Petition — California v. Lanphear

IN THE

Supreme Court of the Unites States

ICHAEL RODAK, JR. CLERR

October Term, 1979

No. —@9-2003

STATE OF CALIFORNIA,

Petitioner,

v.

RONALD EUGENE LANPHEAR,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General--Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

JAY M. BLOOM,

Deputy Attorney General

HARLEY D. MAYFIELD,

Deputy Attorney General

110 West “A” Street, Suite 600

San Diego, California 92101

Telephone: (714) 237-7759

Attorneys for Petitioner

INTERIM PRINTING & MAILING COMPANY

1105 West MORENA BOULEVARD, SAN DIEGO, CALIFORNIA 92110 — 275-3050

TOPICAL INDEX

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

FACTS RELATING TO THE OFFENSE

FACTS RELATED TO THE EXCUSAL OF

PROSPECTIVE JURORS HOLLEY AND HAYTER

HOW THE FEDERAL QUESTION IS

PRESENTED

ARGUMENT

I THE EXCUSAL OF JURORS

HOLLEY AND HAYTER DID

NOT VIOLATE THE DICTATES

OF WITHERSPOON

II THE FAILURE TO OBJECT

WAIVES ALLEGED WITHERSPOON

ERROR

III ANY ALLEGED WITHERSPOON

ERROR IS HARMLESS WHERE

THE EXCUSED JURORS MAKE

CLEAR THEIR BIAS AGAINST

THE PROSECUTION'S CASE

AND THE PROSECUTION HAS

TEN UNUSED PEREMPTORY

CHALLENGES WHEN A JURY IS

SELECTED

9

12

13

13

17

19

Pages

CONCLUSION

APPENDICES

- ii -

TOPICAL INDEX

(Continued)

22

- iii -

TABLE OF AUTHORITIES

Pages

CASES

Alexander v. United States

(1891) 138 U.S. 353 18

Boulden v. Holman

(1969) 394 U.S. 478 17

Boulden v. State

(1965) 179 So.2d 20 5

Boulware v. State (Tex.Crim. App.

1976) 542 S.W.2d 677, cert. den.

430 U.S. 959 (1977) 19

Buffalo Forge Company v. Steelworkers

(1976) 428 U.S. 397 19

California v. Velasquez,

May 6, 1980 17

Clark v. State (Ark. 1978) .

573 S.W.2d 622 19

Davis v. Georgia

(1976) 429 U.S. 122 20

Davis v. United States

(1973) 411 U.S. 233 19

Francis v. Southern Pacific Co.

(1948) 333 U.S. 445 18

Harris v. State

(1970) 457 S.W.2d 903 17

- iv -

TABLE OF AUTHORITIES

(Continued)

Pages

Harris v. Texas

(1971) 403 U.S. 947 17

Maxwell v. Bishop

(1970) 398 U.S. 262 17

Parker v. Illinois

(1948) 33 U.S. 571 18

People v. Lanphear

(1980) 26 Cal.3d 814 2,6,13,17

People v. Velasquez

(1980) 26 Cal.3d 425 17,18

Queenan v. Oklahoma

(1903) 190 U.S. 548 18,19

Shippey v. State (Tex.Crim.App.

1977) 556 S.W.2d 246, cert. den.

434 U.S. 935 (1977) 19

Snyder v. Massachusetts

’ (1934) 291 U.S. 97 14,21

State v. Wigglesworth

(1969) 248 N.E.2d 607 17

United States v. Dionisio

(1973) 410 U.S. 1 19

United States v. Healy

(1964) 376 U.S. 75 2

VonByrd v. State (Tex.Crim.App.

(1976) 569 S.W.2d 883, cert. den.

441 U.S. 967 (1979) 19

TABLE OF AUTHORITIES

(Continued)

Pages

Wigglesworth v. Ohio

(1971) 403 U.S. 947 17

Witherspoon v. Illinois

(1968) 391 U.S. 510 passim

Woodson v. North Carolina

(1976) 428 U.S. 280 16

STATUTES

Penal Code, § 187 ~

§ 190.2 3,4

§ 211 5

§ 1070 (a) 4,20

§ 1239 (b) 4,6

§ 12022.5 5

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1979

No. A-1026

STATE OF CALIFORNIA,

Petitioner,

Vv.

RONALD EUGENE LANPHEAR,

Respondent.

me ee ee ee ee eee ee eee

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE

OF CALIFORNIA

Petitioner, State of California

respectfully prays that a writ of cer-

tiorari be issued to review the judgment

and opinion of the Supreme Court of the

State of California affirming the judgment

but reversing the penalty of death, entered

on April 10, 1980, with one of the seven

Justices voting to affirm the death

sentence, A petition for rehearing was

denied on May 14, 1980. On June 3, 1980,

Justice William H. Rehnquist, Associate

Justice of the United States Supreme Court

and Circuit Justice for the Ninth Circuit

granted a stay herein pending this Court's

decision in Adams v. Texas, No. 79-5175,

and the timely filing and disposition of a

petition for writ of certiorari.

OPINIONS BELOW

The opinion of the California

Supreme Court affirming the judgment of

guilt but reversing the penalty of death

(People v. Lanphear (1980) 26 Cal.3d 814,

163 Cal.Rptr. 601, 608 P.2d 689) appears as

Appendix A of this petition. A copy of the

California Supreme Court's order denying

the petition for rehearing without opinion

appears as Appendix B of this petition.

JURISDICTION

The judgment of the California

Supreme Court was filed on April 10, 1980.

A timely petition for rehearing was denied

on May 14, 1980. This petition for writ of

certiorari was filed within 90 days of that

date and therefore timely filed. (United

States v. Healy (1964) 376 U.S. 75, 77-80,

and cases cited.) This Court's jurisdic-

tion is invoked under 28 U.S.C. section

1257 (3).

QUESTIONS PRESENTED

1. Whether a prospective juror

is improperly removed for cause under

Witherspoon v. Illinois (1968) 391 U.S.

510, when the trial judge has described

each of the separate decisions regarding

guilt, special circumstances and penalty to

be made by the juror, and the juror states

he does not think he could participate in

deliberations which might lead to the death

penalty.

2. Whether alleged Witherspoon

error is waived by a failure of objection

by the defense.

3. Whether Witherspoon error can

be harmless if the prosecution fails to

utilize all of its peremptory challenges,

especially where the prosecution has ten

unused peremptory challenges.

STATUTORY PROVISIONS INVOLVED

Former California Penal Code sec-

tion 190.2 (which applies to respondent)

reads in pertinent part:

"The penalty for a defendant

found guilty of murder in the

first degree shall be death or

confinement in the state prison

for life without possibility of

parole in any case in which one

or more of the following special

circumstances has been charged

and specially found, in a pro-

ceeding under Section 190.4, to

be true:

"(c) The defendant was

personally present during the

commission of the act or acts

causing death, and with intent to

cause death physically aided or

committed such act or acts

causing death and any of the

following additional circumstances

exists:

"(3) The murder was willful,

deliberate, and premeditated and

was committed during the com-

mission or attempted commission

of any of the following crimes:

"(i) Robbery in violation of

Section 21l;

"(d) For the purposes of

subdivision (c), the defendant

shall be deemed to have physi-

cally aided in the act or acts

causing death only if it is

proved beyond a reasonable doubt

that his conduct constitutes an

assault or a battery upon the

victim or if by word or conduct

he orders, initiates, or coerces

the actual killing of the

victim."

California Penal Code section

1070(a) reads in pertinent part:

"(a) If the offense charged

be punishable with death, or with

imprisonment in the state prison

for life, the defendant is

entitled to 26 and the state to

26 peremptory challenges. ..."

California Penal Code section

1239(b) reads:

"(b) When upon any plea a

judgment of death is rendered, an

appeal is automatically taken by

the defendant without any action

by him or his counsel."

STATEMENT OF THE CASE

In an information filed by the

District Attorney of San Bernardino County

respondent Ronald Eugene Lanphear was

accused of the murder of Robert Unger in

violation of California Penal Code section

187. It was further alleged that he had

used a firearm in the commission of the

offense within the meaning of California

Penal Code section 12022.5 and that the

murdef of Robert Unger was willful, deli-

berate and premeditated, and personally

committed by respondent during the com-

mission of a robbery in violation of

California Penal Code section 21l.

Respondent pled not guilty, and a denial of

the special allegations was entered on his

behalf. Jury selection commenced on

February 6, 1979, and trial commenced on

February 13. On March 6, 1979, the jury

returned its verdicts finding respondent

guilty of murder in the first degree and

finding the firearm use and special cir-

cumstance allegations true. On March 7,

1979, both parties elected to stand on the

evidence presented on the guilt phase.

Penalty arguments were presented, and the

jury returned its verdict finding the

penalty to be death. On March 14, 1979,

respondent's motions for new trial and for

modification of sentence were denied and he

was sentenced to death. (CT 21-22, 25, 57,

68, 167-169, 239-242, 257-261.)1/ An

1. The designation "CT" refers

to the Clerk's Transcript on appeal. The

designation "RT" refers to the Reporter's

Transcript on appeal.

appeal was automatically taken to the

California Supreme Court pursuant to

California Penal Code section 1239(b).

2/

Facts Relating to the Offense

On July 9, 1978, respondent

Lanphear escaped from an Elk Point, South

Dakota jail, and took a car and gun

belonging to a guard. He went to Sioux

City, Iowa, where he met a friend, Diana

Geisinger, who was seven months pregnant,

Diana “borrowed" a 1968 Camaro from a

friend, and later that day respondent and

Diana left for Texas, planning eventually

to marry in Las Vegas. They had about

$30.00 between them, and respondent had the

gun taken from the guard. (RT 538-549,

571-580.)

Ducing the night hours of July 9,

respondent and Diana stopped at a service

station in Emporia, Kansas, where respon-

dent robbed the attendant, David Leipold,

of about $200.00 and killed him. (RT

583-592, 888-891, 894-895.)

After leaving Emporia respondent

and Diana proceeded west, stopping at a

motel in Perry, Oklahoma on the afternoon

of July 10. They left there at about 6:30

p.m., and at about 10:00 p.m. picked up a

girl hitchhiker at a rest stop. Respondent

robbed and killed the girl late that night

near Santa Rosa, New Mexico. (RT 593-613,

689-706, 895-897, 900-901.)

2. The facts are set forth in

greater detail in the opinion below.

(People v. Lanphear, supra, 26 Cal.3d 814

at pp. 822-825. Appendix A, pp. A-4 - A-9.)

Respondent and Diana arrived in

Glendale, Arizona on July 11] and stayed

there with Diana's brother until July 13,

when they went to Las Vegas. After

gambling they spent the night at a rest

area. Respondent told Diana he wanted to

get some credit cards. On the morning of

the 14th at the rest area respondent asked

Robert Unger to give them a ride to get

gas. He agreed and the three left, heading

toward California in Unger's Matador. On

cue, Diana said she was sick and Unger

stopped the car. Respondent shot and

killed Unger and took his watch, wallet and

car containing items of personal property.

(RT 614-641, 709-711, 714-719.)

