San Diego County Super. Ct. No. CR47283 County: San Diego Judge: David M. Gill.
The opinion of the court was delivered by: Moreno, J.
On January 5, 1981, a jury found defendant Bernard Lee Hamilton guilty of the murder of Eleanore Buchanan (Pen. Code, § 187),*fn1 and of robbery (§ 211), kidnapping (§ 207), and burglary (§ 459). The jury found true special circumstance allegations of robbery, kidnapping, and burglary. (§ 190.2, subd. (a)(17)(A), (B), (G).) After a penalty trial, the jury returned a verdict of death, and the court imposed judgment accordingly.
On direct appeal, this court affirmed the judgment of guilt but set aside the special circumstance findings because of instructional error under Carlos v. Superior Court (1983) 35 Cal.3d 131, and reversed the sentence of death. (People v. Hamilton (1985) 41 Cal.3d 408 (Hamilton I).) The United States Supreme Court vacated the judgment and remanded the case to this court for further consideration in light of Rose v. Clark (1986) 478 U.S. 570. (California v. Hamilton (1986) 478 U.S. 1017.) This court again affirmed the judgment of guilt and, contrary to the determination in Hamilton I, concluded the special circumstance findings must be upheld under People v. Anderson (1987) 43 Cal.3d 1104, 1147 (overruling Carlos v. Superior Court, supra, 35 Cal.3d 131), and affirmed the penalty judgment of death. (People v. Hamilton (1988) 45 Cal.3d 351.) On March 22, 1994, the Court of Appeals for the Ninth Circuit reversed the penalty judgment because of instructional error under Boyde v. California (1990) 494 U.S. 370, 380, and remanded the case to the trial court for a penalty phase retrial. (Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149.)
On December 13, 1995, after the penalty phase retrial, at which defendant represented himself, the jury returned a verdict of death. The court denied a motion for a new trial and the automatic application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).)
For the reasons that follow, we affirm the judgment.
Defendant kidnapped and murdered Eleanore Buchanan after she left a night college math class in San Diego. He dismembered her body, disposed of her headless and handless corpse in California, and drove to Texas and Oklahoma where he was caught driving her stolen van.
Defendant represented himself at the penalty retrial; throughout the trial, however, counsel appointed to assist defendant conducted the majority of the voir dire, examination, and arguments.
A. The Prosecution's Case
In the penalty phase retrial, the prosecution introduced as evidence in aggravation under section 190.3 the facts and circumstances of the underlying capital crime, evidence of 10 incidents of criminal activity involving force or violence or the threat of force or violence, and victim impact evidence. In most respects, the evidence presented differed little from that presented at the earlier trial.
a. The Events of May 30, 1979 to June 8, 1979
On May 30, 1979, 24-year-old Eleanore Buchanan, known as "Fran," attended an evening math class that was scheduled to meet from 7:00 until 10:00 p.m. at San Diego Mesa College. Because she had missed several classes due to the birth of her second child, she chose not to take an optional quiz, given at approximately 9:15 or 9:30 p.m., and left the class. She was last seen walking toward the campus parking lot or a nearby street. She had driven the new blue van she and her husband Terry Buchanan had purchased weeks earlier; Terry used the van during the day to make deliveries for a dental lab.
About 1:30 p.m. the following day, May 31, 1979, Harry Piper, a target shooter, discovered a body, later identified as that of Eleanore Buchanan, in a culde-sac in Pine Valley,*fn2 south of Interstate Highway 8. The head and hands were missing and there were ligature marks on the ankles and wrists.
Forensic pathologist Dr. Joseph Luibel, who conducted the autopsy, testified the cuts around the head and right hand were smooth and consistent with marks made by a saw, while the cut on the left wrist was consistent with having been made by a knife. All of the amputation marks were consistent with having been made by someone without much knowledge of anatomy and with rudimentary knowledge of the use of a knife and saw. Although the body was exsanguinated, he was unable to determine with certainty the cause of death, and noted several post-mortem wounds to the chest and abdomen. He noted that when the body was discovered, it was lying on its back and both forearms were raised several inches off the ground, a common result of rigor mortis. Based on an examination of the stomach contents he concluded the victim died between 10:00 and 10:30 p.m. on May 30, 1979. Based on the stage of rigor mortis and the condition of the forearms at the time of discovery, he concluded the body was left in Pine Valley approximately six hours after death, or between 4:00 and 4:30 a.m. on May 31, 1979.
Defendant lived with his parents on Comstock Street in Linda Vista, California, approximately one mile from San Diego Mesa College. Donna Hatch lived in Terrell, Texas. She and defendant had corresponded since 1973, and first met in person in 1976. Telephone records from the Hamilton residence in Linda Vista revealed that at 1:52 a.m. on May 31, 1979, just hours after Eleanore Buchanan's classmates last saw her alive, defendant telephoned Hatch. Hatch testified defendant told her he planned to head for Texas that morning after he got some gas. During the evening of June 1, 1979, defendant showed up at Hatch's house in Terrell, Texas, driving a van. Hatch noted that the van had a broken window, a broken armrest, and a bent inside curtain rod. The next day, Hatch and her sister, niece, and daughter drove with defendant to Oklahoma and Ft. Worth, Texas, and back to Terrell, Texas, stopping to sleep at a rest stop where defendant used Buchanan's credit cards to buy gas. On June 4, 1979, defendant and Hatch stopped at a phone booth near a hotel where defendant made two telephone calls. After the second call, defendant's demeanor changed and he became nervous.*fn3
Hatch overheard defendant say he had traveled to Texas by airplane, which she knew to be untrue, and that "he thought he had killed somebody," or thought he had killed "a man." Defendant asked Hatch to go to a car lot and steal Texas license plates to exchange with the California plates on the van, but she refused. Defendant and Hatch talked about his former wife; defendant had led her to believe that his former wife was dead, but on this day he told her she was alive. When Hatch became upset about the lie, defendant asked her if she wanted him to kill his former wife. Hatch decided to end her relationship with defendant.
On June 8, 1979, from Greenwood, Louisiana, defendant phoned Hatch at her house. Her grandmother answered the phone, and when Hatch got on the line, she heard defendant say, "I'll kill you, too."
