Hovey v. Superior Court

RICHARDSON, J., Concurring and Dissenting.

I concur in that portion of the judgment which denies petitioner’s motion to limit the exclusion of prospective jurors at the guilt phase. None of the various surveys and studies relied upon by petitioner has satisfactorily demonstrated that the exclusion from the guilt phase of jurors unable to impose the death penalty has resulted in a jury adjudicating guilt which is unrepresentative of the community or unduly biased in favor of conviction. (See People v. Rhinehart (1973) 9 Cal.3d 139, 155 [ 107 Cal.Rptr. 34 , 507 P.2d 642 ]; People v. Murphy (1972) 8 Cal.3d 349, 368 [ 105 Cal.Rptr. 138 , 503 P.2d 594 ]; People v. Sirhan (1972) 7 Cal.3d 710, 747-749 [ 102 Cal.Rptr. 385 , 497 P.2d 1121 ]; People v. Brawley (1969) 1 Cal.3d 277, 297 [ 82 Cal.Rptr. 161 , 461 P.2d 361 ]; People v. Ketchel (1969) 71 Cal.2d 635, 644 [ 79 Cal.Rptr. 92 , 456 P.2d 660 ]; In re Arguello (1969) 71 Cal.2d 13, 16 [ 76 Cal.Rptr. 633 , 452 P.2d 921 ]; see also People v. Thornton (1974) 11 Cal.3d 738, 753 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ]; People v. Henderson (1978) 80 Cal.App.3d 584, 591-598 [ 145 Cal.Rptr. 751 ].)

In essence, petitioner argues that persons incapable of imposing the death penalty are generally more sympathetic to the criminal defendant, and more hostile to the prosecutor, than other persons qualified to serve as jurors in capital cases. Against petitioner’s arguments, we must balance these two factors: (1) the right of the state at the penalty phase to a jury capable of imposing capital punishment (see Witherspoon v. Illinois (1968) 391 U.S. 510, 520, fn. 18 [ 20 L.Ed.2d 776, 784 , 88 S.Ct. 1770 ]), and (2) the clear preference of the Legislature that the same jury try the issues of guilt and penalty (see Pen. Code, §§ 190.1, 190.3; People v. Thornton, supra, 11 Cal.3d 738, 753 ; People v. Hen *83 derson, supra, 80 Cal.App.3d 584, 595-597 ). Weighing these factors together with the inconclusive nature of petitioner’s surveys and studies, I conclude that his motion to limit the exclusion of prospective jurors was properly denied, as the majority somewhat reluctantly holds. (Ante, p. 67.)

I respectfully dissent, however, from that portion of the judgment which directs the trial court to conduct the death penalty aspects of the voir dire of each prospective juror in a capital case outside the presence of the other prospective jurors. This cumbersome procedure, which the majority now mandates pursuant to our “supervisory authority over California criminal procedure” {ante, p. 80), will add a very substantial burden to our already heavily engaged courts.

Less than eight years ago, we approved a system of voir dire examination whereby inquiries to prospective jurors were channeled from counsel to the trial court, rather than directly to each individual juror. (People v. Crowe (1973) 8 Cal.3d 815 [ 106 Cal.Rptr. 369 , 506 P.2d 193 ].) In Crowe , we unequivocally stated that “We approve this method of curtailing the inordinate time consumed in the process of the selection of jurors. Thus appellate cases have referred to ‘the waste of valuable court time involved’ [citation] and to the ‘tedious, irksome and time-wasting prolongation of individual questioning of individual jurors by one side and then the other’ [citation]. In People v. Adams (1971) 21 Cal.App.3d 972, 979 [ 99 Cal.Rptr. 122 ], the court observed that ‘It is commonplace knowledge that there have been extensive abuses by counsel on voir dire examination by engaging in tedious and time-wasting questions, which are seemingly interminable and repetitious and designed in many instances to accomplish purposes other than the legitimate objects of a reasonable voir dire examination.’” (8 Cal.3d at p. 825, fn. omitted.)

If the former system of individual questioning of individual jurors seated together was “tedious,” “time-wasting,” “interminable,” and “repetitious,” it is very clear what the consequences will be of holding a sequestered voir dire of each prospective juror. Before today’s decision, the trial judge in a capital case could shortcut the voir dire proceedings considerably by instructing and interrogating the panel collectively regarding the death penalty issues. It seems inevitable to me that very much more time and energy henceforth will be required to complete the selection process under the procedure mandated by the majority.

*84 In addition to the further burdens which sequestered voir dire will impose, I seriously question either the wisdom or necessity of such a radical procedure. Frequently, collective voir dire performs a valuable educational function whereby the assembled panel learns the correct disqualification standards and other juror responsibilities by observing the interrogation of the prospective jurors examined in their presence, and the interplay between juror, court and counsel. A prospective juror witnessing the voir dire process as applied to other jurors may find greatly clarified through concrete application the trial judge’s necessarily abstract explanation of legal principles. Unfortunately, the majority’s proposed new procedure will sacrifice entirely the foregoing educational benefits of collective voir dire insofar as the death issues are concerned.

Nor can I accept the majority’s premise that a sequestered voir dire is necessary to protect the defendant’s rights in a capital case. If the perhaps extensive voir dire interrogation regarding penalty issues is indeed found to have an undesirable effect upon the jurors’ ability to give defendant a fair trial on the guilt issues, any such problem can be alleviated following such interrogation by a careful admonition and instruction regarding defendant’s presumption of innocence and the prosecutor’s burden of proof. Moreover, I doubt that sequestration will inhibit the tendency of any prospective juror to prejudge the guilt issues, because the supposedly undue emphasis upon penalty issues may still occur.

Finally, it should be noted that the majority’s concerns about collective voir dire are based entirely upon a single study (the Haney study) which polled only 67 persons who viewed a simulated, videotaped voir dire undertaken by defense attorneys in the principal roles. I doubt that we should so readily accept the conclusions of a single, small-scale study of this type, when the consequences of doing so require some disruption of our judicial processes. It should also be observed that the Haney study may be as fatally flawed as the Witherspoon studies which are criticized by the majority in an earlier portion of its opinion. Although the Haney videotape depicted the disqualification of two jurors who were incapable of imposing the death penalty, the tape contained no similar disqualification of persons who would automatically impose the death penalty in every capital case. As the majority itself acknowledges (a nte, p. 78, fn. 132]), such a depiction might well have counteracted any tendency on the part of the 67 polled observers to assume *85 that the trial judge and counsel somehow disapproved of persons with strong views against the death penalty.

For all the foregoing reasons, it seems to me premature to discard a collective voir dire system which has served us rather well in preventing undue delays and in educating prospective jurors regarding their responsibilities under the law.

I would deny the peremptory writ in its entirety.

Clark, J., and Manuel, J., concurred.