Alameda County Super. Ct. No. H-10662, Judge: Philip V. Sarkisian.
The opinion of the court was delivered by: Baxter, J.
Defendant Franklin Lynch was convicted of the first degree murders of Pearl Larson, Adeline Figuerido, and Anna Constantin; the residential burglary of Larson, Figuerido, Constantin, Bessie Herrick, and Ruth Durham; and robbery of Figuerido, Constantin, Herrick, and Durham. (Pen. Code, §§ 187, subd. (a), 189, 211, 459.)*fn1 The jury also found true the special circumstance allegations of burglary murder and robbery murder as to all three murder victims, the multiple-murder special-circumstance allegation, and allegations that defendant personally inflicted great bodily injury on Herrick and Durham, who were persons 60 years of age or older. (§§ 190.2, subd. (a)(3), (17), former §§ 1203.075, 1203.09, subd. (a), 12022.7.) The jury returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) For the reasons that follow, we affirm the judgment.
Between the months of June and August 1987,*fn2 defendant beat and robbed, or attempted to rob, five elderly Caucasian women in their homes. Three of the victims died as a result of the attacks.
Late in the evening on June 24, 76-year-old Pearl Larson was found dead in her home. She had lived in a corner house on Wake Avenue in San Leandro with her teenage grandson. Larson was found lying on a bed, with the card holder portion of a wallet and some coins next to her. Her hands were bound with nylon stockings. Her housecoat was pulled up over her head, and she was not wearing underwear. Subsequent investigation revealed no evidence of a sexual assault. An autopsy revealed Larson died by asphyxia caused by a garment that was tied around her head, covering her face and part of her neck. There was bruising on her face, particularly around her left eye, caused by blunt trauma. She had a contusion on the back of her head that "went deeply into the skin of the scalp down to the bone." The skin on her left ring finger was significantly abraded and bruised around the area of her ring.
Earlier that day, between 11:30 and 11:45 a.m., Jolevia Jones, Larson's gardener, and his cousin had arrived to work at Larson's house. Jones, who was approximately 80 years old, spoke with Larson for a few minutes.
About 11:00 a.m. on June 24, Jacqueline Brown, who lived across the street from Larson, observed Larson's grandson leave on a skateboard. At 11:20 a.m., she saw a man, whom she later identified as defendant, standing in Larson's yard. Defendant walked along the side of the house, went to some bushes and appeared to be urinating, and carefully looked around. He then walked to the front of the house and Brown lost sight of him. Around noon, Brown saw defendant jump over the bushes, which were about five feet tall, and run away. Larson typically parked her car under a tree each summer morning to get it out of the sun. Between 7:30 and 8:00 p.m. on June 24, Brown observed Larson's vehicle still parked under the tree.
Bettie Agliano, a friend of Larson's, had plans to meet with her on June 24. Agliano called Larson at home at 12:15 p.m., and at various times during the rest of the afternoon, but no one answered the telephone.
b) Death of Adeline Figuerido
On July 28, 89-year-old Adeline Figuerido was killed in her home. She lived on 143rd Avenue in San Leandro with her two daughters, Marie and Olivia Figuerido. Her house was separated from the next building on the left by an undeveloped half-acre lot and Bay Area Rapid Transit tracks.
Marie and Olivia made lunch for their mother around noon each day. On July 28, they left her at the house around 10:30 a.m. and returned around 11:45 a.m. to discover their mother's body in the dining room. She was covered with a bedspread and her hands were tied behind her back with an electrical cord. A different bedspread was wrapped around her head. The house had been ransacked, and fine jewelry and cash were missing.
An autopsy revealed numerous blunt trauma injuries to Figuerido's face, head, and neck. The bones in her face near and around her right eye, and her mandible on the left side, were fractured. There was extensive hemorrhaging in the neck area, indicating sufficient force was applied to stop circulation to the brain and to interfere with her breathing. She died from blunt trauma to the head and neck.
Between about 11:15 and 11:30 a.m. on July 28, Jan Morris, who worked across the street from the Figuerido residence, saw a man whom she later identified as defendant standing on the Figueridos' driveway. Defendant walked down the driveway toward the front of the house, looked in both directions, turned around, and walked rapidly to the back of the house.
