr. McDowell’s motion to modify the death
sentence, the trial court concluded that, of all the defendants the court had seen in
death and non-death cases, “I find Mr. McDowell to be one ofthe most vicious
and violent individuals that I’ve encountered.” (44 RT 6460.) And, though the
state had not introduced any evidence that Mr. McDowell enjoyed committing the
crimes,the trial court bizarrely stated, “To enjoy the cruelty that he imposes on
others is amazing to me,” and “I’m amazed at Mr. McDowell’s enjoyment of
inflicting torture on other human beings” (whichthetrial court concluded, “I don’t
see justified in his history”). (bid.)
197
And especially if they’re egregious offenses where there’s
a personal injury involved, rape or robbery, which is traumatic, or
certainly murder, the jury should haveall ofthat in hand, but they
don’t. So I think it’s fair [to give the instructions].
(32 RT 4518-4519; emphasis added.) In short, the trial court viewedthe statutory
schemeas stacked against the state. And in response,the trial court dealt the state
an extra card, by instructing on the elements of the prior crimes over express and
repeated defense objection.
Second,the trial court’s statements reflect that its decision to give these
instructions was motivatedbya belief that, if the jury could just hear everything
that the trial court thought wasfair to the state, the jury would return a verdict of
death:
It’s very impressive to me to see a defendant in court whois
constantly committing crimes the momenthe’s out ofprison, does
it again, gets caught again, back in jail, back in prison, his entire
life is this. Jt’s an indication that the only thing we can dois stop
itpermanently.
That to me is a very aggravatingfactor and it’s not one that
the jury can consider.
(32 RT 4518-4519; emphasis added.)
This was a penalty phaseretrial, where the only issue was whether Mr.
McDowell would be sentencedto life in prison without the possibility of parole, or
whether he would be sentenced to death. The issue was not whether the jury
would set Mr. McDowell free and back out on the street. Thus, there is only one
198
7
e
s
=
s
s
o
e
ee
e
a
P
e
e
e
ee e
e
O
e
on
o
e
|
j
J’
B
a
a
d
t
5
4
j
@#
@
a
*
®
8
&£
i
t
3
wayto interpret the trial court’s statement about the need to permanently stop a
repeat offender: by execution. Thetrial court’s stated frustration with the
restrictions of California’s statutory aggravatorsreflects that the trial court was
afraid that the jury would not hear enough aggravating evidence to sentence Mr.
McDowell to death.
Finally, the trial court’s repeated choice of the pronoun “we”is extremely
problematic. Thetrial court stated, “That is what we ‘ve got” when describing prior
bad act evidence, and similarly stated, “It’s an indication that the only thing we
can do is stop [recidivism] permanently.” (32 RT 4518; emphasis added.) The
trial court’s repeated use of the word “we” when expressingits frustration over
recidivism andstatutorily-limited aggravation evidence unfortunately reflects the
plural nature of the adversaries Mr. McDowell faced in the courtroom: the
prosecutor, andthe trial court.
Thus,it is clear from the circumstancesofthis case, and from thetrial
court’s statementsin support ofits rulings, that giving these instructions waserror.
Asset forth above, this error violated Mr. McDowell’s Sixth Amendmentright to
the effective assistance of counsel. This error also violated Mr. McDowell’s
Eighth Amendmentrights to individualized sentencing based on a jury’s weighing
of “the mix of mitigating and aggravating factors.” (Sochor v. Florida (1992) 504
U.S. 527, 532, quoting Clemons v. Mississippi (1990) 494 U.S. 738, 752; U.S.
Const., Amends. 8 & 14.) Thetrial court’s improper focus in these instructions on
this aggravation evidence impermissibly interfered with the jury’s weighing ofthis
199
mix. Moreover, the Fifth, Eighth and Fourteenth Amendments require that the
sentencing determination be reliable. (Woodson v. North Carolina (1976) 428
US. 280, 305: U.S. Const., Amends. 5, 8 & 14.) Becausethetrial court’s
instruction improperly focused the jury’s attention on this laundry list of prior
crimes, the sentencing phase wasnotreliable, and was therefore violative of these
amendments.
Giving these instructions also violated, in a number of other ways, Mr.
McDowell’s Fifth and Fourteenth Amendmentrights to due process. Trial errors
violate federal due process guarantees whenthoseerrors arbitrarily violate a
state’s own rules. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346; see also People
v. Sutton (1993) 19 Cal.4th 795, 804.) For example, this Court held in People v.
Marshall (1996) 13 Cal.4th 799, 850-851, that the failure to instruct on an element
of a special circumstanceis a violation of state law which implicates a defendant’s
federal due process rights under Hicks. Similarly, the trial court’s improper
instruction here violated the California statutory scheme — which emphatically
does not place emphasis on any particular aggravating factor. Asthetrial court’s
own expressly-stated reasons for giving these voluminousinstructions clearly
indicate, however, giving these instructions allowed the state to “hammer”the
prior unchargedincidents as aggravators. (32 RT 4518.)
Federal constitutional due process also requires balanced instructions that
do not unduly favor the prosecution. (Wardius v. Oregon (1973) 412 U.S. 470,
473, fn. 6 [state rules which give unfair advantage to the prosecution violate the
200
i
e
e
e
a
r
e
o
e
e
t
4
6
4
6
&
4
6
1
é
,
s
p
e
d
6
.
«
B
i
r
t
J
e
a
e
3
j
s
O&O
8
&
“balance”that is required under the Due Process Clause]; see also /zazagav.
Superior Court (1991) 54 Cal.3d 356, 372-377; U.S. Const., Amends. 5 & 14.)
While Wardius involved reciprocal discovery rights, the same principle should
apply to jury instructions. As this Court has long recognized, “There should be
absolute impartiality as between the People and the defendantin the matter of
instructions.” (People v. Moore (1954) 43 Cal.2d 517, 526-527; accord Reagan v.
