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Rr'lpffiu'k'f'b9]JJ.. ~Dre~'·IA····~:N ) AlTf()·M.ATICAPPEA.L ) No. 8058157 ) ) .' J ) ) ) } .•.•..w.« }• .~_~.•.w.w.~M_'.········································ _- JE,,\}-H<E KEEVAN··L\"NCH Attomev atL'lW. saN i {} 17 I. {} n ,~. Q.' ')4~'<' .' .l }), :cinx ...... ~).) Jvk~ndo<;)ino C.l\ 95460 "I'd; 707-964~ 7162 F(;l~C 707--964·7156 j\ttOl11ev fer /\pr<~U.rlnt l'vlICH:,\:Fl .. >··TE\j/\iL PEARS()N ......' " ~.:..~ ,. < rR'lPffiu'K:. i.' (~ ~u.. b9]JJ..:,' ~Dx re~'... '..·IA····,Q.,~:n",'... ' ~ 'f' .::::/ .. ... " : '. '. "..' .: TABLE OF CONTENTS STATEMENT OF APPEALABILITY 1 STATEMENT OF THE CASE 1 STATEMENT OF THE FACTS 2 I. Guilt Phase 2 A. The tennination ofappellant's employment 2 B. The shootings 7 C. The immediate aftennath 11 D. The search of appellant's home . ~ 14 E. Buying the gun and shooting at targets 15 F. Protestations ofunfairness and comments on "101 California" offered as proof that killing was premeditated 17 G. Appellant's three years as an "at will" civil servant for the City of Richmond 18 II. Penalty Phase 73 A. Victim impact evidence 73 B. Defense 78 ARGUMENT I. THE TRIAL COURT'S PRECLUSION OF SPECIFIC INQUIRIES AND MISUSE OF GENERAL DEATH­ QUALIFYING QUESTIONS MADE JURY VOIR DIRE INADEQUATE UNDER THE 5TH, 6TH, 8TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND UNDER STATE CONSTITUTIONAL COROLLARIES 88 Introduction 88 A. The trial court's voir dire mandate 89 Table of Contents, cont'd B. The trial court's mishandling ofmitigation issues and questions suggested by counsel during voir dire 94 1. The preclusion of defense efforts to probe the common misunderstanding represented in Juror No. 4's questionnaire 94 11. The misleading response to the next juror whose questionnaire set out inappropriate criteria for mercy 97 111. The preclusion ofdefense efforts to show that venire members who said the state should always impose death for appellant's crime would not consider capital-case mitigation in the manner required by California law 101 c. Why reversal ofthe penalty judgment is required ....... 103 1. The court labored under misconceptions of law: life-qualification requires more than a denial of readiness to impose death automatically and an ability and willingness to consider a life sentence in some conceivable case ofintentional homicide; a juror must be able to follow capital sentencing law in the case to be tried .. .................. 103 11. Contrary to the trial court's understanding ofthe law, "voir dire about attitudes concerning the death penalty" must not be "limited to questions which seek to determine only the view ofprospective jurors about capital punishment in the abstract." 106 111. The trial court's mistaken impression ofthe governing law prevented the exercise of appropriate discretion 110 IV. The preclusion ofquestions distinguishing Juror No. 4's listed mitigators from those that penalty phase jurors must consider was not an appropriate exercise of discretion 111 v. The preclusion ofinquiries about reaction to the trial court's reading of statutory sentencing factors was not an appropriate exercise ofdiscretion ..... 115 11 Table of Contents, cont'd VI. The voir dire as a whole was constitutionally inadequate to identify jurors who would always impose death upon conviction ofthe charged offense and jurors unable to follow instructions to consider and weigh mitigation 118 II. THE TRIAL COURT'S MID-VOIR DIRE INSTRUCTIONS STATING THAT JURORS WERE NEVER OBLIGED TO IMPOSE A LIFE SENTENCE AND ITS FRAMING OF QUESTIONS IN A WAY THAT CONFIRMED THE POINT CORRUPTED THE JURY SELECTION PROCESS, AND INVITED JURORS TO IMPOSE DEATH UNLAWFULLY IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE 5TH, 6TH, 8TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND UNDER STATE CONSTITUTIONAL COROLLARIES 123 Introduction 123 A. The relevant facts 124 B. The court's misstatements and misleading questions affected appellant's "substantial rights" so as to permit review even if appellant's objection was insufficiently specific 131 C. The court's misstatements obscured pro-death-penalty bias and prevented the court and counsel from fulfilling their duties to remove biased jurors after voir dire 133 D. The likely effect on jury deliberations was prejudicial ... 134 III. THE TRIAL COURT'S MID-VOIR DIRE JURY INSTRUCTIONS ATTACHING THE LABEL "AGGRAVATING" TO "ALL THE CRIME FACTS" PREJUDICIALLY MISLED APPELLANT'S JURY ABOUT CALIFORNIA'S DEATH PENALTY LAW, VIOLATED APPELLANT'S RIGHT TO AN IMPARTIAL JURY, AND APPLIED CALIFORNIA LAW IN A WAY THAT VIOLATED APPELLANT'S RIGHTS UNDER THE 5TH, 6TH, 8TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND UNDER STATE CONSTITUTIONAL COROLLARIES 136 III Table of Contents, cont'd Introduction 136 A. The trial court's misstatements affected appellant's substantial rights and require appellate review, notwithstanding appellant's failure to make a specific objection 143 B. These misstatements ofCalifornia law corrupted jury voir dire so as to prevent due process oflaw and the selection ofan impartial jury 146 C. The trial court's misstatements were not effectively corrected