San Diego County Super. Ct. No. SCN 069937
The opinion of the court was delivered by: Chin, J.
On October 26, 1997, defendant Susan Dianne Eubanks shot and killed her four young children. When they died, the children, Brandon, Austin, Brigham, and Matthew, were, respectively, ages 14, seven, six, and four. A jury found defendant guilty of four counts of first degree murder (Pen. Code, § 187).*fn1 The jury found true as to each murder the special circumstance allegation that defendant had committed multiple murders (§ 190.2, subd. (a)(3)). The jury also found that defendant personally used a firearm (§ 12022.5, former subd. (a)(1), as amended by Stats. 1995, ch. 377, § 9, p. 1950; see new § 12022.5, subd. (a)) in the commission of the murders. After a penalty trial, the jury returned a verdict of death. The trial court denied defendant's motion to modify the penalty verdict (§ 190.4, subd. (e)), and imposed a determinate term of four years for each of the gun use enhancements. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
At the time defendant killed her children, she had been living with them, her boyfriend Rene Dodson, and her nephew in a small home in San Marcos. Defendant and her first husband, John Armstrong, had one son, Brandon. Following her divorce from Armstrong, defendant married Eric Eubanks.*fn2 She was pregnant at that time with Austin, the child of Larry Shoebridge, with whom she had been living. Eric fathered two of defendant's sons, Brigham and Matthew. After defendant's brother died, defendant obtained custody of her nephew.
Each son had been shot in the head by the same five-shot .38-caliber revolver; at the time of their deaths, Austin and Brigham had 0.02 micrograms of Xanax in their blood, while Brandon and Matthew had none.
In the living room, defendant had put the revolver to the temple of 14-year-old Brandon and shot him; she also shot him in the neck from a few inches away. She shot her younger sons in their bedroom. With the revolver no more than a foot from Austin's head, she shot her seven-year-old son near his left eye. With the gun inches from Brigham's head, she shot her six-year-old son twice, once above his left ear and once close to his right ear. With the gun close to the head of four-year-old Matthew, she shot him in the top of the head, leaving stippling marks on his face. She fired other bullets in the bedroom that hit a wall and a window. At some point in that bedroom, defendant opened the revolver's cylinder, removed the five expended shell casings, put them in a trash can, and reloaded the five-shot revolver.
Defendant shot herself in the abdomen with that same revolver. Her six-year-old nephew was home at the time of the shootings. He was found unharmed, in bed, with blankets pulled up to his chin.
Deputies who entered the home shortly after the shooting found five notes on defendant's bedroom floor, all in defendant's handwriting. One was to Eric. Defendant wrote, "You betrayed me. You kept a diary, and you and Rene Dodson conspired against me." She added, "I've lost everyone I've ever loved. Now it's time for you to do the same." She said he could use any money from her worker's disability case to "bury the kids and find your rainbow. Anna May, I'm sure." In a note to Dodson, defendant wrote he was "the biggest liar to date that I know. Stay on crystal meth and let your 37-year-old ass move back with Mom and Dad. Get back with Pam and/or Sherri. They're your class." It concluded, "See ya . . . Ha, ha." A third letter was to Brandon's father. It said, "I know you'll hate me forever, but I can't let [Brandon] live without his brothers, so I did what I did." She wrote she had been "strong for 25 years, and I'm tired of all the fight and hurt." She ended the note by complaining that Dodson "fucked me all up." Defendant also wrote to her niece and her sister, apologizing for her actions. To the niece, defendant explained, "I know what I'm doing is going to hurt you tremendously, but I can't and have no desire to go on." To her sister, defendant wrote she was "tired of being strong," that "things are way out of hand." Defendant included Matthew's birth date and hers and asked her sister to ensure that the two of them would be "in the same casket."
Besides the evidence of the crimes themselves and the above described notes, the prosecution presented the following evidence regarding events that preceded the crimes.
