Opinion
1-2-1987
, 729 P.2d 239 The PEOPLE, Plaintiff and Respondent, v. Melvin Meffery WADE, Defendant and Appellant. Crim. 22654.
Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, William Blum and Donald L.A. Kerson, Deputy State Public Defenders, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Keith I. Motley and Robert B. Shaw, Deputy Attys. Gen., for plaintiff and respondent.
The PEOPLE, Plaintiff and Respondent,
v.
Melvin Meffery WADE, Defendant and Appellant.
Supreme Court of California,
In Bank.
Jan. 2, 1987.
Rehearing Granted March 26, 1987.
Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, William Blum and Donald L.A. Kerson, Deputy State Public Defenders, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Keith I. Motley and Robert B. Shaw, Deputy Attys. Gen., for plaintiff and respondent.
THE COURT:
Defendant Melvin Meffery Wade (hereafter appellant) appeals from a judgment imposing the death penalty following his conviction of first degree murder (Pen.Code, § 187; all further statutory references are to this code unless otherwise indicated), accompanied by two special circumstances findings (§ 190.2, subds. (a)(14) [murder especially heinous and cruel], (a)(18) [torture murder] ). The appeal is automatic. (§ 1239, subd. (b).) As will appear, we will affirm the conviction of guilt and the torture-murder special circumstance finding, but reverse the heinous murder special circumstance finding and the penalty of death. I. A. Procedural History
Trial commenced on February 1, 1982. Following the presentation of the prosecution's case in chief, the trial court permitted appellant to enter a plea of not guilty by reason of insanity. The jury convicted appellant of first degree murder (§§ 187, 189) and found both special circumstances to be true.
By stipulation, the issue of appellant's sanity was submitted to the jury on the evidence introduced during the guilt phase. The jury found appellant to be sane at the time of the offense.
Following the penalty phase, the jury returned a verdict of death. B. Guilt Phase Evidence
Appellant was 24 years old at the time of the offense. In April 1981, appellant and his wife, Irabell "Cookie" Strong, were living in a one-bedroom apartment at the Mission Motel in San Bernardino. Four of Cookie's five children--Penny (age twelve), Joyce (age ten), Alexis (age nine), and Syeeta (age eight)--were also living with them.
According to Cookie, appellant was kind to the children at first, but as time went by he began to abuse them more and more. Appellant was easily upset and was "quick to hit" the children and punish them. He beat them with his fists, hit them with a paddle, made them stand on one foot for extended periods of time, and ordered them to kneel on top of a dresser and take cold showers. He also forced Joyce and Alexis to drink their own urine and mixtures of milk and salt to induce vomiting.
On the morning of April 10th, after accusing 10-year-old Joyce of smelling and not properly washing herself, appellant began punching her with his fists. He proceeded to beat her with a wooden board that had been broken off of the frame of their couch.
That afternoon, appellant ordered Joyce to get inside an old army duffle bag. He told Penny to clip the bag shut. Appellant then hoisted the bag into an attic crawl space above the bedroom ceiling. While Joyce was shut away in the crawl space, appellant lectured the family, complaining that they had "turned a sweet and gentle man into a mad man" and had brought humiliation and degradation upon him.
Approximately three to four hours later, Joyce freed herself from the bag and asked if she could come down. As she started to get down, appellant reached for her but fell. He accused her of causing him to fall and grabbed her as she was hanging from the crawl space. He punched her and threw her body against the wall, making a dent.
Appellant then began beating Joyce again with his fists. The beating apparently continued throughout the evening. During this time, appellant consumed a bottle of wine and shouted that he was "Michael the Archangel" and that he would kill Joyce because she was a "devil."
Appellant then told Joyce to take her shirt off and stand up against the wall with her arms extended. He beat her again with the board across the chest, stomach and other parts of her body. Throughout the beatings, Joyce cried and asked appellant to stop, telling him that she was sorry and that she would be good.
At one point during the evening, appellant wrapped a dog leash around Joyce's neck and attempted to hang her from a nail on the wall. When he was unable to do this, he dropped her on the floor. When Joyce did not move, appellant claimed that she was "just putting on" so he kicked her in the side. At that point, she apparently was breathing. Appellant then picked her up and let her body drop to the floor. Appellant then stomped on her stomach.
The motel manager, hearing a disturbance in the apartment occupied by appellant and his family, eventually called the police. Police Officers Tom Germany and Keith Thompson responded to the call at 3:35 a.m. At the apartment, they saw appellant, Cookie and three children. Appellant stated that they were having a family dispute and told one of the children to pack his clothing so he could leave. The police officers stayed for approximately 15 minutes and left after Cookie told them that everything would be all right.
Soon thereafter, the manager again heard a woman yelling and saw Cookie running, pursued by appellant. Appellant struck Cookie in the face and ran away as the manager approached. Cookie asked the manager to call the police because one of her children was badly injured. The manager called the paramedics and the police. Upon their arrival, they found Joyce dead on the bedroom floor.
A subsequent autopsy revealed that Joyce died from cranial, cerebral, abdominal and soft-tissue injuries. The pathologist who performed the autopsy testified that the injuries acted in concert to produce the death, although any one of the major injuries to the head, abdomen or neck could have caused the death.
Moments after the police arrived, appellant returned. He walked through the parking lot with his hands up in the air and said: "Here I am. I'm the one you want. I guess I hit her too hard. I guess I hit her too hard." Appellant was then placed under arrest.
Following his arrest, appellant gave a statement to the police. He asked if Joyce were dead and said that he had killed an innocent person but that he did not mean to hit her so hard. He admitted hitting Joyce with his fists, striking her with a paddle, and hitting her head against the wall. He also admitted putting her in the crawl space to punish her. He denied using a dog leash on her or making her stand against the wall. Appellant said that he loved Joyce, but that she had been a constant discipline problem. He also related that he was under pressure, was seeing a psychiatrist, had been a prisoner of war in Vietnam, and was on welfare.
Four doctors--psychiatrists Ralph Allison, Ethel Chapman and Robert Summerour and clinical psychologist Craig Rath--were called by the defense to testify about appellant's psychiatric background and his mental state at the time of the offense. They testified in great detail about appellant's background. They reported that from the age of three, appellant was physically and sexually abused by his mother's boyfriend, Jack. Jack would also lock appellant in a closet for hours. While in the closet, appellant would talk to an imaginary friend. Gradually, this friend, called "Othello," began to talk back to him.
At the age of 12, appellant began to experience blackouts. He described events in his past which he could not explain, such as finding himself in bed with a 46-year-old woman, who kept calling him "Othello." Throughout the 1970's, appellant received psychological counseling. He also attempted suicide three times.
The defense doctors attempted to determine if appellant was a multiple personality. Each of them supposedly encountered a personality called "Othello." Drs. Rath and Allison also reportedly spoke with personalities named "Joe" and "Michael." When the doctors asked to speak with "Othello," appellant would close his eyes, lower his head and, shortly thereafter, the personality of "Othello" would emerge.
The doctors described Melvin Wade as mild-mannered, polite, soft-spoken and cooperative. "Othello," on the other hand, was hostile, boisterous, arrogant, vulgar and violent. He supposedly disliked Melvin intensely.
"Othello," also referred to as the "Son of Fire" and "Son of Satan," was born in Greece and fed on "germs of loneliness and despair." "Othello" was the devil's assassin employed by the council of 12 archdemons to kill Cookie. On the day of Joyce's killing, "Othello" had tried to force Cookie to sacrifice herself by threatening Joyce's life. "Othello" explained that he really wanted to kill Cookie but Joyce got in the way. "Othello" was also assigned to kill Melvin.
Melvin's body also contained a personality named "Joe." "Joe" is "Othello's" son and secretary, and a "devil in training" "waiting around for a body to occupy." The doctors described "Joe" as young, weak, friendly, soft-spoken, mischievous and devilish. "Joe" was the personality who surrendered and confessed to the police after the killing. He had apparently "fouled up his part of the assignment."
A fourth personality is "Michael the Archangel." The doctors described "Michael" as angelic, weak and mild. "Michael" holds a rank in the "archangel group" equivalent to "Othello's" rank as a demon and is "Othello's" arch enemy. He tries to help Melvin fight against "Othello." He is strongest on Sundays and was unable to prevent Joyce's death because it occurred on a Saturday, "Othello's" "strongest" day.