United States (1895) 157 U.S. 301, 310.) Here — once again as evincedbythetrial
court’s own stated reasons for giving the instructions — the instructions allowed the
state to “hammer”the jury with the prior uncharged acts of violence as
aggravators.”
*Mr. McDowell acknowledgesthat trial counsel did not enumerate these
Eighth and Fourteenth Amendmentviolations when he objected to the trial court
giving these instructions, and Mr. McDowell anticipates that respondent thus will
makeits “oft-repeated” waiver argument. (People v. Smith (1992) 9 Cal.App.4th
196, 207, fn. 20.)
Of course, this Court should reject that argument. This Court correctly
recognizes that instructional error is subject to review even where not objected to
below,at all. (See, e.g., People v. Slaughter (2002) 27 Cal.4th 1187, 1199-2001
[failure to object to jury instruction directing guilt phase jury to consider
defendant’s oral admission with caution did not preclude review on appeal to the
extent the instruction affected the defendant’s substantial rights].)
Here,trial counsel did object. Counsel did not needto state each particular
legal consequenceofthe alleged error. (People v. Partida (2005) 37 Cal.4th 428,
435.) This is so because:
no useful purpose is served by declining to consider on
appeal a claim that merely restates, under alternative legal
principles, a claim otherwise identical to one that was properly
preserved by a timely motion that called uponthe trial court to
consider the same facts and to apply a legal standard similar to
that which would also determine the claim raised on appeal.
201
In sum,the trial court’s decision to give these instructions over defense
objection waserror that violated Mr. McDowell’s state and federal constitutional
rights. As set forth below, that error was prejudicial and requires reversal.
C. The instructional error was prejudicial and therefore requires reversal.
Wheretrial errors implicate federal constitutional guarantees, reversal is
required unless the state can demonstrate beyond a reasonable doubtthat the error
was harmless. (Chapmanv. California (1967) 386 U.S. 18, 24; Arizona vy.
Fulminante (1991) 499 U.S. 279, 295-296.) However, even under this Court’s
standard in People v. Watson (1956) 46 Cal.2d 818, 836 — which requires reversal
only if there is a reasonable probability that, but for the error, the outcome would
have been different — reversal is required.
In evaluating most of the errors that occurred in the secondretrial, this
Court has the benefit of being able to comparethe results of the secondretrial —
(where the errors occurred) to the results offirst retrial (where mostofthe errors
did not occur). Here, however, the trial court misinstructed in both retrials. Thus,
at first blush, the analysis would seem somewhatdifferent.
However — and very significantly — what did change betweenthefirst and
the secondretrials in this very regard wasthe prosecutor’s closing argument. As
set forth above in Claim 6, the prosecutor committed misconduct in the second
(People v. Yeoman (2003) 31 Cal.4th 93, 117; accord People v. Partida, supra;
People v. Cole (2004) 33 Cal.4th-1158, 1195, fn. 6.)
202
a
n
d
o
e
e
a
e
e
k
a
e
e
S
s
3
F
S
F
8
e
'
S
F
e
F
S
U
F
CO
S
a a
o
s
e
13
€
&
«
retrial by arguing improperly during his closing. Significantly, a portion of that
error had to do with this very issue: the prosecutor’s improper argumentabout the
waythat the jury should consider the prior unadjudicated — and, therefore, as the
prosecutor argued, previously unpunished — acts of violence.
The prosecutor arguedthat if a defendant convicted offirst degree felony
murderhad noprior criminalhistory:
the absolute minimum sentence which I put downhereis life without
the possibility of parole. Ifa defendant, ifMr. McDowell, has no
history ofcriminality at all, period, not one day, the minimum sentence
that he receivesis life withoutparole. That’s the law in this state.
(43 RT 6252; emphasis added.)
The prosecutor explained to the jury that this meant, “Therefore, you have
to consider whatis the punishmentfor the aggravating criminal conduct,” (43 RT
6253) which the prosecutor enumerated as including “the sodomy of Curtis
Milton,” and “the rape and kidnapping ofPatty Huber.” (Ibid.) Throughout the
rest of his argument, the prosecutor would return again and again to this improper
theme; for example, “What is the punishment for the rape of Patty Huber? Thatis
for you to decide” (43 RT 6289); “And whatis the punishment for Mr.
McDowell’s conduct in relation to Patty Huber?” (43 RT 6295.)
“As set forth above in Argument6,trial counsel objected that this misstated
the law, and would confuse the jury. Thetrial court overruled the objection.
203
Significantly, the prosecutor did not argue this in the first retrial. (See 33
RT 4573-4619.) There the prosecutor argued, “Now, ultimately weall know what
this case is about. It’s about the death ofPaula Rodriguez asfar as the
appropriate punishment.” (33 RT 4575; emphasis added.) While the prosecutor
described the aggravating crimes in his argumentin thefirst retrial, the prosecutor
did not argue or even suggest that it was the jury’s responsibility to punish Mr.
McDowell for them. (See 33 RT 4583-4595, 4598-4599.) Instead, he argued
aboutall of them in total that “this escalating violence in relation to the victims in
this case is way above and beyond the elements of the crimeitself’ and thus death
wasan appropriate sentence. (33 RT 4582.)
Forall the reasons set forth above in Claims 3, 4, 5, and 6, this was -- by
virtually all indices recognized by reviewing courts -- a close case. There was a
prior hung jury; the secondretrial jury requested readback;the secondretrial jury
asked questions during deliberations; the secondretrial jury did not deliberate at
length. Most significantly for analysis of the effect of this error, however, is this
Court’s consistent recognition of the effect of the prosecutors’ argumentabout the
subject of the error, and “exploitation” of the error. (See, e.g., People v. Morales
(2001) 25 Cal.4th 34, 48; People v. Hannon (1977) 19 Cal.3d 588, 603; People v.
Roder (1988) 33 Cal.3d 491, 505.) The United States Supreme Court is in
agreement. For example, in Skipper v. North Carolina (1986) 476 U.S.1, the
Court reversed a death verdict after finding prejudice in the prosecutor’s focus in
204
v
s
3
3
&
i
a
>
b
&
b
e
.
