Defendant Larry Douglas Lucas appeals from the judgment of the Los Angeles County Superior Court imposing the death penalty following his conviction by jury of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated) and burglary (§ 459), as well as two special-circumstance findings-multiple murder (§ 190.2, subd. (a)(3)) and burglary murder (id., subd. (a)(17)(vii)). After the jury's death penalty verdict, the trial court denied defendant's motion for new trial and the automatic motion to modify penalty. (§ 190.4, subd. (e).) Appeal to this court is automatic. (§ 1239, subd. (b).)
On October 15, 1986, a letter carrier saw victim Edwin Marriott alive and well. The next day when she tried to deliver mail, the screen door of his house covered the mail slot and no one came to the door to answer her ring, both unusual circumstances. The letter carrier became concerned when the Marriotts failed to come to the door to receive their mail for several days thereafter. She contacted a neighbor, who called the victims' daughter. Inspection of the home disclosed the bodies of the victims, Edwin and Mary Marriott, aged respectively 85 and 75. They had suffered multiple stab wounds and blunt force traumas.
Mary Marriott was found in her nightgown in the south bedroom. There was blood along the east wall of the bedroom and four bloody finger marks on her bedroom door. A bloody folding knife with a bent tip was found under a pile of bedding and debris. Edwin Marriott was found in the doorway of the north bedroom. There was a bloodstain in the center of the door and bloodstains on a drawer found on the floor of the bedroom. A lamp base and shade on the bedroom floor had bloodstains on them, as did clothing found in the closet. There was a bloody residue in the sink in the sole bathroom of the house and there was also a bloody footprint on the floor.
The Marriott home, usually kept in impeccable order, was strewn with upturned drawers and blood-smeared objects. In the hallway between the
A kitchen drawer was pulled out and stained with blood, as were some of the kitchen cabinets. There were bloody footprints in the kitchen. A small tack hammer with a broken head was found in the kitchen. A key ring with keys was found in a planter outside the kitchen door. The back door of the home, leading into the kitchen, was open and glass from the door was broken out. The back door had a deadbolt requiring a key to open it from either side. There was broken glass both inside the kitchen and outside on the porch area and lawn. The screen door on the back porch was torn above the lock and handle. Blood drops led from the kitchen to the driveway of defendant's residence next door. There were blood drops on the sidewalk, a smear of blood on the wall of defendant's garage and some blood on the gate latch leading toward the backyard of defendant's home.
A search of defendant's home produced a pair of jeans and boxer shorts with blood on them. Defendant's fingerprints matched those on the jewelry box and another small cardboard box found inside the Marriott home. Blood found on various items in the Marriott home was consistent with defendant's blood but not with that of the victims. Blood on the jeans found in defendant's home was consistent with defendant's blood, while the blood on the boxer shorts found inside the jeans was consistent with Edwin Marriott's blood but not with defendant's.
Defendant produced evidence that he was arrested for being under the influence of drugs on the day the bodies were discovered. At that time he had multiple puncture marks on his arm, some fresh, some older. Defendant also produced the testimony of his employer, who saw him around 10 p.m. on October 15, 1986, the date of the murders. The employer, Mr. Perez, testified he saw defendant with two unfamiliar men, clearly "under the influence of something." Defendant's hands were shaking as if he were dribbling a basketball and he seemed "hyperactive."
Defendant testified that he had lived next door to the Marriotts for many years. He stated that on October 15, 1986, having received a cash payment from his employer, he spent the day with two men, Croffoot and Sandoval, injecting crystal methamphetamine, cocaine and finally heroin in large quantities. Ultimately defendant passed out, and could only recall standing in a dark hall, with faces like "waxy fright masks" coming at him. He tried to push them away and struck at them. He ran, looking over his shoulder. He remembered driving, but could not recall where. He woke up at the beach.
In rebuttal, officers who interrogated defendant after his arrest testified that defendant identified the bloody folding knife found at the Marriotts' home as his own. He also attempted to hide his wounded hand during the interview. When asked how the Marriotts' back door window was broken, defendant told the officers he broke the window and took the glass out of the panel. He admitted cutting himself inside the Marriott home, but did not admit killing the victims.
In surrebuttal, defendant said he kept his hands in his pockets during the jail interview in compliance with jail rules. He stated that the officers' questioning focused on a man named Randy Norris, and that one officer threatened him with the death penalty when he requested an attorney. He merely stated the knife found at the scene was similar to one of his own. He did not admit breaking the window of the back door of the Marriott house and cutting his hand there. He was sick during the interview because he was withdrawing from drugs and had a kidney infection.
In further rebuttal, the interrogating officers denied threatening defendant with the death penalty and said the interview stopped when defendant asked for an attorney. Defendant told them "they" (apparently referring to himself and an accomplice) had used a key to unlock the deadbolt on the Marriotts' back door.
At the penalty trial, the People offered evidence that when a babysitter defendant had employed approached him about being paid, defendant accused her of stealing his marijuana, punched her, and knocked her off his porch. He also threatened to hire someone to kill her. This conduct resulted in a conviction for assault with a deadly weapon.
Defendant offered no evidence at the penalty trial, having called only his wife, who invoked the marital privilege. The trial court expressed great concern over this development, and caused defendant and counsel to present their tactical reasons for the decision to present no evidence at an ex parte hearing before another judge, the transcript of which was ordered sealed.
The jury returned a verdict of death.
II. GUILT TRIAL ISSUES
A. Ineffective assistant of counsel.
Defendant claims he was deprived of the right to effective assistance of counsel, as guaranteed by the Sixth Amendment to the federal Constitution and by article I, section 15 of the California Constitution. He cites several instances of alleged incompetence.
Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel (see People v. Wright
With these rules in mind, we examine defendant's claims of ineffective assistance.
1. Motion to exclude defendant's statements.
The record discloses the following factual basis for defendant's claim. Los Angeles County Deputy Sheriff Kushner testified that at the time of defendant's confinement at the Santa Ana County jail, defendant admitted he broke the rear door window of the Marriott house and cut his hand inside the home. He also said a photograph of the murder weapon depicted his own knife. Defendant moved, pursuant to section 402 of the Evidence Code, to exclude these statements. As discussed below, the court denied the motion, and the statements were introduced in rebuttal after defendant testified that he had no recollection of being in the Marriott home.
Defendant's written motion to exclude the statements asserted he was questioned in violation of Miranda, supra, 384 U.S. 436 and People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625]. Defendant testified at the hearing on the motion, asserting that the deputies did not warn him of his rights under Miranda until they had interrogated him for some time. Further, he claimed that they failed to heed his invocation of his right to counsel. He also asserted that the deputies threatened him with the
The trial court's discussion of the issue is somewhat obscure. At one point the court overruled defendant's objection and threatened to strike defendant's testimony unless he answered the questions. Alternatively, the court suggested it would force counsel to withdraw the exclusion motion. Defense counsel responded that the issue of defendant's drug use before the interrogation had nothing to do with the question whether the officers advised him of his rights or heeded his request to cease the questioning until counsel could be appointed. Rather, counsel asserted the prosecutor's questions were intended to provide discovery regarding defendant's drug use. Counsel suggested the issue be limited to the question of the asserted Miranda violation, and that counsel would abandon any voluntariness claim rather than require defendant to answer questions regarding his drug use. Although defense counsel disagreed with the court's ruling on the scope of questioning open to the prosecutor, counsel said they would abide by the ruling, but "suggested to your honor that any testimony that he gave or any consideration of the issue of whether or not his sickness prevented him from making a valid waiver, that that not be considered or that that be deemed withdrawn."
The court suggested defendant's entire testimony should be stricken because defendant could not insulate himself from questioning about his state of mind and ability to recall once he put those matters in issue. By asserting that he recalled that the deputies did not advise him of his rights under Miranda before interrogating him, defendant opened the door to the prosecutor's questioning. The court accepted the prosecutor's suggestion that an expert in the field of narcotics addiction be called to testify whether it would be necessary to know the pattern of defendant's drug use for some period before the interrogation in order to know whether his drug withdrawal during the interrogation deprived him of the ability to voluntarily waive his Miranda rights. The court also vacated its earlier rulings.
The court heard the testimony of such an expert regarding the effects of drug withdrawal. Because the expert testified that drug withdrawal would have no effect on a person's ability to perceive and recollect, the court
Nonetheless, the prosecutor suggested, without making a particular motion, that he thought there was authority that would allow him to ask defendant about his drug use in order to explore defendant's memory of the interrogation. The court apparently was still troubled by defendant's refusal to testify on the question of his drug use, for a little later in the proceedings, referring to the motion pursuant to Evidence Code section 402, the court noted it had asked counsel to review the case law regarding a witness's refusal to answer questions on cross-examination. "Mr. Lucas has refused to answer certain questions regarding substance abuse, the question becomes whether the court strikes any of his testimony, part of his testimony, or all of his testimony." Referring to cases in which courts refused to strike the witness's testimony when the questions the witness failed or refused to answer on cross-examination were not material, the court decided to strike a limited portion of defendant's direct examination for the purpose of ruling on the motion to exclude the statements. "It would be the court's intended ruling to strike from any consideration of the free and voluntariness of the confession anything relating to alleged illness, under the influence of any kind of controlled substance, any nausea, anything whatsoever that would be related to or affected by the use of controlled substances and that in fact subject to either counsel arguing would be the court's ruling, leave the balance of the testimony going to whether or not the defendant was properly advised at a certain stage of the proceedings.... In other words, anything relating to his state of mind because of the alleged use of narcotics is stricken because the defense — Mr. Lucas is refusing to answer those questions...." The court concluded it "did what [defense counsel] asked" — apparently referring to counsel's decision to waive the voluntariness claim rather than direct defendant to answer questions regarding his drug use in the period before his interrogation.
On appeal, defendant concedes defense counsel waived his claim that the statements to the police were involuntary, but he argues that the decision to waive the claim was incompetent. He maintains that counsel should not have objected to the prosecutor's questions regarding his earlier drug use, and that counsel should have pursued the claim that defendant's statements were involuntary as the product of drug withdrawal. He argues there could be no rational tactical basis for counsel's waiver of the voluntariness claim, as any evidence produced regarding defendant's earlier drug use could only have supported defendant's defense at trial that he killed in a drug-induced stupor.
The question remains whether counsel's failure to make the argument was incompetent representation.
Further, in the context of the hearing, counsel were faced with the court's threat to strike defendant's entire testimony unless counsel abandoned the voluntariness claim. As we have noted above, counsel could reasonably decide it was more important to preserve the Miranda claim than it was to pursue the voluntariness claim on either ground asserted here. On the basis of the appellate record, we cannot say that counsel's decision not to pursue the voluntariness claim on this basis was an incompetent one.