All four defense doctors concluded that appellant suffered from a dissociative disorder. Drs. Rath and Chapman firmly diagnosed him as a multiple personality, unable to harbor malice or to form the intent to kill at the time of the offense. Dr. Summerour diagnosed him as having a probable multiple personality dissociative disorder. Dr. Allison, on the other hand, opined that appellant did not have a multiple personality, but rather suffered from "possession syndrome," an atypical dissociative disorder which occurs when the person believes he is possessed by demons from an outside source. Drs. Rath and Allison concluded that appellant was legally insane at the time of the offense.
The findings of the defense doctors were disputed by the prosecution who called three psychiatrists. These doctors, Robert Flanagan, Frederick Hacker and Anthony Oliver, had also examined appellant. Dr. Hacker believed that appellant did not have the intent to kill at the time of the offense. He described appellant as an "emotionally immature and disturbed person." Dr. Oliver opined that appellant was a pathological liar and that his multiple personality was malingered. He also diagnosed appellant as being schizotypal and having a mixed personality disorder with antisocial components. Dr. Flanagan stated that appellant was legally sane.
On rebuttal, the prosecution also presented the testimony of Carol Amos, who was appellant's girlfriend before his marriage to Cookie and who had had twin sons by him. Over defense objection, the trial court permitted Ms. Amos to testify about prior acts of child abuse committed by appellant against the twins. This evidence is discussed in greater detail below.
Two employees of the Hordis Glass Company, who had previously worked with appellant, also testified on rebuttal. They described appellant as a quick-learner who regularly read books, magazines and newspapers. They never heard appellant call himself "Othello," "Joe" or "Michael."
The defense presented two lay witnesses on surrebuttal to corroborate the existence of multiple personalities. From ages 15 to 20, appellant lived with the family of Ella Mae Edwards. Mrs. Edwards testified that she believed appellant was a split personality. He once told her his full name was "Othello Mulet Metheen," that he had been in the Green Berets, and that he was employed as a hit man.
Ted Sanders, a county jail inmate who observed appellant's behavior during the period of the trial, described two incidents when appellant's behavior changed abruptly. On the first occasion, while a number of inmates were watching television, appellant suddenly attacked Sanders and threatened to kill him without provocation. Sanders described how appellant's eyes seemed to grow larger and his voice rougher. When Sanders subsequently mentioned the incident to appellant, he insisted that he had taken no part in it. The second incident occurred three weeks later, when appellant assaulted another inmate in a similar sudden, unprovoked fashion. Again, appellant assertedly could not recall the incident when it was brought to his attention. C. Penalty Phase Evidence
Appellant was the only witness to testify at the penalty phase. He corroborated the earlier psychiatric testimony about "Othello." He maintained that he was unaware of killing Joyce, of inflicting any of the previously described "methods of discipline" upon the children, of ever talking to the police about the killing, or of attacking other inmates in the jail. Appellant stated that he loved Joyce and her mother, Cookie. He expressed sadness over Joyce's death.
Appellant recalled being sexually and physically abused and locked in a closet as a child. He recalled occasions in his life when he had memory lapses. Whenever he questioned "Othello" about these lapses, "Othello" would tell him it was none of his business. Appellant further testified that he did not believe in demons, but that he did believe in God. He asked for God's forgiveness for what his body had done and expressed his desire not to continue living if he had to coexist with "Othello."
At defense counsel's request, "Othello" emerged on the witness stand and testified before the jury. Unlike Melvin, "Othello" used profane language throughout his testimony. He stated that Melvin was his enemy, that he did not believe in God, and that he felt no sorrow for Joyce's death. He maintained that he was the devil's disciple and that he wanted the jury to kill Melvin. II.
Appellant's principal contention is that he was denied his right to the effective assistance of counsel during the closing argument at the guilt and special circumstance phase. Appellant asserts that his counsel's argument was in essence an apologia for being involved in the case. This claim has no merit.
Our review of the record discloses that trial counsel, faced with defending an appalling crime and responding to the prosecutor's pointed suggestions of a fabricated defense, made a tactical choice to candidly admit his client's guilt, acknowledge the heinous nature of the offense, and concentrate upon the theory that appellant indeed was plagued with multiple personalities or dissociative disorders, and was insane or incapable of forming the requisite criminal intent when the offense was committed. The fact that this argument ultimately failed is no negative reflection upon counsel's competence.
Thus, counsel's jury arguments proceeded along these lines: The death of little Joyce Tolliver was a terrible tragedy "intolerable even to contemplate." After appellant's arrest, counsel did not volunteer to defend him; instead, counsel was appointed to do so, and he did not "relish" the task. Moreover, counsel's wife was not pleased with the appointment--she even sent flowers to decorate Joyce's grave. But after counsel began to investigate the case more thoroughly, he learned of appellant's multiple personalities, and he eventually became convinced of his client's mental illness.
In response to the prosecutor's pronounced skepticism regarding the foregoing defense, counsel explained to the jury that he takes his duty as an attorney quite "seriously," that the State Bar rules forbid reliance on sham defenses, and that counsel has never knowingly presented "any artifice or untruth" to a judge or jury.
Counsel then thoroughly explored the applicable legal principles, including the definition and legal effect of insanity, and the necessity for proving specific intent to inflict pain. Counsel summarized the expert testimony indicating that defendant had either a multiple personality or dissociative disorder, and observed that although the prosecutor considered the defense to be "showy or sensational," there was ample evidence to support it and counsel had the duty to present it. "[A]ll we're saying in this case," according to counsel, is that appellant "didn't have the capacity to form the specific intent because he was insane. If that's sensationalism, if that's showy, if that's theatre, [the prosecutor] and I belong in different cultures."
Counsel then remarked that, although young Joyce was dead, nothing counsel could do would bring her back. But counsel could, by his argument in defense, prevent "a double tragedy." Counsel again acknowledged the tragic, senseless nature of the crime, observing that such a crime "makes sense to an insane person only." Thereafter, counsel noted that if his client were indeed faking an insanity or diminished capacity defense, he somehow managed to convince Dr. Chapman, a man "with 40 years of psychiatry, college education, medical doctor. He also convinced Dr. Rath, a bright young psychiatrist. He convinced Dr. Summerour.... [p] He convinced Dr. Allison.... [p] Who else did he convince? His lawyer. One who had seen almost every defense in the book...."
Next, counsel attempted to assign or deflect some blame for Joyce's death to her mother, Irabell Strong, who had failed to come to her daughter's aid during the lengthy ordeal with appellant. Counsel thereafter returned in his argument to the jury instructions, emphasizing the ones dealing with malice and premeditation, "rash impulse," intent to inflict pain and intent to kill, diminished capacity, and unconsciousness. Counsel concluded by urging the jury to view the evidence as "dispassionate[ly] as you possibly can," observing that "no matter what your findings, justice will be the eventual winner."
We see no basis whatever for holding that counsel's foregoing arguments constituted ineffective representation. In light of the overwhelming evidence of his client's guilt, trial counsel had little choice but to candidly acknowledge guilt, concede the heinous nature of the offense, and concentrate instead on convincing the jury of the legitimacy of appellant's mental defenses. As we observed in an earlier decision affirming a judgment of death, "it is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his client's innocence but instead adopted a more realistic approach.... As stated in a recent case, 'good trial tactics demanded complete candor' with the jury. [Citation.] Under the circumstances we cannot equate such candor with incompetence." (People v. Jackson (1980) 28 Cal.3d 264, 292-293, 168 Cal.Rptr. 603, 618 P.2d 149; see also People v. Ratliff (1986) 41 Cal.3d 675, 697, 224 Cal.Rptr. 705, 715 P.2d 665; People v. McGautha (1969) 70 Cal.2d 770, 783-784, 76 Cal.Rptr. 434, 452 P.2d 650, affd. sub. nom. McGautha v. California (1971) 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711.)
The dissent of the Chief Justice, stressing trial counsel's candor regarding the heinous nature of the offense and the unusual defense theory, and counsel's (and his wife's) own initial skepticism and aversion, criticizes counsel for "distancing" himself from his client and "downgrading" his defense. (Post, p. 61 of 233 Cal.Rptr., 252 of 729 P.2d.) The dissent misses the point: Counsel's argument carefully developed his own conversion from an initial skepticism to an eventual acceptance of appellant's peculiar mental state. Clearly, counsel hoped thereby to achieve a similar conversion among the jurors. In addition, the dissent suggests that counsel should have spent more time arguing for a reduction in the degree of the underlying homicide. Counsel did question whether the evidence supported a finding of premeditation and specific intent. Moreover, it was clearly a tactical matter whether counsel advocated a reduced degree or instead sought an outright acquittal based on diminished capacity or insanity.