The next day respondent and Diana

returned to Arizona, and eventually moved

into a trailer park in Peoria, Arizona.

Diana gave birth to twins in September and

after a dispute on October 8, respondent

left the trailer park. On October 10 he

returned, in the company of Carolyn

Williams, to get his clothes. After an

argument respondent told Diana she had

be ter dig herself a hole and she would be

"number four." After Diana explained to a

friend what that was all about, she was

urged to contact the police and did so.

(RT 655, 657-661, 907-910.)

On October 12, Diana took San

Bernardino County officers to the location

where Unger had been killed. His body was

still there. (RT 661, 811-818.)

On the evening of October 12

respondent telephoned Carolyn Williams and

told her he was sending her a letter. She

received a letter addressed to the Chief of

—.

~ - 8 -

Police of Peoria, in which respondent

admitted to committing murders in Kansas,

New Mexico and California. (RT 759-775,

1093, 1205.)

Respondent was arrested in Las

Vegas, Nevada, on October 14, 1978. At the

time of his arrest he was wearing a pair of

Robert Unger's shoes, and a watch which had

belonged to Unger was recovered from him at

the time of booking. (RT 847-848, 915-920,

925-927.)

Respondent took the stand in his

own behalf and denied the offense. He

testified that Diana had left for about

three hours while he was gambling in Las

Vegas and returned with the Matador. He

later found out she had killed Unger. He

admitted taking the gun in his escape and

robbing the service station attendant in

Emporia, but testified it was Diana who

shot the attendant and denied any connec-

tion with the New Mexico murder. He

testified he had hitchhiked to Arizona from

a point near Perry, Oklahoma, and Diana had

told him about the New Mexico killing. He

denied that he had ever contemplated

killing Diana. (RT 1013-1015, 1022-1026,

1102-1103, 1150-1164, 1205.)

On rebuttal, Ain Gifford,

testified to the effect that respondent had

requested her to arrange to get rid of

Diana Geisinger while he was in the San

Bernardino County Jail. Her efforts were

unsuccessful and she was arrested, (RT

1267-1279, 1284, 1290.)

Facts Related to the Excusal of

Prospective Jurors Holley and Hayter

Jury voir dire regarding attitude

of jurors toward the death penalty was con-

ducted by the trial judge. At the outset

the trial judge explained the decisions the

jurors would have to make, i.e.: (1) in

the first phase of the trial, whether the

defendant was guilty of murder of the first

degree, and if so, whether the alleged spe-

cial circumstance which would lead to a

penalty of life imprisonment without parole

or death were true and (2) in the second

phase, whether the punishment should be

life imprisonment without parole or death.

He explained that a verdict of other than

murder of the first degree or a finding the

special circumstance allegation was not

true would end the jury's function. (RT

140-142.) The judge continued:

"Now, back to the problem at

hand. When we come to the busi-

ness of the death penalty, the

law requires that since a jury is

going to have to wrestle with

this decision that the jury be

able to wrestle with the

decision, It would not be

appropriate for us to have

someone on the jury whose reli-

gious beliefs or moral feelings,

or whatever source of beliefs are

such that under no circumstances,

no matter what the facts were, no

matter what happened, could they

even take part in any delibera-

tions that might lead to a death

penalty.

- 10 =

"If anybody has feelings

that are that strong, then

obviously, they should not serve

on a jury. Because before we

even start, we are in a position

where we are going to maybe have

a hung jury or could not possibly

arrive at tue possible alter-

natives no matter what the evi-

dence shows.

"And I understand that there

are some religions I have heard

people say, that there are some

people who for religious beliefs,

whatever they feel they just can-

not take part in any such

deliberations. And I would like

a show of hands of all of you who

feel that your personal convic-

tions or personal beliefs or what-

ever are such that you could not

under any circumstances no matter

what the evidence showed, even

take part in the deliberations

which might lead to a death

penalty. If so, raise your

hands?" (RT 144-145.)

Two prospective jurors stated

unequivocally they could not participate in

any deliberations which might lead to the

death penalty and were excused. (RT

145-146.) Prospective juror Holley then

asked:

". « « 32 the terial cane

to the third stage that you spoke

of, where there was a choice bet-

ween life and death sentence,

does the jury have any degree of

selection there?"

- ll -

The judge responded, "It is absolutely up

to the jury." He continued:

"What I'm telling you, now,

has nothing to do with what your

decision would be. That is

entirely up to the jury. All we

want to know is that you would be

capable of taking part in

deliberations, which may even-

tually end up with the vote for

the death penalty?"

Mr. Holley responded: "I don't believe I

could, sir." He was then excused. (RT

146-147.)

The judge then asked:

"Anyone else? If you have

any feelings that you think would

prevent your taking part in

deliberations, which might lead

to the death penalty, if your

feelings are that strong, why let

us know."

Mr. Hayter responded: "Sir, I don't

believe that I could." Mr. Hayter iden-

tified himself and the court asked:

*. « » All cight, is this

because of your personal convic-

tions or religious beliefs or

what?"

Mr. Hayter responded:

"Religious beliefs, I'm a

born again Christian. I just

don't believe I could have any

« 39 «

part in the sitting in on the

electric chair, sending anyone."

The judge then stated:

"Incidentally, Mr.

Broderick, [defense counsel] I

haven't asked you on these other

cases if you want to question any

of these people further before I

excuse them, why if you let me

know, I will give you that

privilege."

Mr. Broderick responded: "I will, Your

Honor." Mr. Hayter was then excused. (RT

147-148.) Later, after a third panel had

been drawn, the judge again described the

decisions which the jury would have to

make, and three more jurors were excused

after each had answered affirmatively to

the question whether their feelings about

the death penalty were such that under no

circumstances would they be able to par-

ticipate in deliberations which might lead

to the death penalty. (RT 457-461.)

There was no objection at the

trial court level that any of the seven

jurors excused on death penalty grounds

were improperly excused. The prosecutor

exercised 16 peremptory challenges before

the twelve jurors who heard the case were

sworn. (RT 261, 274, 284, 302, 312, 327,

335, 369, 383, 398, 400, 405, 41l, 415,

421, 498.)

How the Federal Question is

Presented

In his Opening Brief respondent

Lanphear (appellant below) urged that

~ -

» 13 =

prospective jurors Holley, Hayter and one

other were excused in violation of =

Witherspoon and the improper excusal

required reversal of the penalty. At pages

109-129 of petitioner's response (the

Respondent's Brief below) it was urged that

the jurors were properly excused, that if

the excusal was improper it was waived by

failure to object and if not so waived it

was harmless. The California Supreme Court

held that jurors Holley and Hayter were

improperly excused under Witherspoon, the

error was not waived by the failure to

object and reversal was required. (People

v. Lanphear, supra, 26 Cal.3d 814, 837-844.

Appendix A, pp. A-31 - A-44.) Petitioner

requested a rehearing on the ground the

California Supreme Court had failed to

address the issue whether the alleged error

was harmless, and the petition for

rehearing was denied. (Appendix B.)

REASONS WHY A WRIT OF

CERTIORARI SHOULD BE

GRANTED

I

THE EXCUSAL OF JURORS HOLLEY AND

HAYTER DID NOT VIOLATE THE DICTATES

OF WITHERSPOON

In speaking for this Court

Justice Cardozo once said:

"The law, as we have seen,

is sedulous in maintaining for a

defendant charged with crime what-

ever forms of procedure are of

the essence of an opportunity to

defend. Privileges so fundamen-

tal as to be inherent in every

« $6 =

concept of a fair trial that

could be acceptable to the

thought of reasonable men will be

kept inviolate and inviolable,

however crushing may be the

pressure of incriminating proof.

But justice, though due to the

accused, is due to the accuser

also. The concept of fairness

must not be strained till it is

narrowed to a filament. We are

to keep the balance true."

(Snyder v. Massachusetts (1934)

291 U.S. 97, 122.)

If that ideal of justice to the accuser as

well as the accused still exists, the

reversal of the judgment rendered against

the respondent in this case presents a

federal question of compelling importance.

In Witherspoon v. Illinois,

supra, 391 U.S. 510, this Court held that

sentence of death cannot be carried out if

the jury that imposed or recommended it was

chosen by excluding veniremen for cause

simply because they voiced general objec-

tions to the death penalty or expressed

conscientious or religious scruples against

its infliction. (Id., at pp. 521-522.)

Earlier in the same opinion the Court had

pointed out that:

"The issue before us is a

narrow one. It does not involve

the right of the prosecution to

challenge for cause those

prospective jurors who state that

their reservations about capital

punishment would prevent them

from making an impartial decision

as to the defendant's guilt."

(Id., at p. 513.)

= 318 «

In a footnote to the holding this Court

emphasized:

"We repeat, however, that

nothing we say today bears upon

the power of a State to execute a

defendant sentenced to death by a.

jury from which the only venire-

men who were in fact excluded for

cause were those who made

unmistakably clear (1) that they

would automatically vote against

the imposition of capital punish-

ment without regard to any evi-

dence that might be developed at

the trial of the case before

them, or (2) that their attitude

toward the death penalty would

prevent them from making an

impartial decision as to the

defendant's guilt." (Id., at pp.

522-523 n. 21.)

It is evident from the trial

judge's description of the three decisions

the jury was required to make, followed by

the specific question he asked that the

question was neither designed to, nor

likely, to elicit responses from those

merely having general objections to the

death penalty or conscientious or religious

scruples against its infliction. It was

calculated to elicit responses only from

those whose opposition to the death penalty

was so strong that they could not even par-

ticipate in any of the deliberations -- on

guilt, special circumstances or penalty--

which might lead to a vote for the death

penalty. Moreover, it is obvious that the

responses of jurors Holley and Hayter, in

light of the trial court's explanation and

» 16 <

the question asked, made it "unmistakably

clear" to the trial judge, the prosecuting

attorney and defense counsel that their

attitude toward the death penalty would

prevent them from making an impartial deci-

sion as to the defendant's guilt. In view

of those prospective jurors’ statements

that their feelings in opposition to the

death penalty were so strong they did not

believe they could participate in any of

the deliberations, that conclusion was cer-

tainly reasonable if not compelled.

Witherspoon does not preclude

exclusion of jurors whose opposition to the

death penalty is so great that they are

biased against the prosecution on the issue

of guilt. Indeed, to require that such

jurors not be excluded would tend to make

both the determination of guilt and the

ultimate penalty dependent on "the par-

ticular jury's willingness to act

lawlessly." (Cf. Woodson v. North Carolina

(1976) 428 U.S. 280, 303.)

We respectfully submit the

Supreme Court of California has erroneously

interpreted Witherspoon to require an

unrealistic degree of certainty on the

question whether a juror may be excused for

cause on the ground his attitude toward the

death penalty would prevent him from making

an impartial decision as to the defendant's

guilt. Therefore, certiorari should be

granted to allow this Court to create

realistic standards in application of

Witherspoon in those instances where

prospective jurors indicate an inability to

be impartial on the question of the

defendant's guilt.

