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People v. Cowan

August 5, 2010


Court: Superior County: Ct. No. 059675A. Kern Judge: Lee Phillip Felice.

The opinion of the court was delivered by: Moreno, J.

A Kern County jury found defendant Robert Wesley Cowan guilty of the first degree murders of Clifford and Alma Merck (Pen. Code, §§ 187, subd. (a), 189)*fn1 and found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and murder during the commission of robbery and burglary (§ 190.2, subd. (a)(17)(A), (G)).*fn2 As to both murders, the jury found that a principal had been armed with a firearm (§ 12022, subd. (a)(1)), and the court found that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)). The jury was unable to reach a verdict on a murder count involving a third victim, Jewell Russell, resulting in a mistrial on that count.

At the penalty phase of the trial, the jury returned verdicts of death for Alma's murder and life imprisonment without the possibility of parole for Clifford's murder. The trial court denied defendant's automatic application to modify the verdict (§ 190.4, subd. (e)) and imposed the death sentence with a one-year arming enhancement for Alma's murder, a consecutive sentence of life imprisonment without the possibility of parole plus a one-year arming enhancement for Clifford's murder, and a five-year enhancement for the prior serious felony conviction.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.


A. Introduction

Clifford and Alma Merck, an elderly Bakersfield couple, were found dead in their home on September 4, 1984, the Tuesday after Labor Day. Clifford had been shot, Alma had been strangled, and their house had been ransacked, with numerous items stolen. Jewell Francis Russell was found dead in his home in Shafter on September 7, 1984. He had been beaten and his throat had been slashed. Defendant was not arrested and charged with these murders until 1994, after a Kern County Sheriff's Department fingerprint examiner reexamined the latent fingerprints lifted from the Merck murder scene and concluded that two latent prints matched defendant's prints. In addition, new ballistics tests suggested that a gun stolen from the Mercks and linked to defendant was the weapon used to kill Clifford Merck. Evidence that defendant had possessed items of the Mercks' property and had made inculpatory statements also tied him to the Merck and Russell murders.*fn3

B. Guilt Phase 1

The prosecution's case a. The killing of Clifford and Alma Merck

In September of 1984, Clifford and Alma Merck lived on McClean Street in East Bakersfield. Clifford was 75 years old and Alma was 81; they had been married for almost 33 years. Defendant lived approximately four blocks away on Easter Street.

Clifford owned a Colt .25-caliber automatic pistol with white grips and a two-inch barrel. He also owned a metal cigarette lighter cover with a "kachina" or "rain god" design on it, and a tooled leather wallet in which he kept his driver's license. Alma owned a turquoise ring and costume jewelry, including a pearl bracelet, a necklace watch, a diamond watch, and earrings. She had at least two jewelry boxes -- one green, and the other a musical box with a dancing figurine on top. Clifford liked to mark his property with his initials, and he marked some of his wife's property with her initials as well. Clifford had etched his initials on the inside of the grips of his Colt .25-caliber pistol.

On August 31, 1984, the Friday before the Labor Day weekend, Alma's son Robert Johnson called the Mercks and told them that he and his wife would be visiting the following Tuesday. Margarita Macias, who lived across the street from the Mercks and sometimes drove them places because Clifford could not see well, last saw the Mercks the following day, Saturday, September 1.

Robert Johnson and his wife arrived at the Mercks' house as promised on the morning of Tuesday, September 4, 1984. Johnson first went to the back door and knocked, but nobody answered. He then went to the front door and knocked, but also got no answer. Looking through the front window, he did not see anybody, but he heard the Mercks' dog barking. Johnson returned to the back door, which was not locked, opened it, and peered into the service porch area, which served as a laundry room. Inside, he saw items of the Mercks' property lined up from the back door to the kitchen. Sensing something was wrong, he went to a window on the side of the house and tried to look inside, but so many flies were buzzing around the window that he backed away. Johnson had his wife contact the sheriff's department.

Gregory Laskowski, a criminalist with the Kern County Regional Criminalistics Laboratory, responded to the Merck home to investigate. The home had been "ransacked." Chairs were overturned, and drawers had been pulled out and their contents strewn about. Items were out of place; the television was in the service porch area. The receiver was missing from the wall phone, and the phone cords and wires were pulled loose. Lamp cords had been severed. On the shelf near the kitchen window, Laskowski found an open pocket knife.

Laskowski made his way to one of the bedrooms, where he found Clifford Merck's body lying across the bed, his head under a pillow which had a bullet hole in it. Clifford had been shot in the head twice. An orange throw pillow, which also had a bullet hole in it, was on the bed. In Laskowski's opinion, the purpose of shooting into a pillow was to muffle the sound. Clifford's ankles and wrists were bound with electrical cords, and his blood had drained onto the bedroom floor.

The same day, Quentin Nerida, a fingerprint technician with the Kern County Sheriff's Department Technical Investigations unit, went to the Merck crime scene to lift latent fingerprints. Working his way through the house, Nerida arrived at a bedroom used as a sewing room. When he opened the closet doors, Alma's body fell out. Alma had been strangled. Her hands were bound with a lamp cord, and a telephone cord with the receiver still attached was wrapped around her neck and mouth.

Dr. Armand Dollinger, a forensic pathologist in the Kern County coroner's office, examined the Mercks' bodies on September 5, 1984. Both bodies were in an advanced state of decomposition, suggesting the Mercks had been dead for several days. Clifford had died from two penetrating gunshot wounds. One bullet had entered slightly above and in front of his left ear, traveled through his head and terminated in the scalp above his right ear, perforating and lacerating his brain. Another bullet had entered the base of his neck on the left side, traveled up and toward the front, and terminated in his spinal canal, lacerating his spinal cord. His death was probably nearly instantaneous.

Alma's wrists were bound behind her back with electrical cord, and her ankles were also bound. A telephone cord was wound over her chin and then tightly around her neck. She had died from asphyxiation due to strangulation by ligature. Her death probably occurred about four to five minutes after the cord was tightened around her neck.

More than 40 latent fingerprints were lifted from the Merck home. When family members cleaned out the house, they discovered that several Social Security checks were missing.

