Shawn Hill was convicted in 1988 in Los Angeles County Superior Court of the robbery and first degree murder of Stuart Margetts (Pen. Code, §§ 211, 187; all further statutory references are to this code unless otherwise stated), the attempted robbery and attempted second degree murder of Ronald Johnson (§§ 664/211, 664/187), and the robbery of Carrie Howard (§ 211). The jury also found true a robbery-murder special-circumstance allegation (former § 190.2, subd. (a)(17)(i), now see § 190.2, subd. (a)(17)(A)), as well as deadly weapon use enhancement allegations for all five substantive crimes (§ 12022, subd. (b)), and great bodily injury enhancement allegations for the four crimes other than the murder (§ 12022.7). The jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)
The facts of this case portray an individual engaged in the deadly game of selling "bunk," or bogus rock cocaine, to unsuspecting buyers. When the
About 6:00 p.m. on August 25, 1986, Margetts told his girlfriend, Rita Berner, he was going out to buy some tools. Berner saw him take two $100 bills from a nightstand. He left in his blue Chevrolet S-10 truck. Shortly thereafter, Ceora (Mona) Williams, then 16 years old, was walking through the parking lot of the Pierce Apartments in the Pacoima section of Los Angeles, near the intersection of Pierce Street and Van Nuys Boulevard. Williams was on her way to play baseball; she met Reginald Berry on the way. She saw a blue Chevrolet pickup truck drive into the apartment house parking lot and pull into a space. A Black male walked over to the driver's side of the car and conversed with the driver, a White male. Williams testified the Black man was defendant, that she could see defendant's face "real well," and that she recognized him, having seen him in the parking lot off and on over the past few years.
Williams testified defendant had what appeared to be rock cocaine in his hand; he placed the other hand on top of the truck's cab while he spoke to the driver. She overheard the man in the truck ask, "Do you have a 50?" The driver was counting money, holding the bills in front of his chest. Williams saw defendant open a knife and hold it in his left hand on top of the truck cab. Defendant then looked at her and she became frightened, averting her eyes. When she looked back after about 10 seconds, defendant was gone and the driver of the truck began to drive away.
The truck did not get very far out of the parking lot, coming to rest just halfway down the block. Two women walked to the truck and placed the driver's head out of the window to "give him air." Williams and Berry
Nadine Reese was a resident of the Van Nuys Apartments, located behind the Pierce Apartments; the two buildings are connected by parking lots. Reese, one of defendant's friends, testified she heard something about a killing in a blue pickup truck, and that defendant told her he was the person who "stabbed the white boy" in the truck. Mona Williams later identified a photograph of defendant as the man who stabbed Margetts. Charles Caudell, a fingerprint expert, testified a palm print found on the roof of Margetts's truck (just above the driver's side door) belonged to defendant.
Two days later, on August 27, 1986, Ronald Johnson, accompanied by Carrie Howard, drove into the parking lot at the Van Nuys Apartments in Johnson's pickup truck. Johnson had previously purchased drugs in the parking lot and intended to buy some drugs that day. Three men, including defendant, approached Johnson's truck and offered to sell him cocaine. When defendant showed Johnson his wares, Johnson could tell the pebbles were not rock cocaine and refused to buy. Defendant then said, "Give me your money or I'll kill you," and displayed a large knife with a black handle. As Johnson was reaching under his seat for the money, defendant began jabbing Johnson with the knife. When Johnson handed over the money, defendant stabbed him in the chest.
In the meantime, one of the men accompanying defendant moved to the other side of the truck and grabbed Howard's purse, but she was able to retrieve it. After being stabbed, Johnson drove out of the parking lot, whereupon his lung collapsed and Howard began driving to a hospital. They were stopped by police, who transferred Johnson to the patrol car and transported him to a hospital.
Nadine Reese observed the Johnson stabbing and later identified defendant as Johnson's assailant. Both Johnson and Howard identified photographs of defendant as the man who stabbed Johnson.
The next day, August 28, 1986, police encountered defendant walking with another man and two women near the Pierce Apartments. The other man placed a knife with a fixed blade on the fence as police approached.
A police serologist testified the blood on the fixed-blade knife was type O; 48 percent of the population has type O blood. Margetts had type O blood. The blood on defendant's pants was type AB. Both Johnson and defendant have type AB blood. The serologist found no blood on the folding knife. An examination of the enzymes in the blood found on defendant's pants revealed only 4 out of 100,000 persons could have supplied that blood. Johnson's blood fell within the small group of persons with such blood; defendant's did not. The coroner testified that Margetts's fatal wound was consistent with having been caused by the folding knife.
On June 16, 1988, following the close of the day's court proceedings, Bailiff Edward Pena was escorting defendant back to the lockup when defendant exclaimed, "`[W]hy do all them people be lying like that?'" When Pena inquired what he meant, defendant replied, "`I always stab them with my left hand. That's where I have my power.'" This was apparently in response to Johnson's testimony that day that his assailant held the knife in his right hand.
Four days later, Reese (who also was in jail) found herself on a bus with defendant. Defendant called Reese a "snitch" and said he would "send his people after [her]."
In his defense, defendant called Reginald Berry, who had been walking with Mona Williams and had observed the aborted drug sale between Margetts and defendant. Berry testified the drug seller was shorter than defendant and that he did not look "anything like" defendant. Defendant also called Delores Smith, who had been visiting a friend in a nearby apartment and observed Margetts's murder. Contrary to Williams's testimony that she saw only defendant at the truck, Smith testified she saw several people around the pickup truck, saw money changing hands, and then observed a "bunch of confusion" and arguing.