The Eubanks marriage had appeared stable until defendant experienced job-related injuries that required surgery. She then began to abuse prescription medications and alcohol, she lost her job, and she and her husband Eric began a recurring pattern of separation and reconciliation. The police found more than 50 bottles of prescription medications in defendant's house after the murders.
In the fall of 1997,*fn3 the Eubankses were going through a divorce, and Eric moved out of their South Twin Oaks home about one month before the murders. Defendant and Rene Dodson had had an intimate relationship on and off since they met in 1994. Dodson moved into defendant's house after Eric moved out. From October 13 to 19, Dodson left defendant's house, and Eric moved back in. A short time later, Eric moved out, and Dodson returned.
About 10 days before the murders, defendant purchased replacement dead bolt locks for her house. Appearing angry, she told a clerk who knew Dodson that he had broken the lock on her door, and she was buying new ones so he could not enter or get "his F'ing stuff." Defendant told the clerk to warn Dodson that she just purchased bullets at a nearby store and one "had his name on it." Defendant then asked one of the little boys with her, "Mommy did buy the bullets, didn't she, didn't she?" Dodson testified defendant previously had commented that, if pushed, she would kill her children and herself.
The afternoon of October 26, the day of the murders, Brandon stayed home to watch his siblings and defendant's nephew while defendant and Dodson went to a bar to watch football. The couple ordered a pitcher of beer and soon were joined by another couple. Defendant did not want the woman to sit with them due to a confrontation they had had when she had criticized defendant for talking about Dodson behind his back. Dodson decided he and defendant should go to a different bar because defendant was upset.
Defendant argued with Dodson when they left, complaining he had taken the other woman's side. She slapped Dodson a few times while he was driving; Dodson then decided to drive home. When defendant realized they were not going to another bar, she slammed the minivan into its parking gear while they were travelling 30 miles per hour on a freeway off-ramp. Defendant removed the keys from the ignition, but Dodson eventually was able to retrieve them and drive home.
Once home, the couple continued to argue in their bedroom. When Dodson said he wanted to leave and move to Hawaii, defendant slapped him, took his keys, blocked his exit from the room, and ripped out the telephones. Eventually, they calmed down and had sex. Dodson then said he was going to watch television in the living room; instead, when defendant was in another part of the house, Dodson ran to a nearby gas station, called the Sheriff's department, and asked that they send a deputy to stand by so he could retrieve his belongings and truck from defendant's house.
While defendant and Dodson were fighting, Brandon had gone to a pay telephone and called Kathy Goobs (Kathy), the mother of his best friend. He asked her to come get him and the other boys because his brothers were scared and Brandon did not want them exposed to the fighting. Kathy told Brandon to go home, reassess the situation, and to call again if he still needed her to pick them up.
A short time later, defendant called Kathy, "pleading" for Kathy to come take the boys. Kathy testified that she spoke to defendant, who, though upset and agitated, did not sound intoxicated. Defendant said she feared Dodson would call the police and that, if they came, they would take and separate the children. Kathy agreed to pick up the boys but never left to get them. Kathy had been allowing Eric to stay at her home until he found a place to live; she decided not to get the boys because she was concerned defendant no longer would allow Brandon to visit her son if defendant saw Eric at Kathy's house when defendant came to retrieve the boys because she would think Kathy was "taking sides."
Deputy Sheriff Daniel Deese picked up Dodson at the gas station. As they approached defendant's house, defendant was carrying Dodson's tools away from his vehicle, which had two flat tires and broken headlights. When Deese told defendant to drop the tools, she became confrontational and claimed Dodson owed her money and had raped her. She went inside after Deese threatened to arrest her. While Dodson was putting his tools in the patrol car, defendant came outside, yelling, "I've been screwed by men my whole life. I've been beaten. I've been raped."
As Dodson left with Deese, they saw Eric parked nearby. Kathy had paged Eric and advised him of the calls from defendant and Brandon, and Eric had come to check on the children. He saw the police car and was waiting for it to drive away because defendant had a restraining order against him. After learning that defendant was throwing Dodson out, Eric agreed to take Dodson to a bar in Escondido. They loaded the tools into Eric's truck and left.
