People v. Wash

KENNARD, J., Concurring and Dissenting.

I join the majority in affirming the judgment of conviction and the special circumstances findings in this case. I dissent, however, as to penalty.

I conclude that the penalty cannot be upheld in this case because of egregious prosecutorial misconduct and ineffective assistance of defense counsel at the penalty phase of defendant’s trial. Here, in closing argument the prosecutor improperly urged the jury to sentence defendant to death based on a letter written by the father of a crime victim in an unrelated case, and relied extensively on biblical sources to persuade the jury that defendant deserved the penalty of death. Defense counsel inexcusably failed to object to the prosecutor’s clear and serious misconduct in urging a religious basis for the jury’s decision. The combined effect of these errors undermines any reasonable confidence that absent these errors, defendant—whose first penalty phase trial, without these errors, had ended in a hung jury—would have been sentenced to death.

Background

Defendant was a ranch hand at the Sundial Ranch near Livermore from November 1983 to February 1984. The ranch was run by Shelly Siegel and *280 her husband, Philip Durbin. After defendant quit work at the ranch, he discussed with a friend a plan to return to the ranch and rob and shoot the occupants.

When, on March 23, 1984, Philip Durbin returned to the ranch from a two-day business trip, he discovered the bodies of his wife and the ranch hand who had replaced defendant, 19-year-old Erin King. Both had been shot to death. King had also been raped and repeatedly stabbed. Various items were missing. Fingerprints and electrophoretic semen evidence tied defendant to the crimes. Defendant was arrested and eventually confessed.

Discussion

1. Argument Based on Biblical Principles

The prosecutor began his closing argument with a lengthy discussion (three and one-half transcript pages) of biblical religious principles as they related to the death penalty.

The prosecutor began with the words, “Thou shalt not kill.” He quoted from the Book of Exodus, the Book of Leviticus and the Book of Numbers as supporting capital punishment. The prosecutor summarized his religious discussion this way: “God recognized there’d be people like Mr. Wash. That’s why those commandments were delivered. That’s why that message is throughout the Old Testament, [¶] Who must be punished for what they have done and if they have done things like he’s done they must forfeit their lives for what he’s done.” 1

This argument was severe misconduct. As this court has recently and unanimously stated, a prosecutor’s “reference to Old Testament support for *281 capital punishment [is] improper—such an argument tends to diminish the jury’s sense of responsibility for its verdict and to imply that another, higher law should be applied in capital cases, displacing the law in the court’s instructions. (See, e.g., Commonwealth v. Chambers (1991) 528 Pa. 558 [ 599 A.2d 630 ].)” (People v. Wrest (1992) 3 Cal.4th 1088, 1107 [ 13 Cal.Rptr.2d 511 , 839 P.2d 1020 ].)

The majority proposes that the issue of misconduct was waived because the defense failed to object to it. 2 I conclude that defense counsel’s failure to *282 object deprived defendant of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution.

As the high court has explained, in order to amount to constitutionally ineffective assistance, an attorney’s act or omission must fall below an objective standard of reasonableness under prevailing professional norms, and must have resulted in prejudice to the defendant. (Strickland, v. Washington (1984) 466 U.S. 668, 687 [ 80 L.Ed.2d 674, 693 , 104 S.Ct. 2052 ].)

Defense counsel’s failure to object to the prosecutor’s extensive argument that defendant should be put to death based on biblical principles is inexcusable. Although we have stated that a failure to object to a prosecutor’s argument “seldom” establishes incompetence (People v. Ghent (1987) 43 Cal.3d 739, 772 [ 239 Cal.Rptr. 82 , 739 P.2d 1250 ]), in this case there could be no legitimate tactical justification for counsel’s failure to object to the prosecutor’s dramatic and specific biblical argument. We cannot say here, as we could in Ghent , that “[c]ounsel may well have tactically assumed that an objection or request for admonition would simply draw closer attention to the prosecutor’s isolated comments.” (Id. at p. 773.) Here, the prosecutor’s religious argument was not isolated, but expansive and fully developed. No objection could have drawn any closer attention to this main theme of the prosecutor’s argument that the prosecutor had drawn himself.