- 17 -

THE FAILURE TO OBJECT WAIVES

ALLEGED WITHERSPOON ERROR

The opinion of the California

Supreme Court holds that failure to object

to the excusal of a prospective juror is

not a waiver of Witherspoon error. The

authority cited for that holding was Pecple

v. Velasquez (1980) 26 Cal.3d 425, 443.

(People v. Lanphear, supra, 26 Cal.3d 814,

844. Appendix A, p. A-44.) In People v.

Velasquez, supra, the California Supreme

Court held that: "The decisions of the

United States Supreme Court and of the

California courts have unanimously ruled

that Witherspoon error is not waived by

mere failure to object." (26 Cal.3d at

443.) A petition for certiorari in

Velasquez was filed on April 23, 1980.

(California v. Velasquez, Docket 79-1677,

48 U.S.L.W. 3716, May 6, 1980.)

The cases cited by the California

Supreme Court in People v. Velasquez,

supra, are not dispositive. In each of

those cases the jury voir dire took place

before Witherspoon was decided. (See

Maxwell v. Bishop (1970) 398 U.S. 262, 263;

Boulden v. Holman (1969) 394 U.S. 478, 479;

Boulden v. State (1965) 179 So.2d 20, 24;

Harris v. Texas (1971) 403 U.S. 947; Harris

v. State (1970) 457 S.W.2d 903, 908;

Wigglesworth v. Ohio (1971) 403 U.S. 947;

State v. Wigglesworth (1969) 248 N.E.2d

607, 609.)

Witherspoon was decided on June

3, 1968, and held to be retroactive. (391

U.S. at p. 523 fn. 22.) As the above deci-

sions involved voir dire of the jury which

occurred before Witherspoon was decided, no

objection would have been necessary because

= 18 «-

defense counsel in those cases would not

have known of the Witherspoon decision.

Therefore those cases are not precedent for

the proposition that Witherspoon error is

not waived by failure to object after

Witherspoon was decided.3/

The question whether or not a

federal right is properly raised and pre-

served is a federal question. (Parker v.

Illinois (1948) 333 U.S. 571, 574.) This

Court has repeatedly held that a defendant

may not raise objections relative to the

jury selection process for the first time

on a motion for new trial, but must make

objections at the time jury selection takes

place. (Francis v. Southern Pacific Co.

(1948) 333 U.S. 445, 456-457; Alexander v.

United States (1891) 138 U.S. 353, 355.)

In Queenan v. Oklahoma (1903) 190

U.S. 548, in the course of trial the

government announced that it had been

informed that one of the jurors had in fact

been convicted of a felony, contrary to the

statement on voir dire. The trial judge

asked counsel for defendant what they

desired to do, intimating that if the

objection were pressed the juror would be

excused. Counsel for the defendant answered

they had nothing to say and the trial

3. For the same reasons, the

California cases cited by the Court in

People v. Velasquez, supra, at p. 443 are

not precedent for that proposition since

voir dire in those cases occurred before

Witherspoon was decided. Therefore the

issue herein is one totally of federal

interpretation subject to the scrutiny of

this Honorable Court.

= 19 «

continued, This Court held that such a

statement was a waiver, that defense coun-

sel ". . . could not speculate on the chan-

ces of getting a verdict and then set up

that he had not waived his rights." (Id.,

at p. 552.)

The decisions of other jurisdic-

tions have held that failure to object on

alleged Witherspoon grounds acts as a

waiver of any asserted error. (See Clark

v. State (Ark. 1978) 573 S.W.2d 622,

625-626; VonByrd v. State (Tex.Crim.App.

1976) 569 S.W.2d 883, 891, cert. den. 441

U.S. 967 (1979); Shippy v. State (Tex.

Crim.App. 1977) 556 S.W.2d 246, 251, cert.

den. 434 U.S. 935 (1977); Boulware v. State

(Tex.Crim.App. 1976) 542 S.W.2d 677, 683,

cert. den. 430 U.S. 959 (1977).) The

conflict between states in the interpreta-

tion of federal law should be additional

grounds for a grant of certiorari in this

case. (Buffalo Forge Company v.

Steelworkers (1976) 428 U.S. 397, 404;

Davis v. United States (1973) 411 U.S. 233,

236; United States v. Dionisio (1973) 410

U.S. Ll, Se)

III

ANY ALLEGED WITHERSPOON ERROR

IS HARMLESS WHERE THE EXCUSED

JURORS MAKE CLEAR THEIR BIAS

AGAINST THE PROSECUTION'S CASE

AND THE PROSECUTION HAS TEN

UNUSED PEREMPTORY CHALLENGES

WHEN A JURY IS SELECTED

A total of seven prospective

jurors were excused for cause because of

their attitude toward the death penalty

= 20 -

and their statements concerning its effects

on their ability to deliberate. (RT

145-147, 459-461.) The prosecutor used a

total of 16 peremptory challenges before a

jury of 12 was chosen. (RT 261, 274, 284,

302, 312, 327, 335, 369, 383, 398, 400,

405, 411, 415, 421, 498.) Prospective

jurors Holley and Hayter had both indicated

their objection to the death penalty was so

strong they did not think they could even

participate in any of the jury's

deliberations. (RT 144-147.) Their bias

was so clear that defense counsel voiced no

objection. (RT 147-148.)

Pursuant to California Penal Code

section 1070(a) the prosecution was

entitled to 26 peremptory challenges.

Unless the Constitution requires an assump-

tion that the prosecuting attorney was

incompetent, there could be no possible

doubt that he would have peremptorily

challenged prospective jurors Holley and

Hayter if they were called to the jury box

and not otherwise excused. 4/

The question whether alleged

Witherspoon error can be harmless is one

open for discussion. In Davis v. Georgia

(1976) 429 U.S. 122, this Court summarily

reversed a lower court decision finding

Witherspoon error nonprejudicial. However

in Justice Rehnquist's dissenting opinion

it was pointed out:

4, Mr. Hayter might have been

peremptorily excused by defense counsel,

since he was one of a small number of

jurors who said they had read about the

case. (RT 137.)

- 21 «

"It is, moreover, unclear

whether the State was entitled to

another peremptory challenge, ...

and surely Witherspoon does not

decide whether the presence of

unexercised peremptory challenges

might render harmless the

improper exclusion of a limited

number of veniremen.” (Footnote

omitted, )

In this case, on the other hand,

it is clear that the prosecution did have

numerous remaining peremptory challenges

and there is no reasonable doubt, or any

doubt, that two of them would have been

used to excuse jurors Holley and Hayter.

This is an issue of federal

constitutional dimensions and clearly an

important issue since:

". . ». There is danger that the

criminal law will be brought into

contempt -- that discredit will

even touch the great immunities

assured by the Fourteenth

Amendment -- if gossamer possibi-

lities of prejudice to a defen-

dant are to nullify a sentence

pronounced by a court of com-

petent jurisdiction in obedience

to local law, ana set the guilty

free." (Snyder v. Massachusetts,

supra, 291 U.S. 97, 122.)

» 29 «

CONCLUSION

For the foregoing reasons,

petitioner respectfully submits that

the writ of certiorari should issue to

review the decision of the Supreme

Court of the State of California.

CR SD

80US0002

Respectfully submitted,

GEORGE DEUKMEJIAN,

Attorney General

ROBERT H. PHILIBOSIAN,

Chief Assistant Attorney

General--Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

JAY M. BLOOM,

Deputy Attorney General

mt

Mal ‘DI ak

ARLEY by AL ia

Deputy Attorney General

Attorneys for Petitioner

a)

APPENDIX A

= Ani o«

[Filed April 10, 1980]

IN THE SUPREME COURT OF THE STATE

OF CALIFORNIA

(CRIM. NO. 21167)

(CRIM. NO. 20934)

THE PEOPLE,

Plaintiff and Respondent,

Vv.

RONALD EUGENE LANPHEAR,

Defendant and Appellant.

In re RONALD EUGENE LANPHEAR,

on Habeas Corpus

me ee ee ee ee ee ee ee ee ee

Defendant Ronald Eugene

Lanphear appeals from a judgment imposing

the death penalty following his convic-

tion of first degree murder. He also

seeks a writ of habeas corpus based on

allegations of ineffective representation

by appointed trial counsel. The pro-

ceedings have been consolidated. We find

no reversible error affecting the verdict

of guilt or the finding of special

SEE DISSENTING OPINION

>»

o hu? @

circumstance. Challenged actions of

trial counsel appear to be the product of

informed tactical choices within the

range of reasonable competence, and the

trial court committed no prejudicial

error in its evidentiary rulings or

instructions to the jury. We conclude,

however, that the part of the judgment

imposing the death penalty must be

reversed. The trial court improperly

excluded prospective jurors where the

voir dire failed to make it "unmistakenly

clear" that the jurors “would automatically

vote against the imposition of capital

punishment without regard to any evidence

that might be developed at the trial," or

that the jurors' attitudes toward the

death penalty "would prevent them from

making an impartial decision as to the

defendant's guilt." (Witherspoon v.

Illinois (1968) 391 U.S. 510, 522-523,

ER. Zi.)

In November 1978 defendant was

charged by information with the murder of

Robert Unger in San Bernardino County on

July 4, 1978. (Pen. Code, § 187.) 1/ The

information alleged the use of a firearm

in the commission of the offense (§

12022.5) and that the murder was com-

mitted under “special circumstances" in

that it was willful, deliberate and

premeditated, and personally committed

during the commission of a robbery. (See

1. Unless otherwise indicated,

all section references hereafter are to

the Penal Code.

o int «

former § 190.2, subd. (c)(3)(i).)2/ It

also included "aggravation allegations"3/

of two other murders, an escape, and two

prior robbery convictions. 4/

At the guilt phase of the

trial, the jury returned verdicts finding

defendant guilty as charged and the spe-

cial circumstance and use allegations to

be true. No new evidence was introduced

by either party at the penalty phase, and

the jury returned a verdict of death.

The trial court denied a motion for a new

trial and an application for reduction of

sentence (§ 190.4, subd. (e)). Defendant

2. This case arises under the

1977 death penalty legislation (Stats.

1977, ch. 316, pp. 922-930) which has

been superseded by the 1978 initiative,

currently codified as sections 190 to

190.5.

3. Section 190.3 provides in

pertinent part: ". . . Except for evi-

dence in proof of the offense or special

circumstances which subject a defendant

to the death penalty, no evidence may be

presented by the prosecution in aggrava-

tion unless notice of the evidence to be

introduced has been given to the

defendant within a reasonable period of

time, as determined by the court, prior

CO Che CLiOh 2. 2 0 o

4. Before trial the prosecutor

agreed he would neither attempt to

impeach defendant with the priors nor

prove either of them. They played no

part in the trial.

**

o Leh &

was sentenced to death; this appeal is

automatic (§ 1239.).

STATEMENT OF THE CASE

Defendant escaped from jail in

Elk Point, South Dakota in the night of

July 8-9, 1978. He joined a friend,

Diana Geisinger, in Sioux City, Iowa, and

the two made plans to go to Texas and

eventually to marry in Las Vegas. Diana

"borrowed" an automobile, a 1967 Camaro,

from a friend, and with $30 between them

defendant and Diana left Sioux City.