The police, however, had no obligation to make a tape recording of the Miranda advisements or the rest of the interrogation, or to take notes of the interrogation, and their failure to do so did not deprive the People of the ability to establish the voluntariness of any statements. (See People v. Marshall (1990) 50 Cal.3d 907, 925 [269 Cal.Rptr. 269, 790 P.2d 676] [waiver of Miranda rights not ineffective merely because Miranda advisements and waivers not memorialized]; see also People v. Marquez (1992) 1 Cal.4th 553, 571 [3 Cal.Rptr.2d 710, 822 P.2d 418] [same].)
More significantly, we disagree with defendant's premise that an attorney is necessarily incompetent for failing to raise the issue of voluntariness if the appellate record fails to establish the voluntariness of a statement by a preponderance of the evidence. The sparseness of the record on appeal reflects not the merits of defendant's voluntariness claim but the reality that the issue was not fully litigated below and that the People were not put to their burden of proof. On appeal, we do not examine the existing record to attempt to divine whether the People could have carried their burden of proof had they been put to the test. Defendant fails to recognize that the silence of the record works against him when the claim we review on appeal is not whether the statement was involuntary, but whether counsel was incompetent for failing to claim it was involuntary. Our decisions recognize counsel's omission legitimately may have been based in part on considerations that do not appear on the record, including confidential communications from the client. (People v. Jenkins (1975) 13 Cal.3d 749, 755 [119 Cal.Rptr. 705, 532 P.2d 857].) Accordingly, we presume counsel's decision not to raise the claim was a reasonable, tactical one unless the record affirmatively demonstrates otherwise. (Pope, supra, 23 Cal.3d at p. 426; see also People v. Zapien, supra, 4 Cal.4th at p. 980; People v. Fosselman (1983) 33 Cal.3d 572, 581 [189 Cal.Rptr. 855, 659 P.2d 1144].) Defendant fails to persuade us that the record demonstrates counsel had no reasonable tactical basis for the decision to waive the voluntariness claim.
We disagree. Defense counsel have no power to prevent their clients from testifying. (People v. Lucky (1988) 45 Cal.3d 259, 281 [247 Cal.Rptr. 1, 753 P.2d 1052]; People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710].) We cannot tell from the record on appeal whether or not counsel advised defendant to take the stand. In any event, such advice goes to the heart of trial tactics (see People v. Frierson (1985) 39 Cal.3d 803, 814 [218 Cal.Rptr. 73, 705 P.2d 396]; People v. Trotter (1984) 160 Cal.App.3d 1217, 1224-1225 [207 Cal.Rptr. 165]), and for that reason rarely would support a claim of ineffective assistance of counsel.
2. Boxer shorts.
The record shows that at trial, Detective Kushner testified that he personally recovered the blue jeans and boxer shorts from defendant's house when he executed the search warrant. He noted that he only listed the jeans in the return to the search warrant, and that when he examined the jeans at the crime laboratory, he discovered the boxer shorts inside them. As defendant points out, however, at the preliminary hearing, Kushner testified that he did not personally seize the jeans during the search of defendant's residence. Rather, Kushner testified that during the search of defendant's home, another deputy handed him a paper bag containing the jeans found in defendant's residence, and Kushner found the boxer shorts inside the jeans when he and Detective Morck delivered the paper bag to the crime laboratory. A written sheriff's department report stated that Detective Morck submitted to the crime laboratory a bag containing the jeans and boxer shorts, and the receipt number given these items matched the receipt on the jeans and boxer shorts. A criminalist testified that the blood on the boxer shorts was consistent with the blood of victim Edwin Marriott, but not with defendant's blood.
We do not see a strong claim that counsel would have prevailed in excluding the shorts on chain of custody grounds. Although the identity of the deputy who actually seized the blue jeans from defendant's home is somewhat uncertain on this record, there does not appear to be much question that the sheriff's deputies seized the jeans from defendant's home during the search and that thereafter Detective Kushner found the bloodstained boxer shorts inside the jeans when he turned the evidence over to the crime laboratory. Defendant identified the jeans as his.
Even if we concluded defendant is correct that there was a flaw in the chain of custody, the record does not establish that counsel were incompetent in failing to object on this ground to the admission of the evidence. "[T]he mere fact that counsel, had he [or she] chosen another path, `might' have convinced the court to issue a favorable evidentiary ruling, is not enough to carry defendant's burden of demonstrating [incompetence]...." (People v. Jennings (1991) 53 Cal.3d 334, 379 [279 Cal.Rptr. 780, 807 P.2d 1009].) Rather, as we have explained, a conviction will not be reversed unless the record on appeal demonstrates counsel had no rational purpose for the failure to object, and the failure was prejudicial. (People v. Rodrigues, supra, 8 Cal.4th at p. 1121; People v. Zapien, supra, 4 Cal.4th at p. 980.)
As we observed in People v. Diaz, supra, 3 Cal.4th 495, it is common and proper for counsel to stipulate to the chain of custody. (Id. at p. 560.) Flaws
Defendant also faults counsel for failing to argue to the jury that the evidence of the boxer shorts was unreliable. We reject the claim. Counsel did seek to undermine the impact of the boxer shorts evidence during cross-examination of prosecution witnesses by establishing that the shorts were actually discovered in the crime laboratory, not in defendant's home, and by eliciting testimony that the blood on the shorts was consistent with the blood of four million residents of Los Angeles County. The impeachment value of these points was relatively slight, however. We cannot fault defense counsel for failing to argue the matter in closing, when the primary defense was that defendant committed the homicides but lacked the mental state necessary to establish murder because of gross excess in ingesting drugs. (See People v. Freeman, supra, 8 Cal.4th at p. 499 [difficult to defend simultaneously on grounds of total innocence and lack of intent].)
3. Closing argument.
Defense counsel must not argue against his or her client (People v. Lang (1974) 11 Cal.3d 134, 139 [113 Cal.Rptr. 9, 520 P.2d 393]), but it is settled that it is not necessarily incompetent for an attorney to concede his or her client's guilt of a particular offense. (People v. Cain (1995) 10 Cal.4th 1, 30 [40 Cal.Rptr.2d 481, 892 P.2d 1224]; People v. Freeman, supra, 8 Cal.4th at p. 498; People v. Mayfield (1993) 5 Cal.4th 142, 177 [19 Cal.Rptr.2d 836, 852 P.2d 331].) It is also settled that counsel's concession of guilt on one or more charges at the guilt phase of a capital trial is not the equivalent of a guilty plea, requiring defendant's express waiver. (People v. Cain, supra, 10 Cal.4th at p. 30; People v. Griffin (1988) 46 Cal.3d 1011, 1029 [251 Cal.Rptr. 643, 761 P.2d 103].)
Given this evidence, "`[i]t is entirely understandable that trial counsel ... made no sweeping declarations of his client's innocence but instead adopted a more realistic approach.... As stated in a recent case, "good trial tactics demanded complete candor" with the jury. [Citations.] Under the circumstances we cannot equate such candor with incompetence.'" (People v. Wright, supra, 52 Cal.3d at p. 415; see also People v. Jones (1991) 53 Cal.3d 1115, 1150 [282 Cal.Rptr. 465, 811 P.2d 757] [within permissible range of tactics for counsel to recognize weakness of defense in closing argument]; People v. Wade (1988) 44 Cal.3d 975, 988-989 [244 Cal.Rptr. 905, 750 P.2d 794] [counsel may reasonably concede guilt and emphasize mental defenses].)
Defendant claims counsel argued against him by admitting there was no "mitigating" evidence other than that presented at trial, as follows: "Do you believe for a minute if there wasn't [sic] something very favorable to defendant that I wouldn't have presented it to you?" The statement does not seem to be an argument against defendant, and in any case, defendant takes the statement out of context. Counsel was arguing that both defense counsel's and the prosecutor's arguments were only their own views based on the same evidence available to the jury. Counsel pointed out that neither the prosecutor nor defense counsel had additional evidence, or they would have presented it. In this context, the challenged statement is innocuous.
Defendant also claims counsel argued against him by admitting that the photographs of the victims were gruesome and that the jury would not be human if these photographs did not cause them to feel "revulsion for what happened or an anger toward [defendant]." Again, defendant takes the statement out of context. Counsel made two legitimate points: that the jury should not allow itself to be swayed by its emotion upon viewing the photographs, and that the frenzied attack depicted in the photographs supported the mental defense counsel had offered.
In sum, the record does not support the claim that counsel's closing argument was incompetent.
Accordingly, we reject all the above claims of ineffective assistance of counsel.
B. Admission of photographs.
Defendant claims that the trial court responded to his motion to exclude the photographs by focusing only on the question whether the photographs were material evidence. He argues that Evidence Code section 352, under which he made the motion to exclude, requires the court to balance, on the record, the probative value of challenged evidence against its prejudicial impact. He also claims the record shows the court gave undue deference to the testimony of a prosecution expert regarding the relevance of the evidence to the prosecution case.
Defendant is mistaken. As we have stated, "the trial [court] need not expressly weigh prejudice against probative value — or even expressly state that [it] has done so." (People v. Mickey (1991) 54 Cal.3d 612, 656 [286 Cal.Rptr. 801, 818 P.2d 84].) Here, as to the challenged evidence, the court heard extensive argument on both prejudice and probative value. The court was initially of the view that several of the photographs were "inflammatory
The record does not disclose that the court unduly deferred to the opinion of the expert. The expert, the coroner who performed the autopsies on the victims, testified outside the presence of the jury that photographs in which the images were obscured by blood would be less useful to "illustrate" his trial testimony than images in which the blood had been wiped away. He indicated that each photograph would be valuable to demonstrate what injuries had been inflicted and how much blood was lost over what period of time. Thus, the expert offered testimony tending to show the probative value of the photographs. The court did not err in relying on the expert's testimony for the purpose of fact finding, and it is clear from the record that the court drew its own conclusions on the ultimate question of law presented to it.
Defendant argues the evidence should have been excluded because it was cumulative to the testimony of the coroner. He adds that the evidence must have been unnecessary to illustrate the coroner's testimony because it was admitted and submitted to the jury eight days after the coroner's testimony. He also urges the photographs were irrelevant to the charged torture-murder special circumstance because they "merely depicted the [victims'] bodies at the crime scene." Finally, he argues that the photographs were gruesome, graphic and inflammatory.
