Hillery, In re

Decision Date20 August 1969
Docket NumberCr. 12341
Citation79 Cal.Rptr. 733,71 Cal.2d 857,457 P.2d 565
CourtCalifornia Supreme Court
Parties, 457 P.2d 565 In re Booker T. HILLERY, Jr., on Habeas Corpus.

Marvin W. Friedman, San Francisco, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

In his petition for a writ of habeas corpus after a second penalty trial, petitioner Booker T. Hillery, Jr., presently under sentence of death after conviction of first degree murder (People v. Hillery (1965) 62 Cal.2d 692, 44 Cal.Rptr. 30, 401 P.2d 382, reversed as to penalty, cert. den. (1967) 386 U.S. 938, 87 S.Ct. 958, 17 L.Ed.2d 810, rhg. den. 386 U.S. 1000, 87 S.Ct. 1310, 18 L.Ed.2d 355; People v. Hillery (1967) 65 Cal.2d 795, 56 Cal.Rptr. 280, 423 P.2d 208, affd., cert. den. 389 U.S. 986, 88 S.Ct. 486, 19 L.Ed.2d 496, rhg. den. (1968) 390 U.S. 913, 88 S.Ct. 822, 19 L.Ed.2d 887) contends that under the rule of Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, the trial court erroneously excused for cause certain prospective jurors who expressed conscientious opposition to the death penalty. Upon a review of the Voir dire examination conducted at petitioner's second penalty trial, we have concluded that a Witherspoon error occurred.

Mrs. Bernice Hope, a juror whom the trial court excused for cause because of conscientious opposition to capital punishment, did not make it 'unmistakably clear * * * that (she) 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 (her) * * *.' (Id. at p. 522 & fn. 21, 88 S.Ct. at p. 1777.)

The trial court excused Mrs. Hope for cause after she stated that she did not think she could follow 'the law' of California with respect to the imposition of capital punishment. The court never explained, however, that the jury decision as to penalty would be 'a subjective evaluation that you must make on your own.' (See People v. Varnum (1969) 70 A.C. 514, 530 & fn. 9, 75 Cal.Rptr. 161, 171, 450 P.2d 553, 563.) Neither did the court adequately explain that Penal Code, sections 190 and 190.1 vest in the jury an 'absolute' discretion to determine whether a defendant in a capital case should suffer death or life imprisonment, and that this discretion remains completely unlimited by any rules of law which might otherwise control a juror's determination as to the penalty in the case before him. On the contrary, the trial court suggested, by its questioning of Mrs. Hope and by statements and questions directed to other jurors, that 'the law' of California required a juror to concur in a verdict imposing the death penalty in certain defined classes of cases.

We have consistently condemned exclusions for cause based upon a juror's statements that he could not vote for the death penalty 'in a proper case,' when the trial court, by failing to define the term 'proper case' in light of the juror's absolute discretion to determine the appropriate penalty, suggests to the particular juror 'that the law classes certain kinds of cases as 'proper' for the infliction of the death penalty and that, if the defendant is found guilty of a crime of this class, the jury will be Required to impose the death penalty.' (People v. Teale (1969) 70 A.C. 532, 551, 75 Cal.Rptr. 172, 183, 450 P.2d 564, 575; People v. Morse (1969) 70 A.C. 762, 794, 76 Cal.Rptr. 391, 452 P.2d 607; see generally, People v. Varnum, supra, 70 A.C. 514, 526--531, 75 Cal.Rptr. 161, 450 P.2d 553.) The same considerations which support the rationale in these cases require us to hold erroneous the instant exclusion for cause based upon a juror's statement that she could not follow 'the law' of California. Here the trial court, by failing to explain that the law of California grants to the jurors absolute discretion, devoid of standards or directions to determine the appropriate penalty, suggests to the particular juror that 'the law' required a juror to concur in a verdict imposing the death penalty in certain defined classes of cases. Accordingly, under compulsion of Witherspoon, we must reverse the judgment imposing the death penalty.

The specific Voir dire examination of venireman Hope extended over five pages of the record. 1 At the end of the exchange between the court and Mrs. Hope, the trial court stated the basis for his exclusion for cause: '(W)e don't quarrel with anyone who disagrees with our law, of course, but it disqualifies you to serve as a juror in this case.' Mrs. Hope's statement of disagreement with 'the law' and of her inability to follow 'the law' appeared in the context of the trial court's statements that, '(I)t is the law of California and it includes the death penalty,' and '(I)t is on the statute books, it is still our law to be applied in a proper case, * * *' The trial court never explained to Mrs. Hope that the law of California provided that the determination as to the imposition of capital punishment would rest within the absolute discretion of the jurors. The court never explained that, 'What constitutes a proper case (for the imposition of the death penalty) is * * * for the juror to decide.' (People v. Bandhauer (1967) 66 Cal.2d 524, 531, 58 Cal.Rptr. 332, 337, 426 P.2d 900, 905.)

The inevitable result of the trial court's unexplained references to 'the law' and 'proper case' was that Mrs. Hope responded to the examination under the impression that 'the law classes certain kinds of cases as 'proper' for the infliction of the death penalty and that, if the defendant is found guilty of a crime of this class, the jury will be Required to impose the death penalty. A venireman under this impression, conceiving that his oath as a juror might require him to concur in a verdict of death in a case which the law deemed 'proper' for that penalty--but which he himself did not deem 'proper' therefor--might well reply in the affirmative to the court's question as to whether his scruples would prevent his concurrence in a verdict of death 'in a proper case. " (People v. Teale, supra, 70 A.C. 532, 551, 75 Cal.Rptr. 172, 183--184, 450 P.2d 564, 575--576) A fortiori, such a juror might well respond in the affirmative to a question as to whether his scruples would prevent him from following 'the law' which is 'to be applied in a proper case.' Such a response in either case does not satisfy the mandate of Witherspoon that the prospective juror must make it 'unmistakably clear * * * that (he) 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 (him) * * *.' (Witherspoon v. Illinois, supra, 391 U.S. at p. 522 & fn. 21, 88 S.Ct. at p. 1777.)