On July 27, the day before Figuerido's murder, between 11:00 and 11:30 a.m., Irma Casteel observed a man whom she later identified as defendant walk to the end of the dead-end street, stand there, and then turn around and walk back. There were two corner houses at the end of the street, one of which was occupied by an 89-year-old woman, and the other by a similarly aged couple. Casteel lived about one block from the Figuerido residence.
c) Death of Anna Constantin
On August 13, 73-year-old Anna Constantin was attacked in her home. Constantin lived with her daughter, Vickie Constantin, in a home at the corner of Blossom Way and Bancroft Avenue in San Leandro. When Vickie arrived home from work that evening about 5:45 p.m., she discovered her mother had been beaten so severely she was almost unrecognizable. Some rooms were "messier" than others, items were out of place, and the back screen door had been cut. A gold bracelet, gold chains, and cash were missing from the home.
Constantin was taken to Eden Hospital. Her treating physician, Dr. Chuc Van Dang, testified that her face was swollen and bruised, and she had bruises on her shoulders, back, and other parts of her body. Her left maxilla, or cheek bone, and a right rib were fractured. These facial injuries and bruising were caused by blunt trauma. In addition, Constantin had an open scalp wound two inches long that extended down to the skull. The wound became infected and grew larger over time, so that eventually Constantin's skull was visible. Dr. Dang saw Constantin about 6:00 p.m. on August 13, and opined that her injuries had been inflicted "very recent[ly]," and no more than six hours before 6:00 p.m.
Adele Manos, who had been driving down Bancroft Avenue around 3:15 or 3:20 p.m. that day, saw a man, whom she later identified as defendant, come out from the hedges about a block from the intersection of Bancroft and Blossom, and look around. The man walked down Bancroft toward Blossom.
Around 5:00 p.m., defendant sold a bracelet identified as belonging to Vickie Constantin to a secondhand dealer. A few days later, he gave Mackie Williams, an acquaintance, two necklaces that were also identified as belonging to Vickie Constantin.
Anna died on September 28 of pulmonary emboli due to deep leg vein thromboses or blood clots. Constantin's thromboses were the result of treatment for and complications from her August 13 injuries.
Eighty-eight-year-old Ruth Durham lived alone on Alden Road in Hayward. Her daughter and son-in-law lived next door in a corner house at the intersection of Alden Road and Boston Road. In the late afternoon of August 15, Durham left her daughter's house and returned home. She sat down in a chair in her living room, and shortly thereafter was struck on both sides of her face. She remembered nothing further about the attack. About 5:30 p.m., after being alerted by a neighbor, Durham's son-in-law discovered her sitting bloody and beaten on the steps of her front porch. She was taken to Eden Hospital. Dr. Kenneth Miller, an emergency room physician at the hospital, testified Durham had massive swelling deformities of her face. Both sides of her jaw, and her right maxilla were fractured. Miller opined that Durham's injuries were the result of blunt trauma. After leaving the hospital, Durham needed to live with her daughter because she was no longer capable of caring for herself.
The screen on Durham's back door had been torn just above the handle. Her house was ransacked, and cash and personal belongings were missing. A man later identified as defendant had been seen by neighbors at the intersection of Alden and Boston Roads across the street from Durham's house at about 4:30 p.m. on the day of the attack.
e) Attack on Bessie Herrick
Around 3:30 p.m. on August 17, 74-year-old Bessie Herrick and her husband, Frank Herrick, returned to their home at the corner of Royal and Bartlett Avenues in Hayward. About 10 to 15 minutes later, Frank went outside to water the garden. While engaged in this activity, he observed a man, whom he later identified as defendant, jogging on Royal Avenue. Five minutes later, Frank returned to the house, peered inside through a window, and saw defendant hitting his wife, who was lying on the floor near the fireplace. Frank entered the house through the garage, but defendant had fled. Bessie's purse was on the floor, and her wallet was outside the purse. An emerald ring kept in a dish in the room was missing.
Bessie was taken to Eden Hospital. Her treating physician, Dr. Edwin Whitman, testified that her nose was broken, her face was swollen, and she had puncture wounds around the left eye. Her orbit and maxilla bones near her left eye were also fractured. She had suffered blunt trauma around the head and neck, and had lost nearly half a pint of blood. She identified defendant as her attacker.