We review the trial court's order denying defendant's motion to exclude the photographs pursuant to Evidence Code section 352 for abuse of discretion. (People v. Ashmus (1991) 54 Cal.3d 932, 973 [2 Cal.Rptr.2d 112, 820 P.2d 214].) As we have explained, "a trial court has broad discretion in determining the admissibility of murder victim photographs in the face of a claim ... they are unduly gruesome or inflammatory." (People v. Wilson (1992) 3 Cal.4th 926, 938 [13 Cal.Rptr.2d 259, 838 P.2d 1212].)
We see no abuse of discretion here. We have viewed the photographs. The photographs admitted at trial are small. They are rather clinical in appearance, and are not unduly gruesome. Both the prosecutor and defense counsel cautioned the jury against being swayed by passion upon viewing the photographs. We do not believe that their number, though relatively large, created such a cumulatively prejudicial impact that it was an abuse of discretion to admit them. The photographs were relevant to corroborate and illustrate the testimony of the coroner concerning the number and nature of
C. Preclusion of defense evidence.
Defendant claims a combination of incompetence of counsel, judicial error and prosecutorial misconduct deprived him of crucial defense evidence in violation of his right to due process, a fair trial and a reliable verdict under the Sixth, Eighth and Fourteenth Amendments of the federal Constitution and parallel provisions of the California Constitution. Specifically, he claims that defense witnesses Croffoot and Sandoval would have testified and presented evidence of his intoxication and unconsciousness at the time of the crimes had not incompetence of counsel and prosecutorial intimidation caused them to invoke their privilege against self-incrimination. Once the witnesses invoked the privilege, he claims, the court should have extended judicial immunity to assure defendant a fair trial. Finally, defense counsel should have offered the witnesses' out-of-court statements to a defense investigator, statements defendant claims were admissible under the hearsay exception for statements against penal interest. Defendant also claims that as a matter of due process, the evidence should have been admitted even if it was hearsay. He alleges his defense was severely compromised by the loss of independent evidence of his intoxication, evidence he claims was needed to show he lacked the specific intent necessary to establish first degree murder and burglary felony murder.
Outside the presence of the jury, defense counsel stated the witness had been advised by the public defender, and the court asked that the public defender be present. The prosecutor added, "Your honor, it's also my information, hearsay but my information nonetheless that Mr. Sandoval was convicted on January the 20th of this year of sale of PCP and sentenced to four years in state prison. [¶] I don't know if that's true or not. I notice he came in the public door rather than the private door. I don't know if that case is back —" Defense counsel interjected: "You know those early parole problems." The prosecutor continued: "I also have a copy of the police report [in] which he is one of the named suspects in a conspiracy to defraud by means of bad checks. At one point it was our belief there was a warrant for his arrest on that and I don't know if there is a warrant in the system now or not."
The court noted that the witness's counsel was unavailable until the following week. The prosecutor suggested: "Why don't we excuse ourselves, you and Mr. Sandoval have a little chat. It may be that Mr. Sandoval voluntarily can convince you there's no danger of him implicating himself...." The court accepted the suggestion and spoke with the witness in an in camera session the transcript of which was sealed. After this discussion, the court ordered the witness to consult with an attorney in the public defender's office and return the following day.
Sandoval failed to appear the following day and therefore the court issued a bench warrant for his arrest. The prosecutor asked for a copy of the warrant to enable local police to try to secure Sandoval's appearance in court. Defense counsel accepted the prosecutor's offer of police assistance. Apparently Sandoval failed to appear because he was arrested on an outstanding warrant (not the bench warrant) the day he was to appear.
Next, defense counsel proposed to call Croffoot to testify about being with defendant for part of the evening of the crime and either using narcotics or
The following colloquy ensued:
"The Court: [Mr. Ayers has volunteered to advise Mr. Croffoot] regarding his constitutional rights as he is the next intended witness and he was going to testify as I kind of surmise that he was with Mr. Lucas part of the evening in question and was either using narcotics or saw narcotics being used or something to that nature, without going into it in detail. [¶] Have you had a chance to interview him?
"Mr. Ayers: Yes.
"Mr. Watson [the prosecutor]: Can I interrupt the court and counsel, and I apologize. I think the record should further reflect I had a chance to talk to Mr. Ayers in the presence of both defense attorneys to impart to him some information about the status of our case, where we are, what's going on. I told him a little about [Sandoval] and then the defense attorneys had a chance to consult with him without me being present, and I didn't tell them one thing that I should tell him, and he may already know it, I don't know."
The prosecutor then informed Croffoot's counsel that evidence received at trial indicated Croffoot may have been with defendant up to half an hour before the crimes. He added: "[T]here is no evidence more than one person did it, but, you know, that's obviously open to speculation."
The court asked Ayers whether he had consulted with Croffoot, and Ayers responded: "I have talked to Mr. [Croffoot]. From things he has told me about his personal situation I have advised him to invoke [the privilege against self-incrimination]."
Croffoot was called to the stand, and outside the presence of the jury, defense counsel asked him whether he had seen Sandoval and defendant on the date of the crime. He refused to answer. He also invoked the privilege as to questions about what he did all that day, and about the use of controlled substances on that day with defendant and Sandoval. He also invoked the privilege as to questions regarding his activities with Sandoval and defendant up to 10 or 11 o'clock on the night of the crime. The court sustained the exercise of the privilege.
The prosecutor responded that the witnesses might incriminate themselves, not for drug charges, but for being accomplices, since an independent witness saw them with defendant near the time of the crime.
The court found both witnesses had exercised their Fifth Amendment right to remain silent, Sandoval partly by "footwork." The court denied the motion for mistrial, saying defendant would not benefit from any delay because no competent attorney would advise these witnesses to testify, as they apparently were with defendant up until moments before the crime.
Then Sandoval appeared, and outside the presence of the jury, responded to defense counsel's question whether he could answer a series of questions relating to his activities on October 15, 1986, in the company of Croffoot and defendant, and about the use of drugs and "various other activities" that day. Sandoval announced that he would refuse to answer on the ground the answers would tend to incriminate him.
1. Defense counsel's questioning.
Defendant's claim depends on the assumption the court would have required the witnesses to answer questions regarding their observation of
Defendant's claim depends upon an unduly restrictive view of the privilege against self-incrimination.
Further, as we have noted, "our Evidence Code provides that when a witness grounds refusal to testify on the privilege against self-incrimination, a trial court may compel the witness to answer only if it `clearly appears to the court' that the proposed testimony `cannot possibly have a tendency to incriminate the person claiming the privilege.' (Evid. Code, § 404.)" (People v. Cudjo, supra, 6 Cal.4th at p. 617.)
Moreover, the prosecutor made it clear that independent witnesses placed Sandoval and Croffoot with defendant at a time close to the time of the crimes, and placed Croffoot with defendant as little as half an hour before the murders. The prosecutor also explained that the physical evidence did not rule out the possibility that more than one person perpetrated the murders. Thus, not only could any question about the witnesses' observations regarding defendant's drug ingestion provide a link in the chain of evidence establishing their own illegal use of drugs, but, as the prosecutor chillingly pointed out, any testimony useful to establish defendant's state of intoxication near the time of the crime could provide a link in the chain of evidence tending to incriminate the witnesses as accomplices or accessories in a double murder. (See People v. Ford, supra, 45 Cal.3d at p. 442, fn. 7 [if no alibi defense, witness may invoke privilege regarding association with defendant prior to crime because of risk of inference of aiding and abetting the defendant].) The possibility is at best remote that had defense counsel framed their questions differently, the court would have required the witnesses to answer questions regarding their activities with defendant on the night of the crimes. Nor can we evaluate whether any alleged incompetence was prejudicial, without a record that establishes the answers to such questions.
Defendant's reliance on Brown v. United States (1958) 356 U.S. 148 [2 L.Ed.2d 589, 78 S.Ct. 622, 72 A.L.R.2d 818] for the proposition that a witness may testify as to certain matters, but may invoke the privilege on cross-examination before the reliability of his testimony has been tested fully, is misplaced. In Brown, the court held that a defendant who took the stand in her own defense could not refuse, on the ground of the privilege against self-incrimination, to answer questions on cross-examination relevant to her testimony on direct examination. The court reasoned that such a witness voluntarily waives the privilege when she volunteers to testify. The high court distinguished a case in which a witness compelled by subpoena to testify in a bankruptcy proceeding was permitted to invoke the privilege for the first time in cross-examination. The court pointed out that in such a case, the witness had no occasion to invoke the privilege until testimony was sought that would tend to incriminate. At that point, the invocation had to be
The People argue defense counsel had no obligation to ask specific questions and require the witnesses to invoke the privilege as to each, citing People v. Cornejo (1979) 92 Cal.App.3d 637, 658-659 [155 Cal.Rptr. 238].) In that case, the Court of Appeal determined the court had no obligation to require the "meaningless ritual" of asking a litany of specific questions of a witness who had made it clear he would answer no questions and would invoke the privilege as to any relevant question. In Cornejo, the court had information before it making it plain that the witness's federal parole prohibited him from acting as an informant, but that "[a]ll relevant questions which would have been posed to [the witness] could only have related to his activities as an informant." (Id. at p. 658; see also People v. Hill (1992) 3 Cal.4th 959, 991 [13 Cal.Rptr.2d 475, 839 P.2d 984] [no need to conduct meaningless ritual of requiring witness to invoke privilege before jury].) The Cornejo case is of limited relevance, however, because there was no claim, as here, that counsel was ineffective for failing to pursue a certain line of questioning that would not present a danger of incriminating the witness. To the extent it was clear to counsel in this case, however, that the witnesses intended to invoke the privilege as to any question regarding their activities with defendant on the night of the crimes, such a circumstance does undermine defendant's claim that counsel should have put other questions to the witnesses.
2. Prosecutorial misconduct.
The People counter that defendant waived the issue when he failed to object on the same basis below. (See People v. Benson, supra, 52 Cal.3d at p. 794 [claim of misconduct waived if no objection, unless harm could not have been cured].) Defendant argues that any failure to object establishes ineffective assistance of counsel. Further, the claim involves a question of fundamental fairness, and any misconduct, had it existed, could not readily have been cured by the trial court's intervention, in contrast to other instances of prosecutorial misconduct in the course of trial. Accordingly, we may reach the merits of the claim. (See, e.g., People v. Hawkins (1995) 10 Cal.4th 920, 948-949 [42 Cal.Rptr.2d 636, 897 P.2d 574]; People v. Wash, supra, 6 Cal.4th at pp. 270-271; People v. Clark (1993) 5 Cal.4th 950, 1013 [22 Cal.Rptr.2d 689, 857 P.2d 1099].)
