Filed 5/30/02
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
)
)
Plaintiff and Respondent,
)
)
v.
)
)
RAYMOND EDWARD STEELE,
)
)
Defendant and Appellant.
)
__________________________________ )
S016730
Shasta County
Super. Ct. No. 88-6508
A jury convicted defendant of the first degree murder of Lee Ann Thurman
(Pen. Code, § 187)1 with the use of a knife (§ 12022) and found true the special
circumstance of a prior murder conviction (§ 190.2, subd. (a)(2)). Later, defendant
admitted three prior serious felony convictions. (§ 667, subd. (a).) After a penalty
trial, the jury returned a verdict of death, and the court imposed that sentence. This
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. THE F ACTS
A. Guilt Phase
1. Prosecution Evidence
During the evening of August 5, 1988, the body of Lee Ann Thurman, nude
but partially covered by a blanket, was discovered on the floor of her apartment in
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
Redding. She was 24 or 25 years old and developmentally disabled; she “had the
skills of . . . maybe a 10 year old.” The body had bruises on the face and neck
possibly caused by a fist and eight or nine stab wounds, all but one to the chest. The
other stab wound, inflicted after death, was to the vagina. The autopsy revealed that
the victim had also been manually strangled before she died. The cause of death was
“multiple stab wounds to the chest with manual strangulation.”
The morning after the body was found, August 6, 1988, defendant entered the
Circus Circus casino in Reno, Nevada, and told a security officer, “I just killed a
girl. I need a drink.” He said he had killed her “[b]ecause she was a whore.” He
also said he had the knife and the victim’s identification. Another security officer
was called to the scene, and the two seized a knife and wallet from defendant. A
short time later, defendant told a police officer, “I killed a lady. Talk to me please.”
Defendant spoke with an officer of the Reno Police Department about the
killing. His story changed a number of times, but basically he said he picked the
victim up while she was hitchhiking in Redding, and he paid her $10 to orally
copulate him. The two went to her home, where they had sexual intercourse. He
drank a lot of peppermint schnapps. Then, he said, “I just snapped.” He killed her
with the knife he showed the security guard, which had been in his pocket. He said,
“I just nutted up,” and “I hate women.” When asked why he killed her, he said he
“heard helicopters.” He said he had spent two and a half years in Vietnam, from
November 1964 to April 1967, and suggested that he had been in combat and had
been trained to kill. He claimed he had been honorably discharged from the military
and had received a Bronze Star and two Purple Hearts. After he killed her, he said,
he wiped his fingerprints off the doorknob, the couch, and the shower. He denied
ever having hurt a girl before. Later defendant gave a similar statement to the
Redding police. He said he just “snapped.” “I heard chopper blade, . . . I just blew
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it.” He said he had “been drinking a hundred proof of Peppermint Schnapps for two
weeks.”
The police recovered the truck that defendant said he had driven to the Reno
area. It contained a purse that defendant said was the victim’s. The wallet defendant
gave the security guards contained Thurman’s identification. The knife that
defendant gave the guards had human blood on it that could have been the victim’s
but not defendant’s.
The truck that defendant drove to Reno belonged to Richard Blakeslee, with
whom defendant was living at the time of the killing. Blakeslee testified that
defendant had taken the truck once before without permission. On the day of the
killing, Blakeslee said, he and defendant had been drinking. One of Thurman’s
neighbors testified that around 7:30 to 8:00 p.m., the day of the killing, she saw a
man she did not know drive the same truck with Thurman as a passenger to
Thurman’s residence. The two got out and entered the residence. The neighbor had
not seen the truck before.
Richard Blakeslee’s wife, Anna, received a telephone call shortly before
10:00 p.m., the night of the killing. A voice she did not recognize identified itself
as “Lee Ann” and said, “Ray wanted me to call and tell you that he’s okay and he’ll
be home shortly.” Anna gave the telephone to Richard. Richard heard a woman say
something, then heard defendant’s voice say, “Put the phone down or I’ll kill you.”
The prosecution also presented evidence that in 1971, defendant stabbed to
death a 15-year-old babysitter, Deborah Cerna, for which he was convicted of
second degree murder.
2. Defense Evidence
Defendant presented evidence to suggest that Thurman’s boyfriend, who
discovered the body, might have been the killer. But the main thrust of the defense
3
was that he was guilty of a crime less serious than first degree murder. As appellate
counsel describes it, defendant presented “a mental defense, based on
psychological dysfunction brought on by traumatic experiences in the Vietnam War,
and on neurological and psychological deficits resulting from head injuries.”
Defendant appeared intoxicated when he came to the Circus Circus casino
the day after the killing. A blood sample taken after his arrest had a blood-alcohol
level of 0.15 percent; when he arrived at the casino the level would have been
around 0.23 percent. A witness estimated that if defendant had drunk the amount of
peppermint schnapps that he claimed to have drunk the day of the killing, his bloodalcohol level at 8:00 p.m., the night of the killing, would have been around 0.28
percent.
A California Highway Patrol air traffic officer testified that the night of the
killing he flew a helicopter in the area of Thurman’s home, including one flight at
10:05 p.m. almost directly over her residence. Such flights were made on a daily
basis.
Shad Meshad, the executive director of the Vietnam Veterans Aid Foundation
in Los Angeles, testified about the trauma members of the military faced in
Vietnam. Defendant was in the navy. His military records do not indicate that he
experienced any combat, but they show that he had two weeks of training at a
“counter-insurgency school” for “SEALS” that teaches the students to kill with
knives. Meshad believed defendant may have had a temporary duty assignment
involving a particularly traumatic type of combat that was not reflected in the
records. Eventually, defendant received a discharge from the military that was,
according to the witness, “other than honorable” because of a “civil conviction.”
Dr. Harry R. Kormos, a psychiatrist, testified as an expert on “post traumatic
stress disorder” (PTSD), particularly “as it applies to Vietnam veterans.” Persons
suffering from the disorder can experience a “flashback,” and thus relive their
4
traumatic experiences. Events such as the sound of a helicopter can trigger a
flashback.
Robert Buley, director of the Shasta County Substance Abuse Clinic,
testified that defendant suffered from “episodic alcoholism” and would go on
drinking binges lasting from a few days to a few weeks. When Buley tried to
discuss Vietnam with him, defendant would “shake” and refuse to talk about it. Dr.
John Wicks, a psychologist, administered various tests to defendant and concluded
he has a “brain impairment” and a “personality syndrome” consistent with brain
damage which would cause “impulse control problems.” Dr. Stephen Pittel, also a
psychologist, testified about defendant’s problems with substance abuse. Dr.
Richard Sauer, a neurologist, testified that defendant’s brain is smaller than he
would expect in someone his age, and it had an old trauma that looked like a hole.
Dr. Arthur Kowell, another neurologist, analyzed the results of EEG
(Electroencephalogram) tests, which record brain electrical activity, and a “BEAM”
test, i.e., brain electrical activity mapping. Defendant’s EEG result was normal, but
the BEAM test showed abnormalities in his brain. At the time of trial, BEAM
testing was a fairly new technique and had been used primarily for treatment rather
than evidentiary purposes. Regarding its validity, Dr. Kowell testified that control
groups for the BEAM system were broken down into age groups varying in size
from 15 to around 40 persons, and that the group for defendant’s age consisted of
16 people.
Dr. Robert Bittle, a doctor specializing in psychiatry and neurology, testified
about defendant’s brain abnormalities, his learning difficulties as a child, head
traumas he had suffered, including a skull fracture in 1980, and his substance abuse.
He opined that defendant has an “organic brain dysfunction”; that he has “posttraumatic stress disorder, Vietnam-type”; that he has a “major affective disorder”;
and that he suffers from a “mixed personality disorder” with “schizoid, antisocial,
5
avoidant, aggressive and paranoid elements.” Persons with these problems
“routinely misinterpret stimuli, very poorly control[] anger, hostility and aggression
and tend to over-respond and misinterpret events or stimuli coming from the
environment or those in the environment.”
On cross-examination, Dr. Bittle testified about the scientific acceptance of
BEAM testing, which was a new technology. The testing and its results are based on
data maintained by the person who owned the patent on the machine used in this
case. That person “will not release [that data] until the patent runs out.” Therefore
the database was not a matter of public record. Although opinion in the scientific
community was divided, Dr. Bittle believed that BEAM testing was generally
accepted in the scientific community for clinical use.
B. Penalty Phase
1. Prosecution Evidence
In addition to the prior murder conviction, the prosecution presented
evidence that in 1967, defendant abducted a woman at knifepoint from her home in
the Redding area, drove her in her car to a remote location, raped her, and tried to
force her to orally copulate him. For these events, defendant was convicted of
kidnapping, rape, and sex perversion. Additionally, after he stabbed Deborah Cerna
to death, defendant led a deputy sheriff who was trying to stop him on a high speed
chase, and fired several shots at him, for which he was convicted of assault with a
deadly weapon on a peace officer.
2. Defense Evidence
Defendant’s former employer testified defendant was a good worker who
seemed to abuse drugs and alcohol. Regarding Vietnam, defendant told the
employer “that a lot of times when he was under the influence of whatever that he
would have flashbacks.” A former girlfriend of defendant’s testified that he treated
6
her “fine” and she did not have problems with him. She ended the relationship
because he had emotional and substance abuse problems. Defendant’s aunt testified
about his family background and said defendant had changed when he returned from
Vietnam. A San Joaquin County deputy sheriff testified that for a number of years
beginning in 1978, defendant provided the authorities at the Deuel Vocational
Institute in Tracy with valuable information about a prison gang. Two friends of
defendant’s testified about his good qualities and problems with drug use and
alcohol. Both said he was “compassionate.”
II. DISCUSSION
A. Jury Selection Issue
Defendant contends that excluding from the guilt phase jury those
prospective jurors who would automatically vote against the death penalty violated
his rights under both the United States and California Constitutions. We disagree.
Both this court and, as to the United States Constitution, the United States Supreme
Court have rejected the contention. (Lockhart v. McCree (1986) 476 U.S. 162,
176-177; People v. Jackson (1996) 13 Cal.4th 1164, 1198-1199, and cases cited.)
We may not depart from the high court ruling as to the United States Constitution,
and defendant presents no good reason to reconsider our ruling as to the California
Constitution.
B. Guilt Phase Issues
1. Admission of Evidence of Prior Murder
Before trial, the prosecution moved to admit evidence of defendant’s 1971
killing of Deborah Cerna on the question of his mental state when he killed
Thurman. Defendant opposed the motion, and the parties argued the question
extensively before the trial court. Thereafter, relying heavily on our then recent
decision of People v. Robbins (1988) 45 Cal.3d 867 (Robbins), the court granted
7
the motion in a detailed written ruling. At trial, the prosecution did prove the
circumstances of the prior killing. Defendant contends the ruling was erroneous.
Closely on point is Robbins, supra, 45 Cal.3d 867. In Robbins, during a
prosecution for murder with the special circumstance allegation of a murder during
the commission of a lewd and lascivious act, the trial court permitted the
prosecution to present evidence of a previous similar killing to show the mental
state with which the defendant committed the charged crime. We upheld that ruling.
(Id. at pp. 878-881.) Even closer on point is the intervening decision of People
v. Carpenter (1997) 15 Cal.4th 312 (Carpenter), where, as relevant here, we
upheld the admission of three uncharged murders on the questions of intent to kill,
deliberation, and premeditation as to the charged crimes. As we explained in
Carpenter, “The admissibility of other crimes evidence depends on (1) the
materiality of the facts sought to be proved, (2) the tendency of the uncharged
crimes to prove those facts, and (3) the existence of any rule or policy requiring
exclusion of the evidence.” (Carpenter, supra, 15 Cal.4th at pp. 378-379.)
Here, the facts of intent to kill, premeditation, and deliberation were
material. Defendant’s not guilty plea put in issue all of the elements of the
offenses. (Carpenter, supra, 15 Cal.4th at p. 379.) Defendant argues that he
conceded at trial the issue of intent to kill. Even if this is so, the prosecution is still
entitled to prove its case and especially to prove a fact so central to the basic
question of guilt as intent. (People v. Scheid (1997) 16 Cal.4th 1, 16-17.)
Moreover, the issues of premeditation and deliberation were disputed at trial and,
indeed, remain disputed even in this appeal.
The previous killing also had a tendency to prove these facts. At trial, the
prosecution made a detailed offer of proof. Because defendant does not claim, and
we do not discern, a significant discrepancy between the offer of proof and the
actual evidence, we will focus on the evidence. In 1971, defendant stabbed to death
8
Deborah Cerna, who had been babysitting his girlfriend’s children. The Cerna and
Thurman killings bore several similarities. Both victims suffered manual
strangulation and received a cluster of about eight stab wounds in the chest or
abdomen. The victims resembled each other somewhat. Moreover, in both cases,
defendant admitted the killing to the police shortly afterwards, but supplied an
explanation. After the first killing, defendant claimed he had taken some mescaline,
drank some beer, and smoked marijuana. When he arrived home, the victim
complained that he had been gone a long time. Then, defendant told the police, “It
just hit me the wrong way. All these mescaline and everything was taking effect.
And I hit her. The next thing that I really remember is when I stabbed her and all the
blood and everything.” In this case, defendant blamed the killing on drinking
peppermint schnapps and hearing a helicopter.
The two killings were similar enough to make the earlier one relevant to the
mental state with which defendant committed the later one. The least degree of
similarity between the crimes is needed to prove intent. (People v. Ewoldt (1994)
7 Cal.4th 380, 402.) As we explained in Carpenter and Robbins, the doctrine of
chances teaches that the more often one does something, the more likely that
something was intended, and even premeditated, rather than accidental or
spontaneous. Specifically, the more often one kills, especially under similar
circumstances, the more reasonable the inference the killing was intended and
premeditated. (Carpenter, supra, 15 Cal.4th at pp. 379-380, 383; Robbins, supra,
45 Cal.3d at pp. 879-880.) Moreover, here the fact that defendant readily admitted
the killing on both occasions but supplied explanations was relevant to determining
whether the explanations were true or merely convenient excuses for intended,
premeditated killings.