Cabrina Ross testified for the prosecution at the penalty phase. She stated that a day or so after the Margetts killing, she saw defendant rob a White woman and a Mexican man in separate incidents. In both robberies, defendant accosted the victim in the vicinity of the Pierce Apartments and held a knife to the victim's neck. Nadine Reese also testified at the penalty phase;
Defendant's mother, Sharion Cobb-Geiger, and his stepfather, Thomas Geiger, both testified on his behalf at the penalty phase. Cobb-Geiger stated she married Theodore Hill when she was 15 years old, and had 3 children with him. Hill, however, was not defendant's natural father. Cobb-Geiger separated from Hill when defendant was conceived, although she never married defendant's father. She later reconciled with Hill and agreed defendant should take Hill's last name. They separated again when defendant was four or five years old. Hill did not visit defendant very much following the separation.
Cobb-Geiger testified defendant was a good child until he contracted meningitis when in kindergarten. His fever reached 106.75 degrees, and he was in the hospital for 13 days. It was three weeks before his fever fell below one hundred degrees. Following his bout with meningitis, defendant's personality had changed, and he was subject to screaming fits.
When defendant was 11 years old, he was placed in juvenile hall for incorrigibility. When he returned home, he broke windows and furniture and did not attend school. When he was 13 years old, he observed Cobb-Geiger's stepfather shoot and kill her brother. This upset him, as did his aunt's revelation the next year that Theodore Hill was not his natural father.
Cobb-Geiger revealed her parents were "brutal" with her so she decided to be lenient with her children. In retrospect, this turned out to be a mistake, as defendant grew up essentially unsupervised. Cobb-Geiger married Thomas Geiger when defendant was 14 years old. At that time, defendant was a ward of the court and had been placed in a camp. Geiger had little contact with defendant.
Although defendant raises a plethora of asserted legal errors, we discuss only those having some bearing on our conclusion that the cumulative effect of the errors in this case requires reversal. Accordingly, we find: (i) the prosecutor committed constant and egregious misconduct at both the guilt and penalty phases of defendant's trial; (ii) the trial court abused its discretion by failing to determine for itself whether defendant should be shackled inside the courtroom; (iii) the trial court should have excused Bailiff Pena from further courtroom duties after he testified against defendant; (iv) the
A. Prosecutorial Misconduct
Prosecutors, however, are held to an elevated standard of conduct. "It is the duty of every member of the bar to `maintain the respect due to the courts' and to `abstain from all offensive personality.' (Bus. & Prof. Code,
2. The Issue Is Preserved for Appellate Review
The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. (People v. Arias (1996) 13 Cal.4th 92, 159 [51 Cal.Rptr.2d 770, 913 P.2d 980]; People v. Noguera (1992) 4 Cal.4th 599, 638 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) In addition, failure to request the jury be admonished does not forfeit the issue for appeal if "`an admonition would not have cured the harm caused by the misconduct.'" (People v. Bradford (1997) 15 Cal.4th 1229, 1333 [65 Cal.Rptr.2d 145, 939 P.2d 259], quoting People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610] (hereafter Price).) Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if "the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request."
Two examples are illustrative. First, the record shows that when Morton questioned certain witnesses, she confused the serological evidence concerning the fixed-blade knife and the folding knife. (See discussion, post.) When Blum objected, the trial court not only erroneously overruled the objection, but chastised defense counsel in front of the jury, commenting that Blum was the one who was confused and not Morton.
Another example demonstrating the futility of interposing defense objections to Morton's constant misconduct occurred when Blum objected to Morton's mischaracterization of Mona Williams's testimony regarding defendant's height. (See discussion, post.) When Blum objected because Morton misstated the evidence, the trial court overruled the objection and explained to Blum, in front of the jury, "I'm going to suggest to you [that] earlier you
As these two examples show, defendant's argument that further objections would have been futile is well taken. Blum could reasonably infer from the general tenor of the trial court's prior rulings and comments that it disfavored additional interruptions of Morton's questioning of witnesses and closing argument, and that if he persisted in objecting Blum would risk additional critical comments from the bench that would suggest to the jury the trial court believed Blum was unnecessarily prolonging the proceedings by interposing "meritless" objections.
Under these unusual circumstances, we find all of the asserted grounds for misconduct were preserved for appellate review. (People v. Arias, supra, 13 Cal.4th at p. 159; People v. Noguera, supra, 4 Cal.4th at p. 638.)
3. Bad Faith Not Required
4. Claims of Misconduct at the Guilt Phase
a. Misstating the Evidence
(i) Blood on the Knife
Defendant first contends Prosecutor Morton committed misconduct by misleading the jury about the significance of the blood on the fixed-blade
The blood on the fixed-blade knife was of an insufficient amount to test any more than that it was type O. Margetts had type O blood, as does 48 percent of the population. Serological testing revealed the blood on defendant's pants was type AB, a type possessed by only about 4 percent of the population. Both defendant and victim Johnson have type AB blood. Certain enzymatic indicators present in the blood found on defendant's pants revealed a combination of blood type and enzymes found in only 4 of every 100,000 persons. Johnson's blood contains such a combination; defendant's blood does not.
