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The People v. Crandell Mckinnon

August 22, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CRANDELL MCKINNON, DEFENDANT AND APPELLANT.



Riverside County Super. Ct. No. CR69302

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

A jury found defendant Crandell McKinnon guilty of the first degree murders (Pen. Code, § 187)*fn1 of Perry Coder and Gregory Martin and two counts of possession of a firearm by a convicted felon (§ 12021.1). The jury also found true (1) the allegation that defendant personally used a firearm in the commission of the murders (§ 12022.5) and (2) the multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)).

After a penalty trial, the jury returned a verdict of death. The court denied defendant's motion for new trial (§ 1181) and automatic application to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in full.

I. Facts

A. Introduction

On January 4, 1994, defendant, a member of the Crips street gang, walked up to Perry Coder behind the Desert Edge Motel, in Banning, and for no apparent reason, placed his gun against Coder's head, and shot him. Coder died almost instantly. About five weeks later, at the nearby Meadowbrook Apartments, defendant and Gregory Martin, a member of the Bloods street gang, argued briefly before defendant fatally shot Martin in the head.

The prosecution presented eyewitness testimony and forensic evidence consistent with these accounts. The Martin murder weapon was found a week after that murder in a car driven by defendant's girlfriend and in which defendant was a passenger. About a month after the murders, while incarcerated in Chino State Prison, defendant told Harold Black, a fellow inmate, that he had shot Martin and a "white boy" at the Desert Edge Motel.

B. Prosecution Guilt Phase Case 1. The murder of Perry Coder

On the evening of January 4, 1994, defendant, whose nickname was Popeye, was driving a Cadillac with his friend, Orlando Hunt, in the passenger seat. They drove to the Desert Edge Motel in Banning. The motel was located in a high-crime area rampant with drug activities and operated as an apartment-type complex. There was a dirt field behind the motel, to the west.

Gina Lee, who lived at the motel, saw defendant and Hunt arrive. She had seen defendant in her room earlier that day with a black handgun. When he arrived with Hunt that evening, defendant parked on the side of the motel, at the north end of the lot, and he and Hunt got out of the car. Hunt spoke with Lee*fn2 and her cousin, Johnnetta Hawkins, who was with Lee. Defendant and Hunt then walked to the back of the building. A short, White male, subsequently identified as 23-year old Perry Coder was walking on Ramsey Street. Defendant told Hunt "hold on, wait right [here]."

Hunt did not know Coder and thought that defendant might know him or that the two were dealing drugs. He was unaware of any problems between defendant and Coder. Hunt stood by a tree, approximately 47 feet from where Coder's body subsequently was found, and saw defendant walk up to Coder. Without saying anything to Coder, defendant pulled a gun from his coat, extended his right arm "straight out" in front of his chest and shot Coder "for no apparent reason." Coder immediately fell to the ground. Hunt ran from the scene.

During the same evening, Kerry Scott, who lived in Banning, was walking westbound on Ramsey Street when he reached a field adjacent to the Desert Edge Motel and saw Coder,*fn3 who was walking eastbound on the same street.*fn4 Coder was alone and walking unsteadily. Scott walked approximately 50 yards into the field and stood next to a tree, approximately 50 yards from where police subsequently found Coder's body. Scott saw defendant*fn5 approach Coder and stand approximately two to three feet in front of him, "face to face." Without exchanging any words with Coder, defendant extended his right arm straight out, turned his arm in and his gun to the side, and fired four shots. Coder fell to the ground and exhibited no further movement. Scott "took off running."

Lee was outside her motel room when she heard a gunshot and saw defendant and Hunt running through the field. She left the area to buy drugs and returned to her room about 30 minutes later. She saw defendant and Hunt at the motel. Defendant "looked kind of strange" and his eyes were "just big and stuff." He appeared to be very agitated, upset, and hyper. When Lee asked defendant, "what's up," he put his finger to his lips, said "Shhhhh," and told her somebody was dead outside. Before they left the motel, Lee told Hawkins that when she saw defendant outside the motel after hearing the gunshot, he threatened to kill her if she said anything.

Thereafter, at approximately midnight, City of Banning Police Officer Bill Caldwell, Jr., arrived on the scene and found Coder's body lying adjacent to the field between the roadway and the sidewalk. Coder apparently had been clutching a jacket. The police did not recover any shell casings near the body and never found the murder weapon.

The next day, Hunt was sleeping and rolled over to find defendant standing in the doorway of his bedroom. Defendant told Hunt that if he said anything, "this could happen to you."

On December 29, 1994, Caldwell and City of Banning Police Sergeant Marshall Palmer interviewed defendant at Ironwood State Prison in Blythe, regarding the Coder murder.*fn6 The prosecution played a tape recording of the interview for the jury. During the interview, after defendant initially denied being in Banning in January l994, he admitted he had passed through the town that month to see his daughter. When Caldwell and Palmer informed defendant that three individuals witnessed him shoot Coder, defendant denied knowing Coder and having shot him.

Daryl Garber, Chief Forensic Pathologist for Riverside County, performed an autopsy on Coder's body. Coder suffered a single gunshot wound to the head and a black eye associated with the wound. The wound was a "tight contact," meaning the muzzle was actually pressed tightly against Coder's skin when the gun was fired. The wound traversed the brain front to back, with a slightly left-to-right and upward trajectory. The wound caused a rapid death, and there was no other cause of death. There was no exit wound. Dr. Garber opined that the gun inflicting the wound would have been "pretty much level with the ground." Dr. Garber testified that although Coder probably had some detectable life signs for a few minutes, he would have immediately lost consciousness, gone into a coma for a few minutes, and then quickly died. Coder would have become immediately incapacitated, or if he were walking at the time he was shot, he might have continued taking at most one or two steps before falling down. Dr. Garber recovered a bullet from Coder's head during the autopsy.

2. The murder of Gregory Martin

During the evening of February 12, 1994, Gregory Martin was shot twice in the head in front of the Meadowbrook Apartments in Banning. His wounds were fatal. It was common knowledge that Martin, whose nickname was "Moto," was a member of the Bloods street gang.