Defendant argues that the prosecutor conceded that the trial for killing Cerna
contained no evidence of premeditation, and that he was convicted of second degree
9
murder in that case, meaning that no premeditation was found. Accordingly, he
argues, it is illogical and improper to infer premeditation from the evidence of the
earlier killing. However, the doctrine of chances is based on a combination of
similar events. When defendant killed Cerna, he had not yet killed Thurman, so no
combination of similar events had occurred. The situation was different at this trial.
The fact that defendant killed twice under similar circumstances is logically
probative of whether the second killing was premeditated even if no independent
evidence existed that the first killing was itself premeditated. Moreover, as
discussed in part II. B. 3, below, the prior killing bolstered all three categories of
evidence we generally consider in deciding whether the evidence of premeditation
and deliberation was sufficient. The fact defendant had previously killed with a
knife strengthens the inference that he considered the possibility of homicide from
the outset when he entered the victim’s house with a knife. The fact that defendant
had previously killed a young woman supports his stated motive that he hated
women. The fact that defendant killed twice in the same distinctive manner—a
cluster of seven or eight stab wounds in the chest or abdomen combined with
manual strangulation—strengthens the inference that he had a calculated design to
kill precisely that way.2
2
The dissent simply ignores these inferences. In response to the dissent’s
collateral estoppel and double jeopardy argument (dis. opn., post, at pp. 4-5), no one
is seeking to relitigate the Cerna murder. That conviction was and remains second
degree murder. This case involves solely defendant’s guilt for killing Thurman.
Both this court and the United States Supreme Court have held that principles of
double jeopardy, including its collateral estoppel component, permit the admission
of otherwise proper evidence of a prior crime even if the person had been entirely
acquitted of that prior crime. (Dowling v. United States (1990) 493 U.S. 342,
348-349; People v. Santamaria (1994) 8 Cal.4th 903, 921.) This is so because the
defendant must be found guilty beyond a reasonable doubt of a crime to be
convicted of it, but other crimes evidence need be proven only by a preponderance
of the evidence. (Ibid; see also People v. Carpenter, supra, 15 Cal.4th at p. 382.)
10
There is also no rule or policy requiring exclusion. As the trial court
recognized when it concluded that the probative value of the evidence outweighed
its prejudicial effect, evidence of other crimes is inherently prejudicial.
(Carpenter, supra, 15 Cal.4th at p. 380.) But this circumstance means the court
must exercise its discretion, not that it must always exclude the evidence. Here, the
Cerna killing was highly probative of defendant’s mental state when he killed
Thurman, a critical issue. Moreover, the fact that defendant was convicted of the
earlier killing reduces any prejudicial effect. (People v. Balcom (1994) 7 Cal.4th
414, 427.) Defendant argues that the first killing, 17 years before the second, was
too remote to have significant probative value. Although the trial court should
consider remoteness in exercising its discretion, given the similarities of the
killings, we do not believe the time factor compelled the court to exercise its
discretion in only one way. Moreover, because defendant was convicted of the
earlier murder, we may also presume he was incarcerated a substantial part of the
intervening time and thus had little or no opportunity to commit a similar killing.
Defendant also reiterates that he conceded the question of intent to kill at
trial. The trial court should consider whether the party objecting to the evidence
actually disputes the fact for which it is offered in weighing the probative value
against its prejudicial effect. If the fact is undisputed, the evidence has less true
probative value. But here intent was so critical to the question of guilt that the court
could, in its discretion, conclude the prosecution was entitled to prove it fully.
Moreover, as noted, premeditation was strongly disputed and the prior killing was
highly probative on that issue. We perceive no abuse of discretion in admitting the
evidence. (Carpenter, supra, 15 Cal.4th at p. 380.)
Defendant also notes that, by statute, the special circumstance allegation of a
prior murder conviction is tried only after the defendant has been convicted of first
degree murder. (§ 190.1.) He infers from this provision a legislative intent to
11
exclude evidence of the prior murder from the trial of guilt. We agree that, at the
trial of guilt, the jury should not automatically learn of the prior conviction merely
because that conviction establishes the special circumstance. But we see no
suggestion the Legislature intended to exclude evidence of a prior crime that is
otherwise admissible under normal rules of evidence.
Finally, citing McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, defendant
argues that admitting the evidence of the Cerna conviction violated his federal due
process rights. That case held that “ ‘if there are no permissible inferences the jury
may draw from the evidence,’ ” its admission can violate due process. (Id. at p.
1384.) We need not decide here to what extent, if any, evidence solely going to
character might violate due process (cf. People v. Falsetta (1999) 21 Cal.4th 903,
921-922), for, as explained, here the evidence of the Cerna killing supported the
permissible inference that the second killing was intended and premeditated.
2. Testimony of the Pathologist
The pathologist who performed the autopsy of Deborah Cerna had died by
the time of trial in this case. Accordingly, the court permitted Dr. Thomas Resk,
who performed Thurman’s autopsy, to rely on the earlier autopsy report in
testifying about similarities between the two killings. The court stated that “the
purpose of the inquiry is basically just to compare the similarities between two
events.” It ascertained that the prosecutor did not intend to ask the witness “to
render any opinions other than as to similarities as to location and possibly
force . . . .” Based on the earlier autopsy report, Dr. Resk testified on direct
examination about the Cerna killing. He expressed no opinion regarding the mental
state with which either killing was performed.
On cross-examination, the defense elicited Dr. Resk’s opinion that the
Thurman killing might have been committed in a “rage.” Thereafter, on redirect
12
examination, the prosecutor asked whether the Thurman killing could also have been
“methodical.” Dr. Resk responded, “yes.” Over objection, the prosecutor then
asked whether the fact that the same person committed both the Cerna and Thurman
killings would influence Dr. Resk’s opinion. Noting that the defense had itself gone
into the area, the court permitted the question. Dr. Resk testified that due to the
numerous similarities between the two killings, the fact that the same person
committed both would “[d]efinitely” influence his opinion. He then detailed the
points of similarity between the killings but said nothing further about the mental
state involved in either killing.
Defendant contends the court erred in permitting Dr. Resk to testify, as
defendant describes it, “to the effect that the killing of Lee Ann Thurman was
premeditated.” He argues that this “whole line of testimony should have been
excluded” because it was not the proper subject of expert testimony under Evidence
Code section 801, subdivision (a). That section provides that expert testimony must
relate “to a subject that is sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact . . . .” Defendant argues that whether the
similarity of the crimes permitted the inference that the second killing was
methodical was not the proper subject of expert testimony because the jury could
draw any such inference as well as an expert.
The defense, however, not the prosecution, initiated this “whole line of
testimony.” On direct examination, the prosecutor did not elicit any testimony
regarding the mental state involved in either killing; indeed, it appears that the court
might not have allowed it to do so. Rather, the defense first raised the matter when
it asked on cross-examination whether the Thurman killing might have been
committed in a rage. Despite defendant’s assertion that the court should have
excluded the whole line of testimony, we assume he is not really complaining about
the defense cross-examination—which clearly helped the defense—but only about
13
the redirect examination, which sought to neutralize that cross-examination and
present the full picture.
Once the defense elicited Dr. Resk’s opinion on cross-examination that the
Thurman killing might have been done in a rage, the prosecution was entitled to
elicit on redirect examination the further opinion that it might have also been
methodical. “The extent of the redirect examination of a witness is largely within
the discretion of the trial court. . . . It is well settled that when a witness is
questioned on cross-examination as to matters relevant to the subject of the direct
examination but not elicited on that examination, he may be examined on redirect as
to such new matter.” (People v. Kynette (1940) 15 Cal.2d 731, 752.) The
prosecution was also entitled to inquire into the facts that might influence this
opinion. (See People v. Montiel (1993) 5 Cal.4th 877, 918 [experts are entitled to
explain the reasons for their opinions].) Moreover, contrary to defendant’s
contention, Dr. Resk did not testify that the killing was either in a rage or
methodical. He merely said it might have been either and the fact that the same
person committed both killings was relevant to the question. We see no error in
permitting this very limited redirect examination in response to the crossexamination.
Relying on authority involving situations in which a witness says something
irrelevant—for example, a testifying defendant makes a broader than necessary
assertion of innocence—and the adverse party seeks to take advantage of that
statement by introducing otherwise irrelevant character evidence, the concurring
opinion disagrees with our conclusion. The concurring opinion argues that by
failing to object to an opposing party’s question of a witness, a party forfeits not
only (1) the right to claim on appeal that the evidence elicited was improper, but
also (2) the right to question the witness on the same subject if the party who asked
the question successfully claims the question was improper. Failure to object does,
14
indeed, forfeit the right to raise the issue on appeal. (Evid. Code, § 353.) We also
agree that a party should not be allowed to take advantage of an obvious mistake to
introduce prejudicial evidence. We do not believe, however, that a party may ask
relevant questions then, when the other side does not object, prevent all crossexamination (or redirect examination) responding to the same point by successfully
asserting that its own question was improper. As noted, the matter lies within the
discretion of the trial court, which should strive to prevent unfairness to either side
when one side presents evidence on a point, then tries to prevent the other side from
responding.
Witkin notes that the “authorities are difficult to reconcile” regarding the
problem of what to do when a witness “makes a statement on an irrelevant matter,”
and the adverse party seeks “to capitalize on the blunder or accident by offering
impeaching evidence on a collateral matter.” (3 Witkin, Cal. Evidence (4th ed.
2000) Presentation at Trial, § 352, pp. 439-440.) The cases the concurring opinion
cites illustrate this difficulty. (Cf. People v. Wells (1949) 33 Cal.2d 330, 340-341
[defendant’s testimony that he “got along” with prison officers did not justify the
prosecution’s presenting evidence of a wide range of otherwise irrelevant evidence
of prison misbehavior] with People v. Westek (1948) 31 Cal.2d 469, 475-481
[defendant’s testimony that he had never committed any act of sodomy or lewdness
on any boy did permit the prosecution to present evidence of uncharged crimes
against three boys].) Witkin suggests that “[i]f the evidence were relevant and
merely incompetent (e.g., hearsay or inadmissible opinion), the failure to object
would be a waiver of its inadmissibility [citation]. On the other hand, failure to
object cannot give irrelevant evidence any probative effect [citation].” (3 Witkin,
Cal. Evidence, supra, § 352, p. 439.) We do not express a view on this question,
for it is not presented. The defense question whether the killing may have been in a
rage was neither irrelevant nor a blunder. The prosecution was entitled to ask the
15
witness questions on the same point despite the failure to object to the defense
question.3
The concurring opinion concludes that the prosecution could have asked
these questions on direct examination regardless of the cross-examination. It may
be correct but, because the question is not presented, we do not decide it.
3. Sufficiency of the Evidence
Defendant contends the evidence of premeditation and deliberation was
insufficient to support the verdict of first degree murder. “In assessing the
sufficiency of the evidence, we review the entire record in the light most favorable
to the judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18 Cal.4th
297, 331.) Defendant relies heavily on the familiar tripartite test of People v.
Anderson (1968) 70 Cal.2d 15. In that case, “we identified three categories of
evidence relevant to resolving the issue of premeditation and deliberation: planning
activity, motive, and manner of killing. However, . . . ‘Anderson does not require
that these factors be present in some special combination or that they be accorded a
particular weight, nor is the list exhaustive. Anderson was simply intended to guide
an appellate court’s assessment whether the evidence supports an inference that the
3
The concurring opinion also cites Jefferson, who in turn cites two cases
holding that a party may not examine a witness on a collateral point then impeach
the witness on that collateral point with otherwise irrelevant evidence. (See 1
Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2002) Examination of
Witnesses, § 27.92, pp. 481-482, citing People v. Lavergne (1971) 4 Cal.3d 735,
744; People v. St. Andrew (1980) 101 Cal.App.3d 450, 461.) Nothing remotely
close to that situation occurred here. Even further removed from this issue is
People v. Smithey (1999) 20 Cal.4th 936, 958-961, also cited in the concurring
opinion. Obviously, a party cannot justify improper questions by asserting the
adverse party may also ask improper questions.
16
killing occurred as the result of preexisting reflection rather than unconsidered or
rash impulse. [Citation.]’ ” (People v. Bolin, supra, 18 Cal.4th at pp. 331-332.)
Here, Anderson guides our assessment quite effectively, for all three
categories of evidence exist. As to planning, the jury could infer that defendant
carried the fatal knife into the victim’s home in his pocket, which makes it
“reasonable to infer that he considered the possibility of homicide from the
outset.” (People v. Alcala (1984) 36 Cal.3d 604, 626.) This inference is much
stronger in this case, because defendant had already stabbed another woman to
death. When a person stabs a woman to death, then leads another woman into her
apartment with a knife in the pocket, the jury can readily infer that the person
possessed the knife for the same purpose. Additionally, as the trial court noted
when it denied defendant’s motion to dismiss the first degree murder charge,
Richard Blakeslee testified that when he was speaking with “Lee Ann,” whom the
jury could reasonably have found was the victim, he heard defendant say, “Put the
phone down or I’ll kill you.” This evidence suggests a planned killing. Defendant
argues Blakeslee’s testimony was not credible, but the jury could reasonably have
believed it.
As to motive, defendant told the police that he hated women. This statement,
combined with the fact he had once before killed a young woman of somewhat
similar appearance, provides strong evidence of motive. Finally, defendant stabbed
the victim about eight times in the chest and strangled her. Previously, he had killed
another woman in almost the same distinctive manner. This manner of killing, and
doing so the same way twice, “supports the inference of a calculated design to
ensure death, rather than an unconsidered ‘explosion’ of violence.” (People v.
Alcala, supra, 36 Cal.3d at p. 627.) “Under all the circumstances, we find ample
evidence of premeditation and deliberation.” (Ibid.)
