People v. Whitt

MOSK, J., Concurring and Dissenting.

I concur in the judgment as to guilt and death eligibility. After review, I have found no reversible error bearing on those issues.

As to penalty, however, I dissent: the judgment of death should be reversed for prejudicial Skipper error. (Skipper v. South Carolina (1986) 476 U.S. 1 [ 90 L.Ed.2d 1 , 106 S.Ct. 1669 ].)

This court has recently become notorious for its wholehearted vindication of the “right” of capital defendants to ask for death. (See People v. Clark (1990) 50 Cal.3d 583, 617-618 [ 268 Cal.Rptr. 399 , 789 P.2d 127 ]; People v. Bloom (1989) 48 Cal.3d 1194, 1218-1228 , especially 1222 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ]; People v. Guzman (1988) 45 Cal.3d 915, 961-963 [ 248 Cal.Rptr. 467 , 755 P.2d 917 ].) Consistency would seem to have required the majority to vindicate, at least as wholeheartedly, the right of such defendants to ask for life. Alas, the majority permit a double standard.

At the penalty phase, the court summarily sustained prosecution objections to three questions posed to defendant by counsel: “And what do you have to say about [the] stakes [at the penalty phase]?”; “And do you want to live?”; and, “Why do you deserve to live?” In so doing, it erroneously barred evidence that was highly, and indeed uniquely, relevant to the ultimate issue before the jury—whether they should condemn defendant to death or spare his life. On this record, the error cannot be deemed harmless.

“[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment, [citation], requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

“This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. *663 Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 304-305 [ 49 L.Ed.2d 944, 961 , 96 S.Ct. 2978 ] (lead opn. of Stewart, Powell and Stevens, JJ.).)

To guarantee that capital sentencing decisions are as individualized and reliable as the Constitution demands, the Eighth Amendment requires that the defendant may not be barred from introducing any relevant mitigating evidence. (Skipper v. South Carolina, supra, 476 U.S. at pp. 4-8 [90 L.Ed.2d at pp. 6-9]; see Eddings v. Oklahoma (1982) 455 U.S. 104, 112-116 [ 71 L.Ed.2d 1, 9-12 , 102 S.Ct. 869 ]; Lockett v. Ohio (1978) 438 U.S. 586, 597-605 [ 57 L.Ed.2d 973, 985-990 , 98 S.Ct. 2954 ] (plur. opn. by Burger, C. J.).)

Such evidence includes “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'’'’ (Lockett v. Ohio, supra, 438 U.S. at p. 604 [ 57 L.Ed.2d at p. 990 ] (plur. opn. by Burger, C. J.), italics added; see Eddings v. Oklahoma, supra, 455 U.S. at p. 110 [ 71 L.Ed.2d at p. 8 ]; Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7].)

It follows that to bar a defendant from introducing relevant mitigating evidence is error of federal constitutional dimension, which is commonly referred to as “Skipper error.” (See generally Skipper v. South Carolina, supra, 476 U.S. at pp. 4-8 [90 L.Ed.2d at pp. 6-9]; Hitchcock v. Dugger (1987) 481 U.S. 393, 394, 398-399 [ 95 L.Ed.2d 347, 350-353 , 107 S.Ct. 1821 ]; Mills v. Maryland (1988) 486 U.S. 367, 374-375 [ 100 L.Ed.2d 384, 393-394 , 108 S.Ct. 1860 ]; McKoy v. North Carolina (1990) 494 U.S. 433 , [ 108 L.Ed.2d 369, 378-381 ] [ 110 S.Ct. 1227, 1231-1234 ].)

To conclude that Skipper error has in fact occurred, however, does not end the analysis. This error is not automatically reversible, but is subject to harmless-error review under the test of Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ] (hereafter Chapman). (E.g., People v. Lucero (1988) 44 Cal.3d 1006, 1031-1032 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ].)

Under Chapman, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” ( 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].) The “burden of proof” as to prejudice rests on the state. “Certainly error, constitutional error . . . casts on someone other than the person prejudiced *664 by it a burden to show that it was harmless .... [T]he beneficiary of a constitutional error [is required] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Ibid. [17 L.Ed.2d at pp. 710-711].) When the constitutional error occurred at the penalty phase of a capital trial, the court must proceed with special caution. (See Satterwhite v. Texas (1988) 486 U.S. 249, 258 [ 100 L.Ed.2d 284, 295 , 108 S.Ct. 1792 ] [stating that “the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer”].) In such a situation, the “burden of proof” must be deemed very heavy indeed.