Finally, the Chief Justice's dissent focuses upon counsel's penalty phase arguments as reflecting incompetence. As will appear, we reverse the penalty judgment on other grounds and, accordingly, have no occasion to pass upon the competence of the penalty phase arguments.
Appellant was entitled to a "proper argument on the evidence and applicable law in his favor...." (Herring v. New York (1975) 422 U.S. 853, 860, 95 S.Ct. 2550, 2554, 45 L.Ed.2d 593.) Our review of the record convinces us that counsel provided such an argument. We find no legitimate basis for concluding that counsel failed to provide reasonably effective assistance of counsel under the circumstances presented here. (See People v. McKenzie (1983) 34 Cal.3d 616, 637, 194 Cal.Rptr. 462, 668 P.2d 769.) III.
Appellant next contends that reversal of the guilt verdict is required because the trial court erred in admitting evidence of prior acts of child abuse.
Over defense objections based on relevance and Evidence Code section 352, the trial court permitted Carol Amos, appellant's ex-girlfriend, to testify on prosecution rebuttal about prior acts of child abuse committed by appellant against his twin sons.
Ms. Amos related that appellant had initially been nice to the children, but that after he hurt his hand in an industrial accident, he became moody and would frequently beat the boys with his fists and a belt. He would also shove them against the wall, kick them, make them take cold showers and hold their heads under water while giving them a bath.
Ms. Amos said that appellant acted nice to her and the children when other people were around. She stated that she heard the name "Othello" only once, shortly after she first met appellant, when he told her that his army buddies called him "Othello Mulet Metheen."
The trial court ruled that the proffered evidence was admissible in that it was "important enough in this case, since it is one of the primary issues as to what this defendant was or was not prior to this date of incident of 4-10, 4-11, 1980 [sic ], whether or not it was or was not Melvin and/or Othello, I think that it is sufficiently important that if there is in fact any prejudicial effect, it's greatly outweighed by the probative value."
It is well established that evidence of other crimes or prior bad acts is inadmissible solely to prove the propensity or disposition of the accused to commit the charged offense. (People v. Alcala (1984) 36 Cal.3d 604, 630-631, 205 Cal.Rptr. 775, 685 P.2d 1126; People v. Guerrero (1976) 16 Cal.3d 719, 724, 129 Cal.Rptr. 166, 548 P.2d 366; Evid.Code, § 1101, subd. (a).) "Such evidence 'is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.' ... Inevitably, it tempts 'the tribunal ... to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.' " (Alcala, supra, 36 Cal.3d at p. 631, 205 Cal.Rptr. 775, 685 P.2d 1126, citations and italics omitted.)
It is equally well settled that such evidence may be admitted if it "is relevant to prove more than mere criminal predisposition. The test of relevance is whether the evidence 'tend[s] logically, naturally, and by reasonable inference, to establish any fact[s] material for the people [such as identity, intent, plan, motive, preparation, or opportunity] or to overcome any material matter sought to be proved by the defense.' [Citation.]" (Alcala, supra, 36 Cal.3d at p. 631, 205 Cal.Rptr. 775, 685 P.2d 1126; see Evid.Code, § 1101, subd. (b).)
Although evidence of prior offenses may be relevant on an issue other than criminal disposition, it still can be highly prejudicial. (People v. Thompson (1980) 27 Cal.3d 303, 318, 165 Cal.Rptr. 289, 611 P.2d 883.) For this reason, such evidence must be " 'scrutinized with great care' " and any doubts as to its relevancy must be resolved in the accused's favor. (Id., at pp. 314, 316, 165 Cal.Rptr. 289, 611 P.2d 883; Alcala, supra, 36 Cal.3d at p. 631, 205 Cal.Rptr. 775, 685 P.2d 1126.)
The law places other restrictions on the admissibility of other-crimes evidence. Such evidence must be "relevant to an issue expressly in dispute." (Alcala, supra, 36 Cal.3d at p. 631, 205 Cal.Rptr. 775, 685 P.2d 1126; Thompson, supra, 27 Cal.3d at p. 315, 165 Cal.Rptr. 289, 611 P.2d 883.) In addition, if the evidence is " 'merely cumulative with respect to other evidence which the People may use to prove the same issue,' it is excluded under a rule of necessity." (Id., at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883; Alcala, supra, 36 Cal.3d at pp. 631-632, 205 Cal.Rptr. 775, 685 P.2d 1126.)
Lastly, the evidence must be excluded under Evidence Code section 352 if it is "more prejudicial than probative under all the circumstances." (Ibid.; Thompson, supra, 27 Cal.3d at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883.) "Since 'substantial prejudicial effect [is] inherent in [such] evidence,' uncharged offenses are admissible only if they have substantial probative value. If there is any doubt, the evidence should be excluded." (Ibid., fn. omitted.)
The first question to be answered is whether the prior acts were relevant to any material fact "actually in dispute." To place appellant's relevancy argument in context, it is necessary to review the prosecution's two theories of murder. Each theory required a different type of intent. The first--that the murder was premeditated--required proof of a specific intent to kill as well as premeditation and deliberation. (See CALJIC No. 8.20 (4th ed. 1979).) The second--murder by torture--required no proof of premeditation or specific intent to kill but proof of a specific intent "to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose." (See CALJIC No. 8.24 (4th ed. 1979); People v. Wiley (1976) 18 Cal.3d 162, 133 Cal.Rptr. 135, 554 P.2d 881.)
Appellant argues that the rebuttal evidence was, at most, relevant to prove appellant's intent to cause cruel pain and suffering but was not relevant to prove the intent required for premeditated murder. He reasons that the prior nonfatal beating of his twin sons did not "logically, naturally, and by reasonable inference" tend to prove that he intended to kill Joyce or that he acted with premeditation.
Appellant's argument misses the point. The multiple personality theory proffered by the defense attempted to demonstrate that "Othello," not Melvin, assaulted and killed Joyce. The defense reasoned that since Melvin was suffering from a dissociative disorder, he was insane and could not have entertained the requisite intents to kill and torture Joyce. Thus, the principal question for the jury presented by the defense was whether "Othello" existed as a separate personality and whether he rather than Melvin killed Joyce. Although the legal theory underlying the defense is far from clear, presumably, if the defense had prevailed, the jury would have either acquitted him as insane or convicted him of a lesser degree of homicide.
The prosecution presented the prior acts of child abuse evidence to rebut this theory. Ms. Amos testified that it was Melvin who became moody and irritable during their relationship and who hit the children with his fists and a belt. During their entire relationship, Ms. Amos had only heard the name "Othello" once when Melvin informed her that his army buddies had given him that name. Further, Melvin did not have different sets of friends for different personalities.
This evidence " 'tend[ed] logically, naturally, and by reasonable inference ... to overcome [a] material matter sought to be proved by the defense.' " (Alcala, supra, 36 Cal.3d at p. 631, 205 Cal.Rptr. 775, 685 P.2d 1126). It rebutted the assertion that it was "Othello," not Melvin, who assaulted and killed Joyce, since it tended to show that Melvin, not "Othello," had assaulted his children in the past. It also helped establish that Melvin entertained the intent to kill and torture Joyce. The evidence was substantially relevant.
Appellant next argues that the evidence of prior acts of child abuse was cumulative. (Alcala, supra, 36 Cal.3d at pp. 631-632, 205 Cal.Rptr. 775, 685 P.2d 1126; Thompson, supra, 27 Cal.3d at p. 318, 165 Cal.Rptr. 289, 611 P.2d 883.) He points to testimony by appellant's wife, Cookie, and two of her children, Alexis and Penny, to the effect that appellant acted in a rational, deliberate manner during the killing.
The record shows precisely the contrary. Cookie characterized appellant as "crazy" and acting "like a madman" at the time of the killing. She also testified that during the beating, appellant shouted that he was "Michael the Archangel" and that he would kill Joyce because she was a "devil." Penny opined that appellant acted "strange" on the day of the killing and appeared to be drunk that evening. This testimony hardly portrayed appellant as acting in a rational and deliberate manner.
Appellant also contends that the child abuse evidence was cumulative in light of the testimony by the three prosecution psychiatrists who testified that appellant had the capacity to form the specific intent to kill and torture Joyce. However, it is not necessarily required to exclude a lay witness' testimony simply because there is expert testimony on the same issue, for the nature of a lay witness' testimony is manifestly different from expert testimony. The child abuse evidence was not "merely cumulative."