Defendant is unable to carry the first part of his burden, that is, to show that the prosecutor acted improperly. Contrary to defendant's argument, it is
Similarly, with respect to witness Croffoot, it was the court that initiated inquiry into his exercise of the privilege against self-incrimination and insisted that he consult independent counsel on the point. The prosecutor did not address the witness or threaten prosecution, but merely pointed out to the witness's counsel the rather obvious point that although there was no evidence that more than one person was involved in the crime, a witness who testified he was with the defendant up to half an hour before the crime could not be ruled out absolutely as an accomplice. As the court later said, no competent attorney would have advised either witness to testify. Again, we see no evidence the prosecutor acted improperly.
In any event, whether or not it was proper for the prosecutor to point out in front of the witness that the latter could not be ruled out as an accomplice under the facts of the case, it is clear that the prosecutor's comment was not a substantial cause of the witness's decision to refuse to testify. Rather, the record demonstrates that before the prosecutor made the allegedly coercive statement, Croffoot's counsel had already advised Croffoot to invoke his privilege against self-incrimination because of information Croffoot related about his "personal situation."
Defendant may be understood to argue the prosecutor's refusal to grant Sandoval or Croffoot immunity for murder charges was also misconduct, as it was allegedly unconscionable and interfered with defendant's right to present a defense. As we have observed, the defendant has no power to force the prosecution to grant immunity to defense witnesses. (In re Williams, supra, 7 Cal.4th at p. 609.) In any event, defendant did not request such immunity below, but only requested that the prosecutor offer immunity for any drug charges arising from the witnesses' testimony. The issue is not preserved for review. (People v. Cudjo, supra, 6 Cal.4th 585, 619 [barring issue and noting lack of authority requiring prosecutor to offer immunity to defense witnesses].) No claim of ineffective assistance of counsel appears in this connection.
3. Failure to grant judicial immunity.
Here, defendant did not request judicial immunity in the trial court. He failed to direct the court's attention to any authority in support of such immunity, and he did not attempt to meet the standards expressed in the one federal case recognizing such judicial power. (Government of Virgin Islands v. Smith (3d Cir.1980) 615 F.2d 964, 972 (Smith).) We conclude he waived the claim. (People v. Cudjo, supra, 6 Cal.4th at p. 619 [failure to request immunity from either prosecutor or court waives issue on appeal].)
Further, defendant cannot meet another element of the Smith standard, that is, "there must be no strong governmental interests which countervail against a grant of immunity." (Smith, supra, 615 F.2d at p. 972, fn. omitted.) Obviously, as the prosecutor stated, it was contrary to the People's interest to grant immunity to one potentially involved in a double murder. Defendant failed below, and fails now, to show that immunity for any drug offenses would have been effective in procuring the testimony of the witnesses, or that any broader grant of immunity would not have countervailed a strong governmental interest in the prosecution of serious crimes such as murder. Accordingly, assuming arguendo that the issue was preserved and that there is any judicial authority to grant immunity, we reject the claim.
4. Exclusion of defense investigator's testimony.
On appeal, defendant argues Lupori's testimony was admissible because Croffoot and Sandoval's statements were admissible under Evidence Code
With respect to the claim of ineffective assistance of counsel, we cannot say on the appellate record that defendant would or should have prevailed
Defendant now claims Croffoot and Sandoval's statements to Lupori would have shown the vast amount of drugs defendant absorbed in the day before the crime, and would also have shown how extremely impaired defendant was by this overindulgence. Defendant did not include in his offer of proof to the court, either when the evidence was offered or when the motion for new trial was made, the material he cites now. This material, consisting of an unsworn memorandum by defense counsel, apparently addressed to the prosecutor, and relating what the defense investigator told counsel that Sandoval and Croffoot had told the investigator, was presented to the court during an unrelated hearing after the end of the guilt phase, after this issue was litigated. We cannot rely on unverified double hearsay as an appropriate or reliable basis for evaluating on direct appeal whether
We also reject defendant's argument that the trial court erred in refusing to permit Lupori's testimony regarding statements made to him by Croffoot and Sandoval under the authority of Chambers v. Mississippi, supra, 410 U.S. 284. In that case the trial court excluded defense evidence relating to a witness's out-of-court confessions because Mississippi law excluded hearsay without any exception for statements against penal interest. State law also precluded cross-examination of non-adverse witnesses, so defendant was unable to cross-examine the witness regarding his prior confession when the witness denied complicity on the stand. The high court explained that evidence of the out-of-court confessions was critical to the defense but was excluded despite overwhelming indicia of reliability. (Id. at pp. 302-303 [35 L.Ed.2d at pp. 312-314].) It declared that the exclusion of this evidence, along with limitations on the defendant's ability to cross-examine the witness, were a denial of due process in that they deprived defendant of the right to present a defense. (Id. at pp. 294, 297-298, 302 [35 L.Ed.2d at pp. 308, 310-311, 312-313]; see also People v. Hawthorne (1992) 4 Cal.4th 43, 56 [14 Cal.Rptr.2d 133, 841 P.2d 118] [interpreting Chambers as holding, in particular circumstances of case, that combined effect of state rules of evidence violated defendant's right to present defense by "exclud[ing] potentially exculpatory evidence crucial to the defense"].)
D. Admission of evidence of condition of defendant's car.
Defendant testified that as he was somewhat estranged from his wife and family because of his drug abuse, he lived periodically in his car. He testified that on the night of the crimes, he passed out and recalled being in a hall where he was pursued by long faces he thought looked like "fright masks." He struck out at the faces, then ran off. He next vaguely remembered driving, then woke up in his car which was then parked at the beach. His hand was stuck to the seat with blood, but there was no other blood on his person.
On cross-examination, defendant testified his car was messy. He explained he believed his car had been impounded, but that it had been found far from the beach. He had no idea how it got there. He had heard that when the car was recovered, it was completely clean, and had nothing in it. When the prosecutor asked how this occurred, defense counsel objected on the ground of lack of foundation. The court did not rule on the objection but asked defendant if he knew how the car got moved and cleaned, and defendant said he had no idea. Defendant identified photographs of the car. Defense counsel objected at the bench "to this entire line of questioning, particularly the photographs, and apparently there is in [the prosecutor's] mind some way of laying a foundation for it, but apparently this is the car that was taken after he was arrested and found some miles away some days away [sic], and his cross-examination is seeking to hold him responsible for it in some fashion. [¶] I object to this whole line of questioning and the photographs." The court asked the prosecutor: "Without any further foundation how is it relevant? ... You have basically a car that's being introduced that's been cleaned by somebody." The prosecutor explained that although the car looked lived in when defendant was arrested, "It's my opinion out of guilty knowledge of what he did he called from the Orange County Jail to somebody, told them where the car was, told them to go get
The People contend defendant cannot now claim the court erroneously admitted irrelevant evidence because defendant objected to the line of questioning on the ground of lack of foundation, not irrelevance. As we have noted, however, the trial court evidently understood the objection as encompassing a relevancy claim, so we will reach the merits.
The trial court has the preliminary, but not the final, authority to determine the question of the existence of the preliminary fact. Unlike in other situations (see, e.g., People v. Alcala (1992) 4 Cal.4th 742, 787 [15 Cal.Rptr.2d 432, 842 P.2d 1192] [preliminary fact of competence of witness is question for court under Evidence Code sections 402 and 405]), under Evidence Code section 403, "[t]he preliminary fact questions listed in subdivision (a) [of Evidence Code section 403] ... are not finally decided by the judge because they have been traditionally regarded as jury questions. The questions involve the credibility of testimony or the probative value of
Defendant denied causing the car to be moved and cleaned, however, and no other evidence was forthcoming to establish the preliminary fact of his involvement. Unless the court concluded the jury could find it was more likely that defendant, who presumably had the keys, was responsible for having the car moved and cleaned, than that a car thief did so, the court probably should have instructed the jury to disregard the proffered evidence regarding the condition of defendant's car. (Evid. Code, § 403, subd. (c)(2)
E. Claims of instructional error.
Defendant points out that the original reporter's transcript of the court's delivery of the jury instructions reflects that the court interjected the word "No" at the beginning of the instruction, so that it appeared the jury was instructed that no evidence of unconsciousness had been presented. An instruction that no evidence of unconsciousness had been presented would be in error, of course, given defendant's testimony.
Defendant contends that the People's motion to correct the record was untimely, that the trial court based its ruling on a misunderstanding of the court reporter's testimony and that we should remand the matter for a full evidentiary hearing.
It is true that the People's motion was untimely under rules 39.5(d) and 35(c) of the California Rules of Court, governing motions to correct the record on appeal. Sufficient justification for relief from default existed, however, as the error consisted of the omission of a single word in a transcript of thousands of pages, and would only be noticed by the People after the defendant raised the matter in his opening brief. Further, defendant does not show how this tardy application to correct the record prejudices him or denies him the right to an effective appeal. Contrary to defendant's contention, the court reporter was confident, despite the passage of time, simply from a review of the physical appearance of her original notes, that her finger had mistakenly brushed the key on her machine for the word "no" during the giving of the relevant instruction. She was certain that the computer that transcribed her notes mistakenly entered the word, although it was obvious she had not intentionally stricken the key. She explained that her notes, and indeed, any reporter's notes, were filled with these "shadow" keystrokes, which usually but not always are corrected when the reporter proofreads the computer transcription. The reporter was absolutely confident there was an error in the transcription, and that the court did not utter the word "no."
We see no abuse of discretion in denying the request for a further continuance. The court continued the matter once to give defendant an opportunity to gather evidence. He failed to do so, and though he asked for a full hearing, failed to explain what further evidence was needed or why it would be forthcoming only after a further continuance.
We conclude the record demonstrates that the court did not misinstruct the jury with respect to the defense of unconsciousness.
2. Flight instruction.
CALJIC No. 2.52 informed the jury that "[t]he 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 you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine."
We have observed that "[a] flight instruction is proper whenever evidence of the circumstances of defendant's departure from the crime scene or his usual environs, ... logically permits an inference that his movement was motivated by guilty knowledge." (People v. Turner (1990) 50 Cal.3d 668, 694 [268 Cal.Rptr. 706, 789 P.2d 887].) Here, defendant's testimony itself suggested he fled in panic from the scene, though he claimed he fled from what he assumed were nightmare visions. There was evidence he was away from his home for several days after the crime. In addition, the evidence of the bloody jeans and boxer shorts found in his home could support the
Defendant's claim that his departure belonged to a pattern of drug binges and was not occasioned by guilty knowledge merely suggests an alternative interpretation of the evidence. There was sufficient evidence, nonetheless, from which a jury could infer he fled out of guilty knowledge. The instruction properly left it to the jury to determine which inference was more reasonable.