In closing argument, the prosecutor characterized the blood on the fixed-blade knife (the type O blood) as "Stuart Margetts's blood." Defendant's objection to this comment was overruled. Morton continued: "And you saw the classification, and you saw down to the last iota, Stuart Margetts' blood was typed all the way over. [¶] And [the serologist] formed the opinion that on that knife ... [the] other knife which was identified along with the [folding knife] ... belonging to that defendant — was the same blood type O. The very same blood type. [¶] Classified down, right down to the different classifications as Stuart Margetts. ..." (Italics added.) At this point defense counsel Blum objected, claiming Morton had confused the serological evidence concerning Margetts's blood with "the analysis of Mr. Johnson's blood which was sub typed." The trial court overruled the objection, commenting: "No. She is not [confused]. Counsel, there may be some confusion but I am not so sure it rests with her."
Morton continued: "No, I am not confused. [¶] You will see that Mr. Margetts had O type blood. And it's O type on the knife." Later: "As to ... Mr. Johnson's blood, which was AB, same as defendant, which was also classified down, we know for a fact by classification it wasn't the defendant's blood on his pants. That matched Mr. Johnson's blood on his pants. [¶] There is no confusion there." (Italics added.)
On this record, we find defense counsel Blum was indeed correct, and Prosecutor Morton and the trial court were incorrect, regarding the accuracy
Morton thus mischaracterized the evidence by suggesting to the jury the blood found on the fixed-blade knife was sufficiently broken down into enzymatic subclassifications to permit a confident conclusion that it belonged to Margetts. We know this was the meaning of her comments because, when she switched to discussing the serological evidence for the blood on the pants, she noted that blood "was also classified down" (italics added), thus suggesting blood samples from both the pants and the knife were classified to an equal degree of specificity by the serologist. In thus mischaracterizing the nature of the evidence, Morton committed misconduct.
(ii) Confusing the Jury Regarding the Knives
Defendant next points to several instances in which Morton, when questioning witnesses, confused the two knives, calling the fixed-blade knife a buck knife, which is a type of folding knife, as well as referring to the folding knife as a buck knife. Defendant suggests this confusion of the knives was a calculated move to mislead the jury, but even if innocently done it nevertheless had the effect of confusing the jury to the prosecution's advantage.
We find Morton's misdescription of the knives when questioning witnesses misstated the evidence and constituted misconduct. By creating jury confusion over the two knives, the prosecution gained an unfair advantage in
(iii) Williams's Testimony Regarding Defendant's Height
In fact, Williams had testified she was five feet, three inches tall and the perpetrator was a little taller, "about 5'4", 5'5"." Defendant argues this mischaracterization was critical, for defendant's height was a major weakness in the prosecution's case: Defendant is five feet, ten inches tall, and the other eyewitness to the Margetts's killing, Reginald Berry, testified the killer was a short man and did not look like defendant. As is clear, Morton again blatantly and categorically mischaracterized the factual record to gloss over an inconsistency in the evidence unfavorable to the prosecution. Her actions thus constituted prosecutorial misconduct.
(iv) Mischaracterizing Johnson's Scar
Defendant contends Morton again mischaracterized the evidence by claiming a large scar on victim Ronald Johnson's chest was caused by defendant when he stabbed Johnson. Morton then used the size of the scar to argue defendant must have intended to kill Johnson.
During Ronald Johnson's testimony, he was asked to exhibit to the jury the scar on his chest. The trial court described it for the record: "[the] scar ... begins at the highest level, mid chest, and runs approximately 10 inches downward below the right nipple of the chest, about an inch below the
In Blum's closing argument, he told the jury, "as to [Johnson's] scar, I suggest that you go through the medical records. [¶] I believe those records will show you that that big scar on Mr. Johnson's chest is a result of surgery, not the result of a knife." In rebuttal, Morton returned to the topic of Johnson's scar: "By the way, you can look at those hospital reports and you will see [Johnson] was stabbed more than once. And you will also see that his scar was not by reason of a doctor cutting him from side to top. The lawyer that had that malpractice action would be doing a pretty good job. He would make quite a few bucks. That was a terrible scar." (Italics added.)
In fact, the hospital records show the larger of the two stab wounds was only two centimeters long. The other stab wound was merely described as "small." We may thus surmise the large scar on Johnson's chest was in fact caused by the emergency surgical intervention required as a result of Johnson's stabbing. The record shows that when Johnson arrived at the hospital, doctors performed an antrolateral thorocotomy to open his thoracic cavity, permitting resectioning the right middle lobe of his lung, which had been damaged by the knife wound. Doctors also repaired a laceration of Johnson's right ventricle, an operation requiring sawing through Johnson's sternum with a gigli saw.
Once again, Morton grossly mischaracterized the evidence and thus committed misconduct. Her misconduct in this regard again worked to bolster a critical weakness in her case: To prove defendant guilty of attempting to murder Johnson, it was necessary to prove that when defendant stabbed Johnson, he intended to kill. (People v. Swain (1996) 12 Cal.4th 593, 605 [49 Cal.Rptr.2d 390, 909 P.2d 994].) The single major stab wound — two centimeters long — and the second, more minor wound, under the circumstances of the case, were not necessarily conclusive evidence of intent to kill. The People's case would certainly have been enhanced if Morton could have proved the large scar on Johnson's torso was caused by defendant "rip[ping] [Johnson's] chest open" with a knife. Unfortunately for her, the evidence did not show defendant was responsible for that grievous injury.
b. Referring to Facts Not in Evidence
(i) Suggesting No Similar Crimes Had Been Committed Since Defendant Was Arrested
(ii) Stating the People Could Have Brought in an Expert
Blum stated in closing argument that the People never established by expert testimony the pebble-like items found in Margetts's truck were bunk, or fake rock cocaine. From this, Blum urged the jury to find a reasonable doubt that Margetts could tell the difference between real and fake rock cocaine, thereby undermining the prosecution's theory that Margetts balked at the scam and was stabbed as a result.