Lastly, appellant claims that the evidence should have been excluded under Evidence Code section 352. It is well settled that the trial court is vested with discretion in admitting or rejecting proffered evidence and its decision will not be reversed on appeal " 'unless there is a manifest abuse of that discretion resulting in a miscarriage of justice.' " (People v. Wein (1977) 69 Cal.App.3d 79, 90, 137 Cal.Rptr. 814; People v. Northrop (1982) 132 Cal.App.3d 1027, 1042, 182 Cal.Rptr. 197, disapproved on other grounds in People v. Smith (1984) 35 Cal.3d 798, 807-808, 201 Cal.Rptr. 311, 678 P.2d 886.)
The trial court, as required, weighed the prejudicial effect against the probative value of the proffered evidence. (See People v. Green (1980) 27 Cal.3d 1, 24-26, 164 Cal.Rptr. 1, 609 P.2d 468.) It found the balance in favor of admissibility. In light of the substantial relevancy of the evidence, it is clear that the trial court did not abuse its discretion in admitting the evidence of prior acts of child abuse. IV.
Next, appellant challenges both of the special circumstance allegations which the jury found to be true: that the murder was "heinous, atrocious or cruel" (§ 190.2, subd. (a) (14)), and that it involved torture (§ 190.2, subd. (a)(18)).
In People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 806, 183 Cal.Rptr. 800, 647 P.2d 76, this court held that the "heinous, atrocious or cruel" special circumstance provision was unconstitutionally vague. Therefore, as the People concede, this finding must be set aside.
The torture-murder special circumstance finding requires a somewhat more detailed discussion. Section 190.2, subdivision (a)(18), provides a special circumstance if "[t]he murder was intentional and involved the infliction of torture. For the purpose of this section torture requires proof of the infliction of extreme physical pain no matter how long its duration."
Appellant asserts that, unlike the torture-murder special circumstance provision in the 1977 death penalty law, the present provision is unconstitutionally vague and overbroad in that it fails to "meaningfully narrow the group of those subject to the death penalty and serves only as a vehicle for arbitrary and capricious action, to be used whenever jurors and prosecutors, in their sole and unguided discretion, so desire."
We considered the same argument in People v. Davenport (1985) 41 Cal.3d 247, 270-271, 221 Cal.Rptr. 794, 710 P.2d 861. In order to preserve the constitutional validity of the statute, Davenport construed section 190.2, subdivision (a)(18), to incorporate "so much of the established judicial meaning of torture as is not inconsistent with the specific language of the enactment." (Davenport, supra, at p. 267, 221 Cal.Rptr. 794, 710 P.2d 861.)
"In sum, we find that the words used in section 190.2, subdivision (a)(18) must be understood in light of the established meaning of torture. Proof of a murder committed under the torture-murder special circumstance therefore requires proof of first degree murder, ... proof the defendant intended to kill and to torture the victim, ... and the infliction of an extremely painful act upon a living victim...." (Davenport, supra, at p. 271, 221 Cal.Rptr. 794, 710 P.2d 861, citations omitted.)
Defendant contends that, given the Davenport holding, the torture-murder special circumstance finding in this case must be reversed because the special circumstance instruction failed to inform the jury that the specific intent to torture was an element of the special circumstance. (See, e.g., People v. Leach (1985) 41 Cal.3d 92, 110, 221 Cal.Rptr. 826, 710 P.2d 893.) Although the special circumstance instruction, viewed in isolation, did not, by its express terms, explain that the "infliction of torture" element of the special circumstance included an intent-to-inflict-cruel-pain requirement, we believe that in light of the accompanying torture-murder instructions and the argument of counsel on this point there is no reasonable likelihood that the jury was misled on this issue.
In instructing the jury at the guilt/special circumstance phase, the court gave instructions on both torture-murder and on the torture-murder special circumstance. In defining torture-murder, the court made clear that "[a] necessary mental state in murder by torture is the specific intent to cause cruel pain and suffering...." While in some cases there may be reason to doubt that the jury understood that the "infliction of torture" element in the torture-murder special circumstance embodies the same intent-to-cause-cruel-pain element as in torture-murder, nothing in the present record suggests that the jury in this case was likely to have drawn any such distinction in the use of the term "torture" in the two instructions. Indeed, the prosecutor in closing argument specifically explained to the jury that the torture-murder special circumstance required essentially the same showing as torture-murder itself, plus the single additional element of an intent to kill. And neither the prosecutor nor defense counsel suggested at any point that a torture-murder special circumstance could be established without first proving an intent to torture. Under these circumstances, we are confident that the jury understood the basic elements of the torture-murder special circumstance, and that the special circumstance finding was not based upon a mere accidental or unintentional infliction of cruel pain.
In view of our conclusion that no Davenport error occurred here, we need not reach the People's additional argument that any such error was harmless under the circumstances in this case. (See People v. Leach, supra, 41 Cal.3d 92, 110, 221 Cal.Rptr. 826, 710 P.2d 893; People v. Garcia (1984) 36 Cal.3d 539, 555-556, 205 Cal.Rptr. 265, 684 P.2d 826.) V.
Defendant asserts that various penalty phase errors occurred which require reversal of the judgment. Our prior cases support his position that the giving of a "no sympathy" instruction at the penalty phase requires reversal of the penalty under the circumstances in this case. Accordingly, we need not discuss other asserted penalty errors.
The trial court instructed the jury that "As jurors, you must not be influenced by pity for a defendant or by prejudice against him. You must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling." (CALJIC No. 1.00.) The giving of the foregoing instruction was error under People v. Brown (1985), 40 Cal.3d 512, 537-538, 230 Cal.Rptr. 834, 726 P.2d 516 (cert. granted 476 U.S. 1157, 106 S.Ct. 2274, 90 L.Ed.2d 717 (1986)), People v. Lanphear (1984) 36 Cal.3d 163, 165-169, 203 Cal.Rptr. 122, 680 P.2d 1081, and People v. Easley (1983)34 Cal.3d 858, 875-880, 196 Cal.Rptr. 309, 671 P.2d 813. Moreover, the error was not harmless. In Brown, supra, we observed that where the defendant has introduced mitigating character and background evidence at the penalty phase, he "obviously ... intended that this ... evidence, though unrelated to the offense charged, be considered sympathetically by the jury in fixing his sentence. Yet the jury had been told to consider only matters which extenuated the 'crime' and to ignore sympathy. As we have previously held, the ambiguous tension between these instructions and defendant's right to sympathetic consideration of all the character and background evidence he presented requires reversal of the penalty judgment. [Citations.]" (40 Cal.3d at p. 538, 230 Cal.Rptr. 834, 726 P.2d 516.)
Likewise, in the present case, defendant introduced evidence at the penalty phase to the effect that he had been sexually and physically abused as a child, and that he believed in God and had asked God's forgiveness for his actions while possessed by "Othello." As in Brown, in light of the foregoing evidence, we cannot assume that the giving of the "no sympathy" instruction was mere harmless error. Neither the prosecutor nor defense counsel made it clear to the jury that, contrary to the foregoing instruction, a sympathetic consideration of defendant's background and character evidence might justify a sentence other than death.
The judgment of guilt and the finding of a torture-murder special circumstance is affirmed. The finding of a "heinous, atrocious or cruel" murder special circumstance and the penalty of death is reversed.
MOSK, Justice, concurring and dissenting.
Like Justice Lucas, I would affirm the judgment in its entirety. I cannot join him, however, in his criticism of People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 183 Cal.Rptr. 800, 647 P.2d 76. I would merely hold that under the facts of this case the "heinous, atrocious and cruel" finding did not result in a miscarriage of justice within the meaning of California Constitution, article VI, section 13, because the torture-murder finding was sufficient to support a penalty trial.
LUCAS, Justice, concurring and dissenting.
I concur with the majority opinion to the extent it affirms defendant's conviction of first degree murder and upholds the torture-murder special circumstance finding. I dissent, however, to the setting aside of the heinous murder special circumstances finding and reversal of the penalty of death.
In setting aside the "heinous and cruel" murder special circumstance (Pen.Code, § 190.2, subd. (a)(14)), the majority relies on People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 806, 183 Cal.Rptr. 800, 647 P.2d 76. For the reasons set forth in the dissenting opinion of Justice Richardson in that case, the Engert decision was incorrectly decided. (See id. at pp. 809-814, 183 Cal.Rptr. 800, 647 P.2d 76 [dis. opn.].) Accordingly, I would reconsider and overrule Engert as directly contrary to applicable law announced by the United States Supreme Court. (See Proffitt v. Florida (1976) 428 U.S. 242, 255-256, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913.)