In the present case, Mrs. Hope indicated that she did not think she could follow 'the law'; and that she understood that 'it (presumably capital punishment) is still our law to be applied in a proper case.' Unless at some time during or prior to the specific Voir dire examination of Mrs. Hope, the trial court corrected the erroneous impression generated by the references to 'the law' and 'in a proper case,' we must conclude that this juror's exclusion for cause violated the rule of Witherspoon as applied in the Teale and Varnum cases.

An examination of the preceding Voir dire directed at other prospective jurors reveals that the trial court never adequately explained that 'the law' of California allows a juror to determine the penalty in his absolute discretion; neither did the court define 'proper case' in terms which would adequately explain that 'What constitutes a proper case is * * * for the juror to decide.' (People v. Bandhauer, supra, 66 Cal.2d 524, 531, 58 Cal.Rptr. 332, 337, 426 P.2d 900, 905.) In fact, the trial court referred to the 'rules of law to apply to the facts,' thus affirmatively suggesting that 'the law' required the imposition of capital punishment in certain defined classes of cases.

Early in the Voir dire, the trial court told the jury that it had 'absolute discretion' to determine the penalty 'under the law, which the court will give them.' (Italics added.) Although the court here correctly stated that the jury decision at the penalty trial rested within the jurors' absolute discretion, the court proceeded to obscure this correct statement by suggesting to the jury that the court would render instructions on rules of law which would guide and limit the jury in reaching its verdict. The trial court generated a contradiction within its own statement by speaking on the one hand of 'absolute' discretion and on the other of a jury determination 'under the law.' Indeed, absolute discretion necessarily requires freedom from controlling rules or instructions. By stating that the court would render instructions on the law relevant to the jury's determination of the penalty, the trial court implied that the jury decision would not rest within the jurors' absolute discretion. Under such circumstances, we may not assume that the jury panel in general, nor Mrs. Hope in particular, understood that the jury decision as to penalty would involve 'a subjective evaluation that you must make on your own.' (People v. Varnum, supra, 70 A.C. at p. 530 & fn. 9, 75 Cal.Rptr. at p. 171, 450 P.2d at p. 563.) 2

The trial court further obscured a correct statement of the nature of the jury decision as to penalty when it referred to 'the evidence and the law (which) warranted (capital punishment),' and, '* * * (o)ur laws do provide for the death penalty in the proper case.' The prosecutor added to this confusion when he referred to 'the factual situations that are presented in a proper case for the death penalty.' These references inevitably imply that standards for decision-making exist outside a particular juror's subjective determination; they suggest...

To continue reading

Request your trial
15 cases
  • People v. Terry
    • United States
    • California Supreme Court
    • 2 Abril 1970
    ... ... Osuna, 70 Cal.2d 759, 768--769, 76 Cal.Rptr. 462, 452 P.2d 678.) Nor is this a case where the venireman answered 'Well, I don't think I could send anyone to death' in reply to the question whether she had any opinion 'one way or the other as far as the penalty.' (In re Hillery, 71 A.C. 896, 902, [2 Cal.3d 381] 79 Cal.Rptr. 733, 735, 457 P.2d 565, 567.) The majority in Hillery stated that because the answer occurred in the context of the foregoing question the answer could not reasonably be construed as indicative of anything more than tentative doubts as to the ... ...
  • People v. Floyd
    • United States
    • California Supreme Court
    • 27 Enero 1970
    ... ... This court repeatedly has expressly held that the response 'I don't think' does not by itself satisfy the Witherspoon requirement of unambiguous expression of an automatic opposition to the death penalty under any circumstances (In re Hillery, 71 A.C. 896, 902, 79 Cal.Rptr. 733, 457 P.2d 565; People v. Osuna, 70 A.C. 811, 820, 76 Cal.Rptr. 462, 452 P.2d 678; People v. Chacon, 69 Cal.2d 765, 772--773, 73 Cal.Rptr. 10, 447 P.2d 106), and I cannot understand how the phrase 'I don't believe' is any more clear than the phrase 'I don't ... ...
  • People v. Lanphear
    • United States
    • California Supreme Court
    • 10 Abril 1980
    ... ... (People v. Chacon (1968) 69 Cal.2d 765, 772-773, 73 Cal.Rptr. 10, 447 P.2d 106; People v. Osuna (1969) 70 Cal.2d 759, 76 ... Page 616 ... Cal.Rptr. 462, 452 P.2d 678; People v. Vaughn, supra, 71 Cal.2d at pp. 415-416, 78 Cal.Rptr. 186, 455 P.2d 122; In re Hillery (1969) 71 Cal.2d 857, 863, 79 Cal.Rptr. 733, 457 P.2d 565; see also Maxwell v. Bishop (1970) 398 U.S. 262, 264-265, 90 S.Ct. 1578, 1580, 26 L.Ed.2d 221; People v. Stanworth (1969) 71 Cal.2d 820, 835-838, 80 Cal.Rptr. 49, 457 P.2d 889; In re Hill (1969) 71 Cal.2d 997, 1016-1019, 80 Cal.Rptr. 537, ... ...
  • Vasquez v. Hillery
    • United States
    • U.S. Supreme Court
    • 14 Enero 1986
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT