People v. Vaughn

• Decision Date: 20 June 1969
• Docket Number: Cr. 12425
• Citation: 455 P.2d 122,71 Cal.2d 406,78 Cal.Rptr. 186
• Court: California Supreme Court
• Parties: , 455 P.2d 122 The PEOPLE, Plaintiff and Respondent, v. Edward VAUGHN, Defendant and Appellant.

Page 186

78 Cal.Rptr. 186

71 Cal.2d 406, 455 P.2d 122

The PEOPLE, Plaintiff and Respondent, v. Edward VAUGHN, Defendant and Appellant.

Cr. 12425.

Supreme Court of California In Bank.

June 20, 1969.

Molly H. Minudri, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Roger E. Venturi, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

On December 29, 1967, the grand jury of Sacramento County indicted the defendant Edward Vaughn and one Ronald Lancaster for assaulting L. A. Bessette with a deadly weapon while defendant and Lancaster were serving life terms, in violation of section 4500 of the Penal Code. ¹ Bessette suffered physical injuries. On May 7, 1968, the indictment against Ronald Lancaster was dismissed. At trial defendant requested that he he permitted to represent himself, and the trial court allowed him to do so. On the third day of the trial the defendant withdrew his plea of not guilty and pleaded guilty. The trial court then ordered a penalty trial. The jury returned a verdict of death. The appeal to this court was automatic. (Pen.Code, § 1239, subd. (b).) We explain why we have concluded that although the judgment should be affirmed as to guilt, it should be reversed as to penalty.

The Facts

On December 29, 1967, defendant was confined at the California State Prison at Folsom for four offenses, each carrying a term of life imprisonment. At approximately 8 a.m. defendant and Lancaster jumped L. A. Bessette, a correctional officer. In the ensuing struggle Bessette suffered lacerations of the cheek and was subdued by the prisoners. Defendant, armed with a crude weapon fashioned by sharpening a sink plunger, threatened to kill Bessette unless he and Lancaster were given the keys to all the cells. The prison officials refused the request, and eventually defendant and Lancaster released Bessette and surrendered.

At the penalty trial the prosecution introduced evidence that the defendant had been convicted of three counts of first degree robbery and of second degree murder in the death of Conrad Becker, a fellow prisoner. The prosecution attempted on show that defendant was also guilty of first degree murder in the deaths of Benny Slankard and Delbert Blow, both fellow prisoners. Defendant had earlier been acquitted of the murder of Slankard, and had been convicted of assault with a deadly weapon upon Blow. Prison officials testified that defendant had broken prison rules in a number of instances, ranging from fighting and refusing work assignments to using offensive language towards officials. A state psychiatrist, Dr. Lowell Emmons, indicated that he had concluded, after a series of interviews with defendant, that the defendant felt no remorse for his crimes. The defendant offered evidence in an attempt to show that he had not killed either Slankard or Becker, and that he killed Blow only in self defense. Defendant also attempted to show that he had not committed two of the three first degree robberies of which he had been convicted.

The trial court erroneously excused two veniremen for cause.

The trial court excused for cause three prospective jurors because of their opposition to the death penalty. ² One of these stated unequivocally that he would automatically vote against the death penalty no matter what the evidence produced at the trial might reveal. The remaining two, however, were stricken from the jury in violation of the mandate of Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

The first juror excused for cause was Mrs. Ruth McClarin. When she indicated that she disapproved of the law permitting the death penalty, the trial court asked if she could nonetheless follow the law. (See Witherspoon v. Illinois, supra, 391 U.S. 510, 514--515, 88 S.Ct. 1770, fn. 7.) Mrs. McClarin responded ambiguously, 'I would have a difficult time doing that. I am not sure whether I could in all cases.' When asked whether her feelings would prevent her from choosing the death penalty, she stated, 'I am afraid they would.' The response was unclear, since the juror's conjectures as to her possible future views and the juror's actual reaction on presentation of the facts might not have coincided. (Compare People v. Durham (1969) 70 A.C. 179, 208, 74 Cal.Rptr. 262, 449 P.2d 198; see People v. Osuna (1969) 70 A.C. 811, 821, 76 Cal.Rptr. 462, 452 P.2d 678.)