As for the majority's reversal of the death penalty in this case, I have previously noted my position that "any error in cautioning the penalty jury not to be swayed by 'sympathy' for the defendant is, at worst, harmless error." (People v. Brown (1985) 40 Cal.3d 512, 548, 230 Cal.Rptr. 834, 726 P.2d 516 [conc. & dis. opn. by Lucas, J.].) Indeed, the very foundation on which the majority's reversal is based has been substantially shaken by the recent grant of certiorari in Brown. (--- U.S. ----, 106 S.Ct. 2274, 90 L.Ed.2d 717.)
I would affirm the judgment in its entirety.
PANELLI, J., concurs.
BIRD, Chief Justice, dissenting.
An advocate representing the accused "must give 'entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability.' " (Freedman, Lawyers' Ethics in an Adversary System (1975) p. 9, quoting A.B.A., Canons of Prof. Ethics, canon 15.) Defense counsel's performance in this case made a mockery of these principles.
Counsel's guilt phase closing argument was replete with improper and highly questionable statements which, taken together, constituted an argument against his client. This dismal performance was exacerbated by the utter failure to argue evidence which supported a verdict short of first degree murder.
These errors and omissions cannot be dismissed as well-thought out tactical decisions, for counsel continued his ineffective presentation throughout the remaining phases of the trial. In the face of strong evidence of his client's insanity under the Drew standard (People v. Drew (1978) 22 Cal.3d 333, 345, 149 Cal.Rptr. 275, 583 P.2d 1318) which was in effect at the time of the offense, counsel presented no evidence and offered no argument whatsoever at the sanity phase. The final blow came in his closing argument at the penalty phase, when counsel effectively asked for a death sentence, telling the jury that such a disposition might be the best "release" for his client's multiple personality disorder. Viewed in the context of the entire trial, my colleagues' dismissal of the guilt phase performance as a "tactical choice" (maj. opn., ante, at p. 53 of 233 Cal.Rptr., at p. 244 of 729 P.2d) which counsel was forced into by the "overwhelming evidence of his client's guilt" (id., at p. 54 of 233 Cal.Rptr., at p. 245 of 729 P.2d) is wholly unsupportable. I.
The defense of a person charged with a gruesome or tragic crime is no easy task. In such situations, the accused's lawyer must find a way to acknowledge and address the jurors' feelings of revulsion against his client. But here, counsel not only acknowledged those feelings, he encouraged and even shared them. By attempting to deflect them away from himself, he turned them all the more forcefully against his client. This attitude permeated the entire guilt phase argument.
Counsel began his guilt phase closing argument by informing the jury, for no apparent good reason, that he had been appointed by the court to represent appellant. He explained that the "court is not in the same hierarchy as, say the service, for instance, where if a general tells you and a captain to do something, or if you're [sic ] admiral tells you as a commander to do something, or as an enlisted person you say, 'Yes, sir,' or 'Aye-aye.' Courts don't carry that much weight. But it behooves an attorney as one of his duties to, if a court requests him to [do] something, in my opinion it's his ethical duty to accept the appointment." Counsel alluded to his appointed status twice more in his argument. The message he sought to convey was clear: he had not undertaken the defense of the case by choice.
These statements were only the beginning of a series of improper comments. Throughout the rest of the argument counsel placed his concern with preserving his own image as a responsible lawyer and good citizen above his duty to advocate on behalf of his client. This is not only evident from counsel's repeated allusions to his appointed status, but from the remarks that "[t]here's nothing that I have done that I feel ashamed of with respect to the defense of this case," and "there's nothing that I have done to in any way serve to make a mockery of that child's death." (Emphasis added.)
Other statements confirm the view that counsel was more concerned with distancing himself from his client than with representing him. "And even though it may have been wiser for me professionally to turn down this kind of a case and to better serve my interests as an attorney or as a human being to turn down this case, it was my duty to take on the defense of a defenseless person." (Emphasis added.) "It is your duty as a juror individually to look at the facts in the case. Just as it is my duty as an attorney not to be swayed by public feeling or opinion against me for representing Melvin Meffery Wade." (Emphasis added.)
Several times, counsel indicated that he had presented defense evidence out of duty rather than conviction. "But it is my duty as an attorney, if doctors present evidence to me that indicates that the defendant that I'm charged with representing has a mental disease or mental defect, I have no alternative but to present that issue to you ladies and gentlemen of the jury. I can't turn my back on that issue, whether I'm accused of contriving the defense, whether I'm accused of staging the defense, or I'm the director and producer of the defense. As my ethical duty I must present that issue for your consideration." (Emphasis added.)
Counsel then attempted to deny the prosecutor's charge that the defense was "sensational." Instead of simply stating this point, he went further and told the jury that "[i]t's a pitiful defense when you say that your client is insane. And that's all we're saying in this case. And we're saying that he couldn't form the capacity to--didn't have the capacity to form the specific intent because he was insane." (Emphasis added.)
Counsel did not stop with these comments. He told the jurors that he would have been ineffective for failing to present the insanity evidence at the guilt phase. As he explained, "not only is [the insanity defense] admissible but if it is not raised by the defense at this time, our California Supreme Court has said that it is inadequate representation of counsel not to raise it at this point."
Counsel also spoke of how "appalled and disgusted" he was by the crime. "It reminded me of another example of man's inhumanity to man, specifically in this case, a man's inhumanity to a ten-year-old girl. I remember the accounts carried in our local newspaper.... I was both appalled and disgusted with what I read." (Emphasis added.)
Counsel further told how his wife shared his revulsion. She opposed his involvement in the case, he related, and "had some derogatory remark to make about it, said I was defending him. I corrected her saying that I was representing him. And she asked me not to confuse her with any of my legalisms. [p] As the conversation continued she started to cry, and she informed me that [she] had read an account in the newspaper about how the family [of] Irabell [Cookie] Strong needed money for food and lodging and whatever. But she didn't send any money and she informed me that she sent my money, and a sizable sum of it, to buy flowers to decorate the grave of that little thing, as she put it, because she could not see Joyce Toliver going to her grave without some flowers...." (Emphasis added.)
Just as significant as the arguments made at this stage were the critical arguments not made. For example, counsel failed to argue for a lesser degree of homicide in the face of very strong evidence to that effect.
The record reveals that appellant had a history of abusing his children. Testimony revealed that on the day of the incident, appellant had consumed a full bottle of wine. His wife, Cookie, characterized him as "crazy" and acting "like a madman" at the time of the killing. During the beating, appellant shouted that he was "Michael the Archangel" and that he would kill Joyce because she was a "devil." Cookie's daughter, Penny, opined that appellant had acted "strange" on the day of the killing and appeared to be drunk that evening.
This testimony hardly portrayed appellant as having acted with premeditation and deliberation or malice. Yet counsel made no effort to focus the jury's attention on the manner in which the evidence might have suggested a verdict short of first degree murder. Such inaction was inexcusable.
Further, counsel failed to argue the testimony of Dr. Hacker, one of the prosecution's own experts. During his testimony, Hacker repeatedly emphasized that appellant did not have the specific intent to kill. In Hacker's opinion, appellant "was overwhelmed by his uncontrollable, aggressive impulses.... [H]e totally lost control and went on and on and on over a period of many hours." Hacker opined that appellant is "an emotionally immature and disturbed person." Even though this evidence supported a conviction of less than first degree murder, counsel neglected to argue it to the jury. These omissions cannot be excused as innocent errors in judgment or trial strategy. II.
The state and federal constitutional guarantees of the right to counsel have been interpreted to require counsel "to represent his client zealously within the bounds of the law and to refrain from arguing against [him]." (People v. Cropper (1979) 89 Cal.App.3d 716, 720, 152 Cal.Rptr. 555; People v. Diggs (1986) 177 Cal.App.3d 958, 970, 223 Cal.Rptr. 761, and cases cited; see Anders v. California (1967) 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493; People v. McKenzie (1983) 34 Cal.3d 616, 631, 194 Cal.Rptr. 462, 668 P.2d 769; People v. Feggans (1967) 67 Cal.2d 444, 447, 62 Cal.Rptr. 419, 432 P.2d 21; Harders v. State of California (9th Cir.1967) 373 F.2d 839, 842 ["The traditional duty of an advocate is that he honorably uphold the contentions of his client. He should not voluntarily undermine them."].)
