PEOPLE v. FARLEY
Filed 7/2/09 (reposted same date to correct participating concurring justices)
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. 123146
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STORY CONTINUE FROM PART VI.
First, defendant testified that following his return from Australia, he found a position working for a subset of a piece of equipment that we had deployed over in Australia. Defense counsel asked him to explain what he meant by a subset of the equipment that had been deployed. The prosecutor objected on relevancy grounds, which the trial court sustained. At a sidebar conference, defense counsel asked whether the objection had been made in response to a signal from the representative of the federal government, and the prosecutor stated he had no idea, and had objected because the question was irrelevant. Defense counsel stated he was attempting to elicit testimony (1) to counter prosecution testimony regarding the ESL location where defendant was assigned, as opposed to the location where he in fact was seen working (and by implication, stalking Black), and (2) to elucidate defendants industry jargon so that the jury understood what it is he was working on. The trial court suggested counsel simply ask defendant where that piece of equipment was located.
Second, when defendant testified that he was assigned to a different project, defense counsel asked him to identify the new project. The prosecutors objection on the ground of relevancy was sustained. At sidebar, defense counsel again inquired whether the prosecutors objection was prompted by a signal from Ball. After colloquy between counsel and the court, the prosecutor said, When I make a relevancy objection, I mean that the matter is irrelevant. Pure and simple. After further argument, the court again stated that [t]he relevancy is where he was working.
Third, defendant testified that he did not believe the actions he took to gather information about Black were wrong, because his Navy career and his work at ESL fostered an attitude that gathering information surreptitiously was not wrong and that information was power. Defense counsel asked, What are you referring to in terms of what you did in the military and ESL that fostered these attitudes? The prosecutor objected that the information was irrelevant. At a sidebar conference, defense counsel suggested Ball had signaled the prosecutor. The prosecutor stated, I received no signal. I made a relevance objection. After further discussion between the court and counsel, the court asked defendant for an offer of proof regarding what defendant is going to testify to. After consultation with defendant, defense counsel stated defendant would testify that his work involved the use of electronic methods to monitor electronic signals generated by foreign powers, and he intend[ed] to ask [defendant] about that information, about where it was coming from, and why this work contributed to his attitudes, what it was about that that contributed to his attitudes . . . . After further argument by counsel, the court sustained the objection, noting that defendant already had testified that his military and work environment, in which he possessed security clearances that allowed him to obtain information, had led to his feeling of power from getting information. The trial court explained that it fail[ed] to see what he did specifically in the Navy or at ESL insofar as particular projects that he worked on, or particular discussion about monitoring electronic signals of foreign powers or as well as any agencies that he worked for, how that has anything at all to do with this. The court added that even if it had some marginal relevance under 352, this is a complete waste of time, confusion of the issues, and the probative value of this information is negligible.
Fourth, after defendant testified further about the attitudes fostered by being involved in spying, and about his elite feeling from having access to classified information, defense counsel asked about the type of information gathered in the Australian facility where defendant worked. The trial court sustained the prosecutors relevancy objection, and added that the testimony had no probative value and was time consuming. The court stated: I think you have beat to death the issue of spying equals power equals information equals power, that this Defendant has established those attitudes from his work in the military and at ESL, and that he has already described his attitudes about that and that the fact that normal people dont have this information, that hes elitist because he had all this information because of his super secret clearance. Enough is enough.
Before the defense completed its direct examination of defendant, it was afforded a hearing regarding Balls signals to the prosecutor. Ball testified that he would wave to Lieutenant Dow if a question or answer raised privileged matters. With respect to two questions, Ball stated he had waved to Dow, but the prosecutor already had stood up to object in each instance. With respect to another question, Ball said he waved to Dow and Dow touched the prosecutors arm. Lieutenant Dow testified that the prosecutor stated that he was already aware and was about to object. Thus, the prosecutor did not in fact make any objections at the prompting of the federal representative.
The confidential nature of defendants work in the Navy and at ESL also resulted in limitations upon the testimony of Kent Wells, the Navy personnel security specialist, during the penalty phase. The trial court ruled in limine that it could not order Wells to disclose classified information, because doing so could subject him to criminal prosecution. It also concluded the confidential information defendant sought from Wells was not necessary, because the defense was making [its] point before the [j]ury with other evidence.