17
4. Instructional Issues
Defendant contends the trial court committed several instructional errors.
a. CALJIC No. 8.73
The court instructed the jury on first and second degree murder and voluntary
manslaughter due to provocation. Although questioning whether the evidence
warranted manslaughter instructions, the district attorney stated he was requesting
them “out of an abundance of caution.” Defendant contends that the court had a sua
sponte duty also to instruct in accordance with CALJIC No. 8.73 that if the evidence
showed “provocation” that was insufficient to make the crime manslaughter, the
jury might consider that provocation in deciding whether the crime was first or
second degree murder. We need not decide whether the court must give such an
instruction sua sponte when the evidence warrants (compare People v. Mayfield
(1997) 14 Cal.4th 668, 778, with People v. Johnson (1993) 6 Cal.4th 1, 43, and
People v. Perez (1992) 2 Cal.4th 1117, 1129), for here no evidence of provocation
existed. (People v. Perez, supra, 2 Cal.4th at pp. 1129-1130.) “The fact that the
prosecutor requested a heat of passion instruction for manslaughter does not
establish that the evidence would have necessitated a sua sponte instruction. Such
instructions are commonly requested out of an abundance of caution.” (Id. at p.
1130.)
Defendant does not argue evidence existed that the victim provoked him into
killing her. Rather, he argues that the word “provocation” is a “shorthand
expression” for the statutory language defining voluntary manslaughter as a killing
“upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) He concedes there
was no evidence of provocation in the sense of a quarrel, but he focuses on the
phrase “heat of passion” and argues there was ample evidence he killed in the heat
of passion. Indeed, he argues, the entire defense theory of the case was that he
killed under the heat of passion caused by a combination of circumstances. But this
18
argument does not aid him. Although the court did not use the word “provocation”
in regard to the degree of murder, it did instruct on “heat of passion.” It told the
jury that for the killing to be first degree murder, it must not have been committed
“under a sudden heat of passion or other condition precluding the idea of
deliberation.” (CALJIC No. 8.20.) By specifically referring to heat of passion and
generally referring to any other condition precluding deliberation, the court fully
instructed on the law relevant to the actual evidence. It did not also have to refer to
“provocation” regarding the degree of murder, which would not have fit the
evidence.
For the same reasons, we reject defendant’s alternate argument that his trial
attorneys were ineffective in failing to request CALJIC No. 8.73. Defense counsel
expressly recognized at trial that no evidence existed of a “sudden quarrel.” They
ensured that the instructions addressed their theory of the case and the evidence
actually presented, not some other theory and some other evidence.
b. Instruction on Heat of Passion
The trial court gave the standard instructions on voluntary manslaughter due
to heat of passion. Defendant contends the court erred in refusing additionally to
give an instruction the defense requested: “The passion necessary to constitute heat
of passion need not mean rage or anger but may be any violent, intense, overwrought
or enthusiastic emotion which causes a person to act rashly and without deliberation
and reflection.” The court refused the instruction, finding that the standard
instructions fully instructed the jury on heat of passion.
The instruction the defense requested is derived from language in our
decisions. (E.g., People v. Berry (1976) 18 Cal.3d 509, 515; People v. Borchers
(1958) 50 Cal.2d 321, 329.) The Courts of Appeal have divided on whether the trial
court could, or should, give this instruction on request. (Cf. People v. Rupe (1988)
19
206 Cal.App.3d 1537, 1540-1542 [court should not give the instruction even if
requested], with People v. Thompkins (1987) 195 Cal.App.3d 244, 256-257 [the
court should give some such “pinpoint” instruction on request].) We need not
decide the question, for no evidence warranted any heat of passion instructions
whatever as to voluntary manslaughter. No evidence exists that the victim provoked
defendant.
Since its adoption in 1872, section 192, subdivision (a), has described
voluntary manslaughter as the unlawful killing “upon a sudden quarrel or heat of
passion.” Noting that this language does not specifically require “provocation,”
defendant argues that any kind of heat of passion will suffice for manslaughter, not
merely heat of passion due to provocation. We disagree. Section 192 is not the
only legislative word on the question. Also since its adoption in 1872, section 188
has stated that malice is implied “when no considerable provocation appears.” (See
People v. Williams (1969) 71 Cal.2d 614, 623-624.) Under this language,
“[e]vidence of adequate provocation overcomes the presumption of malice.” (Id. at
p. 624.) Accordingly, for voluntary manslaughter, “provocation and heat of passion
must be affirmatively demonstrated.” (People v. Sedeno (1974) 10 Cal.3d 703,
719; see also People v. Breverman (1998) 19 Cal.4th 142, 163.)
The heat of passion requirement for manslaughter has both an objective and a
subjective component. (People v. Wickersham (1982) 32 Cal.3d 307, 326-327.)
The defendant must actually, subjectively, kill under the heat of passion. (Id. at p.
327.) But the circumstances giving rise to the heat of passion are also viewed
objectively. As we explained long ago in interpreting the same language of section
192, “this heat of passion must be such a passion as would naturally be aroused in
the mind of an ordinarily reasonable person under the given facts and
circumstances,” because “no defendant may set up his own standard of conduct and
justify or excuse himself because in fact his passions were aroused, unless further
20
the jury believe that the facts and circumstances were sufficient to arouse the
passions of the ordinarily reasonable man.” (People v. Logan (1917) 175 Cal. 45,
49.)
Defendant’s evidence that he was intoxicated, that he suffered various mental
deficiencies, that he had a psychological dysfunction due to traumatic experiences
in the Vietnam War, and that he just “snapped” when he heard the helicopter, may
have satisfied the subjective element of heat of passion. (See In re Thomas C.
(1986) 183 Cal.App.3d 786, 798, citing People v. Berry, supra, 18 Cal.3d at p.
515.) But it does not satisfy the objective, reasonable person requirement, which
requires provocation by the victim. (In re Thomas C., supra, 183 Cal.App.3d at p.
798.) “To satisfy the objective or ‘reasonable person’ element of this form of
voluntary manslaughter, the accused’s heat of passion must be due to ‘sufficient
provocation.’ ” (People v. Wickersham, supra, 32 Cal.3d at p. 326.) “[E]vidence
of defendant’s extraordinary character and environmental deficiencies was
manifestly irrelevant to the inquiry.” (People v. Morse (1969) 70 Cal.2d 711,
735.)
As far as manslaughter is concerned, defendant’s evidence, if anything,
shows diminished capacity, not heat of passion. “Provocation and heat of passion
are not synonymous with diminished capacity.” (People v. Spurlin (1984) 156
Cal.App.3d 119, 128.) “The essence of a showing of diminished capacity is a
‘showing that the defendant’s mental capacity was reduced by mental illness,
mental defect or intoxication.’ ” (People v. Berry, supra, 18 Cal.3d at p. 517.)
However, the Legislature abolished the defense of diminished capacity before
defendant committed this crime. (People v. Castillo (1997) 16 Cal.4th 1009,
1013-1014; People v. Saille (1991) 54 Cal.3d 1103, 1114.) Only diminished
actuality survives, i.e., the jury may generally consider evidence of voluntary
intoxication or mental condition in deciding whether defendant actually had the
21
required mental states for the crime. (People v. Saille, supra, 54 Cal.3d at p. 1116;
but see current § 22, subd. (b); People v. Castillo, supra, 16 Cal.4th at p. 1014 &
fn. 1.) The trial court instructed the jury on this point.4
Thus, although the trial court instructed the jury on heat of passion voluntary
manslaughter out of caution, it did not have to do so, as no evidence supported the
instructions. Accordingly, the court did not have to give yet more instructions on
the point. (People v. Perez, supra, 2 Cal.4th at pp. 1129-1130.)
c. Instruction on Premeditation
Defendant requested, and the court refused to give, an instruction on
premeditation derived from People v. Anderson, supra, 70 Cal.2d 15, including
that to find premeditation, the jury had to “find evidence of planning activity, motive
to kill, and a calculated killing; or extremely strong evidence of planning activity; or
evidence of motive to kill, in conjunction with either planning activity or a
calculated killing.” The court correctly refused the instruction. “By its very terms,
People v. Anderson, supra, 70 Cal.2d 15, guides appellate courts in conducting
sufficiency-of-evidence review of findings by juries of premeditation and
deliberation. (See id. at pp. 24-34.) It does not even purport to constrain juries in
making such findings.” (People v. Berryman (1993) 6 Cal.4th 1048, 1080; see
also People v. Bolin, supra, 18 Cal.4th at pp. 331-332.)
4
The court instructed, “Evidence has been received regarding a mental
disease, mental defect or mental disorder of the defendant at the time of the crime
charged. You may consider such evidence solely for the purpose of determining
whether or not the defendant actually formed any mental state which is an element
of the crime charged or of its lesser included offenses. . . . If the evidence shows
that the defendant was intoxicated at the time of the alleged crime you should
consider that fact in determining whether the defendant had such intent or mental
state.”
22
d. Objective Standard of Voluntary Manslaughter
Pursuant to CALJIC No. 8.42, the court instructed the jury on the objective
component of heat of passion manslaughter—that to reduce murder to
manslaughter, the heat of passion “must be such a passion as naturally would be
aroused in the mind of an ordinarily reasonable person in the same circumstances.
A defendant is not permitted to set up his own standard of conduct . . . .” Defendant
argues that section 192, subdivision (a), which merely refers to an unlawful killing
“upon a sudden quarrel or heat of passion,” does not itself require this objective
standard, and therefore this court erred in adopting it.
We disagree. As explained, section 192 must be read together with section
188, which implies malice “when no considerable provocation appears.” Our cases
have long and continuously held that whether the provocation is considerable
enough to negate malice must be judged objectively. (E.g., People v. Wickersham,
supra, 32 Cal.3d at p. 326; People v. Logan, supra, 175 Cal. at p. 49; see also
People v. Valentine (1946) 28 Cal.2d 121, 136-144 [reaffirming the objective
standard after a thorough review of section 192 and its history].) Defendant
presents no good reason to reconsider these decisions.
Defendant also argues that the jury must consider all the circumstances
confronting him, including his particular mental condition. He claims that “the law
of manslaughter required the jury in this case to consider how an otherwise ordinary
person, having [his] Vietnam War background, his resulting clear symptoms of posttraumatic stress disorder, and his brain function abnormalities which led him to
misinterpret and overreact to events, would have acted in the situation in which [he]
found himself at the time of the killing.” However, because only he fits this
particular description, defendant would be setting his own standard of conduct,
contrary to the law. Such a rule would eliminate the objective standard in favor of a
subjective one. It would, in effect, resurrect the abolished defense of diminished
23
capacity in the guise of an expanded form of heat of passion manslaughter. As
noted, the jury was allowed to consider defendant’s evidence in determining
whether he actually had the required mental states for the crime. The law does not,
however, permit defendant to use himself as the measure of what is adequate
provocation to reduce what would otherwise be murder to manslaughter.
C. Penalty Phase Issues
1. Failure to Give 1989 Version of CALJIC No. 8.84.1
In People v. Babbit (1988) 45 Cal.3d 660, the trial court failed to explain to
the jury at the penalty phase which of the guilt phase and, in that case, sanity phase
instructions applied at the penalty phase. The defendant argued that this failure left
the jury without proper guidance, and that if the jury believed that all of the guilt
phase instructions applied at the penalty phase, he “was denied a fair penalty
determination because the jury was instructed at the guilt phase not to be influenced
by sympathy for defendant and to disregard the consequences of its decision.” (Id.
at p. 717.) We found no error but suggested that in future cases, to avoid possible
confusion, “trial courts should expressly inform the jury at the penalty phase which
of the instructions previously given continue to apply.” (Id. at p. 718, fn. 26.) In
response to this suggestion, the Committee on Standard Jury Instructions of the
Superior Court of Los Angeles County (the Committee) rewrote CALJIC No.
8.84.1. (See Use Note to CALJIC No. 8.84.1 (1989 new) (5th ed. 1988).) 5
In the new version of CALJIC No. 8.84.1, the Committee departed somewhat
from our suggestion. Rather than tell the jury which guilt phase instructions apply
to the penalty phase, the new instructions simply tell the jury to disregard all
previous instructions. Then the trial court is to reinstruct the jury entirely from the
5
All further references to CALJIC No. 8.84.1 are to this version, which
remains the same today. (See CALJIC No. 8.84.1 (6th ed. 1996).)
24
beginning. As the Use Note to the instruction explains, the rewritten CALJIC No.
8.84.1 is to provide introductory information in place of CALJIC No. 1.00, which is
the guilt phase introductory instruction. The trial court is then to reread all guilt
phase instructions that also apply to the penalty phase, beginning with CALJIC No.
1.01, and the remaining penalty phase instructions. The Use Note to the instruction
states, “Our recommended procedure may be more cumbersome than the
suggestion advanced in [People v. Babbit, supra, 45 Cal.3d at page 718,] footnote
number 26, but the Committee believes it is less likely to result in confusion to the
jury.”
Although trial in this case occurred shortly after adoption of the 1989
version of CALJIC No. 8.84.1, the trial court did not give that instruction.6 Instead,
it gave the previously standard instructions augmented with several special
instructions. Defendant contends the court erred. However, as we explain, the
actual instructions, including the special instructions, many at defense request, fully
instructed on the law and informed the jury at the penalty phase which of the
previous instructions would continue to apply. Although the approach the
Committee took—telling the jury to disregard previous instructions and
reinstructing anew—may be effective, perhaps even preferable, we have never
mandated it. The actual instructions satisfied the concerns we expressed in Babbit.
The court explained to the jury which guilt phase instructions applied at the
penalty phase.7 It expressly told the jury it could consider sympathy. At the guilt
6
The record does not reflect why the court did not give the new CALJIC No.