Eric Hoak, an acquaintance and neighbor of the Herricks', was a passenger in a vehicle driving on Royal Avenue around 3:00 p.m. that day and observed a man, whom he later identified as defendant, standing on the Herricks' front porch. The man was looking around as if he were nervous.
John Wulf testified that he was driving down Bartlett Avenue toward Royal Avenue around 4:30 p.m. and saw a man, whom he later identified as defendant, run at an angle across the street about 50 feet in front of Wulf's car. The jogger ran from the side of the street on which the Herricks' home was located to the other side of the street, looking back over his shoulder toward the house. Wulf proceeded to his destination near the house, and shortly thereafter observed police activity at the house.
Lavinia Harvey, who was in her early 80's, lived in a corner house on Medford Avenue in Hayward. Around 3:00 p.m. on August 12, while her husband was away from home, Harvey noticed someone walking beneath their window. Harvey grabbed an iron rod, went outside, and confronted a man she later identified as defendant. She asked defendant what he wanted, and defendant asked, "Was there a Black kid come out this garden?" Harvey said no, gave defendant permission to check a different location in the yard while she observed him, and then instructed him to leave. Defendant did so, and Harvey reported the incident to police that day.
Defendant was apprehended in Los Angeles in October 1987. In a statement to police, defendant denied involvement in these crimes. He admitted selling Constantin's bracelet, but claimed he had obtained it in a drug deal. Defendant said he fled in August 1987 after he read in the paper that he had been connected to the theft of the bracelet.*fn3 He was concerned about going to jail and thought the police were trying to kill him.
Kurt Foell, a gemologist-appraiser, testified that the gold bracelet, identified as belonging to Vickie Constantin, was a man's bracelet mass produced in Russia after 1945.*fn4
Barbara Sullivan testified that around 4:30 p.m. on August 15, the day Ruth Durham was attacked, Sullivan saw an approximately 19-year-old Black man, wearing a red plaid flannel shirt and brown work boots, walking down the street on which Durham lived. Sullivan was unable to identify the individual she saw on the street in either a photo array containing defendant's photograph, or a physical lineup including defendant.
Thomas Ivory testified that on July 28, the date of Figuerido's murder, he saw a Black male walking on 143rd Avenue away from Figuerido's house about 11:45 a.m. The man tossed an object like a rock or a bottle cap as he walked. Ivory was unable to identify the man he saw in a photographic lineup or in a physical lineup including defendant.
Detective Robert Dekas of the San Leandro Police Department testified that on August 19 he and Officer Jouvanicot searched the area where Ivory said he saw an object tossed. They found a fingernail file, rocks, and bottle caps. Jouvanicot took the file for laboratory testing.
Defendant also introduced evidence of inconsistent statements by victim Bessie Herrick regarding the circumstances under which she first encountered defendant. The parties stipulated to dates between June 1987 and June 1988 on which descriptions of the suspect in the crimes, or photographs or likenesses of the suspect or defendant, appeared in the Hayward Daily Review newspaper.
Sergeant Kitchen of the San Leandro Police Department testified that after the murders of Larson and Figuerido, a description of the suspected killer was disseminated. Kitchen also testified that on July 29, Lieutenant Hull of the San Leandro Police Department held a press conference to provide information regarding these murder cases and descriptions of any suspect.
Dr. Elizabeth Loftus testified as an expert on eyewitness identification regarding certain general limitations on the accuracy of such identification.
The prosecution introduced evidence that defendant had been convicted of burglary in 1973 and robbery in 1982. It also introduced evidence of the circumstances of the robbery. On January 18, 1982, about 10:00 a.m., Palo Alto police responded to a woman's cries for help coming from a residence located on Palo Alto Avenue. Police Agent Jack Schindler noticed a man, whom he later identified as defendant, inside the house, and told him to open the door. Defendant refused, and broke a window to escape. After a chase, he was arrested. A glove and a woman's ring were found in his pocket. A second glove and a "watchcap-type hat" were found on the chase route. The victim was Rose Nimitz, an approximately 70-year-old Caucasian woman. She was not wearing a ring, and had a cut or abrasion and swelling on her left ring finger. The ring found on defendant was later returned to her.