About a month after the murders, Bakersfield police received information about alleged drug activity taking place at the Caravan Inn. On October 14, several officers raided two adjoining rooms at the Caravan Inn and arrested five people, including Danny Phinney and Robert Lutts. In a trash can in one of the rooms, police found a loaded Colt .25-caliber automatic pistol. The initials "C" and "M" or "W" were etched inside the gun's grips. From Phinney's van, the police seized a coin purse, jewelry, watches, a loaded .38-caliber revolver, and a large quantity of methamphetamine packaged for sale. Phinney initially denied knowing anything about the origins of the Colt .25-caliber pistol.

Laskowski compared bullets test-fired from the Colt pistol seized in the raid with the bullets recovered from the body of Clifford Merck. He concluded the gun had not fired the bullets.

In November 1984, Kern County Sheriff's Department technical investigator Jerry Roper compared the latent fingerprints recovered from the Merck crime scene with the rolled prints of several known suspects, including defendant, but found no match.*fn4 At trial, Roper could not recall if anyone had double-checked his work. In January 1985, the latent prints lifted from the scene were compared with the rolled prints of Phinney and Lutts. Again, no match was found.*fn5

Meanwhile, Phinney, a drug addict who suffered from bipolar disorder and had several misdemeanor drug-related convictions, was in protective custody following his arrest. Before his arrest Phinney had been using primarily "street speed" (methamphetamine), but he also had used LSD, mescaline, peyote, amphetamines, and barbiturates. While in jail, Phinney read a newspaper article about a "secret witness" program seeking information about the Merck murders. Someone pointed out the initials of the victims, which triggered in Phinney's mind the memory of the initials on the Colt .25-caliber pistol seized in the raid. Phinney also recognized the street name -- McClean Street -- because he had seen it before. Concerned that his connection to the gun might tie him to the murders, Phinney decided to talk to the police.

Phinney gave a statement to Detective John Diederich of the Kern County Sheriff's Department on December 21, 1984. The statement was tape-recorded and transcribed. Phinney told Diederich that sometime after Labor Day in September 1984 he had met defendant at an auto parts store in Bakersfield and then gone with him to defendant's brother's house on Pearl Street. At the house, defendant showed Phinney a bag of coins, including a 1922 silver dollar; some costume jewelry; two government checks in the name of Merck or Myrick on McClean Street with a total value of about $600; and a carved leather billfold with a driver's license, medical cards, and a Social Security card inside. The year of birth on the driver's license was 1911 or 1914. Phinney also saw a Shafter High School class ring, plastic pearls, a necklace,*fn6 and two jewelry boxes -- one green, the other with a dancing figurine on top.*fn7

During the interview, Detective Diederich showed Phinney the Colt .25-caliber pistol seized in the raid. Phinney said he had heard that defendant had sold the gun to Lutts, who had tried to file the initials off. Phinney recalled that defendant had said, regarding the gun, "Whatever happens, don't get caught with it," and "eat it; throw it away or whatever, but don't get caught with it."

Craig Fraley was the Kern County Sheriff's Department detective in charge of the Merck case from December 1984 through September 1987. In January 1985, Fraley contacted defendant's sister, Catherine Glass. Glass produced a turquoise ring, which she said she had purchased from defendant. That month, Fraley showed the ring to Alma Merck's granddaughter, Terri Jones. At trial, Jones testified that exhibit No. 39, the ring Fraley obtained from Glass, "looked like" her grandmother's ring. During the investigation the ring also was shown to Alma's daughter, Mary Watts, who recognized the ring as her mother's. At trial, Watts testified that exhibit No. 39, the ring obtained from Glass, "look[ed] like" her mother's ring. There appeared to be an "M" scratched into the underside of the ring.

Also in January 1985, Fraley interviewed Ronnie Woodin, a friend of defendant's since childhood. Woodin gave Fraley a metal cigarette lighter with a kachina or rain god design on it, which he said he had purchased from defendant for $5 sometime between the 10th and 13th of the previous September. Woodin also said defendant had a bag of things he was trying to sell, including costume jewelry. Woodin told Fraley that when he asked defendant where he had gotten the lighter, defendant said "never mind" or something similar. At trial Woodin confirmed that he had purchased the lighter from defendant. Fraley showed the lighter to Terri Jones's husband Jerry Jones on January 30, 1985. Jones said he had seen Clifford Merck use the lighter many times.

The investigation of the Merck murders languished until mid-1994, when James Christopherson was promoted from patrolman to detective in the robbery/homicide unit of the Kern County Sheriff's Department. Christopherson had secured the Merck crime scene and searched for witnesses in 1984, but otherwise had not been involved in the investigation. After obtaining permission to reopen the investigation, in May 1994 Christopherson asked the technical investigations unit to re-compare all of the latent fingerprints lifted from the Merck murder scene with the rolled prints of seven known suspects, including defendant and his brother Gerald. Supervisor Thomas Jones assigned the initial comparison to Sharon Pierce. Pierce concluded a latent print lifted from the inside of the back service porch door above the doorknob (latent print No. 10) matched defendant's left thumbprint, and a latent print lifted from the bottom of a plastic sewing tray that had been lying on a table in the dining room area (latent print No. 44) matched defendant's left middle fingerprint. Per department policy, Pierce brought all of the latent prints, and the rolled prints of all of the suspects she had compared with them, to Jones and had him recheck her work. Jones independently determined that latent print Nos. 10 and 44 matched the rolled prints from defendant's left thumb and left middle finger, respectively. In July of 1994, Jones brought defendant's rolled prints and the cards with latent print Nos. 10 and 44 to the Department of Justice in Sacramento for verification of the match. Martin Collins, the latent print supervisor there, confirmed that the latent prints matched defendant's rolled prints. Another examiner in the office agreed.*fn8

Detective Christopherson interviewed defendant on August 8, 1994. Defendant consistently denied any involvement in the Merck murders, even after learning that his fingerprints had been found at the crime scene.

Detective Christopherson reinterviewed Phinney on August 23, 1994. During this interview, Phinney revealed for the first time that he had acted as a go-between for the transfer of the Colt .25-caliber automatic pistol from defendant to Lutts. He also revealed for the first time that, after taking the gun apart and seeing the initials on the inside, Lutts had attempted to alter the rifling by putting things down the barrel. Told about the possible alteration of the rifling, in April 1996 criminalist Laskowski made a mold of the inside of the gun's barrel and compared it to the bullets removed from Clifford Merck's body. This time, Laskowski concluded the gun had fired the bullets that killed Clifford Merck.