On June 8, 1979, the use of Terry Buchanan's credit card at a Stuckey's restaurant in Marietta, Oklahoma triggered an alert to the Love County Sheriff's Office to be on the lookout for the Buchanans' blue Dodge van bearing Oklahoma license plates. Officers thereafter found defendant driving the van. Upon his arrest, defendant told the officers he got the van from a friend of his sister in Oklahoma City. Love County Sheriff's deputies searched a site south of Marietta and, in a pile of dumped trash, found fast food wrappers, unset false teeth, dental equipment, literature and pamphlets dealing with dental supplies, a Texas Department of Public Safety traffic warning slip bearing defendant's name and dated June 7, 1979, a collection of school notes and a quiz from a math class, a license plate bracket that said "National City, Stanley Dodge" (the dealership where the Buchanans purchased the van), and credit cards, courtesy cards and receipts bearing Eleanore Buchanan's and Terry Buchanan's names and bearing signatures that were not in Terry Buchanan's handwriting.
A sheriff's deputy found a saw, two shanks of rope, a butcher knife, a screwdriver, credit cards, a spiral notebook entitled "Math 118," and a handwritten note addressed "Look, Donna" inside the van.
Blue fibers from the carpet in the van matched fibers found on top of Eleanore Buchanan's abdomen, on her socks and feet, and on the exposed bone of her right wrist. The rear of the van had a couch seat spanning the two rear fender wheel wells; the seat folded up to reveal the spare tire and additional storage space. San Diego County Sheriff's officers found a "fairly extensive" bloodstain on the inside, top, and side carpeting covering the right fender wheel well and running down over the edge of the fender wheel well onto the flat surface of the carpet bed and van floor underneath the couch seat; blood drops on the rim and wheel of the spare tire; blood on the couch rail; two small bloodstains in the middle of the van forward of the couch seat and behind the driver's seat; and blood on the inner right toe of a pair of shoes identified as belonging to defendant. A total of approximately one unit of blood was found in the van. Using blood-type group characteristics, Criminalist Brandon Armstrong opined that Eleanore Buchanan's blood was consistent with the blood found inside the van: The samples of Buchanan's blood taken at the autopsy, the blood taken from the couch rail of the van, and the blood taken from the carpet in the van were all of blood group "O," and each of the three samples contained identical enzymes and serum proteins. The blood found on defendant's shoe inside the van could only be tested for blood type, and was found to be type "O." Defendant's blood was type "A."
Armstrong testified that the one unit of blood found in the van, which was approximately one-twelfth the amount of blood in a human body, was inconsistent with the amount of blood he would have expected to find had the body been dismembered inside the van. He believed the body had been transported inside the van on top of the spare tire in the wheel well.
Tire marks, compressed grass, drag marks, and blood on the berm of the cul-de-sac in Pine Valley where Eleanore Buchanan's body was found indicated something heavy had been dropped and dragged away from the middle of the tire tracks. Several sets of tire tracks were found at the scene; none matched the tires on the Buchanans' van and none was definitively connected to the Buchanan murder.
c. The Crawford interviews Detective Crawford of the San Diego County Sheriff's
Department interviewed defendant on June 9 and 10, 1979, in the Love County Sheriff's Office in Oklahoma. Crawford made audiotapes of each interview, and the prosecution played both tapes during trial and gave each juror a written transcript of each tape. In the first interview, defendant said he ran into Calvin Spencer, also known as "Spider," a friend whom he had not seen since 1973, and Spider's "old lady," Fran, at College Billiards in San Diego on Wednesday, May 30, 1979. Fran had left her husband, and she and Spider were driving across the country. Defendant, who told Spider and Fran he would like to do some traveling, agreed to travel with them. Defendant told them he had no money, and Spider and Fran said they would take care of expenses. Defendant told Crawford he thought he might be able to make some money with a "check writer" machine he brought with him from home.
Defendant told Crawford he, Spider and Fran drove to his parents' house in Linda Vista to pick up his clothes and shoes before leaving San Diego. They drove east on Interstate Highway 8, using Fran's and her husband Terry's credit cards to buy gas along the way. Throughout the trip, all three of them signed the credit card receipts.
Defendant told Crawford he dropped off Spider and Fran in Shreveport, Louisiana, after Fran gave him permission to drive the van on his own to his cousin's house in Oklahoma City. Fran and Spider were to call him there the following day. Fran also left the credit cards with defendant for him to use "for gas and stuff along the way." Defendant explained that Spider had exchanged the California license plates on the van for Oklahoma license plates in order to minimize any difficulty defendant might encounter in using the Buchanans' credit cards at gas stations when Fran would not be there to vouch for his use of the cards. Defendant first learned there was something wrong when he tried to use one of the credit cards at the Stuckey's restaurant in Marietta, Oklahoma, and the cashier called the police.
Defendant said he bought the butcher knife sheriff's deputies found in the van at a variety store in Shreveport, Louisiana, explaining that he thought he might need some protection on the road and, since he was "an ex-con," he could not purchase a gun. He denied purchasing the saw and rope found in the van, and denied picking up any hitchhikers along the way.
Defendant acknowledged that Terry Buchanan's name was on the credit card he used. He told Crawford that Spider sometimes referred to Fran as Eleanore, that a photograph of Eleanore Buchanan holding her newborn baby, shown to him by Crawford, looked like Fran, and that Fran was wearing light-colored jeans and carrying a beige cloth purse when they were traveling. He said he last saw her in Shreveport, Louisiana, on Thursday, June 7, and she was alive, well, and hiding from her husband.
In the second interview, conducted the next day on June 10, 1979, defendant told Crawford that earlier in the evening of Wednesday, May 30, 1979, before going to College Billiards where he met Spider and Fran, he visited a friend, Theresa, at her house in San Diego. Theresa then drove him to the house he shared with his parents, where he stayed until at least 9:00 p.m. Five or 10 minutes later, without speaking to his parents, he left and "went down the road hitchhiking." He then walked to College Billiards, arriving shortly before 10:00 p.m. There he ran into Spider, whom he had not seen in "quite a few years." They discussed defendant's desire to get some paper with which to print up and write bad checks on the check writer, and defendant suggested that Fran would cash the checks he wrote. He also stated that he brought the butcher knife from his parents' home, and he did not remember telling Crawford the day before that he had bought the butcher knife in Shreveport, Louisiana. He also said he might have bought it in Benson, Arizona. He acknowledged police in Texas had stopped him for speeding and issued him a warning ticket while Spider and Fran were with him.