Morton began her rebuttal argument by opining: "Well, the first thing I'm going to tell you isn't true is counsel stood before you ... and told you that to find this defendant guilty I have to prove my case beyond a reasonable
Defendant contends Morton committed misconduct by asserting she could have called an expert to establish the nature of the substance found in Margetts's truck. To the extent Morton, by these comments, implied an expert would have testified favorably for the prosecution had she called one, she committed misconduct, for she called no such witness.
(iii) Attempted Impeachment of Delores Smith
Delores Smith, called as a defense witness, testified she was in the apartment of her friend, Linda Hill, when she saw the Margetts killing. Contrary to Mona Williams's version of events, Smith testified several people were around the truck and defendant was not one of them. Smith affirmed she had no motive to lie for defendant and in fact did not even know him. During Morton's rebuttal argument, she addressed Smith's testimony: "And there's this big fuss made about there's no reason to lie, no bias. Well, infer what you can from the fact that the defendant's name is Hill and Linda Hill, who was living upstairs in that apartment, according to Delores Smith, is not here in this courtroom. ..." (Italics added.) Blum's objection was sustained.
It was blatantly improper for Morton to invite the jury to infer Smith would lie because her friend, Linda Hill, was a probable relative of defendant. There was no evidence at all of this purported relation, so Morton's argument raised the possibility the jury would assume Morton had some undisclosed knowledge of such a relation. Morton thus committed misconduct. Although Blum's objection to this outrageous fabrication for the jury was sustained, Morton's misconduct in this instance merely added to the growing mountain of deceit and unethical behavior in this case.
c. Misstatements of Law
(i) Consideration of Circumstantial Evidence
Defendant is correct that Morton misstated the law concerning the import of circumstantial evidence. (See People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1] [trial court has sua sponte duty to instruct jury that circumstantial evidence leading to conviction must be consistent with guilt and inconsistent with other rational explanations]; 5 Witkin & Epstein, supra, Trial, § 2947, p. 3620; CALJIC No. 2.01 (6th ed. 1996 bound vol.).) Further, if defendant obtained Margetts' property without force or fear (thus committing only theft) and then stabbed the victim for some reason unrelated to the theft, Blum would be correct the proper verdict should not reflect reliance on a felony-murder theory and the robbery-murder special circumstance should be found untrue. Morton's assertion, that defendant must be acquitted of all charges should the jury agree there was insufficient intent for the charged felony, was legally incorrect, as even Blum conceded the perpetrator would be guilty of second degree murder. Morton thus misstated the law and committed misconduct.
(ii) Force or Fear Element for Robbery
When addressing the perpetrator's hairstyle in closing argument, Prosecutor Morton opined that "[w]hen one sits around in parking lots in order to rob people and pretend[s] to sell them something in order to get money, which is robbery, when one does that, they have plenty of time to sit around and change hair styles." (Italics added.) Blum objected: "Objection to selling something to get money is a robbery. That's an incorrect statement of the law." The trial court overruled the objection.
(iii) Shifting to Defendant the Burden of Showing a Reasonable Doubt
In her rebuttal argument, Morton addressed the concept of reasonable doubt, stating: "it must be reasonable. It's not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt." Blum objected, noting the statement was incorrect, and that Morton's argument was "putting the burden on me."
Morton's comments are somewhat ambiguous. Morton, however, committed misconduct insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. (People v. Marshall, supra, 13 Cal.4th at p. 831; People v. Gonzalez (1990) 51 Cal.3d 1179, 1215 [275 Cal.Rptr. 729, 800 P.2d 1159].) Further, to the extent Morton was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution's evidence. (Cf. CALJIC No. 2.61 (6th ed.
Although the question arguably is close, we conclude it is reasonably likely Morton's comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude Morton committed misconduct by misstating the law.
d. Derisive Comments and Actions Towards Defense Counsel
The American Bar Association Project on Standards for Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function (Approved Draft 1971) (hereafter ABA Standards), sets forth the standard of courtroom behavior required for a prosecutor: "5.2 Courtroom decorum. [¶] (a) The prosecutor should support the authority of the court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses, defendants, jurors and others in the courtroom. [¶] (b) When court is in session the prosecutor should address the court, not opposing counsel, on all matters relating to the case. [¶] (c) It is unprofessional conduct for a prosecutor to engage in behavior or tactics purposefully calculated to irritate or annoy the court or opposing counsel. [¶] (d) A prosecutor should comply promptly with all orders and directives of the court, but he has a duty to have the record reflect adverse rulings or judicial conduct which he considers prejudicial. He has a right to make respectful
Another unfortunate episode involved the questioning of Charles Caudell, a fingerprint expert. During cross-examination, Blum asked Caudell whether it was possible to transfer fingerprints from one place to another, whether it had been conclusively proven that no two persons could have the same fingerprints, and whether Caudell had ever made a mistake identifying prints. Morton apparently took extreme umbrage at such questions and insisted that defendant's fingerprints be re-rolled right then, while the jury was watching. Morton insisted: "I want the jury to see it.... and I want counsel to put his initials on that roll, so nobody can say they substituted it." When Caudell volunteered that he once made a mistake in training, Morton was unappeased: "No. This is what I want. And I want counsel to sign it." Blum asked the trial court: "Can we have a conference if the district attorney is going to say what she wants?" Morton exclaimed flatly: "I am entitled."
