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The People v. Alex Dale Thomas

February 3, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALEX DALE THOMAS, DEFENDANT AND APPELLANT.



Sonoma County Super. Ct. No. SCR-29622

Defendant Alex Dale Thomas, a substitute janitor at Rio Linda High School, raped and murdered 18-year-old student Michelle Montoya. Defense counsel did not contest that defendant killed the victim, but denied that he raped her, suggesting defendant had engaged in consensual sex with the victim, then killed her in a panic because he believed he had committed statutory rape and, as a convicted felon, could be sent to prison for life under the Three Strikes law. Defendant was convicted of murder with the special circumstance that the murder was committed during the commission of rape, and was sentenced to death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)*fn1 For the reasons that follow, we affirm the judgment.

I. Facts

An information filed on November 21, 1997 in Sacramento County Superior Court charged defendant with murdering Michelle Montoya on May 16, 1997 (§ 187, subd. (a)), with the special circumstance that the murder was committed during commission of the crime of rape (§ 190.2, subd. (a)(17)(C)), and with raping the victim (§ 261). The information further alleged that defendant personally used a deadly or dangerous weapon in committing the murder (§ 12022, subd. (b)) and that both the murder and the rape were serious felonies (§ 1192.7, subd. (c)). The information alleged that defendant had suffered eight prior convictions, including convictions for the serious felonies of voluntary manslaughter, robbery, and exploding a destructive device with intent to injure.

The trial court denied defendant's motion for a change of venue and the Court of Appeal summarily denied defendant's petition for writ of mandate. We stayed the trial and granted review on August 18, 1999, and transferred the matter to the Court of Appeal with directions to issue an alternative writ of mandate. On March 17, 2000, counsel stipulated to a change of venue to Sonoma County. On July 5, 2000, jury trial commenced in Sonoma County Superior Court.

A. Guilt Phase 1. Prosecution's Case

The victim, Michelle Montoya, was a senior at Rio Linda High School who had just turned 18 years old. On Friday, May 16, 1997, she stayed after school to meet with her English teacher about a research paper she was writing. She mentioned that she needed to make a telephone call to arrange for a ride home, but declined her teacher's offer to use her cell phone. The victim left the meeting about 3:30 p.m.

The victim telephoned her stepfather, Joseph Schleeter, sometime between 3:30 and 3:45 p.m. to ask for a ride home. Schleeter told her that it would be 10 or 15 minutes before he could come; she replied she would find her own ride home and hung up. Schleeter later drove to the victim's school and waited for her, but left when she did not appear.

A few minutes before 3:00 p.m., Robert Erickson had locked the doors to his shop classroom, room L-1. In Erickson's office adjoining the shop classroom, there was a telephone that he sometimes let students use to arrange rides.

Defendant was working as a substitute janitor that day and was assigned to clean shop classroom L-1. About 4:00 p.m., janitor Robert Simpkins was walking with fellow janitor Faruq Shirley when they heard a loud sound, like a door slam. They went to investigate and saw defendant leaving a bathroom near the shop classroom. Simpkins noticed that defendant no longer was wearing the shirt that he had worn over his tank top at the beginning of the shift.

Simpkins left to resume cleaning, and defendant called Shirley over and asked him for a cigarette. Shirley said he did not smoke and began to leave, but defendant asked Shirley to accompany him to the ROTC classroom and show him how it should be cleaned. Shirley was surprised by the request, because defendant had cleaned the ROTC room the previous day, but he briefly went to the room with defendant and described what should be done. Shirley then left, but a short time later, defendant yelled and ran to him, saying there was something he had to see. Defendant ran to shop classroom L-1 with Shirley following. They entered the room and Shirley saw the victim lying on the floor. Shirley ran out of the room to find Simpkins, with defendant following him.

Shirley and defendant ran up to Simpkins and told him they had found someone who had been hurt in the shop classroom. Simpkins used his walkie-talkie to contact the office and have someone call 911. Simpkins entered the shop and found the victim lying facedown.