Defendant told Crawford he never went near San Diego Mesa College on the night of May 30, 1979; he hadn't seen any blood in the van but any blood found there was his; and no crime had been committed but the police "just got stuck with a corpse and a runaway wife."
d. Defendant's Testimony in the First Trial
The prosecution read into the record defendant's testimony from the first trial; there, defendant admitted stealing the Buchanans' van and forging Terry Buchanan's name on credit card receipts, but denied knowing, seeing, or ever coming into contact with Eleanore Buchanan, alive or dead.
Specifically, in the first trial defendant testified that around noon on May 30, 1979, he walked from his home to his doctor's office to receive treatment for a cut on his right hand. He then walked toward his home but before he got there his friend Theresa Roch picked him up in her car. They drove to several locations before stopping at Jean Zimmerman's house, where they stayed until 7:00 or 7:30 p.m. when he left to return home. He got into the car of another friend, Johnny Renault, who drove first to the Linda Vista shopping center, where defendant got out and talked to friends for five minutes before walking home. He got home around 8:00 p.m.
Around 9:00 or 9:10 p.m., his friend Clifford Harris stopped by. Defendant and Clifford left around 9:10 p.m. and walked several blocks to his sister-in-law Carolyn's house. He stayed there for 25 or 30 minutes. When he left, he walked alone to a Minute Mart store, where he bought a beer. He ran into a security guard he knew, Butch Smith, talked for a moment, and then walked home. He saw no one when he got home, and went to his room where he listened to the radio and wrote poetry for a "couple of hours." He again left the house sometime after 12:00 a.m. to go to a 7-Eleven Store where he bought cigarettes and saw his friend Butch McIntyre. He saw a police car and, because he knew there were traffic warrants for his arrest, he took another route home.
Defendant claimed he first saw the Buchanans' van around 1:00 a.m. on May 31, 1979, parked on Tait Street in Linda Vista when he was walking from the 7-Eleven store on Linda Vista Road. He peered inside and saw a purse on the passenger seat. He found the van unlocked, opened the door and reached for the purse. He saw the keys in the ignition and because he "didn't feel like walking," drove it home.
Defendant called Donna Hatch, his fiancée, who lived in Texas and was a prospective witness in a criminal case defendant had pending in San Diego involving a 1976 crime. He earlier had made plans to go to Texas to visit Hatch, and after he stole the van he decided to use it to get there. He went through the purse he found in the van, kept the credit cards, and packed some clothes and shoes. By the time he left his parents' house in the van, it was "nearly light." He drove east on Interstate 8,*fn4 stopping for gas in El Cajon. He tossed the purse out of the window in El Centro, after he turned onto Interstate 10, and drove to Terrell, Texas.
Defendant admitted that when Detective Crawford first interviewed him after his arrest, he made up the story about driving across the country with Spider*fn5 and Fran because he stole the van and "didn't want to get stuck with auto theft." He testified that he intended to burglarize several stores in Terrell, Texas, and to that end bought a saw, a wrench set, and a screwdriver. He admitted that he bought the butcher knife and rope on June 7, 1979, in Lewisville, Texas, because he planned to abandon the van in a wooded area near Shreveport, Louisiana, and use the knife and rope to cut and tie bushes to camouflage the van from view so he could leave inside items taken during the burglaries; he would then fly home. He admitted he told Donna Hatch he "may have killed a man," but he did so in order to distract her from the lies he told her about his former wife. Defendant testified that he exchanged the California license plates for Oklahoma license plates while he was in Oklahoma City because "I always do that the week after I'm driving a stolen vehicle." He identified the shoes found in the van as his, and denied ever seeing blood on the shoes or anywhere inside the van.
Defendant acknowledged that in June 1979, before the preliminary hearing, he wrote a letter from the San Diego jail to Terry Buchanan in which he said, "Fran is not dead! . . . She is alive and either in Shreveport, Louisiana or Oklahoma City with a guy named Calvin Spencer . . . you are probably full of grief when you should be highly pissed off . . . Fran might be somewhere all wacked off from P.C.P. and about to get into some really serious trouble with Calvin." He also acknowledged that these statements were lies, and explained he wrote the letter because he did not trust his appointed counsel or the district attorney's office, and "it was my hope that if I present such a letter and was convincing enough that I might possibly . . . get Mr. Buchanan to get the FBI to investigate to determine whose . . . body was found out there. Because I didn't think my luck was bad enough to have stolen a homicide vehicle."
He admitted he wrote several letters to Theresa Roch in June 1979, asking her to pretend she was Eleanore Buchanan and to call Terry Buchanan and the television news stations and tell them she was still alive. He also wrote a letter to a friend, B.J. Brown, asking him to tell the police that "I came to your house on June 1, 1979, with a Black dude and his lady . . . his name was Spider and his lady was Fran. It's very important that you remember this because I need witnesses who can say they saw me with these two people in that blue van."
2. Other Criminal Acts Involving Force or Violence or Threats of Force or Violence
a. Assault of Beverly Manning Beverly
Manning met defendant in Shreveport, Louisiana, when she was a teenager. On two occasions, when Manning refused to go somewhere with defendant, defendant threatened her with a weapon; in Louisiana he pulled a gun on her, and in California he held a knife to her throat.
b. Assault and robbery of Ruth Story
On November 7, 1976, defendant and Beverly Manning assaulted 55-year-old Ruth Story of Linda Vista while she was walking home from the grocery store. Defendant hit Story in the face with his fist, knocked her to the ground, tore away the purse Story had attached to her cane and wrist, pulled Story on her stomach to the curb, and ran away. Story suffered a broken cheekbone, required plastic surgery to correct injuries to her jaw, and stayed in the hospital for a week.
c. Assault of Kenneth Dotson and Frank Auer
In the fall of 1976, defendant, in the company of Beverly Manning and Jerre Brown, stole a television set from a hotel at a truck stop in Louisiana and sold it to Jerre Brown's mother for $90.