8.84.1. Perhaps the court and parties simply were unaware of the recent change.
7
The court instructed the jury “to apply any of the instructions given
previously during the guilt phase of this case which are pertinent to the
determination of penalty. You are to disregard any such previous instructions which
do not apply to the determination of penalty. Should any of the instructions now
being given in the penalty phase conflict with those previously given during the guilt
25
phase, the court had instructed, “Both the People and the defendant have a right to
expect that you will conscientiously consider and weigh the evidence, apply the law
and reach a just verdict regardless of the consequences.” 8 Defendant does not
argue that the court should have specifically told the jury to disregard the reference
to reaching a just verdict “regardless of the consequences.” The penalty phase
instructions as a whole made clear that the jury did have to consider the
consequences; after all, the whole point of that phase was to decide what penalty to
impose. The court specifically admonished the jury to “also keep in mind that each
of you bears the ultimate responsibility to determine the appropriate penalty under
all the circumstances of this case.” As in Babbit, which did not have these special
instructions, “We conclude that the jury could not have been misled as to its
responsibility to consider the consequences of its decision.” (People v. Babbit,
supra, 45 Cal.3d at p. 718.)
Defendant argues that the failure to give the new version of CALJIC
No. 8.84.1 withheld from the jury “several fundamental principles.” But each of
phase you are instructed that the penalty phase instructions will control and
supersede those previously given.
“In this regard, you will recall that you were instructed in the guilt phase that
you could not be swayed nor affected by considerations such as sympathy. That
prohibition does not apply to your deliberations in the penalty phase. You are
allowed to consider sympathy, pity, compassion or mercy to the extent that you feel
it warranted. You are also to disregard any previous instruction to the effect that the
burden of proof for crimes or criminal activity other than that for which the
defendant was on trial was a preponderance of the evidence. [See People v.
Carpenter, supra, 15 Cal.4th at p. 382.]
“You are now instructed that when evidence of such other crimes or criminal
activities offered on the issue of penalty as it has been in this case, it is the burden
of the People to prove such other crimes or criminal activity as well as convictions,
therefore, beyond a reasonable doubt.”
8
The current CALIC No. 8.84.1 includes the substance of this sentence but
deletes the language “regardless of the consequences.”
26
these principles was covered in other instructions, including CALJIC No. 1.00,
given at the guilt phase.
Defendant makes the following specific arguments: (1) CALJIC No. 8.84.1
tells the jury to “determine what the facts are from the evidence received during the
entire trial unless you are instructed otherwise.” However, the court did tell the
jury “to consider all of the evidence which has been received during any part of the
trial of this case except as you may be hereafter instructed.” (See CALJIC No.
8.85.) (2) CALJIC No. 8.84.1 tells the jury to “accept and follow the law that I
shall state to you.” However, at the guilt phase, the court told the jury “to accept
and follow the law as I state it to you whether or not you agree with the law.” (See
CALJIC No. 1.00.) (3) CALJIC No. 8.84.1 tells the jury not to be “swayed by
public opinion or public feelings.” At the guilt phase, the court told the jury not to
be “influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public
opinion or public feeling” (see CALJIC No. 1.00) and, at the penalty phase, it told
the jury not to consider “for any reason whatsoever the deterrent or non-deterrent
effect of the death penalty or the monetary cost to the state of execution or
maintaining a prisoner for life.” (4) CALJIC No. 8.84.1 tells the jury, “Both the
People and the Defendant have a right to expect that you will . . . follow the law
[and] exercise your discretion conscientiously . . . .” As noted above, the guilt
phase instructions said essentially the same thing and, at the penalty phase, the court
told the jurors “to keep in mind that each of you bears the ultimate responsibility to
determine the appropriate penalty under all the circumstances of this case.”
Thus, although the court did not give the 1989 version of CALJIC No.
8.84.1, it did give its substance. There was no error.
27
2. Failure to Give 1989 Version of CALJIC No. 8.88
Before 1989, CALJIC No. 8.88, the standard penalty phase concluding
instruction, did not itself define “aggravating” and “mitigating.” Nevertheless, in at
least two cases tried before 1989, the trial court gave special instructions defining
those terms. (People v. Adcox (1988) 47 Cal.3d 207, 269; People v. Dyer (1988)
45 Cal.3d 26, 77-78.) In both cases, the defendant argued that the instructions were
erroneous. We disagreed and concluded that the “definitions of aggravation and
mitigation provided a helpful framework within which the jury could consider the
specific circumstances in aggravation and mitigation set forth in section 190.3. We
find no error in the presentation of both definitions to the jury, and we find no
prejudice in light of the instruction limiting the jury’s consideration to ‘the
applicable factors of aggravati[on].’ ” (People v. Dyer, supra, 45 Cal.3d at p. 78;
see also People v. Adcox, supra, 47 Cal.3d at pp. 269-270 [citing Dyer].)
In light of these decisions, the Committee revised CALJIC No. 8.88 to add a
paragraph defining “aggravating” and “mitigating” derived from the instructions
given in those cases.9 Although trial in this case occurred shortly after this
paragraph was added to CALJIC No. 8.88, the trial court did not give it; instead, it
gave the previous version of the instruction. (See fn. 6, ante.) Defendant contends
the court erred. We disagree. Although we have found that giving the instruction
was neither error nor prejudicial to defendants, we have never suggested that the
instruction was required or that not giving it prejudiced defendants. The standard
9
The new paragraph provided: “An aggravating factor is any fact, condition or
event attending the commission of a crime which increases its guilt or enormity, or
adds to its injurious consequences which is above and beyond the elements of the
crime itself. A mitigating circumstance is any fact, condition or event which as
such, does not constitute a justification or excuse for the crime in question, but may
be considered as an extenuating circumstance in determining the appropriateness of
the death penalty.” (CALJIC No. 8.88 (1989 new) (5th ed. 1988).) This paragraph
is substantially the same in the current version of CALJIC No. 8.88 (6th ed. 1996).
28
instructions predating the 1989 revision were not erroneous. “Although giving the
instructions may have provided a ‘helpful framework’ for the jury’s consideration
of the statutory circumstances in aggravation and mitigation (People v. Dyer,
supra, 45 Cal.3d at p. 82), the court’s refusal [to give such instructions] was not
error.” (People v. Malone (1988) 47 Cal.3d 1, 55; see also People v. Barnett
(1998) 17 Cal.4th 1044, 1175.)
In this case, the special instructions the court gave made these definitions
particularly unnecessary. At defense request, the court gave a special instruction
pinpointing the defense mitigating evidence the jury could consider while making
clear that the wide range of possible mitigation was not limited to that evidence.
(Cf. People v. Benson (1990) 52 Cal.3d 754, 805-806 [trial court not required to
give such pinpoint instructions].) Moreover, the court itemized the other crimes
evidence and evidence of convictions that the jury could consider—the only
aggravating evidence the prosecution presented—and specifically told the jury it
could not consider any other criminal activity or convictions in aggravation. In light
of these instructions, it is hard to imagine how defendant could have desired, or
benefited from, any other instruction defining mitigation and aggravation in general
terms. The actual instructions fully protected defendant’s interests.
3. Other Instructional Issues
Defendant makes two other instructional contentions that we have repeatedly
rejected and continue to do so. The trial court need not (1) instruct the jury that it
may impose the death penalty only if it finds beyond a reasonable doubt that death is
the appropriate penalty or (2) impose on the prosecution the burden of persuasion.
29
(People v. Samayoa (1997) 15 Cal.4th 795, 852-853, 862; People v. Hayes
(1990) 52 Cal.3d 577, 643.) 10
D. New Trial Motion Based on Jury Misconduct
Defendant moved for a new trial due to jury misconduct. In support of the
motion, he presented the declarations of two jurors, which were quite similar.
Both jurors stated that they had listened to the trial court’s instruction on
life without the possibility of parole but did not believe it to be true, and they
thought that someday defendant might be released on parole. They said that if they
had really thought life without possibility of parole meant what it said, they would
not have voted for the death penalty and would have held out against a vote for death.
Both also said that four men on the jury with experience in the military and Vietnam
“drew upon their experience in the service and determined that the military records
that we reviewed and heard testimony about did not show that Mr. Steele” either
served in Vietnam at a time when he might have been exposed to combat (one juror)
or “served as a Seal and learned how to kill from the counterinsurgency schools
because they had attended the same schools and did not learn how to kill in them”
(the other juror). Both jurors said that “[t]heir input about this subject was very
helpful in establishing the validity of Mr. Steele’s [Vietnam] experience.” One
added that it helped her “to determine that he was not suffering from P.T.S.D.”
Finally, both jurors said the jury had two persons “with medical experience who told
the rest of us that the criteria that the Doctor’s [sic] used to establish the validity of
the B.E.A.M. Test” was “inadequate” based on “what they have learned in their own
experience in the medical field.” Regarding this inadequacy, one of the jurors
specifically referred to “something like 17 control people.” One of the jurors said
10
Defendant also argues that the cumulative effect of the asserted errors
prejudiced him. There was, however, no error to cumulate.
30
that this input helped her “to determine that Mr. Steele was not suffering from any
problem with his brain.” The other said that this input “helped me because I have no
experience when it comes to that type of thing.”
After a hearing, but without taking evidence, the trial court denied the new
trial motion. It concluded that it could not consider the statements in the
declarations regarding the jurors’ “subjective state of mind,” but it did consider the
declarations regarding what it characterized as “the expertise of other jurors.” On
this point, the court said that “there was a morass here of military and medical
evidence, all of it subjected to reasonable and logical analysis from lay people of
various backgrounds and varying experiences. The only thing I have in these
affidavits is a conclusionary assumption, no factual allegation at all—it would
almost take a definitive transcript of the deliberation conversation to know at what
point a juror is relying on . . . expertise and at what point he is just reasonably
analyzing this vast amount of material that has been input into the deliberation
system.”
Defendant contends the court erred in denying the new trial motion. He
divides his jury misconduct argument into two categories: (1) the two jurors who
signed the declarations committed misconduct by not following the court’s
instructions on the legal significance of a sentence of life without parole; and (2)
some of the nondeclarant jurors committed misconduct by “the offering of
expertise . . . , during deliberations, to help the jury as a whole to resolve key factual
issues the case presented.” Both contentions lack merit.
1. Refusing to Follow the Trial Court’s Instructions
The two declarant jurors said they believed that, given a life without parole
sentence, defendant might someday be released and that, had they believed
otherwise, they would have held out for a life sentence. The trial court properly
31
refused to consider these statements regarding the jurors’ thought processes.
Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the
validity of a verdict, any otherwise admissible evidence may be received as to
statements made, or conduct, conditions, or events occurring, either within or
without the jury room, of such a character as is likely to have influenced the verdict
improperly. No evidence is admissible to show the effect of such statement,
conduct, condition, or event upon a juror either in influencing him to assent or to
dissent from the verdict or concerning the mental processes by which it was
determined.” (Italics added.)
This statute distinguishes “between proof of overt acts, objectively
ascertainable, and proof of the subjective reasoning processes of the individual
juror, which can be neither corroborated nor disproved . . . .” (People v.
Hutchinson (1969) 71 Cal.2d 342, 349.) “This limitation prevents one juror from
upsetting a verdict of the whole jury by impugning his own or his fellow jurors’
mental processes or reasons for assent or dissent. The only improper influences
that may be proved under [Evidence Code] section 1150 to impeach a verdict,
therefore, are those open to sight, hearing, and the other senses and thus subject to
corroboration.” (People v. Hutchinson, supra, at p. 350; see also In re Hamilton
(1999) 20 Cal.4th 273, 294; Ballard v. Uribe (1986) 41 Cal.3d 564, 575-578
(conc. opn. of Mosk, J.).)
The statements of the jurors regarding their understanding of the meaning of
a life sentence and what they would have done had they believed differently come
squarely within the prohibition against impeaching a verdict with evidence of the
jurors’ mental processes. “ ‘[A] verdict may not be impeached by inquiry into the
juror’s mental or subjective reasoning processes, and evidence of what the juror
“felt” or how he understood the trial court’s instructions is not competent.’ ”
32
(People v. Morris (1991) 53 Cal.3d 152, 231, quoting People v. Sutter (1982) 134
Cal.App.3d 806, 819.)
Defendant argues that applying Evidence Code section 1150 to this verdict
would violate both the United States and California Constitutions. We disagree.
Over three decades ago, we noted that the distinction between proof of overt acts—
which is admissible to impeach a verdict—and proof of the jurors’ subjective
reasoning process—which is not admissible—“has been advocated by
commentators [citations], and has been the basic limitation on proof set by the
leading decisions allowing jurors to impeach their verdicts.” (People v.
Hutchinson, supra, 71 Cal.2d at p. 349.) This distinction serves a number of
important policy goals. It prevents a juror from impugning one or more jurors’
reasoning processes. It excludes unreliable proof of thought processes and thereby
preserves the stability of verdicts. It deters the harassment of jurors by the losing
side seeking to discover defects in the deliberative process and reduces the risk of
postverdict jury tampering. It also assures the privacy of jury deliberations. (In re
Hamilton, supra, 20 Cal.4th at p. 294, fn. 17; Hasson v. Ford Motor Co. (1982) 32
Cal.3d 388, 414.) Not all thoughts “by all jurors at all times will be logical, or even
rational, or, strictly speaking, correct. But such [thoughts] cannot impeach a
unanimous verdict; a jury verdict is not so fragile.” (People v. Riel (2000) 22
Cal.4th 1153, 1219.)
Defendant asserts that the United States Constitution guarantees him the
right to impeach a verdict with the jurors’ internal thought processes. The United
States Supreme Court has virtually precluded such a conclusion. In Tanner v.
United States (1987) 483 U.S. 107, that court interpreted Federal Rules of
Evidence, rule 606(b) (28 U.S.C.), the federal counterpart to Evidence Code section
1150, as allowing evidence of “extrinsic influence or relationships [that] have
tainted the deliberations” (Tanner v. United States, supra, at p. 120), but
33
precluding evidence of a juror’s thought processes and even evidence by some
jurors that other jurors had been intoxicated and had slept through parts of the trial.
“Substantial policy considerations support the common-law rule against the
admission of jury testimony to impeach a verdict. As early as 1915 this Court
explained the necessity of shielding jury deliberations from public scrutiny: ‘[L]et
it once be established that verdicts solemnly made and publicly returned into court
can be attacked and set aside on the testimony of those who took part in their
publication and all verdicts could be, and many would be, followed by an inquiry in
the hope of discovering something which might invalidate the finding. Jurors would
be harassed and beset by the defeated party in an effort to secure from them
evidence of facts which might establish misconduct sufficient to set aside a verdict.