The prosecution also introduced evidence of defendant's misconduct in jail. On June 26, 1988, defendant had two visitors, a woman and a child. At the conclusion of the 15-minute visiting period, Alameda County Deputy Sheriffs Stephen Chiabotti and Herb Walters told defendant his time was up. Defendant continued speaking with his visitors. Chiabotti attempted to handcuff defendant for the walk back to his cell. Defendant told Chiabotti not to handcuff him in front of his child. When Chiabotti persisted in attempting to handcuff defendant, defendant pushed Chiabotti in the chest, moving him backward several feet. Chiabotti and Walters struggled with defendant for two or three minutes before subduing him. Following the incident, defendant told Walters, "You guys fucked up. You should have killed me when you had a chance."
Three days later, on June 29, 1988, Deputy Chiabotti and another officer removed defendant from his cell, apparently in preparation for a court appearance. Defendant, who was not handcuffed, was carrying an accordion file. He threw the file on the ground and punched Chiabotti several times in the face, knocking him into a wall.
In addition, the prosecution introduced evidence of the unadjudicated murder of Agnes George. George, a Caucasian female in her late seventies, was found dead in her Richmond home around noon on October 15, 1987. She was covered with a blanket, and her hands and feet were tied with electrical cord and rope. She had suffered blunt trauma, including a broken jaw and cheekbones, and her death resulted from traumatic head and neck injuries. Her home had been ransacked, and a box in which she kept cash was empty.
On October 7, 1987, about 1:00 p.m., a neighbor had observed a man she later identified as defendant walking very slowly down the street on which George lived, and "looking all around the neighborhood." On October 15, between 8:30 and 9:00 a.m., Darlene Fleming, who lived across the street from George and was a close friend, heard George's front door shut. About 9:50 a.m., Fleming saw a man she later identified as defendant standing next to George's house.
The prosecution also introduced evidence of an unadjudicated battery on San Jose Police Officer Michael Rabourn. Between 6:30 and 6:45 p.m. on January 4, 1983, Rabourn, who was in uniform, observed a man he later identified as defendant walking across several front lawns. Rabourn approached defendant and asked for identification. Defendant backed away and Rabourn took hold of his arm. Defendant struck Rabourn in the face, knocking him off balance. Defendant ran and, after a brief chase and struggle, was arrested.
Defendant presented several character witnesses. Irish Shepherd testified that she and her husband were involved with a gospel singing group in the 1970's. Defendant was a member of the group from 1974 to 1976, was faithful in attending rehearsals and performances, and sang a solo on their record album.
Billie Rachal testified that she met defendant, who was acquainted with her son, when both boys were teenagers. In 1977, when defendant was 21 years old, Rachal's husband died. She experienced financial difficulty, and defendant gave her $100 as a gift. In 1987, defendant stopped Rachal as she got out of her car, and asked to borrow $10. She said she did not have the money. Defendant offered to carry in her groceries, but she declined the offer.
Defendant's mother, father, and brother testified. Defendant was born on July 21, 1955, and had an older brother, who was a program analyst with the Internal Revenue Service as well as a minister, and a younger sister. Defendant's parents had been married for about 39 years. His father had been a supervisor in a machine shop in Oakland before retiring. Defendant attended church regularly while growing up and was well cared for. Defendant moved out when he was about 17 years old, got married, and had six children. His parents asked the jury to spare his life.
1. Asserted Absence Of Counsel At Lineup
Defendant contends that he was deprived of his own counsel at the live lineup in violation of the Sixth and Fourteenth Amendments to the federal Constitution, and therefore all evidence obtained as a result of the lineup should have been suppressed. We disagree.
On January 22, 1988, defendant filed a motion to suppress evidence obtained in the November 4, 1987, lineup. The municipal court held an evidentiary hearing on the motion.