Palmer*fn7 and other Banning police officers arrived at the crime scene, secured the area, and searched unsuccessfully for relevant physical evidence. Officers knocked on doors to see if they could locate any witnesses. Lloyd Marcus was identified as a potential witness and was interviewed by Palmer at the Banning Police Department, within one to one-and-a-half hours of Palmer's arrival at the murder scene.

Marcus told Palmer that during the evening hours of February 12, 1994, he was standing under a carport at the apartment complex when he saw two people arguing in the street, "something about money." Marcus said he was able to see them well because they were standing directly under a streetlight. Marcus identified one of the men as "Moto." Initially, he could not identify the other man, but subsequently told Palmer that his name was "Popeye." Marcus said Moto asked Popeye, "Where's my money?" The two men began pushing each other, and Popeye pulled a gun from his waistband and fired two rounds at Moto.

Marcus described Popeye as an adult Mexican or Asian male, "six-two, six-three, dark shoulder-length hair, weighing about 190 to 220 pounds." Palmer associated defendant with the name Popeye and knew that Martin was a Blood and defendant was a Crip.

Palmer "put the word out" that he needed to talk to Popeye and wanted him brought in for questioning. Palmer and patrol officers searched for defendant at various locations where he was known to hang out, but were unable to locate him until months later, when defendant was in Ironwood State Prison in Blythe, on an unrelated matter.

Riverside County Forensic Pathologist Joseph Choi conducted an autopsy on Martin's body. Martin suffered two gunshot wounds to his head, one just below the eyebrow of his right eye, and the other on the back right side of his head. The presence of gunpowder tattooing on Martin's forehead and between his eyelid and eyelash indicated his eye was open and the lid was folded up when the first wound was inflicted. Dr. Choi estimated the distance between the muzzle and the wound at the time the gun was fired to be approximately six to 12 inches. The wound was fatal, and death occurred within minutes. Dr. Choi recovered the bullet from the back left side of Martin's head. The second gunshot wound was behind Martin's right ear and also would have been rapidly fatal.

On February 19, 1994, at around 11:00 p.m., Riverside County Deputy Sheriff Peter Herrera stopped a light blue Cadillac for driving too slowly. Kimiya Gamble, defendant's girlfriend, was driving and defendant was in the front passenger seat. When Herrera stopped them, there was a gun on the front seat between them. Defendant told Gamble to put the gun in her purse, and she did because she knew he was on parole. During a search of the car, Herrera found the loaded gun in Gamble's purse, which was on the front seat of the vehicle. Gamble told Herrera she had borrowed the gun from "some unknown person."

Herrera arrested defendant and Gamble.*fn8 Before they were taken to the precinct station, and while Gamble was in the police car, defendant told her that she should tell police she bought the gun on the street.*fn9 Ballistics testing revealed that the gun found during the search of the car was the Martin murder weapon.

In late February 1994, Harold Black was incarcerated with defendant at Chino State Prison. Black grew up in Banning, was a drug user, and occasionally associated with gang members. He knew those who claimed to be Crips and those who claimed to be Bloods, and associated with both. Black and defendant were acquainted with each other, but they were not friends. They were housed in the same dormitory, and Black slept in close proximity to defendant. One night, Black asked defendant why he was in jail. Defendant said that he was in for a gun violation; that he and his girlfriend were riding in a car and had been pulled over; and that he had put a gun in her purse. On another night, defendant asked Black if he knew Moto. Black answered yes, and that he had heard Moto had been shot. Defendant looked at Black, gave "a little smile, and he says, 'I did it.' " Defendant said he stayed that night with a friend at the Meadowbrook Apartments, and as he was leaving he saw Moto, crept up on him, pointed a gun at him, said, "this is for Scotty," and shot him in the head. Defendant said Moto "just crumbled, the body just fell." Defendant also told Black that he "shot that white boy down at the Desert Edge motel."

Black explained that "this is for Scotty" referred to Scotty Ware, a Crip who was killed at a party, supposedly by a Blood, and that defendant was a Crip. It was common knowledge that the person who killed Ware was a Blood, supposedly from the Pomona Island Bloods, and was hanging out in Banning. Black said he did not hear defendant's words when he continued to talk about the Coder murder because he was stunned by defendant's description of how Moto crumbled to the ground.

In September 1995, Black ran into defendant again at the Robert Presley Detention Center in Riverside. Defendant asked him whether the police had contacted him and whether he had said anything. Black told him no. When he asked defendant why, defendant said that Gregory Taylor had said something to the police or the district attorney. During this conversation, Black recalled that he had mentioned the shootings to Taylor. Black told defendant that he had not talked to the police or anyone, and had not been questioned.

C. Defendant's Guilt Phase Case

The defense presented two witnesses, Jessie James Brown and Charles Neazer, in support of its theory of misidentification. Defendant also sought to prove the Martin murder was not gang motivated.

On the night Coder was murdered, Brown*fn10 and several others, including Nona Woodson and Melva Murray, were in Brown's room at the Desert Edge Motel. Brown heard one shot fired. After the shot, he waited in the room for 15 to 20 minutes before leaving. He tried to leave with Woodson in Murray's light blue Buick, which was parked in front of Brown's door. The police stopped them and arrested them for "possession." Brown did not see Scott or defendant's car in the parking lot that evening.

Neazer*fn11 had lived in Banning off and on from 1973 through 1997. He testified that there really was not any gang activity in the Banning area and that the Crips and the Bloods were friends because everyone knew each other. According to Neazer, there had never been any gang activities involving the Crips and the Bloods in Banning.*fn12 He and Moto hung out in Banning because each had friends and relatives there. A few days before the murder, Neazer, Moto, and defendant were together at the Eastside Park. They were friendly, talking and drinking. Neazer did not believe Scotty Ware was a gang member, but if so, he may have been affiliated with the Bloods. Neazer believed Ware was killed in late 1989 or early 1990.

D. Prosecution Penalty Phase Case 1. Prior felony convictions (§ 190.3, factor (c))

The parties stipulated that defendant was convicted of robbery (§ 211) on June 1, 1989, and being a convicted felon in possession of a handgun (§ 12021.1) on February 6, 1991.