Defendant requested that Wells testify outside the presence of the jury, be ordered to answer questions involving confidential information, and thereby be forced to invoke a privilege. The trial court agreed. As relevant here, Wells refused to disclose what information was gathered by the national security function with which defendant was involved, but agreed that defendant, as a member of the team, helped gather information which was essential to national security, search and rescue and navigational assistance. The trial court found [t]he gathering function itself . . . to be irrelevant. Wells also testified that knowing the location of ships, planes, and other kinds of objects is important in defending the United States against its enemies, and that defendant thereby contributed to the countrys national security, but he refused to explain [w]hat type of enemy movements, activities, were being monitored that was of assistance to the United States in its defense. The trial court concluded that the type of enemy movements was irrelevant. Finally, Wells testified that in the course of repairing and maintaining the equipment, defendant may have been exposed to information stored in computers, but declined to disclose whether the equipment contained specific information about submarine activities of enemy fleets. The trial court found this information to be irrelevant, and also found that the inquiry would result in an undue consumption of time and would confuse the jury. (Evid. Code, 352.)
b. Discussion
Defendant contends the trial courts rulings give rise to several related questions: (1) In a capital case, does the defendant have a constitutional right to obtain and present mitigating evidence even if it is protected by a national security privilege? (2) If the defendant is denied the right to present such mitigating evidence, can the state nonetheless seek the death penalty on the theory that it is not the state, but the federal government, that is withholding the evidence? (3) In a capital case, can the court exclude details of a defendants employment as irrelevant?
Defendant does not argue there was error either in the trial courts rulings concerning the discovery of classified information or his motion to bar the death penalty, or in the federal courts grant of summary judgment with respect to defendants Freedom of Information Act complaint. His argument focuses instead upon the trial courts rulings concerning relevance and the exclusion of evidence under Evidence Code section 352 during defendants and Wellss testimony, and the signaling system between the prosecutor and Ball, representing the United States Government. Moreover, as defendant acknowledges, during the presentation of evidence there were no objections or rulings on the basis of national security. Therefore, the first two issues identified by defendant are not presented.
We turn to the third issue whether a court, in a capital case, may exclude details of a defendants employment as irrelevant. The Eighth and Fourteenth Amendments require that the sentencer in a capital case not be precluded from considering any relevant mitigating evidence, that is, evidence regarding any aspect of a defendants character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. (Frye, supra, 18 Cal.4th at p. 1015.) Nonetheless, the trial court still determines relevancy in the first instance and retains discretion to exclude evidence whose probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury. (People v. Williams (2006) 40 Cal.4th 287, 320; see Romano v. Oklahoma (1994) 512 U.S. 1, 12 [The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings]; Lockett v. Ohio (1978) 438 U.S. 586, 604, fn. 12 [Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendants character, prior record, or the circumstances of his offense].) The meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding from what it is in any other context. (McKoy v. North Carolina (1990) 494 U.S. 433, 440.) Thus, [r]elevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. (Ibid.; see Evid. Code, 210.)
Defendant contends that the trial courts repeated relevancy rulings favoring the prosecution were nothing more than a subterfuge, and that the courts implicit goal was to avoid having to rule on an assertion of a national security privilege. He also contends Evidence Code section 352, upon which the court relied in several of its rulings, was inapplicable because the information sought was not prejudicial, and would have taken little time to present.
We first consider the rulings made during defendants testimony. Defendant testified only at the guilt phase. Thus the challenged trial court rulings regarding his testimony are examined not in the context of his attempt to adduce penalty phase mitigating evidence, as defendant contends, but rather as evidence proffered in defense of the charged offenses. Defendants testimony regarding his work assignments was relevant to counter the implication that he left his assigned work area in order to stalk Black. Therefore, evidence establishing that he was assigned to work in areas where Black was assigned was relevant, but the precise project upon which defendant was working, or a more detailed description of the equipment used, was not. Similarly, evidence indicating that defendant felt entitled to invade the privacy of others because of his military and ESL experience arguably was relevant to his state of mind, but the content of the classified information that he helped gather was not. The courts rulings concerning relevance and the exclusion of evidence under Evidence Code section 352 were well within the courts broad discretion and do not demonstrate, contrary to defendants assertion, that the trial court was acting in concert with the prosecution and the United States Attorneys office . . . to ensure that the basis for the exclusion was not national security.