After a complaint against defendant had been filed, and at the time the November 4 lineup was scheduled, defendant was represented by the Office of the Alameda County Public Defender. On November 2, however, the public defender announced an intention to, and on November 3 filed, a declaration of conflict of interest. Also on November 3, the supervising public defender filed a letter requesting that the court appoint two counsel -- because of the large number of witnesses expected at the lineup -- for the limited purpose of attending the lineup. Assistant Public Defender Allan Hymer, who had been assigned to defendant's case, contacted the jail to leave a message for defendant that he would no longer be representing him, but he anticipated another attorney would be appointed.
Thomas Surh, who administered the local bar association's court-appointed attorneys program, testified that the municipal court called his office on November 2 to notify it of the public defender's conflict, and then again on November 3 to request two attorneys for the lineup. Valerie West and Joseph Stephens were appointed for this purpose. Subsequently, on November 6, Michael Ciraolo was appointed to represent defendant.
Stephens and West met with defendant shortly before the lineup on November 4, and informed him that the public defender's office no longer represented him. Stephens testified that his role was to "see that the lineup was conducted in a fair fashion." West testified that had she observed irregularities in the lineup she would have noted them in her report. Both attorneys said that in their view they did not represent defendant.*fn5 The lineup was videotaped, and the videotape was reviewed by the municipal court.
The court denied the motion to suppress, finding that the lineup was not suggestive or unfair, and there was no violation of defendant's Sixth and Fourteenth Amendment rights. Defendant later unsuccessfully filed in superior court a motion to dismiss the information under section 995 because of his asserted lack of counsel at the lineup, and a motion to suppress any identification evidence from the lineup at trial. Both motions relied on the testimony adduced in the municipal court evidentiary hearing.
A defendant has a right to counsel at a lineup conducted after the adversary judicial process has commenced. (United States v. Wade (1967) 388 U.S. 218, 236-237; see Montejo v. Louisiana (2009) 544 U.S. __, __ [129 S.Ct. 2079, 2085].) In Wade, the high court observed that in the absence of counsel, an accused lacks the ability to effectively "reconstruct at trial any unfairness that occurred at the lineup," and that this inability " may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." (Id. at pp. 231-232; see id. at pp. 236-237.) Although the court left open the question whether "the presence of substitute counsel might not suffice where notification and presence of the suspect's own counsel would result in prejudicial delay," it also stated that "provision for substitute counsel may be justified on the ground that the substitute counsel's presence may eliminate the hazards which render the lineup a critical stage for the presence of the suspect's own counsel." (Id. at p. 237, fn. 27; see People v. Nichols (1969) 272 Cal.App.2d 59, 64 [no constitutional violation when a qualified attorney, who could not serve at trial, "is appointed by a local judge where a lineup is about to take place"].)
Indeed, we have observed that "counsel plays only a limited role at the lineup itself." (People v. Bustamante (1981) 30 Cal.3d 88, 99.) Thus, "counsel 'cannot rearrange the personnel, cross-examine, ask those in the lineup to say anything or to don any particular clothing or to make any specific gestures. Counsel may not insist law enforcement officials hear his objection to procedures employed, nor may he compel them to adjust their lineup to his views of what is appropriate.' " (Id. at p. 99, fn. 7.)
Rather, the "rules requiring the presence of counsel 'were adopted for two primary reasons: to enable an accused to detect any unfairness in his confrontation with the witness, and to insure that he will be aware of any suggestion by law enforcement officers, intentional or unintentional, at the time the witness makes his identification.' " (People v. Carpenter (1997) 15 Cal.4th 312, 368.) Those purposes were satisfied here. Stephens and West were present at the lineup to detect any unfairness or suggestiveness, and indeed, defendant does not assert that any unfairness or suggestiveness occurred. In sum, defendant's Sixth Amendment right to counsel at the lineup was not violated.
Defendant further contends that at the time of the lineup, he was still represented by the public defender because no substitution of counsel had been approved by defendant or the court. Not so. Surh testified that the municipal court called his office on November 2 to notify it of the public defender's conflict, and then again on November 3 to request two attorneys for the lineup. Under these circumstances it is apparent that the court had removed the public defender from the case based on the declaration of conflict. (See Pen. Code, former § 987.2, subd. (a), as amended by Stats. 1986, ch. 1310, § 2, p. 4640; Code Civ. Proc., § 284, subd. (2); People v. Sapp (2003) 31 Cal.4th 240, 256.)