Other disturbing incidents include Morton's audibly laughing in the middle of Blum's examination of both victim Ronald Johnson and witness Robbie Ventura, and getting out of her chair during Blum's examination of witnesses, standing in his line of sight, staring at him and making faces at him. Morton's tactics were petty and childish, heightening the acrimonious atmosphere in the courtroom and threatening the ability of defendant to receive a fair trial. It takes no citation to authority for us to conclude such juvenile courtroom behavior by a public prosecutor demeans the office, distracts the jury, prejudices the defense, and demands censure.
e. Intimidating Witnesses
Berry, who ultimately testified for defendant and claimed Margetts's killer did not look like defendant, suffered from sickle cell anemia and was ill at the time of trial. Before he testified, and outside the jury's presence, Blum raised with the trial court the issue of prosecutorial intimidation, explaining that Berry was afraid to testify and had been told by Morton that if his testimony did not conform to an earlier taped interview, she would file perjury charges against him. Blum averred that Berry was awake most of the night, worried that he might have to go to prison if he testified for defendant.
Morton explained that Berry's mother told her that "her boy had sickle cell anemia and he could die. And he is very slow. [¶] After that I asked to have him come into court. Because I was going to put him on here as a witness. [¶] She advised me three or four days ago, oh, she was also screaming and hollering in the office, saying he wouldn't testify." After Berry was taken into custody for failure to appear for a jaywalking ticket, he was released, and his mother came and again spoke to Morton. As Morton related the events: "I said, `Listen, Mrs. Berry, I am totally fed up with how slow he is and how retarded he is, and I am not concerned about that. [¶] He told officers one thing. Then he said that he saw nothing. That the man was about 5'8" or 5'9", and he didn't know him. He went running home to you.'
Blum added: "Your honor, I would, for the record, state that I believe calling a witness or his mother and stating if they don't state what's on the tape they are going to be charged with perjury, that's prosecutorial misconduct." The trial court impliedly rejected the objection.
As is clear, Morton several times committed prosecutorial misconduct during the guilt phase of the trial. Although we do not wish to minimize any
5. Claims of Misconduct at the Penalty Phase
Defendant next cites numerous instances of alleged prosecutorial misconduct at the penalty phase. Although some of the claims are meritless and do not require discussion, others, as we explain, are not so benign. As in the guilt phase, we conclude that given the pervasive nature of Morton's misconduct, any attempt by Blum to object to Morton's misconduct would have been futile. Accordingly, we find the claims of penalty phase misconduct are properly before this court.
a. Reliance on Biblical Doctrine
By relying on the Bible in this manner, Morton committed misconduct. As we have explained repeatedly, an appeal to religious authority in support of
b. Referring to Matters Outside the Record; Misstating the Facts
(i) Knives Called "Uzis"
Morton asked Cabrina Ross whether defendant called his knives his "Uzis," an apparent reference to the name of a semiautomatic rifle sometimes used in violent street crimes. Ross replied she did not remember or did not know. In closing argument, however, Morton averred: "[Defendant] likes the feel of a knife. He likes to use his knife. [¶] You heard what he called them. What was it she said? `Oh, I forgot the name.' [¶] I said, `Did you tell the police officer what he called the knives?' [¶] And she said, `I told them that.' [¶] And I said, `Is that Uzi?' [¶] And she said, `I forgot the name.' [¶] And she told you that he named his knives. He called them that. He likes that." (Italics added.)
Defendant correctly contends Morton committed misconduct by stating as a fact something Ross did not say. If Morton had evidence defendant called his knives by a particular name, she should have presented evidence in that regard.
(ii) Misrepresenting Defendant's Prior Record
In closing argument, Morton opined: "And everything [defendant] ever did one way or another, he got away with. [¶] He has killed. He has stabbed. He has robbed. He has gone to prison for it. He has not been rehabilitated under any guise or thought." (Italics added.) Contrary to Morton's insinuation, defendant's prior convictions did not involve homicide, stabbings of any kind, or robbery. His prior convictions were for assault by means likely
(iii) Other Claims
Defendant next complains that on several occasions Morton made statements in argument that essentially allowed her to testify, unfairly supplying facts not in the record. For example, at one point Morton described the conditions of life in prison, implying that such a life was not a sufficient punishment for defendant. At another point, she stated the jury would hear defense arguments that prosecutors always hear, thereby implying the defense arguments were stock arguments and should be disregarded. At still another point, Morton spoke to the possibility of rehabilitation, stating: "Some people in state prison can, I guess, be rehabilitated. I haven't seen too many, and I have been around a lot." Defendant contends that by these comments, Morton improperly testified and, as an apparently veteran prosecutor, created a danger the jury would give her claim of experience heightened credibility. Although these comments were brief and mild, and thus could not have been prejudicial standing alone, they contributed to the overall unfairness of the trial.
c. Rude Behavior Towards Defense Counsel
As in the guilt phase, Prosecutor Morton exhibited a dismissive, sarcastic and, at times, abrasive personality. We need not determine whether any individual instance of misconduct was itself prejudicial, for each contributed to the general acrimonious atmosphere that threatened defendant's right to a fair trial. We reiterate, however, that such "offensive personality" is not
In sum, Morton's misconduct was not confined to the guilt phase of defendant's trial. Unfortunately, moreover, her misconduct during trial, though serious, was not the only legal error in defendant's trial.