Defendant stood trial for the burglary in March 1977, in Shreveport, Louisiana. Kenneth Dotson, Jerre Brown's brother, testified for the prosecution. During the pendency of the trial, while in a secured area of the jail, defendant jumped on and hit Kenneth Dotson, who fell against his attorney, Frank Auer, knocking both to the ground. Defendant continued to hit Dotson four or five more times until stopped by sheriff's deputies.
d. Assaults on Jerre Brown
In December 1976, defendant, Jerre Brown, and Beverly Manning were in jail in Shreveport, Louisiana, under arrest for the burglary of the truck stop hotel. Defendant asked Brown and Manning, who were both juveniles at the time of the burglary, to take full responsibility for the burglary in order to exonerate him. Brown instead told the truth about the burglary and gave testimony unfavorable to defendant. While in a holding cell with 40 other inmates awaiting transportation to the courthouse from the jail, defendant attempted to stab Brown in the head with a pen, requiring the guards to spray mace on both of them. Later, at the courthouse, defendant hit Brown in the face with his fist, knocking him against the wall.
e. Assault on Rosie Blackmon
In early 1979, defendant was dating Rosie Blackmon, who drove a taxi and was going to truck driving school. They spent a night in a motel and when Blackmon tried to leave the following morning to go to school, defendant told her she could not leave and punched her in the head five or six times. Later, when she tried to end the relationship, he stalked her and eventually assaulted her on the street, knocked her to the pavement and kicked her in the head.
f. Threats of violence to Frank Sexton, Thomas McArdle, Patrick O'Connor, and Brandon Armstrong
On July 6, 1979, defendant wrote a letter to Theresa Roch from the San Diego County Jail in which he threatened to "take out" his trial counsel, the two prosecutors, the prosecution's criminalist and their families if he were to be convicted.*fn6
g. Assault on Thomas Ryan
On September 17, 1980, defendant assaulted Thomas Ryan, the attorney who represented him in the first trial, in the San Diego County Jail. Defendant had asked Ryan to visit him in the jail that evening. When Ryan arrived at the visiting room at 6:30 or 7:00 p.m., he sat down on a small stool and waited for defendant. Defendant entered the room, approached Ryan and began to hand him a set of papers. Before he could take the papers, defendant struck him in the jaw with what Ryan described as a "very hard blow," a "sucker punch," which knocked Ryan to the floor. Defendant said nothing. Before Ryan could get up, defendant turned and left the room. Ryan testified that during the 20 years in which he practiced criminal defense and represented 500 or more clients, 25 or 30 of whom were accused of murder, none had ever punched him in the face.
h. Assault on Patricia Robinson
On a Sunday morning in September 1980, defendant assaulted Patricia Robinson, a paralegal hired to assist Ryan in the pending capital trial. Robinson had visited defendant numerous times to help prepare for trial and met with him in the attorney visiting room. At the end of the visit that morning, as Robinson got up to leave, defendant grabbed her and said, "No, no. Stay longer." She again tried to leave and defendant blocked her exit. He grew agitated and said, "Well, I could rape you." She kicked the arch of his foot and punched him, but he did not respond. She started yelling for help from the guards and tried to pull aside the privacy curtain that was covering the window in the door. Defendant slammed her against the window and put his hands around her neck and mouth, and Robinson started to lose consciousness. Defendant had control of her arms and legs, but she managed to bite his finger. Defendant released her and said, "You bit me, I'm bleeding." Robinson managed to leave the room, and thereafter had bruises on her arm, legs and throat. She testified she thought she would die that day.
i. Assault on William Hanson and Johnnie Christiansen
On October 8, 1980, defendant assaulted San Diego County Sheriff's Deputies William Hanson and Johnnie Christiansen in his cell at the San Diego County Jail. Defendant refused to get out of bed to come to court. When one of the deputies pulled off defendant's blanket, defendant leaped up, backed into the corner and assumed a fighting stance with his arms and fists raised. He told the deputies, "If you want . . . me to go to court you're going to have to take me to court." The deputies grabbed defendant, forced him out of the cell and up against a wall, and placed waist and leg chains on him. Defendant resisted and struggled before the officers gained control. As the deputies led defendant down the hall, he continued to resist and spat on Hanson's face.
3. Victim Impact Evidence
The prosecution presented several witnesses who testified to the impact of Eleanore Buchanan's murder on her family, particularly on her husband Terry Buchanan, who died of coronary heart disease in 1994 before the penalty retrial. These witnesses included Eleanore's mother and grandmother, Terry's mother, Eleanore and Terry's sons Jason and Joseph, neighbors and friends, and the former prosecutor. This evidence is discussed in detail below. (See III.G., post.)
B. Defendant's case in mitigation
Defendant presented evidence aimed at showing a lingering doubt of his guilt of the murder of Eleanore Buchanan, the artwork he produced during his incarceration, his positive adjustment to prison life, and his family history.
Defendant argued that, notwithstanding the guilty verdict in the first trial, there existed evidence in support of a lingering doubt as to his guilt of the capital crimes, warranting a penalty of less than death.
Defendant testified in his own defense, offering essentially the same testimony he gave at the first trial: He denied killing Eleanore Buchanan. He denied ever seeing her, alive or dead, but admitted he stole her van and used her credit cards to travel to Texas in order to pick up Donna Hatch and make money committing burglaries. He admitted he made up the "Spider and Fran" story when first questioned by Detective Crawford in an attempt to avoid being charged with forgery and taking a stolen vehicle across state lines.
Defendant offered the testimony of investigators and forensic scientists to challenge the prosecution's physical evidence. He argued the prosecution had not established that the Buchanans' van made the tire marks at the cul-de-sac in Pine Valley where the body was found, and he challenged the prosecution's conclusion that the body was transported to Pine Valley inside the Buchanans' van.
Several witnesses testified they were with defendant at various times during the night of Eleanore Buchanan's murder.
2. Artwork Numerous Witnesses Testified Regarding artwork Defendant Made While on Death row in San Quentin State Prison
Some saw the artwork in the prison gift shop; others saw it displayed at private parties or conferences held in support of the abolition of the death penalty. Many were impressed with the artwork's beauty. Others were impressed with the gentility, grace, humanity, "plea for racial harmony" and "message of brotherly love" they saw revealed in the work.
3. Adjustment to Prison Life James
Park, former associate warden of San Quentin State Prison, reviewed defendant's prison records and gave his opinion that if the jury returned a verdict of life without the possibility of parole, prison officials would house defendant in a maximum security prison and defendant would not pose an escape risk or a risk to the safety of other inmates or correctional officers.