F
e
p
b
i
b
a
b
a
b
a
€
B
a
t
.
4
4
&
A
closing argument uponthetrial court’s erroneous exclusion of evidence. (Id.at p.
5, fn. 1.)
Asset forth above, that is exactly what the prosecutor did in the second
retrial. This time, he played the extra card that thetrial court dealt him: he
focused in his closing argumenton asking the jurors what punishment they should
mete out to Mr. McDowell for his prior bad acts, about which the trial court had
just voluminously instructed the jury. The prejudice from this instructional error
is clear, and reversal is required.
8. Mr. McDowell was deniedhis state and federal constitutional rights
by the cumulative errors at this second penalty phaseretrial.
Asthis Court stated in People v. Hill (1998) 17 Cal.4th 800, “[A] series of
trial errors, though independently harmless, may in some circumstancesrise by
accretion to the level of reversible and prejudicial error.” (Id. at p. 844; see also
Taylor v. Kentucky (1978) 436 U.S. 478, 488 [“the cumulative effect of the
potentially damaging circumstances violated the due process guarantee of
fundamental fairness”]; U.S. Const., Amend. 14.)
However, this is far from a case where an appellant argues that small trial
errors add up to reversal. This is a case in which every single one ofthetrial
court’s errors — especially the complete exclusion of Dr. Andrews’ expert
mitigation testimony -- was prejudicial enough to warrant reversal. And this is
certainly a case where the cumulative effect of the trial court’s errors absolutely
demandsit. From beginning to end, the effect of the trial court’s errors in this
205
secondretrial was to stack the deck against Mr. McDowell, and in favor of the
prosecution. That imbalancein andofitself violates the Due Process Clause and
is prejudicial enoughto trigger reversal of the death verdict. (Wardius v. Oregon
(1973) 412 U.S. 470, 473, fn. 6 [state rules which give unfair advantage to the
prosecution violate the “balance”that is required under the Due Process Clause];
see also Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372-377; U.S. Const.,
Amends. 5 & 14.)
The state was given not one, not two, but three bites at the apple whenit
came to seeking death against Mr. McDowell. By the time of this third penalty-
phasetrial against him, the state knew Mr. McDowell’s case inside and out, and
sought to gut it. But instead ofperceiving that danger of unfairness and guarding
against it, what thetrial court repeatedly, incorrectly perceived — accordingtoits
own on-the-record statements -- was unfairness fo the prosecution. Thus,as set
forth at length above in Arguments 1 through 7, thetrial court granted prosecution
motions, denied critical defense requests, and made repeated instruction to the jury
that favored the prosecution.
Thetrial court began expressing its views aboutits perception of
unfairnesses to the prosecution whenit first denied Mr. McDowell’s motion to
preclude the state from seeking death against him. On hearing of this motion
before the first retrial, what the trial court emphatically maintained wasthat the
responsibility for the delay and untimeliness of this re-prosecution lay at the feet
ofMr. McDowell — who,accordingto the trial court, had cause the problem by
206
a
ao
e
a
*
“>
F
E
F
A
F
r
o
F
S
F
Y
F
S
F
S
F
r
g
s
F
S
G
F
s
2
&
i
é
@
s
a
&
?
ka
d’
b
d
&
a
a
n
a
4
B
i
y
e
n
i
*
ae
|
consumingtime in pursuing his (valid) claim ofinstructional error. (21 RT 2569-
2571.) Accordingto the trial court, the appropriate “remedy” to Mr. McDowell
- after the Ninth Circuit reversal was to “require the prosecution to prove all over
again” that Mr. McDowell deserved the death penalty “even 15, 17 years after the
event, after the crime.” (Ibid.) It was the prosecution, according to thetrial court,
instead ofMr. McDowellthat would experiencedifficulties after all of these years.
(21 RT 2577.)
Near the endofthefirst retrial, the trial court also began expressingits
frustration on the record with California’s death sentencing scheme. Duringfirst
retrial litigation ofhow the prosecutor would refer to Mr. McDowell’s housing
status, the trial court sympathized with the prosecutor’s plight as it granted a
defense motion to exclude evidence:
I think it should go, but it doesn’t. You’re hamstrung by threefactors that I
think are unfair. [Factors] (A), (B) and (C) don’t go to the limits ofeverything
that I think ajury canfairly consider in deciding whatpenalty is appropriate.
[Para.] But ifthey thought that a vicious killer was going to enjoy what he
viewed to be a goodlife in prisonfor the rest ofhislife, I think that would have
an impacton their choice ofpenalty. Butit isn’t under the provisions ofthe
statute, and that’s the end ofthe story.
(31 RT 4449; emphasis added.) Thetrial court reiterated its frustration during
litigation ofjury instructions. Accordingtothetrial court:
I think that the People’s limitations of three factors in aggravation is
what’s unfair, and since they are limited to those, I think that’s what
207
they can hammer. That is what we’ve got. They don’t have anything
else but those three factors, which as I said before, I think is an unfair
limitation.
(32 RT 4518; emphasis added.) Thetrial court did not stop there:
It’s very impressive to me to see a defendant in court whois
constantly committing crimes the moment he’s out of prison, does
it again, gets caught again, backin jail, back in prison, his entire
life is this. It’s an indication that the only thing we can dois stop
itpermanently.
That to me is a very aggravatingfactor and it’s not one that
thejury can consider.
(32 RT 4518-4519; emphasis added.) Thetrial court continued:
Andespecially if they’re egregious offenses where there’s
a personal injury involved, rape or robbery, which is traumatic, or
certainly murder, the jury should haveall of that in hand, but they
don’t. So I think it’s fair.
(32 RT 4519.)