Officer Ruben del Hoyo of the Grant School District Police Department arrived about 10 minutes later. He entered the shop classroom and saw the victim lying on the floor with a puddle of blood around her head. She was fully clothed and wearing a backpack. He determined that she did not appear to be breathing, and left the room just as other emergency personnel were arriving. Officer del Hoyo spoke to defendant, who appeared "very nervous" and was "sweating excessively from his forehead." Defendant said he had found the victim and turned her over, then ran to get help when he saw that she was dead.

Paramedics arrived at 4:12 p.m. The victim was not breathing and had no pulse. She was lying facedown on her backpack, which was twisted around in front of her. She had large wounds on her forehead and the back of her head, and her throat had been cut. The victim was pronounced dead in the ambulance while being transported to the hospital.

Deputy Sheriff Michael Abbott and his partner Deputy Sheriff Ken Harbuck arrived at the crime scene at 4:15 p.m. Deputy Abbott approached defendant and told him he wanted to talk to him about the incident. Defendant replied: "I'm convicted and I won't go to court about this." Defendant said that he had entered the shop classroom to empty the trash can and discovered the victim's body. He touched her shoulder and then wiped his hand on his shirt, which was in his back pocket. When the victim did not move, he ran to get help. Defendant pointed out some blood on his pants, which he said had gotten on him when he slipped while running out of the classroom. Deputy Abbott asked defendant whether there were any weapons in the classroom. Defendant laughed and said, "The whole room is full of weapons." Another deputy collected defendant's shoes, as well as his shirt from his back pocket. Defendant had a scratch on his hand.

Criminalist Faye Springer examined the crime scene and found a used tampon in a paper cup with resin in the bottom, sitting on top of a work counter. No semen was found on this tampon. A crowbar found at the scene had been wiped down but still had blood on it. A trail of defendant's bloody shoe prints led from the victim's body to the tool cabinet where the crowbar was found. A tiny paint chip recovered from a blood spot on defendant's clothing matched a sample of paint from the crowbar.

An autopsy revealed that the cause of the victim's death was blunt force trauma to the head, consistent with a blow from a crowbar. "Basically the skull was just shattered." There was a vertical laceration above the left eyebrow that extended down to bone and was "associated with an underlying fracture of the skull." A second horizontal laceration on the left temple extended down to bone. The largest laceration "extended from the mid-occipital region of the head to involve the ear" and was "associated with a fracture and through that fracture the brain was actually visible." In addition to a black eye and wounds to her hands, arms, legs, and feet, the victim had two cuts on her neck and had been stabbed in the back three times.

There were no signs of sexual trauma. The victim was wearing a tampon and a Maxi-pad. The Maxi-pad was blood-soaked, but not the tampon. DNA analysis of semen found on this tampon matched defendant. A DNA analysis of blood taken from the crowbar matched the victim, and fragments of the victim's tissue were recovered from defendant's pants.

An expert in analyzing bloodstain patterns testified that the pant legs below the knee of the jeans defendant had been wearing on the day of the murder revealed both "high velocity blood splatter," which indicated defendant had been within a foot or two of the victim when she suffered a blow of force greater than a normal blow from a fist, as well as "medium velocity splatter," which was "consistent with a bludgeoning or beating." The expert also examined the undershorts defendant had been wearing and found "transfer type" bloodstains that were consistent with blood being deposited on the shorts from a source such as bloody fingers. Fibers recovered from the inside of defendant's undershorts were consistent with fibers from the victim's underpants, her skirt, and her Maxi-pad.

2. Defense Case

In his opening statement, defense counsel conceded that defendant had engaged in sex with the victim, but claimed it had been consensual and suggested defendant then killed the victim because he feared that he had committed statutory rape and, if convicted, would receive a life sentence under the Three Strikes law.

Sherry Arndt, a registered nurse who specialized in examining victims of sexual assault, testified that the victim displayed "no visible injuries that are consistent with forced sexual contact."

A woodshop teacher who had been present at the high school until about 3:45 p.m. on the day of the murder testified he did not hear anyone yell or scream.