Back inside her house, defendant telephoned Brandon's grandfather and then called Armstrong in Texas. She told Armstrong the police had been there investigating the incident with her boyfriend in which she had slashed his tires, broken his windshields, and put sugar in his gas tank, and that she feared child protective services would come to take the children. She said she needed Armstrong to tell Brandon to "stick by me on this one, even if it means lying."
When Eric arrived at Kathy's home after 6:00 p.m., he had her listen to a voice mail he just had received in which defendant simply said, "Say goodbye." At 6:30 p.m., Eric called the Sheriff's office and asked to speak with Deputy Deese; about 7:00 p.m., the two connected. When Eric mentioned the message and his concern that defendant had a handgun at the house, Deese instructed him to request a welfare check of defendant's residence.
The defense presented evidence through the testimony of Dr. Clark Smith, who was board certified in addiction and forensic psychiatry, that the fact defendant received infusions of saline and other fluids while in the ambulance would have affected the alcohol content of the blood drawn from her at the hospital. Although that blood sample revealed a 0.07 percent blood-alcohol content and a toxicologist had calculated that defendant's blood-alcohol content at the time of the murders was 0.09 percent, Dr. Smith testified defendant's blood-alcohol content at the time of the murders would have been closer to 0.19 percent. He testified the infusions given to defendant similarly would have affected the level of Valium found in her blood. He opined that the alcohol and drug levels in defendant's blood at the time of the shooting would have produced a "very significant effect" on her brain and would have affected her emotions, perceptions, judgment and other "higher brain functions."
Dr. Vina Spiehler, the toxicologist who had estimated that defendant's blood-alcohol content was 0.09 percent at the time of the murders, was called as a rebuttal expert witness to refute Dr. Clark's conclusions. Dr. Spiehler testified she had based her calculations on formulae published in recognized literature, and that she formed her opinion that liquid intravenous infusions into the body do not affect blood-alcohol or drug concentrations in the manner claimed by Dr. Smith based on literature on dilutions and her personal experience while working at a coroner's office.
B. Penalty Phase 1. Prosecution Evidence
Crime scene reconstructionist Rod Englert (Englert) testified as an expert that defendant first shot Brandon twice in the living room, next shot Austin once, and then fired twice in the direction of Matthew but missed. Englert testified defendant reloaded her revolver at that point and then shot Brigham twice, fired a shot between Brigham and Matthew, and then shot Matthew once.
Larry Shoebridge testified that an old girlfriend contacted him in 1989 while he and defendant were romantically involved and living together. Defendant responded by putting a gun to Shoebridge's head and saying she " 'could do whatever she wanted' " and she " 'could'a killed' " him. Shoebridge decided to leave. Fearing defendant's reaction to his decision, he moved out after she had gone to work. After defendant discovered where Shoebridge was living, she drove up to his house. Defendant screamed at Shoebridge and tried to attack his female friend. Defendant eventually drove off, screeching her tires.
Brandon's relatives and a friend testified about the impact Brandon's death had on their lives. The paternal grandmother mentioned two incidents in which she believed defendant had abused Brandon. Teachers and coaches testified about the impact the boys' deaths had on them.
Linda Smith, defendant's sister, testified regarding a telephone call she received from defendant in which defendant said she once had rubbed her nephew's face in a dirty diaper after she learned he had hidden the diaper behind his bed. When Smith became angry with her, defendant changed her story and said she only had made her nephew smell the diaper as punishment.
The defense presented evidence that defendant's mother and stepfather were alcoholics who fought constantly and had affairs. Defendant's mother abused her by slapping her and dragging her by her hair. Defendant's mother died in a house fire when defendant was eight years old. Defendant then was rotated among relatives, including an aunt who abused her and a relative who managed a hotel and had defendant and her siblings clean its rooms. Defendant sometimes lived with her stepfather in a trailer, where he would get drunk and urinate on himself.