2. Denial of Faretta Motions
Defendant contends the trial court erroneously denied his motions to represent himself. (Faretta v. California (1975) 422 U.S. 806 (Faretta)). We conclude the trial court properly denied his motions on the basis they were untimely.
Defendant appeared for arraignment in municipal court on October 27, 1987. On November 6, 1987, Michael Ciraolo was appointed to represent defendant, and on November 18, 1987, Michael Berger was appointed as co-counsel. Ciraolo and Berger represented defendant at trial. James Anderson, the prosecutor at trial, also appeared on November 18, 1987.
The preliminary examination started on December 29, 1987, and was held on various dates over the ensuing eight-month period, ultimately concluding on August 15, 1988.
On June 10, 1991, defendant filed a Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) At the June 12, 1991, hearing on the motion, defendant said due to limitations on his ability to perform legal research in jail he would need "a couple of weeks at the most" to articulate the areas in which he found counsel's performance inadequate. The court granted the continuance, and because of the court's and counsel's schedules, the hearing was ultimately held on August 1, 1991.
At the August 1 hearing, defendant said that he had been incarcerated for nearly four years. Despite defense counsel's statements to defendant when they began representing him that they would work closely with him on tactical decisions, this had not occurred, and defendant had not been informed of defense counsel's strategies and preparation. As a result, defendant lacked confidence about proceeding to trial with his present attorneys. Defendant noted that Mr. Ciraolo had only met with him a few times during his nearly four years of incarceration, and refused his telephone calls. Counsel did not adopt defendant's suggestion made during the preliminary hearing of hiring a Black investigator, which he believed would make Black witnesses less reluctant to be interviewed. He further observed that at the preliminary hearing defense counsel had failed to call any of defendant's suggested witnesses or expert witnesses, had not presented an affirmative defense despite defendant's request to do so, and had failed to promptly investigate evidence presented at the hearing which could have resulted in "that charge being dropped." Defendant further expressed concern that defense counsel had refused to let him testify and did not call his other suggested witnesses at the section 995 hearing regarding the assistance of counsel at the lineup. Nor had they "exhaust[ed] all avenues on getting that matter resolved" because they "felt we were jeopardizing preserving that [issue on] appeal. But I don't expect to be convicted of crimes I didn't do." Ciraolo had told defendant that "if we were to start trial we would have about a week['s] worth of motions to deal with before trial," but defendant felt "even that is not a sufficient amount of arguments or motions to be dealt with in a case... such as mine." He expressed the view that "if there was any concern for me as a client," Ciraolo would not have told defendant he would probably have to withdraw from the case if "the court appointed agency doesn't agree to pay him more." Defendant characterized his attorneys as surrogate prosecutors, who appeared to be working against his interests.
Mr. Ciraolo responded that he had been engaged in three capital cases at the same time for a long period of time, and had recently completed in the spring of 1991 a 16-month capital trial with multiple defendants. He said, "[M]y understanding with all my clients, including Mr. Lynch, is that the case that occurred first would have the priority." Ciraolo said that defendant had been informed at the trial setting conferences what the priorities and tentative dates were and "had no opposition to those dates and procedures." He had met with defendant throughout the preliminary hearing, and on three occasions in the nearly three years since then. Ciraolo also noted that the defense case had not been presented fully at the preliminary hearing to avoid giving the prosecutor an opportunity to negate it at trial, and that defense counsel had been successful in having several counts dismissed after the preliminary hearing. He further observed that at the hearing the parties were "dealing with very elderly alleged victims and witnesses who for a variety of reasons were not expected to be present at the time of trial." The prosecution was entitled to and did preserve this testimony, a circumstance the defense could not prevent. Moreover, the complexity of the case and the realities of the calendaring system required a certain cooperation with the prosecutor. Co-counsel Mr. Berger said that he met with defendant promptly whenever defendant called their office and requested a meeting, had written defendant at least twice, and had not been previously aware of defendant's dissatisfaction with counsel. The court denied the motion, concluding that counsel had properly and adequately represented defendant, and observing that most of defendant's complaints about counsel related to the preliminary hearing, which had concluded nearly three years earlier.