Thetrial court’s frustrations over perceived unfairnesses to the prosecution
continued right into the secondretrial. In the secondretrial, after allowing the
prosecution to enlarge the scopeofits victim impact testimony — without warning
to the defense — the trial court agreed with the prosecution that it would instruct
the jurors that Paula Rodriguez’s family members werenot allowedto testify
208
e
s
r
s
F
s
¢
3
F
a
g
S
F
g
P
S
F
Y
S
s
e
e
g
t
F
e
e
E
E
O
F
D
o
e
r
s
E
t
a
h
s
8
a
€
B
s
n
s
t
«
6
e
g
©
4
8
P
E
D
EE
j
about what punishment they wanted for Mr. McDowell. When it overruled Mr.
McDowell’s objection to this mid-trial instruction, the trial court explainedtotrial
counsel that what wasat stake wasessentially unfair to the prosecution:
[Y] ou’re going to in your phase of the case goingto [sic]
offer the evidence bythe family members as muchasthey detest
a lot of what he’s done,that they don’t think he should die forit.
The balanceis not there, and the reasonforit is it’s not
admissible, and I’m going to tell them why.
(39 RT 5610; emphasis added.) And whenit precluded the defense from
introducing declarations from mitigation witnesses who haddied since the 1984
trial, the trial court again cited unfairness to the prosecution. According to the trial
court, it was “highly unfair to the prosecution [for the defense] to offer testimony
... [that] wasn’t subject to cross-examination.” (35 RT 5640.) Of course, thetrial
court had earlier refused to recognize the inherent unfairness to Mr. McDowell in
retrial after his mitigation witnesses had died.
Thus, the trial court’s own statements aboutits rulings reflect that those
rulings were madein an attempt to “rebalance”the scales in California’s carefully-
calibrated capital sentencing scheme back towardthe prosecution, and
inappropriately away from the defendant who wasontrial for the death penalty.
And, as set forth above in each argument, the effect of each of those rulings — even
withoutthe trial judge’s remarkable explanations for each — addedupto trial
completely prejudiced against Mr. McDowell. Asthetrial court itself stated at the
209
end of these proceedings, “Perhaps the rest ofyou did not expect the verdict that
camefrom thisjury, but I did.” (44 RT 6453; emphasis added.) That is because
each ofthe trial court’s challenged rulings unfairly stacked the deck against Mr.
McDowell. There can be no question as to their cumulative effect.
First, as set forth in Argument1, the trial court erroneously allowed the
prosecution to proceed against Mr. McDowell again in two penalty-phaseretrials
that took place nearly two decadesafter the crimes. During that time, critical
mitigation witnesses died. Moreover, the time lapse allowed the prosecutorto
argue in closing that the jurors needed to reach closure in this case because “It’s
too old and it needs to be resolved by the 12 of you.” (43 RT 6249.)
Then, as set forth in Argument 2, in the secondretrial, the trial court
improperly excused two prospective jurors for cause — after noticing that
(according to the trial court), “That first [retrial] jury had, I believe, six jurors that
did not really believe in the death penalty. They were neutral on the subject, and
it’s very difficult to draw people with that attitude to unanimously agreeing with
the death penalty.” (44 RT 6453.)
Asset forth in Argument 3, the prosecutor was allowed — and without
giving sufficient notice to the defense -- to admit victim impact testimony that ran
far a field of what wasrationally connected to Paula Rodriguez’s murder. And the
trial court then exacerbated the victim impact trouble by instructing the jurors that
Ms. Rodriguez’s family members were not allowedto tell the jury their opinions
about what sentence they thought Mr. McDowell should receive.
210
F
a
o
g
r
s
F
Y
F
I
F
A
F
E
F
S
e
e
oee
e
a
o
n
r
e
e
e
O
F
g
E
O
F
,
F
S
h
a
é
a
&
E
?
,
e
t
_
e
i
t
i
B
a
n
i
«
k
i
v
t
a
&
3
Asset forth in Arguments 4 and 5, the defense mitigation case was gutted
by the complete exclusion of Dr. Arlene Andrews’critical expert mitigation
testimony about Mr. McDowell’s childhood. Not only were the jurors denied the
opportunity to hear her expert opinions and conclusions,but this exclusion also
denied them the opportunity to hear other key mitigation evidence — which Dr.
Andrewstestified aboutin thefirst retrial, but that no one testified about in the
secondretrial because Dr. Andrews was excluded completely and the trial court
excluded the declarations ofdead mitigation witnesses.
Asset forth in Argument6, the prosecutor then committed misconductin
closing argument, by making prejudicial misstatements of fact and law that he had
not madein thefirst retrial. And then, as set forth in Argument 7, over express
defense tactical objection, the trial court committed instructional error that
improperly highlighted the state’s aggravation evidence.
Theresults could not be more clear. In the first retrial, where these errors
did not occur, the result was a hung jury and mistrial. In the secondretrial, the
effects of these errors acted together to deny Mr. McDowell a fair penaltytrial,
and led to the unfair death verdict against him. That verdict must be reversed.
9. California’s death penalty statute, as interpreted by this Court and
applied at Mr. McDowell’strial, violates the United States
Constitution.
Manyfeatures of this state’s capital sentencing scheme,alone or in
combination with each other, violate the United States Constitution. This Court,
211
however, has consistently reyected arguments pointing out these deficiencies. In
People v. Schmeck (2005) 37 Cal.4th 240, this Court held that what it considered
to be “routine” challenges to California’s punishment scheme are deemed “fairly
presented”for purposes of federal review “‘even when the defendant does no more
than (i) identify the claim in the context of the facts, (ii) note that we previously
have rejected the sameor similar claim in a prior decision, and(111) ask us to
reconsider thatdecision.” (1d. at pp. 303-304, citing Vasquez v. Hilllery (1986)
474 U.S. 254, 257.)
In lightof this Court’s directive in Schmeck, Mr. McDowellbriefly presents
the following challenges in order to urge reconsideration and to preserve these
claims for federal review. Individually and collectively, these constitutional
defects require that Mr. McDowell’s sentence be set aside. Should the Court
decide to reconsider any of these claims, Mr. McDowell requests the right to
present supplementalbriefing.