Defendant claims the prosecutor misled the trial court on the question whether it should deliver the flight instruction by claiming the instruction should be given because defendant's employer testified that defendant was "home every night all the time but didn't come home the night of the killings and wasn't there the following morning." The claim of prosecutorial misconduct was not raised below and was therefore waived. (People v. Rowland, supra, 4 Cal.4th at pp. 274-275.) Defendant claims counsel's failure to object was ineffective assistance of counsel. We disagree. The court was quite capable of considering the evidence in support of the instruction itself, and in fact, was not convinced by the prosecutor's allegation, but reserved its ruling on the propriety of the instruction. When the matter came up again, the prosecutor claimed the instruction was appropriate, relying on evidence of the bloody pants in defendant's home, and on the testimony of employer Perez that defendant was regularly employed on October 15 but did not check in for work on the 16th, that when Perez called defendant's home, he found defendant had not spent the night at home and that defendant did not reappear for work. This was not a mischaracterization of the record.
F. Alleged prosecutorial misconduct in closing argument.
The prosecutor's criminalist analyzed the genetic make up of enzymes and proteins in blood samples he received from Edwin and Mary Marriott and from defendant. He testified that only .000099 percent of the population have genetic markers like Edwin Marriott, while .00042 have genetic markers consistent with Mary Marriott's. He testified that .000047 percent of the
On cross-examination, the expert testified that not all the relevant genetic markers were present in the bloodstains on the jeans and boxer shorts. Accordingly, he could only say that the blood on the jeans could have been contributed by 900,000 persons out of the Los Angeles population of 8,000,000 — including defendant. Similarly, because some of the genetic markers could not be ascertained as to the blood on the boxer shorts, the expert could only say that the blood could have been left by anyone in half the population of Los Angeles — including Edwin Marriott. He could not testify that the blood on the jeans belonged to defendant.
On redirect, the expert said in none of his analyses of the items found at the crime scene did he find any indication there was a fourth donor of blood. If it were assumed that only Edwin and Mary Marriott and defendant bled on the items analyzed, he testified that only defendant could have bled on the jeans and only Edwin Marriott could have bled on the boxer shorts. On recross-examination, the expert said that he had no basis for assuming only three people contributed the blood "specimens," and that he did not collect the jeans and boxer shorts from the scene.
Defendant complains the prosecutor mischaracterized the evidence by asserting in closing argument that it was certain who bled on the articles recovered from the Marriott and Lucas homes and who bled in certain places within the Marriott home. He claims the prosecutor misled the jury about the statistical significance of the serological evidence, mischaracterizing his own expert's testimony. Specifically, he points to the prosecutor's argument that the serological evidence proved that the "paper towel had Mr. Lucas['s] blood on it, for sure a hundred percent" and that "the blood on the plaid shirt hanging in the closet is the defendant's" and "[t]he blood in the bathroom where he washed his hands ... and the blood in the kitchen ... Larry Lucas'[s] blood." Defendant also complains that the prosecutor said: "[t]he blood on the blue jeans, Larry Lucas'[s] blood; the blood on the underwear,
Defendant also complains that the prosecutor based the above arguments on the erroneous assumption that only three persons were present and contributed the bloodstains, arguing that the jury was "bound by the evidence, and the only evidence you've heard is that blood came from Edwin Marriott, blood came from Mary Marriott, and blood came from the defendant when he cut his hands. That's it. There's no evidence first of all that anybody else was even present, but if there was anybody else present there's no evidence that anybody else bled. The serologist said he saw no blood samples suggesting that there was a fourth type of blood, so you only have three to pick from."
Defendant acknowledges that he failed to object to the prosecutor's argument at trial (see People v. Hardy (1992) 2 Cal.4th 86, 171 [5 Cal.Rptr.2d 796, 825 P.2d 781] [failure to object to misconduct generally waives claim]), but argues that his failure to object should not operate as a waiver of the claim because the harm could not have been cured by a prompt objection and admonition to the jury. (See People v. Ledesma, supra, 43 Cal.3d at pp. 240-241 [recognizing exception to waiver rule]; People v. Carrera (1989) 49 Cal.3d 291, 320 [261 Cal.Rptr. 348, 777 P.2d 121] [same]; see also People v. Benson, supra, 52 Cal.3d at p. 794 [same].) In addition, he argues that the asserted misrepresentation of the serological evidence "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" (Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 157, 106 S.Ct. 2464].) In the alternative, he asserts the failure to object was ineffective assistance of counsel.
We see no reason why a prompt objection and admonition could not have cured the asserted harm of these remarks. (See People v. Wharton, supra, 53 Cal.3d at p. 566; People v. Kaurish, supra, 52 Cal.3d at p. 677.) The claim is waived.
In any event, we see no misconduct. Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Kaurish, supra, 52 Cal.3d at p. 567; see also People v. Bell (1989) 49 Cal.3d 502, 538 [262 Cal.Rptr. 1, 778 P.2d 129].) We find it obvious that the prosecutor was engaged in asking the jury to draw permissible inferences from the evidence.
Whether the inferences drawn by the prosecutor were reasonable was a question for the jury to decide. (People v. Edwards, supra, 54 Cal.3d at p. 839.) The jury was able to evaluate whether the absence of evidence that others were present and bled at the scene demonstrated to their satisfaction that no one else actually was present and bled, or whether additional blood could have been deposited on the items while they were in defendant's home. Further, the jury was instructed that the attorneys' arguments were not evidence (see People v. Raley, supra, 2 Cal.4th at p. 917 [pointing to this instruction in rejecting claim prosecutor mischaracterized evidence]), and that it was for the jury to decide whether facts assumed in hypothetical questions to experts have been proven. In sum, we find no misconduct, and therefore reject defendant's constitutional and state law claims.
When we examine the statements in context, it appears that the prosecutor was making a permissible argument that defendant's claim of unconsciousness was implausible in light of the physical evidence that whoever broke into the Marriott home did so methodically. That is, the first statement to which defendant now objects appeared in the context of the following argument: "When you sit and think about what was done, how the house was entered, glass was broken, defendant climbed in, murdered these people, searched their house, tore it apart, when you look at all that went on — I think sometimes you have to think you're in a dream world if somebody says to you an unconscious person did this, you've got to ask yourself what are they talking about, unconscious? You hear these words, to me you almost have got to think you're in the wrong courtroom." As for the second statement to which defendant objects, it was extracted from the following statement: "The first thing we have is the theft. He's sitting there in his car making up his mind, `I want more money or more dope, I'm going to steal.' There's circumstantial evidence of that; he's using his head. [¶] The door he picks. Would an unconscious man go around to the back where he couldn't be seen in a secret location? No, that's a conscious man. An unconscious man would probably stumble through the front door, assuming unconscious people even commit burglaries. I think the whole notion is silly, but he picks the best door, the smart door where he's out of sight."
Viewing the statements in the context of the argument as a whole (see People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21 [275 Cal.Rptr. 729, 800 P.2d 1159] ["`arguments of counsel ... must be judged in the context in which they are made'"]), we do not believe the prosecutor argued that the jury should disregard the law on the defense of unconsciousness. Moreover, viewing the challenged statements in context, we do not believe there is a reasonable likelihood that the jury understood him to be making such an argument. (See People v. Berryman (1993) 6 Cal.4th 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40].)
G. Cumulative error.
Defendant claims the cumulative prejudice of the asserted judicial error, prosecutorial misconduct, and ineffective assistance of counsel requires
III. PENALTY TRIAL ISSUES
A. Capital charging decision.
At trial, defendant sought discovery pursuant to Murgia v. Municipal Court (1975) 15 Cal.3d 286 [124 Cal.Rptr. 204, 540 P.2d 44] in an effort to show the prosecutor charged special circumstances and was seeking the death penalty due to purposeful, invidious discrimination. The trial court directed the district attorney's office to provide discovery regarding its capital charging policies, and there was a hearing on the matter. The prosecutor's supervisor in the district attorney's office also testified regarding the office's charging practices and his reasons for deciding whether to seek the death penalty in this and a number of other recent cases. Much of this testimony occurred at a hearing held after the guilt verdicts were rendered, but before the penalty trial. The court concluded the district attorney's office had specific guidelines for making a capital charging decision which it had followed without caprice in this case. The court declared the capital charging decision to have been "fair and equitable."
Defendant did not allege prosecutorial misconduct in this connection at the trial court. Accordingly, the claim of misconduct was waived. (See
In any event, even if we were to reach the merits, we find no legal support for defendant's claim that he had a right to have the charging decision based upon all the evidence reasonably available to the district attorney's office and upon an accurate presentation of the evidence. Prosecutors have broad discretion to decide whom to charge, and for what crime. As we have observed, "[i]t is well established, of course, that a district attorney's enforcement authority includes the discretion either to prosecute or to decline to prosecute an individual when there is probable cause to believe he has committed a crime." (Davis v. Municipal Court (1988) 46 Cal.3d 64, 77 [249 Cal.Rptr. 300, 757 P.2d 11]; see also Bordenkircher v. Hayes (1978) 434 U.S. 357, 364 [54 L.Ed.2d 604, 611-612, 98 S.Ct. 663].) Absent proof of invidious or vindictive prosecution, as a general matter a defendant who has been duly convicted of a capital crime under a constitutional death penalty statute may not be heard to complain on appeal of the prosecutor's exercise of discretion in charging him with special circumstances and seeking the death penalty. (See Gov. Code, § 26501; People v. Pinholster (1992) 1 Cal.4th 865, 971 [4 Cal.Rptr.2d 765, 824 P.2d 571] [courts generally do not review capital charging decision unless there is invidious discrimination in prosecution]; People v. Morris (1991) 53 Cal.3d 152, 235, fn. 25 [279 Cal.Rptr. 720, 807 P.2d 949] [prosecutor's exercise of charging discretion generally "not pertinent to a review of a capital sentence"]; People v. Keenan (1988) 46 Cal.3d 478, 506 [250 Cal.Rptr. 550, 758 P.2d 1081] [prosecutor's exercise of discretion in capital charging not unconstitutional]; Murgia v. Municipal Court, supra, 15 Cal.3d at pp. 297, 300 [defendant may seek relief from invidious discrimination in prosecution]; see also In re Bower (1985) 38 Cal.3d 865, 874-877 [215 Cal.Rptr. 267, 700 P.2d 1269] [vindictive prosecution barred]; Twiggs v. Superior Court (1983) 34 Cal.3d 360, 369-374 [194 Cal.Rptr. 152, 667 P.2d 1165] [same].) Accordingly, the factual predicates for the prosecutor's charging decision should not be subject to scrutiny unless there is a claim of invidious discrimination or vindictive prosecution.