Defendant had a gun which he had taken

from the guard in the escape. At the

time, Diana was seven months pregnant.

Diana was the prosecution's

chief witness. She testified to the

events of the five-day journey which

culminated in the murder of Unger on July

14. She related that defendant committed

other crimes during the trip, that they

spent two days in Glendale, Arizona with

her brother, and that, with about $60,

they went to Las Vegas on July 13.

After gambling in the casinos,

they left Las Vegas heading toward

California and stopped at a rest area on

the Nevada side of the border. Having

only a few cents between them, their

intention was "to find some credit cards

and some more money." They slept on pic-

nic tables that night and on the

following morning, July 14, still at the

rest stop, continued to discuss ways in

which to obtain money. Diana was told to

- Ant o

ask a lady for a ride. When the woman

refused, defendant asked a couple for a

ride. The man said yes, but the woman

declined. Unger then came to a nearby

water fountain; defendant asked him for a

ride “up the road" for gas. When Unger

agreed, defendant and Diana got into

Unger's vehicle, a green Matador with

Ohio plates. Defendant sat in the front

passenger seat with the revolver lying

beside him wrapped in an orange towel.

Diana sat in the back.

As they drove defendant kept

asking Diana if she was all right. That

was a cue to stop the vehicle so she

could get out: "I just told him that I

didn't want to be around. .. [w]hen he

killed him." Diana announced that she

felt sick and wanted out. She got out,

went down a ditch, and feigned illness.

She heard a shot, looked back, and saw

defendant close the passenger door; he

walked around to the driver's side, told

her to stay put and he would be back.

Defendant drove off, but returned moments

later. When Diana got in the back seat,

Unger was still in the car. They drove

down a dirt road and stopped in an area

where defendant removed Unger from the

car and placed him behind some bushes.

Defendant then removed some coveralls

from the trunk which he used to muzzle

the gun and shot Unger two or three more

times. Portions of Unger's personal

effects were left by the body. Defendant

went through the victim's pockets and

took a wallet and watch. The two then

drove back to the rest stop in Unger's

car.

—

Blood from the Matador was

removed and Unger's suitcases examined,

Defendant transferred the license plates

from the Camaro to the Matador. The

couple returned to Las Vegas in the

Matador. That night they gambled and

stayed at the El Sombrero Motel. They

sorted out Unger's property, including

$200 in cash. The couple then drove back

to Arizona where they lived with Diana's

brother until late August or early

September. Defendant obtained employment

as a roofer.

In the weeks that followed

their return to Arizona, the couple's

relationship deteriorated and on October

8, 1978, Diana called the local police

complaining that defendant had assaulted

her. No charges were filed, but defen-

dant moved out. On October 10, when he

returned with Carolyn Williams to demand

his "stuff," Diana informed him that she

had thrown it away. Defendant told her

that he would be back, that "I'd better

dig myself a hole," and that "I'd be

number four." After the incident Patsy

Hall (Diana's neighbor) asked Diana what

"all that" meant and Diana told her.

Patsy and her son, a police cadet, per-

suaded Diana to talk to the police.

Detectives Adler and Stodell of

the San Bernardino County Sheriff's

office testified that they took Diana

from Arizona to California on October il,

1978. Enroute she pointed out the rest

stop where she and defendant met Unger

and, south of the state line in San

Bernardino County, the location of his

body.

o ho? =

Carolyn Williams testified that

she first became aware that defendant may

have been involved in murder when the

police contacted her on October 12. By

then defendant had left town. He con-

tacted her that evening and stated "that

some things had happened that he wasn't

proud of and someday we would sit down

and have a long talk about it." He also

stated "that in a couple of hours it was

all going to be over with and that he was

sending me a letter and would I do what

he asked in the letter." He was crying

and Carolyn believed he was going to com-

mit suicide. On the following day

defendant called again and stated he was

in Las Vegas. He asked Carolyn to burn

the letters if she received them because

he had changed his mind about committing

suicide and now "the letters did not mean

anything."

Carolyn received a letter from

defendant which contained envelopes

addressed to Diana, the Peoria, Arizona

Police Department and Linda Balyeat of

Sioux City, Iowa. Carolyn turned the

letters over to the police. The letter

to the police contained defendant's

statement that he was guilty of three

murders--one in Kansas, one in

California, and one in New Mexico--and

that Diana had nothing to do with par-

ticipation in the crimes.

Defendant was arrested in Las

Vegas on October 14, 1978. At the time

of his arrest defendant had Robert

Unger's watch and was wearing a pair of

his shoes.

| >

o Aa® o

Deputy Sheriff Michael Stodell

and Sergeant Adler took defendant from

Las Vegas to San Bernardino County on

October 17, 1978. During the trip,

defendant volunteered the statement, "You

know, Diana is innocent. She'd have

turned me in a lot sooner, if she hadn't

been so scared,"

Defendant took the stand and

denied committing the offense. He

testified that, enroute to Las Vegas on

July 13, he and Diana discussed the

possibility of trading the Camaro, and

sometime around 9 p.m. Diana left -the

casino to trade or sell the automobile.

She returned about 3 hours later with

"quite a bit of money." She said she had

traded the car but refused to discuss the

details of the trade. She had a 1971

Matador. He first saw Unger's clothing

in the morning at the El Sombrero Motel.

Two or three weeks later he found the

pants with the name inside and finally

learned from Diana what had happened.

She did not go into details but said that

she had killed a girl hitchhiker and

Unger. He took the Matador to a car wash

and washed the blood out of the inside.

He spray painted the car shortly after

returning to Arizona because Diana told

him she had stolen the car.

In regard to the events of the

journey leading up to the homicide in

California, defendant admitted the escape

and a Kansas gas station robbery, but

denied the murders. He testified he had

escaped from Elk Point, stolen the

pistol, and robbed a service station

attendant in Emporia, but that Diana had

- A-9 =

killed the attendant. He got out of the

car in Oklahoma and hitchhiked the rest

of the way to Arizona where he rejoined

Diana. He wrote the letter admitting the

murders in Kansas, New Mexico, and

California because he "did not care

anymore."

Defendant testified that after

the dispute with Diana about getting

clothes, he told her "to find herself a

hole and hide in it" and that was the end

of the conversation, that from the time

he left South Dakota until he was

arrested in Las Vegas he never con-

templated killing Diana and had not con-

templated having her killed since his

arrest.

On rebuttal, the prosecution

called Ann Gifford, a friend of

defendant, who testified that she

conspired with defendant to find someone

to "get rid" of Diana. She communicated

with defendant by letter and telephone

while he was incarcerated. From him she

received several addresses for Diana, and

from Diana's ex-husband she obtained a

picture. Gifford's first contact refused

to go through with the killing, and

apparently her second contact was an

undercover agent.

I

ISSUES RELATING TO GUILT PHASE

Defendant makes no claim that

the evidence is insufficient to sustain

his conviction for first degree murder or

the finding of special circumstance. The

>

- A-10 -

only issue was the identity of the

killer. The evidence establishes that

the victim was killed to facilitate his

robbery either by Diana or by defendant.

The jury resolved the conflict in their

testimony against defendant.

Defendant contends that trial

counsel was incompetent and ineffective.

He also contends that the trial court

erred (1) in the admission of certain

rebuttal evidence, (2) in its instruc-

tions on credibility, (3) in its comments

to prospective jurors, and (4) in denial

of a motion to voir dire the jury

regarding trial publicity.

Adequacy of trial counsel.

Defendant asserts that trial

counsel was ineffective and afforded him

inadequate representation during the

guilt phase in that (1) he failed to

object to the introduction of evidence of

crimes other than the charged offense and

(2) he failed to object to introduction

of evidence by the prosecution in

rebuttal.5/ While the record on appeal

5. The challenge to counsel's

competence in regard to rebuttal evidence

is considered later in conjunction with

discussion of the trial court's rulings

thereon, post, page A-27 and 28, footnote

10.

Only one allegation of ineffec-

tiveness was contained in the petition

for habeas corpus that was not also

raised in the appeal itself. That

related to counsel's failure to make a

- A-ll -

provides no explanation for counsel's

conduct, uncontroverted declarations of

the prosecutor and trial counsel filed

with the petition for habeas corpus

reveal the tactical basis for the failure

to object.

The most damning evidence of

prior crimes was Diana's testimony of two

killings that occurred on the first and

second days of their cross-country

Footnote 5 continued

pretrial motion for change of venue,

Counsel cannot be faulted in that regard.

In support of the claim that counsel

should have moved pretrial for a change

of venue, defendant attaches copies of

newspaper articles describing the account

of the crime given to police by Diana,

the investigation which ensued, the arrest

and extradition of defendant from Las

Vegas, and his arraignment and prelimi-

nary hearing. Our examination of the

articles suggests that a motion to change

venue would have been futile. The

articles are not inflammatory. One was

primarily a factual account of Diana's

statement to police. The four others did

no more than relate defendant's arrest

and preliminary legal proceedings. There

is no allegation that the articles in any

way adversely affected the process for

selection of jurors. San Bernardino

County has almost a million residents;

the newspaper in question has a cir-

culation of between 89,000 and 91,000.

’*s

-.

- A-12 -

journey. Diana testified that they

exhausted their funds for gas on the

first day of the trip. On the night of

July 9-10, defendant stopped at a gas

station near Emporia, Kansas, intending

to trade spare tires for gas and money.

As defendant talked with the attendant,

Diana used the restroom and then returned

to the car. She heard two shots.

Defendant ran to the car and they drove

away. Defendant gave Diana about $200

and told her that he had shot the atten-

dant in the head twice and killed him.

He told Diana he would not have killed

the attendant but “the guy started

getting smart with him. He didn't like

his attitude." Defendant also told her

he did not want the attendant to be able

to identify him.

In defendant's version of the

events, he admitted robbing the attendant

at gun point when the latter refused to

exchange tires for cash. He did not kill

the attendant, however, but returned to

the car and related to Diana what he had

done. She grabbed the gun lying on the

console and went into the station.

Defendant heard two shots. When Diana

returned to the car she said, "I made

damn sure nobody knew who did it."

Diana testified that on the

second day of the journey, after a four

or five hour rest at a motel in Perry,

Oklahoma, they proceeded toward New

Mexico, where about 10 p.m. at a rest

stop they agreed to give a ride to a

young girl carrying a guitar case. The

trio rode together for several hours,

briefly conversing about guitars and

- A-l3 -

money (the hitchhiker "bragged" about the

money she had spent on the guitar and on

her trip), and stopping at a coffee shop

and then a bar. At some point Diana told

defendant to let the hitchhiker out.

Although she and defendant had not

discussed it, Diana knew when defendant

went over a viaduct off the highway that

"he was going to get rid of her there."

All three were in the front seat.

Defendant got out, opened the passenger

door, and asked Diana if she wanted out.

She responded affirmatively so the hitch-

hiker got out first. The girl was shot

in the back of the head. Defendant

straddled her body and searched her

pockets. Diana then observed defendant

take the gun from his belt area; she

looked away as the hitchhiker was shot a

second time. Defendant threw the gun in

the car and rolled the girl's body down

the cliff. Diana, who was still in the

car, was instructed to go through the

hitchhiker's belongings. Drugs and

papers were thrown away; they kept the

guitar, which was later sold, and a coin

purse containing $1.50.