A. Penal Code section 190.2 is impermissibly broad.
To pass constitutional muster, a death penalty law mustprovide a
meaningful basis for distinguishing the few cases in which the death penalty is
imposed from the many cases in whichit is not. (People v. Edelbacher (1989) 47
Cal.3d 983, 1023, citing Furman v. Georgia (1972) 408 U.S. 238, 313 [conc. opn.
of White, J.]; U.S. Const., Amends. 8 & 14.) To meetthis criteria, a state must
212
3
>
o
R
F
e
C
U
e
d
6
4
-
h
e
t
a
&
€
genuinely narrow, by rational and objective criteria, the class of murdererseligible
for the death penalty. (Zant v. Stephens (1983) 462 U.S. 862, 878.)
California’s sentencing scheme does not meaningfully narrow the pool of
murderers eligible for the death penalty. The special circumstancesset forth in
Penal Code section 190.2 — now,and at the time of Mr. McDowell’s offenses — are
so numerousand so broadin definition as to encompassnearly every first-degree
murder. California’s statutory schemethusfails to identify the few cases in which
the death penalty’mnight be appropriate.
This Court routinely rejects challenges to the statute’s lack of meaningful
narrowing. (People v. Stanley (1995) 10 Cal.4th 764, 842-843.) This Court
should reconsider Stanley and strike down Penal Codesection 190.2 and the
current statutory schemeasso all-inclusive as to guarantee the arbitrary imposition
of the death penalty in violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
B. The broad application ofsection 190.3(a) violated Mr. McDowell’s
constitutionalrights.
Penal Codesection 190.3, factor (a) directs a jury to consider in
aggravation the “circumstancesof the crime.” (See CALJIC No. 8.85; 11 CT
3013-3014; 43 RT 6392-6395.) Prosecutors throughout California have argued
that juries can weigh in aggravation almost every conceivable circumstanceofthe
crimes at issue — even thosethat, from case to case, reflect starkly opposite
213
circumstances. Eually problematic is the state’s use of factor (a) to embrace facts
which coverthe entire spectrum of circumstancesinevitably present in every
homicide; for instance, facts such as the age of the victim, the age of the
defendant, the methodofthe killing, the motive ofthe killing, the time of the
killing, and the location ofthe killing. Here, the prosecutor urged that the manner
in which Mr. McDowellkilled Paula Rodriguez, which evidencedfirst degree
felony murder, was a factor in aggravation warranting a death verdict. (43 RT
6260, 6299-6301.)
This Court has never applied any limiting construction to factor(a).
(People v. Blair (2005) 36 Cal.4th 686, 748-749[“circumstance of crime” not
required to have spatial or temporal connection to crime].) As a result, the concept
of “aggravating factors” has been applied in such far-ranging and ridiculous
mannersthat almostall features of every first-degree murder can and have been
characterized by prosecutors as “aggravating.” As such, California’s capital
sentencing schemeviolates the Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution because it permits the jury to assess death upon no
basis other than that the set of circumstances surrounding the murder in question
were enoughin and of themselves — without some other, narrowing principle — to
warrant the imposition of death. (See Maynard v. Cartwright (1988) 486 U.S.
356, 363; but see Tuilaepa v. California (1994) 512 U.S. 967, 987-988 [factor(a)
survived facial challenge at time of decision].)
214
g
a
=
2
t
4
i
b
a
2
»
€ e
’
h
a
8
F
8€
i
a
e
i
d
ee
a
s
8
3
Mr. McDowell acknowledgesthat this Court has repeatedly rejected the
claim that permitting the jury to consider the “circumstancesofthe crime” within
the meaning of section 190.3 in the penalty phase results in the arbitrary and
capricious imposition of the death penalty. (People v. Kennedy (2005) 36 Cal.4th
595, 641; People v. Brown (2004) 34 Cal.4th 382, 401). Mr. McDowell urgesthis
Court to reconsider this holding.
C. California’s death penalty statute and thejury instructionsfailed to set
forth the appropriate burden ofproof.
(1) Mr. McDowell’s death sentence is unconstitutional becauseit is not
premised onfindings made beyond a reasonable doubt.
California law does not require that a reasonable doubt standard be used
during any part of the penalty phase, except as to proofof prior criminality.
(People v. Anderson (2001) 25 Cal.4th 543, 590; People v. Fairbank (1997) 16
Cal.4th 12232, 1255; see People v. Hawthorne (1992) 4 Cal.4th 43, 79 [penalty
phase determinations are moral and therefore not “susceptible to a burden-of-proof
quantification”]; CALJIC Nos. 8.86, 8.87.)
In conformity with this standard, Mr. McDowell’s jury wasnottold that it
had to find beyond a reasonable doubt that aggravating factors in this case
outweighed the mitigating factors before determining whether or not to impose a
death sentence. Neither wasthe jury instructed that proof of any of the
aggravating circumstances besides prior criminality needed to be madebythestate
beyond a reasonable doubt. Instead, the jurors were instructed with the CALJIC
215
No.8.88 concluding instruction to penalty-phases, which told them that “To return
a judgmentof death, each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead oflife without parole.” (11 CT 3020.)
This is unconstitutional, as an unbrokenstring of United States Supreme
Court cases make clear. Apprendi v. New Jersey (2000) 530 U.S. 466, 478, Ring
y. Arizona (2002) 530 U.S. 584, 604, Blakely v. Washington (2004) 542 U.S. 296,
303-305, and Cunningham vy. California (2007) __U.S.__[127 S.Ct. 856, 871]
require that any fact (other than that of a prior conviction) used to support an
increased sentence must be submitted to the finder-of-fact and proven beyond a
reasonable doubt.