An artist who worked as a teacher and art facilitator at San Quentin State Prison testified defendant was a dedicated and serious art student who was ambitious, talented and had a particular style. Defendant had painted portraits on commission.
Another art teacher who worked at San Quentin State Prison testified that art programs in prisons had positive effects on inmates, and a sentence of life without the possibility of parole served at a maximum security prison would allow defendant to continue to paint and to help other inmates learn to paint.
4. Family History Christopher and Ernest
Hamilton, defendant's brothers, testified they had a normal relationship with defendant while they were growing up. The family was close and their parents created a safe and diverse environment. Hazel Hamilton, defendant's mother, testified she and defendant's father, Ernest Hamilton, Sr., were devoted to their church and family and raised their children in a loving household. She and defendant communicated regularly since his incarceration, and he sent her drafts of his artwork for her to critique. Bernard Hamilton II, defendant's son, testified he did not know his father well when he was young, but since defendant's incarceration, they corresponded regularly and had gotten to know each other. Finally, Reverend Forest Hancock testified that when defendant was 15 years old he started coming to the Freewill Missionary Baptist Church in San Diego. Hancock recognized that defendant was "a good kid" with leadership abilities and other children looked to him for help. Hancock noticed a change in defendant's demeanor after defendant divorced his first wife.
A. Restriction on Voir Dire
Defendant first claims the trial court improperly restricted him from questioning three prospective jurors about specific biases they may have had related to the facts of the case, and thereby violated his federal and state constitutional rights to due process and a fair trial. We conclude the trial court did not err.
"Prospective jurors may be excused for cause when their views on capital punishment would prevent or substantially impair the performance of their duties as jurors. (Wainwright v. Witt (1985) 469 U.S. 412, 424.) 'The real question is " ' " 'whether the juror's views about capital punishment would prevent or impair the juror's ability to return a verdict of death in the case before the juror.' " ' " ' [Citations.]" (People v. Cash (2002) 28 Cal.4th 703, 719--720.) We have explained, however, that "death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. [Citation.] In deciding where to strike the balance in a particular case, trial courts have considerable discretion. [Citations.] They may not, however, . . . strike the balance by precluding mention of any general fact or circumstance not expressly pleaded in the information." (Id. at pp. 721--722.)
The questionnaire informed the jurors that "[i]n this case a young woman who attended Mesa College was murdered on May 30, 1979. Her decapitated body was found the next day in Pine Valley, about 45 miles east of San Diego. The defendant, Bernard Hamilton, was arrested about a week later in Oklahoma while driving the victim's van." The court orally informed the jurors that the jury in the first trial convicted defendant of murder in the first degree, robbery, burglary and kidnapping, and found true the special circumstances of robbery, burglary and kidnapping.
1. Prospective Juror M.F.
During voir dire, defendant's counsel asked of Prospective Juror M.F., a mother of eight who home-schooled her children and was still nursing the youngest, "You know that in this case in the course of a robbery, burglary and kidnapping a young mother was killed, and another jury has found Mr. Hamilton did that killing. Is that the type of crime that leads you to believe the death penalty is the right answer?" M.F. answered, "It is the type of crime that would make me lean in the direction of the death penalty . . . the fact that I'm a mother and I have protective instincts a mother bears." Counsel then asked if nursing a child was an "important part of the mother [and] child relationship, correct?" M.F. answered, "Yes, very important."
The court sustained the prosecution's objection to defense counsel's next question: "And in your opinion is [there] something particularly heinous about depriving [a] child of that relationship?" Defendant's challenge for cause was denied and defendant used a peremptory challenge to excuse M.F. Defendant argues the court improperly restricted his ability to determine M.F.'s biases.
We find no abuse of discretion. Contrary to defendant's argument, the ruling did not preclude defendant from probing into M.F.'s views regarding whether a defendant who deprived a child of a relationship with his or her mother might deserve the death penalty. Rather, it restricted him from asking M.F. to describe how bad she thought such a crime might be. We agree with the trial court that such a question essentially asked M.F. to prejudge the case and weigh a factor in aggravation before trial.
2. Prospective Juror P.A.
Defendant asked Prospective Juror P.A. if she supported the death penalty; she answered she did. He asked if she would automatically impose the death penalty because defendant had been found guilty; she answered she would. He then asked if she would suspend her decision until she heard evidence about defendant's background and character, and if she thought defendant's background and character would be relevant to her determination of penalty; she answered she did not think defendant's background was "particularly relevant."
The prosecutor then asked if P.A. could follow the court's instructions that she must consider all of the factors in mitigation and in aggravation before she reached her verdict; she answered she could. The court asked if she would fairly, objectively and impartially evaluate evidence offered in mitigation and in aggravation, and if she would consider that evidence before making her choice of penalty and "not focus just on the crime itself?" She answered, "Okay." The court also asked her if there were "certain categories of crimes" that deserved the death penalty, or if she would reach a verdict "based on the evidence of this particular case?" She answered, "I think the degree of violence. . . . I just feel in my heart that if somebody is - does something so bad that they should deserve to die also."
Defendant then asked, " Are there those cases which the facts are such that you can't consider character and background, that there are cases so bad people deserve to die . . . whether or not you're told as a matter of law you have to consider [defendant's background and character]?" P.A. gave a lengthy answer to the last question,*fn7 after which the court said, "All right. I think we've sufficiently probed that matter."
Defendant asked no further questions, and the court thereafter denied defendant's challenge for cause. P.A. served on the jury.
Defendant now argues that in stating, "we've sufficiently probed that matter," the court refused to allow him to determine if any particular type of crime would impair P.A.'s ability to render a fair judgment in this case. Defendant did not ask P.A. any other questions, nor did he ask the court to clarify the scope of its ruling; hence, he cannot complain on appeal that the court denied him the opportunity to ask P.A. if any particular type of crime would impair her ability to render a fair judgment in this case.
In any event, we conclude defendant was not limited in his ability to assess P.A.'s views on the death penalty. The queries of the court, the prosecutor and defense counsel together sufficiently covered the issue of whether or not there were any types of crimes for which P.A. would invariably vote for the death penalty. These questions did, in fact, cover the area defendant now claims the court precluded him from exploring.