2. Prior unadjudicated criminal activity involving force or violence (§ 190.3, factor (b))*fn13

The prosecution introduced evidence of the following prior unadjudicated criminal offenses involving force or violence, or the threat to use force or violence, within the meaning of section 190.3, factor (b) (factor (b)).

On December 11, 1984, then 17-year-old defendant committed a robbery of a teacher in the cafeteria of a continuation school in the Banning Unified School District. (See pt. IV.A.3., below.)

On November 12, 1988, defendant was found to be in possession of .357-caliber ammunition, several pieces of rock cocaine and $168 in cash, and was arrested for possession for sale of rock cocaine. (See pt. IV.A.1., below.)

On January 23, 1991, defendant admitted ownership of a Rugar Redhawk revolver handgun that Banning police officers found in his car and that defendant admitted he had purchased that afternoon.

On August 10, 1992, defendant was arrested for battery stemming from a altercation with his sister, Robin McKinnon (Robin). (See pt. IV.A.2., below.)

On February 5, 1997, defendant was found to be in possession of a metal shank, approximately nine inches long, during a search of defendant's cell at the Robert Presley Detention Center in Riverside County. (See pt. IV.A.4., below.)

3. Victim impact testimony

Darlene Shelton, Coder's fianceee, testified that she was living with him at the motel when he was murdered. After the police told her that Coder was dead, she became hysterical. Shelton was pregnant with their child when he was murdered and "almost lost the baby" because "his death . . . affect[ed] me so bad." Shelton's other child considered Coder his father and missed him very much.

Dawn Coder, Coder's sister, testified that she was near the scene of the crime when Coder was murdered, and the police informed her of his death. Thereafter, Dawn was an "emotional wreck" for a week. The thyroid condition she had at the time of the murder worsened. She mourned Coder's death for a year "on the streets." She missed Coder because he was no longer available to guide her with her problems.

Suzanne Coder, Coder's mother, testified that she was at the scene of the murder. After hearing shots, she went outside and saw the feet of a partially covered body in the street and knew by their size that they were Coder's. When the prosecutor asked her how close she was to Coder, she stated that Coder was partially deaf and had a twin and that he and his siblings were close. After Coder's murder, she had "fits of depression" and cried most of the time.

Mary Ann Martin, Martin's sister, testified that she had another brother who was killed within five months of Martin's death. As a result of Martin's death, she no longer trusted people and stayed to herself.

E. Defendant's Penalty Phase Case

Defendant's mother, Janie Scott (Janie), his sister Jovina Brown, and his estranged father, Robert Smith, testified on his behalf. Janie and Smith met when Janie was 17 years old. Smith was married then and continued to have ongoing relationships with other women during his relationship with Janie. Janie and Smith had three other children: defendant's sisters, Robin, Jovina, and Marcina. Smith had other families and did not live with Janie and their children on a regular basis. He would come by about three times a month, typically at the beginning of each month. He took all of Janie's welfare money and never provided financial support. Janie and the children often went hungry. She had to rely on the charity of family and friends to survive. When Smith was in their lives, they never celebrated birthdays or holidays.

Smith was a serious heroin addict and injected the drug several times a day, often in front of the children. He described how he would fund his habit by committing armed robbery and larceny, and selling heroin.

Smith was physically abusive to Janie, frequently in front of their children. Smith slapped Janie when she was pregnant with Jovina, and during one argument, burnt her arm with a cigarette. Once, Smith beat Janie continuously as they walked from their house to her sister's house, on the other side of town. He beat her again once they arrived. On another occasion, Smith punched Janie in the stomach with his fist when she was seven months pregnant with defendant.

Smith began physically abusing defendant at the time he started to walk. He beat all of the children, except Robin, with belts and electrical cords. When defendant was two years old, Smith held him up by one hand, beat him, and threw him in a closet. He often would shake the children like they were rag dolls, beat them, and put them in dark closets for hours. The children were terrified of Smith. At times, Janie would have to soak the children in Epsom salt baths in order to close and heal the wounds Smith inflicted on them. Defendant and Jovina sought comfort from each other.

Growing up, defendant feared Smith and began to have nightmares when he was three years old. He would wake up from his sleep at night, screaming that Smith was beating him. When defendant wet his bed, Smith would beat him and make him stand in the corner, for hours, in his soiled underwear.

In 1971, the family lived in the projects, an area rampant with drug activity and violent crimes, including rapes, fights, and shootings. On one occasion, defendant and Jovina were playing outside when they witnessed someone hit a man in the head with a baseball bat and "there was blood everywhere." When he was five years old, defendant cut off part of one of his fingers. Defendant received good grades in school.

In 1972, Smith went to prison upon his conviction for murder. He had no further contact with Janie and their children. Thereafter, Janie became romantically involved with Troy Scott (Troy).

Janie married Troy and, in 1975, the family moved to California. Troy began to use heroin, sometimes in front of the children. Occasionally, they experienced financial hardship, had little food to eat, and went without electricity and gas.

Troy physically abused Janie, but not in front of the children. Troy also slapped defendant and once beat him with a belt. When defendant wet the bed, Janie often made him lie in it for a couple of days before allowing him to clean himself. Eventually, Troy was unable to work, and the family went on welfare. Defendant was protective of his siblings.

Around 1976, the family moved to Riverside County. Defendant continued to do well academically and played Pop Warner football. He continued to write poetry, which he had begun to do at an early age.

When defendant was 14 or 15 years old, he began to have trouble with the law. He was shot in the arm, elbow, and leg. The family moved to Banning. He became more protective of his mother.

Defendant continued to write poetry over the years, including while awaiting trial in this case. He was a good father to his daughter, who was about nine years old at the time of trial. Defendant was a good son to his mother, and a good brother to his sisters. Defendant loves his nieces and nephews and tells them to obey their mother and stay out of trouble.

II. Pretrial Issues A. Denial of Severance

Defendant contends the trial court abused its discretion in denying his pretrial motion to sever the Coder murder charge and its related firearm-possession charge from the Martin murder charge and its related firearm-possession charge.*fn14 He additionally argues that, even if the trial court did not abuse its discretion at the time it denied his motion, his joint trial actually resulted in gross unfairness amounting to a denial of due process. As we explain, defendant's contentions are without merit.