With respect to the signaling system set up between the prosecutor and Ball, defendant contends that the state actively collaborat[ed] with the federal government to withhold mitigating evidence from the jury. He claims the signaling system deprived him of his Sixth, Eighth, and Fourteenth Amendment rights, because it masked the true basis for the objections, that is, national security, and thereby denied him the opportunity to seek meaningful appellate review of the real basis for the exclusion of this critical evidence. Once again, these events occurred during the guilt phase, at a time when defendant was not proffering mitigating evidence. In addition, the record indicates the signals did not lead to any objections; rather, the prosecutor was objecting or preparing to object when the signals were received.
Nor did the trial courts challenged rulings regarding Wellss testimony, during the penalty phase, improperly limit the admission of mitigating evidence. The evidence presented fully informed the jury that defendant received a top-security clearance requiring that he be trustworthy, reliable, of unquestioned character, and loyal to the United States; he worked on a high frequency direction-finding network that assisted in search and rescue missions for aircraft or ships in distress; enemy location was one aspect of the information defendant would gather; the Secretary of Defense characterized all of the projects that defendant worked on as vital to the national defense; and much of his work remained classified at the time of trial. The precise information gathered, the type of enemy movements monitored, and whether the equipment contained information about the submarine activities of enemy fleets, was tangential and had no bearing upon defendants character or record, or the circumstances of his crimes.
2. Alleged improper limitation upon closing argument
Defendant contends the trial court erred by prohibiting defense counsel from arguing that defendants crimes were less serious than those of other capital defendants, in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution.[1] No error appears.
During closing argument, defense counsel stated, We need to look at this case and compare this case with other special circumstance killings . . . . At a sidebar conference, defense counsel repeatedly asserted he did not intend to comment on what case got what penalty. Rather, counsel sought to argue that this is not . . . the worst of the worst . . . , there are far worse cases, by referring to such defendants as Richard Ramirez, David Carpenter, and Ramon Salcido, and discussing the circumstances of their crimes.
The court ruled that counsel would not be permitted to engage in a comparative analysis of other death penalty cases or other murder cases . . . . Counsel was not allowed to mention specific cases, specific names, specific penalties, but he was permitted to say that this is not a child torture case or something like that. Following the sidebar conference, defense counsel argued to the jury that defendant, whose crimes involved a single incident brought on by severe emotional and personal stress and who did not kill as many individuals as he might have or seize hostages, was less deserving of the death penalty than a person who kills with the thought of avoiding capture, tortures victims, acts for mercenary reasons, or kills on multiple occasions over a long period of time.
Defendant now contends [t]he fact that a particular defendants crime is less aggravated than the crimes of others who have received the death penalty or especially that it is less aggravated than the crimes of persons who did not receive the death penalty is nonetheless a proper consideration for the sentencing body in deciding what sentence to impose. As set forth above, however, trial counsel repeatedly stated he did not seek to refer to the penalty imposed in any particular case. Therefore, this claim is forfeited.
Defendants claim also is without merit. On numerous occasions, we have upheld a trial courts refusal to allow defense counsel to compare the subject crime to other well-known murders (Peoplev. Hughes (2002) 27 Cal.4th 287, 400), or to note the penalty imposed in such cases (Peoplev. Sakarias (2000) 22 Cal.4th 596, 640), while allowing argument that there were other murderers worse than he (Peoplev. Benavides (2005) 35 Cal.4th 69, 110). [M]eaningful comparisons with other well-publicized crimes cannot be made solely on the basis of the circumstances of the crime . . . without consideration of the other aggravating and mitigating circumstances. (Peoplev. Roybal (1998) 19 Cal.4th 481, 529; Marshall, supra, 13 Cal.4th at pp. 854-855.) Here, counsels central point was that defendants murders were not the worst of the worst. He was not precluded from making such an argument, and ably did so.
3. Alleged instructional error
Defendant contends the trial court erred in refusing to give three proposed instructions concerning aggravating and mitigating circumstances. We disagree.
The first and second paragraphs of the first proposed instruction defined aggravating and mitigating circumstances, and therefore were duplicative of CALJIC No 8.88, which was given here, and which likewise defines aggravating and mitigating circumstances. Hence the trial court properly declined to give this portion of the proposed instruction. (Gurule, supra, 28 Cal.4th at p. 659.)