Brent Turvey, an expert in crime scene reconstruction, testified that the police conducted an inadequate investigation. His review of the evidence suggested the victim had consented to sexual intercourse and defendant had then killed the victim in an unplanned burst of anger.

B. Penalty Phase 1. Prosecution Case

Kelly Minix testified for the prosecution that in 1997 she had worked at a truckstop at which defendant was employed. One day, after Minix had finished her job, defendant followed her to her automobile and, while she was seated in the driver's seat, leaned into the vehicle and sucked on her neck, leaving a bruise. She cursed, and defendant backed out of the automobile, apologized, and left.

Defendant's former wife, Delores Thomas, testified that in August 1994, defendant had punched her in the face during an argument.

Former Los Angeles County Deputy Sheriffs Lee Woods and Richard Calzada testified that in 1985 defendant had slashed the throat of fellow prisoner Vincent McCowan while both men were incarcerated in the Los Angeles County jail. Sergeant Gerald Franks testified that in 1986 he was working as a correctional counselor in the reception center of the California Institution for Men in Chino, and interviewed McCowan. Sergeant Franks asked McCowan if he had any enemies in the prison system. McCowan named defendant and explained that defendant had slashed his throat when they both were incarcerated in county jail. Sergeant Franks later interviewed defendant, who "reluctantly verified" that he had assaulted McCowan.

Estella Black testified that in 1984, defendant had robbed her, her daughter, and her son-in-law at gunpoint in front of her apartment in Los Angeles.

In 1978, defendant shot 12-year-old Samantha Mims as she lay in her bed next to her younger brother. She survived, but suffered severe injuries, including the loss of one kidney and part of her small intestine. Mims does not know why defendant shot her.

When defendant was 17 years old, he pled guilty to possession of an inflammatory device, or Molotov cocktail and was sent to the California Youth Authority (now Division of Juvenile Justice). Later, defendant pled guilty to an attempted robbery of James Moore and robbery of Seifeddin Khalatbary.

Defendant also had been convicted of the voluntary manslaughter of Daniel White. A portion of the preliminary hearing testimony was read to the jury, reflecting that defendant approached the victim when he was in the driver's seat of his truck, pointed a gun at him, and demanded that the victim give him his "rock" (which was a term for cocaine) or $25. When the victim attempted to drive away, "a shot went off" and the victim was shot and killed.

The victim's mother, Pam Schleeter, testified that the victim, whom she described as her "best friend," was survived by a younger sister and brother. The victim had been a soccer player who had many friends, and she was a good and helpful daughter who performed acts of kindness for neighbors and her teachers. Schleeter described the devastating impact her daughter's death had on her and her family. She had wanted to die when her daughter was killed and she still was taking antidepressants.

Darcie Purcell testified she had been the victim's friend and described how loving and close the victim's family had been. The victim was friendly, outgoing, and hard working. In addition to attending school, she had held two jobs to help support her family.

2. Defense Case

Patrick Ridgle testified that he had been defendant's friend since they were children. Defendant often stayed with Ridgle's family because defendant's mother drank and was verbally abusive.

Nita Sims, Ridgle's younger sister, testified she also had known defendant since they were children and had unsuccessfully attempted to teach defendant to read. Their relationship later became romantic and she gave birth to his daughter, Antoinette. Sims testified that defendant's mother was an alcoholic who smoked crack cocaine and that her six-month-old daughter had suffered burns on her thigh while in the care of defendant's mother.

Defendant's daughter, Antoinette Thomas, testified that she saw defendant periodically as a child but no longer had contact with him. Defendant's mother had burned her with a cigarette when she was a child and later tried to beat her.

Defendant's cousin, Lawana Choyce, recounted the history of defendant's family.

Clinical neuropsychologist Nell Riley testified that he conducted an extensive examination of defendant. Defendant was illiterate and his IQ varied between 58 when he was tested at age 15 and 68 when Riley tested him. These IQ scores placed him between the first and second percentile of the general population.

