People v. Brown

• Decision Date: 25 August 1988
• Citation: 250 Cal.Rptr. 604,758 P.2d 1135,46 Cal.3d 432
• Court: California Supreme Court
• Parties: , 758 P.2d 1135 The PEOPLE, Plaintiff and Respondent, v. John G. BROWN, Defendant and Appellant. Crim. 22646.

Page 604

250 Cal.Rptr. 604

46 Cal.3d 432, 758 P.2d 1135

The PEOPLE, Plaintiff and Respondent, v. John G. BROWN, Defendant and Appellant.

Crim. 22646.

Supreme Court of California In Bank.

Aug. 25, 1988.

J. Courtney Shevelson, Carmel, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jay M. Bloom, John W. Carney and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

This is an automatic appeal from a judgment of death under the 1978 death penalty legislation. (Pen.Code, §§ 190-190.5.) ¹ We affirm.

I. FACTS AND PROCEDURE

In June 1980 defendant was a wanted man; he had failed to appear for a jury trial and another criminal hearing, and two bench warrants were issued for his arrest. After telling his former live-in girlfriend he was not going back to jail and did not want to die in prison, defendant bought a gun and changed his name to Gordon Mink.

Meanwhile the Garden Grove police were looking for him. At an evening prepatrol briefing on Saturday, June 7, the police department distributed a flier to all officers. The flier contained defendant's name, photograph, and description; it noted there were outstanding warrants for his arrest, described his car, and listed the address where the car was last seen.

Shortly thereafter, Officer McInerny and his partner, Reserve Officer Henninger, found the described car at an apartment complex. They watched it from their marked patrol car for about 45 minutes before they left to handle other pressing calls. While investigating another incident about 11 o'clock later that night, the two officers again noticed defendant's car--this time at the Cripple Creek Bar.

They called for assistance, and Garden Grove Officers Reed and Overly quickly arrived. After discussing the flier distributed earlier that evening, all four officers--all in full uniform--entered the crowded bar through two separate doors and worked their way to the center of the room.

Defendant, who was sitting in the corner with a group of other "motorcycle-type people," saw the officers enter; a nearby patron heard him say "the pigs are here," as he started for the door. The officers recognized defendant and moved in his direction. At the door, Officer Reed caught up with defendant and put his hand on defendant's shoulder. Before any of the officers could draw his weapon, defendant pulled a gun and fired at least eight times. Two lethal shots hit Officer Reed; three shots gravely wounded Officer Overly; Officer Henninger was seriously wounded; a private citizen, Terezia, suffered permanent and grave injury after being shot between the eyes; and another citizen, McKinney, was shot in the leg.

Defendant fled and hid in some bushes outside the bar. About two hours later, with numerous officers at the scene, he was found crouched in the dirt. As he was brought out of the bushes an officer called out, "Where's the gun?" Defendant stated, "I threw it." His gun, hat and keys were thereafter found nearby.

Defendant was charged with, inter alia, murdering Officer Reed ( § 187) with special circumstances, i.e., intentionally killing a peace officer while engaged in the performance of his duties ( § 190.2, subd. (a)(7)). ²

At trial the People's case disclosed the above events. Additionally, experts testified defendant's fingerprints were found on internal parts of the recovered weapon that could be reached only by disassembling the handle of the gun, and that the weapon found was probably the murder weapon.

Defendant testified in his defense and presented expert witnesses who suggested he may have suffered from diminished capacity because of drug abuse at the time of the incident. Defendant admitted he had suffered a 1970 felony conviction in Florida for "burglary." He detailed his extensive drug abuse history and claimed to have been under the influence of methamphetamines on the night in question and that he remembered nothing of the events in question. In rebuttal, the People established that defendant's blood sample, taken shortly after his arrest, showed no presence of drugs and specifically, the test for methamphetamine was negative. Moreover, numerous officers who dealt with defendant in the four to five hours after his arrest testified that although he "stank like a pig" he behaved normally and did not appear to be under the influence of any drug.

The jury found defendant guilty of murdering Officer Reed and found the special circumstances allegation true. ³

At the penalty trial the People showed that in 1969, defendant tried to run down a police officer in Florida and was convicted of "aggravated battery"; that he brutally blindsided a bar patron during a fight in 1978; that he and two others forced a jail inmate to orally copulate them while in jail in late 1980; that he stole wirecutters from another jail inmate and threatened "if you tell anyone you will get what I gave to that cop"; that he led a food riot at the county jail; and that he made sexual advances toward another prisoner whom he threatened to sodomize. Defendant vigorously cross-examined the prosecution witnesses who related the above testimony, but put on no evidence of his own.

