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S.C. Upholds Death Sentence on Retrial in Killing of Police Officer
By a MetNews Staff Writer
The California Supreme Court yesterday unanimously upheld the death sentence for a man convicted of murdering a Garden Grove police officer, and injuring two other officers and two civilians, in a 1980 barroom shooting.
John George Brown Jr. was convicted of killing Officer Donald Reed in 2000, for the second time. His original 1982 conviction of first degree murder with a special circumstance of intentionally killing a peace officer in the performance of his duties was affirmed on direct appeal in 1988, but his petition for writ of habeas corpus was granted in 1998.
The habeas ruling was based on a finding that police had violated Brady v. Maryland by failing to disclose that Brown tested positive for phencyclidine shortly after the shootings. A 4-3 majority of the high court held in In re Brown (1998) 17 Cal.4th 873 that the evidence could have supported the defense contention that the defendant was so high on PCP he could not have formed the premeditated intent to commit the murder.
Jurors at the first trial learned of a negative drug test but did not learn of the earlier, positive one that formed the basis for the habeas petition.
The surviving officers testified that they went into the Cripple Creek Saloon to arrest Brown on outstanding drug and assault charges after noticing his car parked outside. They said he initially cooperated, then suddenly pulled a.22-caliber
pistol from his jacket pocket and started shooting.
Reed was fatally shot in the chest. Brown was found about an hour later
crouching behind some bushes near the bar.
In the second appeal, court-appointed attorney Marilee Marshall of Pasadena argued that Brown’s rights under the state and federal ex post facto clauses were violated because the surviving officers and members of Reed’s family were allowed to give “victim impact” testimony at the penalty phase.
Such evidence, Marshall argued, should have been excluded because it was not permitted under the law in effect at the time of the first trial. Subsequent U.S. and California high court rulings said such evidence is admissible in the penalty phase of a capital sentencing trial.
Marshall also contended the evidence was more prejudicial than probative.
But Justice Janice Rogers Brown—who wrote the majority opinion in the 1998 case ordering the retrial and wrote for the unanimous court yesterday—said the appellate rulings on victim impact evidence were procedural and did not reflect a change in the law to which the ex post facto clauses would be applied.
She rejected a similar argument that Brown had been prejudiced by a change in the standard instruction on reasonable doubt between the two trials.
Deputy Attorney General Robert M. Foster argued the case for the state.
The case is People v. Brown, 04 S.O.S. 3545.
Copyright 2004, Metropolitan News Company