I turn to the case at bar. At the penalty phase, the prosecution asked for death: “Mr. Whitt has not changed. He is the same person that he was back at the time that he committed the offense.” The defense sought life imprisonment without possibility of parole: “This defendant is not the same person being prosecuted today who was prosecuted [at the original trial] in 1981, in spite of what [the prosecutor] says.” Counsel called several witnesses to establish defendant’s decline and subsequent rehabilitation. The last was defendant himself. The following ensued.

“By Mr. Broderick [Defense Counsel]:

“Q Mr. Whitt, do you understand the proceedings that have occurred thus far?

“A Yes, I think so, sir.

“Q And do you understand what’s at stake at this point in the proceedings?

“A Pardon me. Could you repeat that[?]

“Q Do you understand what is at stake in the proceedings?

“A Yes, sir. The fact whether I’m able to live or die.

“Q And what do you have to say about those stakes?

“Mr. McDowell [Prosecutor]: Objection, your Honor. Irrelevant.

“The Court: Sustained.

“Q (By Mr. Broderick) And do you understand, however, that we’re now at the stage where the jury will determine whether you live or die?

*665 “A Yes. I understand that.

“Q And do you want to live?

“Mr. McDowell: Objection, your Honor.

“The Court: Sustained.

“Mr. Broderick: May I have a ground?

“The Court: No, you may not. I told you before that you have no right to cross-examine the Court. The ruling still stands.

“Mr. Broderick: I wasn’t cross-examining the Court. I was asking for Mr.—

“The Court: You were asking for a reason—

“Mr. Broderick: No. I was asking Mr. McDowell for a reason through the Court.

“The Court: Proceed, please.

“Q (By Mr. Broderick) Why do you deserve to live?

“Mr. McDowell: Objection, your Honor.

“The Court: State for the record, please.

“Mr. McDowell: Yes. This is irrelevant information.

“The Court: Sustained.

“Mr. McDowell: And I should say for the record self-serving. “The Court: Still sustained.

“Mr. Broderick: I have nothing further, then.

“The Court: Cross, please.

“Mr. McDowell: I have nothing to cross, your Honor.

“The Court: Thank you. You may step down.” (Italics added.)

*666 It is manifest that by summarily sustaining the prosecutor’s objections the court committed Skipper error. The majority arrive at the same conclusion. Rightly so.

Contrary to Eighth Amendment principles that were already well and clearly established at the time of trial, the court’s rulings barred defendant from introducing “relevant mitigating evidence.” (Eddings v. Oklahoma, supra, 455 U.S. at p. 114 [ 71 L.Ed.2d at p. 11 ].) Indeed, they precluded defendant’s own testimony concerning the “aspect[s] of” his “character or record and . . . the circumstances of the offense that” he himself wished to “proffer[] as a basis for a sentence less than death.” (Lockett v. Ohio, supra, 438 U.S. at p. 604 [ 57 L.Ed.2d at p. 990 ] (plur. opn. by Burger, C. J.).) Defendant was effectively silenced as the jury was about to decide his fate.

On this record, the Skipper error cannot be held harmless. As explained above, under Chapman there rests on the People the burden to prove that the error was harmless beyond a reasonable doubt—a burden that is very heavy indeed when, as here, the error occurred at the penalty phase of a capital trial. The People simply fail to carry that burden. Because of the error, we cannot know what specific answers defendant might have given or what precise force those answers might have carried. The void in the record is indeed disturbing. But it is the People that created the void. And it is the People that must bear the responsibility. Trying this case almost a decade after Lockett v. Ohio, supra, 438 U.S. 586 , the prosecutor must certainly have known that no evidence was more relevant and less objectionable than the very testimony he successfully sought to preclude—a capital defendant’s own words in support of his plea for life. Accordingly, on these facts I am not “able to declare a belief that [the error] was harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24 [ 17 L.Ed.2d at p. 711 ].)

The majority arrive at the opposite conclusion. Their analysis rests on an implied premise that the burden of proof as to prejudice rests on the person complaining of the error. But as the very words of Chapman demonstrate, that premise is radically unsound: “Certainly error, constitutional error, . . . casts on someone other than the person prejudiced by it a burden to show that it was harmless .... [T]he beneficiary of a constitutional error [is required] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” ( 386 U.S. at p. 24 [ 17 L.Ed.2d at p. 710 ].)

The majority suggest that my reading of Chapman is unprecedented. But it is the majority’s understanding that is novel. I focus on the plain language *667 of the decision, which the United States Supreme Court has often approved and never repudiated.

