People v. Lewis

MOSK, J.,

Concurring and Dissenting.—I concur in the judgment as to guilt and death-eligibility. I agree with the majority that there was no reversible error bearing on those issues.

But I dissent from the judgment as to penalty. The prosecutor’s summation at the penalty phase was improper and prejudicial under the Eighth *293 Amendment to the United States Constitution because of its extensive and emphatic comments on the personal characteristics of the victim, Milton Estell, and the effect of his death on his family.

The prosecutor’s summation in its entirety fills 14 pages of the reporter’s transcript. Its central text covers 10 pages. In that part, the prosecutor discussed and applied the penalty factors on which the court was about to instruct the jurors. He proceeded in reverse order from the factor of “sympathy, compassion or mercy . . . towards the defendant” to a climax in “the most important factor in your consideration in punishment in this case. That last factor is the circumstances of the crime of which the defendant was convicted and the existence of any special circumstances found to be true. [H] This, ladies and gentlemen, is the heart of the case as far as this phase of the case goes. And I really have three points or three topics to address with regard to how this crime occurred . . . . ftj] I think we have to address, first of all, the why or the motive for killing. We have to examine . . . the nature of the offense, how the murder was accomplished. And finally, we have to consider for a moment the gravity or the impact of the defendant’s actions, the impact that Robert Lewis, Jr., has had on the community, on the family, and, of course, in a personal sense upon Milton Estell.”

The climax of the prosecutor’s summation covers slightly more than seven pages. Two pages are devoted to the motive for the killing. Two more pages are given to the nature of the offense, and contain the following passage touching on Milton Estell’s personal characteristics: “From the pictures you can draw a conclusion or an assumption as to the approximate age of Milton Estell. A man well along in life. And you have to think that at that particular time in his life about what was important to him. Chances are as far as a career was concerned, he had made it along the line. He had fulfilled an ambition to whatever extent he was able to. But really what is most important to someone at that stage of their life? Why, memories, of course. Milton Estell had to have had memories. His family. His neighbors. And, of course, the prospect of a secure future. Things that anyone would certainly hold dear.” Finally, at the very climax of the climax, two more pages are devoted to Milton Estell’s personal characteristics and the effect of his death on his family. They are as follows.

“Now, let’s talk about for a moment the gravity of what defendant did. The impact of what he did. And this is something that here in a courtroom where things are a little more abstract, where emotion tends to run less high, it tends to get lost or swept under the carpet a little bit. I think it, again, is appropriate to discuss the impact and the gravity of Robert Lewis, Jr.’s, actions with you at this phase.

*294 “Again, as I told you, the defendant robbed Milton Estell of the most precious gift of all, of his life. The Cadillac would have been fine. The chain just fine. And we know in the past the defendant has done it before by virtue of those convictions that the defendant had been convicted of taking the property of other people by means of force and fear on other occasions. And he was convicted of those offenses, and yet here he upped the stakes, and he robbed Milton Estell of his life.

“He took that poor man’s life in a manner somewhat more aggravated than the taking of the chain, but he took it by means of force and fear and he had no right to that.

“But the impact is more than just the death of Milton Estell. The impact is more than that because that death affects the people who were close to Milton Estell, the concerned neighbors, the family, and more. When the defendant plunged the knife three times into Milton Estell’s chest and shot him in the back, he robbed Milton Estell of that future, of that right to a secure future. He robbed him of the chance to see his kids grow up, go to school, get married. To ever hold his grandkids if there were any. All of those things were taken away by the defendant last October.

“And more important than that, there are other victims in the form of Milton Estell’s children. In this photo that was introduced in the trial, there appears on the chest in the bedroom where the bloody spots were on the bedspread, two photos. We know from Jackie Estell that there were children from the marriage, and although the marriage had come apart, the children were there. Inferentially, Milton Estell kept toys in the empty bedroom for his kids when they came over. And you have to think about the impact of the defendant’s actions upon these children. These children never again will have an opportunity to sit on their father’s knee, to talk to the father, to ask those questions of a father that only a father can answer. That is part of the impact of the defendant’s actions.”