Asin all death penalty prosecutions in this state, in order to vote for death,
Mr. McDowell’s jury was required to find that aggravating factors were present,
and that they were so substantial to warrant death. In other words, his jury was
charged with fact-finding that increased his sentence (death over LWOP) — but the
jury was not required to find these facts beyond a reasonable doubt. This also
meantthatthe trial court failed to instruct the jury on the general principles of law
“necessary for the jury’s understanding of the case.” (People v. Sedeno (1974) 10
Cal.3d 703, 715; see Carter v. Kentucky (1981) 450 U.S. 288, 302.)
Mr. McDowell acknowledgesthat this Court has held that imposition of the
death penalty does not constitute an “increased sentence” within the meaning of
Apprendi (People v. Anderson , supra, 25 Cal.4th at p. 589, fn. 14) and therefore
216
3
&
i
e
t
a
&
i
&
2?
&
3
&
a
e
34
§
&
3
7
8
€
1
does not require factual findings. (People v. Griffin (2004) 33 Cal.4th 536, 595.)
This Court has also rejected appellants’ arguments that Apprendi and following
cases imposea reasonable-doubt standard on California’s capital penalty phases.
(People vy. Prieto (2003) 30 Cal.4th 226, 263.) Mr. McDowell urges this Court to
reconsider its holding in Prieto so that California’s death penalty scheme will
comport with the principles ofApprendi, Ring, Blakely and Cunningham.
Along with violating the right to fair jury trial guaranteed by the Sixth
Amendment, the lack of any reasonable doubt standard in California’s capital
penalty phasesviolates the Fifth and Fourteenth Amendment’s rights to due
process, and the Eighth Amendmentright to be free from cruel and unusual
punishment. (U.S. Const., Amends. 5, 6, 8, and 14.) Mr. McDowell
acknowledgesthat this Court has rejected the argumentthat either the Due Process
Clause or the Eighth Amendmentare violated in this way. (People v. Blair (2005)
36 Cal.4th 686, 753.) Mr. McDowell requests that this Court reconsiderits
rulings.
(2) Some burden ofproofis required, or the jury should have been
instructed that there was no burden ofproof.
California state law provides that the prosecution always bears the burden
of proof in a criminal case. (Evid. Code sec. 520.) Evidence Code section 520
creates a legitimate expectation as to the way a criminal prosecution will be
decided in the state of California; Mr. McDowell is therefore constitutionally
217
entitled, under the Fourteenth Amendment, to require the prosecution to proveits
penalty phase case against him beyond a reasonable doubt. (Hicks v. Oklahoma
(1980) 447 U.S. 343, 346 [defendant has federal constitutional due process right to
procedural protections established under state law].) Accordingly, Mr.
McDowell’s jury should have been instructed that the state had the burden of
persuasion regarding the appropriateness of the death penalty. CALJIC Nos. 8.85
and 8.88, the instructions given here (11 CT 3013-3014, 3019-3020), fail to
provide the jury with the guidancethat is legally required for the administration of
the death penalty to meet federal constitutional minimal standards underthe Sixth,
Eighth and Fourteenth Amendments.
This Court has held that capital sentencing is not susceptible to burdens of
proof or persuasion because the exercise is largely moral and normative, and thus
unlike other sentencing. (People v. Lenart (2004) 32 Cal.4th 1107, 1136-1137.)
However, Mr. McDowell is entitled to jury instructions that comport with the
federal Constitution, and he thus urges this Court to reconsider its decision.
Even presumingit is permissible not to have any burden ofproofin a
capital penalty phasetrial, the trial court erred prejudicially by failing to articulate
that to the jury. (Cf. People v. Williams (1988) 44 Cal.3d 883, 960 [upholding
jury instruction that prosecution has no burden ofproof in penalty phase under
1977 death penalty law].) Absent such an instruction, there is the impermissible
possibility that a juror would vote for the death penalty based on a misallocation of
a non-existent burden ofproof.
218
s
s
g
s
pe
&
_
rn
e
s
ee
e
e
e
e
e
e
a
e
i
a
é
t
a
&
i
&
»
&
i
a
s
e
3
1
&
e
d
e
t
i
e
s
t
i
s
é
&
®
d
a
é
@
3
6
i
(3) The instructions caused the penalty determination to turn on an
impermissibly vague and ambiguous standard.
The question of whether to impose the death penalty upon Mr. McDowell
hinged upon whether the jurors were “persuadedthat the aggravating
circumstancesare so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.” (11 CT 3020.) The phrase
“so substantial” is an impermissibly broad phrase that does not channelorlimit the
sentencer’s discretion in the manner necessary to minimizethe risk of arbitrary
and capricious sentencing. Consequently, this instruction violates the Eighth and
Fourteenth Amendments, because it creates a vague and directionless standard.
(See Maynardv. Cartwright (1988) 486 U.S. 356, 362.)
This Court has held that the use of this phrase does not render the
instruction constitutionally deficient. (People v. Breaux (1991) 1 Cal.4th 281,
316, fn. 14.) Mr. McDowell urges this Court to reconsider that opinion.
D. The instructionsfailed to inform thejury that the central determination
is whether death is the appropriatepunishment.
The ultimate question in the penalty phase of a capital case is whether death
is the appropriate penalty. (Woodson v. North Carolina (1976) 428 U.S. 280,
305.) Yet, CALJIC No. 8.88 does not makethis clear to jurors; rather, it instructs
them that they can return a death verdict if the aggravating evidence “warrants”
219
death rather than life without parole. (11 CT 3020.) These determinationsare not
the same.
To satisfy the Eighth Amendment’s “requirement ofindividualized
sentencing in capital cases,” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307),
the punishment mustfit the offense and the offender,i.e., it must be appropriate.
(See Zant v. Stephens (1983) 462 U.S. 862, 879.) On the other hand, jurors can
find death “warranted” when theyfind the existence of a special circumstance.
(See People v. Bacigalupo (1992) 6 Cal.4th 457, 462, 464.) Byfailing to
distinguish between these two widely-diverging determinations, the jury
instructions violate the Eighth and the Fourteenth Amendments. (U.S. Const.,
Amends. 8 & 14.)