Section 954 governs joinder and severance, providing in pertinent part: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . . provided, that the court in which a case is triable, in the interest of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . ." When, as defendant concedes here, the statutory requirements for joinder are satisfied, a defendant has the burden to clearly establish a potential of prejudice sufficient to warrant separate trials. (People v. Cummings (1993) 4 Cal.4th 1233, 1283; People v. Stitely (2005) 35 Cal.4th 514, 531 (Stitely).)

"[T]he trial court's discretion under section 954 to deny severance is broader than its discretion to admit evidence of uncharged crimes under Evidence Code section 1101" because, in large part, a joint trial "ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials." (People v. Bean (1988) 46 Cal.3d 919, 935-936; accord Hartsch, supra, 49 Cal.4th at p. 493.) "Denial of a severance motion may be an abuse of discretion if the evidence related to the joined counts is not cross-admissible; if evidence relevant to some but not all of the counts is highly inflammatory; if a relatively weak case has been joined with a strong case so as to suggest a possible 'spillover' effect that might affect the outcome; or one of the charges carries the death penalty." (People v. Cummings, supra, 4 Cal.4th at p. 1283; see People v. Zambrano (2007) 41 Cal.4th 1082, 1128-1129 (Zambrano); People v. Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford.) In assessing whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. (Zambrano, supra, at p. 1128.) Here, we conclude the trial court's denial of severance was not an abuse of discretion.

Defendant argues at length that the trial court erred in finding evidence related to the two murders to be cross-admissible. We need not, and do not, decide this question, however, because, as we hereafter explain, defendant fails to establish that, notwithstanding any absence of cross-admissibility, he was unfairly prejudiced by joinder of the two murder cases. " 'While we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.' " (People v. Sandoval (1992) 4 Cal.4th 155, 173, quoting People v. Mason (1991) 52 Cal.3d 909, 934; see Bradford, supra, 15 Cal.4th at p. 1316.) "[E]ven if cross-admissibility did not support consolidation of the cases, the absence of cross-admissibility alone would not be sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion." (People v. Geier (2007) 41 Cal.4th 555, 577 (Geier), citing Stitely, supra, 35 Cal.4th at pp. 531-532; see Bradford, supra, 15 Cal.4th at pp. 1317-1318.) As we discuss below, defendant fails to persuade us that factors other than the lack, if any, of cross-admissibility, demonstrate the need for severance.

Neither murder was especially likely, or more likely than the other, to inflame the jury's passions. Each killing was cruel and brutal and committed for seemingly trivial reasons. Contrary to defendant's assertions, the proffered gang evidence in the Martin case was not unduly inflammatory. As we explain in part III.A.3, below, the prosecution did not proffer evidence of any specific acts of violence between members of the gangs involved in Martin's murder other than, of course, evidence that his murder was connected to a prior gang-related murder. This evidence, however, paled in comparison to the evidence of the most prejudicial facet of the Coder murder--its absolute senselessness.

Defendant's argument that the asserted superficial similarities between the crimes (i.e., both victims were shot in the head, both murders were committed at night) invited the jurors improperly to cumulate the evidence and consider the charges in concert is unpersuasive. This was not a matter in which a weak case was joined with a strong case, or with another weak case, thereby "causing a spillover effect that might have unfairly altered the outcome of the trial." (People v. Stanley (2006) 39 Cal.4th 913, 935.) Strong evidence supported both cases.

It is true, as the jury learned, that most of the prosecution witnesses had suffered prior convictions and had substance abuse problems. Harold Black had a pending robbery charge at the time of trial. Nonetheless, defendant confessed to each murder, and he was identified by eyewitnesses as the perpetrator of each crime. The eyewitness testimony in the Coder case, moreover, was materially consistent with the forensics evidence showing that he was shot in the head at close range and that the gun was level to the ground and pressed against his head when defendant shot him. In addition, the forensics evidence corroborated the testimony of Orlando Hunt and Kerry Scott that Coder took at most a couple of steps after he was shot before he fell to the ground.

In the Martin case, the forensics evidence corroborated eyewitness Lloyd Marcus's statement that the killer fired two rounds at Martin at close range. Also, the prosecution presented evidence that, within approximately one week after the murder, defendant gave the murder weapon to his girlfriend. Thus, the evidence in each case was equally strong. We see no possibility that the jury was improperly influenced by the evidence of one murder in determining his guilt of the other.

Defendant correctly points out that, because the present matter is "one in which the joinder itself gave rise to the special circumstance allegation (multiple murder, § 190.2, subd. (a)(3)), . . . a higher degree of scrutiny [must] be given the issue of joinder." (Bradford, supra, 15 Cal.4th at p. 1318.) But the trial court here heard counsel's extensive argument on the issue and carefully scrutinized the evidence. Our review of the record fails to disclose any abuse of discretion by the trial court in denying defendant's motion to sever.

Finally, defendant does not show joinder in this matter amounted to a denial of fundamental fairness. " 'A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process.' " (Hartsch, supra, 49 Cal.4th at p. 494, quoting Stitely, supra, 35 Cal.4th at p. 531.) In light of defendant's confessions, the eyewitness identifications of defendant as the perpetrator of each killing, and forensic evidence that corroborated the eyewitnesses' accounts of the murders, joinder of the murder charges did not render defendant's joint trial fundamentally unfair.

B. Denial of Defendant's Motion for Individual Sequestered Voir Dire of the Prospective Jurors

Defendant contends the trial court's denial of his motion for individual sequestered voir dire violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and parallel provisions of the California Constitution. His contention lacks merit.