The defense presented testimony from relatives and defendant's co-workers that defendant's "number one concern" was her children, that she was proud of them and "very caring," that she was an excellent employee, and that she did well in the courses she took to become a medical office insurance biller after becoming disabled from a job-related back injury. Relatives and friends who testified that defendant was "tortured" during her childhood and that she was a loving parent asked the jury not to impose the death penalty. The children's former pediatrician testified defendant regularly brought her sons to him for check-ups and medical problems.
Eric Eubanks testified about his marriage and family life with defendant. He said he still had some "love feelings" for her.
A correctional consultant testified defendant would not be a "future danger" if sentenced to life without the possibility of parole.
A. Pretrial Jury Screening Issues
The jury commissioner prescreened prospective jurors for eligibility to serve on defendant's case based on whether they met the basic qualifications for jury service set forth in Code of Civil Procedure section 203,*fn4 whether they were available to sit on a case that could last approximately 10 weeks, and whether they were entitled to be excused based on specific hardship grounds agreed upon during meetings between the trial court and the jury commissioner. Defendant sets forth four challenges to the preliminary jury screening.
Defendant first contends the jury commissioner agreed to a process to prequalify jurors who would be available for a 10-week trial but ignored that plan and "exceeded her official function" by using her "discretion to excuse potential jurors," "effectively excus[ing] anyone who did not wish to serve," and "engag[ing] in the kind of jury selection that is to be conducted by the trial court in the presence of all parties." Defendant claims the commissioner's "wholesale" excusal of prospective jurors resulted in a "skewed jury pool"*fn5 in violation of her rights to a jury drawn from a representative cross-section of the community, to have counsel, to be present at critical stages of her trial, to a public trial, and to the heightened reliability in proceedings governing a capital case under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and article I, sections 7 and 15 of the California Constitution.
Second, defendant contends the summons mailed to prospective jurors improperly asked recipients to identify their "native language" and "effectively informed jurors whose primary language was not English, and who may have had some difficulty with the English language, that [they] could excuse themselves from jury service" and, as a result, "many people whose command of English was more than adequate were given the opportunity to avoid jury service." Defendant argues this impropriety "dissuaded Hispanics from appearing" and caused their under-representation "in the venire," which violated her right to a jury drawn from a representative cross-section of the community under the Sixth Amendment to the United States Constitution and article I, section 16 of the California Constitution.
Third, defendant contends that permitting "self-excusal for those with imperfect English" also violated her due process and equal protection rights, is unconstitutionally vague, and, in her case, was impermissibly discriminatory because Hispanic citizens "reacted to the factor by not responding at all," thereby creating an "imbalance" between eligible Hispanic voters and those who answered the summons.
Defendant's fourth contention is that the failure of a court reporter to record the trial court's discussions with the jury commissioner or record the hardship screening itself violated her rights to due process and a jury trial "under the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as the applicable statutes."
In response, the People contend defendant forfeited these four issues regarding the preliminary jury screening by failing to object in the trial court to the challenged procedures. For the reasons stated below, we conclude the People's position on forfeiture generally has merit.
2. The Facts Regarding the Challenged Prescreening
The trial court mailed out 7,000 summonses to prospective jurors for defendant's pending trial. On June 9, 1999, 700 people answered those summonses and appeared before the jury commissioner. During the screening that ensued that day, the commissioner excused 481 individuals from jury duty. The trial court determined that it needed a larger panel and instructed the commissioner to qualify more prospective jurors from regular panels that would be assembled at the courthouse on Mondays and Tuesdays until July 21, 1999.*fn6 On that date, 29 individuals who had previously been qualified as prospective jurors on June 9 failed to return to the jury facility. The remaining jury panel was sworn in, and those jurors filled out questionnaires. On July 27, 1999, the trial court commenced voir dire of the jury panel.