3. Prospective Juror D.O.
Finally, defendant argues the court erred by restricting defendant's questions of Prospective Juror D.O.
Defense counsel told Prospective Juror D.O. that in this case "there are two choices." "[I]n arriving at one of those two choices you have to consider a multitude of things; that you can't just consider the crime itself, that you have to consider other factors that might be offered to you in mitigation that have nothing to do with the crime itself specifically," "like whether Mr. Hamilton has made a contribution to society, could continue to do so, that sort of thing. The law says that you must consider it. It doesn't tell you how much weight you have to give it but you must consider it." "If your mind is such that you really can't consider it, that you'll listen to it but you can't consider it, . . . you can't sit as a juror."
Prospective Juror D.O. replied that he "can consider, I will adhere to the law of California."
Defense counsel then asked, "So there's no crime in your opinion, or is there, is there a threshold level that's so heinous, you don't care what good works a man has done that's . . ." D.O. answered, "Yeah. The Oklahoma City bombing. They prove those guys guilty, I mean, I'm sorry. They kill a bunch of kids and a bunch of people that have, you know, no business being dead. And do it in that kind of senseless, violent way, I would have very little trouble, you know, sitting in a penalty phase of that one because it would be over. Sorry about that if it sounds strong."
Defense counsel then asked, "So if in this instance you were moved to that level of personal abhorrence over the crime - not saying the facts were the same, but if you were moved to that level of personal abhorrence over the crime, you're telling us from your heart that you cannot consider anything about Mr. Hamilton's personal life, whatever good works he did?" The prosecutor objected to the question on the grounds that it asked D.O. to prejudge the case; the court sustained the objection. (See People v. Cash, supra, 28 Cal.4th 703, 719--720.) Defense counsel asked again, "Well, what I'm really trying to find out, in reality, deep in your heart, knowing how you feel about the Oklahoma City case, can you in good conscience tell Mr. Hamilton that you can in reality consider personal factors in his life, or is it your state of mind such that given a certain set of facts, if you're moved to a certain point you're not going to think about them?"
The prosecutor objected again on the same grounds; the court sustained the objection. Defense counsel then asked, "Can you in this case forget about facts specific - can you, when you sit there, really consider factors about the defendant himself independently of the crime?" D.O. answered that he could. The court thereafter denied defendant's motion to excuse D.O. for cause (see II.C.6., ante) and defendant used a peremptory challenge to excuse him.
Defendant now argues the court improperly restricted voir dire in that he was prohibited from gauging what would be the threshold level of abhorrence to a crime that would preclude D.O. from being able to consider factors in mitigation.
We agree with defendant that the court was mistaken when it sustained the objections to his questions, but disagree that the mistake violated due process or the mandates of People v. Cash, supra, 28 Cal.4th 703, 719--720. Contrary to the court's ruling, defendant's questions did not ask D.O. to prejudge the facts of this case - with the exception of the court's initial description that this case involved "a first degree murder under special circumstances [and] the related crimes of robbery, kidnapping and burglary," none of the voir dire of D.O., and neither of the two restricted questions, contained any direct or indirect references to the facts of this case. But, contrary to defendant's assertion, the restricted questions did not attempt to get D.O. to place this case somewhere on a relative scale of abhorrence upon which the Oklahoma City bombing was at the top, a question which would improperly have asked D.O. to prejudge the case. Rather, the restricted questions asked D.O. if, in this case, he were to be moved to the same level of abhorrence he felt with regard to the Oklahoma City bombing case, would he or would he not be able to consider any factors offered in mitigation. In essence, the restricted questions merely mirrored back to D.O. his own stated sentiments that the Oklahoma City bombing case would be the kind of crime for which he knew he could not consider any factors in mitigation. This line of inquiry did not ask D.O. to prejudge the case, but also was not highly relevant to D.O.'s qualification to be a juror - the questions asked if D.O. could or could not follow the court's instructions, that he must consider the factors in mitigation, under circumstances that admittedly were not present in this case. (Wainwright v. Witt, supra, 469 U.S. at p. 424 [prospective jurors may be excused for cause when their views on capital punishment would prevent or substantially impair the performance of their duties as jurors].)
Thus, the court was incorrect in concluding that the questions improperly asked D.O. to prejudge the case, but the court did not abuse its discretion in restricting the questioning. The restricted questions were not highly relevant, and defendant was not limited thereby in his ability to assess D.O.'s views on the death penalty or thoughts on his ability to be a fair juror.
B. Excusal for Cause of Prospective Juror W.B.
Defendant next contends the trial court erroneously excused for cause Prospective Juror W.B. after voir dire concerning his views on the death penalty. We see no error.
" 'The state and federal constitutional guarantees of a trial by an impartial jury include the right in a capital case to a jury whose members will not automatically impose the death penalty for all murders, but will instead consider and weigh the mitigating evidence in determining the appropriate sentence.' (People v. Weaver (2001) 26 Cal.4th 876, 910; accord, People v. Crittenden [(1994) 9 Cal.4th 83,] 120--121.) However, a 'juror may be challenged for cause based upon his or her views concerning capital punishment only if those views would "prevent or substantially impair" the performance of the juror's duties as defined by the court's instructions and the juror's oath.' [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 338--339.)
" ' "Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. [Citation.] The trial court must determine whether the prospective juror will be 'unable to faithfully and impartially apply the law in the case.' [Citation.] A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror's responses in deciding whether to remove the juror for cause. The trial court's resolution of these factual matters is binding on the appellate court if supported by substantial evidence. [Citation.] '[W]here equivocal or conflicting responses are elicited regarding a prospective juror's ability to impose the death penalty, the trial court's determination as to his true state of mind is binding on an appellate court. [Citations.]' [Citation.]" ' (People v. Boyette [(2002) 29 Cal.4th 381,] 416; accord, People v. Moon (2005) 37 Cal.4th 1, 14.)" (People v. Bonilla, supra, 41 Cal.4th at p. 339.)"In other words, the reviewing court generally must defer to the judge who sees and hears the prospective juror, and who has the 'definite impression' that he is biased, despite a failure to express clear views." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007.) The United States Supreme Court recently explained: "Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors." (Uttecht v. Brown (2007) 551 U.S. ___, ___ [127 S.Ct. 2218, 2224].)
Prospective Juror W.B. made statements during voir dire that suggested he could be fair to both sides and had not foreclosed the possibility of returning a verdict of either death or life without the possibility of parole. In his answers to the juror questionnaire, however, he indicated he was opposed to the death penalty,*fn8 and when pressed further by both parties and the court, he gave conflicting and ambiguous answers. The trial court asked if he could ever actually return a verdict of death. W.B. replied, "No, sir." He explained that he believed "there were better ways of doing it, even though we haven't come up with one. Not to say that I couldn't be opposed to it." He then stated, "It really doesn't serve a purpose. I mean an eye for an eye, . . . what does an eye for an eye mean?" The court asked, "Realistically, then, do you think you would always choose the other choice, the other option of life without possibility of parole?" W.B. answered, "Yes." The court asked, "The [P]eople here don't really have any realistic chance of persuading [you to] return a death verdict, do they?" W.B. replied, "There's always that possibility. You know, it depends on the situation. But I really look at it is [sic] that it's -- there's really no -- life imprisonment is a better way of doing it, but I'm not saying that I couldn't be convinced otherwise, but that's the human side of it." When asked if he had thought it out pretty well, he stated, "I've seen enough death in my life."
The court granted the prosecutor's challenge for cause. Defendant now argues the court erred because even though W.B. voiced opposition to the death penalty, he also indicated he could still impose death in an appropriate case. The record shows that W.B.'s demeanor and attitude as observed by the court revealed more about his opinion regarding the death penalty than what he expressed in words. The court watched him as he was answering questions and decided he was "a man of pretty strong convictions" who did not like to appear to have a closed mind or to speak in absolutes and say "always" or "never," but who, nonetheless, would "unequivocally put [himself] in that absolute extreme position" of always voting against the death penalty. The court concluded W.B. was substantially impaired within the meaning of the applicable law because "realistically and honestly" he would not be able to give the prosecution "a fair hearing and a fair opportunity to at least persuade him to [vote for] the death penalty." In light of substantial evidence in support, we defer to the court's assessment of W.B.'s attitudes and in the decision to excuse him for cause.
C. Denial of Challenges for Cause
Next, defendant argues the court erred in denying his for-cause challenges to seven additional prospective jurors to who favored the death penalty.
As noted, a juror may be challenged for cause if his or her views on capital punishment prevent or substantially impair the performance of his or her duties, and the trial court has discretion to assess the juror's qualifications and decide whether to remove the juror for cause. (People v. Bonilla, supra, 41 Cal.4th at pp. 338--339.) The reviewing court generally must defer to the judge who sees and hears the prospective juror. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1007.)
"A defendant who claims that the trial court wrongly denied a challenge for cause must demonstrate that his or her right to a fair and impartial jury was affected." (People v. Garceau (1993) 6 Cal.4th 140, 174.) "To preserve an objection to the trial court's failure to excuse a juror for cause, a defendant must (1) exercise a peremptory challenge against the juror in question, (2) exhaust all peremptories, and (3) express dissatisfaction with the jury as finally empanelled." (People v. Bonilla, supra, 41 Cal.4th at p. 339.) Defendant exhausted his peremptory challenges but did not communicate to the court any dissatisfaction with the jury selected. Accordingly, he failed to preserve the issue for appeal. As explained in People v. Weaver, supra, 26 Cal.4th at page 911, it is possible that, despite counsel's initial misgivings about the composition of the jury, he ultimately was satisfied with the jury as sworn, and, had he expressed dissatisfaction, the trial court may have allowed him to exercise additional peremptory challenges.
In any event, as explained below, his contentions lack merit.
1. Prospective Juror P.M.
Prospective Juror P.M. supported the death penalty, thought it should be imposed on every defendant who killed intentionally, and thought "it would have to be an awful, awful strong case" on behalf of defendant to sway him from voting for the death penalty. He also indicated that he found it problematic that this case was still in the court after 16 years, asking, "why this gentleman is here. It's horrendous. It's - it's scary to be in a room with [a] man like that." He remembered some of the details of the case from the time of its occurrence in 1979, and thought them to be "pretty grizzly [sic]."
The court denied defendant's request to excuse Prospective Juror P.M. for cause, and defendant exercised a peremptory challenge to excuse him. Defendant contends P.M.'s views on the death penalty in general and this case in particular showed he was unable to give him a fair trial.
We conclude the trial court did not abuse its discretion. Initially, P.M. did not know that for death-penalty-eligible crimes, California law allowed for an alternative penalty of life without the possibility of parole, or that the jurors would learn facts about defendant's background, character and history and other factors in mitigation, in addition to the "grisly" facts of the crime he remembered from reports in 1979. After being so instructed by the court, he indicated he could withhold judgment until he had heard all of the evidence, and once he understood that a sentence of life without the possibility of parole meant defendant would never be paroled, he indicated he could consider that sentence. The court did not err in denying defendant's challenge.
2. Prospective Juror P.A.
As noted, Prospective Juror P.A. supported the death penalty and thought "the punishment should fit the crime." Defendant sought to excuse her for cause, arguing she would automatically vote for the death penalty if she found the crime to be "bad enough." In light of P.A.'s statements that "we all have to have an open mind, and I think I could listen to the evidence with an open mind and then make my decision upon the instructions that you give the jury," and that she would "decide whether somebody has . . . done something so bad that they deserve to die based on the evidence of this particular case" and "not any other case or anything else," we see no error in the court's denial of the motion to excuse for cause.
3. Prospective Juror A.P.
Prospective Juror A.P. indicated in the questionnaire that he both opposed and supported the death penalty, "depending on the case," and clarified during voir dire that he supported the death penalty but would not impose it in every case and that life without the possibility of parole was also a reasonable penalty.
Defense counsel asked him, "Once you've found out it's a deliberate murder, it's not an accident, there's no mental defect here, the person kills another - at that point you have two choices. What I want to know is do you stop right there and say, 'Okay, now it's time for the death penalty,' or do you wait and say, 'No, I want to hear something about the individual himself first'?" He answered, "No, I would stop and say I was for the death penalty."