Robert Lutts, who in 1984 sold drugs -- mostly methamphetamine -- to support his own drug habit and had been convicted of felonies including robbery and possession of drugs for sale, testified that he believed he had obtained the Colt .25-caliber pistol seized in the October 1984 raid on the Caravan Inn from defendant through Phinney, as payment for drugs. He acknowledged having taken the gun apart and having seen the initials on the grips, but denied having tried to alter the barrel's rifling.

Mitzi Cowan, who in 1984 was defendant's brother Gerald's girlfriend and later married Gerald, testified that sometime between the first and fifth of September 1984, defendant and his girlfriend, Gerry Tags, came to the apartment that Mitzi shared with Gerald. Defendant had a box full of clothes and some other items, such as jewelry. Mitzi remembered in particular an older silver watch and a necklace with a heart-shaped watch on it. Gerald put the necklace in his pocket. Later that day he threw it into a vacant field.

Former Shafter Police Lieutenant John Porter testified that he had interviewed Emma Foreman, the mother of defendant's girlfriend Gerry Tags, in January 1990. Foreman told Porter that defendant had admitted beating to death an old couple he had found in a bedroom in Bakersfield.

b. The killing of Jewell Francis Russell

Jewell Francis Russell, also known as "Shafter Bobby," lived in Shafter, about 25 miles from the Mercks' home in Bakersfield. In September 1984, Russell was about 55 years old. He carried his money in his front pocket, folded neatly in half, with the smallest bills on the outside. His daughter Mitzi was Gerald Cowan's girlfriend.

About 9:30 p.m. on September 7, 1984, Russell's son Danny was driving by his father's house and noticed that all the lights and the television were on. This seemed "not right" to him, so he decided to investigate. He entered the side door, which was unlocked. In the kitchen, he saw blood on the floor and blood leading into the next room. In the living room there was more blood leading to the hall area. The house was hot and smelled bad, and the television was on "full blast." Danny left and returned with family members, and the police were summoned.

Paul Petersen, a sergeant and watch commander in the Shafter Police Department, responded to the scene. Entering the house through the kitchen door, Petersen noticed bloodstains on the floor, what appeared to be dried blood spatters, and drag marks leading from the kitchen to the rug area. In the living room, Petersen noticed shoes, cowboy boots, socks, a guitar, a stained towel, and dried blood on the rug. Following the strong odor of what he believed to be a deceased person to the northeast bedroom, he found a body under the bed. He called the coroner's office and summoned a technical investigation team.

Jerry Grimes, the supervisor of the Kern County Sheriff's Department Technical Investigations unit, arrived to investigate. In the bedroom, he found drawers opened and their contents lying about. Investigators moved the bed, revealing Russell's body lying prone with the head resting on the right cheek. The pockets of Russell's pants were turned inside out. Russell's throat had been slit on the right side and he had been severely beaten; bruising in the facial area appeared to match the stock of a shotgun. Petersen later seized from the house a knife and sheath, a cigarette butt, a golf club and a shotgun.

A post-mortem examination of Russell's body revealed numerous bruises around the face and a bruise on the chest wall, apparently inflicted using a blunt object such as a fist or a shoe. A large slashing incised wound on the right side of the neck from the midline to the back had severed the sternocleidomastoid muscle, jugular vein, carotid sheath and artery, and everything down to the spine, trachea, and larynx. There was also a superficial incised wound on the left side of the neck. Russell died from exsanguination -- he bled to death. The wound to his neck probably rendered him unconsciousness almost immediately, and he died in less than 10 minutes.

Defendant's girlfriend in 1984, Gerry Tags, died before trial, so her 1994 preliminary examination testimony was read to the jury. Tags testified that she had lived with defendant for three to four years, ending in 1986. Defendant was using "crank" (methamphetamine) every day and did not have a steady job. Tags also used methamphetamine on a daily basis if she could get it. Sometimes the drug made her stay awake for several days at a time. She worked as a prostitute, giving the money she earned to defendant. She had stopped using drugs about six or seven months before her testimony because she was being treated for cancer.

Tags was acquainted with Russell because his son Danny was the father of her child. She had seen Russell many times at the pool hall carrying a large amount of money in his pocket.

The night before Tags learned that Russell had been killed, Tags and defendant were playing cards with defendant's brother Gerald and his girlfriend Mitzi, who was Russell's daughter (and who later married Gerald), at Mitzi's apartment. Tags and defendant got into an argument because defendant wanted Tags to go out and "make some money" so defendant could buy drugs, but Tags did not want to go. Tags allowed defendant to use her car; defendant did not say where he was going. She then went upstairs and went to sleep. A while later, she was awakened by Gerald's voice yelling. Gerald (who apparently had left the apartment at some point) had returned by himself. Defendant returned separately around daybreak wearing different clothes than he had worn when he left the night before. Defendant and Gerald were arguing. Defendant and Tags then left Mitzi's apartment. Tags did not question defendant because she feared he would beat her.

A week or two later, Tags saw, in the trunk of her car, the clothes defendant had been wearing the night he left Mitzi's apartment after arguing with Tags. There appeared to be blood on defendant's beige pants. A knife Tags had seen at Russell's house was wrapped in defendant's pants and shirt. When defendant saw Tags looking at the clothes, he said "Bitch, don't you touch anything of mine."

After Russell's funeral, Tags, defendant, and Gerald drove to Oklahoma and Florida on a two- or three-week trip. One night in Oklahoma, Tags asked defendant if he had killed Russell. Defendant responded, "Yeah bitch, and if you say anything, I'll cut your throat, just like I did his."

At trial Mitzi Cowan gave an account of the early-September card-playing evening and subsequent events that was similar to Tags's account, but with additional details. Her testimony is discussed in greater detail below in part II.C.8.

Tags's mother, Emma Foreman, testified that sometime after Russell was killed, defendant and Tags were at Foreman's house. They were arguing because Tags was resisting defendant's demand that she go out to prostitute herself. According to Foreman, defendant said to Tags, "if you don't go out, I'll cut your damn throat," and "I'll do you like I did motherfucking Bobby." One time Foreman saw some bloody clothes in the trunk of Tags's car.