On September 4, 1991, defendant personally withdrew "his previously-entered waiver of his right to a speedy trial" and "demand[ed] to be brought to trial in this action within sixty days of the filing of this document." The matter was transferred for trial setting. On September 11, 1991, the case was assigned to Judge Delucchi for trial, or to "such other judge on the team as he may designate." That same day the parties appeared before Judge Delucchi. Counsel informed the court that they had agreed to have the case put over until October 7 for either trial setting or reassignment to a different judge. They also informed the court that the statutory time to bring defendant to trial would run on November 1, 1991.*fn6
1) Defendant's First Faretta Motion
On September 27, 1991, defendant filed a typed motion to represent himself. The motion was supported by a memorandum of points and authorities and a sworn declaration. In his declaration, defendant stated he was "knowingly and in free will... waiving my right to appointed counsel." Defendant further stated, "I understand the nature of [the] charges and that I am facing the possible sentence of death if convicted." "I understand... I will have to abide by the rules of the court, filing motions on a timely basis and having to direct my own defense," and "take action to hire private investigators, co-counsel, [and] ancillary defense services...." "I further understand that I cannot base an appeal for 'ineffective assistance of counsel'... upon my own performance as acting for my own counsel, unless circumstances force my 'pro-per' defense into being 'ineffective' otherwise I am fully responsible for my defense." "I believe that as the court held in [Faretta], that I do not need to explain my background to the court nor is it the court's duty to inquire as to why I am electing to exercise my right of self-representation.... I believe that I only need to fulfill the requirements of 'knowingly and intelligently' doing so. At this time, I am requesting to have the court honor my rights of self-representation.... I believe I have met the requirements as outlined by Faretta." In his memorandum of points and authorities, defendant made fewer but similar points, and "pray[ed] to the court to grant 'Pro-Per Status' and to order along with [my] status the use of fifteen (15) hours telephone time (non-collect), plus twenty (20) hours use of the typewriter (both to be per-week). And all the 'Pro-Per' privileges accordingly so as to facilitate [my] defense as outlined in this motion."
On October 7, 1991, the parties appeared for the trial setting or reassignment conference, and for defendant's Faretta motion. Judge Delucchi stated he would be the trial judge. At the Faretta hearing in chambers, Judge Delucchi said, "Mr. Lynch, you've decided you want to go pro per on your capital case[,] correct?" Defendant replied, "Yes." The court read at length from defendant's declaration, including defendant's statements that he requested self-representation and believed he had met Faretta's requirements. The court further recited defendant's statements that he believed he needed only to fulfill the requirements of a knowing and intelligent exercise of his right of self-representation, and did not believe he was required to explain his legal or educational background to the court or fill out the court's self-representation form, nor that the court had a duty to inquire as to the reason why defendant was exercising his right of self-representation. The court said, "I assume that's still your position, Mr. Lynch[,] right?" Defendant replied, "Yes, it is."
The trial court then questioned Mr. Ciraolo about how long he had represented defendant, and what work had been performed on the case. The court then asked defendant why he wanted to represent himself. As defendant began to respond, the court interrupted and said, "You know, your life is at stake here, man. You know." Defendant replied, "Yes, I'm aware of that. I'm also aware of [the] charges that I'm facing. I'm also aware of, you know, the consequences that... I may possibly suffer due to the fact that I... represent myself. But my main reason is... because I feel that by representing myself, I can sort of somewhat guide my case... in the direction that I feel it should be going in when... [defense counsel] Mr. Ciraolo has set up certain strategic... ideas or whatever in relation to my case. I'm not in charge. He is in charge." The court said, "That's right." Defendant continued, "So, therefore, actually, I don't have the say-so that I feel I should have... within my case because, as it is, my life on the line,... this is what I'm trying to seek... as far as representing myself, exercising my Sixth Amendment."