"In Hovey v. Superior Court (1980) 28 Cal.3d 1, 80, we stated that, to minimize the potentially prejudicial effects of voir dire conducted in open court, in future capital cases, the portion of the voir dire of each prospective juror involving death qualification should be done individually and in sequestration." (People v. Avila (2006) 38 Cal.4th 491, 559 (Avila).) On June 5, 1990, the voters adopted Proposition 115, which, among other things, abrogated Hovey by adding section 223 of the Code of Civil Procedure, containing a provision stating that " 'where practicable, [voir dire shall] occur in the presence of the other [prospective] jurors in all criminal cases, including death penalty cases.' " (People v. Slaughter (2002) 27 Cal.4th 1187, 1199 (Slaughter).) Because defendant was tried after Code of Civil Procedure section 223 was enacted, that section controls here.*fn15

Before trial, defendant moved for individual sequestered voir dire. He asserted a significant possibility of prejudice existed in this case because the circumstances of the murders of two young men would present emotional issues, evidence of gang affiliation and rivalry would be introduced, defendant was a young African-American man, and the nature of the death-qualification process itself was prejudicial. The trial court summarily denied his request for sequestered voir dire, but granted his motion for the use of a questionnaire containing 50 questions drafted by the parties.

Initially, defendant contends that any restriction on individual and sequestered voir dire on death-qualifying issues, including that imposed by Code of Civil Procedure section 223, violates a defendant's rights to an impartial jury, to a reliable death sentence, and to the effective assistance of counsel under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. Consistent with past decisions, we reject this contention. (See, e.g., People v. Lewis (2008) 43 Cal.4th 415, 494 (Lewis); Avila, supra, 38 Cal.4th at p. 559; People v. Vieira (2005) 35 Cal.4th 264, 287-288 (Vieira); Stitely, supra, 35 Cal.4th 514, 537.)

Defendant next contends the trial court's summary denial of motion did not amount to a reasoned judgment, and thus constitutes an abuse of discretion. "Under Code of Civil Procedure section 223, the question of whether individual, sequestered voir dire should take place is entrusted to the trial court's discretion. [Citations.] Discretion is abused when the questioning is not reasonably sufficient to test prospective jurors for bias or partiality." (People v. Tafoya (2007) 42 Cal.4th 147, 168.)

Here, we agree with the People that, although the trial court did not state its reasons for denying defendant's motion for sequestered voir dire, its remarks during voir dire confirm that its denial of the motion reflected careful consideration of the issue and that it properly exercised its discretion. Before the commencement of voir dire, the court explained to the prospective jurors that use of the questionnaires would save about two to three weeks in selecting a jury because it would obviate the need to question them and listen to their answers in open court. The court offered prospective jurors the option to discuss sensitive subjects in private, if needed. In the context of these comments, it is apparent the trial court thoroughly considered the issue and determined group voir dire was adequate. The court's denial of defendant's motion was not outside the bounds of reason.

Defendant additionally contends that group voir dire was not "practicable" within the meaning of Code of Civil Procedure section 223 because prospective jurors were influenced by the responses of others. He observes that, during voir dire, Prospective Juror S.R. expressed in front of other prospective jurors her views that she did not think she could ever vote to impose a death sentence. The trial court dismissed her for these views. Defendant asserts this juror's views suggested to other prospective jurors who favored the death penalty and wished to serve, but feared disqualification based on their pro-death penalty views, that they could avoid dismissal by expressing less support for the death penalty and conveying a willingness to consider both penalties if they served.

"The possibility that prospective jurors may have been answering questions in a manner they believed the trial court wanted to hear," however, "identifies at most potential, rather than actual, bias and is not a basis for reversing a judgment." (Vieira, supra, 35 Cal.4th at p. 289.) Indeed, the purpose and effect of the "group voir dire" requirement of Code of Civil Procedure section 223 would be obviated if nonsequestered questioning were deemed "[im]practicable" because of the speculative concern that one prospective juror's death penalty responses might influence the responses of others in the venire. It is precisely this premise of People v. Hovey, supra, 28 Cal.3d 1, that Proposition 115's adoption of Code of Civil Procedure section 223 was intended to overrule. (Vieira, supra, at p. 288, citing Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1178.)

Finally, defendant asserts that the group voir dire procedure employed by the trial court was inadequate to identify prospective jurors whose views on the death penalty rendered them partial and unqualified to serve. As a result, he asserts, the court was unable to determine whether any of the prospective jurors who sat on the jury in his case held disqualifying views that impaired their ability to judge him in accordance with the court's instructions. Defendant, however, does not "describe any specific example of how questioning prospective jurors in the presence of other jurors prevented him from uncovering juror bias." (People v. Navarette (2003) 30 Cal.4th 458, 490.) Accordingly, defendant has not demonstrated he was prejudiced by the trial court's use of group voir dire.

C. Excusal of Prospective Jurors for Cause

In Witherspoon v. Illinois (1968) 391 U.S. 510 (Witherspoon), the United States Supreme Court held that a death sentence cannot be carried out if the jury that imposed or recommended the penalty was selected by excluding prospective jurors for cause "simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." (Witherspoon, supra, 391 U.S. at p. 522.) In Wainwright v. Witt (1985) 469 U.S. 412 (Witt), the high court clarified the standard enunciated in Witherspoon and held that a prospective "juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the [prospective] juror is not substantially impaired, removal for cause is impermissible." (Uttecht v. Brown (2007) 551 U.S. 1, 9 (Uttecht), citing Witt, supra, at p. 424.) Under Witt, a prospective juror is "substantially impaired" and may properly be excused for cause if he or she is unable to follow the trial court's instruction and "conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate." (People v. McWhorter (2009) 47 Cal.4th 318, 340 (McWhorter).)

Defendant contends the trial court erroneously excused Prospective Jurors R.A., J.S., R.G., G.H., and P.F. for cause based on their views regarding the death penalty, in violation of his constitutional rights to a fair and impartial jury, due process, and a reliable verdict under the Sixth, Eighth, and Fourteenth Amendments. He also impliedly claims that the procedure by which the trial court resolved the challenges for cause of these individuals was constitutionally defective. The People argue not only that defendant's claims lack merit but also that defendant has forfeited both procedural and substantive challenges to the excusals of the prospective jurors because his trial counsel either expressly agreed to the procedures or rulings leading to those excusals, or affirmatively acquiesced in them by stating that the defense would "submit" the matters. We reject both of defendant's claims.

At stake here are the important interests of a capital defendant's constitutional right to a fair and impartial penalty trial and the People's expectation of, and entitlement to, finality of capital judgments. Manifestly, our efforts in reconciling these competing interests depend, in significant part, on the fair and orderly administration of our criminal justice system. A fundamental tenet of our system of justice is the well-established principle that a party's failure to assert error or otherwise preserve an issue at trial ordinarily will result in forfeiture of an appeal of that issue. " 'The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had.' "*fn16 (People v. Walker (1991) 54 Cal.3d 1013, 1023, quoting People v. Melton (1990) 218 Cal.App.3d 1406, 1409.)