Tags's step-uncle Roy Davidson -- a heroin abuser with a felony conviction for forgery -- worked for Russell for 12 years. Davidson claimed to have seen a knife and some bloody boots in defendant's car sometime in September of 1984. Defendant also had a roll of bills, some jewelry, and a man's watch that Davidson recognized as Russell's. A few days later, defendant said something like he had "done away with Bob" or "Bob won't be around no more."

2. The Defense Case

Ruth Scott worked for two companies that manufactured Native American jewelry and components. From 1976 to 1981 her company manufactured about 50,000 reusable cigarette lighter cases decorated with a kachina or rain god figure, some of which were sold in California. One or two competitors made similar cases. The lighter case Detective Fraley had obtained from Ronnie Woodin was similar to the lighter cases her company manufactured. Scott's company also manufactured component parts for rings similar to the ring Detective Fraley had obtained from Catherine Glass. The ring was a low-priced "tourist item," and Scott had seen thousands of them. Scott testified that the marking scratched on the back of the ring appeared to be a "3" placed there by the wholesaler, indicating the price paid for the ring.

Damon Gene Taylor had managed a discount cigarette store in Bakersfield since early 1984. His store sold lighter cases similar to the case Detective Fraley obtained from Ronnie Woodin. Such cases were very common; Taylor ordered 50 to 100 such cases every week and sold them for $1.50 each. Other cigarette and jewelry stores also sold the cases.

Bakersfield Police Officer Kevin Clerico, who had participated in the raid at the Caravan Inn on October 14, 1984, testified that, upon his arrest, Phinney said that the guns seized in the raid belonged to Lutts, that most of Lutts's property was stolen from others, and that he had no further information concerning the guns.

Christopher Hillis, a Kern County District Attorney's Office investigator, interviewed Gerry Tags on June 18, 1986. In that interview, Tags made several statements that were inconsistent with her testimony at the preliminary examination. Lieutenant John Porter was recalled and testified that when he interviewed Emma Foreman in January 1990, she said that defendant told her about the old couple "about a month before or after [Russell] was killed." Detective Fraley was recalled and testified that when he interviewed Foreman in February 1985, she said she hated defendant "with a purple passion." Although Fraley had worked on the Merck and Russell cases since December 1984, he first came into contact with Roy Davidson in October 1986 at the jail. Davidson, a drug abuser, offered to "get people to talk" if Fraley would help him get out of jail.

Dr. David Bird, a clinical psychologist with experience researching and treating drug abuse, testified that long-term use of methamphetamine damages the user's memory, perception, language comprehension, and visual motor control. Continued use over a period of years can result in lost memories of days or weeks. The user may confuse actual experiences with things he or she read or heard about, and may stay awake for days at a time. The user also may hallucinate and record the hallucinations as memories, and may become paranoid regarding a person the user hates. Dr. Bird also said that about six months after a person stops using methamphetamine, that person will experience an acute brain damage syndrome that lasts another six months to one year. Even after recovery, the person's memory of the period of drug abuse remains jumbled. According to Dr. Bird, the transcript of Gerry Tags's preliminary examination testimony showed signs of prolonged methamphetamine abuse, including lack of comprehension, faulty recall, suggestibility, contaminated memory, and mixing reality with her imagination.

Dr. Bird further testified that heroin, an opiate, is primarily a pain analgesic but also brings on euphoria. Heroin affects the ability to perceive and recollect because the user is focused on what is happening inwardly. After the euphoria subsides, the user is uneasy and begins looking for the next dose. Dr. Bird said the cessation of heavy heroin use causes very strong biological withdrawal symptoms beginning one to 12 hours after the last dose. An addict will "do anything" to get more of the drug, including lying, cheating, and stealing.

3. The Verdicts

The jury found defendant guilty of the Merck murders but could not agree on the charge involving Russell. The trial court declared a mistrial as to the Russell count.

C. Penalty Phase

1. The Prosecution's Case

Alma's daughter, Betty Turner, and two of Alma's granddaughters, Terri Jones and Shelley Denise Cox, testified about the impact of the Mercks' deaths upon them and their families. James Foster testified about an incident in October 1985 when defendant broke into his home, threatened him with a gun, bound his hands and feet and those of his co-worker Jessie Cruz, and stole numerous items before leaving. A neighbor of defendant, Betty Jean Abney, testified about an incident in 1993 in which defendant had allegedly picked up his girlfriend's young son Robert by the hair and thrown him to the ground. The testimony of these witnesses is discussed in more detail below in parts II.D.1, II.D.4 and II.D.7.

Certified court records of defendant's 1970 robbery conviction were admitted into evidence. The parties stipulated that defendant perpetrated the offenses involving James Foster and Jessie Cruz.

2. The Defense Case

Defendant's aunt, Selma Yates, and her son, Leroy Cowan, testified about the abuse defendant suffered as a child at the hands of his father, Wes. According to Yates and Leroy, Wes, like his father before him, was an alcoholic who was violent when drunk. Defendant's mother, Betty, had eight children. Because Wes spent much of his money on alcohol, there often was not enough food in the house. Wes beat defendant for no reason, and beat Betty when she was pregnant. Once when both defendant and Leroy were present, Yates had to hit Wes over the head with a rolling pin to get him to stop beating Betty. While the police were dragging Wes away, he threatened to kill everyone when he got out of jail. When Leroy stayed at defendant's house, the boys all slept in the same bed. After a night of drinking, Wes would wake up the boys, jerk them out of bed and beat them. Several times Wes mistook Leroy for defendant and when he realized his mistake, he tossed Leroy aside and grabbed defendant. Once Wes locked defendant and Leroy in a car for an entire afternoon. Wes was arrested several times for abusing his family.

Both Yates and Leroy testified about a time when Yates's family, who lived in Richmond, went to live with Betty and her family in Bakersfield. When Leroy attended school with defendant, defendant's grades and behavior improved so much that the teachers asked Leroy to stay. Yates, however, would not allow Leroy to stay because of the drinking and violence in Betty's house. This greatly disappointed defendant. Later, when defendant was a teenager, Wes took defendant to bars and started him drinking.

Yates testified the defendant she knew was not the type who would murder two people. Yates did not believe in the death sentence except in extreme cases. Leroy did not believe defendant should be put to death because he had to have been on drugs or alcohol to commit the murders and because he did not get a fair shake in life.