Dr. Joseph Wu, a psychiatrist, interpreted a report of a PET scan (positron-emission tomography) conducted on defendant's brain in September 2000 that revealed an abnormal pattern of brain activity called "hypo-frontality which means low frontal lobe metabolism relative to the rest of the brain." The abnormality in defendant's frontal lobe functioning is similar to abnormalities found in a test group of subjects who had committed homicide. Dr. Wu testified that someone with that type of brain function abnormality "would have an impaired ability, likely, to regulate their aggressive impulses."

Alice Spivey testified that she is a mother whose eldest son is a few years younger than defendant. She saw defendant on television after his arrest, became concerned that he might need a friend, and began to visit him in jail. He treated her like a gentleman and helped her by listening to her problems. She loves defendant as if he were her son and he calls her "mom."

Dr. Gretchen White, a forensic clinical psychologist, prepared a "psychosocial history" of defendant. Defendant's great-great grandmother was born into slavery. His mother and father were Ida Mae and Roy Lee Thomas, and he had four brothers. Defendant's mother drank heavily and consorted with other men. When defendant was young, she left her husband and moved with her sons to South Central Los Angeles, and collected welfare. Defendant had no contact with his father from the time he was seven or eight years old until he was 30 years old. Dr. White received information that defendant's home was "poorly kept," that his mother often was intoxicated, that she would yell at her children, throw things at them, put them out of the house, and call the police on them. Defendant's mother demanded money from her children, knowing their only source of income was theft. Dr. White formed the opinion that defendant's family "was extremely dysfunctional," stating: "So basically you have an individual who is damaged and impaired; who is living in a family that is not able to provide even a modicum of structure and nurturance within an environment which itself is very depleted and destructive." Defendant's mother was deceased at the time of trial.

Defendant joined the Hoover Street Crips gang when he was 12 years old. He began committing crimes and was declared a ward of the court when he was 14 years old. He spent his 18th birthday in a California Youth Authority facility, turned 21 years old in county jail, then spent the next 10 years in prison.

A videotape was played of a conditional examination of Ruthie Mae Mack. She met defendant when he was 13 years old and became friends with her son, Patrick. She is also the mother of Nita Sims, with whom defendant had his daughter, Antoinette Thomas. Defendant lived with her family for a time. Defendant could not read or tell time, yet Mack described defendant as "a very smart young man."

II. Discussion A. Jury Selection Issues 1. Exclusion of Prospective Jurors Who Disfavor the Death Penalty

Defendant contends the trial court erred in removing for cause four prospective jurors who expressed reservations about the death penalty, thereby violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution.

A prospective juror in a capital case may be removed for cause if his or her views on capital punishment "would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " (Wainwright v. Witt (1985) 469 U.S. 412, 424.) Because prospective jurors "may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings" (id. at p. 425), "deference must be paid to the trial judge who sees and hears the juror" and must determine whether the "prospective juror would be unable to faithfully and impartially apply the law." (Id. at p. 426.) We have adopted this standard for determining whether excusing for cause a prospective juror in a capital case based on the prospective juror's views on capital punishment violates the defendant's right to an impartial jury under article I, section 16 of the California Constitution. (People v. Griffin (2004) 33 Cal.4th 536, 558; People v. Ghent (1987) 43 Cal.3d 739, 767.)

"On 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.]" (People v. Mayfield (1997) 14 Cal.4th 668, 727.) "In many cases, a prospective juror's responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror's probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected. Under such circumstances, we defer to the trial court's evaluation of a prospective juror's state of mind, and such evaluation is binding on appellate courts. [Citations.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1094.)

We will examine the removal of each prospective juror in turn.

i. Prospective Juror No. 6-353

Prospective Juror No. 6-353's juror questionnaire revealed that she gives music lessons in her home and is an ordained minister who holds a masters degree in theology. She checked the responses indicating that she was "Moderately against" the death penalty and "Strongly in favor" of "the penalty of life without the possibility of parole in cases of special circumstance murder." In answer to the question whether she would "always vote for life in prison without parole regardless of the facts and circumstances," the prospective juror did not select either "Yes" or "No" and instead wrote in: "I don't truthfully know."