As the majority notes, defense counsel “not only failed to object to the prosecutor’s remarks, but countered them by citing a number of religious authorities to support his argument against the death penalty.” (Maj. opn., *283 ante, at p. 260.) 3 But it is improper to answer one impermissible argument not based on the facts or the law applicable to the case with another impermissible argument not based on the facts or the law applicable to the case. A religious argument against the death penalty is no more acceptable at the penalty phase of a capital case than a religious argument in favor of the death penalty. (People v. Sandoval (1992) 4 Cal.4th 155, 194 [ 14 Cal.Rptr.2d 342 , 841 P.2d 862 ] [“What is objectionable is reliance on religious authority as supporting or opposing the death penalty. The penalty determination is to be made by reliance on the legal instructions given by the court, not by recourse to extraneous authority.”]; Commonwealth v. Daniels (1992) 531 Pa. 210 [ 612 A.2d 395, 404 ] [same].) Our courts are not ecclesiastical courts, and our juries do not base their decisions on religious law no matter whom such law may be said to favor. Because arguments by both the prosecutor and defense counsel exceeded the bounds of inferences that may be drawn from the evidence and considerations that may properly be brought to bear under the factors specified in the death penalty statute, both arguments were improper. It follows that defense counsel’s decision to respond to the prosecutor’s religious argument by relying on opposing religious authority cannot be considered a legitimate tactical choice that would excuse his failure to object to the prosecutor’s impermissible religious argument.

As noted above, a defendant who seeks to establish that his or her Sixth Amendment right to the effective assistance of counsel was violated must show that defense counsel’s defective performance resulted in prejudice. I will return to the question of prejudice after I discuss another closely related instance of prosecutorial misconduct during the penalty phase closing argument in this case.

2. Improper Argument Based on Letter in Unrelated Case

In his closing argument at the penalty phase of this capital trial, the prosecution not only relied on religious authority, as I discussed earlier, but he also improperly urged the jurors to return a verdict of death based on *284 extraneous matters. After referring to a notorious but unrelated criminal case, the prosecutor went on to tell the jurors:

“There has been a lot of criticism of the Court system and most of it is well deserved. Much of what we do is done in too much secrecy. People have no idea what goes on.

“And you don’t realize it, but the twelve of you who decide this case can make a statement. And there is nothing wrong about making a statement. The statement can be directly to him. And if there is a lesson to be learned from anybody else or by anybody else, then so about be it.

“As jurors, you can do something. You can take a position now. . . .”

The prosecutor then announced that he would read “a letter to a judge from a father whose son had been murdered . . . .” Over defense objection, the prosecutor read this letter aloud to the jurors as part of his argument:

“ ‘There has been a furor in the media over the condition of our justice system, particularly juvenile justice. The decision made here today will not ease the pain of the family and the friends of Rod Sullivan. Nothing can do that. We are learning to live with it. But it is our hope that today’s decision will bring back some of the confidence and trust that we in the community once had in this system.’ ” The prosecutor then added, “And that’s all I want you to do.”

That argument was improper. It was not based on the facts of the case or the law applicable to those facts, but was a blatant appeal to the jury to sentence defendant to death based on considerations that had nothing to do with the “individualized determination” the jury was constitutionally required to make. (Zant v. Stephens (1983) 462 U.S. 862, 879 [ 77 L.Ed.2d 235, 251 , 103 S.Ct. 2733 ].) The prosecutor’s observation of a perceived “furor in the media over the condition of our justice system” was “ ‘totally irrelevant to the sentencing process’ ” applicable to this defendant. (Johnson v. Mississippi (1988) 486 U.S. 578, 585 [ 100 L.Ed.2d 575, 584 , 108 S.Ct. 1981 ].)

The majority attempts to sanitize this misconduct by quoting from People v. Ghent, supra, 43 Cal.3d at page 771 : “Isolated, brief references to retribution or community vengeance . . . although potentially inflammatory, do not constitute misconduct so long as such arguments do not form the principal basis for advocating the imposition of the death penalty.” Ghent , *285 however, has no application here. Our opinion in Ghent dealt with prosecutorial references to retribution and community outrage against the particular defendant in that case, not some more generalized outrage or “furor” over the criminal justice system. Moreover, the references in this case were neither isolated nor brief. The prosecutor’s “send a message” theme was an important part of his closing argument. If, as the majority holds,' prosecutors can urge juries to impose sentences of death on defendants based on the perceived failings of the criminal justice system in unrelated cases, the individualized determination the United States Supreme Court has stated is required in capital cases is effectively a nullity.