The defense was aware San Diego County utilizes jury commissioners to conduct prescreening of potential jurors for death penalty cases. In October 1998, defendant made a motion for a "fair and impartial trial" in which she asked the trial court to provide "guidance" by advising the jury commissioner to exclude (1) individuals who either "request service on a death penalty case" or seek to "avoid service on a death penalty case," and (2) potential jurors who had been excused from another case during jury selection or had recently served on another trial. In December 1998, defense counsel explained to the trial court that, as to the categories of jurors included in its motion to ensure a fair and impartial trial, it was requesting that "rather than go through the voir dire process and weed those jurors out, to just deal with them up front and exclude them from the panel" during the preliminary screening that would be implemented by the jury commissioner on June 9, 1999. Defendant did not object to the fact that the jury commissioner would make initial decisions regarding exclusion of potential jurors; instead, she sought to use that procedure for her own benefit. During the hearing on her motion, defendant neither asked to be present during the jury commissioner's preliminary screening, nor for those proceedings or any conversations between the trial court and the jury commissioner to be recorded.
On December 14, 1998, the prosecutor asked the trial court to deny the motion because "Code of Civil Procedure section 203 sets forth those people [who] are ineligible to sit as jurors . . . and the request by the defense is not covered by that section." In denying the motion, the trial court agreed that the exclusions sought by defendant were not covered by the cited "rules of procedure." The trial court then explained that it would instruct the jury commissioner not to provide prospective jurors with information regarding "what case" they would be "sitting on" or whether the case was "civil or criminal." It was apparent from the court's ruling that the jury prescreening procedure, including the summons notices and the jury commissioner's prescreening, would eliminate individuals who fit within the exceptions to juror eligibility set forth in section 203 of the Code of Civil Procedure, including the exception for those "who are not possessed of sufficient knowledge of the English language." (Code Civ. Proc., § 203, subd. (a)(6).) Nevertheless, at no time during this hearing or thereafter did defendant object in the trial court to any language in the summonses sent to prospective jurors, including the sentence "My native language is ________," which was to be filled out if the person summoned had checked the box indicating he or she was not qualified to serve as a juror because "I DO NOT HAVE SUFFICIENT KNOWLEDGE OF THE ENGLISH LANGUAGE to act as a juror." Similarly, defendant did not object to the role of the jury commissioner in eliminating those not eligible for jury service under Code of Civil Procedure section 203. Furthermore, at the hearing on the motion, defendant did not request that the jury commissioner's prescreening with prospective jurors or the commissioner's conversations with the trial court be recorded.
On February 9, 1999, in the course of discussing the proposed jury questionnaire, the trial court noted that it would need to send out juror "notices . . . in the thousands to get enough folks to appear for the jury duty" and that those notices would need to include an "estimate of time" that the trial would take.*fn7 On March 1, during a hearing on defendant's motion for a continuance, the trial court commented that it would be "summoning 7,000 jurors" in anticipation of defendant's case. Later that day, while discussing the mechanics of jury selection, the trial court said it was "hoping to have at least 500 fill out the questionnaire." On May 6, the court indicated that the 7,000 summonses had been sent in April and that it was anticipating eventually working with 500 questionnaires. Over the months during which jury screening and selection was discussed, defendant never questioned why only 500 prospective jurors would be filling out questionnaires if 7,000 had been sent summonses.
On May 26, the trial court mentioned it was conducting meetings with the jury commissioner regarding the jury screening in defendant's case. Defendant raised no objection at that time; she did not request that those meetings be recorded or that she should attend them. Thereafter, the trial court explained that the jury commissioner would screen prospective jurors regarding whether they were able to serve on a lengthy trial based on the following criteria: "financial hardship," "prepaid vacation; medical appointments that cannot be changed, or full-time school enrollment." Defendant did not request more detailed information regarding the proposed "time qualification" or hardship process, although the trial court offered to show counsel such information "if you're interested at all." Similarly, at no point did defendant object to the portion of the summons notices sent to potential prospective jurors that included a "REQUEST FOR EXCUSE SECTION" that listed claimed hardships.