During voir dire, Prospective Juror No. 6-353 stated she "lean[ed] very strongly towards wishing there were not a death penalty," but added that she "also believe[d] that you have to work with the system and the laws of the land as they stand." When asked by the court whether she would be "able to impose the death penalty in any case," she replied: "I don't know the answer to that." The court again asked whether she would be able to impose the death penalty if she concluded it was the appropriate penalty and the prospective juror answered: "I know for me I would have to go pretty close to the end of . . . my belief system to be able to make that statement . . . . I don't believe it's out of the realm of possibility to decide that was the proper penalty, but I think it's unlikely I would get there." Prospective Juror No. 6-353 agreed with the judge's assessment that her voting for the death penalty was a "theoretical possibility," but when the court asked if it was a "realistic possibility," she hesitated, saying "it's hard for me to answer that." The court reminded the juror that she had used the term "unlikely," and asked whether she could use the term "realistically rather than unlikely," to which the prospective juror responded: "Probably not realistically. I think probably for me to decide that the death penalty was appropriate, I would have to feel that the person was so wounded and had made such bad choices that . . . a real sense of humanity almost didn't exist there anymore, and that . . . he or she even within the prison system would be a real threat to other people."

Defense counsel asked no questions and the prosecutor asked only whether Prospective Juror No. 6-353's views were influenced by the circumstance that her sister worked in the prison system, which the prospective juror assured him was not the case. Outside the presence of the prospective juror, the court rejected defense counsel's argument that the prospective juror could "consider both sides" and excused Prospective Juror 6-353 for cause, noting that "she said there was not probably a reasonable possibility as a matter of fact" that she could vote for the death penalty and concluding that "[h]er total philosophy and her body language told me she's substantially impaired and prevents her from following the law . . . ."

Substantial evidence supports the trial court's finding that Prospective Juror No. 6-353's views on capital punishment would substantially impair her ability to perform the duties of a juror. In her questionnaire, Prospective Juror No. 6-353 stated she did not know whether she always would vote for a sentence of life without the possibility of parole regardless of the evidence. During voir dire, the prospective juror stated she did not know whether she would be "able to impose the death penalty in any case" and explained that while it was theoretically possible that she could vote for the death penalty, it was "[p]robably not realistic[]." In People v. Griffin, supra, 33 Cal.4th 536, 559, we held that the trial court properly excused for cause a prospective juror who stated on voir dire "that she did not know whether she ever could vote to impose the death penalty, regardless of the state of the evidence" and another prospective juror who stated she generally supported the death penalty but added that "she did not know whether she actually could vote to impose the death penalty." (Id. at p. 560.)

ii. Prospective Juror No. 6-483

In her questionnaire, Prospective Juror No. 6-483 selected the responses indicating that she was "Strongly against" the death penalty and "Strongly in favor" of the penalty of life in prison without the possibility of parole in cases of special circumstance murder. She explained that she felt that way because "I feel there have been many innocent people sent to the gas chair." She indicated that she would not be able to exclude from her consideration of the proper penalty the argument that the death penalty is more expensive to the taxpayer than life without the possibility of parole and indicated that she would always vote for life in prison without parole, regardless of the facts and circumstances of the case. She added: "I would not like to go through life knowing I was responsible for someone's life."

On voir dire, Prospective Juror No. 6-483 confirmed that she always would vote for life in prison rather than the death penalty and explained that her statement that she "would not like to go through life knowing I was responsible for someone's life" referred only to the death penalty, adding, "Life in prison is fine." She stated she "probably" could vote for the death penalty if "there was no doubt" the defendant was guilty, "but I wouldn't be happy about it," adding "[I] really don't think I would." The court explained that the penalty phase would be conducted only if the jury had found defendant guilty beyond a reasonable doubt and asked Prospective Juror No. 6-483 whether "if you found a person guilty beyond a reasonable doubt of first degree murder with special circumstances, you could vote for the death penalty?" She replied: "I think it would be life in prison."