The court said, "Now, let me ask you a couple of questions in that regard. If you were granted pro per status, I notice here that you were talking about you want to take action to hire private investigators. Correct, you want the Court to appoint private investigators in order for you to --." Defendant interjected, "I'm not saying that I wouldn't use or continue to use the one that I already have." The court said, "But you need some time; right?" Defendant said, "Yes." The court said, "Now, you're talking about at least you either want a new private investigator or you want to use the one you already have. So, you want to avail yourself of that. You're talking about having co-counsel represent you?" Defendant replied, "Possibly, yes." The court said, "And you're talking about ancillary defense service[s]. So, what are you talking about there? You want the pro per privileges in the jail?" Defendant said, "Of course, yes." "You want phone calls?" "Yes." "You want a runner?" Defendant replied that he would like "[u]se of [a] typewriter and law library, whatever else is available to a--."
The court interjected, "How much time are we talking about here?" Defendant said, "Actually, I hadn't considered any time as far as... how long it would take for me to go over... some of the... evidence and, you know." The court said, "But [defense counsel] is talking about boxes, boxes of discovery." Defendant said, "That's what I'm saying." The court said, "You're going to have to review all that stuff[,] right?" Defendant said, "Yes, and there is no way that I could say exactly how long that would take. You know." The court said, "You're talking about months?" Defendant said, "Yeah. I'm not sure." The court said, "Okay," and defendant started to speak. The court said, "Go ahead. I'm not trying to cut you off." Defendant said, "I was just going to say I would like... to have the right to review or to see for myself what has to be... gone over,... in order to determine... the outcome of what... I'm going to do." In a question apparently directed at defense counsel, the court inquired, "Can you tell me roughly how many hours you've spent just reviewing the police reports?" Mr. Ciraolo responded, "Your Honor, I think it would be better if you mention in weeks." Ciraolo described the prosecution's theory that the crimes contained a unique modus operandi, and noted that apparently other law enforcement agencies had sought to link defendant to similar crimes in their areas. He stated that there were "at least four boxes of reports," and that review, categorization, and consultation with an expert "has been the accumulation of four years of preparation." The court inquired whether Ciraolo had received the factors in aggravation from the district attorney. He replied that he had not, but that the district attorney had informally discussed the subject matter. Ciraolo was familiar with some of the factors, but others were new to him.
The court asked defendant whether he had seen any of the material regarding other cases mentioned by Mr. Ciraolo. Defendant said "No." The court said, "So you would need time to review all that stuff, too[,] right?" Defendant said, "Yes." The court said that it assumed that once the prosecution filed its statement of aggravating factors, defendant would need time to review that also. Defendant replied, "Possibly." Defendant subsequently added, "But still, after reviewing [the] material, then I would be able to... say whether or not definitely I would need any additional time." The court said, "Yeah. Well, it's going to take you some time to review the material; right?" Defendant replied, "I'm not sure." The court said, "Well, I mean, [defense counsel] spent weeks and weeks reviewing it.... You can't get involved in this case when you're talking about your life, Mr. Lynch,... just on a shoestring. Otherwise,... it's not a level playing field. You know what I'm talking about?" Defendant said, "I understand. I'm just saying--." The court interjected, "I don't want to sit up there and have some guy just beat you to death because you don't know what you're doing. You know what I'm saying?" Defendant said, "Yeah." The court said, "All right."
The court then observed the prosecution estimated trial for its case would take three to four weeks. In response to its inquiry, defense counsel said its case would take two to three weeks, and that he was not in a position to comment on any defense there might be for the penalty phase.
Defendant said, "What I want to ask you is, I seem to get that everyone beside[s] myself is sort of somewhat pushing or ready as of now... to go to trial. I'm trying to figure out for what reason are we all of a sudden... ready to proceed now that, you know, I'm requesting to exercise my Sixth Amendment rights." The court replied, "I'll give you two reasons. One, the case is four years old.... [¶]... [¶]... Also, you withdrew your time waiver, so you get everybody jumping around here putting this case together. [¶]... [¶]... Everybody is ready to go to trial now." Defendant said, "But, see, actually by me requesting to represent myself, that's somewhat in a sense requesting to vacate that time waiver." The court said, "I understand that.... [¶]... [¶] Because you're going to need more time. I understand that." Defendant said, "Because, truthfully, actually, the time waiver wasn't my idea. It was my attorney's idea because of some strategic move or whatever." The court said, "Whoever's idea it is,... when that happens, everybody... gets ready to go; witnesses start getting subpoenaed; I make time in my court, I move cases out of ...