Defendant seems to argue that the guaranty of due process assures his right to have the prosecutor make the initial capital charging decision according to certain standards, and that the alleged misconduct of the trial
Although defendant does not explain his citation to Hicks, we surmise that he wishes to draw a parallel between the function of the jury in that case and that of the prosecutor vested with the charging decision in his case. In Hicks, the defendant had a right to a jury that properly exercised its sentencing discretion, and presumably defendant is claiming he has a due process right to have the prosecutor properly exercise his charging discretion in this case.
Defendant's claim that he has a right to have the prosecutor make the initial charging decision according to certain nonarbitrary standards has been rejected. (People v. Keenan, supra, 46 Cal.3d at p. 505.) Putting aside claims of invidious discrimination in prosecution or vindictive prosecution, which are not at stake here, we do not review the prosecutor's standards for seeking the death penalty to assure that they are fair and nonarbitrary. (Ibid.) Rather, we have determined that the "requisite `standards' are those minimum standards set forth in a constitutional death penalty statute. By acceptably narrowing the circumstances under which capital punishment may be sought and imposed, such a law satisfies the constitutional prohibition against arbitrary and capricious exaction of the death penalty." (Id. at p. 506.) We have similarly concluded that prosecutorial discretion in selecting the cases to be subject to a capital charge does not amount to a due process violation. (Id. at p. 505.) If we do not review the prosecutor's standards for making the capital charging decision, we certainly do not attempt to determine whether there was an accurate factual basis for the charging decision pursuant to the prosecutor's own internal charging standards. Defendant's claim that the prosecutor's alleged misstatements of the evidence caused the supervising deputy vested with ultimate charging discretion to fail to follow internal office charging policies is simply not subject to review in the absence of a claim of invidious discrimination or vindictive prosecution.
B. Issues affecting composition of jury.
1. Denial of right to impartial jury — limitation on examination of Juror Bojorquez.
The court conducted sequestered voir dire of prospective jurors, limiting its initial examination to "death qualification," that is, a determination whether each prospective juror had such conscientious or religious scruples about capital punishment that would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." (Adams v. Texas (1980) 448 U.S. 38, 45 [65 L.Ed.2d 581, 589, 100 S.Ct. 2521]; see also Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844].) The court asked each prospective juror whether he or she believed the death penalty should be imposed automatically after conviction of the charged crimes. The court permitted counsel to conduct voir dire on these points, as well.
In a capital case, of course, the court must permit counsel to ask each juror whether he or she believes the death penalty should be imposed automatically upon conviction of a capital offense. (Morgan v. Illinois, supra, 504 U.S. at pp. 735-736 [119 L.Ed.2d at pp. 506-507].) As a general matter, however, as we have recently declared, "`[T]he scope of the inquiry permitted during voir dire is committed to the discretion of the court.'" (People v. Champion (1995) 9 Cal.4th 879, 908 [39 Cal.Rptr.2d 547, 891 P.2d 93], quoting People v. Visciotti (1992) 2 Cal.4th 1, 48 [5 Cal.Rptr.2d 495, 825 P.2d 388].) We recognize the "`considerable discretion of the trial court to contain voir dire within reasonable limits.'" (People v. Wash, supra, 6 Cal.4th at p. 253.)
In this case, contrary to defendant's claim, the trial court did not prevent inquiry into the juror's beliefs regarding automatic imposition of the death penalty for capital crimes. The question was posed more than once. Nor did the court abuse its discretion by unduly restricting voir dire of Juror Bojorquez. (See People v. Chapman (1993) 15 Cal.App.4th 136, 141 [18 Cal.Rptr.2d 738] [abuse of discretion if questioning allowed is not reasonably sufficient to test the jury for bias or partiality]; People v. Chaney (1991)
Defendant claims in the alternative that any failure to exhaust peremptory challenges was ineffective assistance of counsel. The claim is meritless; the decision whether to accept a jury as constituted is obviously tactical, and nothing on the appellate record demonstrates counsel's tactical choice here was either unreasonable or prejudicial. In fact, were we to reach the merits of the claim that the court should have granted defendant's motion to exclude Juror Bojorquez for cause, we would reject it. Although at one point the juror stated she thought she "probably" would vote for the death penalty for any multiple murder, she also protested that she could not say she would impose the death penalty in every such case, that she would "have to listen to the to everything that went on," that she realized jurors "have to listen to the circumstances," and that she would be willing to listen to evidence regarding the defendant's background and keep an open mind in making the penalty determination. She did not express views "indicative of an unalterable preference in favor of the death penalty" (People v. Crittenden (1994) 9 Cal.4th 83, 123 [36 Cal.Rptr.2d 474, 885 P.2d 887]) such that her protestations that she would listen to all the evidence with an open mind and be fair
Assuming arguendo the issue was preserved, we reject the claim on the merits. Defendant's claim of juror bias is so insubstantial that we need not determine the extent of the trial court's power or obligation to excuse jurors on its own motion.
2. Request for new penalty jury.
The record discloses that during sequestered voir dire of several panels of prospective jurors and of two individual prospective jurors, the court explained the procedure involved in a capital trial, including the penalty phase of trial, noting that the prosecution would present evidence in aggravation, the defense would offer evidence in mitigation, and the court would instruct the jury as to the rules that would guide their penalty determination. Seven of the jurors who sat on defendant's jury heard this description. Defendant claims he objected to the court's characterization directly, but points to a portion of the record in which defendant objected to the prosecutor's use of questions that assumed defendant would present evidence in mitigation. The court explained, in response, that both counsel had a great deal of leeway in framing their questions. Defense counsel repeated he might or might not present evidence in mitigation, and the court directed him to prepare a typed statement signed by both counsel stating their reasons for not putting on any evidence in mitigation. Soon thereafter, defense counsel observed that the court had talked to two of the jurors about evidence in mitigation, and pointed out, "that may or may not be presented." The trial court simply called the next juror. Defendant claims he repeatedly objected to the court's repetition of his early explanation of penalty phase procedure but he offers no citations to the record in support, nor do we observe any further objections.
As in other cases in which we have analyzed the harm of misstatements of law during voir dire, the statements on voir dire long preceded the penalty phase, when the jury's attention would be focused on its sentencing responsibility. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1242 [9 Cal.Rptr.2d 628, 831 P.2d 1210] [district attorney's misstatements harmless in part because of time elapsed between voir dire and penalty trial]; People v. Pinholster, supra, 1 Cal.4th at p. 915 [same]; People v. Morris, supra, 53 Cal.3d at p. 182 [same].) In context, such statements would not be seen as instruction on the jury's function at the penalty trial, but merely as a brief introductory description or overview of the course of the trial. (See, e.g., People v. Morris, supra, 53 Cal.3d at p. 182 [misstatement on voir dire small part of larger statement giving overview of voir dire procedure].) Any potential for prejudice was obviated by the jury instructions, which did not suggest that defendant had any obligation to present evidence at the penalty trial. (See, e.g., People v. DeSantis, supra, 2 Cal.4th at p. 1243 [defects in voir dire cured by instructions and argument]; People v. Pinholster, supra, 1 Cal.4th at pp. 915-916 [same]; People v. Morris, supra, 53 Cal.3d at pp.
C. Ineffective assistance of counsel.
1. Failure to challenge Juror Melba Thompson for cause.
As we have noted above, a juror is subject to challenge for cause because of his or her views on the death penalty "only if those views would `prevent or substantially impair' the performance of the juror's duties as defined by the court's instructions and the juror's oath." (People v. Crittenden, supra, 9 Cal.4th at p. 121, quoting Wainwright v. Witt, supra, 469 U.S. at p. 424 [83 L.Ed.2d at pp. 851-852].)
Considering these responses, counsel could competently conclude that the juror's views on the death penalty would not "`prevent or substantially impair' the performance of the juror's duties as defined by the court's instructions and the juror's oath." (People v. Crittenden, supra, 9 Cal.4th at p. 121.) Certainly, she did not express such an unalterable preference for the death penalty that her claims to be able to put her views aside and follow the court's instructions must be rejected as hypocrisy or self-deception. (Id. at p. 123, cf. Morgan v. Illinois, supra, 504 U.S. at p. 735 [119 L.Ed.2d at pp. 506-507].)
Defendant also fails to show that the record "affirmatively discloses" there was no rational tactical purpose for accepting Ms. Thompson on the jury despite her favorable views on the death penalty and her deferential regard for expert opinion. (People v. Cox (1991) 53 Cal.3d 618, 658-659 [280 Cal.Rptr. 692, 809 P.2d 351] [defendant failed to demonstrate trial counsel's manner of conducting capital voir dire resulted from other than informed strategic decision].)
Defendant also argues in summary terms that counsel were incompetent for failing to move to exclude eight other jurors for cause. We have already rejected the claim the court should have removed the jurors on its own motion, concluding there was little basis for concluding the jurors had expressed views that "would `prevent or substantially impair' the performance of the juror's duties as defined by the court's instructions and the juror's oath." (People v. Crittenden, supra, 9 Cal.4th at p. 121, quoting Wainwright v. Witt, supra, 469 U.S. at p. 424 [83 L.Ed.2d at pp. 851-852].) Counsel, like the court, could competently conclude the jurors were not subject to exclusion for cause.
2. Failure to assert claim of jury misconduct.
The court examined Thompson about this incident. She assured the court that she did not hear anything that would cause her to have an adverse reaction toward either side in this case, and that the conversation did not affect her thinking about the case. She told defense counsel she was bothered by the conversation because she knew it was against the rules. The court admonished her not to discuss the matter with any other juror. The court asked counsel if there was any challenge, and counsel said no, though counsel "might want to raise it later when we find out who this individual is." No later challenge ensued.
It is true that a juror's "inadvertent receipt of information outside the court proceedings is considered `misconduct' and creates a presumption of prejudice, which, if not rebutted, requires a new trial." (People v. Zapien, supra,
Defendant claims counsel also failed to act reasonably diligently because, ignoring the stage of trial and the aggravating evidence Ms. Thompson had just heard, defense counsel failed to probe the impact of the characterization of defendant as "bad" and "violent." Our review of the record, however, indicates counsel did examine the juror on the impact of her conversation. That counsel did not use particular words in doing so does not establish incompetence.
D. Court's discharge of Juror Noone.
Defendant claims it was an abuse of discretion to excuse the juror so late in the proceedings for such a trivial cause.