The jury returned a verdict of death. The trial court heard and denied defendant's motions to modify the verdict and for a new trial, and sentenced him to death. ⁴

II. GUILT PHASE ISSUES

A. Representative Cross-section Jury

Defendant claims exclusion of some potential jurors for cause in accord with Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 resulted in a jury that did not represent a fair cross-section of the community or, alternatively, excusal of "Witherspoon excludables" denied him a "neutral" jury on the issue of guilt. The first contention was rejected by a majority of this court in People v. Fields (1983) 35 Cal.3d 329, 342-353, 197 Cal.Rptr. 803, 673 P.2d 680 (plur. opn.), 374, 197 Cal.Rptr. 803, 673 P.2d 680 (Kaus, J., conc.); see also People v. Balderas (1985) 41 Cal.3d 144, 191, 222 Cal.Rptr. 184, 711 P.2d 480; People v. Miranda (1987) 44 Cal.3d 57, 78-79, 241 Cal.Rptr. 594, 744 P.2d 1127; Lockhart v. McCree (1986) 476 U.S. 162, 176-177, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137. We reject the second claim for the reasons stated in People v. Anderson (1985) 38 Cal.3d 58, 60, 210 Cal.Rptr. 777, 694 P.2d 1149, and McCree, supra, 476 U.S. at pp. 176-184, 106 S.Ct. at pp. 1766-1770.

B. Use of Mannequin to Illustrate Testimony

Defendant asserts the court abused its discretion in permitting the People to use a mannequin dressed in Officer Reed's full uniform to illustrate the type and placement of wounds received by the victim in order to support their theory that defendant knew when he fired his weapon that Reed was a peace officer. The record shows the court carefully considered and rejected defendant's claim that use of the dressed mannequin was unreasonably prejudicial, noting that the holes with two blood stains on the shirt were scarcely visible, and because the dressed mannequin showed how Reed looked when he was shot, it was relevant to the charged special circumstance. We conclude use of the mannequin was "a perfectly proper method of introducing highly relevant evidence" (People v. Robillard (1960) 55 Cal.2d 88, 99, 10 Cal.Rptr. 167, 358 P.2d 295) and that the court's ruling was within its discretion. (People v. Green (1980) 27 Cal.3d 1, 25, 164 Cal.Rptr. 1, 609 P.2d 468; People v. Stone (1983) 139 Cal.App.3d 216, 224, fn. 2, 188 Cal.Rptr. 493.)

III. SPECIAL CIRCUMSTANCE ISSUES

Section 190.2, subdivision (a)(7), defines as a special circumstance for which a defendant may be subjected to the death penalty, the intentional killing of a peace officer ⁵ while the officer was performing his duties and when the defendant "knew or should have known" that such victim was a peace officer engaged in the performance of his duties. The court instructed the jury on this special circumstance pursuant to CALJIC No. 8.81.7: "To find that the special circumstance, referred to in these instructions as murder of a peace officer, is true, each of the following facts must be proved: (1) That the person murdered was a peace officer, and (2) That he was intentionally killed while engaged in the performance of his duties, and (3) That the defendant knew or reasonably should have known that the person killed was a peace officer engaged in the performance of his duties. [p] For the purposes of these instructions, a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers." (Italics added.)

A. Instructional Error

Defendant first argues the court improperly removed an element of the special circumstance from the jury's consideration, and hence denied him due process, by instructing pursuant to the italicized language. We disagree. As instructed, the jury was left to determine all elements of the special circumstance: It had to determine (i) if the victim was a peace officer, (ii) if he was intentionally killed in the performance of his duties, and (iii) if defendant knew or reasonably should have known the victim was a peace officer engaged in the performance of his duties. The challenged final sentence took no element from the jury; it merely instructed the jury on a point of statutory law--a point not open to dispute--that a Garden Grove police officer is a peace officer. ( § 7, subd. 8 ["The words 'peace officer' [throughout the Penal Code] signify any one of the officers mentioned in ... Section 830 [et seq.]"]; § 830.1, subd. (a) ["Any ... police officer of a city ... is a peace officer"].) The jury was left to make all essential factual determinations, including whether the victim was a Garden Grove police officer. ⁶

B. Constitutionality of Section 190.2, Subdivision (a)(7)

Defendant next asserts he may not constitutionally be found eligible for the...