Defendant's girlfriend, Brenda H., first met defendant in 1993, and she and her five children lived with him for about eight months until he was arrested. At that time, defendant was supporting the family with his Supplemental Security Income money. When Brenda H. first met defendant, they both were involved with drugs. Together they decided to quit, and they both were getting off drugs when defendant was arrested. Brenda H. went into drug rehabilitation and got a job. Brenda H. had been off drugs for close to a year when she testified.

Brenda H. testified she did not see the incident in April 1993 in which defendant had allegedly picked up her son Robert by the hair, but afterwards Robert was not physically hurt. Brenda H. further testified that defendant never hurt her and that he treated her children as if they were his own. He was kind to them, helped them with schoolwork, played guitar and sang to them, and took them camping and fishing and to watch fireworks on the Fourth of July. Brenda H. testified she loved defendant and would be "devastated" if he were sentenced to death.

Three of Brenda H.'s children, Robert, Michael and Melody, testified about their relationship with defendant. Their testimony is described in further detail below in part II.D.7.

3. Rebuttal

Michael Rascoe, the Kern County deputy sheriff who investigated defendant's alleged abuse of Robert H. on April 9, 1993, testified about statements Robert and Michael H. made to him regarding the incident. His testimony is discussed in greater detail below in part II.D.7.


A. Prearrest Delay

Defendant contends the nearly 10-year delay between the Merck killings in September 1984 and his arrest in August 1994 prejudiced his ability to defend against the murder charges, violating his rights to a fair trial and to due process of law under the state and federal Constitutions.*fn9 As we shall explain, we find no constitutional violation.

1. Factual Background

Defendant first moved to dismiss the complaint in August 1994, arguing the 10-year delay between the murders and his arrest prejudiced him because of his own faded memory and that of critical defense witnesses. In support, defendant's attorney, Michael Sprague, declared in pertinent part, "Due to the passage of time, the defendant does not [know], and is unable to recall, where he was, who he was with, or where he was living, or located at the time of the . . . homicides."

An evidentiary hearing on defendant's motion was held concurrently with the preliminary examination in September 1994. At the hearing, Criminalist Nerida, Detective Diederich, Detective Fraley, Investigator Christopher Hillis, and Detective Christopherson each testified about his respective role in the investigation and the evidence uncovered along the way. The testimony of these witnesses at the hearing largely anticipated that presented at trial regarding the course of the Merck homicide investigation. (See ante, pp. 4-10.) Thus, their testimony revealed that by early 1985, law enforcement had gathered evidence linking several items of the Mercks' property with defendant, including Clifford's lighter, wallet, identification, and Colt .25-caliber pistol, as well as Alma's turquoise ring and the couple's Social Security checks. However, fingerprint comparisons, including a comparison of the latent prints lifted at the crime scene with defendant's rolled prints by sheriff's department criminalist Jerry Roper in November 1984, and a 1987 comparison of several of the latent prints with prints in a computerized fingerprint database, were negative.

Detective Fraley was assigned to investigate the Merck case from December 1984 through September 1987. He testified that in February 1985 defendant called him and offered to discuss the case. Fraley declined defendant's offer, however, because he "was still looking at the circumstances surrounding the homicide and right at that point in time I was not prepared to take him on, so to speak, from an investigator's point of view."

In late 1985 or early 1986 Detective Fraley presented the Merck case to the District Attorney's office. After reviewing the file, two deputy district attorneys told Fraley that all of the evidence was circumstantial and that they could not issue a complaint without evidence linking defendant directly to the murders. Similarly, Deputy District Attorney Barton Hegeler told Christopher Hillis, the district attorney's investigator who worked on the Merck case in 1986, that there was not enough evidence against defendant to go to a jury.

Upon his transfer to a different department in September 1987, Detective Fraley gave the Merck case file to his supervisor for reassignment. At that time, he did not believe he had probable cause to arrest defendant. He had done little work on the case in the preceding few months because his leads had dried up. When Detective Christopherson reopened the Merck investigation in 1994, no detective was assigned to the case and the Kern County Sheriff's Office had done no active investigation since 1987. In May 1994, Christopherson asked the technical investigations unit to recompare the latent prints from the Merck crime scene with the rolled prints of defendant, his brother and one other suspect. Criminalist Sharon Pierce found that latent print No. 10 matched defendant's left thumbprint and latent print No. 44 matched his left middle fingerprint. Christopherson then presented the case to the district attorney, who decided there was sufficient evidence to arrest and charge defendant.

The defense called Jerry Roper, who testified that he had no independent recollection of the fingerprint comparisons he performed in the Merck case in 1984 and could not presently recreate them because his eyesight had deteriorated over the years.

At the conclusion of the hearing, the court denied the motion to dismiss, explaining, "I don't find any deliberate acts by law enforcement or the agencies not to bring this case to trial or to push forward with it as soon as they could. It would appear there was an inadvertent failure to detect a critical fingerprint analysis. It appears that even as late as '86, '87 there were other people seriously considered as suspects in the case that were being investigated at the time before then. And also . . . the fingerprint connect[ing defendant] with the case certainly added [a] substantial amount to the body of evidence against the defendant[]."

Shortly after his arraignment in superior court in September 1994, defendant moved to dismiss the information based on prejudicial prearrest delay. As sources of prejudice, he identified his own faded memory and that of crucial witnesses, as well as Roper's present inability to explain the basis for his 1984 conclusion that defendant's rolled prints did not match the latent prints from the Merck crime scene. In support, defendant submitted, among other evidence, his own sworn declaration that he had "no present memory due to the lapse of time as to his whereabouts or activities between 9-1-84 to 9-10-84." Defendant further asserted that during the 10 years between the crimes and his arrest, the Kern County Sheriff's Department had lost several items of evidence taken from the Mercks' service porch area and living room. He argued the loss prejudiced him because he could not now test the items for fingerprints.

At an evidentiary hearing the following January, William Thompson, the property control officer for the Kern County Sheriff's Department, testified that according to his records, as of July 1985 property from another case had been placed on the shelf where the missing items from the Merck case had been located, and that property "was of sufficient amount that the other [Merck] property would have had to have been missing at that time." The trial court denied defendant's motion without explanation.