This Court has previously rejected this claim. (People v. Arias (1996) 13
Cal.4th 92, 171.) Mr. McDowell urges this Court to reconsiderthat ruling.
E. The instructionsfailed to inform thejurors that ifthey determined that
mitigation outweighed aggravation, then they were required to return
a sentence oflife without the possibility ofparole.
Penal Code section 190.3 directs a jury to impose a sentenceoflife
imprisonment without parole when the mitigating circumstances outweigh the
aggravating circumstances. (Pen. Code sec. 190.3.) This mandatory languageis
consistent with the individualized consideration of a capital defendant’s
circumstancesthat is required by the Eighth Amendment. (See Boydev.
California (1990) 494 U.S. 370, 377; U.S. Const., Amend. 8.) Yet CALJIC No.
220
a
#
|
3
£
3
e3
53
F
¥
e
g
F
S
F
S
F
S
F
Y
F
S
F
S
P
G
F
S
O
F
r
s
e
u
*
&
i
B8@
se
&
Fb
EE
a
d
e
e
r
s
t
i
&
id
8
3
5
9
t
5
@
fd
b
a
é
8.88 does not addressthis proposition, but only informsthe jury of the
circumstancesthat permit the rendition of a death verdict. By failing to conform
to the mandate of Penal Codesection 190.3, the instruction violated Mr.
McDowell’s federal constitutional right to due process of law. (Hicks v.
Oklahoma, supra, 477 U.S.at p. 346.)
This Court has held that, since the instructiontells the jury that death can be
imposed only ifit finds that the aggravation outweighs mitigation,it is
unnecessary also to instruct on the converseprinciple. (People v. Duncan (1991)
53 Cal.3d 955, 978.) Mr. McDowell submits that this holding conflicts with
numerousother cases that disapprove instructions that emphasize the
prosecution’s theory of the case while minimizing or ignoring the defense theory.
(See People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Kelly (1980) 113
Cal.App.3d 1005, 1013-1014; see also People v. Rice (1976) 59 Cal.App.3d 998,
1004 [instructions required on every aspect of the case].) The nonreciprocity also
conflicts with due processprinciples; by explaining how a death verdict may be
warranted but failing to explain how an LWOPPverdict is warranted, the balance
of forcesat trial tips in favor of the accuser and against the accused. (See Wardius
v. Oregon, supra, 412 U.S. 470, 473-474; U.S. Const., Amend. 14.)
221
F. Failure to require that thejury make written findings violated Mr.
McDowell’s right to meaningful appellate review.
Consistent with California state law (People v. Fauber (1992) 2 Cal.4th
792, 859), Mr. McDowell’s jury was not required to make any written findings
during the penalty deliberations. The failure to require written or other specific
findings from the jury during its deliberations deprived Mr. McDowellofhis fair
trial and sentencing rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments,as well as his right to meaningful appellate review to ensure that the
death penalty was notarbitrarily and capriciously imposed. (See Gregg v.
Georgia (1976) 428 U.S. 153, 195; U.S. Const., Amends. 5, 6, 8 and 14.) This
Court has rejected these contentions. (People v. Cook (2006) 39 Cal.4th 566,
619.) Mr. McDowell urges this Court to reconsider that holding.
G. The instructionsto thejury on mitigating and aggravatingfactors
violated Mr. McDowell’s constitutionalrights.
(1) The use ofrestrictive adjectives in the list ofpotential mitigating
factors
Theinclusion in the list of potential mitigating factors of such adjectives as
“extreme” and “substantial” acted as barriers to the jury’s consideration of
mitigation evidence. (Pen. Code sec. 190.3, factors (d) and (g); CALJIC No. 8.85;
11 CT 3013-3014.) The limitations from this barrier violated Mr. McDowell’s
Fifth, Sixth, Eighth and Fourteenth Amendmentrights. (Mills v. Maryland (1988)
486 U.S. 367, 384; Lockett v. Ohio (1978) 438 U.S. 586, 604; U.S. Const.,
222
c
c
an|
r
e.
F
e
F
E
O
F
e
s
F
e
F
S
FS
R
O
UU
r
U
e
U
F
CU
FF
e
F
E
C
F
?
>
&
@
a
8
a
8
8
€£
8
é
e
s
e
%
é
@
a
ot
€ %
i
&
3
a
Amends.5, 6, 8 and 14.) Mr. McDowell acknowledgesthat this Court has
rejected this very argument. (People v. Avila (2006) 38 Cal.4th 491, 514.) Mr.
McDowell urges this Court to reconsiderits holding.
(2) Thefailure to delete inapplicable sentencingfactors
Many of the sentencing factors set forth in CALJIC 8.85 were inapplicable
to Mr. McDowell’s case, including factor (e) [victim a participant in or consented
to homicide]; factor (g) [defendant acted under duress or domination of another
person]; and factor (j) [defendant was an accomplice and minorparticipant]. The
trial court failed to omit those factors from the jury instructions. (11 CT 3014.)
Thus the jurors were likely either confused, or compared Mr. McDowell
unfavorably to other theoretical defendants in other theoretical cases to whom
these factors did apply. This prevented the jurors from makinga reliable
determination of the appropriate penalty, in violation of Mr. McDowell’s Eighth
Amendmentrights. (Woodson v. North Carolina, supra, 428 U.S. 280; U.S.
Const., Amend. 8.) Mr. McDowell asks this Court to reconsiderits decision in
People v. Cook, supra, 39 Cal.4th 566, 618, and hold instead that the trial court
erred whenit failed to delete the irrelevant sentencing factors from its instructions.
223
H. The prohibition against intercase proportionality review guarantees
arbitrary and disproportionate imposition ofthe death penalty.
California’s capital sentencing schemedoesnot require that either this
Court or the trial court make any comparison betweenthis and other similar cases
regarding the relative proportionality of the sentence imposed — in other words,
intercase proportionality review. (See People v. Sapp (2003) 31 Cal.4™240, 317.)