At that same May 26 hearing, defendant, through counsel, did insist that she wanted to be present when the information was read to the prospective jurors and when those prospective jurors would be told that they would need to fill out a lengthy questionnaire. At that time, defendant did not ask to be present at any of the other prescreening procedures, including those that involved the jury commissioner's preliminary screening of potential jurors.
Defendant had surgery on May 29, and was not present at the next hearing on June 2. The trial court suggested continuing the trial to July to give defendant time to recuperate. The court then suggested a complicated plan to preserve some of the prospective jurors from the summonses sent in April and to pick up additional prospective jurors "on Mondays and Tuesdays when they have their normal jury pool." The court explained that its plan would allow the jury commissioner to start qualifying people for the July trial date and would save the expense of sending out new summons notices.
The trial court then commented that "the beauty" of its proposal was that "by the end of Wednesday," there would be "a nice random list of time qualified jurors." Based on his misunderstanding of the proposal, William Rafael, one of defendant's attorneys, interjected, "I know the court noted the beauty of it. The ugly of it is that our client won't be present. That's a problem in a capital case." The following exchange ensued: "THE COURT: [¶] Present for what? [¶] MR. RAFAEL: For the time qualifying of the jury. Last week the court spoke when we talked about coming in on the 9th, and the conversation dealt with having our client, Mr. Garcia [defendant's other attorney], and Ms. Regan [the prosecutor] present in the jury assembly room- - [¶] THE COURT: Right. [¶] MR. RAFAEL: - - so that introductions can be made." (Italics added.)
The trial court then clarified that the previously requested introductions were scheduled to occur "before we do the questionnaire, though. So, see, [defendant] would be present. It would be exactly like we were going to do it." Acknowledging his prior confusion, Rafael withdrew his objection to defendant's absence: "MR. RAFAEL: So we're just going to do the time qualifying next week? [¶] THE COURT: . . . What we were going to do next week is they time qualify. . . . Then we would have all come down, introduced ourselves, read the information and give them the juror questionnaires. I anticipate [defendant] would be present whatever date we're going to start this at. We do it the exact same way we [were] going to do it. . . . And we're all down there, then, with your client, and we do the questionnaires. [¶] MR. RAFAEL: Okay. So I understand the step of introduction is not going to take place [during the prequalifying of the jury], the questionnaires will not be distributed at that point? [¶] THE COURT: Right."
As promised, defendant and her counsel were present in the jury assembly room when the clerk swore the venire on July 21. The trial court introduced defendant and all counsel, read the information, and explained the process of filling out the questionnaire.
As noted, above, the People contend that defendant waived her right to raise preliminary jury screening procedural issues by failing to assert them in the trial court. We agree.
A defendant generally "is barred from raising on appeal defects in the preliminary jury screening procedure in which [she] acquiesced." (People v. Ervin (2000) 22 Cal.4th 48, 73.) "[I]mportant policies mandate that criminal convictions not be overturned on the basis of irregularities in jury selection to which the defendant did not object or in which he has acquiesced. [Citations.]" (People v. Visciotti (1992) 2 Cal.4th 1, 38.)
Here, defendant bases her claim that the jury pool screening procedural issues were not forfeited solely on Rafael's statement "informing the trial court of [defendant's] right to be present for the juror hardship screening." However, that claim is not supported by the record because, as discussed above, Rafael abandoned his statement objecting to the proposal when the court explained that defendant would be present before prospective jurors filled out their questionnaires, as they had agreed. Defendant argues that the "discussion then shifted" to a different "issue of whether the parties would be present later . . . before questionnaires were distributed." But the discussion never shifted; it always involved the trial court's explanation that it was honoring defendant's request to be present when the information would be read to prospective jurors.
Defendant did not object to the language in the summons notices*fn8 or to the composition of the venire or jury panel. She did not object when she learned the jury commissioner would time qualify prospective jurors. She also did not object when it became apparent that the prescreening would be used to eliminate persons who did not qualify to ...