Metropolitan News-Enterprise


Friday, July 26, 2002


Page 1


Limitation on Voir Dire Leads to Reversal of Death Sentence


By KENNETH OFGANG, Staff Writer/Appellate Courts


A convicted murderer whose attorney was not permitted to ask potential jurors whether they would automatically vote for a death sentence for someone who had killed before was deprived of an impartial jury in the penalty phase of his trial, the state Supreme Court ruled yesterday.

The high court unanimously overturned the death sentence imposed by Alameda Superior Court Judge Stanley Golde on Randall Scott Cash, but upheld Cash’s conviction for the murder of Bud Smith, in whose home he rented a room. Justices also upheld the finding that Smith was killed in a robbery, along with Cash’s conviction of the attempted murder of Smith’s girlfriend, Susan Balestri.

Cash becomes the first defendant to have a death sentence overturned this year. The Supreme Court has upheld nine death sentences.

During voir dire, Cash’s lawyer sought to ask prospective jurors whether there were “any particular crimes” or “any facts” that would cause them “automatically to vote for the death penalty.” The judge said the questioning was improper because “we’re restricted to this case.”

Uncharged Murders

Counsel later explained, outside the presence of the venire, that the defense wanted to explore whether jurors might be willing to consider a life sentence for a defendant who had killed earlier, without revealing Cash had killed his grandparents. The judge responded that since the prior murders were not charged in the case before the court, no questioning related to them would be permitted.

“You cannot ask anything about the facts that are not charged in the information, period,” Golde ruled.

In the guilt phase, witnesses testified that Smith was a cocaine dealer, and that he provided drugs to Cash. There was evidence that Cash had lost his job, was in financial difficulties, had argued with Smith because he was behind in his rent, and had talked about possibly robbing Smith of money and drugs.

Balestri, who had been shot four times and beaten with a wooden baton and a rifle, survived and testified.

In the penalty phase, the prosecution presented evidence that when he was teenager, Cash had killed his sick and elderly grandparents after an argument at their home in Kansas. Cash spent two years in a treatment facility before being released.

The defense responded by presenting evidence that the defendant had overcome a difficult childhood, most of which he had spent living with his grandparents after his parents’ marriage broke up while he was an infant, to become a steady, dependable worker before he lost his job.

Psychiatric Testimony

Cash testified that he had become a regular user of alcohol and drugs, including cocaine that he bought from Smith. His attorneys presented psychiatric testimony that he had long suffered from depression that had gone untreated, and that his inability to control his emotions was exacerbated by his substance abuse.

 Justice Joyce L. Kennard, writing for the high court, said it was constitutional error for the trial judge to bar all questioning of potential jurors with regard to prior murders.

“Prospective jurors may be excused for cause when their views on capital punishment would prevent or substantially impair the performance of their duties as jurors,” Kennard explained. “…Because the qualification standard operates in the same manner whether a prospective juror’s views are for or against the death penalty…it is equally true that the ‘real question’ is whether the juror’s views about capital punishment would prevent or impair the juror’s ability to return a verdict of life without parole in the case before the juror.”

Thus, the justice explained, prosecutors have been permitted to ask jurors whether they could impose the death penalty in a felony-murder case, on a defendant who did not personally commit the murder, on a young defendant, on a defendant who had not previously killed, or in a case where the facts were not “extreme.”

Golde should have, under the same principle, permitted Cash’s lawyer to ask whether jurors could impose a life sentence on a defendant who had killed before, Kennard said.

“In prohibiting voir dire on prior murder, a fact likely to be of great significance to prospective jurors, the trial court erred,” she wrote, adding that most of the court’s decision on the issue had been issued after Cash’s 1992 trial.

The justice distinguished cases holding that judges may exclude voir dire questioning “about capital punishment in the abstract” and “without regard to the evidence produced at trial.”

The trial judge, she explained, may bar questions that are “so specific” as to call upon venire members to prejudge the evidence in aggravation and mitigation. But a judge goes too far if he or she “preclud[es] mention of any general fact or circumstance not expressly pleaded in the information,“ Kennard reasoned.

“Because the trial court’s error makes it impossible for us to determine from the record whether any of the individuals who were ultimately seated as jurors held the disqualifying view that the death penalty should be imposed invariably and automatically on any defendant who had committed one or more murders other than the murder charged in this case, it cannot be dismissed as harmless,” she added.

The case is People v. Cash, 02 S.O.S. 3779.


Copyright 2002, Metropolitan News Company