In People v. Velasquez (1980) 26 Cal.3d 425 (Velasquez), this court observed that "[t]he decisions of the United States Supreme Court and of the California courts have unanimously ruled that Witherspoon [excusal] error is not waived by mere failure to object."*fn17 (Id. at p. 443.) There, we adopted the rule that a defendant's failure to object to a Witherspoon excusal at trial does not forfeit the issue on appeal (the "no-forfeiture rule "). (Velasquez, at p. 443.) This case presents an occasion to reconsider the validity of this rule, and, as we explain below, we conclude that the rule finds no support in either the United States Supreme Court or California decisional law on which it relies. For this reason, and others that we explain in detail below, we abandon our no-forfeiture rule with respect to Witherspoon/Witt excusal error. In addition, we require, prospectively, counsel (or defendant, if proceeding pro se) to make either a timely objection, or the functional equivalent of an objection (i.e., statement of opposition or disagreement) to the excusal on specific grounds under Witherspoon/Witt in order to preserve the issue for appeal.

1. The jury selection process and written questionnaire

At the beginning of the jury selection process, the trial court proposed to pare down the jury pool to a size the courtroom could accommodate by using the questionnaires defendant had requested, and helped to draft, in order to eliminate prospective jurors whose questionnaire responses reflected death penalty views that precluded their service in a capital case. The prosecutor concurred, and defense counsel raised no objection.

Thereafter, during a discussion of the questionnaires, the prosecutor expressed his understanding that the two sides had "agreed on everything." Defense counsel responded, "That's fine, Your Honor."

The court read 111 completed juror questionnaires, each 21 pages long. The court and counsel then addressed, one by one, certain prospective jurors whom the court had preliminarily identified, by reason of their written responses, as "questionable." During this process, defense counsel expressly stipulated to the excusal of several prospective jurors, based solely on their questionnaire answers. Thereafter, the court and counsel discussed one by one the remaining prospective jurors, and the prosecutor stipulated to the excusals for cause of Prospective Jurors R.A., J.S., R.G., G.H., and P.F. Counsel "submitted" each matter. In addition, with respect to Prospective Jurors R.A. and J.S., defense counsel declined the court's offer to conduct oral voir dire. The court then excused each of these prospective jurors for cause, based solely on their questionnaire responses.

2. Discussion a. Forfeiture

Preliminarily, insofar as defendant now claims the wording of the questionnaires was inherently incapable of revealing that a prospective juror was unqualified, his words or conduct during the jury selection proceedings, described above, constituted express agreements or stipulations to the contrary. He therefore has forfeited such a contention.

Turning now to defendant's substantive claims that the excusals of the five prospective jurors were improper under Witherspoon/Witt, the People insist defendant forfeited these claims on appeal because counsel expressed no objection, argument, or opposition, but merely "submitted" these matters to the trial court. In a number of our cases (e.g., People v. Lynch (2010) 50 Cal.4th 693, 733 (Lynch); People v. Hawthorne (2009) 46 Cal.4th 67, 82-83; People v. Schmeck (2005) 37 Cal.4th 240, 262 (Schmeck)), dating back to Velasquez, supra, 26 Cal.3d 425, we expressed the rule that an appellate challenge to a Witherspoon/Witt excusal is not forfeited by a failure to object at trial, or even by counsel's affirmative statement to the trial court that the matter is "submitted." Here, by counsel's submission of the matters to the trial court, " 'as a practical matter, he "did not object to the court's excusing the juror, but . . . also refused to stipulate to it." ' [Citation.]" (Lynch, supra, at p. 733.) Under our precedent, defendant therefore did not forfeit this claim on appeal. (Ibid.)

Nevertheless, we take this opportunity to re-examine, for future purposes, our no-forfeiture rule as established in Velasquez. As we explain, we conclude Velasquez was based on a faulty premise and was wrongly decided. For this and the additional reasons discussed below, we overrule People v. Velasquez, supra, 26 Cal.3d 425, to the extent it provides that failure to object to a Witherspoon excusal at trial does not forfeit the issue on appeal.

"[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.' (Fischer et al., Appeals and Writs in Criminal Cases (2d ed. 2000) § 1D.26, pp. 182-183; see also 4 Cal.Jur.3d (1998) Appellate Review, § 175, pp. 233-234.) This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.] [¶] The reasons for the rule are these: ' "In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling of the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." ' [Citation.]" (In re Seaton (2004) 34 Cal.4th 193, 198.)

A careful review of our forfeiture analysis in Velasquez reveals that this court established the exception to the objection requirement for Witherspoon excusal error based on the mistaken assumption that post-Witherspoon decisions of the high court and this court ruled such error is not forfeited on appeal by failure to object at trial. (Velasquez, supra, 26 Cal.3d at p. 443, citing Maxwell v. Bishop (1970) 398 U.S. 262 (Maxwell); Boulden v. Holman (1969) 394 U.S. 478 (Boulden); Wigglesworth v. Ohio (1971) 403 U.S. 947 (Wigglesworth); Harris v. Texas (1971) 403 U.S. 947 (Harris); People v. Risenhoover (1968) 70 Cal.2d 39 (Risenhoover); In re Anderson (1968) 69 Cal.2d 613 (Anderson).)