The third paragraph of the first proposed instruction provided: The fact that [defendant] has been found guilty beyond a reasonable doubt of the crime of murder in the first degree is not itself an aggravating circumstance. We previously have rejected a claim that a trial court erred in refusing to give a substantially similar instruction. (People v. Coleman (1989) 48 Cal.3d 112, 152-153 (Coleman).) We observed: The request was properly denied since the requested instruction was unnecessary and possibly misleading. There appeared no need to tell the jury that the murder conviction in the abstract, as distinct from the circumstances of the murder, is not an aggravating factor since no one had suggested otherwise. More seriously, the requested instruction might have been understood as a contradiction of the instruction properly given, that the jury should consider the statutory aggravating and mitigating factors, including the circumstances of the crime of which the defendant was convicted in the present proceeding ( 190.3, factor (a). (Id. at pp. 152-153.)
Defendants second proposed instruction provided: You may not treat the verdict and finding of first degree murder committed under [a] special circumstance[s], in and of themselves, as constituting an aggravating factor. For, under the law, first degree murder committed with a special circumstance may be punished by either death or life imprisonment without [the] possibility of parole. [] Thus, the verdict and finding which qualifies a particular crime for either of these punishments may not be taken, in and of themselves, as justifying one penalty over the other. You may, however, examine the evidence presented in the guilt and penalty phases of this trial to determine how the underlying facts of the crime bear on aggravation or mitigation.
As with defendants first proposed instruction, this instruction was unnecessary and possibly misleading. The trial court instructed the jury to consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances, and explained that [a]n aggravating factor is any fact, condition or event attending the commission of a crime which increases its guilt or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself. The court also instructed the jury that it could consider the circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true, but the jury could not consider both the existence of a special circumstance and the facts underlying the special circumstance. In other words, do not consider the same factors more than once in determining the presence of aggravating factors. Also, like defendants proposed instruction, an instruction given by the court explained that the penalty for a defendant who has been found guilty of murder in the first degree in a case in which a special circumstance has been found true is death or life imprisonment without the possibility of parole. These instructions adequately conveyed to the jury that it was required to consider the facts underlying the convictions and special circumstance findings, not the mere existence of the convictions and findings. Defendants proposed instruction was misleading to the extent it contradicted instructions directing the jury to consider the circumstances of the crime and the existence of any special circumstance. (See Coleman, supra, 48 Cal.3d at pp. 152-153.)
The third proposed instruction provided: In deciding whether you should sentence the defendant to life imprisonment without the possibility of parole, or to death, you cannot consider as an aggravating factor any fact which was used by you in finding him guilty of murder in the first degree or which was used by you in establishing the existence of any special circumstances which you have found to be true unless that fact establishes something in addition to an element of the crime of murder in the first degree. The fact that you have found [defendant] guilty beyond a reasonable doubt of the crime of murder in the first degree is not itself an aggravating circumstance. This instruction properly was refused, because it was erroneous and misleading. (Coleman, supra, 48 Cal.3d at pp. 152-153.) As noted above, the jury properly was instructed pursuant to section 190.3, factor (a), that it could consider the circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true. Moreover, as noted above, the jury was instructed not to double-count.
4. Constitutionality of death penalty statute
Defendant makes numerous claims that the death penalty statute violates the United States Constitution. For the reasons set forth below, we conclude there is no merit in these contentions.
Section 190.2, which sets forth the circumstances in which the penalty of death may be imposed, is not impermissibly broad in violation of the Eighth Amendment. (Peoplev. Zamudio (2008) 43 Cal.4th 327, 373.)
Section 190.3, factor (a), which allows the jury to consider, in choosing the appropriate penalty, [t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1, does not violate the Eighth or Fourteenth Amendments to the United States Constitution merely because those circumstances differ from case to case, or because factor (a) does not guide the jury in weighing these circumstances. (Tuilaepa v. California (1994) 512 U.S. 967, 975-976, 978-979; Peoplev. Stevens (2007) 41 Cal.4th 182, 211 (Stevens).)