Defendant denied involvement in

the killing of the hitchhiker. He

testified that after leaving the motel in

Perry, Oklahoma, he decided to get out of

the car and hitchhike to Arizona. He

arranged to meet Diana at a bus station

in Glendale, Arizona, and did meet her

two days later on the evening of July 12.

Defendant testified that he did not

notice the guitar in the Camaro, saw it

for the first time in the trunk of the

Matador, assumed it was Diana's, and

pawned it on her instructions.

- A-14 -

Additional other-crimes evi-

dence of which defendant complains is the

South Dakota jailer's description of

defendant's assault upon him during the

escape, the evidence of the reasons for

the incarceration in South Dakota

(burglary and revocation of bail in three

states), and Diana's testimony of a

burglary and theft which occurred sub-

sequent to the charged crime.

Defense counsel made no objec-

tion to the introduction of any of the

above evidence. The jury was instructed

in accord with CALJIC No. 2.50 as to the

limited purposes for which the evidence

was received. They were instructed that

it was not received and could not be con-

sidered to prove bad character or dispo-

sition to commit crime.

The burden of proving a claim

of inadequate trial assistance is on the

defendant. "“[{A]ppellant must show that

trial counsel failed to act in a manner

to be expected of reasonably competent

attorneys acting as diligent advocates.

In addition, appellant must establish

that counsel's acts or omissions resulted

in the withdrawal of a potentially meri-

torious defense." (People v. Pope (1979)

23 Cal.3d 412, 425.) Pope continues,

"Once an appellant has met these burdens,

the appellate court must look to see if

the record contains any explanation for

the challenged aspect of representation."

If the record on appeal sheds no light on

why counsel acted or failed to act in the

manner challenged, the judgment will be

affirmed on appeal "unless counsel was

asked for an explanation and failed to

- A-15 -

provide one, or unless there simply could

be no satisfactory explanation." (Id.,

23 Cal.3d at p. 426.)

The record on this appeal sheds

no light on counsel's actions vis-a-vis

the other-crimes evidence.6/ We have

followed the procedure proposed in Pope

(Id., p. 426) and issued an order to show

cause upon defendant's petition for

habeas corpus, filed contemporaneously

with the appeal.

Generally, failure to make

objections is a matter of trial tactics

6. We are aware that the

guidelines of Pope provide for a two-step

analysis. In addition to establishing

that reasonably effective counsel would

have objected to the evidence in

question, defendant must show that

failure to do so deprived him of a poten-

tially meritorious defense. It is not

readily apparent what defense was

foreclosed by counsel's failure to object

to the other crimes evidence. (Cf.

People v. Nation (1979) 26 Cal.3d 169,

where the sole issue was validity of the

pretrial identification of defendant as

the rapist; counsel's failure to object

to the critical identification evidence

deprived defendant of constitutionally

adequate assistance.) We nevertheless

assume for the purpose of this opinion

that defendant has met the burdens

outlined in Pope and proceed to an exami-

nation of possible justification for

counsel's actions.

- A-16 -

as to which we will not exercise judicial

hindsight. (People v. Beagle (1972) 6

Cal.3d 441, 458.) "{C]Jounsel's conduct

should not be judged by appellate courts

in the harsh light of hindsight ... and

except in rare cases, an appellate court

should not attempt to second-guess trial

counsel." (People v. Thomas (1974) 43

Cal.App.3d 862-869.) "It is not suf-

ficient to allege merely that the

attorney's tactics were poor, or that the

case might have been handled more effec-

tively . . . Rather, the defendant must

affirmatively show that the omissions of

defense counsel involved a critical

issue, and that the omissions cannot be

explained on the basis of any

knowledgeable choice of tactics."

(People v. Floyd (1970) 1 Cal.3d 694,

709; see also People v. Williams (1970) 2

Cal.3d 894, 905; In re Williams (1969) 1

Cal.3d 168, 176; People v. Hill (1969) 70

Cal.2d 678, 690-691; People v. Reeves

(1966) 64 Cal.2d 766, 773; People v.

Brooks (1966) 64 Cal.2d 130, Lid; People

v. Fitzgerald (1972) 29 Cal.App.3d 296,

310; People v. Brunt (1972) 24 Cal.App.3d

945, 957; People v. Perry (1969) 271

Cal.App.2d 84, 114-115; People v. Powers

(1967) 256 Cal.App.2d 904, 917.)

In the petition for habeas

corpus, appellate counsel attempts to

meet the thrust of the above cited cases

and seeks to demonstrate that trial

counsel's actions resulted from his™

failure to research the law or investi-

gate the facts in a fashion required by a

diligent, conscientious advocate,

Appellate counsel asserts that "one can

hardly imagine a more damning and preju-

- A-17 -

dicial parade of horrors than the other-

crimes evidence presented in this case,"

and submits that there simply could be no

satisfactory explanation for trial

counsel's inaction. As will appear, the

prosecutor and trial counsel were totally

cognizant of the prejudicial nature of

the evidence and shared appellate

counsel's concerns as to its potential

effect,

Appellate counsel first makes a

reasoned argument based on statutory and

decisional authorities that the evidence

of the two prior murders was inadmissible

on the particular facts of this case or,

if technically admissible, nevertheless

excludable because it was merely cumula-

tive and its prejudicial effect was far

greater than its probative value.

However, since no objection was made to

the evidence, its admissibility as such

is not reviewable. (Evid. Code, § 353,

subd. (a)), and since we conclude that

counsel was not inadequate in his repre-

sentation of defendant, we need not and

will not engage in speculative discourse

on the possible admissibility of the evi-

dence to prove intent, moclive, or

identity, a matter discussed at length in

the briefs of appellate counsel and the

Attorney General.

In the declaration that accom-

panies the petition for habeas corpus

trial counsel states that he made no

objection to the other-crimes evidence

because he thought it was admissible to

show common plan or scheme, “that is,

that the only way to get across country

- A-18 -

was to steal and rob. etd Counsel also

felt that the other-crimes evidence did

not pertain to defendant “because he had

an alibi defense and had said he was not

there."8/ Counsel's explanation is

7. The only indication that

defendant commenced his cross-country

journey with theft and robbery in mind

was his own testimony that he assured

Diana before they started out that "I can

always rob and steal... ."

8. Trial counsel's complete

declaration as to the "other-crimes" was

as follows: "That I made no objection to

the other-crimes evidence nor to the

District Attorney's opening argument

regarding ‘cross-country killings'

because I believed that the evidence was

admissible to show common plan or scheme,

that is, that the only way to get across

country was to steal and rob; that I did

not consider asking the court to sever

irrelevant from relevant portions of the

Other-crimes evidence nor asking the

court to delete the details concerning

the other-crimes evidence; that I believe

there was an in-chambers discussion of

the other-crimes evidence prior to trial

wherein the trial judge had indicated his

willingness to sentence the defendant, on

a plea of guilty, to life without

possibility of parole, an offer which the

District Attorney refused out of hand;

that I did not believe the other-crimes

evidence pertained to appellant because

he had alibi defense and had said he was

not there; that there was no reason for

not limiting the CALJIC instruction

(CALJIC 2.50) regarding the other-crimes

evidence; ..."

- A-19 -

somewhat ambiguous but suggests that he

had tactical reasons for failing to

object.

In the return to the order to

show cause, the Attorney General submits

declarations of both trial counsel and

the deputy district attorney who prose-

cuted the case. Trial counsel states

that 75 percent of his 30 years of prac-

tice has been in criminal law, that he

has represented 75 to 100 defendants

accused of homicide, including 25 who

faced first degree murder charges, and

that he objects to evidence of other

crimes whenever he believes it is in his

Client's interest. Counsel recalled a

pretrial conference at which the subject

of admitting the Kansas and New Mexico

murders was discussed. It was his opi-

nion after that conference that the evi-

dence was admissible, and if not admitted

at the guilt phase, it would be admitted

at the penalty phase.

The declaration of the district

attorney states that it was his pro-

fessional judgment that the jury would

convict defendant without hearing of the

Kansas and New Mexico murders and that

the effect of those murders on the jury

would be enhanced if they were not men-

tioned until the penalty phase. He was

concerned, however, that withholding the

evidence until the penalty phase would be

unfair and, because withheld, might be

barred. He raised the subject at a

pretrial conference, first laying his

case before the court and trial counsel,

showing the court that it would be vir-

tually impossible to separate statements

- A-20 -

of other killings from the letter of con-

fession written by defendant, and indi-

cating that the prior murders were needed

to explain Diana's actions at the time of

the charged crime. There followed a

discussion of possible legal reasons for

admitting the evidence, to show identity,

motive and intent. Defense counsel then

indicated that the defense would be alibi

and noted that he would cross-examine

Diana at least as to the New Mexico

killing.

According to the declaration,

the trial court reviewed that statutory

death penalty procedures and stated that

the prior murders would be admissible

during the penalty phase. Trial counsel

then expressed concern at springing the

other two killings on the jury at such a

late point in the trial and stated that

if they were admissible for any purpose

within the trial they should be presented

during the guilt phase so that both par-

ties could voir dire the jury about them

and lessen the impact by being straight-

forward and honest with the jury from the

beginning.

The uncontroverted facts

described in the declarations of trial

counsel and the prosecutor illustrate

that both had an interest in the timing

of the admissions of the prior murders.

Defense counsel was caught in a cruel

dilemma: If the prior murders were

introduced for the first time when the

jury was considering penalty alone, the

impact would be such as to make the

penalty of death a foregone conclusion.

On the other hand, as noted earlier,

- A-21 -

credibility was a primary factor in this

case, and admissions by Diana that she

accompanied defendant through two

murders, stayed with him, and shared the

proceeds do not tend to enhance her

credibility. Those admissions permit

defendant to paint her a killer capable

of killing Unger and blaming him. We

Cannot say that the trial counsel's

actions were not the product of informed

tactical choice within the range of

reasonable competence.

Defendant makes four assign-

ments of prejudicial error in the rulings

and instruction of the trial court:

Admission of evidence of conspiracy to

kill witness.

Defendant contends that the

trial court erred in permitting the

prosecution, over objection, to cross-

examine defendant and to present rebuttal

evidence concerning his complicity in the

plot to kill Diana.

From the record, we present a

brief chronology of the events leading to

the testimony of Ann Gifford that she

conspired with defendant to kill Diana:

The prosecutor heard from South Dakota

authorities on February 16, 1979, that

Diana might be in danger; she was placed

in protective custody. The prosecutor

heard no more until the night of the 2lst

when he was informed that undercover

agents had tape-recorded a conversation

with Ann Gifford in which she solicited

an agent to kill Diana. On the following

day, February 22, the prosecutor was

- A=-22 -

notified that Ann Gifford had been

arrested and in a statement to police had

implicated defendant in the plan to kill

Diana. Earlier on the same day, February

22, the prosecution had rested its case.