The parties have framed the issue as one involving the court's discretion to excuse a juror for personal hardship, a determination that is reviewed for abuse of discretion. (See Code Civ. Proc., § 204, subd. (b); People v. Mickey, supra, 54 Cal.3d at p. 665.) It seems evident, however, that the court was actually discharging the juror, who had already been sworn, rather than excusing her from service. The court has authority to discharge a juror who has been sworn under section 1089, which provides: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box...."
As the People point out, defendant did not argue at trial that it was too late in the proceedings to discharge Ms. Noone for hardship. We have held that "[a] defendant may properly raise in this court a point involving an allegedly improper excusal for undue personal hardship only if he made the same point below. The requirement of a contemporaneous and specific objection
The court's decision whether to discharge a juror under section 1089 is reviewed for abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 975 [39 Cal.Rptr.2d 607, 891 P.2d 153]; People v. Fudge, supra, 7 Cal.4th at p. 1099; People v. Johnson (1993) 6 Cal.4th 1, 21 [23 Cal.Rptr.2d 593, 859 P.2d 673]; People v. McPeters (1992) 2 Cal.4th 1148, 1176 [9 Cal.Rptr.2d 834, 832 P.2d 146]; People v. Price (1991) 1 Cal.4th 324, 400 [3 Cal.Rptr.2d 106, 821 P.2d 610].) The juror's inability to perform must appear as a "demonstrable reality" and will not be presumed. (People v. Johnson, supra, 6 Cal.4th at p. 21; see also People v. Fudge, supra, 7 Cal.4th at p. 1099 [no abuse of discretion to discharge juror anxious about paperwork involved in termination of employment]; People v. Halsey (1993) 12 Cal.App.4th 885, 891 [16 Cal.Rptr.2d 47] [noting few cases have found abuse of discretion].)
We find no abuse of discretion. Although the juror stated the cancellation of her vacation would not affect the discharge of her duties as a juror, her behavior and demeanor supplied substantial evidence to the contrary. She had repeatedly brought the problem of the vacation to the court's attention, exhibiting concern and agitation over it. The court determined that the juror's demeanor indicated her ability to deliberate fairly would be substantially impaired if the penalty trial caused her to cancel her vacation. (See People v. Beeler, supra, 9 Cal.4th at p. 989 [recognizing importance of court's observation of juror's demeanor in reviewing decision to discharge].) We also observe that the juror would have felt some pressure to bring the penalty deliberations to a speedy close in order to preserve her planned vacation. It was not an abuse of discretion to discharge her.
E. Gruesome photographs.
F. Assertion of marital privilege.
Although a person generally has no privilege to refuse to testify in favor of his or her spouse in a criminal proceeding, Evidence Code section 970 provides that a married person has a privilege not to testify against his or her spouse who is a party in any proceeding. The privilege belongs to the married person, not the spouse who is the party. (Cal. Law Revision Com. com., Deering's Ann. Evid. Code (1986 ed.) foll. § 970, p. 139; see also People v. Chavez (1968) 262 Cal.App.2d 422, 429 [68 Cal.Rptr. 759].) Accordingly, defendant's claim that defense counsel mistakenly "permitted" defendant's wife to invoke the privilege not to testify against her husband is misplaced.
Under Evidence Code section 973, subdivision (a), if a married person chooses to testify in a proceeding in which his or her spouse is a party, the person waives the privilege and must answer potentially damaging questions on cross-examination. "[A] married person cannot call his spouse as a witness to give favorable testimony and have that spouse invoke the privilege provided in Section 970 to keep from testifying on cross-examination to unfavorable matters...." (Cal. Law Revision Com. com., Deering's Ann. Evid. Code, supra, foll. § 973, p. 146; see also People v. Resendez (1993) 12 Cal.App.4th 98, 107-109 [15 Cal.Rptr.2d 575]; 2 Witkin, Cal. Evidence, supra, § 1177, pp. 1122-1123.) The trial court may have concluded defendant's wife was invoking the privilege to avoid such an eventuality, even if
But even assuming judicial error, defendant is unable to demonstrate prejudice, because the record contains no offer of proof regarding the content of Darlene Lucas's proposed testimony. As for the claim counsel were incompetent for conceding Mrs. Lucas had the right to invoke the privilege, the claim is based on the unsupported assumption that counsel must have made the concession under a mistake of law regarding the scope of the privilege. Further, as noted above, prejudice cannot be demonstrated on this silent record. It should be recalled that, depending on the nature of the proposed testimony, the witness's favorable testimony might have opened her to damaging cross-examination which could not be fended off under a claim of marital privilege.
G. Asserted prosecutorial misconduct.
Defendant claims that various comments of the prosecutor in closing argument were misconduct, and that this misconduct violated his rights to a fair trial, a reliable verdict and due process under the Sixth, Eighth and Fourteenth Amendments to the federal Constitution and under article I, sections 7, 15, and 17 of the California Constitution. He also argues that to the extent his claims are barred for counsel's failure to make timely objections, he was deprived of the right to effective assistance of counsel under the state and federal Constitutions.
1. Claimed Davenport error.
In this post-Davenport trial, defendant failed to object to these statements, and the claim was waived. (People v. Champion, supra, 9 Cal.4th at p. 939;
We have said that "the transgression must be viewed in the context of both the prosecution and defense arguments and the court's instructions to determine whether we can `be confident that the jury properly understood the nature of the weighing process and its relation to the appropriateness determination....'" (People v. Cox, supra, 53 Cal.3d at pp. 683-684.)
In the present case, contrary to defendant's claim that the prosecutor's main argument in aggravation was the asserted absence of evidence of the factors in mitigation, the prosecutor stressed the aggravated nature of the charged crimes, relevant under section 190.3, factor (a), as the main basis for a determination that the verdict should be death. Given the evidence of the circumstances of the charged crime, as well as the other evidence of defendant's prior violent conduct, relevant under section 190.3, factor (b), we cannot accept defendant's claim that had the jury not been told to treat the absence of evidence in mitigation as evidence in aggravation, there would have been little evidence upon which to base a death judgment. Further, as in the similar case of People v. Gonzalez (1990) 51 Cal.3d 1179 [275 Cal.Rptr. 729, 800 P.2d 1159], the prosecutor assured the jury it was free to reject his characterization of the evidence and the weight to be applied to the statutory factors. Defense counsel properly argued that certain factors in mitigation were inapplicable, and strongly urged the jury to look at the totality of the circumstances rather than mechanically adding up the factors. Nor are the mere number of potential mitigating factors mentioned in the argument suggestive of prejudice. (See People v. Gonzalez, supra, 51 Cal.3d at p. 1234.)
2. Claimed Brown error.
Defendant argues the prosecutor misled the jury regarding its function in weighing the factors under section 190.3. Defendant points to the analogy the prosecutor drew between the jury's function and that of an umpire in a baseball game who must follow the rules of the game, and claims the prosecutor thereby encouraged the jury to make its decision mechanically by counting up factors. He also complains the prosecutor referred to a chart upon which the statutory factors were written, reducing the jury's weighing function to a mere outline.
Defendant also argues the prosecutor misled the jury by arguing that the only possible verdict was for death, that any other sentence was illogical and unreasonable. Defendant claims the reference to logic and rules in the prosecutor's argument misinformed the jury regarding its inherently subjective decision whether to impose the death penalty, and indicated the existence of a mechanical formula requiring the imposition of a death sentence. Again, there was no objection and the point was waived. On the merits, we do not think it improper to refer to logic in connection with an argument that the only proper verdict was one for death. (See People v. Clark (1992) 3 Cal.4th 41, 166 [10 Cal.Rptr.2d 554, 833 P.2d 561] [proper to urge jury to follow "the law" as long as appropriateness of penalty is paramount].) The prosecutor clearly indicated the jury's decision was not automatic but personal and subjective and that the jury could impose a life without parole sentence even if it found nothing but circumstances in aggravation. We see no indication the jury was misled. (See People v. Gonzalez, supra, 51 Cal.3d at pp. 1228-1231.)
3. Claimed Boyd error.
Defendant claims the prosecutor committed misconduct in arguing that the evidence of defendant's intoxication, offered in mitigation, was actually a factor in aggravation. Again, however, there was no objection here, so the issue was waived. The failure to object was not ineffective assistance of counsel, as no prejudicial prosecutorial misconduct occurred. The prosecutor did not engage in the argument condemned in People v. Boyd, supra, 38 Cal.3d 762,
We have held that "[a]ggravating factors under the 1978 death penalty law are limited to those expressly set forth in the statute." (People v. Keenan, supra, 46 Cal.3d at p. 510; see also People v. Boyd, supra, 38 Cal.3d at p. 773.) Defendant argues the prosecutor referred to nonstatutory aggravating factors by arguing that defendant is a bad person.
Again, the claim was waived for lack of objection. (People v. Noguera (1992) 4 Cal.4th 599, 644 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) In any event, the prosecutor did not argue defendant should receive the death penalty because of evidence of poor character other than that clearly evinced by proper evidence regarding the charged crimes and defendant's other violent misconduct. (See People v. Douglas, supra, 50 Cal.3d at pp. 535-536 [such argument directed at evidence under section 190.3, factor (b) proper]; People v. Clark, supra, 3 Cal.4th at p. 171 [defendant's selfishness, explosiveness and violence properly considered under section 190.3, factor (a)]; People v. Gonzalez, supra, 51 Cal.3d at p. 1231 [remorseless quality of crime proper consideration under section 190.3, factor (a)].)
Defendant relies on People v. Noguera, supra, 4 Cal.4th 599, for the proposition that the prosecutor may never argue the defendant's bad character unless the defendant's character has been put in issue by the offer of good character evidence in mitigation. His reliance is misplaced. Noguera simply held that when the defendant has offered good character evidence in mitigation under section 190.3, factor (k), such evidence may be rebutted by further bad character evidence, and that the rebuttal evidence may be relied upon in argument. (4 Cal.4th at p. 644.) We observe, of course, that a defendant's good character evidence offered under section 190.3, factor (k) is admissible only to extenuate the gravity of the crime, and cannot be used as a factor in aggravation. (People v. Edelbacher, supra, 47 Cal.3d at p. 1033; People v. Boyd, supra, 38 Cal.3d at pp. 775-776.) The prosecutor, however, did not argue that evidence under factor (k) should be considered in aggravation.
