People v. Terry

Decision Date19 February 1969
Docket NumberCr. 10167
CourtCalifornia Supreme Court
Parties, 454 P.2d 36 The PEOPLE, Plaintiff and Respondent, v. Doyle Alva TERRY, Defendant and Appellant.

Doyle Alva Terry, in pro. per., and Ernest L. Graves, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

BURKE, Justice.

Doyle Alva Terry was found guilty by a jury on one count of first degree murder, five counts of robbery, and one count of conspiracy to commit robbery. He admitted prior convictions of violating Penal Code sections 288 and 286. The jury fixed the penalty at death for the murder. On appeal we affirmed the judgment except the determination of the penalty on the murder count. (People v. Terry, 57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985.) Upon retrial of that issue the jury again returned the death penalty, and we again reversed the judgment imposing the death penalty. (People v. Terry, 61 Cal.2d 137, 37 Cal.Rptr. 605, 390 P.2d 381.) At the third penalty trial the court declared a mistrial after the jury became hopelessly deadlocked. A fourth penalty trial was held at which defendant represented himself. The jury again fixed the penalty at death. A motion for a new trial was denied, and defendant's third automatic appeal is now before us. (Pen.Code, § 1239, subd. (b).)

Defendant contends, among other things, that it was improper to excuse for cause veniremen who were opposed to capital punishment. We have concluded that under the compulsion of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, the death penalty must be set aside because at least one venireman was improperly excluded. It is therefore necessary that defendant again be remanded to the trial court for another trial limited to the issue of the penalty for the murder.

On June 24, 1960, defendant fatally shot Police Officer Vernon Owings. Police Officer Richard Brizendine and defendant's companion, Ross Wilson, who were present at the shooting, testified as prosecution witnesses to the circumstances surrounding the killing. The prosecution also introduced additional evidence to support its theory that defendant intentionally shot the officer to prevent being taken into custody for various offenses. Defendant testified in his own behalf and introduced other evidence to support his theory that the shooting was accidental and that he had not committed the other offenses.

Excluding Veniremen Opposed to Capital Punishment

Thirty-five prospective jurors were excused for cause on the basis of their attitude toward the death penalty. 1 Under Witherspoon v. Illinois, Supra, 391 U.S. 510, 88 S.Ct. 1770, it was error to exclude one or more of them. For example, the court asked if any of the veniremen 'have a conscientious objection or opinion as to the imposition of the death penalty in a proper case.' Several prospective jurors raised their hands, and one such juror apparently was a Mr. McFarland. The following discussion ensued: 'THE COURT: * * * Mr. McFarland, you feel that even though this was a proper case for the imposition of the death penalty that you could not and would not vote for a verdict imposing the death penalty because of your conscientious objection or opinion? JUROR McFARLAND: I am opposed to the death penalty, yes. MR. FITTS (the prosecutor): I didn't hear that. THE COURT: He said, 'I am opposed to the death penalty'; is that correct, Mr. McFarland? JUROR McFARLAND: Yes, sir.' The court then excused the venireman for cause.

Venireman McFarland's response 'I am opposed to the death penalty, yes' manifestly is ambiguous. The response can reasonably be interpreted as stating in effect that if the question was whether he was opposed to the death penalty the answer is yes. It appears from the trial court's subsequent remark heretofore quoted that the court understood the response as merely expressing opposition to the death penalty, but the court did not continue with the Voir dire to clarify the venireman's attitude and instead excused him for cause. 2

The record thus shows that venireman McFarland did not 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.' (Witherspoon v. Illinois, Supra, 391 U.S. 510, 523, fn. 22, 88 S.Ct. 1777). Witherspoon noted (at p. 516, fn. 9, 88 S.Ct. at p. 1774) that 'Unless a venireman states Unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.' (Italics added.) '(A) sentence of death cannot be carried out if the jury that imposed or recommended 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.' (Witherspoon v. Illinois, Supra, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777.)

Whether Fifth Penalty Trial Will Constitute Cruel or Unusual Punishment

Defendant also contends that subjecting him to any further penalty trials will constitute cruel and unusual punishment in violation of the federal Constitution. A similar contention was rejected in Purvis v. State of California, D.C., 234 F.Supp. 147, 151. In that case the petitioner sought to prevent the holding of a fourth penalty trial after he had three times obtained reversal of the death penalty because of misconduct of the prosecutor. The court stated in part that 'As a general proposition having to sit through a trial may be an onerous burden for a defendant, but it is not a cruel and certainly not an unusual punishment.' The court also stated that 'Certainly the California authorities should now be on notice that there is a constitutional limit to the number of times a man must undergo a trial where his life is at stake, and where one of the reasons for the repeated trials is deliberate misconduct by the prosecutor.' The court, however, did not regard the fourth penalty trial as exceeding that limit. In the instant case, where deliberate misconduct has not been a factor in the reversal of penalty trials, a fifth penalty trial will not constitute such punishment.

Asserted Error in Failing to Give Certain Instructions

On defendant's second automatic appeal we held that the court improperly excluded evidence tending to show his possible innocence and erroneously restricted his right to examine prospective jurors on Voir dire with respect to their possible reaction to his claim of innocence and misled the jury into thinking that they could not take into consideration his claim of innocence as a mitigating factor. (People v. Terry, Supra, 61 Cal.2d 137, 145--147, 37 Cal.Rptr. 605, 390 P.2d 381.) At the fourth penalty trial defendant was allowed to introduce evidence of his innocence of the crimes involved and to ask questions on Voir dire regarding whether prospective jurors would consider his claim of innocence. He now contends that the court committed prejudicial error in not instructing the jury that any doubt it might have regarding his guilt could properly be considered as a mitigating factor in the penalty determination. He points to jurors' affidavits which he submitted to the trial court in support of his motion for a new trial and from which it appears that, following an argument among themselves, the jurors accepted the view that the verdict of the jury at the guilt trial was binding upon them and precluded consideration of defendant's possible innocence as a mitigating factor. One of the jurors further stated in her affidavit '* * * had I been instructed by the Court that, under the law, it was proper for me to consider, as a mitigating factor, my belief of the defendant's innocence, I would not have compromised and voted for the death penalty.' A second juror made a similar statement.

Before final arguments defendant orally requested that the court give an instruction 'relating to the question of possible innocence of the defendant as bearing on mitigation.' The court denied the request, stating that the instructions that would be given were adequate. After the jury began its deliberations the court refused to give a written instruction submitted by defendant regarding doubt of guilt as a mitigating factor. 3

The instructions given informed the jury in part that 'The defendant in this case has been found guilty of the offense of murder in the first degree, and it is now your duty to determine which of the penalties provided by law should be imposed for that offense. In arriving at the determination you should consider all of the evidence received here in court presented by the People and defendant throughout the trial before this jury. You may also consider all of the evidence of the circumstances surrounding the crime, of the defendant's background and history, and of the facts in aggravation or mitigation of the penalty which has been received here in court. However, it is not essential to your decision that you find mitigating circumstances on the one hand or evidence in aggravation of the offense on the other. * * * Beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury in the selection of the penalty, but, rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience and absolute discretion of the jury. * * *'

The trial court was not required to initiate an instruction to the jury on the considerations that should be taken into account when determining the penalty. As we stated in People v. Polk, 63 Cal.2d 443, 451, 47 Cal.Rptr. 1, 6, 406 P.2d 641, 646: 'We do not agree that such an...

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