Defense counsel was immediately informed

of Gifford's arrest and the potential

involvement of defendant. Gifford had

been one of the witnesses subpoenaed by

the defense, and when trial recommenced

on February 26 for presentation of the

defense case, defense counsel mentioned

the nonavailability of his first witness,

Gifford, and advised the court of what he

had learned from the prosecutor con-

cerning her arrest and defendant's ;

possible involvement. The court inquired

of the prosecutor whether he intended to

reopen his case-in-chief to introduce the

evidence he had. The district attorney

responded:

"No, your Honor, I do not. The

only time that this information may

become relevant is in regard to potential

bias or prejudice of any other people who

are involved. And obviously, right now

the only person that would include is the

Defendant.

"Realistically, it is the kind

of information that I think that the

aggravation phase is really directed at.

And unless for some reason, and I would

advise the court before getting into it,

unless for some reason the defense case

opened up the subject, I wouldn't antici-

pate getting into this unless the special

circumstances were found true and we pro-

ceeded to the aggravation." (Emphasis

added. )

- A-23 -

The court thereupon told the prosecutor

to keep the defense advised as matters

developed, and the record reveals that

throughout the remaining portion of the

trial the prosecutor did so.

The defense then called its

witnesses, among them the defendant. The

last question on direct examination of

defendant was: "From the time you left

Elk Point until you were arrested in Las

Vegas, did you ever contemplate killing

Diana Geisinger?" Defendant responded in

the negative. The first question on

cross-examination was: "Since the time

of your arrest, have you contemplated

having Diana Geisinger killed?" The

answer was in the negative. Sometime

later, the prosecutor informed the court

and defense counsel that he intended to

cross-examine defendant and if necessary

present other witnesses to elicit evi-

dence of defendant's communications with

Ann Gifford. The evidence was to be

offered to show defendant's efforts to

Suppress evidence, indicating a

consciousness of guilt in the killing of

Unger.

Defense counsel's objection

that the cross-examination would exceed

the scope of direct was overruled by the

trial court. The court noted defendant's

testimony that he had nothing to do with

the crime and ruled that the evidence was

admissible to show consciousness of

guilt. Counsel then objected under

Evidence Code section 352 that the evi-

dence was too prejudicial. After addi-

tional discussion concerning the

intelligibility of Gifford's tape

- A-24 -

recording and the admissibility of evi-

dence concerning the plot to show

consciousness of guilt, the court stated,

"The fact that it might tend to persuade

the jury that the Defendant is guilty is

of course no grounds for keeping it out.

The evidence insofar as it has been

revealed to me appears to have great pro-

bative value. It appears to relate to

the conduct by the defendant, himself,

not to the conduct by other people on his

behalf or unbeknownst to him."9/ About

the same time, the court asked for an

offer of proof as to Ann Gifford's poten-

tial testimony and, before permitting the

prosecutor to proceed with the cross-

examination of defendant, noted ", .. I

am satisfied that the District Attorney

has acted in the utmost good faith from

the very beginning in this matter in fur-

nishing the defense counsel everything he

had, every bit of information that was

available as it became available. And I

would assume that he would continue to do

ie 3 te"

Defendant contends that the

cross-examination violated his privilege

against self-incrimination in that it

exceeded the scope of the direct

9. The court's statement

answers a contention made by defendant on

appeal that the court never ruled on the

section 352 motion. The section 352

motion was renewed when Gifford was

called to the stand. The court denied

the motion, stating "The court feels that

the evidence which has been proposed is

of great probative value and is a proper

subject of inquiry before the jury."

7

- A-25 -

examination. (People v. Schader (1969)

71 Cal.2d 761, 769.) He notes that

defendant never mentioned Ann Gifford in

his testimony and that the question on

direct which concerned contemplation of

harm to Diana related to a fixed period

of time preceding his arrest. The con-

tention is spurious. Although a defen-

dant cannot be compelled to be a witness

against himself (Cal. Const., art. I, §

15), if he “takes the stand and makes a

general denial of the crime with which he

is charged the permissible scope of

cross-examination is very wide cross-

examination does not have to be confined

"to a mere categorical review of the

matters, dates, or times mentioned in the

direct examination. ... A defendant

cannot ... limit the cross-examination

to the precise facts concerning which he

testifies." (People v. Zerillo (1950) 36

Cal.2d 222, 227-229; see also People v.

Saddler (1979) 24 Cal.3d 671, ; People

v. James (1976) 56 Cal.App.3d 876, °

Defendant also contends that

evidence of his alleged participation in

the conspiracy to kill Diana was improper

rebuttal under section 1093, subdivision

4 which provides that after the prosecu-

tion and defense have offered their

evidence, "The parties may then respec-

tively offer rebutting testimony only,

unless the court, for good reason, in

furtherance of justice, permits them to

offer evidence upon their original case."

The thrust of this argument is

that the district attorney acted in bad

faith and withheld evidence of the

- A-26 -

possible conspiracy during the case-in-

chief even though he had knowledge of it

and of defendant's involvement. It is

apparent from the chronology presented

earlier that, although the prosecutor was

aware of some danger to Diana from the

communication on February 1€, it was not

until after he rested his case that he

received evidence of defendant's connec-

tion with the conspiracy. Until that

time, the evidence was irrelevant as to

defendant (see People v. Hannon (1977) 19

Cal.3d 588, 599); and from then on the

prosecutor was entirely candid as to the

potential use of the information and fur-

nished the details to defense counsel as

they became available to him, The trial

court's finding that the prosecutor acted

in good faith is supported by the record,

Defendant cannot legitimately claim

surprise.

Although a crucial witness

known and available to the prosecution

should be cdlled during the case-in-chief

(People v. Carter (1975) 48 Cal.2d 737,

753-754), circumstances may make that

order of proof impossible. The order of

proof lies within the sound discretion of

the trial court (§ 1094; People v. Mosher

(1969) 1 Cal.3d 379, 399), and on the

particular facts of this case we find no

abuse of discretion in permitting the

rebuttal evidence either for impeachment

Or aS part of the case-in-chief out of

order .10/

10. Defendant also challenges

the adequacy of counsel in several

respects in failing to object to rebuttal

- A-27 =

Failure to tailor the instruction

regarding credibility of witnesses.

Although the trial court might

have, or should have, as defendant

asserts, deleted from the instruction

(CALJIC No. 2.20)11/ portions that were

Footnote 10 continued.

evidence. First, as to the testimony of

Gifford, it is urged that counsel should

have objected to the testimony as viola-

tive of the “order of proof" provisions

of section 1093, subdivision 4 in addi-

tion to repeating the motion under

Evidence code section 352 that its preju-

dicial effect outweighed its probative

value. As explained above, the trial

court did not abuse its discretion in

permitting the prosectuion to call Ann

Gifford after defendant's case was

completed. We see no incompetence of

counsel under the guidelines of Pope in

counsel's failure to make the specific

objection that appellate counsel

Suggests.

Second, trial counsel's failure

to object to introduction in rebuttal of

the coveralls allegedly used to muzzle

the gun used to kill Unger does not meet

the level of incompetency decried in

Pope. We see no "potentially meritorious

efense" withdrawn from defendant by

trial counsel's failure to object.

ll. CALJIC No. 2.20 tells the

jury that in determining the credibility

of a witness they may consider any matter

- A-28 -

inapplicable, defendant has failed to

establish a reasonable probability that a

different verdict would have been ren-

dered in the absence of the phrases

complained of.

Denial of motion to voir dire jurors

during trial.

During the trial a newspaper

article reported the alleged conspiracy

to kill Diana. It is contended that the

court's refusal to engage in requested

voir dire constituted prejudicial error.

Defendant's reliance on People v.

Lambright (1964) 61 Cal.2d 482 is

misplaced. In Lambright the judge

instructed the jury they had the right to

read and hear the publicity concerning

the trial but must not consider such evi-

dence in their deliberations. In Lambert

the media published an account of testi-

mony as to statements by defendant

threatening his subsequent victim's life

despite the court's ruling that it was

inadmissible hearsay.

In contrast, throughout the

trial of the case at bar the jury were

admonished not to read newspapers, and

when forewarned that the papers were

going to print an article about the

Footnote 1l continued,

that tends to prove or disprove

truthfulness. Among the listed con-

- siderations are: "His character for

honesty or veracity or their opposites,"

and "His prior conviction of a felony."

- A-29 -

conspiracy, the trial court took special

pains to warn the jury not to read the

press or listen to the radio. In the

absence of any evidence that any of the

jurors failed to heed its admonishments,

we cannot say that the trial court abused

its discretion in determining, after con-

sidering the alternatives, that it would

be best not to emphasize the matter by

polling the jury.12/

Trial court's comments to prospective

jurors.

Defendant contends that com-

ments by the court to prospective jurors

(expense of trial to taxpayers; district

attorney was of opinion that defendant

was guilty; defendant would be subject to

parole on finding of first degree murder

without special circumstance; jury's

decision reviewable by a judge and by

appellate review) were improper and

prejudicial. We reject the contention.

Defendant neither objected to the com-

ments nor has he shown any prejudicial

effect.

12. As stated in Lambright,

"In a case where the jury is correctly

admonished not to receive newspaper or

other extrajudicial reports of the trial,

it may be a proper exercise of discretion

for the trial court to refuse to poll the

jury regarding any specific news media

account of the trial. [Citations.] In

such a situation it may be presumed in

the absence of a showing of misconduct

that the jury heeded the court's

admonition." (61 Cal.2d at pp. 486-487.)

- A-30 -

Each of the comments must be

considered in context: When addressing

the prospective jurors the trial court

outlined in detail the procedures to be

followed and emphasized their obligation

as jurors to make the decision. Although

the court noted in passing that the

jury's decision was subject to reviews by

him and by the Supreme Court, the court

emphasized again and again that the ulti-

mate decision was the jury's.

The court did not, as defendant

charges, repeatedly refer to the

prosecutor's belief in defendant's guilt.

When describing an information, the

"piece of paper" that is prepared by the

district attorney's office, the court

stated several times that the information

was no evidence whatsoever of guilt, that

although somebody "thinks he's guilty" to

start the process, "what we are here for

is to find out whether those charges are

true, not whether somebody thinks they

are true."

On two occasions, while

informing the jurors of the decisions

they would be required to make the court

told the jury that if defendant were

found guilty of first degree murder

without special circumstance the penalty

would be life imprisonment with

possibility of parole. The court in no

way suggested that they consider the

possibility of parole in their

determinations. (Contrast, People v.

Morse (1964) 60 Cal.2d 631, 636, where

the jury was instructed that they might

consider the possibility of parole in

reaching their verdict.)

- A-3l1 -

And, finally, on several occa-

sions prospective jurors or trial jurors

were admonished on their duty to follow

the law and not to engage in misconduct

which might require a mistrial. The

court noted that retrials were difficult

and unfair to the parties and to the

taxpayers. In no way did the court

suggest that the expense of trial was

relevant to defendant's guilt or

innocence,

As noted above, no objections

were made to any of the remarks. And in

view of the overwhelming evidence in sup-

port of the verdict, we discern no

possible prejudice to defendant.