If evidence thus secured could be thus used, the result would be to make what was
intended to be a private deliberation, the constant subject of public investigation—
to the destruction of all frankness and freedom of discussion and conference.’ ”
(Id. at pp. 119-120, quoting McDonald v. Pless (1915) 238 U.S. 264, 267-268.)
The high court found that the federal rule restricting evidence to impeach a
verdict “is grounded in the common-law rule against admission of jury testimony to
impeach a verdict and the exception for juror testimony relating to extraneous
influences,” and it found it “not at all clear . . . that the jury system could survive” a
rule permitting broader attacks on a verdict. (Tanner v. United States, supra, 483
U.S. at pp. 121, 120.) The court rejected the defendant’s argument that not allowing
this evidence violated the Sixth Amendment right to a fair trial before an impartial
and competent jury. (Tanner v. United States, supra, at pp. 126-127.) It
concluded that “long-recognized and very substantial concerns support the
protection of jury deliberations from intrusive inquiry.” (Id. at p. 127.) Defendant
invokes the Eighth and Fourteenth Amendments as well as the Sixth, but the same
arguments apply. We conclude that Evidence Code section 1150’s prohibition on
34
evidence of a juror’s thought processes to impeach a verdict does not violate the
United States Constitution.
Defendant also argues that Evidence Code section 1150 runs afoul of
California Constitution, article I, section 28, subdivision (d), adopted by the
electorate in 1982, which generally provides that “relevant evidence shall not be
excluded in any criminal proceeding . . . .” Defendant argues that evidence of the
jurors’ thought processes is relevant and, accordingly, may not be excluded. We
have not yet decided this question. (See People v. Beardslee (1991) 53 Cal.3d 68,
115 [not deciding it because the crime occurred before the effective date of that
provision].) However, the Court of Appeal has considered it and, in a thorough
analysis with which we agree, found that Evidence Code section 1150 does not
violate California Constitution, article I, section 28, subdivision (d). (People v.
Hill (1992) 3 Cal.App.4th 16, 28-33, disapproved on another ground in People v.
Nesler (1997) 16 Cal.4th 561, 582, fn. 5.) The Hill court concluded that “the
second sentence of Evidence Code section 1150, subdivision (a), embodies a
substantive rule of law, derived from the common law, which renders a juror’s
subjective reasoning process irrelevant.” (People v. Hill, supra, at p. 28.)
As explained in greater detail in Hill, California Constitution, article I,
section 28, subdivision (d), only requires admission of evidence relevant to a
material point. (People v. Hill, supra, 3 Cal.App.4th at pp. 28-29.) Evidence Code
section 210 defines “relevant evidence” as “evidence, including evidence relevant
to the credibility of a witness or hearsay declarant, having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of
the action.” (Italics added.) “What matters are in issue (and consequently
material) is determined mainly by the pleadings, the rules in pleading and the
substantive law relating to the particular kind of case.” (1 Witkin, Cal. Evidence
(3d ed. 1986) § 286, pp. 255-256; see People v. Hill, supra, at p. 29.) The rule
35
prohibiting impeachment of a verdict by examining the jurors’ mental processes is
one of substantive law. The jurors’ deliberations, “ ‘their expressions, arguments,
motives and beliefs represent that state of mind which must precede every legal act
and is in itself of no jural consequence.’ ” (People v. Hill, supra, at p. 30, quoting
8 Wigmore, Evidence (McNaughton ed. 1961) § 2348, p. 680.) “Thus, the rule
renders the jurors’ subjective thought processes immaterial and of no jural
consequence. From this it follows that evidence that the jurors misunderstood the
judge’s instructions, were influenced by an improper remark of a fellow juror,
assented under an erroneous belief that the judge would use clemency or had the
legal right to vary the sentence, or had been influenced by inadmissible evidence is
simply of no legal significance. [Citation.] In short, under both the common law
and Evidence Code section 1150, the jurors’ motives, beliefs, misunderstandings,
intentions, and the like are immaterial.” (People v. Hill, supra, at p. 30.)
Because, as a matter of substantive law, the jurors’ mental processes leading
to the verdict are of no jural consequence, evidence of those mental processes is of
no “consequence to the determination of the action” (Evid. Code, § 210) and hence
is irrelevant. Evidence about a juror’s thought process may show what that process
was, but that process is irrelevant to any legal issue. “As a matter of policy,
Evidence Code section 1150, subdivision (a), excludes evidence of the subjective
reasoning processes of jurors to impeach their verdicts. Since such evidence is not
material, it is not ‘relevant evidence’ as defined in Evidence Code section 210, nor,
perforce, as used in [California Constitution, article I, section 28, subdivision (d)].”
(People v. Hill, supra, 3 Cal.App.4th at pp. 32-33.)
The trial court correctly refused to consider evidence of the jurors’
subjective thought processes. Accordingly, it did not abuse its discretion in denying
the new trial motion to the extent it was based on this evidence.
36
In a closely related contention, defendant also argues that the two declarant
jurors provided false information during jury selection. (See generally In re
Hamilton, supra, 20 Cal.4th at pp. 299-300; In re Hitchings (1993) 6 Cal.4th 97,
110-116.) He notes that both jurors stated in court that they could follow the law as
the court explained it and claims this was a lie because later they did not follow the
law. Even if the declarations could be considered on this point, it would not entitle
defendant to relief. As the trial court found, there was no evidence “that would
indicate a previously held intention to intentionally disobey the court’s
instructions.” Indeed, no clear conflict exists between the instructions and the
jurors’ asserted thought processes. The court can, and here did, tell the jury that a
life without parole sentence means just that, but no one can predict the future with
certainty. No one, including a court, can guarantee that a person will never be
paroled or otherwise get out of prison. The possibility that sometime in the future a
person might be released, perhaps because of a change in the law, is a matter “of
common knowledge appreciated by every juror who must choose between a death
sentence and a sentence of life without parole.” (People v. Hovey (1988) 44
Cal.3d 543, 581.) Defendant has shown no misconduct during jury selection.
2. Improper Assertion of Expertise
Defendant also contends that the four jurors with alleged experience in the
military and in Vietnam, and the two persons with alleged medical experience,
committed misconduct by offering their expertise to the other jurors. To the extent
the declarations stated what effect these jurors had on the deliberations, the
statements are inadmissible under Evidence Code section 1150, subdivision (a),
which, as discussed, prohibits evidence showing the effect that statements or
conduct had “upon a juror either in influencing him to assent or to dissent from the
verdict . . . .” However, portions of the declarations involved statements made or
37
conduct occurring within the jury room. Those portions are evidence of objectively
ascertainable overt acts that are open to sight, hearing, and the other senses and are
therefore subject to corroboration. As such, the court properly could, and did,
consider those statements. (People v. Hutchinson, supra, 71 Cal.2d at pp. 349350; see In re Stankewitz (1985) 40 Cal.3d 391, 398.)
Defendant claims the jurors committed misconduct under the rule
announced in In re Malone (1996) 12 Cal.4th 935: “It is not improper for a juror,
regardless of his or her educational or employment background, to express an
opinion on a technical subject, so long as the opinion is based on the evidence at
trial. Jurors’ views of the evidence, moreover, are necessarily informed by their
life experiences, including their education and professional work. A juror, however,
should not discuss an opinion explicitly based on specialized information obtained
from outside sources. Such injection of external information in the form of a
juror’s own claim to expertise or specialized knowledge of a matter at issue is
misconduct.” (Id. at p. 963; see also In re Stankewitz, supra, 40 Cal.3d 391.) We
conclude that the trial court acted within its discretion in denying the new trial
motion. (People v. Delgado (1993) 5 Cal.4th 312, 328.)
In this case, as the trial court noted, extensive evidence was produced
concerning the nature and extent of defendant’s military training and Vietnam
experience and its effect, if any, on his crimes, as well as evidence concerning the
validity of BEAM testing. This evidence was susceptible of various interpretations.
The views the jurors allegedly asserted here were not contrary to, but came within
the range of, permissible interpretations of that evidence. All the jurors, including
those with relevant personal backgrounds, were entitled to consider this evidence
and express opinions regarding it. “[I]t is an impossible standard to require . . . [the
jury] to be a laboratory, completely sterilized and freed from any external factors.”
(Rideau v. Louisiana (1963) 373 U.S. 723, 733 (dis. opn. of Clark, J.), quoted in
38
People v. Marshall (1990) 50 Cal.3d 907, 950.) “It is ‘virtually impossible to
shield jurors from every contact or influence that might theoretically affect their
vote.’ ” (In re Hamilton, supra, 20 Cal.4th at p. 296, quoting Smith v. Phillips
(1982) 455 U.S. 209, 217.) A juror may not express opinions based on asserted
personal expertise that is different from or contrary to the law as the trial court
stated it or to the evidence, but if we allow jurors with specialized knowledge to sit
on a jury, and we do, we must allow those jurors to use their experience in
evaluating and interpreting that evidence. Moreover, during the give and take of
deliberations, it is virtually impossible to divorce completely one’s background
from one’s analysis of the evidence. We cannot demand that jurors, especially lay
jurors not versed in the subtle distinctions that attorneys draw, never refer to their
background during deliberations. “Jurors are not automatons. They are imbued with
human frailties as well as virtues.” (In re Carpenter (1995) 9 Cal.4th 634, 654655.)
A fine line exists between using one’s background in analyzing the evidence,
which is appropriate, even inevitable, and injecting “an opinion explicitly based on
specialized information obtained from outside sources,” which we have described
as misconduct. (In re Malone, supra, 12 Cal.4th at p. 963.) In this case, the
declarations do not so clearly show that the jurors crossed the line into misconduct
as to have required the court to conduct an evidentiary hearing. For example, one
declaration asserted that some of the jurors said that they “had attended the same
schools [as defendant] and did not learn how to kill in them.” Whether one learned
“how to kill” in any particular military school is particularly subjective and open to
almost any interpretation. In one sense, everyone learns how to kill in the military,
because the military ultimately fights wars in which people are killed. Similarly,
some of the witnesses testified regarding the validity of the BEAM testing. Dr.
Kowell testified that control groups were broken down into age groups varying in
39
size from 15 to around 40 persons, and that the control group for defendant’s age
consisted of 16 people. Allegedly, the jurors said that 16 (or 17) persons was
inadequate. This shows no misconduct. A juror, including one with personal
experience, could conclude that the control group for defendant’s age group was
too small to be valid. Moreover, it would be an impossibly high standard to permit
these jurors to express an opinion on this evidence without relying on, or
mentioning, their personal experience and background.
A court may hold an evidentiary hearing when jury misconduct is alleged in a
new trial motion, but the court may also, in its discretion, conclude that a hearing is
not necessary “to resolve material, disputed issues of fact.” (People v. Hedgecock
(1990) 51 Cal.3d 395, 415, quoted in People v. Cox (1991) 53 Cal.3d 618, 697.)
Here, the trial court heard the extensive evidence presented at trial and was well
positioned to determine whether the declarations showed misconduct of the nature
criticized in In re Malone, supra, 12 Cal.4th at page 963, or merely expressions of
opinions, informed by the jurors’ life experiences, regarding evidence subject to
varying interpretations. We see no abuse of discretion in this case in denying the
new trial motion without an evidentiary hearing.11
E. Automatic Motion to Modify Verdict
Section 190.4 provides for an automatic motion to modify the death verdict.
In ruling on the motion, the trial court must independently reweigh the evidence of
aggravating and mitigating factors presented at trial and determine whether, in its
independent judgment, the evidence supports the death verdict. The court must state
the reasons for its ruling on the record. On appeal, we independently review the
trial court’s ruling after reviewing the record, but we do not determine the penalty
11
For these reasons, we disagree with the concurring opinion that the jurors
committed misconduct. However, for the reasons that opinion states, we agree that
any misconduct would not have been prejudicial.
40
de novo. (People v. Memro (1995) 11 Cal.4th 786, 884.) Defendant contends the
court erred in denying his motion to modify the verdict. We disagree.
The court expressly recognized its duty to review the evidence
independently. On the record, it reviewed in detail the aggravating and mitigating
factors listed in section 190.3 and expressly considered, again in detail, the
mitigating evidence defendant presented. Ultimately, it stated its “independent
judgment that the weight of the evidence supports the jury’s verdict of death,” and
denied the motion.
Defendant disagrees in many ways with the court’s view of the evidence—
particularly the weight it gave his evidence in mitigation. But defendant’s view of
the evidence is not the only permissible one. Although the court must consider all
proffered mitigating evidence, as this court did, it need not find that any particular
evidence is in fact mitigating under the circumstances. (People v. Scott (1997) 15
Cal.4th 1188, 1222.) The court did find mitigation based on defendant’s Vietnam
experiences, his mental state, his state of intoxication, and the other evidence; it
just did not find it as mitigating as defendant urges.
The trial court correctly recognized that this case has one overwhelming
circumstance that greatly affected the sentencing decision: the prior murder.
Defendant presented many explanations for stabbing Lee Ann Thurman to death.
But he had killed a young woman once before under similar circumstances and
presented similar explanations. As the court noted, defendant “had more reason
than most people after 1971 to understand what tragic results could occur from a
mixture of alcohol and/or substance abuse, sexual intentions, anger, resentment
toward young females; he knew what the results were before.” Yet nevertheless,
having killed before, having been convicted of murder and incarcerated, then
released back into society, defendant, undeterred, killed again. He made no
apparent effort to avoid the circumstances that, he claims, caused him to kill.
41
Knowing that he had killed before, the court noted, defendant “deliberately went
into that house armed with a knife under circumstances similar to those that existed
some 18 years before.” The trial court could reasonably find, as the jury no doubt
did, that the prior murder was itself a powerful factor in aggravation and that, given
its circumstances, it tended to minimize the significance of the proffered evidence
in mitigation.