by the reading ofCALJIC No. 8.88 just prior to penalty phase deliberations 148 D. The prosecutor exploited the trial court's misstatements in his penalty phase closing argument 149 E. The trial court's misstatements violated appellant's 8th and 14th Amendment rights with respect to penalty determination and require reversal ofthe penalty judgment 149 IV. THE TRIAL COURT'S CHOICE OF QUESTIONS TO VENIREMEMBERS WHO EXPRESSED STRONG FEELINGS ABOUT CAPITAL PUNISHMENT EXHIBITED A DOUBLE STANDARD AND BIASED THE JURY IN FAVOR OF CONVICTION AND DEATH IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE 5TH, 6TH, 8TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND UNDER STATE CONSTITUTIONAL COROLLARIES 152 Introduction 152 A. The judge's rehabilitation ofthe first five panelists, all ofwhom wanted the state to execute everyone who commits even non-capital homicide, manifested strong interest in accommodating all pro-death penalty jurors ... 154 B. The judge's disqualifying inquiries ofMs. Escamilla, the first panel member opposed to capital punishment, communicated the court's belief that people with such views should not be seated on a capital jury 161 IV Table of Contents, cont'd C. The trial judge's treatment ofsucceeding panelists and its final efforts to rehabilitate Shane Blair fell into the same pattern, evincing desire to keep death penalty supporters and remove all opponents 162 D. Appellant objected to the judge's mode ofquestioning as biased and unfair 170 E. Reversal ofthe judgment is required 173 V. THE TRIAL COURT FAILED TO PROPERLY EXERCISE ITS DISCRETION BEFORE EXPOSING EACH PROSPECTIVE JUROR TO THE LIFE AND DEATH QUALIFICATION VOIR DIRE OF 24 OTHERS IN A MANNER THAT INFRINGED APPELLANT'S RIGHTS UNDER THE 5TH, 6TH, 8TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND UNDER STATE CONSTITUTIONAL COROLLARIES 177 Introduction 177 A. The trial court's dialogue with counsel reveals fundamental misconceptions about the law respecting discretion to sequester jurors for death qualification and no consideration ofthe most important facts 180 B. The trial court's beliefthat it could not conduct individual sequestered voir dire or give any credence to Hovey unless the case had extraordinary publicity or other unusual circumstances was erroneous as a matter oflaw 184 C. The trial court's misconceptions were no less important than those held to require reversal in Covarrubias 188 D. Reversal ofthe judgment is required 191 1. The trial court's failure to exercise the requisite discretion in rejecting appelIant's request for sequestered individual examination was not harmless error 191 11. Exposing neutral jurors to judicial life and death qualification voir dire of24 others is an abuse of discretion and denies the defendant due process v Table of Contents, cont'd oflaw and an impartial jury where, as here, the judge's questioning was unnecessarily long and likely to desensitize jurors to the gravity ofthe decision to impose death 194 VI. APPELLANT WAS DEPRIVED OF EQUAL PROTECTION OF THE LAW, DUE PROCESS, AND THE RIGHT TO AN IMPARTIAL AND REPRESENTATIVE JURY, UNDER THE 5TH, 6TH, 8TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND STATE CONSTITUTIONAL COROLLARIES BY THE TRIAL COURT'S FAILURE TO APPLY BATSON DOCTRINE TO APPELLANT'S WHEELER CLAIM 195 A. The relevant facts 195 B. Contrary to the trial court's understanding ofthe law, no showing of"systematic exclusion" was needed to make a prima facie case 196 C. When this case was tried, California courts applying California case law were requiring more proof of discrimination at the prima facie stage than does Batson for reasons additional to the misperception that Wheeler required a pattern ofsuspicious strikes 200 D. Reversal or remand to the trial court is required 203 VII. THE TRIAL COURT'S REMOVAL OF A PROSPECTIVE JUROR BECAUSE SHE WAS AFRICAN AMERICAN AND CONCERNED ABOUT INEQUITABLE TREATMENT OF AFRICANS AND CAUCASIANS IN THE CRIMINAL JUSTICE SYSTEM VIOLATED THE GUARANTEES OF EQUAL PROTECTION OF THE LAW, DUE PROCESS, AND THE RIGHT TO AN IMPARTIAL AND REPRESENTATIVE JURY, UNDER THE 5TH, 6TH, 8TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND STATE CONSTITUTIONAL COROLLARIES 207 A. The relevant facts 207 B. Reversal is required 210 VI Table of Contents, cont'd VIII. THE TRIAL COURT'S FAILURE TO SUSTAIN OBJECTIONS AND RESPOND CORRECTIVELY TO PROSECUTORIAL OVERREACHING RENDERED THE TRIAL FUNDAMENTALLY UNFAIR AND VIOLATED APPELLANT'S RIGHTS UNDER THE 5TH, 6TH, 8TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, AND UNDER STATE CONSTITUTIONAL COROLLARIES. 215 Introduction 215 A. The court permitted argumentative prosecutorial questioning of a prospective juror concerning the ability ofballistic evidence to establish a shooter's "state ofmind" 217 B. The court allowed the prosecutor to use argumentative and leading questions in examining his own witnesses ... 219 C. The court permitted and condoned the prosecutor's demeaning treatment of defense counsel's effort to expose the complaints about management that were circulating before appellant was hired 227 D.
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