People v. Hines

• Decision Date: 20 March 1964
• Docket Number: Cr. 7373
• Citation: 390 P.2d 398,37 Cal.Rptr. 622,61 Cal.2d 164
• Parties: , 390 P.2d 398 The PEOPLE, Plaintiff and Respondent, v. Walter Clayton HINES, Defendant and Appellant.
• Court: California Supreme Court

Page 622

37 Cal.Rptr. 622

61 Cal.2d 164, 390 P.2d 398

The PEOPLE, Plaintiff and Respondent, v. Walter Clayton HINES, Defendant and Appellant.

Cr. 7373.

Supreme Court of California, In Bank.

March 20, 1964.

Rehearing Denied April 15, 1964.

John H. Sutter, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

In this capital case, in which defendant entered a plea of guilty of murder in the first degree and in which the jury fixed the penalty at death, we reversed the judgment insofar as it relates to the penalty. The instructions and the prosecutor's argument in the penalty trial gave rise to the errors which we condemned in People v. Morse (1964) 60 A.C. 613, 36 Cal.Rptr. 201, 388 P.2d 33; these errors, we find, were substantial. Because of the nature of the penalty trial, any substaintial error, as we explain, causes prejudice. We reject, however, defendant's contention that he suffered denial of both his right to a trial on the sanity issue and to a public trial. Nor do we sustain defendant's contentions as to errors in the instructions, although we agree with his position that the tape recordings of his confession, which included his account of prior crimes, should not have been admitted in their unexpurgated state.

Defendant was accused by information, filed in the Superior Court of Los Angeles County, of the murder of one Billy Cooper. Defendant entered pleas of not guilty and not guilty by reason of insanity. After two continuances and a waiver of defendant's right to be tried within 60 days, defendant withdrew his pleas of not guilty and not guilty by reason of insanity, entering a plea of guilty of murder in the first degree. Thereafter the jury fixed the penalty at death.

On July 1, 1962 defendant attempted the robbery of a liquor store in Venice. He entered the store, ordered a pack of cigarettes, took out his pistol, and said 'This is a stick up.' Cooper, the attendant, tried to press the alarm button; defendant told him not to do so. 'So then he decided, well, he was going to try, you know, to shoot me down, I guess, so he walked around the cigar section and reached for his gun, and when I saw the gun, you know, what could I do, man, so that was it.' Cooper got the gun, fired at defendant but missed him; defendant shot Cooper in the forehead; the victim fell behind the counter, and defendant reached over and fired three or four more shots into the body to make sure that Cooper was dead.

Defendant later confessed that he killed Cooper in order to avoid identification; that he entered the store for the purpose of robbing it and killing whomever was there; that he would have killed Cooper whether or not he resisted. After shooting Cooper, defendant panicked, took only a pack of cigarettes, and left the store.

As respondent states, '(E)fforts to find the killer proved unavailing until the afternoon of July 11 when appellant walked into the Venice division police station,' and confessed the crime. He removed from a brown paper bag an automatic pistol which the parties at the trial stipulated was the murder weapon.

We discuss four aspects of the case: first, the errors committed in the penalty trial; second, defendant's contention that he was deprived of a trial in the issue of sanity; third, defendant's argument that he was denied a public trial in violation of his constitutional rights; fourth, alleged errors in the rendition of instructios and in the admission of evidence at the penalty trial.

Turning to the penalty trial, we note that the court gave the exact instruction that we held constituted error in Morse. ¹ Furthermore, the prosecutor in his closing argument stressed that the only way the jury could be assured that defendant would not 'be again on the streets of this community,' would be to return the death penalty. He also argued that 'we assume that those persons responsible for paroling individuals do so conscientiously, but all human beings are fallible.' On the point of the improper diminution of the responsibility of the jury, the prosecutor argued that 'neither would the return of the death penalty necessarily mean the death penalty. Regardless of what sentence you impose upon this defendant, be it life imprisonment or death, the Governor of this state has the power to pardon him, to commute his sentence, be it death, to life imprisonment'; and his last statement to the jury was, 'Please listen to the Judge's instructions carefully, with reference to what life imprisonment means, and the fact that death does not necessarily mean death. * * *'

The instructions and statements constituted error. They improperly 'diverted the jury's attention from its own task of decision to the roles of the Governor, the Legislature and the Adult Authority, as well as to possibilities of reduction of the sentence by their action.' (People v. Terry (Cal.1964), 37 Cal.Rptr. 605, 390 P.2d 381.)