The failure to conduct intercase proportionality review violates the Fifth, Sixth,
Eighth and Fourteenth Amendmentprohibitions against proceedings conducted in
a mannerthat is arbitrary, unreasonable, and unreviewable, and that violate equal
protection and due process principles. (U.S. Const., Amends. 5, 6, 8 and 14.) For
this reason, Mr. McDowell urges this Court to reconsiderits failure to require
intercase proportionality review in capital cases.
L California’s capital sentencing scheme violates the Equal Protection
Clause.
California’s death penalty scheme provides significantly fewer procedural
protections for persons facing a death sentence than California law provides to
persons charged with non-capital crimes. Therefore, the death penalty scheme
violates the Equal Protection Clause. (U.S. Const., Amend. 14.) To the extent
that there may be differences between capital defendants and non-capital felony
defendants, those differences justify more — not fewer — procedure protections for
capital defendants.
224
3
F
S
F
S
3
r
e
F
e
O
F
S
F
F
s
F
S
OF
S
O
UC
U
C
U
U
S
l
C
U
F
S
e
E
S
UF
)
6&
3
&
-
a
2
%
@
2
«
j
t
e
i
®
3
For example, in a non-capital case, any true finding on an enhancement
allegation must be based on a unanimousverdict found beyond a reasonable
. doubt; aggravating and mitigating sentencing factors must be established by a
preponderanceofthe evidence standard, and the sentencer must set forth written
reasonsjustifying the defendant’s sentence. (People v. Sengpadychith (2001) 26
Cal.4th 316, 325; Cal. Rules of Court, rule 4.42, subds. (b) and (e). In a capital
case, however, there is no burden of proofatall, and there is no unanimity
requirement regarding aggravating circumstances, and the jurors do not need to
provide any written findings to justify the sentence. Mr. McDowell acknowledges
that this Court has previously rejected these equal protection arguments. (People
v. Manriquez (2005) 37 Cal.4th 547, 590.) Mr. McDowell urges this Court to
reconsiderits ruling.
J. California’s use ofthe death penalty as a regularform ofpunishment
Jalls short ofinternational norms.
This Court has rejected the claim that the use of the death penalty at all —
or, alternatively, its regular use — violates international law, the Eighth and
Fourteenth Amendments, and “evolving standards of decency.” (7rop v. Dulles
(1958) 356 U.S. 86, 101.) (People v. Cook, supra, 39 Cal.4th 566, 618-619;
People v. Snow (2003) 30 Cal.4th 43, 127; People v. Ghent (1987) 43 Cal.3d 739,
778-779.)
225
In light of the international community’s overwhelmingrejection of the
death penalty as a regular form ofpunishment, and the United States Supreme
Court’s recognition of international law as supporting its holding prohibiting the
death penalty in cases where the offense was committed by a minor(see Roperv.
Simmons(2005) 543 U.S. 551, 554), Mr. McDowell urges this Court to reconsider
its previous holdings.
Conclusion
Forall the reasons set forth above, Mr. McDowell respectfully requests that
this Court reverse the penalty phase verdict of death against him.
Dated: “| | \S CX Respectfully submitted,
lew i? WI
Tamara P. Holland
Attorney for Appellant
Charles McDowell,Jr.
226
e
e
i
o
o
o
e
i
er
e
O
e
a
i
#
&
é
@
s
i
t
i
i
é
rd
b
a
a
d
&
i
«
2
9
h
i
é
a
k
i
Certificate of Word Count
People v. Charles McDowell, Jr.
California Supreme Court Case No. 8085578
J am appellate counsel for Mr. McDowell. I prepared the Appellant’s
Opening Brief using Microsoft Word. According to that program’s word count
function, the Opening Brief (excluding tables) contains 57,988 words.
DATED: 4 | 18] 08 AP Hole!
TamaraP. Holland
Attorney for Appellant
Charles McDowell, Jr.
Declaration of Service
I, the undersigned, declare as follows:
I am citizen of the United States, over the age of 18 years and not a party to the
within action; my business address is 769 Center Blvd., #132, Fairfax, CA, 94930.
On Qo, , 2008, I served a true copy of the following document:
Appellant’s Opening Brief on the following persons by placing true copies thereof in a
sealed envelope, with first class postage thereon fully prepaid, in the United States mailat
Fairfax, California, addressed as follows:
Office of the Attorney General
300 S. Spring St., 5th Floor
Los Angeles, CA 90013
(representing State of California)
CAP
ATTN: Dorothy Streutker
101 Second St., #600
San Francisco, CA 94105
(courtesy copy)
Capital Appeals Clerk
Los Angeles County Superior Court
210 W. Temple St., Room M-3
Los Angeles, CA 90012
(courtesy copy)
- Guy O’Brien
Office of the Alt. Public Defender
221 E. Walnut St., #240
Pasadena, CA 91101
(trial counsel)
Office of the District Attorney
210 W. Temple St., 18th Floor
Los Angeles, CA 90012
(courtesy copy)
Service for Charles McDowell, Jr. will be completed by utilizing the 30-day post-
filing period within whichI will hand-deliver a copy to him at San Quentin state prison.
I declare under penalty of perjury that the foregoingis true and correct. Executed
72in Fairfax, California, on ot AS , 2008.
TP HW.J
Tamara P. Holland
°
3
s
F
S
€
8
FR
’
e
s
F
e
F
S
FE
Y
F
S
F
N
OF
S
e
S
U
B
D
EA
I
OF
b>
F
a
Ok
t
hu
e
U
g
s
e
e
n
.
o
e
e
s
ne
c
o
m
e
r
e
e
e
~
c
e
E
N
.
com
:
Sr
emanate
-
e
m
-
we
.
se
e
r
a
e
e
s
S
e
v
e
e
n
reppeermenene
s
t
neuen
-
a
W
e
s
7
me
bee
-
s
e
m
e
‘
s
e
m
e
n