Later Mrs. McClarin volunteered, 'I really feel that I object so strongly that I couldn't consider the death penalty.' (Compare Witherspoon v. Illinois, supra, 391 U.S. 510, 522, 88 S.Ct. 1770, fn. 21.) Mrs. McClarin, in qualifying her statement by the phrase 'I feel,' suggested that she might not be certain of her precise position. (Compare People v. Risenhoover (1968) 70 A.C. 15, 32, 73 Cal.Rptr. 533, 447 P.2d 925; People v. Osuna, supra, 70 A.C. 811, 821, 76 Cal.Rptr. 462, 452 P.2d 678.) This uncertainty crystallized in her answer to the last question put to the prospective juror by the court. 'THE COURT: Mrs. McClarin, would it be fair to say that under no circumstance would you impose the death penalty in any kind of a situation that could be brought before you? A: Not being able to think of enough cases, I can't say for sure, but I certainly can't think of any myself Right now in which I could possibly impose a death penalty.' (Italics added.)

As we said in People v. Osuna, supra, 70 A.C. 811, 821, 76 Cal.Rptr. 462, 467, 452 P.2d 678, 683: 'It is impossible to determine from this exchange whether the prospective juror believed * * * that her opposition to the death penalty would prevent her from voting for that penalty without regard to the evidence. Accordingly, she did not make 'unmistakably clear' * * * that she would automatically vote against the death penalty * * *.'

The other juror erroneously excused for cause was Mrs. Betty Krokoski. The full text of the Voir dire is set out in the margin. ³ Mrs. Krokoski indicated that she would try to follow the law. (Compare Witherspoon v. Illinois, supra, 391 U.S. 510, 514--515, 88 S.Ct. 1770, fn. 7.) When asked if she could impose the death penalty, Mrs. Krokoski twice indicated that she could do so if the evidence supporting the death penalty were very great. She explicitly admitted on at least four occasions that she was not sure or did not know whether she would automatically vote against the death penalty. Her statements of opposition to the death penalty were hedged by phrases such as 'I think,' 'I feel,' 'I believe,' and 'I am afraid.' (See People v. Durham, supra, 70 A.C. 179, 208, 74 Cal.Rptr. 262, 449 P.2d 198; People v. Risenhoover, supra, 70 A.C. 15, 32, 73 Cal.Rptr. 533, 447 P.2d 925; People v. Chacon (1968) 69 A.C. 795, 802, 73 Cal.Rptr. 10, 447 P.2d 106.) Unlike the jurors excused in People v. Beivelman (1968) 70 A.C. 37, 55--56, 73 Cal.Rptr. 521, 447 P.2d 913, footnote 4, who were able to predict how they would vote in any case whatever, Mrs. Krokoski declined to predict what she might do in a situation other than those she hypothesized to herself during the Voir dire. As of the moment she does not 'believe' or 'think' she would bring in a death penalty but she does not know, and will not state, that she would Never bring in a death verdict. It 'would take an awful lot to'; the evidence 'would have to be very, very heavy.' This clearly left open the possibility that in some case Mrs. Krokoski might impose the death penalty.

The equivocal statements of Mrs. Krokoski represent the kind of ambiguity that occurred in People v. Risenhoover, supra, 70 A.C. 15, 73 Cal.Rptr. 533, 447 P.2d 925; there we stated the venireman's 'conscientious opinion may have precluded her from concurring in such a verdict in the majority of cases but not have precluded her from concurring in such a verdict in all cases or in this case irrespective of the evidence that might be introduced at the trial. The court did not allow her to complete her answers, and her partial answers do 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. * * *' (Witherspoon v. Illinois, Supra, (1968) 391 U.S. 510, 522, fn. 22 (88 S.Ct. 1770, 20 L.Ed.2d 776, 785).)' (70 A.C. at p. 32, 73 Cal.Rptr. at p. 544, 447 P.2d at p. 936.) Having firmly declined to give the sort of 'unambiguous yes or no answer' required by Witherspoon (People v. Chacon, supra, 69 A.C. 795, 802, 73 Cal.Rptr. 10, 447 P.2d 106), Mrs. Krokoski was improperly excused.

Defendant's contentions that the trial court committed prejudicial error in giving certain instructions cannot stand

Defendant first complains of the definition of 'malice aforethought' given by the trial court to the jury. When the trial court rendered the instruction defining malice aforethought, defendant had already pleaded guilty. Thus the instruction becomes significant only to the extent that it specified one of the elements of the crime, 'with malice aforethought commit(ing) an assault upon the person of another * * *', which defendant had already admitted.

The court stated, 'Malice aforethought is manifested by the doing of an unlawful and felonious act intentionally, deliberately and without legal cause or excuse. It does not imply a pre-existing hatred or enmity towards the individual injured. The words 'malice aforethought' as used in Section 4500 of the Penal Code do not imply deliberation or the lapse of considerable time between the malicious intent to commit an assault and its actual execution but rather denote the purpose and design of the assaulting party in contradistinction to accident and mischance.' The defendant contends that the jury should have been instructed that 'malice aforethought' as used in section 4500 of the Penal Code conveys the same meaning as that in a case of murder. In...