1. The Facts
During pretrial proceedings on April 8, 1988, the parties were discussing with the trial court the availability of Reginald Berry, a witness who was seriously ill. Defendant suddenly stood up and exclaimed, "Oh shit. I am going back. Shit." He then left the courtroom "on his own." At the next court date on April 19, 1988, defense counsel stated: "[Defendant] is in front of the court because he has been made a security risk or an escape risk because of the fact when he was here in a hearing the last time we were in court, as the court recalls, he stood up and walked towards the lockup saying he had enough of this shit.... I feel that whoever decided that statement made him an escape risk was making an incorrect judgment. [¶] I would ask for a minute order stating that the court does not consider the defendant to be an escape risk and feels he should be taken off whatever security status he is in now if the Sheriff's Department feels that also." The court replied: "I don't know what precipitated his status of being a security risk. I don't know what that was." (Italics added.)
Defendant then explained that, although he simply walked back to the bullpen, Bailiff Pena had reported defendant tried to walk out of the courtroom. The court replied: "But understand, Mr. Hill, the fact that we all have a responsibility here in the courtroom. I am the judge. She has a job. She has a job. Mr. Pena has a job. [¶] And the attorneys have a job. Everybody. [¶] And we have to maintain — in other words, when you stood up and left, or wherever, we can't read your mind." When defendant objected that he did not try to leave the courtroom, the court said: "Okay. I will have the minute order show that you stood up in the courtroom. But whether or not the Sheriff['s Department] is going to change their mind, see, I don't interfere in their business." (Italics added.)
Later, after defendant's unsuccessful Faretta and Marsden motions (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562];
As promised, the trial court noted in the record that on April 8, 1988, "the defendant stood up and walked toward the lock up area, and not the front door, prior to the conclusion of the proceedings because he stated he was tired of listening to the court proceedings. He also did that at the hearing [on April 19, 1988]."
Jury selection began at the next court session, on April 26, 1988. Before the first prospective juror was called, the following occurred:
"MR. BLUM: Before anyone comes in the defendant has noticeable chains around his legs. I think if the jurors see those it would be prejudicial against my client.
"THE COURT: Do we have anything to cover his legs?
"THE BAILIFF: He can keep them behind the desk.
"MR. BLUM: Is it necessary that he wears those chains?
"THE COURT: I believe the [sheriff's] department has said so. Why don't we put a chair there so they can't be seen. Something that will block off that. [¶] Would you be kind enough, Mr. Blum, to walk back and see if you can see them. Can you see them?
"MR. BLUM: I believe so. [¶] I think that's okay.
"THE COURT: Can't see them from the spectator section?
"MR. BLUM: Unless you look very, very hard. It's possible you could see one or two links.
"THE COURT: All right. Let's call in [the first juror]." (Italics added.)
At two subsequent court sessions, defendant objected to the leg restraints, but the complaints went to his discomfort with the shackles and not to their legal justification.
This emphasis that a showing exist on the record of "manifest need" for shackles presupposes that it is the trial court, not law enforcement personnel, that must make the decision an accused be physically restrained in the courtroom.
C. Admission of Bailiff Pena's Testimony
While Bailiff Ed Pena was escorting defendant back to the lockup following the close of victim Ronald Johnson's testimony on June 16, 1988, defendant made some incriminating statements. Pena returned to the courtroom and recited the following for the court reporter: "As I was escorting Mr. Hill to the lock up, he tells me, he says, `why do all them people be lying like that?' And I said, `Why, Mr. Hill?' ... He said, `because I always stab them with my left hand. That's where I have my power.'" Four days later, on June 20, 1988, the prosecutor indicated she would call Pena to testify before the jury regarding these statements, and Defense Counsel Blum requested a hearing pursuant to Evidence Code section 402. At this hearing, Pena essentially reiterated what he previously had told the court reporter. Defense Counsel Blum moved to exclude the testimony on the grounds it was more prejudicial than probative (Evid. Code, § 352) and was improper character evidence (Evid. Code, § 1101). The trial court denied the motion. In addition, the trial court denied a motion to modify the testimony so that it would refer only to victim Johnson. Pena eventually testified before the jury.
D. Instruction on Intent to Kill (Carlos Error)
Defendant committed his crimes within the so-called Carlos "window period," that is, between our decision in Carlos and its subsequent overruling in Anderson. Accordingly, the Carlos intent-to-kill requirement applies in his case. In this case, defense counsel moved to have the jury instructed on intent to kill; the trial court erroneously denied the motion. To compound the error, the court specifically instructed the jury that if it found "beyond a reasonable doubt that the defendant was the actual killer, you need not find that the defendant intended to kill a human being in order to find the special circumstance to be true." (Italics added.)
Respondent essentially concedes there was error, but strenuously argues it was harmless beyond a reasonable doubt. In light of our disposition, we need not decide the impact of the error standing alone, and decline to do so. We now turn to the question of the cumulative prejudice flowing from all the trial errors that occurred in this case.
E. Cumulative Prejudice
Defendant contends the cumulative effect of the errors requires reversal of the judgment. Respondent argues none of the instances of misconduct nor any of the trial errors, considered singly or together, requires reversal, noting that defendants are entitled to "fair trials" but not "perfect ones." We have, on occasion, made the same observation (see, e.g., People v. Bradford (1997) 14 Cal.4th 1005, 1057 [60 Cal.Rptr.2d 225, 929 P.2d 544]; People v. Osband (1996) 13 Cal.4th 622, 702 [55 Cal.Rptr.2d 26, 919 P.2d 640]; People v. Cain (1995) 10 Cal.4th 1, 82 [40 Cal.Rptr.2d 481, 892 P.2d 1224]; People v. Beeler (1995) 9 Cal.4th 953, 994 [39 Cal.Rptr.2d 607, 891 P.2d 153]; People v. Marshall (1990) 50 Cal.3d 907, 945 [269 Cal.Rptr. 269, 790 P.2d 676]), but such a truism cannot be allowed to obscure the true nature of the pertinent inquiry now before us. As Justice Benjamin Cardozo once said in a different context, "[c]atch words and labels ... are subject to the dangers that lurk in metaphors and symbols, and must be watched with circumspection lest they put us off our guard." (Henneford v. Silas Mason Co. (1937) 300 U.S. 577, 586 [57 S.Ct. 524, 528, 81 L.Ed. 814].) We take defendant's claim to be a call not for a "perfect" trial, but for one in which his guilt or innocence was fairly adjudicated. We turn to that question.
Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. (Cal. Const., art. VI, § 13; see also Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065] [harmless-beyond-a-reasonable-doubt standard applies to review of federal constitutional error].) Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (People v. Purvis, supra, 60 Cal.2d at pp. 348, 353 [combination of "relatively unimportant misstatement[s] of fact or law," when considered on the "total record" and in "connection with the other errors," required reversal]; People v. Herring, supra, 20 Cal. App.4th at pp. 1075-1077 [cumulative prejudicial effect of prosecutor's improper statements in closing
Defendant's trial, as seen, was far from perfect. In the circumstances of this case, the sheer number of instances of prosecutorial misconduct and other legal errors raises the strong possibility the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone. (Cf. People v. Roberts (1992) 2 Cal.4th 271, 326 [6 Cal.Rptr.2d 276, 826 P.2d 274] [concluding "the whole" of the trial errors "did not outweigh the sum of their parts"].)
At the outset, we may not escape the fact defendant was forced to suffer constant and outrageous misconduct by Prosecutor Morton. A prosecutor commits misconduct under state law if he or she uses "deceptive or reprehensible methods" in an attempt to persuade the jury. (Samayoa, supra, 15 Cal.4th at p. 841; People v. Espinoza, supra, 3 Cal.4th at p. 820; People v. Strickland (1974) 11 Cal.3d 946, 955 [114 Cal.Rptr. 632, 523 P.2d 672].) Morton's actions, at times childish and unprofessional and at other times outrageous and unethical, betrayed her trust as a public prosecutor. Her methods were deceptive and reprehensible.
Although we might conclude any single instance of misconduct was harmless standing alone, we cannot ignore the overall prejudice to defendant's fair trial rights caused by Morton's pervasive campaign to mislead the jury on key legal points, as well as her unceasing denigration of defense counsel before the jury. It is true that, with the exception of the Carlos error, the jury was properly instructed on the law; these instructions included the admonition that the arguments of counsel are not evidence, and that the trial judge would read the jury the law. Also true is that, as to some of Morton's acts of misconduct, Blum objected and the trial court sustained the objection, thereby diminishing the prejudice flowing from that particular misconduct. Given, however, the onslaught of the misconduct that occurred in this case, it became increasingly difficult for the jury to remain impartial. "It has been truly said: `You can't unring a bell.'" (People v. Wein (1958) 50 Cal.2d 383,
Morton's misconduct, considered in the aggregate, may very well be sufficient of itself to require reversal of both the guilt and penalty judgments. We need not reach that question, however, for other errors, as previously discussed, occurred in this case. The trial court, as indicated, improperly abdicated its judicial role of determining whether defendant posed a sufficient danger of escape that he must be shackled when before the jury. Instead, the court erroneously deferred to the decision of the sheriff's department.
The most serious error affecting the determination of the appropriate penalty related to the trial of the felony-murder special-circumstance allegation: the court's delivery to the jury of an instruction erroneously removing from its consideration the key mental element — intent to kill — of the main crime in this case, the murder of Stuart Margetts. Although the evidence
The sheer number of the instances of prosecutorial misconduct, together with the other trial errors, is profoundly troubling. Considered together, we conclude they created a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum of the individual errors. Considering the cumulative impact of Morton's misconduct, at both the guilt and penalty phases of the trial, together with the Carlos error and the other errors throughout the trial, we conclude defendant was deprived of that which the state was constitutionally required to provide and he was entitled to receive: a fair trial. Defendant is thus entitled to a reversal of the judgment and a retrial free of these defects.
In reaching this conclusion, we address an institutional concern as well. Our public prosecutors are charged with an important and solemn duty to ensure that justice and fairness remain the touchstone of our criminal justice system. In the vast majority of cases, these men and women perform their difficult jobs with professionalism, adhering to the highest ethical standards of their calling. This case marks an unfortunate exception.
F. Claims of Insufficiency of Evidence
Because we are reversing the judgment on other grounds, we need not address defendant's other claims. He argues, however, there was insufficient evidence to support his convictions for robbing Margetts and Howard. If defendant is correct, double jeopardy principles would prevent his retrial on those counts. (Burks v. United States (1978) 437 U.S. 1 [98 S.Ct. 2141, 57 L.Ed.2d 1].) Accordingly, we proceed to address those claims for the benefit of a possible retrial. (See People v. Memro (1985) 38 Cal.3d 658, 690 [214 Cal.Rptr. 832, 700 P.2d 446].)
1. Robbery of Margetts
These are merely discrepancies in the evidence the jury considered and resolved against defendant. Moreover, defendant fails to consider the evidence against him: He admitted his guilt to Nadine Reese; he made inculpatory statements to Bailiff Pena; when arrested, he was carrying a knife and his pants were bloody; he committed an almost identical crime within 48 hours of stabbing Margetts; and his palm print on the truck placed him at the scene. Although Williams did not see defendant actually stab Margetts, she saw him open a knife before she looked away. About 10 seconds later, Williams saw Margetts attempt to drive off, only to expire a short time later from a stab wound in the chest. Margetts was known to have $200 (indeed, Williams reported seeing him count out bills), yet police found no American money in Margetts's truck. Police found pebbles of bogus rock cocaine in the truck. This evidence, considered as a whole and in a light favorable to the judgment below, comprises substantial evidence of robbery.