In South Carolina v. Gathers (1989) 490 U.S. 805 ,_-_ [ 104 L.Ed.2d 876, 883 , 109 S.Ct. 2207, 2210-2211 ], the United States Supreme Court concluded that it was generally violative of a criminal defendant’s rights under the Eighth Amendment for the prosecution to present argument at the penalty phase of a capital trial concerning such matters as the victim’s personal characteristics, the emotional impact of the crime on his family, and the opinions of family members about the crime and the criminal. In so holding, the court followed Booth v. Maryland (1987) 482 U.S. 496, 502-509 [ 96 L.Ed.2d 440, 448-452 , 107 S.Ct. 2529 ], in which it concluded that it is generally violative of those same rights to introduce evidence relating to such matters: the information is irrelevant to the decision whether the *295 defendant is to live or die, and its admission creates a constitutionally unacceptable risk that the decision maker may impose the ultimate sanction in an arbitrary or capricious manner.

It is plain that the prosecutor’s summation in this case was constitutionally improper under Gathers and Booth . To my reading, the majority do not seriously claim otherwise. Nor could they. As shown above, the very climax of the argument was devoted to Milton Estell’s personal characteristics and the effect of his death on his family. To be sure, the majority say that “The prosecutor’s references in this case to the victim and his family were more fleeting and restrained than those condemned in Booth and Gathers.” (Maj. opn., ante, at p. 284.) That may well be. But as the very words of the argument establish—and contrary to the majority’s apparent implication— the prosecutor’s comments were far from “fleeting” or “restrained.” 1

It is just as plain that the prosecutor’s improper argument compels reversal of the judgment of death. I shall assume for purposes here that the error is not automatically reversible, but rather is subject to harmless-error analysis under the test of Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]: “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,” or in other words, that there is no “ ‘reasonable possibility’ ” that the error “ ‘contributed’ ” to the outcome.

On this record, I am unable to conclude that the prosecutor’s improper argument was harmless beyond a reasonable doubt. As the discussion above shows, the objectionable portion of the summation was relatively extensive and was also dramatically placed at the very climax. It was also moving: the words themselves prove the point. Of course, we have no direct evidence that the jury was in fact affected. But we do have compelling circumstantial evidence. In its statement of reasons for denying defendant’s verdict-modification application, the court revealed unmistakably that it had been affected: it noted prominently—and in a virtual paraphrase of the prosecutor’s words—that “The community has not only suffered serious loss by reason of this poor man’s death, but his children have likewise suffered a great loss. Perhaps the greatest loss of all.” Accordingly, I conclude that there is at least a reasonable possibility that the prosecutor’s improper argument contributed to the outcome.

*296 The majority, however, are of the opinion that “any error under Booth and Gathers was harmless beyond a reasonable doubt.” (Maj. opn., ante, at p. 285.) They say: “The objectionable references were relatively brief in the context of the entire argument .... Moreover, they were insignificant in light of the emphasis put on defendant’s four prior robbery convictions, the execution-style killing of the victim in his home, and the lack of any significant mitigating circumstances.” (Maj. opn., ante, at p. 285.) As the discussion above shows, however, they cannot reasonably be characterized thus. Rather, they were relatively extensive, emotional, and unquestionably emphatic. There is at least a reasonable possibility that they contributed to the outcome, i.e., the difference between life and death.

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

Broussard, J., concurred.

Appellant’s petition for a rehearing was denied May 23, 1990. Broussard, J., was of the opinion that the petition should be granted.

The majority suggest at the threshold that defendant’s claim is one of prosecutorial misconduct and that it was waived through defense counsel’s failure to object at trial. But, “Because this case was tried before [Booth] and [Gathers], we do not describe the prosecutor’s mistaken argument as misconduct. For the same reason, we could not treat a defense counsel’s failure to object as . . . waiver.” (People v. Lucero (1988) 44 Cal.3d 1006, 1031, fn. 15 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ].)