Under questioning by defense counsel, the prospective juror repeated that she could consider voting for the death penalty only if she "thought he was really really guilty. . . . [¶] But there would have to be no doubt in my mind . . . ." Defense counsel pointed out that if the prospective juror had a doubt, she could prevent the conviction and asked whether she could vote for the death penalty if she was part of the jury that had determined guilt. Prospective Juror No. 6-483 answered: "I guess."

Under questioning by the prosecutor, Prospective Juror No. 6-483 repeated her belief that "lately there has been a lot of DNA evidence that has gotten a lot of people off of death row because they were innocent, and . . . to take someone's life and then find out that they were, you know, innocent would really be terrible." When asked if that meant that she would impose a standard more stringent than proof beyond a reasonable doubt at the guilt phase of the trial, the prospective juror answered: "I don't think so. I don't know." She stated she "probably" could vote for the death penalty "if I really felt that was necessary, he was very bad," but added she "would have to get used to the idea." When asked if the state had the right to execute someone, she answered: "Yeah, I guess. . . . [¶] But I don't know if I want to be responsible for someone's death."

Prospective Juror No. 6-483 explained that if the rest of the jury "was for" the death penalty, and she knew "he was really guilty, I might go along with it. . . . Probably would." But when asked if she "theoretically could" vote for the death penalty, she answered: "No. I probably could if I had to."

Outside the presence of the prospective juror, the prosecutor made a challenge for cause. Defense counsel submitted without argument. The court excused Prospective Juror No. 6-483 for cause, stating: "The juror is substantially impaired not merely by her words but when she would shake her head no and say 'I guess,' the whole body language as well I suppose. Clearly impaired."

Substantial evidence supports the trial court's finding that Prospective Juror No. 6-483's views on capital punishment would substantially impair her ability to perform the duties of a juror. In her questionnaire, Prospective Juror No. 6-483 stated she was "[s]trongly against" the death penalty because "there have been many innocent people sent to the gas chair," adding that she would always vote for life in prison without parole regardless of the facts and circumstances of the case because she "would not like to go through life knowing I was responsible for someone's life."

The prospective juror confirmed these views on voir dire and equivocated only to the extent of allowing that she might vote for the death penalty if defendant was "really really guilty" and she had "no doubt," but explained that even then she "wouldn't be happy about it" and "really don't think I would." She stated that she "probably" could "go along" if the rest of the jury voted for death and defendant was "really guilty," but then added contradictorily when asked whether she "theoretically could" vote for the death penalty: "No. I probably could if I had to."

We held in People v. Wash (1993) 6 Cal.4th 215, 255, that the trial court in a capital case properly excused for cause a prospective juror who stated she could vote for the death penalty " 'if the evidence was overwhelming,' " but "consistently responded, 'I don't know' in answer to the question whether she was capable of voting for death if all the evidence indicated that it was the appropriate sentence." We relied upon the rule that " ' "[W]here equivocal or conflicting responses are elicited regarding a prospective juror's ability to impose the death penalty, the trial court's determination as to his [or her] true state of mind is binding on an appellate court." ' [Citations.]" (Ibid.)

At the outset of voir dire, the court denied Prospective Juror No. 74's written request to be excused from jury service because she teaches a class for blind, deaf, and autistic students that would be cancelled if she was required to serve as a juror.

iii. Prospective Juror No. 74

Prospective Juror No. 74 explained during voir dire that nearly 20 years earlier four friends had been prosecuted for rape; two were convicted. She felt the men were innocent and had been prosecuted only because "the district attorney was running for re-election and they trumped up this case to be something other than it was," adding that "the press had a field day."*fn2 She believed that no rape had occurred and that the victim had been "sent in to entrap these guys."

The prospective juror explained that she knew her friends had been treated unfairly because the press had misrepresented some events that she had witnessed, adding she "wrote lots of letters, sent lots of petitions," but was "completely ignored." She thought she could base her decision in this case solely on the evidence, but added: "I also think that what happens out in the world is important, too. And I was witness to some of these things that were reported wrongly in the paper."