Defendant renewed his motion to dismiss for prearrest delay several additional times, including in January 1996 when he joined co-defendant Gerald Cowan's motion; in February 1996 during the conditional examination of James Woodin; in March 1996 when he filed supplemental motions; and during the trial testimony of prosecution witness Mitzi Cowan. Among the issues raised was the destruction of evidence seized in the October 1984 raid at the Caravan Inn during which Danny Phinney and Robert Lutts were arrested. Each of these motions was unsuccessful.

2. Discussion

The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging. (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson); People v. Morris (1988) 46 Cal.3d 1, 37, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5; see also United States v. Lovasco (1977) 431 U.S. 783, 789-792; United States v. Marion (1971) 404 U.S. 307, 324-325.) Such prearrest or precharging delay does not implicate the defendant's state and federal speedy trial rights (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1), as those rights do not attach until a defendant has been arrested or a charging document has been filed. (Nelson, supra, 43 Cal.4th at p. 1250.)

When, as here, a defendant does not complain of delay after his arrest and charging, but only of delay between the crimes and his arrest, he is "not without recourse if the delay is unjustified and prejudicial. '[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.' [Citation.] Accordingly, '[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.' [Citation.]" (Nelson, supra, 43 Cal.4th at p. 1250.)

Prejudice may be shown by " 'loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.' " (People v. Catlin (2001) 26 Cal.4th 81, 107, quoting People v. Morris, supra, 46 Cal.3d at p. 37.) And although the federal constitutional standard for what constitutes sufficient justification for delay is unclear (Nelson, supra, 43 Cal.4th at pp. 1251-1254), we have noted that "the law under the California Constitution is at least as favorable for the defendant in this regard" as federal law. (Id. at p. 1251.) Accordingly, as in Nelson, we apply California law here.

Under the California standard, "negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant." (Nelson, supra, 43 Cal.4th at p. 1255.) Rather, "whether the delay was purposeful or negligent is relevant to the balancing process. Purposeful delay to gain advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Id. at p. 1256.) The justification for the delay is strong when there is "investigative delay, nothing else." (Ibid.)

We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay (People v. Morris, supra, 46 Cal.3d at p. 38), and defer to any underlying factual findings if substantial evidence supports them (cf. People v. Hill (1984) 37 Cal.3d 491, 499 [concerning right to speedy trial]). Because defendant last renewed his motion to dismiss during Mitzi Cowan's trial testimony, we will consider all of the evidence that was before the court up to that time, including the evidence presented at the preliminary examination, the various hearings on defendant's motions and supplemental motions, and at trial.

Defendant's showing of prejudice is "relatively weak." (See Nelson, supra, 43 Cal.4th at p. 1256.) Defendant first claims prejudice due to Jerry Roper's inability, after 10 years, to recall the differences he had found in 1984 between defendant's rolled fingerprints and the latent prints recovered from the Merck crime scene, or to recompare the prints due to his failing eyesight. Because of the delay, defendant argues, Roper was unable to rebut the implications, raised by other witnesses and exploited by the prosecutor, that he was incompetent. But from 1994 through the time of trial in 1996, both the latent prints and defendant's rolled prints were still in existence and available for examination by defense experts; if the prints did not match, the defense could have presented its own expert to so testify. Thus, this case is fundamentally unlike People v. Hartman (1985) 170 Cal.App.3d 572, on which defendant relies. There, both the testimony of the coroners who had examined the victim's body immediately after his death and ascribed the death to natural causes (and who had since died), and the victim's body itself, which had decomposed beyond the point of useful testing, were unavailable at the time of trial. (Id. at p. 580.) Here, by contrast, while Roper's testimony was no longer very useful to the defense, the prints themselves were readily available for retesting.

Defendant argues that an expert hired and paid by the defense would have been less persuasive to a jury than the Kern County Sheriff's Department's own technician. But if there were differences between defendant's rolled prints and the latent prints, any expert should have been able to point them out to the jury. Accordingly, any prejudice defendant suffered from the unavailability of Roper's explanatory testimony was minimal.

Defendant next argues the delay prejudiced him because of his own lost memory; by 1994, he was unable to recall where he was or what he was doing during the first weeks of September 1984 and could not identify alibi witnesses or explain how he came into possession of the Mercks' property. But defendant was aware by at least February 1985, when he offered to talk to Detective Fraley, that he was a suspect in the Merck murders. He therefore had an incentive to record any exculpatory information he had regarding his whereabouts, the property, or the identity of alibi witnesses.*fn10 On the other hand, if by early 1985 defendant had already lost the ability to recall his whereabouts in September of the previous year -- whether due to drug use or some other cause (see People v. Butler (1995) 36 Cal.4th 455, 464) -- any claim that he would have been able to construct an alibi defense had the prosecution commenced sooner is speculative. (See People v. Morris, supra, 46 Cal.3d at p. 38.) In any event, in light of the strong evidence of defendant's guilt and the public interest in bringing him to trial, his "bare statement" of inability to recall "realistically cannot be considered more than minimal prejudice." (People v. Vanderburg (1973) 32 Cal.App.3d 526, 533, italics omitted.)

Defendant next argues that by the time of his arrest in 1994, the memories of witnesses had faded regarding his alleged possession of the Mercks' property, depriving him of the ability to effectively cross-examine these witnesses. For example, at the preliminary examination and at trial, Alma's son Robert Johnson could not completely describe certain items allegedly stolen from the Mercks. But Johnson testified at the preliminary examination that his ability to describe the property had been no better in 1984 when he spoke to law enforcement officers. Defendant further points out that his sister Catherine Glass could not determine if the ring shown to her at the preliminary examination and at trial was the same ring she had given to Detective Fraley and identified as coming from defendant. But contemporaneous police reports documented Glass's conversations with Fraley, Glass confirmed at trial that she told Fraley the truth, and Fraley testified that the ring Glass gave him was the ring produced at trial. Thus, Glass's ability to identify the ring at trial was not critical to the prosecution's case. (Cf. Scherling v. Superior Court (1978) 22 Cal.3d 493, 506 [prejudice from fading witness memories due to delay is diminished where contemporaneous police reports exist that may be introduced into evidence or used to refresh the witnesses' recollection].)