Finally, defendant argues the prosecutor relied upon nonstatutory aggravating factors in arguing that prison would be an inadequate punishment for defendant, as his brutality was such that he "would not even see the bars." We disagree that such argument is inappropriate, as it was based on evidence relevant under section 190.3, factors (a) and (b) and was directed to the jury's "`"individualized assessment of the crucial issue whether the death penalty is appropriate for the particular defendant on trial."'" (People v. Fudge, supra, 7 Cal.4th at p. 1124.) The prosecutor did not direct the jury's attention to any specific evidence regarding prison conditions, but merely argued that defendant's coarseness and brutality, as evidenced by the charged offenses and other acts of violence, were such that he would be impervious to suffering in prison.
As we have found no instances of prejudicial misconduct, we reject defendant's state law and constitutional claims.
H. Limitation on defense argument.
Defendant asserts the trial court improperly limited the scope of his argument to the jury in violation of his state and federal constitutional right to due process and a reliable verdict. He argues he had a due process right to deny, rebut or explain the basis offered by the People for the imposition of the death penalty. Because the People opened up the issue of comparing the punishment for a crime such as defendant's to the punishment in other cases, he claims he was entitled to rebut the People's argument with comparisons of his own. In support, he cites Simmons v. South Carolina (1994) 512 U.S. 154, — [129 L.Ed.2d 133, 145, 114 S.Ct. 2187] (Simmons).
In Simmons, supra, 512 U.S. 154, the court was faced with a question of proper jury instruction in a capital penalty trial. The prosecutor had made much of defendant's potential for future violence, an issue that the high court explained it has permitted to be raised in capital trials. (Id. at pp. ___-___ [129 L.Ed.2d at pp. 141-142] (plur. opn. by Blackmun, J.).) The defense introduced rebuttal evidence that defendant only posed a danger to elderly women, who would not be subject to his depredations if he were in prison. The court, however, refused to instruct the jury that defendant was statutorily ineligible for parole should they elect to impose a life term in prison rather than the death penalty. The plurality opinion reversing the judgment opened with the observation that "[t]he Due Process Clause does not allow the execution of a person `on the basis of information which he had no opportunity to deny or explain.'" (Id. at p. ___ [129 L.Ed. at p. 141] (plur. opn. by Blackmun, J.).) It held that in a capital penalty trial, when the People put the issue of defendant's future dangerousness in issue and the defendant is legally ineligible for parole, it is a denial of due process to reject the defendant's request to instruct the jury on a natural question raised by the issue of future dangerousness, that is, whether defendant is legally eligible for parole should the jury elect to impose a term of life in prison. (Ibid.) Justice O'Connor, writing for herself and two other justices, concurred in the judgment, indicating that in a case of statutory ineligibility for parole, when future dangerousness had been put in issue, due process requires that the jury be informed, either through argument or instruction, of the defendant's ineligibility for parole. (Id. at pp. ___-___ [129 L.Ed.2d at pp. 149-151] (conc. opn. by O'Connor, J.).)
Unlike in Simmons, in which the court stated future dangerousness may be a permissible consideration in determining penalty, the question of the
To the extent that defendant claims, on the basis of Simmons, supra, 512 U.S. 154, that regardless of the relevance of the prosecutor's point, once it was made, defendant was entitled to rebut it, we reject that claim as well. In such a situation, it would seem defendant's proper remedy would be to object to the argument and secure an admonition to the jury to disregard it, rather than to use the argument as a wedge to introduce an irrelevant factor into his own argument. In any event, defendant's comparative culpability was not placed in issue in this case in the way future dangerousness was in Simmons. There, it appears both the prosecutor and the defense presented evidence on the issue, the prosecution dwelt on the issue in argument, and a question propounded by the jury established it had focused on the problem. Here, by contrast, no evidence was presented on the question of comparative culpability. The prosecutor made only a brief, oblique and rhetorical reference
I. Viewing San Quentin.
Defendant argues the prosecutor opened the door to such evidence by arguing defendant would not be adequately punished by imprisonment. This argument had not been made when the trial court ruled on the motion, and defendant did not renew the motion to view San Quentin after the prosecutor's argument. Accordingly, he can not charge the court with an abuse of discretion for failing to protect his right to fair rebuttal. In any event, the prosecutor did not argue that the particulars of confinement at San Quentin prison made it an inadequate punishment for defendant, but that defendant was so coarsened and brutal that he would not be disturbed or adequately punished by incarceration. Accordingly, defendant's claim that he was entitled to have the jury view San Quentin as a matter of fair rebuttal must fail.
Defendant concedes we have consistently held evidence regarding the facilities on death row and the manner of carrying out the death penalty to be irrelevant to our capital sentencing scheme. (See, e.g., People v. Fudge, supra, 7 Cal.4th at pp. 1123-1124 and cases cited; People v. Daniels (1991) 52 Cal.3d 815, 877-878 [277 Cal.Rptr. 122, 802 P.2d 906]; People v. Harris (1981) 28 Cal.3d 935, 962 [171 Cal.Rptr. 679, 623 P.2d 240].) He argues we have been consistently wrong. We decline to revisit the issue.
J. Cumulative error.
Defendant contends a combination of judicial error, prosecutorial misconduct and ineffective assistance of counsel requires reversal of the death
Based on the foregoing, we conclude the judgment should be affirmed in its entirety.
Arabian, J., Baxter, J., George, J., and Werdegar, J., concurred.
I concur in the judgment and in the majority opinion. I write separately to explain why the trial court erred in sustaining the assertion of the marital testimonial privilege by defendant's wife when defendant attempted to call her as a witness at the penalty phase.
The marital testimonial privilege is codified in Evidence Code section 970, which provides: "Except as otherwise provided by statute, a married person has a privilege not to testify against his spouse in any proceeding." (Italics added.)
Evidence Code section 970 replaced other code provisions that had conferred a broader privilege. Under former section 1881 of the Code of Civil Procedure and former section 1322 of the Penal Code, a party to an action could prevent his or her spouse from testifying either for or against the spouse who was a party, and in criminal prosecutions a defendant's spouse could decline to testify for or against the defendant. Evidence Code section 970 gives the testimonial privilege exclusively to the nonparty spouse and limits the privilege to testimony "against" the spouse who is a party. A Law Revision Commission comment explains the rationale for eliminating the testimonial privilege entirely as to testimony "for" a party spouse, as follows: "The Commission has concluded that the marital testimonial privilege provided by existing law as to testimony by one spouse for the other should be abolished in both civil and criminal actions. There would appear to be no need for this privilege, now given to a party to an action, not to call his spouse to testify in his favor. If a case can be imagined in which a party would wish to avail himself of this privilege, he could achieve the same result by simply not calling his spouse to the stand. Nor does it seem
Here, defendant called his wife as a witness to testify for him at the penalty phase of his capital trial. Because the proposed testimony was to be "for" rather than "against" the party spouse, defendant's wife could not claim the testimonial privilege of Evidence Code section 970, and the trial court erred in sustaining her claim of privilege.
The majority states that the trial court "may have concluded" that defendant's wife invoked the privilege to avoid "potentially damaging questions on cross-examination." (Maj. opn., ante, at p. 490.) This may be true (although it is speculative on the present record), but it is irrelevant. When a defendant in a criminal proceeding calls his or her own spouse as a witness, the spouse is not testifying "against" the defendant within the meaning of Evidence Code section 970. Therefore, the testimonial privilege of that section is not available, regardless of the spouse's reason for asserting the privilege and regardless of the opinion of the spouse or of the trial court that the testimony on both direct and cross-examination would, on balance, be unfavorable to the defendant. As a respected commentator on California law explains: "Our former law allowed a witness spouse to refuse to testify even though the party spouse sought the testimony for his own benefit. This aspect of the privilege was abolished by the Code for both civil and criminal actions." (2 Witkin, Cal. Evidence (3d ed. 1986) Witnesses, § 1171, p. 1119.)
Although the trial court erred in sustaining defendant's wife's assertion of the marital testimonial privilege, the record fails to establish that defendant was prejudiced by the trial court's error because defendant made no offer of proof as to his wife's proposed testimony. (See maj. opn., ante, at p. 491.) Therefore, with the understanding that the majority is not holding that the marital testimony privilege may apply when one spouse calls the other spouse as a witness, I join the majority in affirming the judgment.
I concur in the judgment in all respects save one: I would vacate the sentence of death.
At the penalty phase, defendant's jury, like all others, was instructed to weigh the aggravating and mitigating circumstances against each other and thereby determine whether death or life imprisonment without possibility of
Therefore, I would set aside the death sentence as unreliable under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. (See In re Ross (1995) 10 Cal.4th 184, 216, fn. 1 [40 Cal.Rptr.2d 544, 892 P.2d 1287] (dis. opn. of Mosk, J.) [implying that any sentence of death should be set aside as unreliable under the Eighth Amendment and article I, section 17 if defense counsel introduced no available mitigating evidence]; People v. Stansbury (1995) 9 Cal.4th 824, 835 [38 Cal.Rptr.2d 394, 889 P.2d 588] (conc. and dis. opn. of Mosk, J.), reiterating People v. Stansbury (1993) 4 Cal.4th 1017, 1073-1075 [17 Cal.Rptr.2d 174, 846 P.2d 756] (conc. and dis. opn. of Mosk, J.) [same], revd. sub nom. Stansbury v. California (1994) 511 U.S. 318 [128 L.Ed.2d 293, 114 S.Ct. 1526]; People v. Diaz (1992) 3 Cal.4th 495, 577 [11 Cal.Rptr.2d 353, 834 P.2d 1171] (conc. and dis. opn. of Mosk, J.) [same]; see also People v. Howard (1992) 1 Cal.4th 1132, 1197 [5 Cal.Rptr.2d 268, 824 P.2d 1315] (conc. and dis. opn. of Mosk, J.) [finding a verdict of death unreliable under the Eighth Amendment and article I, section 17 when available mitigating evidence was not introduced]; People v. Sanders (1990) 51 Cal.3d 471, 531-533 [273 Cal.Rptr. 537, 797 P.2d 561] (dis. opn. of Mosk, J.) [same]; People v. Lang (1989) 49 Cal.3d 991, 1059-1062 [264 Cal.Rptr. 386, 782 P.2d 627] (conc. and dis. opn. of Mosk, J.) [same]; People v. Williams (1988) 44 Cal.3d 1127, 1158-1161 [245 Cal.Rptr. 635, 751 P.2d 901] (conc. and dis. opn. of Mosk, J.) [to similar effect under the Eighth Amendment]; People v. Deere (1985) 41 Cal.3d 353, 360-368 [222 Cal.Rptr. 13, 710 P.2d 925] [same].)
Appellant's petition for a rehearing was denied February 21, 1996, and the opinion was modified to read as printed above.
A third provision, Evidence Code section 972, lists situations in which the testimonial privileges of Evidence Code sections 970 and 971 are not available.