The absence of a requirement that the state prove beyond a reasonable doubt that aggravating factors are true (except for other, unadjudicated crimes), that aggravating factors outweigh mitigating factors, and that death is the appropriate punishment, does not render the death penalty statute unconstitutional under the Fifth, Sixth, Eighth, or Fourteenth Amendments. (Peoplev. Cox (2003) 30 Cal.4th 916, 971 (Cox), disapproved on other grounds in Doolin,supra, 45 Cal.4th at p. 421, fn. 22.) Nor is there merit to defendants alternative claim that a preponderance of the evidence standard of proof is compelled for the findings that an aggravating factor exists, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate sentence, or that the jury should be instructed that there is no burden of proof. (Stevens, supra, 41 Cal.4th at p. 212.) The jury was instructed that [t]o return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole. That is sufficient. (Tuilaepa v. California, supra, 512 U.S. at p. 979; Stevens, at p. 212). Unlike the guilt determination, the sentencing function is inherently moral and normative, not factual [citation] and, hence, not susceptible to a burden-of-proof quantification. (Peoplev. Hawthorne (1992) 4 Cal.4th 43, 79.) Nothing in Cunningham v.California (2007) 549 U.S. 270, Apprendi v. New Jersey (2000) 530 U.S. 466, or Ring v. Arizona (2002) 536 U.S. 584, affects our conclusions in this regard. (Stevens, supra, at p. 212; Cox, supra, at pp. 971-972.)
The absence of any requirement that the jury make written findings with respect to which aggravating evidence is true, and that the findings be unanimous, does not deny due process or violate the Eighth Amendment right to meaningful review. (Stevens, supra, 41 Cal.4th at p. 212.)
Contrary to defendants arguments, the use of the words extreme in section 190.3, factors (d) and (g), and substantial in factor (g), does not render these factors unconstitutionally vague, arbitrary, or capricious, nor does it act as a barrier to the consideration of mitigating evidence or violate the Fifth, Sixth, Eighth, or Fourteenth Amendments. (Stevens, supra, 41 Cal.4th at p. 213.) The instructions in this case concerning section 190.3, factor (k), which were consistent with our guidance in Peoplev. Easley (1983) 34 Cal.3d 858, 878, footnote 10, allowed consideration of [a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendants character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial. (See Ayers v. Belmontes (2006) 549 U.S. 7, 15; Boyde v. California (1990) 494 U.S. 370, 381-382.)
The failure to require intercase proportionality review by either the trial court or on appeal does not violate the Fifth, Sixth, Eighth, or Fourteenth Amendment. (Pulley v. Harris (1984) 465 U.S. 37, 50-51; Cox, supra, 30 Cal.4th at p. 970.) Nor does the circumstance that intercase proportionality review is conducted in noncapital cases cause the death penalty statute to violate defendants right to equal protection and due process. (Turner, supra, 8 Cal.4th at p. 209; People v. Cox (1991) 53 Cal.3d 618, 690-691, disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) [C]apital and noncapital defendants are not similarly situated and therefore may be treated differently without violating constitutional guarantees of equal protection of the laws or due process of law . . . . (Peoplev. Manriquez (2005) 37 Cal.4th 547, 590.)
5. Cumulative error
Defendant contends that cumulative error committed at both the guilt and penalty phases requires reversal. We have found no error at the penalty phase. As explained above, defendant was not prejudiced by the exclusion of evidence intended to impeach Hirst, by the exclusion of defendants letters as evidence of his state of mind, or by any flaws in the felony-murder instructions. The few errors that may have occurred during defendants trial were harmless under any standard, whether considered individually or collectively.
III. Disposition
The judgment is affirmed in its entirety.
GEORGE, C. J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
NICHOLSON, J.*
* Associate Justice, Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Farley
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Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
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Opinion No. S024833
Date Filed: July 2, 2009
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Court: Superior
County: Santa Clara
Judge: Joseph F. Biafore, Jr.
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Attorneys for Appellant:
Ezra Hendon, under appointment by the Supreme Court, and David L. Saine for Defendant and Appellant.
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Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Ronald S. Matthias, Nanette Winaker and Michael E. Banister, Deputy Attorneys General, for Plaintiff and Respondent.
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Counsel who argued in Supreme Court (not intended for publication with opinion):
Ezra Hendon
1442A Walnut Street, No. 248
Berkeley, CA 94709
(510) 525-1596
Michael E. Banister
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5971
[1] As we previously have observed, a claim that defense counsels argument improperly was limited invokes an aspect of the right to counsel. (Peoplev. Marshall (1996) 13 Cal.4th 799, 854 (Marshall).) Hence, it is grounded in the Sixth, not the Eighth, Amendment.