Defendant also argues the court considered the absence of mitigation to be
aggravating. We disagree. The record shows that the court carefully limited its
consideration of aggravation to the statutory factors. In considering the evidence
offered in mitigation, the court necessarily discussed its reasons for discounting
the actual mitigating impact of that evidence, but it never suggested that the absence
of mitigation was itself aggravating. We also reject defendant’s argument that the
court impermissibly double-counted factors in aggravation. Indeed, the court
expressly refused to double-count aggravating factors including, above all, the prior
murder. It carefully considered that murder as a circumstance of the crime (it was a
special circumstance), and not again as a prior conviction under section 190.3,
factor (c).
In short, the court carefully and conscientiously performed its duty under
section 190.4.
F. Proportionality Review; Modification of the Judgment
Defendant asks us to conduct intercase proportionality review or to reduce
the death sentence to life under sections 1181, subdivision 7, and 1260. We do
neither. (People v. Riel, supra, 22 Cal.4th at p. 1223; People v. Hines (1997) 15
Cal.4th 997, 1078-1080.) But we do undertake intracase proportionality review to
determine whether the penalty is disproportionate to defendant’s personal
culpability. (Ibid.) “To determine whether a sentence is cruel or unusual as applied
42
to a particular defendant, a reviewing court must examine the circumstances of the
offense, including its motive, the extent of the defendant’s involvement in the
crime, the manner in which the crime was committed, and the consequences of the
defendant’s acts. The court must also consider the personal characteristics of the
defendant, including age, prior criminality, and mental capabilities. [Citation.] If
the court concludes that the penalty imposed is ‘grossly disproportionate to the
defendant’s individual culpability’ [citation], or, stated another way, that the
punishment ‘ “ ‘shocks the conscience and offends fundamental notions of human
dignity’ ” ’ [citation], the court must invalidate the sentence as unconstitutional.”
(People v. Hines, supra, 15 Cal.4th at p. 1078.)
Here, defendant’s sentence is not disproportionate to his personal
culpability. Defendant did not just kill once, he killed twice on separate occasions.
He was convicted of the first murder but killed again. A prior murder is among the
most compelling of aggravating circumstances, especially one as appalling as this—
stabbing to death a 15-year-old babysitter. Moreover, the second murder was itself
appalling. In killing Lee Ann Thurman, a developmentally disabled woman with the
skills of a 10-year-old, defendant took advantage of a particularly vulnerable target.
Defendant has presented many reasons for his repeated killing of young women and,
as the trial court found, they do mitigate the crimes somewhat. But the sentence of
death is not disproportionate to defendant’s personal culpability. It does not shock
the conscience.
G. Constitutionality of Death Penalty Law and Other Contentions
Defendant reiterates various contentions that we have previously rejected.
The death penalty is not an unconstitutional punishment in all cases. (People v.
Johnson, supra, 6 Cal.4th at pp. 52-53.) Prosecutorial discretion in deciding
whether to seek the death penalty does not render the law unconstitutional. (People
43
v. Kraft (2000) 23 Cal.4th 978, 1078.) The jury need not make explicit findings on
the factors it considered in reaching its verdict. (People v. Fauber (1992) 2
Cal.4th 792, 859.) Delay between the judgment and actual execution does not
render the punishment unconstitutional. (People v. Massie (1998) 19 Cal.4th 550,
574; People v. Frye (1998) 18 Cal.4th 894, 1030-1032.)
III. CONCLUSION
We affirm the judgment.
CHIN, J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.
44
CONCURRING OPINION BY GEORGE, C. J.
I concur fully in the judgment but write separately because the majority
departs from established precedent in resolving two issues — (1) whether certain
testimony of the forensic pathologist who performed the autopsy of the victim was
admissible on redirect examination; and (2) whether several jurors committed
misconduct by injecting extraneous information, based upon their own asserted
expertise and specialized knowledge, into the jury’s deliberations regarding
disputed issues at trial.
As I shall explain, the testimony of the pathologist on redirect examination
was not admissible simply because the defense had elicited similar testimony on
cross-examination, as the majority suggests. This “open the door” theory regarding
the admissibility of evidence was rejected long ago and cannot justify the admission
of evidence that otherwise should have been excluded. Nevertheless, I agree that
the pathologist’s testimony in the present case properly was admitted, because,
contrary to defendant’s contention, it concerned a proper subject of expert opinion.
With regard to defendant’s claim of juror misconduct, juror declarations
submitted in support of defendant’s motion for new trial allege that several jurors
engaged in misconduct by introducing into the deliberations extraneous information
based upon their own claims of personal expertise. Contrary to the majority’s
conclusion, these jurors did not simply interpret the evidence presented at trial.
Rather, they are alleged to have introduced into the deliberations new information
that contradicted evidence presented at trial. It is well established that injecting
1
such extraneous material into the deliberations under these circumstances
constitutes misconduct. As I shall discuss, however, any juror misconduct was not
prejudicial.
I
When cross-examining Dr. Thomas Resk, the pathologist who conducted the
autopsy of victim Lee Ann Thurman, defense counsel asked Dr. Resk whether,
considering the nature of the stab wounds, he would agree that the killer was acting
in a rage. Dr. Resk responded that, in light of the pattern of injuries, the killing
could have been committed in a rage. The prosecutor did not object to this question
or to the answer.
On redirect examination, the prosecutor asked Dr. Resk whether the injuries
could have been inflicted in a methodical manner. The witness responded “yes.”
The prosecutor then asked whether Dr. Resk’s opinion in this regard would be
influenced by the circumstance that the same individual committed the Thurman
killing as well as another killing Dr. Resk had discussed in his testimony on direct
examination. Defense counsel objected to this question, but the trial court
overruled the objection on the ground that “[i]t [was] an area that [defense counsel]
did get into.” Dr. Resk testified that the circumstance that the same individual had
killed both victims definitely would influence his opinion whether the killing was
committed in a methodical manner, because the bodies of both victims had similar
patterns of injuries.
Defendant contends that the trial court erred in permitting Dr. Resk to testify
that there was evidence supporting the prosecution’s theory of premeditation.
According to defendant, the doctor’s testimony on redirect examination, described
above, should have been excluded, because it was not a proper subject of expert
testimony (see Evid. Code, § 801, subd. (a)), but rather concerned an inference that
2
properly could have been drawn by the jury in light of evidence regarding the nature
of the wounds.
The majority rejects defendant’s claim on the ground that the defense, not
the prosecution, initiated this line of testimony. The majority states: “[W]e assume
[defendant] is not really complaining about the defense cross-examination — which
clearly helped the defense — but only about the redirect examination, which sought
to neutralize that cross-examination and present the full picture. [¶] Once the
defense elicited Dr. Resk’s opinion on cross-examination that the Thurman
killing might have been done in a rage, the prosecution was entitled to elicit on
redirect examination the further opinion that it might have also been
methodical.” (Maj. opn., ante, at p. 14, italics added.)
Contrary to the majority’s statement, the pathologist’s opinion that the
killing could have been methodical was not admissible on redirect examination
simply because the defense on cross-examination had elicited the pathologist’s
opinion on the same general subject. This theory regarding the admissibility of
testimony was rejected long ago in this state. “ ‘The argument that defendant’s
counsel “opened the gates” is unavailing . . . Legitimate cross-examination does
not extend to matters improperly admitted on direct examination. Failure to object
to improper questions on direct examination may not be taken advantage of on
cross-examination to elicit immaterial or irrelevant testimony.’ [Citation.]”
(People v. Wells (1949) 33 Cal.2d 330, 340, disapproved on another point in
People v. Wetmore (1978) 22 Cal.3d 318, 321.) Only where a proper objection
would not have cured the prejudice to the prosecution may the prosecutor rebut
inadmissible evidence by eliciting similarly inadmissible evidence on redirect
examination. (People v. Westek (1948) 31 Cal.2d 469, 476-481; 3 Witkin, Cal.
Evidence (4th ed. 2000) Presentation at Trial, §§ 352-353, pp. 439-441; 1
3
Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2001) Examination of
Witnesses, § 27.92, pp. 471-472.) 1
The majority cites People v. Kynette (1940) 15 Cal.2d 731, 752, for the
principle that “when a witness is questioned on cross-examination as to matters
relevant to the subject of the direct examination but not elicited on that
examination, he may be examined on redirect as to such new matter.” The decision
in Kynette, however, did not involve a claim that the evidence elicited on redirect
examination would have been inadmissible under any circumstances, as in the
present case. It therefore provides no support for the majority’s theory, which
could permit the parties to control the admissibility of evidence by choosing not to
object to clearly inadmissible testimony elicited by their adversaries. (See People
v. Smithey (1999) 20 Cal.4th 936, 958-961 [prosecutor committed misconduct
when he sought to elicit improper expert opinion by stating that he was willing to
open the door on the issue so that the defense also could present inadmissible
expert testimony].)
With regard to the rule precluding a party from introducing inadmissible
testimony simply because the other party has introduced similar testimony without
objection, the majority claims that this rule is limited to the situation in which the
party attempts to capitalize upon the other party’s mistaken or unintentional
introduction of irrelevant testimony. Because the expert opinion elicited by the
defense and by the prosecution in the present case was relevant and was not
received as a result of a mistake by counsel, the majority states that the question
whether this evidentiary rule applies under these circumstances is not presented.
The majority cites no authority in support of such a limitation, however, and
1
Other jurisdictions have adopted different rules with regard to this issue.
(See 1 Wigmore on Evidence (Tillers rev. 1983) § 15, pp. 731-751.) The majority
does not purport to change the rule that has been followed in California, however.
4
limiting the rule to the introduction of irrelevant evidence is inappropriate and
illogical. Although the authority discussed above arose in the context of cases in
which irrelevant evidence was presented, other decisions as well as treatises
discussing the rule recognize that it applies equally, if not with greater force, in
cases in which relevant but otherwise inadmissible evidence is presented.
For example, in People v. Gambos (1970) 5 Cal.App.3d 187, the defendant
introduced relevant, but inadmissible, hearsay evidence on cross-examination. The
prosecutor stated that he would not object to the evidence, but also stated that,
because defendant had “opened the door,” the prosecutor would be allowed on
redirect examination to elicit the entire conversation in question. The defendant
objected, however, when the prosecutor attempted to introduce evidence of that
conversation, and the Court of Appeal agreed that the admission of the hearsay
evidence on redirect examination was error. Its decision stated: “[T]he district
attorney expressly waived objection expecting thereby that ‘a door would be
opened’ to the admission of other improper evidence. But no ‘door was opened.’
By allowing objectionable evidence to go in without objection, the non-objecting
party gains no right to the admission of related or additional otherwise
inadmissible testimony. The so-called ‘open the door’ or ‘open the gates’
argument is ‘a popular fallacy.’ [Citations.]” (Id. at p. 192, italics added.)
People v. Parrella (1958) 158 Cal.App.2d 140 similarly involved relevant
but inadmissible evidence. On direct examination the defendant testified that he had
volunteered to take a lie detector test. Defense counsel then asked the defendant
whether he had taken that test, and the defendant answered affirmatively. The
prosecutor did not object to this testimony or to defense counsel’s question. On
cross-examination the prosecutor asked the defendant the same question and also
sought to introduce into evidence the results of the test. Although the trial court did
not permit the admission of the test results, the Court of Appeal held that the
5
prosecutor’s questions and the admission of the evidence regarding the test
constituted error. After establishing that evidence of an accused’s willingness to
take a lie detector test and the results of such a test were inadmissible, the appellate
court’s decision stated: “There would seem to be little doubt that [defendant’s]
statement that he had volunteered for and taken such a test was inadmissible. Had
the prosecution objected the objection should have been sustained. But the
prosecution did not object, but on cross-examination inquired into the subject more
fully, and even offered to introduce the result of the test. After the court had ruled,
properly, that the results of the tests were not admissible, the prosecution agreed to
withdraw the question. [¶] In so proceeding the prosecutor undoubtedly committed
error. The law is clear that legitimate cross-examination does not extend to matters
improperly admitted on direct.” (Id. at p. 147; see also 1 Jefferson, Cal. Evidence
Benchbook, supra, Examination of Witnesses, § 27.92, p. 471 [there is no “right of
cross-examination concerning the irrelevant or otherwise inadmissible matter . . .
even though testified to by the witness on direct examination without objection”].)
Furthermore, our decision in People v. Smithey, supra, 20 Cal.4th 936, is
not as far removed from this issue as the majority suggests. Under the majority’s
approach, the defendant in Smithey could have chosen not to object to the
prosecutor’s question eliciting an inadmissible expert opinion regarding the
defendant’s ultimate mental state, and then on redirect examination elicited a
similarly inadmissible opinion regarding that issue. If the prosecutor had objected
to the testimony elicited by defense counsel on redirect examination, according to
the majority the trial court would have been required to overrule the objection, even
if the prosecutor had established that admission of the evidence violated section 29
of the Penal Code, which provides that an expert witness shall not testify whether
the defendant had or did not have the required mental states. The rationale of the
majority is that the defendant would have been entitled to rebut the inadmissible
6
evidence intentionally presented by the prosecutor on cross-examination. If,
however, the trial court properly sustained the prosecutor’s objection, struck the
inadmissible opinions elicited both on cross-examination and redirect examination,
and advised the jury not to consider the opinions, the prejudice arising from the
error might be cured immediately, and the trial court could ensure adherence to
statutes governing the admissibility of evidence. Unfortunately, the majority’s
resolution of this issue in the present case could preclude a trial court from taking
such a reasonable approach and encourage counsel to engage in improper tactics in
order to obtain the introduction of inadmissible evidence.
In sum, the rule in California is that, where a party has elicited inadmissible
evidence without objection on cross-examination, the other party is not entitled on
redirect examination to present similar evidence that is inadmissible on any
ground, unless a proper ruling and admonition by the trial court would not cure the
prejudice resulting from the evidence improperly admitted on cross-examination.
The majority’s attempt to limit this rule to the mistaken introduction of irrelevant
evidence could lead to confusion and error. Indeed, we should take even greater
care to ensure that relevant inadmissible evidence is excluded, because such
evidence is more likely to be prejudicial than irrelevant evidence.