This court first applied the no-forfeiture rule set forth in Velasquez in People v. Lanphear (1980) 26 Cal.3d 814, 844-846 (Lanphear). We did so citing Velasquez as the sole authority for excusing the defendant's failure to object to the Witherspoon excusals, and without mention of the majority's rationale for adopting the rule. (Lanphear, supra, 26 Cal.3d at p. 844.) In his dissent to the majority's conclusion in Lanphear, however, Justice Clark correctly observed that each of the post-Witherspoon decisions cited in Justice Tobriner's lead opinion in Velasquez in support of the no-forfeiture rule involved trials that had preceded the decision in Witherspoon (which the high court decided June 3, 1968) and as to which the appellate or habeas corpus proceedings were pending when the opinion was filed. (Lanphear, at pp. 844-846 (dis. opn. of Clark, J.), quoting Velasquez, supra, 26 Cal.3d at p. 443.) As such, the defendant in each of those cases was entitled to the fully retroactive application of the new Witherspoon standards respecting for cause challenges. (Witherspoon, supra, 391 U.S. at p. 523, fn. 22.) Either expressly or impliedly, the defendant's failure to object on Witherspoon grounds at trial was excused on appeal. (Lanphear, supra, 26 Cal.3d at p. 845; see Maxwell, supra, 398 U.S. at p. 267; Boulden, supra, 394 U.S. at pp. 484-485; Wigglesworth, supra, 403 U.S. 947 [judgment reversed and case remanded for further proceedings under Witherspoon, citing Boulden and Maxwell]; Harris, supra, 403 U.S. 947 [same]; Anderson, supra, 69 Cal.2d at p. 619 [the defendant's failure to object to the dismissals in his pre-Witherspoon trial was expressly excused because Witherspoon made a material change in the law]; Risenhoover, supra, 70 Cal.2d at p. 56 [relying on Anderson].) Indeed, because the Witherspoon rule had not yet been articulated at the time of the trials in these cases, defense counsel had no occasion to object to dismissals on Witherspoon grounds.*fn18

As with our jurisprudence (see, e.g., Avila, supra, 38 Cal.4th at p. 566), decisions of the high court are not authority for issues neither considered nor decided therein. (Cooper Industries, Inc. v. Aviall Services, Inc. (2004) 543 U.S. 157, 170 [" 'Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.' "], quoting Webster v. Fall (1925) 266 U.S. 507, 511.) Because the question of forfeiture in post-Witherspoon trials was not decided by Witherspoon or any of the post-Witherspoon decisions cited by the Velasquez majority, the no-forfeiture rule adopted in that case is grounded in neither the law, nor, as we clarify below, the facts of that case.

The United States Supreme Court first discussed the forfeiture issue in the context of Witherspoon excusal error in Witt. (Witt, supra, 469 U.S. at p. 431, fn. 11.) There, Justice Rehnquist explained that defense counsel's failure to object to the dismissals of the prospective jurors did not bar federal habeas corpus review. (Ibid.) Because the state supreme court did not dispose of the defendant's claim on independent state grounds (e.g., by failure to preserve the issue on appeal) and reached the merits of the claim, the issue was properly before the high court. (Ibid.)

Much more recently, the high court elaborated on the forfeiture issue in Uttecht, supra, 551 U.S. 1. The Uttecht majority confirmed that for purposes of federal habeas corpus review of Witherspoon/Witt excusal error in a state criminal trial, there is "no independent federal requirement" of a trial objection; instead, "state procedural rules govern." (Uttecht, at p. 18, italics added.) Nonetheless, the Uttecht majority noted the federal habeas corpus court may take into account, on the merits, the implications of trial counsel's "voluntary acquiescence to, or confirmation of, a juror's removal." (Ibid.) As the majority explained, "[b]y failing to object, the defense [does] not just deny the conscientious trial judge an opportunity to explain his judgment or correct any error. It also deprive[s] reviewing courts of further factual findings that would have helped to explain the court's decision." (Ibid.) Uttecht thus strongly implied that a requirement of trial objection in Witherspoon/Witt cases is sound policy, and that the federal Constitution does not bar the adoption of such a "state procedural rule[ ]." (Uttecht, at p. 18.)

Ironically, in Velasquez, this court did embrace this sound policy. In addition to creating the no-forfeiture rule, the Velasquez majority also observed that the trial court in that case was in fact apprised of the risk of error in excusing the prospective juror and provided an opportunity to correct the error. We thus impliedly held that the issue had been preserved for appeal on this additional basis. We stated: "[I]n the present case the trial judge was alerted to the possibility of Witherspoon error by the prosecutor and further was informed that defendants did not consent to the dismissal of [the prospective juror]. [Citation.] Thus the function of an objection--to alert the court to the risk of error and permit it to avoid that error--was essentially fulfilled. Furthermore, the court's statement that 'I'm going to stand by my ruling. It's plenty clear to me,' suggests that any formal objection would have been futile." (Velasquez, supra, 26 Cal.3d at p. 444; see id. at p. 437.)

Because, as indicated, Velasquez held in the alternative that the issue was preserved at trial (albeit atypically by both defense counsel and the prosecutor), Velasquez's suggestion that Witherspoon excusal error is not forfeited by failure to object effectively was dictum. Insofar as not inherently persuasive, it thus has little authoritative weight.

Finally, our no-forfeiture rule as to Witherspoon/Witt excusal error is inconsistent with the requirement of an objection that applies to other jury selection issues. We have repeatedly required that an objection be interposed in the trial court to preserve jury selection issues other than Witherspoon/Witt excusal error, including inadequate voir dire (People v. Foster (2010) 50 Cal.4th 1301, 1324; People v. Taylor (2010) 48 Cal.4th 574, 638 (Taylor); People v. Rogers (2009) 46 Cal.4th 1136, 1149 (Rogers); People v. Cook (2007) 40 Cal.4th 1334, 1341-1342); failure to instruct prospective jurors regarding their civic duty to serve in a death penalty case (People v. Mills (2010) 48 Cal.4th 158, 170); non-Witherspoon/Witt error in excusing jurors (People v. Holt (1997) 15 Cal.4th 619, 656 (Holt) [prosecutor's challenge for bias/conflict of interest]; People v. Mickey (1991) 54 Cal.3d 612, 664-665 [undue personal hardship]); error in discharging a prospective juror at his or her request (People v. Ashmus (1991) 54 Cal.3d 932, 987, fn. 16 [failure to preserve federal constitutional claim]); representative cross-section error (People v. Ramirez (2006) 39 Cal.4th 398, 440 [composition of the master jury list]; People v. Champion (1995) 9 Cal.4th 879, 907 (Champion), overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860 [wage earners systematically excluded]; People v. Fauber (1992) 2 Cal.4th 792, 816 [hearing impaired prospective jurors systematically excused]; Batson/Wheeler*fn19 error (People v. Davis (2009) 46 Cal.4th 539, 583; Lewis, supra, 43 Cal.4th at pp. 481-482; People v. Thornton (2007) 41 Cal.4th 391, 462); and improper denial of a defendant's challenge for cause under Witherspoon/Witt (Mills, supra, at pp. 186-187 [defendant must use peremptory challenge to remove prospective juror in question, must exhaust peremptory challenges, and must express dissatisfaction with the jury as finally constituted]; People v. Wallace, supra, 44 Cal.4th 1032, 1055 [same]; but cf. People v. Hoyos (2007) 41 Cal.4th 872, 904, fn. 16 [explicit non-joinder in co-defendant's challenge for cause to pro-death prospective juror did not forfeit appellate contention that juror was death disqualified "because failure to object does not forfeit a Witt/Witherspoon claim on appeal"].)*fn20

