People v. Clark

MOSK, J.,

Concurring and Dissenting.—I concur in the judgment of guilt, but agree with the views of Justice Broussard on the special circumstance of felony murder. I write separately to dissent from the judgment in the penalty phase.

The trial court committed prejudicial error in permitting the defendant to represent himself in the penalty phase of the trial. The bizarre nature of the crime and the irrational reasons motivating the defendant to commit the offense should have alerted the court to the mental inability of the defendant to adequately present evidence in mitigation.

The mental and emotional inadequacies of the defendant were emphasized not only by the facts of the bizarre crime, but by the analytical testimony of the experts who examined him in connection with these proceedings. Yet, strangely, the trial judge—and now the majority of this court—ignored the testimony and determined that this obviously mentally disturbed defendant was competent to present a rational defense to a jury contemplating whether he is to live or die.

Following are brief excerpts from the testimony of the medical experts who reviewed the mental capabilities of the defendant:

Dr. Chris Hatcher, a clinical psychologist: “Mr. Clark’s behavior and history is most characteristic of an individual that would have a diagnosis of borderline personality .... Borderline personality is a category of individuals that fit in between neurosis and psychosis.”

Dr. Kaushal Sharma, a psychiatrist: “Q. And would you describe Mr. Clark as being mentally impaired? A. Yes.”

Dr. John M. Stalberg, the court-appointed psychiatrist: “Mr. Clark suffers from a borderline personality disorder. He is . . . emotionally unstable ... . These emotional problems significantly interfere with his interpersonal, social and occupational relationships . . . Mr. Clark is a significantly disordered individual . . . .”

It is particularly noteworthy that in the first trial defendant was represented by counsel. The jury was not convinced that defendant should receive the death penalty; it was unable to reach a verdict. In a retrial, with defendant permitted to act as his own counsel, a jury returned a verdict of death.

*640 It is probable that this resulted from defendant’s inadequacy in acting on his own behalf. For example, the prosecutor introduced evidence of prior unadjudicated criminal activity that did not involve violence. This was clearly improper, yet defendant did not object. The majority conclude that his failure to object constituted a waiver of a claim of error. To hold this mentally disturbed defendant to the standard of an attorney in connection with admission of evidence, objections thereto and a knowing waiver of error is patently unrealistic.

Similarly in closing argument the prosecutor indulged in several instances of misconduct. No objection by this defendant, contend the majority, and therefore there was a waiver, thus preventing consideration on appeal. Again, this is an unrealistic requirement for a mentally impaired defendant appearing without counsel.

It is true that some cases hold a defendant acting in propria persona is not to receive special treatment, that he is to be held to the same standards as would counsel appearing for him. However, the fact that the prosecutor’s opponent is appearing in propria persona, and undoubtedly is unfamiliar with the techniques and complexities of courtroom procedures, does not justify either the prosecutor or the court taking advantage of defendant’s ignorance.

In his tormented mind the defendant did have a strategy for the penalty phase. It is apparent that he made no excuses for his actions. He stipulated that he had received competent care from the victim therapist and maintained that “I committed the murder because I wanted to and for no other reason.” In his closing argument, for example, he repeatedly reminded the jury to remember exactly what he did. He even showed the jury a picture of the victims and their infant daughter taken before the fire, “In case there is any tendency to forget what I did or to minimize it . . . .” He admitted that he wrote threatening letters to “provoke” the prosecutor into retrying the case “because I wanted to see this trial decided—this penalty decided by a jury.” He repeatedly argued that he did not wish to die, but maintained that “I also don’t particularly want to live [if] the cost [of] that life is fear and anxiety for Ava [his therapist].” He suggested that “it doesn’t seem reasonable to me that any rational person would conclude that I have a great deal of fear of either the death penalty or a life imprisonment verdict.” Finally, defendant admonished the jury that he cares “very much” about Ava Gawronski and that if “you really believe that Ava Gawronski is living in fear of me, if you believe that my existence causes her any anxiety or discomfort, then I would certainly concur with Mr. Reid [the prosecutor] that death is the appropriate penalty.” In essence, defendant was not arguing against the death penalty, but was attempting to convince the jury *641 that he cares about the victim and was somehow justified in his violent actions.

The majority rely on Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ], to confirm the absolute right of defendant to represent himself at the penalty phase of a capital trial. Their reliance is misplaced for several reasons. First, Faretta was not a death case; Anthony Faretta was charged merely with grand theft and was specifically found by the court to be “literate, competent and understanding” (id. at p. 835 [ 45 L.Ed.2d at p. 582 ]). He had previously defended himself in another criminal case and apparently could handle a theft case as distinguished from a proceeding in which his very life might be involved. Nevertheless, there were persuasive dissents by Chief Justice Burger, and Justices Blackmun and Rehnquist, who spoke of “the injury to society” (id. at p. 849 [ 45 L.Ed.2d at p. 590 ]) from allowing a mere layman to conduct a criminal trial.

Second, Faretta was decided prior to and must be subject to Woodson v. North Carolina (1976) 428 U.S. 280, 305 [ 49 L.Ed.2d 944, 961 , 96 S.Ct. 2978 ], in which the Supreme Court emphasized that “the penalty of death is qualitatively different from a sentence of imprisonment, however long. 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.”

Third, the majority apparently feel bound by People v. Bloom (1989) 48 Cal.3d 1194 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ]. With due respect to my colleagues, that case is a judicial aberration that cannot be long supported in law or logic. There the defendant, purporting to represent himself, put on no defense; he actually aided the prosecutor in seeking the death penalty and thus made a mockery of the adversary process. How that result serves the ends of justice in a civilized society completely escapes me.

In short, I do not believe Faretta compelled the trial court to permit this mentally disturbed defendant to dismiss his lawyer and represent himself at the penalty phase of the trial. Even if Faretta were to be deemed controlling, the trial court should have found this defendant incompetent to represent himself. And it is clear that in purporting to defend himself, defendant did not present mitigating evidence or in any manner create a reliable adversary proceeding.

I would set aside the finding of the special circumstance of felony murder and would reverse the penalty judgment. I would direct the trial court, if there is to be a new penalty proceeding, to appoint counsel for defendant.