3. Prejudice Analysis

In this case, the combined effect of defense counsel’s failure to object to the prosecutor’s inflammatory and improper argument in favor of the death penalty on religious grounds, and the prosecutor’s equally inflammatory and improper argument to the jury that it should return a death verdict based on the alleged failure of the criminal justice system in other cases, require that the penalty phase verdict be set aside.

Under Strickland v. Washington, supra, 466 U.S. at page 694 [80 L.Ed.2d at pages 697-698], a defendant seeking to establish constitutionally ineffective assistance of counsel “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” As the high court has explained recently, the harmless error inquiry a court must make when a defendant has been deprived of other federally guaranteed rights is “whether the . . . verdict actually rendered in this trial was surely unattributable to the [misconduct].” (Sullivan v. Louisiana (1993) 508 U.S__[ 124 L.Ed.2d 182, 188-189 , 113 S.Ct. 2078, 2081 ].) In my view, the penalty phase verdict in this case cannot withstand scrutiny under any standard.

Here, the case in aggravation was not overwhelming. The circumstances of the offenses were unquestionably brutal. But the only other aggravating evidence was that appellant had two prior convictions for nonviolent crimes —nonresidential burglaries—in Indiana. Thus, we do not have an escalating series of violent crimes.

Defendant presented a case in mitigation that was also not particularly strong; it consisted of his testimony and that of his family members and friends, and emphasized the bleak circumstances of his childhood. But the death penalty was clearly not a foregone conclusion in this case. This is *286 demonstrated by the fact that at the first penalty phase trial the prosecution relied on the evidence presented at the guilt phase, which was essentially identical to that presented at the penalty phase retrial, and on the two prior convictions for nonresidential burglaries. At that first trial, the prosecutor did not urge the jury to impose the death penalty on religious grounds, nor did he urge the jury to choose the ultimate punishment on the basis of asserted failures of the criminal justice system in unrelated cases. To the contrary, the prosecutor asked the jury to “remember you’re only deciding what should happen to [the defendant] because of what he did on March 21st and who he is.” After five days of deliberation, the first penalty phase trial ended in a deadlocked jury (nine to three).

Under the circumstances, and after examination of the record, I cannot say with reasonable confidence that, without the prosecutor’s egregious misconduct and defense counsel’s ineffective assistance, the jury would have returned a verdict of death. Accordingly, I would reverse the judgment of death.

Appellant’s petition for a rehearing was denied January 20, 1994. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.

The complete text of the prosecutor’s religious argument is as follows:

“Your honor, counsel, ladies and gentlemen: [¶] Thou shalt not kill. [¶]We all know what that means. We all know where it came from. The words have their plain evident English language meaning, [¶] I don’t need to explain to you why such a rule ever came into existence or why we even have to have rules like this today, [¶] We have to because people do things like he’s done and then the question is: What do we do to them for it? [¶] But before I get to that, before I talk about this case, I think it’s important for you all to appreciate how we got to where we are today; starting with religious principles; starting with religious references, Biblical references. [¶] None of you had any religious reservations about serving on the jury like this. But I still feel it is important that you understand that what I’m going to ask you to do is totally in keeping with religious principles. It is totally in keeping with the Spirit of Christ or God or whatever beliefs you have. [¶] Every society has developed a rule like that and it’s just been necessary whether they were tribes; whether they were major countries or small clans. [¶] There are references—it is something we could all accept—the Old Testament is full of references to the death penalty, full of references to the types of things that one should, could do and subject himself or herself to the death penalty. [¶] When Moses led the Jews out of the desert God gave him those commandments and those commandments were a combination of religious principles—because the Jews were out to start on their own and they *281 had no more government; so they were a codification or recognition of both religious and civil principles. [¶] And that’s why you see this mixture of religious commandments and civil. Or in this case criminal commandments: Thou shalt not kill, [¶] Clearly that was among them. [¶] There are references, as I mentioned],] to that concept, the concept of thou shalt not kill and what happens if you do throughout the Old Testament: [¶] ‘Anyone who strikes a man—’ [¶] This is from the Book of Exodus, [¶] ‘Anyone who strikes a man and so causes death must die.’ [¶] Beastiality [sic], fornicating with an animal was punishable by death, [¶] The Book of Leviticus had a similar message or concept, [¶] The Book of Numbers: ‘He who had struck a person with an iron object so as to cause death is a murderer and he must be put to death.’ [¶] The same message was delivered with respect to striking somebody with a stone instrument, with a wooden instrument. [¶] Now those are all God’s law. [¶] Those were not man’s law. [¶] And the message was very clear in those days. [¶] There are people who feel that there are contrary messages coming from the Old or the New Testament. [¶] And rather [than] wait for [defense counsel] to point those out to you, I want to tell you what they are and why they are not contrary to where we are here today or where the Jews were when they got the message from Moses, [¶] An eye for an eye. You are all familiar with that. [¶] And many people think that the rejoinder to that was the idea that that was not to imply that you couldn’t impose life punishment on somebody was ‘Vengeance is mine sayeth the Lord.’ [¶] It’s true that ‘Vengeance is mine sayeth the Lord’ seems to countermand, seems to offset the idea that an eye for an eye was the appropriate punishment. But that wasn’t the point. [¶] Because when you read on subsequent to ‘Vengeance is mine’ it was clear that the message was: But you must submit to civil authorities, [¶] You must render unto Ceaser [ízc] the things that are Ceaser’s [ízc]. [¶] The reason that when Jesus came on the scene and talked about love and compassion for human beings was that by that time the Romans had established the rule. The Romans had established the law and so it was fitting for him to deliver messages filled with compassion. It was fitting for him to talk about forgiveness. But it was also clear that it was proper to render to Ceaser [sIc] the things that are Ceaser’s [ízc]. And those were the laws, in existence, at the time, [¶] God recognized there’d be people like Mr. Wash. That’s why those commandments were delivered. That’s why that message is throughout the Old Testament, [¶] Who must be punished for what they have done and if they have done things like he’s done they must forfeit their lives for what he’s done.”