Defendant posits other possible scenarios which are consistent with a finding of innocence or, at least, a finding he committed theft but not robbery. For example, he asserts it is possible he merely sold Margetts something and some other person came along and stabbed the victim, or that he stabbed Margetts without the intent to rob, and someone came later and
Defendant compares his case to People v. Morris (1988) 46 Cal.3d 1 [249 Cal.Rptr. 119, 756 P.2d 843], disapproved on another point, In re Sassounian (1995) 9 Cal.4th 535, 543-544, footnote 5 [37 Cal.Rptr.2d 446, 887 P.2d 527], in which we reversed a robbery conviction and a robbery-murder special-circumstance allegation for insufficient evidence. In Morris, the murder victim was found naked except for socks and shoes. We concluded there was no evidence "from which the jury could reasonably infer that [the] defendant deprived the victim of personal property in his possession by means of force or fear." (People v. Morris, supra, at p. 20.) By contrast, in the instant case the evidence was that the victim had $200, he was holding the money in his hands and counting it out in preparation of a transaction to purchase cocaine, and, 10 seconds later, he had neither money nor cocaine and had been stabbed in the chest. The facts in this case are manifestly different from those in Morris. We conclude there was sufficient evidence defendant robbed Margetts.
2. Robbery of Howard
Howard told a similar story. When asked whether defendant and the two other men were together, she replied: "Well, when we first came [into the parking lot,] they were together and then they spread out." (Italics added.) Two men, including defendant, stayed on the driver's side of the car; the third man came to her side. This third man grabbed her purse.
Because defendant did not take Howard's purse, his guilt of robbery must have been predicated on an aiding and abetting theory. Defendant argues the evidence was insufficient to prove he harbored the requisite mental state of an aider and abettor.
Defendant also contends the evidence was legally insufficient to demonstrate a taking of personal property. We disagree.
Defendant claims for the jury to credit Johnson's testimony rather than Howard's would have been irrational. When asked whether her assailant "got" her purse, Howard replied, "no." Continuing with her testimony, however, Howard stated she got the purse "back" from the robber, testifying she pulled the purse "back." This testimony suggests Howard had, if only briefly, lost possession of the purse.
Defendant also contends the evidence was insufficient Howard's robber asported or moved the purse an adequate distance to constitute robbery.
The judgment is reversed. The People remain free to retry defendant for the charged crimes.
George, C.J., Mosk, J., Kennard, J., Baxter, J., Chin, J., and Brown, J., concurred.
I concur in the thoughtful analysis set forth in the court's opinion. I write separately to express my view that the prosecutorial misconduct (together with the related erroneous rulings by the trial court) committed in this case in itself requires reversal of the judgment. (See maj. opn., ante, at pp. 819-839.)
As the court aptly has pointed out: "[W]e may not escape the fact defendant was forced to suffer the constant and outrageous misconduct by Prosecutor Morton.... Morton's actions, at times childish and unprofessional and at other times outrageous and unethical, betrayed her trust as a public prosecutor. Her methods were deceptive and reprehensible. [¶] Although we might conclude any single instance of misconduct was harmless standing alone, we cannot ignore the overall prejudice to defendant's fair trial rights caused by Morton's pervasive campaign to mislead the jury on key legal points, as well as her unceasing denigration of defense counsel before the jury." (See maj. opn., ante, at p. 845.)
I have signed the court's opinion because I agree with its conclusion that the cumulative prejudice flowing from the prosecutor's misconduct and other errors rendered defendant's trial fundamentally unfair. (See maj. opn., ante, at pp. 844-848.) Cumulative prejudice, however, is but one basis for
We cannot emphasize too strongly that to ask the jury to consider biblical teachings when deliberating is patent misconduct. (People v. Wash, supra, 6 Cal.4th at p. 261.) Moreover, although such matters of theology are, of course, well beyond our purview, we observe some scholars have suggested reliance on the lex talionis in this context may oversimplify the meaning of the pertinent scriptural passages. (See McCann, Opposing Capital Punishment: A Prosecutor's Perspective (1996) 79 Marq. L.Rev. 649, 702; see also Walle, Doing Justice: A Challenge for Catholic Law Schools (1997) 28 St. Mary's L.J. 625, 626; Rudolph, The Misguided Reliance in American Jurisprudence on Jewish Law to Support the Moral Legitimacy of Capital Punishment (1996) 33 Am. Crim. L.Rev. 437, 446, 451.)
"MRS. MORTON: People versus Kell[e]y was affirmed. People v. Kell[e]y is probably one of the best cases around. I love it, every minute of it. [¶] The only thing I did wrong —
"THE COURT: Folks, we are getting —
"MRS. MORTON: — was to sass the judge which I won't do again and never did again, but I don't have to stipulate. I can do all my discovery on the record.
"THE COURT: Wait a minute.
"MRS. MORTON: Don't ever mention Kell[e]y to me again.
"THE COURT: Folks, let's keep this friendly.
"MRS MORTON: We are no longer friendly. I am so sick of people citing this case to me. It was affirmed." (Italics in original.)
The Court of Appeal noted in a footnote immediately following the quoted passage that "We also note with regret that even her claim that she will no longer `sass the judge' is belied by the present record...."