Nonetheless, I agree that the trial court did not err in permitting the
prosecution to introduce the evidence in the present case, because, as explained, the
testimony to which defendant objects was admissible. Contrary to defendant’s
contention, Dr. Resk’s testimony on redirect examination — that the knife wounds
could have been inflicted in a methodical manner — was within the scope of Dr.
Resk’s expertise and a proper subject for expert opinion. In order to be admissible,
the opinion of an expert must be “[r]elated to a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact,” and
“[b]ased on matter (including his special knowledge, skill, experience, training, and
7
education) perceived by or personally known to the witness . . . that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject
to which his testimony relates . . . . ” (Evid. Code, § 801.)
A basic question that must be considered by a pathologist in performing an
autopsy concerns “the manner and mode of death,” including whether the death was
accidental, suicidal, homicidal, or the result of natural causes. (2 Giannelli &
Imwinkelried, Scientific Evidence (3d ed. 1999) Pathology, § 19-7, p. 123.) With
regard to the examination of knife wounds, as in the present case, the pathologist
considers, for example, whether the nature of the wounds indicates hesitation,
which might be consistent with a finding of suicide, or whether the wounds are
defensive, which might suggest homicide. (Id. at pp. 123-124.) One pathologist has
explained: “Wounds in suicide may be just as determined as in homicide, but are
less likely to be multiple.” (Camps, Gradwohl’s Legal Medicine (2d ed. 1968) p.
299, italics added.) A pathologist’s examination of knife wounds during an autopsy
thus includes a consideration of the manner in which they were inflicted.
This court has stated: “A forensic pathologist who has performed an autopsy
is generally permitted to offer an expert opinion not only as to the cause and time
of death but also as to circumstances under which the fatal injury could or could not
have been inflicted. (See, e.g., People v. Cole [(1956)] 47 Cal.2d 99, 104-106
[fatal wound not self-inflicted]; People v. Obie (1974) 41 Cal.App.3d 744, 756-757
[fatal injuries caused not by auto accident but by repeated blows from blunt
instrument].)” (People v. Mayfield (1997) 14 Cal.4th 668, 766.) Thus, a
pathologist properly may offer an opinion whether certain wounds on the victim
were defensive and indicative of a struggle. (See People v. Bemore (2000) 22
Cal.4th 809, 819; People v. Belmontes (1988) 45 Cal.3d 744, 761; People v.
Brown (1995) 35 Cal.App.4th 708, 711.) In addition, we have stated that a
pathologist can explain the nature of the wounds to indicate that the killing was done
8
“in a deliberate manner.” (People v. Welch (1999) 20 Cal.4th 701, 751.) In one
case considered by the Court of Appeal, a pathologist testified that the location and
severity of wounds on the victim led him to believe the killing occurred during a
rage. (People v. Jones (1993) 14 Cal.App.4th 1252, 1256.) In another such case,
the forensic pathologist described certain wounds “as ‘hesitation’ cuts, that is,
indicating a degree of hesitation on the attacker’s part when the attacker realizes
that a good deal of force is required to achieve penetration.” (People v. Bobo
(1990) 229 Cal.App.3d 1417, 1426.) Some jurisdictions have authorized medical
experts to render an opinion whether a killing was accidental or a homicide. (E.g.,
Com. v. Daniels (Pa. 1978) 390 A.2d 172, 178-179; State v. Washington (R.I.
1990) 581 A.2d 1031, 1032-1033.)
We need not decide in the present case, however, whether a forensic
pathologist is authorized to render an opinion regarding the ultimate question
whether a killing was or was not a homicide, or whether it was committed with any
particular mental state. Dr. Resk did not offer an opinion regarding the manner in
which the victim was killed, but rather stated simply that the knife wounds could
have been made in a methodical manner. Thus, contrary to defendant’s suggestion,
Dr. Resk did not express an opinion that there was evidence of premeditation. Dr.
Resk further indicated that his opinion in this regard would be influenced by the
circumstance that the same individual had killed the other victim whose autopsy
report he had reviewed. This testimony, based upon Dr. Resk’s examination of the
victim’s wounds, is analogous to opinions commonly offered by forensic
pathologists regarding whether the nature of particular wounds indicates that the
victim attempted to defend himself or herself, or that the wounds were selfinflicted.
The expert’s opinion was related to a subject sufficiently beyond the
common experience of the jurors that his opinion in this regard would assist the
9
jury. Furthermore, the testimony was based upon the expert’s education and
experience as a pathologist. Thus, the testimony regarding this subject was
admissible pursuant to Evidence Code section 801. Therefore, the trial court
properly admitted the testimony elicited by the prosecutor.
II
Defendant moved for a new trial on the ground of juror misconduct. He
relied upon the declarations of two jurors, who identified two subject areas in which
other jurors injected extraneous matters into the deliberations — (1) defendant’s
military experience, and (2) the validity of a medical test used by defense experts to
detect brain damage in defendant. According to the declarations, several jurors
relied upon their professional expertise in asserting to the rest of the jury that
defendant did not experience combat in Vietnam or learn how to kill in military
school, and that the medical test administered to defendant was unreliable. These
assertions were not based upon any evidence presented at trial and, moreover,
contradicted evidence presented at trial. Therefore, the declarations submitted by
defendant describe juror misconduct.
Defense experts testified at trial that defendant suffered from mental
disorders as a result of trauma he experienced in the Vietnam War. Defense
witness Shad Meshad stated that, although defendant’s military records did not
indicate that he had experienced any combat, Meshad believed that defendant might
have had a temporary assignment involving combat that was not reflected in the
military records. In addition, Meshad testified that defendant’s records indicated
defendant was trained at a counterinsurgency school for Navy SEALS, where the
students were instructed in martial arts and taught to kill using knives, wire, and
their bare hands.
The declarations of the two jurors stated that four men on the jury had
military experience and had served in Vietnam. One juror’s declaration stated:
10
“These jurors drew upon their experience in the service and determined that the
military records that we reviewed and heard testimony about did not show that
[defendant] served in Vietnam in a time period that would have exposed him to any
combat.” The second juror’s declaration similarly stated that these four jurors drew
upon their military experience to determine that the military records and related
testimony at trial “did not show that [defendant] served as a [Navy] SEAL and
learned how to kill from the counterinsurgency schools because they [the four
jurors] had attended the same schools and did not learn how to kill in them.”
The other subject area in which extraneous information was introduced
concerned the validity of a medical test utilized by defense experts to determine
that defendant suffered from brain damage. Dr. Robert Bittle, a psychiatrist and
neurologist, ordered a brain electrical activity mapping (BEAM) test of defendant.
Dr. Bittle testified that this test revealed significant abnormalities in defendant’s
brain. On cross-examination, Dr. Bittle testified regarding the scientific acceptance
of BEAM testing. Although he acknowledged opinion in the scientific community
was divided, Dr. Bittle expressed his view that the test generally was accepted for
clinical use.
Dr. Arthur Kowell, a neurologist, also analyzed results of the BEAM test and
testified that it showed abnormalities in defendant’s brain. Dr. Kowell stated that
BEAM test results for a particular individual are obtained by comparing the values
obtained for that individual with an average of values obtained for a certain “control
group.” Control groups are comprised of persons who previously have been
examined and found to be normal. Dr. Kowell testified that control groups for the
BEAM test varied in size from 15 to 40 individuals and were based upon age,
gender, and handedness. The control group matching defendant’s characteristics
consisted of 16 individuals. Thus, the results from defendant’s BEAM test were
compared with the average of the results for those 16 individuals in order to
11
determine whether defendant’s results showed any abnormalities. Dr. Kowell, like
Dr. Bittle, stated that the BEAM test was generally accepted in the scientific
community.
According to the declarations of the two jurors, during deliberations two
other jurors with medical experience expressed views regarding the validity of the
BEAM test. One juror’s declaration stated that “the two jurors with medical
experience . . . told the rest of us that the criteria that the doctors used to establish
the validity of the BEAM test [were] inadequate from what they have learned in their
own experience in the medical field.” The other juror’s declaration stated that “the
two people with medical experience . . . told the rest of us that the criteria that the
doctors used to establish the validity of the BEAM test, I believe that it was
something like 17 control people, [were] inadequate from what they have learned in
their own experience in the medical field.”
A juror properly may express an opinion regarding a technical subject, as
long as the opinion is based upon the evidence received at trial. “Jurors’ views of
the evidence . . . are necessarily informed by their life experiences, including their
education and professional work. A juror, however, should not discuss an opinion
explicitly based on specialized information obtained from outside sources. Such
injection of external information in the form of a juror’s own claim to expertise or
specialized knowledge of a matter at issue is misconduct. [Citations.]” (In re
Malone (1996) 12 Cal.4th 935, 963 (Malone), italics added.)
In Malone, supra, 12 Cal.4th 935, 963-965, we determined that a juror
committed misconduct when she indicated to other jurors that her professional
reading and course work caused her to doubt the accuracy rates claimed by the
examiners who conducted the petitioner’s polygraph examination. Furthermore,
this juror indicated that the polygraph results were not reliable because of the
manner in which a particular question had been phrased by the examiner. Because
12
the juror expressed negative opinions regarding the reliability of the petitioner’s
polygraph evidence — based upon her own professional study of psychology and
not upon the evidence received at trial — we held in Malone that her statements to
the other jurors constituted misconduct. Our decision further held, however, that
the People successfully had rebutted the presumption of prejudice arising from the
misconduct, by showing that the externally derived information imparted to other
jurors was substantially the same as evidence and argument presented to the jury at
trial.
Here, we are presented with declarations indicating that two jurors with
medical experience explicitly relied upon that experience in stating, during
deliberations, that a medical test administered to defendant was unreliable, and that
the data upon which the defense experts had relied in assessing the results of the
test were inadequate. This information was not based upon evidence presented at
trial, but rather upon the jurors’ own experience in the medical field. The
statements of these jurors, as described in the declarations supporting defendant’s
motion for new trial, are substantially similar to the statements that we held
constituted misconduct in Malone.
With regard to the alleged statements of the jurors who had military
experience, their assertions during deliberations that defendant could not have
experienced combat and that defendant did not learn how to kill in military school
contradicted the testimony of defense witness Meshad. These statements, like the
statements of the jurors with medical experience, were based explicitly upon the
professional experience of these particular jurors and not upon any evidence
received at trial.
The majority acknowledges the rule set forth in Malone, supra, 12 Cal.4th
935, but concludes that the juror declarations described above presented no
evidence of misconduct. The majority states: “[E]xtensive evidence was produced
13
concerning the nature and extent of defendant’s military training and Vietnam
experience and its effect, if any, on his crimes, as well as evidence concerning the
validity of BEAM testing. This evidence was susceptible of various interpretations.
The views of the jurors allegedly asserted here were not contrary to, but came
within the range of, permissible interpretations of that evidence. All the jurors,
including those with relevant personal background, were entitled to consider this
evidence and express opinions regarding it.” (Maj. opn., ante, at p. 37, italics
added.)
As established above, however, the statements of the jurors did not
constitute interpretations of evidence at trial, but rather contradicted evidence at
trial. The statements of the jurors with military experience contradicted the
testimony of Meshad that defendant had learned martial arts and how to kill with
knives in a military school, and that defendant might have experienced combat while
in Vietnam. The particular dates when United States military personnel were
engaged in active combat in Vietnam are unlikely to have been known by most lay
jurors. Indeed, only the jurors with military experience in Vietnam were alleged to
have stated to other jurors that petitioner’s military records established that he
could not have been involved in combat there. Their comments regarding the
military school similarly concerned a matter unfamiliar to most lay jurors.
The statements of the jurors with medical experience contradicted the
testimony of Dr. Bittle and Dr. Kowell that the BEAM test was reliable. The
opinions of these jurors, regarding the adequacy of the size of the control groups
used to obtain reliable test results, were based upon specialized, externally derived
information, and not upon evidence at trial. If a juror without specialized
experience commented that a control group consisting of 16 individuals seemed too
small to establish the validity of the test results, perhaps there would be no
misconduct, because the juror would not be claiming that his or her opinion was
14
based upon any specialized knowledge. But when a juror states that his or her own
experience and expertise in the medical field establishes that the control group was
too small, such an opinion is based upon specialized information obtained from
outside sources. Because the juror possesses this specialized experience, other
jurors without such experience are likely to believe the information and to be
persuaded by it. For this reason, in decisions such as Malone we have determined
that interjecting such matters into deliberations constitutes juror misconduct.
With regard to both subject areas in which the jurors allegedly interjected
extraneous information, the declarations in the present case describe juror
misconduct. The majority’s contrary conclusion constitutes a departure from
existing law, which establishes that a juror commits misconduct whenever he or she
introduces into deliberations extraneous information based upon specialized
expertise. As the majority states, it is not improper to permit a juror to refer to his
or her personal expertise during deliberations, as long as the juror’s statements are
consistent with the law and evidence provided at trial. In the present case, however,
the majority does not consider whether the professional expertise mentioned during
deliberations was consistent with the evidence at trial, but rather characterizes
inaccurately the improper statements of the jurors as interpretations of that
evidence and states that “it would be an impossibly high standard to permit these
jurors to express an opinion on this evidence without relying on, or mentioning,
their personal experience and background.” (Maj. opn., ante, at p. 38, italics
added.) Yet this standard is precisely the one set forth in Malone and other
decisions, and it has not been considered an impossibly high standard to require that
jurors not introduce extraneous information into the deliberations.
Indeed, one of the most fundamental precepts of the right to a jury trial is the
requirement that jurors must decide the case based solely upon evidence presented
at trial. (Turner v. Louisiana (1965) 379 U.S. 466, 472-473.) “Due process
15
means a jury capable and willing to decide the case solely on the evidence before it
. . . .” (Smith v. Phillips (1982) 455 U.S. 209, 217.) Permitting jurors to inject
into the deliberations their own specialized knowledge regarding disputed issues at
trial conflicts with this basic principle.