Prospective Juror No. 74 also recounted an unrelated incident in which her "daughter's boyfriend was brutally beaten by police officers" but the officers had "prevailed wrongfully" because in court "the policemen, were very professional in there [sic] witnessing. And my daughter's boyfriend was, you know, the way that he prepared for trial was to buy new Levi's." She felt the police officers had engaged in "police brutality."

Despite these two incidents, Prospective Juror No. 74 did not feel any general animosity against prosecutors or police officers, explaining: "I don't believe they're all abusers, but I have been witness to these two things which were out of the ordinary." When asked if she would disbelieve law enforcement witnesses because of her experiences, she answered: "I don't know. I mean I don't think so. . . . [¶] And I think I could accept their testimony if I believed it was true."

In her questionnaire, the prospective juror had indicated the criminal justice system makes it "easy to prosecute the innocent," explaining on voir dire that she was referring to the two incidents described above. She indicated that her opinion about the death penalty had changed and wrote in the name, "Richard Alan Davis,"*fn3 explaining on voir dire that she always had "been on the fence" about capital punishment, but now was convinced that it was appropriate in that case and others. She doubted that a sentence of life without the possibility of parole meant the defendant would be incarcerated for his entire life, adding "many, so sentenced, get out."

During voir dire, Prospective Juror No. 74 twice answered "I don't know" when asked if she would be able to vote for a sentence of death. When asked if she could do so if she "were convinced that it was the appropriate penalty under the law and the facts" she replied: "I think so."

The prosecutor later observed that Prospective Juror No. 74 had hesitated before saying she thought she could vote for the death penalty, and the prospective juror responded that she "did hesitate" because "it's a very heavy question," explaining: "I would like to believe that if I truly believed someone was guilty that . . . I could do that. But I don't know." The prosecutor asked whether Prospective Juror No. 74 was reluctant to vote for the death penalty because she "could never really live with yourself if you voted for the death penalty," and the prospective juror replied, "I don't know," adding: "I don't know how I would feel afterwards." The prosecutor then asked whether the prospective juror could be open to voting for the death penalty if the evidence supported it, to which she answered, "I think so."

Outside the presence of the prospective juror, the prosecutor challenged her for cause, stating, "there are problems with her ability to be a fair and impartial juror coming from several quarters. The facts on which she has provided us in connection with her hardship claim, her prior experience with individuals whom she believes were improperly prosecuted and in the case of them -- two of them, convicted. And her very candid expression of difficulty with the concept of the death penalty itself. She can't say that she is sure that she could impose the death penalty. She can only say that she would try and she thinks she might be able to be sure but clearly even when I asked the question [in] as direct a fashion as I can, she hesitated for a long time, her words are spoken with a great deal of indecisiveness in my opinion."

The court observed, "This lady has a lot of problems. . . . [¶] Not only for the prosecution but a lot of problems for the defense, too."

Defense counsel admitted he had "questions about her" and observed that, at first, she was "very, very nervous, her lips were smacking . . . almost like she was a deer in the headlights" and "couldn't gather her thoughts," and had difficulty understanding questions. But defense counsel felt "she started relaxing a little bit" and indicated "she could vote either way." The court interrupted to point out, "What I heard, though, was that she didn't know."

The court initially denied the prosecutor's challenge, stating: "I don't think I can grant the challenge for cause on the death penalty." The court noted it had "some real reservations about whether or not she is capable or willing to follow the law and I have a strong impression she probably couldn't or wouldn't. And, yet, she did answer questions." The prosecutor agreed that her answers appeared "to pass muster," but they were not said in a way "that gives me confidence."

The next day, the court reconsidered its ruling and excused the prospective juror for cause, stating he had read the reporter's transcript of proceedings and was "convinced that she could not apply the law or follow the evidence." Relying in part on the prospective juror's "body language," the court stated it was "convinced she could simply not be a fair, impartial juror." The court clarified that its ruling was "not just limited to the death penalty questions . . . . [¶] It's the whole thing."