Defendant also complains about Jerry Jones's inability to identify the lighter shown to him at trial as Clifford's, and Ronnie Woodin's failure to positively identify the lighter shown to him at trial as the one defendant had sold to him. Again, however, contemporaneous police reports documented Detective Fraley's 1985 conversations with these witnesses, Fraley testified the lighter produced at trial was the one Woodin had given him, and both Woodin and Jones testified that they had told Fraley the truth. Again, the witnesses' ability to identify the items at trial was not critical.

Defendant further complains about the faded memories of Phinney and Lutts at trial regarding the origins of the Colt .25-caliber pistol seized in the October 1984 raid on the Caravan Inn. Defendant claims he was deprived of the ability to cross-examine these witnesses to show that they did not obtain the gun from him. But Phinney's December 21, 1984, interview with Detective Diederich, in which he identified defendant as the source of the gun, was tape-recorded and transcribed. Thus, Phinney's ability at trial to independently recall what had happened in 1984 was not critical to the prosecution's case. Moreover, although Lutts refused to talk to police after his arrest in 1984, his testimony about the gun was cumulative. Again, any prejudice due to the faded memories of these witnesses was minimal.

Defendant next claims the delay prejudiced him because, when Emma Foreman was interviewed by Lieutenant Porter in January 1990, she could not recall whether defendant had confessed to killing an elderly couple in Bakersfield a month after Russell was murdered, or a month before the murder. Defendant argues that if he confessed a month before Russell was killed, he could not have been referring to the Mercks. But even if defendant had confessed to killing some other elderly couple in Bakersfield, that would not mean he did not kill the Mercks as well. Moreover, Foreman's testimony was "not of crucial significance" to the prosecution's case. (See Scherling v. Superior Court, supra, 22 Cal.3d at p. 506.) The case rested primarily on the fingerprint and ballistics evidence coupled with defendant's possession of items of the Mercks' property. Foreman's testimony added little to the strong body of evidence implicating defendant in the murders.

Defendant further claims the delay prejudiced him because during the time between the crimes and his arrest, law enforcement lost material evidence -- including jewelry boxes, a radio, purses, and cut pieces of lamp cord -- taken from the Mercks' service porch and living room after the murders. Defendant argues he was deprived of the ability to test those items for fingerprints. But the trial court reasonably could have concluded, based on the testimony of Officer Thompson, the property control officer, that the property had been missing as of July 1985. Thus, a more prompt prosecution would not have benefited defendant unless it was initiated in early 1985. Moreover, even if some other suspect's fingerprints were on the items, defendant still would have been linked to the murders because his own fingerprints were found at the crime scene. Accordingly, any prejudice flowing from the loss of these items was minimal.

Defendant finally points to the property seized in the October 1984 raid on the Caravan Inn in which Danny Phinney and Robert Lutts were arrested, which the Bakersfield Police Department destroyed around 1991. Defendant contends he lost the ability to determine whether any of the property had been stolen from the Mercks, which would have supported the defense theory that Lutts and Phinney committed the murders. But none of that property matched the Merck family's descriptions of property that was missing from the Mercks' home after the murders.*fn11 Accordingly, the possibility that defendant could have shown that any of the destroyed property had belonged to the Mercks seems remote. Moreover, defense counsel was able to exploit the destruction of this evidence by pointing out, in closing argument, that it had never been examined to determine if it came from the Mercks' home. Again, any prejudice from the loss of this evidence was minimal.

Against defendant's weak showing of prejudice, the prosecution's justification for the delay was strong. The delay was "investigative delay, nothing else." (Nelson, supra, 43 Cal.4th at p. 1256.) Here, as in Nelson, although "the police may have had some basis to suspect defendant of the crime shortly after it was committed . . . law enforcement did not fully solve the case" until 1994, when criminalist Sharon Pierce recompared the latent fingerprints from the Merck murder scene with defendant's rolled prints and found a match. (Ibid.) Once in possession of evidence tying defendant to the Merck crime scene, the prosecution promptly charged him with the murders.

Defendant argues the prosecution had enough evidence to arrest him in early 1985, including Phinney's statements linking him to Clifford's gun, as well as Clifford's lighter and Alma's ring, which witnesses said they had obtained from defendant. But as we said in Nelson, "[a] court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges. 'The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with the prosecutor's decision as to when to seek an indictment. . . . Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt.' " (Nelson, supra, 43 Cal.4th at p. 1256, quoting People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 914-915; see United States v. Lovasco, supra, 431 U.S. at pp. 790-796.) Indeed, " '[a] prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.' " (People v. Nelson, supra, 43 Cal.4th at p. 1256.) Here, the evidence law enforcement possessed in 1985 was all circumstantial and connected defendant only to the Mercks' property, not to the Merck crime scene. The prosecution was justified in waiting until it had evidence connecting defendant to the crime scene before arresting him and charging him with murder.

Defendant further argues that Detective Fraley could have gained direct evidence linking him to the murders (and also could have allowed defendant to preserve his version of events) by accepting defendant's offer in February 1985 to discuss the case. But as we explained in Nelson, "[a] court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case. . . . It is not enough for a defendant to argue that if the prosecutorial agencies had made his case a higher priority or had done things a bit differently they would have solved the case sooner." (Nelson, supra, 43 Cal.4th at pp. 1256-1257, italics added.) Here, Fraley testified that he declined to interview defendant in February 1985 because he did not yet have enough information about the crimes to be able to detect if defendant was lying. Fraley's tactical decision to put off interviewing defendant until he had more information was quintessentially the type of law enforcement decision that courts should not second-guess.

Defendant next contends that in light of questions about Roper's competence that arose in 1984, the Merck case latent prints should have been reexamined sooner. He argues there is no explanation for why the Merck case was not included in Thomas Jones's reexamination of Roper's work that took place sometime before 1987. (See fn. 4, ante.) But the record is unclear as to whether the Merck case comparisons were not included in the recheck, or were included but found not to be in error. Neither Jerry Grimes, who supervised the technical investigations unit at that time, nor Jones, who performed the reexamination, could pinpoint the precise span of time it included. Grimes could confirm only that Jones found no additional problems. In any event, defendant's argument ignores that the department did doublecheck Roper's work in a different way -- several of the latent prints from the Merck case were compared with prints in a computerized fingerprint database, with negative results.