Although I conclude that the two juror declarations describe juror
misconduct, I further determine that the presumption of prejudice arising from any
such misconduct is rebutted by the record. The alleged misconduct of the jurors
does not suggest that these jurors were actually biased against defendant. (Cf.
People v. Nesler (1997) 16 Cal.4th 561, 580-589.) Thus, we must consider
whether the extraneous material, judged objectively and in light of the entire record,
was so prejudicial in and of itself that it was inherently and substantially likely to
have influenced a juror. (In re Carpenter (1995) 9 Cal.4th 634, 653.)
The extraneous information that defendant had not served in Vietnam during
a period in which he could have experienced combat, although inconsistent with the
testimony of Meshad, coincided with defendant’s military records, which indicated
no such experience. Thus, as in Malone, the statements of the jurors were
consistent with some evidence presented at trial. Furthermore, Meshad’s statement
that he believed defendant might have experienced some sort of combat that was not
reflected in the military records did not constitute particularly strong evidence that
defendant had engaged in combat. The opinions of the jurors contradicting
Meshad’s testimony that defendant was trained to kill at a military school
concerned a relatively minor point in the defense case. With regard to the
extraneous information concerning the reliability of the BEAM test, Dr. Bittle
conceded that opinion in the scientific community was divided. Moreover, the
results of that test constituted only one among many factors supporting the opinions
of the defense experts that defendant suffered from numerous mental deficits.
16
For these reasons, the extraneous information alleged to have been
mentioned by the jurors during deliberations was not by its very nature so damaging
in and of itself that the information was substantially likely to have influenced the
vote of one or more jurors.2 Therefore, I conclude that the presumption of
prejudice arising from any juror misconduct is rebutted.
GEORGE, C. J.
2
Although the extraneous information alleged to have been introduced into
the deliberations concerned evidence presented at the guilt phase of the trial, the
juror declarations do not indicate whether the other jurors mentioned this
information during deliberations at the guilt phase, at the penalty phase, or both.
The foregoing prejudice analysis would apply in any of these situations.
17
DISSENTING OPINION BY KENNARD, J.
Unlike the majority, I conclude that the trial court erred in admitting
evidence that defendant, 17 years before the trial here, had been convicted of the
second degree murder of Deborah Cerna, a killing factually similar to the charged
murder of Lee Ann Thurman. That evidence should have been excluded under
Evidence Code section 352 on the ground that its prejudicial impact outweighed its
probative value. The failure to exclude that evidence was prejudicial to the defense
and requires reversal of the judgment.
I
Evidence Code section 352 provides: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the probability
that its admission will . . . create substantial danger of undue prejudice . . . .” The
ruling is reviewed under an abuse of discretion standard. (People v. Barnett (1998)
17 Cal.4th 1044, 1118; People v. Cudjo (1993) 6 Cal.4th 585, 609.)
This court has often recognized that evidence of prior crimes is inherently
prejudicial. (People v. Carpenter (1997) 15 Cal.4th 312, 380; People v. Ewoldt
(1994) 7 Cal.4th 380, 404.) The prejudice generally arises from the danger that the
jury, relying on the prior crime, will impermissibly infer that the defendant is a
person of bad character with a propensity to commit crimes. (See Evid. Code,
§ 1101, subd. (a).) In this case, however, there is an even stronger reason for
believing that the evidence of the prior crime was prejudicial. The evidence in
1
question informed the jury that when defendant committed a prior killing, he was
convicted only of second degree murder, a crime then punishable by a sentence of
15 years to life. The jury also knew that defendant had been released from prison,
because he was no longer in custody when he killed the victim in this case. Once
the jury here learned that defendant had committed a prior murder, been released,
and killed again, the outcome of this trial was foreordained. The jury would infer
that if defendant were again convicted of only second degree murder, he would
again eventually be released from custody, making it possible for him to kill a third
victim. No jury under these circumstances would return a verdict of second degree
murder and give defendant the opportunity to kill again; instead, the jury would
ensure that defendant would never be released by finding him guilty of first degree
murder with special circumstances.
Given the highly prejudicial nature of the Cerna murder, its admission could
be upheld only if it has “substantial probative value. If there is any doubt, the
evidence should be excluded.” (People v. Thompson (1980) 27 Cal.3d 303, 318;
see People v. Ewoldt, supra, 7 Cal.4th at p. 404.) That standard is not met here.
“ ‘[H]ow much “probative value” proffered evidence has depends upon the
extent to which it tends to prove an issue by logic and reasonable inference (degree
of relevancy), the importance of the issue to the case (degree of materiality), and
the necessity of proving the issue by means of this particular piece of evidence
(degree of necessity).’ ” (People v. Thompson, supra, 27 Cal.3d at p. 318, fn. 20,
quoting People v. Delgado (1973) 32 Cal.App.3d 242, 249.) The evidence of the
prior Cerna murder is relevant to the issue in this case of defendant’s intent to kill
Thurman, because proof that he intentionally killed before under similar
circumstances suggests that his killing in this case was also intentional. But the
evidence of the prior murder was neither material nor necesssary. Intent to kill was
not a contested issue. The manner of the killing -- seven or eight stab wounds near
2
the heart -- itself showed that it was intentional. When the defense moved pretrial
to exclude the evidence of the prior murder, it admitted intent and argued that the
only issue was premeditation and deliberation. Defendant did not contest the issue
of intent at the trial. (The defense did claim that the killing in this case was
provoked and thus only voluntary manslaughter, but it never claimed that the killing
was unintentional.) In closing argument, defense counsel again conceded that
defendant intentionally killed Thurman. Prior crime evidence that is “merely
cumulative regarding an issue that was not reasonably subject to dispute” is not
substantial probative evidence. (People v. Ewoldt, supra, 7 Cal.4th at p. 406.)
As the Attorney General acknowledged at oral argument, the “key” issue, the
“real” issue, was whether defendant killed Thurman with premeditation and
deliberation. The prior Cerna murder is relevant to that issue, too. Proof that
defendant, under similar circumstances, had previously killed impulsively without
premeditation and deliberation would tend to prove that the Thurman murder was
also an impulsive killing without premeditation and deliberation.
But the majority reaches a contrary conclusion, asserting that under the
“doctrine of chances” (see maj. opn., ante, at p. 10) the Cerna murder tends to
prove that the Thurman murder was premeditated. The “doctrine of chances,”
according to Wigmore, simply means this: “ ‘the recurrence of a similar result
(here in the shape of an unlawful act) tends (increasingly with each instance) to
negative accident or inadvertence or self-defense or good faith or other innocent
mental state, and tends to establish (provisionally, at least, though not certainly) the
presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ ”
(People v. Robbins (1988) 45 Cal.3d 867, 879-880, quoting 2 Wigmore, Evidence
(Chadbourn ed. 1979) § 302, at p. 241.) In this case, the doctrine might serve to
indicate that both the prior Cerna killing and the Thurman killing were intentional.
But that is the limit to its reach. Because the Cerna killing was not a premeditated
3
killing, the doctrine of chances could not lead to the conclusion that the Thurman
murder was premeditated.
The two cases cited by the majority as utilizing the doctrine of chances -People v. Carpenter, supra, 15 Cal.4th 312, 379-380, and People v. Robbins,
supra, 45 Cal.3d 867, 879-880 -- are not on point. In both cases, this court allowed
the admission of evidence of an earlier intentional killing to prove that a later
killing was intentional; neither involved admission of evidence, as here, of an earlier
intentional but unpremeditated killing as proof that a later killing was not only
intentional but premeditated. Thus the doctrine of chances does not support the
majority’s assertion that evidence of the prior Cerna murder tends to prove in this
case that the Thurman murder was premeditated.
There are three theories under which the Cerna murder could be invoked to
prove that the Thurman murder was premeditated. One is that defendant deliberately
placed himself in a situation in which he knew he had previously killed impulsively.
This theory was the basis for the trial court’s ruling admitting the evidence of the
Cerna murder. But the theory is flawed. Evidence showing that a defendant
deliberately placed himself in a position that could lead to an unpremeditated killing
suggests only that the defendant acted with malice aforethought (see People v.
Watson (1980) 30 Cal.3d 290); it does not turn an unpremeditated killing into a
premeditated killing.
A second theory might be that the verdict in the prior Cerna case was wrong
– that the Cerna murder was actually a premeditated murder, from which the jury
here could infer the Thurman murder was also premeditated. The prosecutor’s
argument at trial hinted at this theory. But defendant’s conviction of second degree
murder in the Cerna case is an acquittal of first degree murder, and principles of
collateral estoppel and double jeopardy prevent the state from relitigating the issue
4
of premeditation in the Cerna case. (See Ashe v. Swenson (1970) 397 U.S. 436,
444-445; People v. Santamaria (1994) 8 Cal.4th 903, 912.)
Third, one can speculate, as the majority does, that even if the prior Cerna
killing was not premeditated, it provided defendant with a model he could follow. In
killing Thurman, the victim here, defendant may have deliberately used the same
weapon and technique that he used before. But although this theory is a possible
inference from the evidence, it is not a strong or compelling one, and it is
unsupported by any evidence other than the similarity between the two crimes.
Evidence that serves only to inspire such conjectures has little probative
value. The prejudicial impact of the evidence of the prior Cerna murder far
outweighs that minimal probative value. I would therefore hold that the trial court
abused its discretion in admitting the evidence of the Cerna murder at the guilt
phase of defendant’s capital trial for the murder of Thurman.1
It is also clear that the error is prejudicial. In opposing the motion to
exclude the evidence of the Cerna murder, the prosecutor said that the Cerna
murder evidence was “the only evidence to support first degree murder” in this
case. That was an overstatement – the majority correctly notes that there was some
other evidence of premeditation – but the remaining evidence is not compelling.
1
Because I conclude that the admission of the challenged evidence violated
California Evidence Code section 352, I do not reach the question whether it also
violated defendant’s due process rights under the federal Constitution. The
majority does address that issue, but its discussion is incomplete. The majority
quotes McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384, to the effect that
even if prejudice far outweighs probative value there is no violation of due process
as long as there is some permissible inference the jury may draw from the evidence.
The Seventh Circuit, however, takes a contrary position to the Ninth Circuit, holding
that due process is violated if the prejudicial effect of admitted evidence so far
outweighs the probative value that the defendant is denied a fair trial. (Dudley v.
Duckworth (7th Cir. 1988) 854 F.2d 967, 970.) The United States Supreme Court
has not resolved the conflict between the federal circuits.
5
There is a reasonable probability (People v. Brown (1988) 46 Cal.3d 432, 446-447;
People v. Cudjo, supra, 6 Cal.4th 585, 611) that the evidence of the Cerna murder
made the difference in the guilt phase verdict.
II
I also have a comment upon the majority’s treatment of one of the penalty
phase issues. The defense submitted declarations from two jurors (which the
majority properly holds were inadmissible under Evidence Code section 1150) that
they voted for the death penalty because they did not believe that a sentence of life
imprisonment without possibility of parole actually meant that defendant could not
be paroled. Assuming these declarations are true, as the majority does, they show
that the two jurors violated the trial court’s instructions, which told the jurors that
they should return a judgment of death only if persuaded that the aggravating
circumstances were so substantial in comparison with the mitigating circumstances
as to warrant death. Here, two jurors were apparently persuaded to impose the death
penalty not because they believed the aggravating circumstances so outweighed
mitigating circumstances that death was warranted, but because of their concern that
if the appropriate sentence of life imprisonment without possibility of parole were
imposed, that sentence would not be carried out. The jurors’ conduct also
necessarily violated Penal Code section 1126, which requires jurors “to receive as
law what is laid down as such by the court.” There is no question that both jurors
would have been subject to challenge for cause if they had asserted this position at
voir dire.
The majority, however, condones this misconduct, saying that the possibility
someone might be released, perhaps because of a change in the law, is a matter “ ‘of
common knowledge appreciated by every juror who must choose between a death
sentence and a sentence of life without parole.’ ” (Maj. opn., ante, at p. 36, quoting
People v. Hovey (1988) 44 Cal.3d 543, 581.) But jurors are required to follow the
6
instructions of the trial court, regardless of what they think is common knowledge.
Thus, although jurors may “appreciate” the possibility that the law might change and
allow a prisoner to obtain parole, they are not allowed to use that “appreciation” in
deciding the sentence. The possibility that a person sentenced to life imprisonment
without possibility of parole might actually be paroled is not an aggravating factor
to be weighed in the penalty decision.
Recently, in People v. Williams (2001) 25 Cal.4th 441, this court
considered the case of a juror who believed, contrary to law, that a 16-year-old
woman was capable of voluntary consent to sexual intercourse. We did not condone
that action as one based upon common knowledge which a juror could “appreciate”
in deciding upon the verdict. We condemned the juror’s action as a form of jury
nullification and upheld the trial judge’s order removing him from the jury.
As we observed in Williams, jury nullification does not always benefit the
accused; it may work to the defendant’s detriment. (Williams, supra, 25 Cal.4th at
p. 462.) We gave an example: “In a capital case, a juror could vote to impose the
death penalty without considering mitigating evidence.” (Ibid.) This case presents
another, similar example – two jurors in a capital case voting to impose the death
penalty for reasons extraneous to the process of weighing and balancing aggravating
and mitigating evidence. This court’s condemnation of jury nullification in
Williams applies equally to this case.
7
III
For the reasons stated in part I of this opinion, I would reverse the judgment
of guilt and remand the case for retrial.
KENNARD, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Steele
_________________________________________________________________________________
_
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
_________________________________________________________________________________
_
Opinion No. S016730
Date Filed: May 30, 2002
_________________________________________________________________________________
_
Court: Superior
County: Shasta
Judge: William C. Lund, Jr.
_________________________________________________________________________________
_
Attorneys for Appellant:
Gregory Marshall, under appointment by the Supreme Court, for Defendant and Appellant.
_________________________________________________________________________________
_
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, Ward A. Campbell, Anthony L. Dicce, J. Robert Jibson, John A. O’Sullivan
and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Gregory Marshall
P.O. Box 996
Palo Cedro, CA 96073
(530) 549-4836
Eric L. Christoffersen
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5272
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