People v. Pike, Cr. 12378

• Citation: 71 Cal.2d 595,455 P.2d 776,78 Cal.Rptr. 672
• Decision Date: 02 July 1969
• Docket Number: Cr. 12378
• Court: United States State Supreme Court (California)
• Parties: , 455 P.2d 776 The PEOPLE, Plaintiff and Respondent, v. Charley Luther PIKE, Defendant and Appellant.

Page 672

78 Cal.Rptr. 672

71 Cal.2d 595, 455 P.2d 776

The PEOPLE, Plaintiff and Respondent, v. Charley Luther PIKE, Defendant and Appellant.

Cr. 12378.

Supreme Court of California,

In Bank.

July 2, 1969.

Roger S. Hanson, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

This is an automatic appeal from the death sentence imposed by the jury on a retrial of the penalty issue.

Conviction of murder in the first degree and robbery was affirmed by this court in 1962 (People v. Pike, 58 Cal.2d 70, 22 Cal.Rptr. 664, 372 P.2d 656, cert. den. 371 U.S. 941, 83 S.Ct. 324, 9 L.Ed.2d 277). In 1967 in habeas corpus proceedings (In re Pike, 66 Cal.2d 170, 57 Cal.Rptr. 172, 424 P.2d 724) the case was remanded for retrial on the penalty phase in the light of our decision in People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810, as to prejudicial comments and instructions on possible future action by the judge, the adult authority or the governor in modifying sentence. Judgment was affirmed in all other respects.

Facts: Pike was in the course of robbing a store on December 8, 1960, when police officer Kent entered to purchase a battery. Pike ordered him at gun point to walk around a table and as Kent did so he was shot and mortally wounded by Pike. Pike was apprehended by another officer when he ran out of the store and fired at his captors. At the penalty retrial the People introduced testimony as to prior robbery offenses committed by Pike, and as to his pimping activities. Portions of his testimony from the previous trial were read in which Pike acknowledged committing a number of prior offenses and acknowledged using a certain gun with which to kill officer Kent. Evidence was introduced regarding an abortive attempt by Pike and others to escape from death row at San Quentin.

Question: One. Was it reversible error to allow challenge for cause to jurors who voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction?

No. Subsequent to the penalty retrial, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, was decided. The rules stated therein were made to apply retroactively. In In re Anderson, 69 A.C. 638, 73 Cal.Rptr. 21, 447 P.2d 117, this court granted a new penalty trial on this ground. In Witherspoon (supra, 391 U.S. at 521--522, 88 S.Ct. at 1777) it was stated: 'Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommenced it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.21' Footnote 21 (391 U.S. at p. 522, 88 S.Ct. at p. 1777) expounds further: 'Just as veniremen cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to Consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. * * * nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them. * * *' (Emphasis the court's.)

Looking at the record here it is different from the facts in the Witherspoon case. There the Voir dire commenced by the trial court stating 'Let's get these conscientious objectors out of the way, without wasting any time on them,' and in rapid succession 47 were successfully challenged for cause on the basis of their attitudes toward the death penalty. Thirty-nine acknowledged having conscientious or religious scruples against the infliction of the death penalty or against its infliction in a proper case, and were excluded without any effort to find out whether their scruples would invariably compel them to vote against capital punishment. Only one who admitted to scruples against the death penalty was examined at any length.

The Voir dire was conducted without undue haste, jury selection took three days. On the first morning two veniremen were excused for cause in connection with their attitude toward capital punishment, and thereafter some 33 prospective veniremen were examined. The court instructed that their sole duty would be to determine between two penalties, life imprisonment and death (stated in that order); that it was up to their absolute discretion, judgment and conscience which they would select; and he asked each juror if he had any conscientious scruples that would preclude him from voting for the death penalty in what he (the juror) considered to be a proper case. Mr. Adrian and Mrs. Abel each answered 'yes.' On Voir dire defense counsel told Mr. Adrian 'You realize that we are concerned here with not a lack of pleasure with being saddled with the responsibility but rather with a state of mind that would preclude you from returning the death penalty In any case' (emphasis added.) Adrian responded that he understood that. He was then given an example of a middle class person who wanted to get rich quick and hired gunmen to hold up a Brink's truck and kill the guards, no mitigating circumstances being present, and was asked whether his conscientious opinion was such that he could not return a verdict of death against that person. He answered 'Yes.' When asked 'That is because of your conscientious opinions?' he answered 'Yes.' Challenge for cause by the People was allowed.

Mrs. Abel was told that the concern was whether she had an absolute or fixed opinion that might indicate a conscientious opinion that Under any circumstances she could not impose the death penalty, and she answered that she understood that. She was given the example of a person who accepted five million dollars to assassinate the President of the United States, with no mitigating circumstances, and was being prosecuted for such murder, and was then asked if she felt that her conscientious opinion would preclude her from imposing the death penalty in such a case. She answered 'it would.' Challenge of the People for cause was allowed.

These persons not only indicated that they would not vote for the death penalty in the clearly aggravated situations given to them, but by language which is hardly susceptible of misinterpretation were questioned whether they could 'in any case' or 'under any circumstances' vote for the death penalty and answered unequivocally 'no.' This was more than assenting to a question whether a juror would have scruples 'in a proper case.' Under footnote 9 of Witherspoon, (supra, 391 U.S. at 515--516, 88 S.Ct. at 1773) it is said '* * * it cannot be assumed that a juror who describes himself as having 'conscientious or religious scruples' against the infliction of the death penalty or against its infliction 'in a proper case' (see People v. Bandhauer, 66 Cal.2d 524, 531, 58 Cal.Rptr. 332, 337, 426 P.2d 900, 905) * * * thereby affirms that he could never vote in favor of it or that he would not consider doing so in the case before him.'

In the process of selecting a jury, veniremen were excused upon challenge made by defendant. Mrs. Benton, Mrs. Ledebuhr, and Mrs. Ikebata indicated that they could not vote for life if it meant possibility of parole; Mr. Fraser indicated that he could not be fair to anyone who had killed a policeman; Mrs. Brod and Mrs. Biava indicated they could not be fair because they had friends or relatives who had been killed as a result of acts of violence. Challenge for cause was made by defendant when Mr. Crum indicated he might have a tendency to sway toward the police side of it. The court denied this challenge but Mr. Crum was later excused on peremptory. No Witherspoon error can be claimed by defendant as to these.

Question: Two. Was it reversible error for the court to use or allow the use of the phrase 'in a proper case' in the interrogation of prospective jurors relative to their scruples?

No. As used here it indicates merely that a juror must make the determination himself as to when the extreme penalty should be inflicted. The jurors were instructed that they could consider all of the evidence, the circumstances of the crime, the background of the accused, any matters in mitigation or aggravation, and that they had absolute discretion as their judgment and conscience should dictate. The instruction is in accord with Penal Code, section 190.1. The phrase 'in a proper case' was critically referred to in Witherspoon (supra, 391 U.S. at 516, fn. 9, 88 S.Ct. 1770) but was not proscribed. As stated in People v. Varnum, 70 A.C. 514, 528, 75 Cal.Rptr. 161, 169, 450 P.2d 553, 561, 'neither the words 'in a proper case' nor any other words, taken alone, can be seized upon as a touchstone by which to determine the quality of the juror under Witherspoon.' Our review of the record in this case satisfies us that the use of the phrase does not fall within the criticism which appears in Witherspoon.

Question: Three. Was it reversible error to admit testimony of defendant from the first trial?

No. Prior to the guilt trial...