The federal constitutional right to counsel requires, "at a bare minimum, that defense counsel act as a true advocate for the accused." (People v. Hattery (1985) 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513, 517, cert. den. (1986) 478 U.S. 1013, 106 S.Ct. 3314, 92 L.Ed.2d 727.) As the United States Supreme Court has recently explained, where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." (United States v. Cronic (1984) 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657.) Obviously, no "adversarial testing" can occur when defense counsel argues against his or her client.
The need for a zealous advocate is particularly important during closing argument. As the United States Supreme Court has emphasized, "There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial." (Herring v. New York (1975) 422 U.S. 853, 858, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593.) "And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt." (Id., at p. 862, 95 S.Ct. at p. 2555.)
In Herring, the trial court, acting under a statute which conferred upon every judge in a nonjury criminal trial the power to deny final summation, denied defense counsel the opportunity to make a closing argument. (422 U.S. at pp. 853, 856, 95 S.Ct. at pp. 2550, 2552.) The high court reversed the ensuing conviction, holding that the accused had been denied his constitutionally guaranteed right to the assistance of counsel at that stage of the proceedings. (Id., at p. 865, 95 S.Ct. at p. 2557.)
The court reasoned that the " 'Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem....' " (422 U.S. at p. 860, 95 S.Ct. at p. 2554.) Recognizing the significance of closing argument, the court explained that "[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment." (Id., at p. 862, 95 S.Ct. at p. 2555.)
By telling the jury that "I'm only doing this because it's my job," a lawyer in effect disassociates himself from his client and pulls the rug out from under the defense case. As one panel of the Eleventh Circuit Court of Appeals has stated, "reminding a jury that the undertaking is not by choice, but in service to the public, effectively stacks the odds against the accused." (Goodwin v. Balkcom (11th Cir.1982) 684 F.2d 794, 806, cert. den. (1983) 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364; see also Wiley v. Sowders (6th Cir.1981) 647 F.2d 642, 644, fn. 6, cert. den.454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 136 [It is a "highly questionable practice" to tell a jury that counsel has been appointed.].)
Counsel's repeated focus on his own image before the jury violated the American Bar Association's standards applicable to criminal defense lawyers. "Whether privately engaged [or] judicially appointed ... the duties of a lawyer to his client are to represent his legitimate interests, and considerations of personal and professional advantage should not influence his ... performance. " (ABA Standards, Relating to the Defense Function, std. 1.6, emphasis added.) Clearly, it is improper for a lawyer to sacrifice his client's cause to preserve his own stature in the community. (See Goodwin v. Balkcom, supra, 684 F.2d at p. 806.) Unfortunately, counsel's statements regarding his view of the tragic nature of the incident and his concern with fulfilling his "duty to ... a defenseless person" did just that.
The comments regarding counsel's duty to present the insanity evidence out of a fear of being found ineffective were also highly improper. It is obviously within the bounds of permissible argument to discuss points of law relevant to the issues raised at trial. However, it is not appropriate to tell a jury that a lawyer is in effect committing malpractice if he or she does not perform certain tasks. Such statements are not only irrelevant to the matter at hand, but they taint the presentation with the implicit suggestion that "I'm only doing this in order to immunize myself from a lawsuit." The closing argument of the guilt phase of a capital case is not the forum for such self-serving explanations.
By pleading not guilty, appellant indicated "his desire to contest the issue by every means lawfully at his disposal...." (People v. McDowell (1968) 69 Cal.2d 737, 746, 73 Cal.Rptr. 1, 447 P.2d 97, disapproved on another point in People v. Wetmore (1978) 22 Cal.3d 318, 149 Cal.Rptr. 265, 583 P.2d 1308.) Defense counsel was duty-bound "to assist him in this endeavor...." (McDowell, supra, 69 Cal.2d at p. 746, 73 Cal.Rptr. 1, 447 P.2d 97.) Counsel ignored this obligation when he told the jury that it was his duty "to take on the defense of a defenseless person" and that insanity was a "pitiful defense." His silence at the sanity phase (see post, at pp. 65-66 of 233 Cal.Rptr., at pp. 256-257 of 729 P.2d) only confirmed his disbelief in the merits of his client's case.
Defense counsel also clearly overstepped the bounds of effective advocacy when he told the jury that his wife had sent flowers "to decorate the grave of that little thing." When a prosecutor makes statements which appeal primarily to the passions or prejudices of the jury, the courts properly condemn it as misconduct. (See People v. Fields (1983) 35 Cal.3d 329, 362-363, 197 Cal.Rptr. 803, 673 P.2d 680; People v. Love (1961) 56 Cal.2d 720, 731, 16 Cal.Rptr. 777, 366 P.2d 33, disapproved on another point in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33; People v. Gay (1972) 28 Cal.App.3d 661, 675, 104 Cal.Rptr. 812; People v. Talle (1952)111 Cal.App.2d 650, 676-677, 245 P.2d 633 and cases cited therein.) No different treatment should be accorded defense counsel who engage in the same improprieties to the detriment of their clients.
A good illustration of this point appears in King v. Strickland (11th Cir.1984) 748 F.2d 1462, certiorari denied (1985) 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301. There, the court found ineffective assistance of counsel during a penalty phase closing argument where counsel had " 'unnecessarily stressed the horror of the crime and counsel's status as an appointed representative.' " (Id., at p. 1464.) "[Defense counsel's] closing argument served only to dehumanize his client. [Counsel's] emphasis on the reprehensible nature of the crime and indications that he had reluctantly represented the defendant were delivered in a manner that probably caused his client more harm than good." (Ibid.)
The fact that this was a tragic killing tried in an atmosphere charged with emotion was all the more reason for counsel to refrain from injecting his personal experiences into the trial and expressing concerns about his own image. It is precisely in such moments when the right to counsel is put to its most difficult test. At a minimum, appellant was entitled to demand that his professional advocate argue for rather than against him.
"A criminal defendant has a constitutional right to expect during trial that his attorney will, at all times, support him, never desert him, and will perform with reasonable competence and diligence." (Wiley v. Sowders, supra, 647 F.2d at p. 651; see also Francis v. Spraggins (11th Cir.1983) 720 F.2d 1190, 1194-1195, cert. den. (1985) 470 U.S. 1059, 105 S.Ct. 1776, 84 L.Ed.2d 835.) By confusing his image with that of his client and placing irrelevant emotional issues before the jury, counsel violated this right and argued against his client. His failure to utilize strong evidence in his client's favor and to argue for a verdict short of first degree murder denied appellant the only defense he had at that stage of the proceedings. I am troubled that today's majority condone such errors and omissions, particularly in a capital case. III.
The majority essentially adopt the state's claim that the argument was "appropriate and proper tactically." Counsel's approach, the state contends, was "to acknowledge the tragic nature of the crime and the apparent culpability of his client, and then to educate the jury in the sophisticated defense of NGI."
The state asserts that counsel's statements concerning his court appointment and his initial reactions to the case were a way of identifying himself with the jury. From this point, counsel proceeded to describe how he became convinced that his client suffered from a dissociative disorder. This "conversion from an initial skepticism to an eventual acceptance of appellant's peculiar mental state" (maj. opn., ante, at p. 54 of 233 Cal.Rptr., at p. 245 of 729 P.2d; emphasis in orig.) was, according to the majority, exactly what counsel hoped to achieve among the jurors. (Ibid.)
Even assuming this were counsel's "strategy," his repeated emphasis on the tragic nature of the incident, the several allusions to his appointed status, and the numerous references to his own performance were tantamount to deserting his client. While he did comment on his own "conversion," he gratuitously cast aspersions on appellant and his insanity defense, thereby conveying the message that the "conversion" constituted far less than an abiding belief that the evidence supported the defense theory of the case. As appellate counsel puts it, "Counsel's argument was tactical in the way a kamikaze attack is tactical."
Even if counsel's purpose was to win the jurors over by the strategy that "I'm just one of you," the methods he adopted were doomed to failure. It might have been proper, for example, to associate himself with the jurors by simply acknowledging the tragic nature of the crime at some point during the argument. However, counsel did not restrict himself to such modest commentary. Instead, he continuously referred to his "disgust" at the crime, his wife's distaste for her husband's task, and the fact that nothing could "bring Joyce Toliver back to life." How such statements may be viewed as tactical escapes reason.
Moreover, what possible tactical advantage existed in telling the jurors that counsel wasn't "defending" appellant but was only "representing" him? Or that his wife had sent flowers "to decorate the grave of that little thing?" Or "no matter what your findings, justice will be the eventual winner"?
