# People v. Slaughter

> California Supreme Court · May 30, 2002 · 120 Cal. Rptr. 2d 477

URL: https://www.frixlaw.com/law-library/cases/9782408

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. MICHAEL COREY SLAUGHTER, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** May 30, 2002
- **Citations:** 120 Cal. Rptr. 2d 477; 27 Cal. 4th 1187; 2002 Daily Journal DAR 5897; 47 P.3d 262; 2002 Cal. Daily Op. Serv. 4647; 2002 Cal. LEXIS 3561; 2002 WL 1066928
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennard
- **Judges:** George, Kennard
- **Cited by:** 111 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by People v. Diaz, 60 Cal. 4th 1176 (2015).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9782408

## Opinion text

KENNARD, J., Concurring and Dissenting.
I join the majority in affirming the judgment insofar as it determines defendant’s guilt and the truth of the special circumstance allegations, but I do not join in affirming the judgment insofar as it imposes the death penalty.
*1226 Here, as in People v. Wash (1993) 6 Cal.4th 215 [ 24 Cal.Rptr.2d 421 , 861 P.2d 1107 ] (Wash), the prosecutor engaged in egregious misconduct during his argument to the jury at the penalty phase by invoking biblical authority for a verdict of death. Here, as in Wash , the failure of defendant’s trial attorney to object to this misconduct denied defendant his constitutional right to the effective assistance of counsel. Here, as in Wash , the penalty issue was close, as shown by the absence of evidence that defendant had previously committed any violent crime and by the first jury’s inability to agree on a penalty verdict. Here, as in Wash , after reviewing the record, I am unable to conclude with confidence that if defense counsel had acted effectively to prevent the prosecutor’s improper argument, the jury nonetheless would have returned a verdict finding the appropriate punishment for defendant’s crimes to be death rather than imprisonment for life without possibility of parole. (Wash, supra, at p. 279 (conc. & dis. opn. of Kennard, J.).)
The prosecutor’s entire biblical argument is quoted in the majority opinion (maj. opn., ante, at pp. 1208-1209) and need not be quoted in full again here. Of particular significance, the prosecutor claimed to find in the Bible the concepts that “[c]apital punishment for murder is necessary in order to preserve the sanctity of human life and only the severest penalty of death can underscore the severity of taking life.” The prosecutor also claimed biblical authority for the proposition that if a person “kills by treachery, an intentional, cold-blooded killer,” that person “shall be put to death.” The argument was egregious misconduct because it suggested that under divine law the proper penalty for defendant’s crimes is death, always and automatically, regardless of the balance of aggravating and mitigating circumstances. (See Romine v. Head (11th Cir. 2001) 253 F.3d 1349 , 1366-1371 [prosecutor’s argument using biblical references suggesting death was mandatory penalty was prejudicial misconduct].)
The majority agrees that the prosecutor’s argument was improper. (Maj. opn., ante, at p. 1210.) But the majority decides that this misconduct does not warrant reversal of the judgment for two reasons. First, in the majority’s view, defendant forfeited his right to assert this claim because his trial counsel did not object to the improper argument, and the appellate record does not show that counsel was ineffective for failing to do so. (Id. at pp. 1209-1210.) Second, in the majority’s view, the prosecutor’s improper argument was harmless because it was “part of a longer argument that properly focused upon the factors in aggravation and mitigation.” (Id. at p. 1210.) I find neither reason persuasive.
As in Wash , defendant’s trial counsel rendered ineffective assistance by not objecting to the prosecutor’s reliance on biblical authority for a death verdict. What I wrote in my separate opinion in Wash applies also here:
*1227 “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 ‘[cjounsel 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 [than] the prosecutor had drawn himself.” (Wash, supra, 6 Cal.4th at p. 282 (conc. & dis. opn. of Kennard, J.).)
To support its conclusion that the record does not demonstrate ineffective assistance of counsel, the majority offers this reasoning: “Defense counsel may have reasonably chosen not to object so that he could respond, as he did, by reminding the jury of the biblical proscription, ‘Thou shalt not kill.’ ” (Maj. opn., ante, at p. 1210.) The majority offered similar reasoning in Wash , and I responded this way: “[I]t 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 *1228 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.” (Wash, supra, 6 Cal.4th at p. 283 (conc. & dis. opn. of Kennard, J.).)
The remaining question here is whether defendant was prejudiced by his trial attorney’s inexcusable failure to object to the prosecutor’s improper argument. In turn, this requires an examination of the prejudicial effect of the prosecutor’s argument.
In comparison with other capital cases this court has seen, the prosecutor’s case in aggravation was not particularly strong. Although defendant murdered two people for the purpose of robbing them of the money with which they had planned to buy illegal drugs, he was only 19 years old at the time and the prosecution presented no evidence that he had prior felony convictions or had committed prior acts of violence.
In mitigation, the defense called eight witnesses—four members of defendant’s family, two of his friends, and a vice-principal and a counselor from his high school—who described defendant’s positive qualities. Defendant’s high school counselor also described how defendant had been emotionally affected by the separation of his parents and the departure of his mother from their home. That the penalty issue was close is shown by the result of the first penalty trial when, in response to largely the same evidence, the jury was unable to reach any penalty verdict.
The majority’s assertion that the prosecutor’s improper argument must be considered harmless because it was “part of a longer argument that properly focused upon the factors in aggravation and mitigation” (maj. opn., ante, at p. 1210) makes little sense. Under that logic, prosecutors may freely refer to biblical authority when making their penalty arguments to juries in capital cases, secure in the knowledge that this court will never reverse a resulting death judgment for this misconduct, provided only that the prosecutors also present an argument focusing on the statutory aggravating and mitigating factors. Appeals to divine authority in jury arguments in capital cases are prejudicial when jurors for whom the aggravating and mitigating factors appear closely balanced use religious considerations to resolve their doubts, as the prosecutor’s improper argument invites them to do. This may well have occurred here.
Having examined the appellate record, I cannot say with reasonable confidence that the jury would have returned the death verdict if the prosecutor had refrained from making, or a timely defense objection had prevented him from making, an improper jury argument appealing to religious *1229 authority as mandating the death penalty. Accordingly, I would reverse the judgment of death as to penalty.
Moreno, J., concurred.
Appellant’s petition for a rehearing was denied July 17, 2002. Brown, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9782408. Public record. Not legal advice.