The prosecutor asked, "[Defense counsel] was concerned that you'd only look at the crime, and if you found it was a certain kind of crime that you would just not look at anything else and say automatically that's the death penalty. Is that your position or not?" A.P. answered, "That's my position only because I don't know how courtrooms are, you know." He indicated that he could render a verdict of death, but it would be "very tough," and that "I would listen to both sides but I don't like to be the judge of someone's future. I don't like disputes." The prosecutor explained the court would ask him to look at the evidence about the murder that was committed, and evidence about the man who committed the murder, and A.P. agreed he would "look at those fairly and rationally."
Defendant argues A.P.'s statements that he could be fair and impartial were only the result of leading questions by the prosecutor, and that any prospective juror would agree to be fair and impartial. We disagree. The trial court reasonably could conclude A.P.'s statements revealed his own concerns and thoughts, and were not merely expressions of agreement with the prosecutor. We see no error in the denial of the motion to excuse him for cause.
4. Prospective Juror M.F.
As noted, Prospective Juror M.F. was a mother of eight who home-schooled her younger children, one of whom was an infant still being nursed. She strongly supported the death penalty and explained, "because I believe it to be the correct punishment for certain crimes. I also believe it's best for an example it shows to others. We must be responsible for all of our actions."
She gave inconsistent answers in the questionnaire, stating that she would not return a verdict of death in any murder case without regard to the aggravating or mitigating factors, but she could not think of any case in which she would be willing to return a verdict of life in prison without parole, and she believed the death penalty should be imposed on every defendant who intentionally killed the victim. She explained during voir dire that when filling out the questionnaire she thought a defendant who received any sentence of less than death eventually would be released from prison, and that she made her answers "off the top of her head." After learning that a sentence of life without the possibility of parole means just that, she stated that before deciding on a sentence, she would "really need to weigh the evidence, . . . to hear the story," and she could choose a sentence of life without the possibility of parole if she "thought that was the appropriate choice."
On questioning by defense counsel, M.F. indicated that the robbery, burglary, and kidnapping and killing of a young mother were the type of crimes "that would make me lean in the direction of the death penalty." On questioning by the prosecutor, M.F. agreed there were intentional killings that did not warrant the death penalty, for example, where the father of a murdered child lies in wait and kills the murderer.
The court denied defendant's challenge for cause, explaining that "her answers were ambiguous and inconsistent within the questionnaire," but he was "satisfied she's not substantially impaired by virtue of her strong support of the death penalty. She may be a strong candidate for a peremptory challenge," but was not subject to excusal for cause.
Substantial evidence supports the trial court's ruling. M.F. clearly supported the death penalty, stating that murder during the course of a robbery was the type of case she thought would justify the death penalty and that she would lean toward the death penalty for crimes of robbery, kidnapping and murder of a young mother. She did not, however, state that she would automatically vote for the death penalty. She understood she would be required to listen to and weigh all the evidence, and indicated she could vote for life without the possibility of parole if she thought it was the "appropriate" sentence.
In light of this evidence, we are bound to accept the trial court's determination that M.F. was not subject to excusal for cause. (People v. Bonilla, supra, 41 Cal.4th at p. 339.)
5. Prospective Juror S.L.
Prospective Juror S.L. supported the death penalty but not for every murder case. Question 59 of the questionnaire asked, "Does it make any difference to you that the victim was a white woman and the defendant is an African-American man?" She answered, "As a white woman I would want to know why she was killed." When asked during voir dire to explain why the cross-racial nature of the crime would have such an impact on her, she stated, "I don't know other than the fact that I would probably identify more with her, or might identify more with her because she was white."
Defendant challenged S.L. for cause, arguing that her racial identification with the victim impaired her ability to be a fair and impartial juror. The court denied the challenge, reasoning that most people tend to identify with people of their own age, gender, race, and similar circumstances, but there was no indication that S.L.'s racial identification with the victim would impair her ability to be a fair and impartial juror.
The record supports the court's decision. S.L. revealed during voir dire that she had mixed feelings about the death penalty and had opposed it for many years, but had changed her mind in recent years in light of several disturbing murder cases in San Diego, although she would not support the death penalty in every case. She struggled with her stance on the morality of the death penalty, had spoken to her husband and her fellow church members about it, and admitted she found it very difficult to write down in words her thoughts about the death penalty. She acknowledged initially she thought defendant should be put to death because he had already been convicted of the murder, but she indicated she knew very little about the case and might be persuaded to vote for life without the possibility of parole once she learned more. She stated, "I'm still wavering. I would have to hear everything." She also indicated that since the beginning of the jury selection process, she had been focusing on what happened to the victim and wondering what were the facts of the case.
A reasonable inference to be drawn from S.L.'s questionnaire answer is that it reflected not a racial bias that would impair her ability to be a fair and impartial juror but, rather, an acknowledgment that there were cross-racial elements in the crime and that she may have had questions as to whether race played a role in the murder. She apparently gave serious consideration to the morality of the death penalty, but the record does not reveal that any of her indecision was based on racial bias.
6. Prospective Juror D.O.
Prospective Juror D.O. indicated in the questionnaire that he both supported and was undecided about the death penalty. He explained that "up until the past five or six years, [I] was opposed to the death penalty. I sort of felt it served no purpose, it wasn't a deterrent. Maybe I'm getting older, more conservative. There are circumstances where people just revoke their rights to citizenship, revoke their rights to life by actions they have done." As noted earlier, D.O. cited as an example of the type of case that in his mind would always deserve the death penalty the Oklahoma City bombing and cases where children were killed, and explained further that "where someone takes the life of someone coldly and maliciously, I would have to assume for first degree murder. That person most likely should be put to death." When the court explained to him that under the law not all first degree murderers are eligible for the death penalty, and in no case is the death penalty mandatory but the jury is always charged with choosing between life without the possibility of parole and the death penalty, D.O. stated that his mind would be open, he would "try to adhere to the law," would "listen to the evidence" and from what he knew about this case, he "would probably be leaning towards the death penalty" but "that doesn't mean I will find the death penalty."
Contrary to defendant's assertions, the record does not support an inference that D.O. would invariably vote for death in every case of an intentional killing.
D.O.'s attitudes were in conflict, and although he had strong feelings about holding murderers responsible for their actions and he was "leaning towards the death penalty," he assured the court he would consider the facts and circumstances of the case before making a decision as to ...