We must determine, then, whether under article VI, section 4 1/2 of the California Constitution the error resulted in a miscarriage of justice. ² We apply the recognized test that 'a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, 254.)

In applying this test to a death penalty case we must recognize the deep-founded difference between the task of the jury in the penalty trial and its 'usual function of finding whether or not certain events occurred and certain consequences resulted from them.' (People v. Morse (1964) 60 A.C. 613, 625, 36 Cal.Rptr. 201, 208, 388 P.2d 33, 40.) In all other situations than the penalty trial the jury deliberates under the court's instructions and reaches its verdict within the area delineated by the judge. In the penalty phase the court gives no such instructions; 'The jury must decide (this) question without benefit of guideposts, standards or applicable criteria.' (People v. Terry (Cal.1964) 37 Cal.Rptr. 605, 390 P.2d 381.) The jury decides in its absolute and unguided discretion whether to exact the death penalty. In all other situations than the penalty trial the evidence must be narrowed down to the point at issue; in the penalty trial the evidence consists of a multitude of matters pertaining to the defendant (see People v. Friend (1957) 47 Cal.2d 749, 767, 306 P.2d 463) enabling the jury to make 'a complete and careful analysis of that person as a human composite of emotional, psychological and genetic factors' (People v. Morse, supra, 60 A.C. 629, 36 Cal.Rptr. 211, 388 P.2d 43).

The isolation of the determination of the death penalty in the penalty trial, which proceeds without standards for the jury, plus the expansion of the subject-matter of the trial, which has reached very wide margins, gives to the jury an undefined task performed upon a showing of a mass of material. As a result the jury may conceivably rest the death penalty upon any piece of introduced data or any one factor in this welter of matter. The precise point which prompts the penalty in the mind of any one juror is not known to us and may not even be known to him. Yet this dark ignorance must be compounded twelve times and deepened even further by the recognition that any particular factor may influence any two jurors in precisely the opposite manner.

We cannot determine if other evidence before the jury would neutralize the impact of an error and uphold a verdict. Such factors as the grotesque nature of the crime, the certainty of guilt, or the arrogant behavior of the defendant may conceivably have assured the death penalty despite any error. Yet who can say that these very factors might not have demonstrated to a particular juror that a defendant, although legally sane, acted under the demands of some inner compulsion and should not die? We are unable to ascertain whether an error which is not purely insubstantial would cause a different result; we lack the criteria for objective judgment.

Thus any such substantial error in the penalty trial may have affected the result; it is 'reasonably probable' that in the absence of such error 'a result more favorable to the appealing party would have been reached.' Indeed, in thus defining the prejudicial consequence of error in the penalty trial we do no more than reiterate the rule of People v. Hamilton (1963) 60 A.C. 51, 82-83, 32 Cal.Rptr. 4, 22, 383 P.2d 412, 430. In that case, after enumerating the tests of prejudicial error in the guilt phase, Justice Peters, writing for the court, said, '(I)t necessarily follows that any substantial error occurring during the penalty phase of the trial, that results in the death penalty, since it reasonably may have swayed a juror, must be deemed to have been prejudicial. This rule of law has been hinted at, if not decided, in prior cases. In People v. Linden (1959) 52 Cal.2d 1, 27, 338 P.2d 397, 411, it was said that error and misconduct in the penalty trial 'implicitly invites reversal in every case. Only under extraordinary circumstances can the constitutional provision (art. VI, § 4 1/2) save the verdict." (60 A.C. p. 83, 32 Cal.Rptr. p. 23, 383 P.id p. 431.) (See also People v. Love (1960) 53 Cal.2d 843, 857, 3 Cal.Rptr. 665, 350 P.2d 705; People v. Terry (1962) 57 Cal.2d 538, 569, 21 Cal.Rptr. 185, 370 P.2d 985; Pait v. State (Fla.1959) 112 So.2d 380, 385.)

In characterizing the wide latitude and the loose function of the jury in the penalty trial, we said in People v. Terry (Cal.1964) 37 Cal.Rptr. 605, 390 P.2d 381. 'To attempt to assess the effect of error in this legal vacuum is to superimpose one untestable surmise upon...