II

ISSUES RELATING TO PENALTY PHASE

In the course of jury

selection, eight prospective jurors

expressed objections to the death

penalty. Defendant contends that exclu-

sion of three of these jurors (Holley,

Hayter and Herkelrath) was contrary to

the standards established in Witherspoon

v. Illinois, supra, 391 U.S. 510, and

deprived him of his constitutional right

to an impartial jury. We agree as to

exclusion of jurors Holley and Hayter.

To determine the juror attitudes

concerning the death penalty, the court

preliminarily remarked to the first two

panels: "Now, back to the problem at

hand. When we come to the business of

the death penalty, the law requires that

- A-32 -

since a jury is going to have to wrestle

with this decision that the jury be able

to wrestle with the decision. It would

not be appropriate for us to have someone

on the jury whose religious beliefs or

moral feelings, or whatever source of

beliefs are such that under no

circumstances, no matter what the facts

were, no matter what happened, could they

even take part in any deliberations that

might lead to a death penalty.

"If anybody has feelings that

are that strong, then obviously, they

should not serve on a jury. Because

before we even start, we are in a posi-

tion where we are going to maybe have a

hung jury or could not possibly arrive at

the possible alternatives no matter what

the evidence shows.

"And I understand that there

are some religions I have heard people

say, that there are some people who for

religious beliefs, whatever they feel

they just cannot take part in any such

deliberations. And I would like a show

of hands of all of you who feel that your

personal convictions or personal beliefs

or whatever are such that you could not

under any circumstances no matter what

the evidence showed, even take part in

the deliberations which might lead to a

death penalty. If so, raise your hands?"

After individual questioning,

two jurors were excused when they affir-

matively voiced the inability to par-

ticipate in deliberations which might

lead to a death verdict, regardless of

the facts or circumstances of the case.

- A-33 -

Thereafter the following

exchanges took place:

"MR. HOLLEY: Your Honor?

"THE COURT: Yes sir?

"MR. HOLLEY: Mr. Holley,

number 37. If the trial came to the

third stage that you spoke of, where

there was a choice between life and death

sentence, does the jury have any degree

of selection there?

"THE COURT: It is absolutely

up to the jury.

"MR. HOLLEY: I mean --

"THE COURT: -- what I'm

telling you, now, has nothing to do with

what your decision would be. That is

entirely up to the jury. All we want to

know is that you would be capable of

taking part in deliberations, which may

eventually end up with the vote for the

death penalty?

"MR. HOLLEY: I don't believe I

could, sir.

"THE COURT: I appreciate that,

Mr. Holley, is it?

"MR. HOLLEY: Yes, sir.

"THE COURT: Thank you, you are

excused, would you go to the jury

assembly room and let them know?

"That was Wesley Holley, number

37.

- A-34 -

"Anyone else? If you have any

feelings that you think would prevent

your taking part in deliberations which

might lead to the death penalty, if your

feelings are that strong, why let us

know.

"Yes, sir?

"MR. HAYTER: Sir, I don't

believe that I could.

"THE COURT: What is your

name? ne

"MR. HAYTER: Hayter,

H-a-yrot-ee-r, 33.

"THE COURT: In the first

group. All right, is this because of

your personal convictions or religious

beliefs or what?

"MR. HAYTER: Religious

beliefs, I'm a born again Christian. I

just don't believe that I could have any

part in sitting in on the electric chair,

sending anyone.

"THE COURT: Incidentally, Mr.

Broderick [defense counsel], I haven't

asked you on these other cases if you

want to question any of these people

further before I excuse them, why if you

let me know, I will give you that

privilege.

"MR. BRODERICK: I will, your

Honor.

- A-35 -

"THE COURT: All right, sir,

thank you, Mr. Hayter. You are excused,

would you go to the jury assembly room

and let them know."

The court asked if there was anyone else,

and there was no further response.

Later, from the third panel,

three jurors were excused who responded

affirmatively to the question whether

their feelings about the death penalty

were such that under no circumstances

would they be able to participate in

deliberations which might lead to the

death penalty. Thereafter, general

questioning resumed, and jurors were

queried as to their association with law

enforcement agents or agencies and

possible bias or prejudice. The

following colloquy ensued with juror

Herkelrath:

"MR. HERKELRATH: I worked for

the City for 25 years. And I am pretty

well acquainted with an awful lot of

policemen at that time and sheriffs.

"THE COURT: What is your name,

sir?

"MR. HERKELRATH: Herkelrath.

"THE COURT: Yes, how long have

you been retired?

"MR. HERKELRATH: Nine years.

"THE COURT: Is there anything

about your having known a lot of police-

men that might affect your decision in

this case?

- A-36 -

"MR. HERKELRATH: Well, I don't

know. I mean, I have never been in that

position. It is hard to answer right off

the top until you hear all the evidence,

But I would hate to sit on a jury that

extensive and I don't mind sitting on

Other types of cases, but a man's life is

at stake. I hate to sit on that kind of

a jury.

"THE COURT: Well, in view of

your background, Mr. Herkelrath, I will

excuse you. Go to the jury assembly room

and let them know."

Defendant contends that Holley,

Hayter, and Herkelrath gave equivocal

responses to the death penalty inquiries

and were improperly excused, that

counsel's failure to object does not

waive the error, and that failure to

object constituted ineffective

representation. As will appear, we agree

as to jurors Holley and Hayter.

Witherspoon holds that prospec-

tive jurors with scruples against the

death penalty may not be excused for

Cause on that basis unless they have made

it “unmistakably clear (1) that they

would automatically vote against the

imposition of capital punishment without

regard to any evidence that might be

developed at the trial of the case before

them; or (2) that their attitude toward

the death penalty would prevent them from

making an impartial decision as to the

defendant's guilt." (391 U.S. at pp.

522-523, fn. 21; emphasis in original.)

We are compelled by Witherspoon

and its progeny to recognize certain

- A-37 -

principles said to flow therefrom. Thus,

expression of scruples against the death

penalty or abhorrence or distaste for

sitting on a jury that is trying a capi-

tal case is not sufficient; the juror

must indicate that his beliefs or

feelings will automatically, whatever the

circumstances, prevent him from voting

for the death penalty or will affect his

determination of the defendant's guilt.

(Id., at pp. 522-523, fn. 21; People v.

Williams (1969) 71 Cal.2d 614, 628;

People v. Vaughn (1969) 71 Cal.2d 406,

416; People v. Risenhoover (1968) 70

Cal.2d 39, 56.) Further, when a seemingly

unambiguous answer follows a question

that is itself vague or unspecific in

Witherspoon terms, the reviewing court

must determine whether there is any

possibility that the juror construed the

question in such a manner as to render

the answer ambiguous in Witherspoon

terms. (Williams, supra, 71 Cal. at pp.

628-629.)13/ And, finally, conclusionary-

type responses or responses hedged by

equivocal phrases such as "I think," "I

don't think" or "I don't believe" have

been held insufficient basis for

exclusion, (People v. Chacon (1968) 69

Cal.2d 765, 772-773; People v. Osuna

(1969) 70 Cal.2d 759; People v. Vaughn,

13. We stated in Williams: ",

. « When a juror is excluded for cause on

the basis of an answer which is not

phrased in these terms [i.e., that would

automatically vote against the death

penalty no matter what the trial might

reveal], his exclusion should be con-

- A-38 -

Supra, 71 Cal.2d at pp. 415-416; In re

Hillery (1969) 71 Cal.2d 857, 863; see

also Maxwell v. Bishop (1970) 398 U.S.

262, 264-265; People v. Stanworth (1969)

71 Cal.2d 820, 835-838; In re Hill (1969)

71 Cal.2d 997, 1016-1019.)

Each prospective juror must

satisfy the requirements of Witherspoon

(People v. Washington (1969) 71 Cal.2d

1170, 1177), and although the context in

which a response is made may add to the

degree of certainty of a juror's response

(People v. Varnum (1969) 70 Cal.2d 480,

493; also People v. Floyd, supra, 1

Cal.3d 694, 723; In re Tahl (1969) 1

Cal.3d 122, 136-137; In re Hill, supra,

71 Cal.2d 997, 1019), “no amount of

reference to responses given by other

veniremen or to comments by the court or

counsel can serve to make certain the

meaning of the venireman's response"

(Hill, supra, 71 Cal.2d at p. 1019) in

the absence of an indication that the

juror intends his answer to state that he

could never impose the death penalty.

With these general principles

in mind and after a few preliminary

comments, we examine the voir dire of

Footnote 13 continued.

sidered erroneous and ground for reversal

of the penalty determination unless it is

Clear ‘beyond a reasonable doubt' that

this error was harmless--i.e., clear

‘beyond a reasonable doubt' that his

answer could only be construed as meaning

the same thing as the answer Witherspoon

requires.“ (Id., at fn. 2.)

- A-39 -

jurors Holley, Hayter, and Herkelrath,

The court itself conducted the entire

voir dire, properly summarized the deci-

sions which the jury would be called upon

to make, and sought affirmance by a show

of hands as to the prospective jurors'

inability to “even take part in

deliberations" which might lead to the

death penalty. Significantly, despite

the apparent affirmance by show of hands

on the part of the first two excused

jurors, the court, as to one of them,

repeated the question whether her opposi-

tion to the death penalty would make it

impossible under any circumstances to

deliberate on defendant's guilt and, as

to the second juror, assured itself that

the juror subscribed to the court's pre-

liminary statement "one hundred per

cent."

Immediately thereafter, juror

Holley raised his hand, whether in affir-

mance or in order to get the court's

attention to propound a question is not

paps A When Holley's question had

been asked and answered, the court did

not repeat the Witherspoon questions as

it had done with the previous jurors, but

14. It is precisely because of

possible ambiguity in the conduct that we

reject the Attorney General's suggestion

that the raising of the hands was

assertive conduct on the part of the

jurors which, in itself, establishes an

unequivocal affirmative answer to the

question sufficient to make it

unmistakably clear they could not be

impartial on the issue of guilt.

- A-40 -

instead stated that all it wanted to know

was whether Holley was “capable of taking

part in deliberations." To this unrefined

question, not phrased in Witherspoon

terms, Holley responded with an

equivocal, "I don't believe I could."

Holley's initial question to

the judge concerned the third, the death

penalty stage of the deliberations. He

wanted to know if at that stage the

jurors had any degree of selection.

After assuring Holley that the choice was

entirely the jury's, the court pressed

for an indication of Holley's

"capability" to engage in deliberations.

By this time it is not clear what deli-

berations are being referred to, and it

is also unclear if Holley construed the

question as an inquiry as to his

feelings, distaste, or abhorrence con-

cerning a capital case or as to his ina-

bility to do other than automatically

vote against the death penalty. The

equivocal question evoked an equivocal

answer. As noted in Williams (71 Cal.2d

at pp. 633-634), the Supreme Court in

Witherspoon spoke with precision, spe-

cifying the ultimate question and

supplying the required answer, and we

must therefore regard “with considerable

suspicion and disfavor any exclusion of a

juror . . . which is not based on a

question phrased in the terms Witherspoon

so unmistakably suggests."

Somewhat reluctantly we hold

that the exclusion of juror Holley was

error.

- A-41 -

Juror Hayter was next.