The general rule is that to preserve a claim of prosecutorial misconduct for review on appeal, “the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]” (People v. Price (1991) 1 CalAth 324, 447 [ 3 Cal.Rptr.2d 106 , 821 P.2d 610 ].) Our rule is in accord with the United States Supreme Court’s observation that “ ‘some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect....’” (Caldwell v. Mississippi (1985) 472 U.S. 320, 339 [ 86 L.Ed.2d 231, 245-246 , 105 S.Ct. 2633 ].) Although purporting to find the issue of *282 prosecutorial misconduct based on improper religious argument waived, the majority then engages in a lengthy discussion of the merits of the claim.

In this case, it is probable that an admonition would not have cured the harm, and thus this court can reach the question of prosecutorial misconduct despite defense counsel’s failure to object. It is true that a timely objection and admonition made by defense counsel when the prosecutor made his first references to religious authorities would likely have dispelled any harm. (Contra, Commonwealth v. Chambers (1991) 528 Pa. 558 [ 599 A.2d 630, 644 ].) But the occasion for objection by defense counsel did not end after the first religious references made by the prosecutor. The prosecutor continued and developed his religious argument, going beyond what might have been a brief reference to religion, quoting a number of biblical passages approving capital punishment, and finally linking the religious theme of biblical approval for the death penalty with the specific task before the jury by stressing, “God recognized there’d be people like Mr. Wash. . . . [I]f they have done things like he’s done they must forfeit their lives for what he’s done.” Thus, the prosecutor’s religious argument became progressively more inflammatory. As the prosecutor’s religious argument progressed to its conclusion, each additional religious reference presented an additional opportunity for objection. By the end, any objection unquestionably would have been futile; the cumulative effect of the religious references could not have been dispelled by an objection and admonition.

Accordingly, the majority’s discussion of the merits of the claim of prosecutorial misconduct is proper. It is the majority’s resolution of the claim that is erroneous.

Defense counsel argued: “You know, [the prosecutor] also told you the death penalty is proper under the laws of God. He reached back to the Scriptures and he made a Biblical analysis, [¶] The truth is: The death penalty today is condemned by most religious beliefs, [ft Pope John Paul the II has condemned the death penalty; even as applied against the person who tried to take his life, [¶] Pope Paul the VI before him also spoke against the- death penalty, [¶] The death penalty has been called immoral by the leaders in many churches, [¶] The National Counsel [sic] of Churches has taken a stand. Leaders in churches here in California and in synogogues [sic] throughout California have taken a stand against it. [¶] California Catholic Conference has taken a stand against it. . . . [¶] So what do we make of this stand of the religious leaders? [¶] Well, clearly, it shows us that [the prosecutor] is wrong when he implies that God freely sanctions the execution of Mr. Wash. Others much closer to God than [the prosecutor] will surely disagree with that.”