By applying to Witherspoon/Witt issues the usual requirement of a contemporaneous objection, we promote fair and orderly judicial administration. A timely objection alerts the trial court to potential Witherspoon/Witt error in the disqualification of a prospective juror, thus enabling the court to avoid or correct the problem before it irrevocably nullifies the entire subsequent penalty trial.*fn21 Moreover, by requiring the defendant to advise the trial court he or she opposes the excusal under Witherspoon/Witt in order to preserve the issue for appeal, we eliminate the unfair risk of "sandbagging" the court by finding it committed reversible error of which it received no warning. Defendant offers no persuasive reason why our requirement of a contemporaneous objection stating specific grounds of Witherspoon/Witt excusal error should not apply.

Accordingly, for the reasons stated, we overrule People v. Velasquez, supra, 26 Cal.3d 425 to the extent it articulates a no-forfeiture rule with respect to Witherspoon/Witt excusal error. In any capital case tried after the finality of this decision, counsel (or defendant, if proceeding pro se) must make either a timely objection, or the functional equivalent of an objection, such as a statement of opposition or disagreement, to the excusal stating specific grounds under Witherspoon/Witt in order to preserve the issue for appeal. Nevertheless, as stated above, because at the time of this trial we had not expressly held that an objection is necessary to preserve Witherspoon/Witt excusal error on appeal, we do not apply this rule here. (See People v. Scott (1994) 9 Cal.4th 331, 357-358.) We thus proceed to the merits of defendant's claims.

b. The law

A "criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause." (Uttecht, supra, 551 U.S. at p. 9, citing Witherspoon, supra, 391 U.S. at p. 521.) As stated, a prospective juror in a capital case may be excused if his or her views would " 'prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath.' " (Witt, supra, 469 U.S. at p. 424.) A prospective juror's bias against the death penalty, however, need not be proved with "unmistakable clarity." (McWhorter, supra, 47 Cal.4th at p. 340.) Moreover, "a prospective juror in a capital case may be discharged for cause based solely on his or her answers to the written questionnaire if it is clear from the answers that he or she is unwilling to temporarily set aside his or her own beliefs and follow the law." (Avila, supra, 38 Cal.4th at p. 531, italics added; accord, People v. Wilson (2008) 44 Cal.4th 758, 787 (Wilson).)

The erroneous exclusion of a prospective juror under Witherspoon/Witt compels reversal of the penalty verdict regardless of whether the prosecutor had remaining peremptory challenges. (People v. Heard (2003) 31 Cal.4th 946, 965; see Gray v. Mississippi, supra, 481 U.S. at pp. 666-668.) On appeal, we independently review a trial court's decision to excuse for cause a prospective juror based solely upon that juror's written responses to a questionnaire. (People v. Russell (2010) 50 Cal.4th 1228, 1261 (Russell), citing Avila, supra, 38 Cal.4th at p. 529.)

In addition to applying the above standards, we find the following principles also are helpful in analyzing the instant trial court's decision to excuse the prospective jurors for cause.

As we have held in a number of our decisions, even if counsel's failure to object does not technically forfeit an appellate challenge to a Witherspoon/Witt excusal, it does indicate counsel acquiesced and concurred that the juror could be excused. (Lynch, supra, 50 Cal.4th at p. 733; Schmeck, supra, 37 Cal.4th at p. 262; People v. Cleveland (2004) 32 Cal.4th 704, 734-735; Memro, supra, 11 Cal.4th at p. 818; Cox, supra, 53 Cal.3d at p. 648, fn. 4; see Uttecht, supra, 551 U.S. at p. 18.) Such an inference is reinforced when, faced with a tentative ruling that the prospective juror is excusable, as here, counsel passed up an opportunity to question the juror further, or declined a direct offer of further voir dire. (Witt, supra, 469 U.S. at pp. 430-431 [noting, as factor supporting excusal of the prospective juror, that "defense counsel did not see fit to object to [the prospective juror]'s recusal, or to attempt rehabilitation"]; id., at pp. 434-435 [noting again that defense counsel chose not to question the prospective juror or object to her excusal, and that "[i]ndeed . . . it seems that at the time [she] was excused no one in the courtroom questioned the fact that her beliefs prevented her from sitting"]; see also id., at p. 431, fn. 11 [where state supreme court did not find waiver for failure to object, claim will not be deemed " 'waived' " on federal habeas corpus, but "counsel's failure to speak in a situation later claimed to be so rife with ambiguity as to constitute constitutional error is a circumstance we feel justified in considering when assessing respondent's claims"]; cf. Stewart, supra, 33 Cal.4th 425, 440, 452 [stressing that counsel repeatedly objected to the excusals, based exclusively on their questionnaire responses, of all five prospective jurors there at issue and despite prior promises by the court was denied all opportunity for follow-up questioning].)

When counsel failed to openly contest an excusal, we may logically assume counsel did not oppose it. It is equally logical to assume that when, having been advised of the court's intention to excuse a prospective juror, counsel declined an opportunity for further voir dire to clarify the juror's views, counsel accepted that the record as it stood was sufficient to support the intended ruling. These assumptions also take into account that there may be subjective reasons why, exercising the lawyer's art and instinct, counsel would prefer to dispense with a particular juror despite the juror's pro-life views. Additionally, they discourage counsel from seeking to create ...


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