Apparently Hayter was not among those who

initially raised their hands. But when

the court asked whether any prospective

juror had “any feelings that you think

would prevent your taking part in deli-

berations which might lead to the death

penalty,” Hayter responded "I don't

believe that I could." He then indicated

his religious beliefs ("born-again

Christian") and again stated "I just

don't kelieve Tf could have any part in

sending anyone to the electric chair

[sic]." "I don't believe I can" or "I

just don't believe I could" are not the

unequivocal affirmation required by

California cases interpreting

Witherspoon. (See People v. Velasquez

(1980) 26 Cal.3d 425, 440 ["most

likely"]; People v. Osuna, supra, 70

Cal.2d 759, 769 ["I guess I feel

strongly"]; People v. Chacon, supra, 69

Cal.2d 765, 772 ["I don't think so*];

People v. Vaughn, supra, 71 Cal.2d 406,

415-416 ["I think, IT feel,” °I

believe," "I am afraid"]; People v.

Risenhoover, supra, 70 Cal. d 39, 55-56

T*rI don't know if I could possibly," "I

don't feel I would"] where answers hedged

in quoted phrases were held to be too

equivocal for excusal pursuant to

Witherspoon.) Velasquez and the other

cited cases compel the exclusion of juror

Hayter as well as juror Holley.

Juror Herkelrath presents a

different situation. He was in a third

panel of prospective jurors and did not

come to the court's attention during

Witherspoon questioning. While being

examined concerning his association with

- A-42 -

law enforcement officers and its possible

effect on his impartiality, Herkelrath

gave a very ambiguous response. He stated

he did not know whether it would affect

his decision (“hard to answer right off

the top, until you hear all the

evidence"). Then his emphasis shifted to

the fact that this was a capital case and

his statement thereafter can be

interpreted to mean that his association

could have an effect in this type of

case. He expressed some distaste for

sitting in a capital case but he did not

express opposition to the death penalty

on any grounds nor did he state that it

would affect his vote.

Defendant argues that the trial

court had a duty at this point under

Witherspoon to clarify Herkelrath's

response to avoid any ambiguity as to

whether the prospective juror's concern

for imposing the death penalty was a by-

product of a possible bias in favor of

the prosecution due to his former asso-

ciations or whether he had personal

scruples against the death penalty.

The court excused Herkelrath

because of his "background" which, in

this context, must refer to prior asso-

ciation with law enforcement officials.

Defendant does not contend that the excu-

sal was improper on this ground.

Witherspoon is therefore inapplicable

here,

There remains the question

whether defendant waived the Witherspoon

error as to jurors Holley and Hayter in

failing to object to their excusal. This

- A-43 -

court recently addressed the question in

People v. Velasquez, supra, 26 Cal.3d

425, 443. Under the rule adopted by the

majority in that case, we conclude that

counsel's failure to object to the excu-

Sals here does not bar the claim of

error.

The erroneous exclusion of

jurors Holley and Hayter requires us to

reverse the judgment insofar as it

relates to penalty. We therefore need

not and do not resolve the other conten-

tions raised by the defendant relating to

the penalty trial.

The judgment is reversed inso-

far as it relates to penalty. In all

other respects the judgment is affirmed.

The order to show cause is discharged and

the petition for writ of habeas corpus is

denied.

MANUEL, J.

WE CONCUR:

BIRD, C.J.

TOBRINER, J.

MOSK, J.

RICHARDSON, J.

NEWMAN, J.

%

*.

- A-44 -

corr

PEOPLE v. LANPHEAR

Crim. 20934

LANPHEAR on Habeas Corpus

Crim. 21167

DISSENTING OPINION BY CLARK, J.

I dissent from the majority opi-

nion insofar as it holds defendant did not

waive the Witherspoon 1/ error as to jurors

Holley and Hayter by failing to object to

their excusal. As the majority indicate,

the question whether failure to object

constitutes waiver of Witherspoon error

was recently resolved by this court in

People v. Velasquez (1980) 26 Cal.3d 425.

The decisions of the United States

Supreme Court and of the California courts

have unanimously ruled that Witherspoon

error is not waived by mere failure to

object." (Id., at p. 443.) 2/

As will be shown, the cases

cited do not support this proposition.

1. Witherspoon v. Illinois

(1968) 391 U.S. 510.

2. I joined Justice Richardson

in dissenting in Velasquez on the ground

there was no Witherspoon error.

Therefore, I did not find it necessary to

reach the waiver question in that case.

- A-45 -

Review on appeal is not

precluded by failure to object at trial

when the law is substantially changed in

the interim. (See, e.g., People v.

De Santiago (1969) 71 Cal.2d rs 22-23.)

All of the cases cited by the Velasquez

majority are examples of the operation of

this principle. Witherspoon substantially

changed the law. (In re Anderson (1968)

69 Cal.2d 613, 618-619.) All Of the cases

cited by the Velasquez majority were tried

prior to Witherspoon. Therefore, failure

to raise a Witherspoon objection at trial

was excused on appeal in these cases,

expressly or impliedly, on this ground.

The relevant portion of the Velasquez

majority opinion follows.

"Shortly after Witherspoon, the

United States Supreme Court reversed and

remanded two cases in which the

Witherspoon error was raised neither at

trial nor On appeal. (Maxwell v. Bisho

(1970) 398 U.S. 262 [26 L.Ed.2d 221, 90

S.Ct. 1578]; Boulden v. Holman (1969) 394

U.S. 478 [22 L.Ed.2d 433, 89 S.Ct. 1138].)

The court then granted certiorari in State

v. Wigglesworth (1969) 18 Ohio St.2d 171

[47 Ohio Ops.2d 388, 248 N.E.2d 607], in

which the Ohio Supreme Court had held the

defendant waived Witherspoon error (see

248 N.E.2d at pp. S136), and reversed

per curiam, citing Witherspoon, Maxwell v.

Bishop, supra, and Boulden v. Holmen,

supra. CH lesworth v. Ohio (1971) 403

U.S. 947 [29 L.Ed.2d 857, 91 S.Ct. 2284].)

Harris v. Texas (1971) 403 U.S. 947 [29

L.Ed.2d 859, 91 S.Ct. 2291], also sum-

marily reversed a lower court decision

holding that failure to object waived

Witherspoon error. [4] The California

- A-46 -

decisions similarly reject waiver of

Witherspoon error. (See People v.

Risenhoover, supra, 70 caT-2d 39, 56; In_

re Anderson (1968) 69 Cal.2d 613, 618-619

173 Cal.Rptr. 21, 447 P.2d 117].)" (26

Cal.3d at p. 443.)

First, the California cases

cited will be examined. In In re

Anderson, supra, the defendants’ failure

to raise a Britt tenten objection below

was excused on the following ground:

"It is obvious that Witherspoon made a

material change in the law in this state.

Since petitioners were tried before

Witherspoon, failure to object to the

exclusion of the prospective jurors in

question does not bar petitioners from now

Claiming error." (69 Cal.2d at p. 619.)

In People v. Risenhoover, supra, because

the frist also obviously occurred prior

to Witherspoon, failure to object in the

trial court to the exclusion of prospec-

tive jurors was excused in reliance on

Anderson. (70 Cal.2d at pp. 55-56.)

Examination of the United States Supreme

Court cases cited reveals that they, too,

were all tried prior to Witherspoon.

(Maxwell v. Bishop, supra, 398 U.S. 262,

264; Boulden v. Holman, supra, 394 U.S.

478, 484, fn. 8; State v. Wigglesworth,

supra, 18 Ohio St.2d 171, ; Harris v.

State (Tex.Cr.App. 1970) 457 S.W.20 903,

Significantly, the Velasquez

majority did not mention the cases which

have held that Witherspoon error is

waived by failure to object. (Boulware

v. State (Tex.cr.App. 1976) 542 S.W.2d

677, 602-683, cert. den., 430 U.S. 959;

- A-47 -

Shippy v. State (Tex.Cr.App. 1977) 556

S.W. 246, 251, cert. den., 434 U.S.

935; Von Byrd v. State (Tex.Cr.App. 1978)

ab OE ES; OSE cect. Oak, 38k 48.

967; Clark v. State (Ark. 1978) 573

S.W. 2d 622, 625-626.)

In People v. Rogers (1978) 21

Cal.3d 542, 548, we reiterated "the

general rule that questions relating to

the admissibility of evidence will not be

reviewed on appeal in the absence of a

specific and timely objection in the trial

court on the ground sought to be urged on

appeal. [Citations.] The contrary rule

would deprive the People of the oppor-

tunity to cure the defect at trial and

would ‘permit the defendant to gamble on

an acquittal at his trial secure in the

knowledge that a conviction would be

reversed on appeal.' (Coy v. Superior

Court (1959) 51 Cal.2d 77, 473 [334-P. 20

569].) For the same reason a Miranda

issue, for example, may not be raised for

the first time on appeal. ([Citations.]"

Analogously, a Witherspoon con-

tention should not be reviewed on appeal

in the absence of objection below. The

contrary rule encourages defense counsel

to “sandbag" the trial judge. For

example, this judge expressly invited

defense counsel to further question

prospective jurors before they were

excused. Had counsel availed himself of

this opportunity, the error of which he

now complains might have been prevented.

But counsel remained silent. Indeed,

Silence is golden in these circumstances,

for counsel cannot lose by it. Either

his client is acquitted or sentenced to

- A-48 -

life imprisonment, or the death penalty

is reversed on appeal for Witherspoon

error,

In the urgency clause of the

1977 death penalty statute, the

Legislature stated: "The California

Supreme Court has declared the existing

death penalty law unconstitutional. This

act remedies the constitutional infir-

mities found to be in existing law, and

must take effect immediately in order to

guarantee the public the protection

inherent in an operative death penalty

law." (Stats. 1977, ch. 316, § 26.)

In reality, the public still does not

have the protection inherent in an opera-

tive death penalty law. Three years

later, this court has yet to uphold a

single death penalty judgment.

Thus far, four cases arising

under the 1977 statute have been

reviewed; in all four -he death penalty

has been reversed. (People v. Teron

(1979) 23 Cal.3d 103; People v. Frierson

(1979) 25 Cal.3d 142; People Vv.

Velasquez, supra, and the present case.)

In two of those four cases--Velasquez and

this case--the reversals were predicated

on Witherspoon error despite failure to

object on that ground at trial. It is

therefore probable that Witherspoon error

will now be claimed in virtually every

one of the some 30 death penalty cases

presently pending before us. I reluc-

tantly conclude that it is also probable

the will of the People will continue to

be thwarted.

- A-49 -

The judgment convicting defen-

dant of first degree murder and imposing

the penalty of death should be affirmed.

CLARK, J.

APPENDIX

B

= Bo) «

Order Due

June 9, 1980

ORDER DENYING REHEARING

[Filed May 14, 1980]

Crim. No. 20934

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

PEOPLE

Ve

LANPHEAR

IN RE LANPHEAR ON HABEAS CORPUS

petitions

for rehearing DENIED.

Clark, J., is of the opinion that

the petition should be granted.

Application for stay is denied,

BIRD

Chief Justice