Defendant also argues it was negligent not to doublecheck Roper's work in light of Nerida's testimony that in 1984 it was the technical investigations unit's policy to have two people sign off on every fingerprint comparison. But both Grimes and Roper testified that there was no such policy for fingerprint comparisons that the initial examiner concluded did not match. Thus, substantial evidence supports the conclusion that there was no blanket doublechecking policy in 1984. In any event, defendant's argument amounts to the very type of Monday morning quarterbacking that we condemned in Nelson.

The same can be said for defendant's claim that the Merck case should have been reassigned after Detective Fraley left the robbery-homicide unit in September 1987, rather than being left dormant. The case was not dormant: Detective Christopherson testified that the supervisor of the unit was responsible for the case after Fraley left. Again, we will not second-guess the Department's decision to allocate its resources in this manner. (See Nelson, supra, 43 Cal.4th at pp. 1256-1257.)

In sum, the investigation of the Merck murders was not perfect; no investigation is. Like the trial court, however, we find no evidence that law enforcement or the prosecution deliberately delayed the investigation in order to gain a tactical advantage over defendant. Nor do we find evidence of negligence. Rather, at worst the Kern County Sheriff's Department simply erred when it failed to determine before 1994 that defendant's fingerprints matched the Merck scene latent prints. That being the case, balancing defendant's weak showing of prejudice against the strong justification for the delay (see Nelson, supra, 43 Cal.4th at p. 1257), we find no due process violation. Accordingly, the trial court did not abuse its discretion when it denied defendant's many motions to dismiss due to prearrest delay.

B. Jury Selection Issues

1. Exclusion of Prospective Jurors for Cause

Defendant asserts the trial court erroneously excused for cause two prospective jurors based on their views about the death penalty, violating his right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution. (See Morgan v. Illinois (1992) 504 U.S. 719, 726-728; Wainwright v. Witt (1985) 469 U.S. 412, 422-424; People v. Williams (1997) 16 Cal.4th 635, 666-667.) "To achieve the constitutional imperative of impartiality, the law permits a prospective juror to be challenged for cause only if his or her views in favor of or against capital punishment 'would "prevent or substantially impair the performance of his [or her] duties as a juror" ' in accordance with the court's instructions and the juror's oath. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 741.)

" ' "A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate." ' " (People v. Jenkins (2000) 22 Cal.4th 900, 987.) " ' "[O]n appeal, we will uphold the trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous." [Citations.]' " (Ibid.; accord, People v. Lewis (2008) 43 Cal.4th 415, 483.) "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. 1, 9 [167 L.Ed.2d 1014, 127 S.Ct. 2218, 2224]; accord, Wainwright v. Witt, supra, 469 U.S. at p. 426.) Moreover, "when there is ambiguity in a prospective juror's statements, 'the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve it in favor of the State.' " (Uttecht v. Brown, supra, 551 U.S. at p. 7 [127 S.Ct. at p. 2223], quoting Wainwright v. Witt, supra, at p. 434; accord, People v. Lewis, supra, 43 Cal.4th at p. 483.)

Here, substantial evidence supports the trial court's conclusion that Prospective Juror Nos. 041853 and 045969 held views that would prevent or substantially impair their ability to perform their duties as jurors.

a. Prospective Juror No. 041853

On her questionnaire,*fn12 Prospective Juror No. 041853 described her feelings about the death penalty as follows: "It never really bothered me before yesterday, when I heard the judge mention it and pictured myself in the jury as one who handed such a verdict in. I really don't feel it's my right to decide weather [sic] or not somebody dies. It would bother me the rest of my life." She noted that in the past she had held a different view of the death penalty, writing: "Like I said I was pretty much OK with it but I never gave it deep thought until yesterday. I don't feel it's the right thing. Life and death should be left in God's hands not ours." She next wrote that she believed the death penalty was imposed too often, explaining: "Along with downright guilty people who have received it there have been innocent ones as well and how those jurors live with theirselves [sic] I'll never know." She also indicated she felt the death penalty was wrong for religious reasons, expounding: "I am not a really religious person to the point of going to church every Sunday but I do believe in God and I've never seen or heard him say, we can take his place for the day and sentence someone to their death." Finally, when asked to select a statement which described her attitude toward serving as a juror on a death penalty case, she chose "I could never vote to impose the death penalty in any case no matter what the facts and the circumstances of the case."

On voir dire by the court, Prospective Juror No. 041853 affirmed that her views regarding the death penalty would not cause her to refuse to vote for a verdict of guilty. However, when asked if such views would prevent her from finding a special circumstance true even if it was proved beyond a reasonable doubt, she answered, "I -- do I have to answer yes or no?" Prompted to explain, she said "I don't know what I would do to tell you the truth. I don't like the idea of it but, on the other hand, I don't like the other end of it either, you know, as far as the crime or whatever, so I don't know." Asked for further clarification, she added: "I just personally wouldn't want to be the one to hand that judgment down." The court then asked, "Now if I understand you . . . your view is this . . . . You are not opposed to the death penalty, you just don't want to be in a position where you have to make that decision." She responded, "Basically, yes."

Upon questioning by defense counsel, Prospective Juror No. 041853 affirmed that she was not opposed to the death penalty, but she did not want to be the one who makes the decision. Upon further questioning, however, she twice indicated that she could impose the death penalty, albeit "with sadness and reluctance." She then affirmed that she "might be able to impose the death penalty in the appropriate case depending on the facts and circumstances."

The prosecutor then asked Prospective Juror No. 041853 what had changed since she filled out her questionnaire. Prospective Juror No. 041853 explained that the questions regarding the death penalty had caught her off guard, and that she felt "conflicted inside" because she previously had been in favor of the death penalty. Asked if she was still conflicted, she said "Yeah, and I am getting more onto the religious side lately, and I just -- it is hard. I am going through a lot." The prosecutor reassured Prospective Juror No. 041853 that there was no right answer, but asked her to think "very carefully" about whether she realistically could impose the death penalty. The following colloquy then occurred:

"Q: [by the prosecutor]: No one is going to drag you into making you -- to make you say that, but what I want to know is if you really can do it. When you think about it, think very carefully about it. [¶] Can you write down, 'I vote for death,' and then can you come back out here and face the defendant and say, 'I voted for death'?

"A: Again, without saying yes or no, just if I can picture these crimes and the people, what they do, I say, 'yes.' It is going to have to be presented in such ...

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