Substantial evidence supports the trial court's order excusing Prospective Juror No. 74. The trial court was justified in concluding that the prospective juror's views on capital punishment alone would substantially impair her ability to perform the duties of a juror. Despite indicating on her questionnaire that she was strongly in favor of the death penalty (she also indicated she was strongly in favor of life without parole) and her statement on voir dire that the death penalty was appropriate in some cases, Prospective Juror No. 74 was never able to state that she would be able to vote for the death penalty, repeatedly answering "I don't know." The closest she came was stating that she thought she could vote for the death penalty and "would like to believe" that she could, but actually did not know.

As noted above, we held in People v. Wash, supra, 6 Cal.4th 215, 255, that a trial court in a capital case properly may excuse for cause a prospective juror who states she does not know whether she could vote for the death penalty. The present case presents a close call, as evidenced by the trial court's initial denial of the prosecutor's challenge for cause, but the trial court's final ruling is entitled to deference because the "trial court's finding concerning a prospective juror's state of mind 'is based upon determinations of demeanor and credibility that are peculiarly within a trial court's province.' " (People v. Schmeck (2005) 37 Cal.4th 240, 263.)

The trial court's ruling is further supported by other indications in the record that Prospective Juror No. 74 would not be a fair and impartial juror. The prospective juror's experience with the rape prosecution decades earlier had left her with the view that the victim, the prosecutor, the defense attorney, and the press all had behaved poorly and her efforts to correct this injustice had been "completely ignored." She also believed her son-in-law had been the victim of police brutality, but that the police officers had "prevailed wrongfully" in court. When asked whether she could nonetheless be fair, she replied, "I've never been in this position before. And I feel that I could be honest in reviewing the evidence and coming to a conclusion. But I've never been -- I don't know. I mean, I really don't know. I've not had to be -- I've never had to do this." And when asked whether she could base her decision in the present case solely on the evidence presented in court, she again answered equivocally, saying: I think I could do that, but I also think that what happens out in the world is important, too."

Even defense counsel, in opposing the prosecutor's motion to excuse Prospective Juror No. 74 for cause, admitted he had "questions about her" and acknowledged that the prospective juror was "very, very nervous," looked almost like "a deer in the headlights," "couldn't gather her thoughts" and "was having trouble following . . . questions." The court excused Prospective Juror No. 74 because she "could not apply the law or follow the evidence" and "could simply not be a fair, impartial juror." "In general, the qualification of jurors challenged for cause are 'matters within the wide discretion of the trial court, seldom disturbed on appeal.' [Citation.] When, as here, a juror gives conflicting testimony as to her capacity for impartiality, the determination of the trial court on substantial evidence is binding on the appellate court. [Citations.]" (People v. Kaurish (1990) 52 Cal.3d 648, 675.)

In her questionnaire, Prospective Juror No. 833 selected the responses that she was "Strongly against" the death penalty and "Strongly in favor" of life in prison without parole for special circumstance murder. She explained her opposition to the death penalty as follows: "I am a Christian, it would be difficult for me to sentence someone to death because of my belief in the goodness of God's creation." She added: "I'm not sure I could sentence someone to death even if I did find them guilty." In answer to the question whether she always would vote for life in prison regardless of the circumstances, she wrote: "I'm really not sure - my feeling is that I would find it very difficult to vote for the death penalty."

iv. Prospective Juror No. 833

The court asked Prospective Juror No. 833 during voir dire whether she was capable of voting for the death penalty if she decided that it was the appropriate penalty, and she answered: "I really don't know." The prospective juror, who was a registered nurse, explained that she could not put herself "in the position of being the person that executed" the defendant, later repeating that she could not administer the lethal injection herself.

The prospective juror told defense counsel she "would consider" voting for the death penalty, but when asked by the prosecutor if she actually could cast her vote for the death penalty, stated: "I don't think so." She told the court that by saying "I don't think so," she meant she could not vote for the death penalty and when asked whether there was a reasonable ...


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