Any suggestion of an asserted tactical purpose dissipates with an examination of defense counsel's actions subsequent to the guilt phase closing. Consider what transpired at the so-called "sanity phase." By stipulation, the issue of appellant's sanity was submitted to the jury on the evidence introduced during the guilt phase. The entire "sanity phase" consisted of nothing more than the giving of jury instructions. No argument was advanced by defense counsel, despite the fact that three experts had opined at the guilt phase that appellant had been legally insane at the time of the offense. I cannot excuse counsel's inaction as consciously having "deemed it unnecessary or unwise to repeat" the evidence and arguments developed at the guilt phase (maj. opn., ante, at p. 54, fn. 8 of 233 Cal.Rptr., at p. 245, fn. 8 of 729 P.2d)--a theory which the majority have arrived at on their own despite the lack of any evidence to support it.
The reason counsel did offer for failing to present argument at that phase was unacceptable. In a discussion with the trial judge prior to the sanity phase, counsel explained why he planned on not offering any argument. "In my argument to the jury in the guilt phase, diminished capacity was the defense offered by virtue of the fact that the testimony of the defense psychologists or psychiatrists related to the fact that this defendant was insane under the definition of People versus Drew or the American Law Institute.... [p] I believe that the jury, and considering the amount of time they also deliberated ... less than 60 minutes in evaluating the evidence and the testimony that was presented to them in this lengthy trial. [p] For that reason, I believe two things, your Honor: I believe that I have no credibility with this jury to make such an argument; that further, yesterday I argued to the jury as an analogy that the world was round, that the earth was round. And to now go before them in the sanity phase and ask them to believe that, well, if it isn't round, would you consider that it may be oval, I think would be wasted on this jury. And for that reason, I am waiving argument...."
This reasoning reveals counsel's misunderstanding of what was at issue at the insanity phase. The fact that the jurors had previously found appellant guilty did not, of course, preclude them from then finding him insane. While the distinction between insanity and diminished capacity is a fine one, juries are not incapable of understanding the difference, and competent counsel are often called upon to and do make the distinction clear. Defense counsel in this case decided by the beginning of the sanity phase that it was hopeless to do so, opining that he had lost his credibility with the jurors once they had returned a guilty verdict.
Counsel's poor performance at the guilt phase argument might have been excusable as a conscious tactical move to set the stage for a sanity phase in which the guilt phase evidence would be used to demonstrate his client's insanity under the Drew standard. Had that been counsel's intention, however, he would certainly at least have argued that evidence at the sanity phase, where the experts' conclusions on that subject would have had the most impact. Yet his complete silence at that phase dispels the existence of such a tactic.
As though counsel's performance at these two phases were not enough, counsel compounded his errors and omissions in his penalty phase closing. There, he virtually asked the jury to return a death sentence, closing with these words: "... considering the disorder, the emotional disturbance that the evidence has suggested to you by way of the physicians in this case and the psychologists, I don't think that Melvin Wade, Melvin Meffery Wade, can actually, can be said to lose this case. [p] As has been expressed to me by Melvin on many occasions, he can't live with that beast from within any longer and if in your wisdom you think the appropriate punishment is death, you may be also giving an escape once again by analogy the gift of life to Melvin Meffery Wade to be free from his horror that he and only he knows so well. " (Emphasis added.) It is unlikely that a defense attorney who argues death as "an escape" and "the gift of life" for his client had any overall tactical purpose in mind. IV.
The defense of a capitally charged individual involves an enormous undertaking. (See In re Hall (1981) 30 Cal.3d 408, 434, 179 Cal.Rptr. 223, 637 P.2d 690; Sand v. Superior Court (1983) 34 Cal.3d 567, 583, 194 Cal.Rptr. 480, 668 P.2d 787 (dis. opn. of Bird, C.J.).) Like any accused person, the capitally accused is constitutionally entitled to vigorous and effective advocacy. Obviously, the job is not one for every member of the bar or even every member of the criminal defense bar. (See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases (1983) 58 N.Y.U. L.Rev. 299, 357-358.) Because such cases often involve the most brutal or tragic of killings, only those individuals who are able to handle the difficult emotions should assume such responsibilities.
In this case, the record shows that counsel was unable to assume this responsibility. Instead of rising to the occasion, counsel in effect deserted his client by arguing against him at several points during the closing. Counsel compounded that error by failing to focus the jury's attention on evidence supportive of a verdict less than first degree murder. As a result, counsel's assistance fell vastly short of the minimal standards to which defense attorneys have been held.
To paraphrase Justice Mosk, the "conclusion is inescapable that counsel's [argument] was neither 'effective' nor 'assistance' in any sense of those terms. Under these circumstances counsel's actions deprived [appellant] of his constitutional right to counsel." (People v. McKenzie, supra, 34 Cal.3d at p. 637, 194 Cal.Rptr. 462, 668 P.2d 769.) The denial of that right requires reversal of the judgment.
BROUSSARD and REYNOSO, JJ., concur.
REYNOSO, Justice, dissenting.
I have joined Chief Justice Bird's dissenting opinion.
Nonetheless, I write separately because I am troubled by the majority's analysis of the error committed when the trial court omitted intent to torture from the jury instruction defining the torture-murder special circumstance. Without acknowledging the impact of its holding, the majority sets forth an analysis which threatens to nullify the holding of People v. Davenport (1985) 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861, in cases where one of the theories of first degree murder is murder by torture. The majority pays lip service to Davenport's holding that intent to torture is indeed a crucial element of the special circumstance, but permits the trial court's failure to give clear and correct instruction to the jury on that issue to be cured by a portion of the prosecutor's closing argument. Such an analysis ignores the critical differences between jury instructions given by the court and argument made by counsel. Further, even the prosecutor's argument fails to mention intent to torture. Thus, not only does the majority apply a dubious analysis, but it does so in a case which is factually unsuitable.
In People v. Davenport, supra, 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861, this court held, as a matter of statutory interpretation, that the legislative body which enacted the 1978 death penalty statute must have intended to incorporate into the torture-murder special circumstance "so much of the established judicial meaning of torture as is not inconsistent with the specific language of the enactment." (41 Cal.3d at p. 267, 221 Cal.Rptr. 794, 710 P.2d 861.) This included the sine qua non of torture: proof that the defendant intended to cause cruel pain and suffering in addition to the pain of death for the purpose of revenge, extortion, persuasion or for any other sadistic purpose. (Id., at pp. 267-271, 221 Cal.Rptr. 794, 710 P.2d 861.) Our holding was based upon two well established presumptions applied to problems of statutory construction: (1) the presumption that the legislative body does not intend to overthrow long established principles of law unless such intention is made clear either by express declaration or by necessary implication, and (2) the presumption that the legislative body intended to enact a statute which would withstand challenges to its constitutional validity. (Id., at pp. 264-266, 221 Cal.Rptr. 794, 710 P.2d 861.)
The trial court in Davenport had the prescience to anticipate this court's holding; it instructed the jury that to prove infliction of torture within the meaning of the special circumstance "the intentional infliction of extreme physical pain must be proved no matter how long its duration." (Id. at p. 272, 221 Cal.Rptr. 794, 710 P.2d 861.) (Emphasis added.) Thus, there was no error in the instruction to Davenport's jury.
Here, on the other hand, the jury was instructed that the special circumstance required proof of the following facts: "1. That the murder was intentional, and 2. That the murder involved the infliction of torture. To prove the infliction of torture, the infliction of extreme physical pain must be proved no matter how long its duration...." Nothing is said regarding "intentional" infliction of pain.
Contrary to the implication found by the majority opinion, I think it clear that this instruction uses language of definition. The element of specific intent for purposes of the special circumstance is not included--infliction of extreme pain, whether intentional or unintentional, suffices for a finding of special circumstance. The jurors, who had found defendant guilty of first degree murder in a separate phase of their deliberations, had no reason to believe they should incorporate the element of intent found in first degree murder into their consideration of the special circumstance. Without specific instruction from the court they would not have been authorized to do so. We deal with an incomplete and erroneous instruction--the court never told the jury that it needed to find that the infliction of torture was intentional.