The majority also suggest that my reading of Chapman would lead to virtually automatic reversals, and that such a result would be unfair to the People. I disagree.

Of course there are errors that could possibly be held harmless beyond a reasonable doubt. Let me select an example from the case at bar. As noted, the court unconstitutionally sustained the prosecutor’s objection to defense counsel’s question, “And do you want to live?,” and thereby improperly barred defendant’s testimony in response. Considered in isolation, perhaps that single error alone might be deemed nonprejudicial on the ground that the expected affirmative answer was implied and indeed emphasized throughout the defense case. But of course that error was not isolated.

In any event, reversal for an error like that here cannot reasonably be considered unfair to the People. “Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. [Citation.] Moreover, such circumstances involve impairments of the [Eighth Amendment] right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.” (Strickland v. Washington (1984) 466 U.S. 668, 692 [ 80 L.Ed.2d 674, 696 , 104 S.Ct. 2052 ] [speaking of Sixth Amendment right to assistance of counsel].)

The majority seek to introduce into Chapman a threshold “requirement” similar to that of Evidence Code section 354: the “substance, purpose, and relevance of the excluded evidence was made known ... by the questions asked, an offer of proof, or by any other means” (id., subd. (a)). They would apparently recognize an exception like that contained in the same provision: compliance is excused when “The rulings of the court made compliance . . . futile” (id., subd. (b)).

I have serious doubt that such a “requirement” would be consistent with Chapman. The majority evidently rely on Luce v. United States (1984) 469 U.S. 38 [ 83 L.Ed.2d 443 , 105 S.Ct. 460 ] to support their position. Luce , however, is altogether inapposite. In that case, the court considered error and prejudice under the Federal Rules of Evidence. Here, the issue involves error and prejudice under the United States Constitution. I have found only two cases that directly bear on the question whether Luce affects the reversibility of error of federal constitutional dimension. (Biller v. Lopes (2d Cir. 1987) 834 F.2d 41 , affg. (D.Conn.) 655 F.Supp. 292 ; Biller v. Lopes (D.Conn. 1987) 655 F.Supp. 292 , affd. (2d Cir.) 834 F.2d 41 .) Both cases *668 are well reasoned. Both resolve the issue in the negative. (Biller v. Lopes, supra, 834 F.2d at pp. 43-44; Biller v. Lopes, supra, 655 F.Supp. at p. 301 .)

Be that as it may, compliance with the majority’s “requirement” would be excused. By summarily sustaining the prosecutor’s objections, and by doing so in a peremptory manner, the court effectively silenced defendant and thereby “made . . . compliance futile . . . .” (Evid. Code, § 354, subd. (b).) Contrary to the majority’s implication, the record demonstrates that it would have been useless for counsel to “(1) continu[e] with the examination, (2) rephras[e] the questions . . . , or (3) mak[e] an offer of proof . . . .” (Maj. opn., ante, at p. 650.) In substance, the court indicated that it would not receive any mitigating evidence from defendant. As the record reveals, the court barred defendant from answering counsel’s final question, “Why do you deserve to live?,” on the ground that the response would be “self-serving” as well as irrelevant. But obviously, the whole of defendant's testimony at the penalty phase would be “self-serving.” It is well settled that compliance with the requirement of Evidence Code section 354 is excused when “the trial judge . . . indicates that he will not receive evidence on a certain subject. . . .” (3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 2044, pp. 2002-2003, collecting cases.) As noted, the trial judge so indicated here.

But even if the majority’s unusual “requirement” is held to be applicable, it must be deemed satisfied. The very thrust of the defense case “made known” the “substance, purpose, and relevance” of the unconstitutionally excluded evidence: its “substance” was that defendant was not the man he once was; its “purpose” was to show rehabilitation; and its “relevance” was to lay “a basis for a sentence less than death” (Lockett v. Ohio, supra, 438 U.S. at p. 604 [ 57 L.Ed.2d at p. 990 ] (plur. opn. by Burger, C. J.)).

The majority demand more. Speaking of a statement in defendant’s opening brief, they assert: “[Defendant claims he would have told the jury about ‘changes’ in his life and his ‘worth’ as a human being. However, . . . defendant’s purported ‘offer of proof’ is far too vague to determine whether a jury might have been influenced by his actual testimony.” (Maj. opn., ante, at p. 650.) What is needed, the majority seem to say, is defendant’s “actual testimony.” But that is the very matter the court unconstitutionally barred.

For the foregoing reasons, I would reverse the judgment of death.