Nor does the prosecutor's closing argument cure the error of omission in the trial court's instructions. "The arguments of counsel are not a substitute for instructions by the court." (Parker v. Atchison T. & S.F. Ry. Co. (1968) 263 Cal.App.2d 675, 680, 70 Cal.Rptr. 8; see also, People v. Vann (1974) 12 Cal.3d 220, 227 fn. 6, 115 Cal.Rptr. 352, 524 P.2d 824.) It is well settled that it is the court--not counsel--which must explain to the jury the rules of law that apply to the case. (People v. Baldwin (1954) 42 Cal.2d 858, 871, 270 P.2d 1028; People v. Davenport (1966) 240 Cal.App.2d 341, 347, 49 Cal.Rptr. 575; see CALJIC No. 1.00.) The court's instructions must be "clear, concise and simple in order to avoid misleading the jury or in any way overemphasizing either party's theory." (People v. Rice (1976) 59 Cal.App.3d 998, 1004, 131 Cal.Rptr. 330.) Statements made by attorneys are not evidence, and any statement which is inconsistent with the court's instructions must be disregarded by the jury. (People v. Stuart (1959) 168 Cal.App.2d 57, 60, 335 P.2d 189; see CALJIC No. 1.02.) The prosecutor, as an advocate, simply cannot fulfill the function of an impartial judge.
Furthermore, the district attorney's argument simply did not deal with nor clarify the issue of intent to torture. (See maj. opn., ante, at p. 58, fn. 14 of 233 Cal.Rptr., at p. 249, fn. 14 of 729 P.2d.) While the discussion which follows seems complicated the issue is simple: did the jury understand that its role was to find whether defendant intended to torture the victim. The prosecutor reviewed the elements of first degree murder by torture. Because the prosecutor stated that "basically torture in the special circumstance relates to the same thing as the first degree murder theory with one exception: ..." (italics in original), the majority concludes he made it clear to the jury that the special circumstance required "essentially the same showing as torture-murder itself, plus the single additional element of an intent to kill. [Fn. omitted; italics in original.]" (Maj. opn., ante, at p. 68 of 233 Cal.Rptr., at p. 259 of 729 P.2d.) Not true! I cannot agree that the prosecutor's argument informed the jury of the intent-to-torture element. Intent to kill was mentioned as was the intent to cause cruel pain and suffering as an element of first degree murder by torture. But, nowhere does the prosecutor explain the requirement of a finding on intent to torture.
Accordingly, I dissent from the majority's conclusion that no Davenport error occurred.
BIRD, C.J., concurs. --------------- 1 A fifth child, LaVert (age seven) was living in Sacramento at the time. 2 Cookie, Penny and Alexis testified in detail about the events leading to Joyce's death. 3 Appellant actually gave two statements to the police. The first occurred shortly after his arrest when he was transported to the hospital by Officer Thompson. The second statement was given to the police later on the morning of April 11th. Both statements were taped and played for the jury. 4 One of Dr. Allison's sessions with appellant, during which more than one personality was interviewed, was videotaped and played for the jury. 5 Several lay witnesses also testified about appellant's background. His wife Cookie stated that appellant sometimes called himself "Othello Mulet Metheen" and said he was from Greece. On a number of occasions, he also referred to himself as "Michael the Archangel." At those times, Cookie described appellant as being "dead serious." She also related that appellant had blacked out on several occasions. Cookie's daughter Penny testified that appellant said his name was "Othello" sometimes and boasted that he knew many languages. She also stated that appellant had blacked out on a number of occasions. 6 Drs. Hacker and Oliver had been appointed by the court when appellant entered his plea of not guilty by reason of insanity. 7 At various points in his argument, the prosecutor described appellant's defense as "theatrical," "showy," "sensational," "a last-ditch effort," "no basis in ... reason or logic," "totally ridiculous and absurd," and based on the premise that "The devil made me do it." Much of defense counsel's jury argument was in response to these accusations, and was directed toward demonstrating counsel's gradual acceptance of appellant's unusual mental state. 8 The dissent finds incompetent counsel's failure to present an argument to the jury at the sanity phase. Yet counsel's earlier guilt phase arguments included a reasonably complete summary of the evidence and legal arguments pertinent to the insanity issue, and counsel reasonably could have deemed it unnecessary or unwise to repeat those matters. 9 As is evident from the discussion between the court and prosecutor which preceded the trial court's ruling, the trial court recognized the purpose of this testimony. 10 Appellant also argues that the relevancy of the prior acts of child abuse evidence depended on whether that evidence shared marks of distinctive similarity with the present offense. Appellant asserts that such distinctive similarity is lacking. However, the evidence bore marks similar enough to bridge the gap between it and the material fact sought to be proved by the prosecution on rebuttal, i.e., that Melvin, not "Othello," was the perpetrator of the crime. (See Thompson, supra, 27 Cal.3d at pp. 319-320, fn. 23, 165 Cal.Rptr. 289, 611 P.2d 883.) Both instances involved abuse by appellant towards children in his own family. In both, appellant beat them with his fists and kicked them. And in both, he threw their bodies against the wall. 11 Former section 190.2, subdivision (c)(4), provided a special circumstance if "[t]he murder was willful, deliberate, and premeditated, and involved the infliction of torture. For purposes of this section, torture requires proof of an intent to inflict extreme and prolonged pain." 12 "The very use of the term torture to describe the class of murders to which the subdivision applies necessarily imports into the statute a requirement that the perpetrator have the sadistic intent to cause the victim to suffer pain in addition to the pain of death...." (Davenport, supra, at p. 271, 221 Cal.Rptr. 794, 710 P.2d 861.) 13 The jury was instructed as follows: "To find that the special circumstance, referred to in these instructions as murder involving infliction of torture, is true, each of the following facts must be proved: 1. That the murder was intentional, and 2. That the murder involved the infliction of torture. To prove the infliction of torture, the infliction of extreme physical pain must be proved no matter how long its duration. Awareness of pain by the deceased is not a necessary element of torture." (CALJIC No. 8.81.18 (4th ed. 1979).) 14 The prosecutor first reviewed the elements of torture murder, explaining that "[t]here has to be on the part of the person who committed the acts the intention to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." He also added, correctly: "The first-degree murder theory of torture does not have any requirement of intent to kill." The prosecutor then discussed the torture-murder special circumstance. "When we go to the special circumstance, you see that again there's a torture special circumstance, and basically torture in the special circumstance relates to the same thing as the first-degree murder theory with one exception: There is an additional requirement, and it's very important. [p] Under the torture special circumstance, again, there's a requirement that there was an infliction of cruel pain and suffering, that it was done over a period of time, but again there's no requirement that there be proof as to the duration. It doesn't have to be for six hours or four hours or three or two. Any period of time wherein there was this infliction of cruel pain and suffering satisfies the torture. There's no requirement again that there be any showing of the victim's awareness of pain. That's not required. But there is a requirement that is nonexistent in the first-degree murder theory and that is a requirement of intent to kill. That's required under the special circumstance of torture, intent to kill." (Italics added.) 1 At closing argument, counsel stated: " 'It is extremely difficult for me to talk to you at this time. This is the first time that I have ever been in a position like this. I have been practicing law for three years now, Assistant Public Defender and I have never defended a murder case before. I think that you all understand that the job I had to do this week and you can appreciate what I had to do. [p] You can convict [the defendant] of a cruel and evil crime. There is no doubt about it. Murder upsets me very much and I am also human, I have feelings, I have been to Raiford which is the State Prison. [p] Now you might not think that [the defendant] deserves to live in our society of civilized people. You might not consider him right now as a human being and what you convicted him of was an evil and gross crime but I am not asking you to put him back out on the streets or take a chance that he will ever be back out there because in Florida the legislature passed a law which means that when you convicted a man of first degree murder, if you don't, if he is not sent to the electric chair, then he automatically goes to prison for life and for twenty years he is not eligible for parole. He is not eligible for parole. He will be in maximum security at Raiford, not a work release center.' " (King v. Strickland (11th Cir.1983) 714 F.2d 1481, 1491; 748 F.2d at p. 1463.) As is evident, this argument contained far fewer egregious statements than the argument in this case. 2 The majority misperceive the relevance of the penalty phase performance. I agree that since the competency of counsel at the penalty phase is not in issue, we "have no occasion to pass upon the competence of the penalty phase arguments." (Maj. opn., ante, at p. 54 of 233 Cal.Rptr., at p. 245 of 729 P.2d.) The point of looking to the penalty phase argument is to determine whether the guilt phase argument might have been an isolated blot on an otherwise competent job or whether counsel's performance at the penalty phase reveals a tactical purpose at the guilt phase. The fact that the penalty phase argument demonstrated that counsel had no tactical basis for portraying appellant in such a powerfully negative manner sheds some light on whether counsel lacked a similar basis for doing so at the guilt phase.