Metropolitan News-Enterprise


Friday, July 16, 2004


Page 1


S.C. Overturns Death Sentence, Says Answers to Questionnaire Insufficient to Disqualify Jurors


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday overturned the death sentence imposed in 1990 on a Bay Area man for the killing of three people, including his mother and stepfather.

In a unanimous decision, the justices said that a Contra Costa Superior Court judge erred in rejecting five proposed jurors merely because their responses to an inquiry on a questionnaire indicated some level of opposition to the death penalty.

Because the specific question and the responses were too ambiguous to establish that the potential jurors would be unwilling to follow the law, Chief Justice Ronald M. George explained, the judge should have asked follow-up questions. His failure to do so, the chief justice went on to say, violated Richard Bert Stewart’s constitutional right to trial by a jury of his peers.

The trial judge, Michael Phelan, was later elevated to the Court of Appeal and retired in 1998.

Yesterday’s ruling leaves intact Stewart’s convictions for the murders of Weldon Ardell Pillow, Gloria Pillow, and Murray Lucas, a boarder who lived with the Pillows, along with the multiple-murder special circumstance finding. Stewart now faces three life sentences without the possibility of parole, or a new penalty trial.

The victims were shot to death just a few months after Stewart left state prison on parole. Prosecutors linked Stewart to the crime through a witness who saw him outside the house right after the shooting, and presented testimony from relatives who said he had test-fired a gun on their property not long before the shootings.

Police recovered ballistic evidence from the relatives’ premises, and a criminalist opined that the same .22-caliber handgun may have been used to kill the victims. Prosecutors also presented testimony that Stewart had taken such a gun in a robbery right before the test firing, and that he had called his cousin after the shootings and told him that it was a matter of “life or death” that the cousin tell police that the gun he test fired was not a .22.

The prosecution also presented letters written by Stewart in prison, blaming his mother and stepfather for his incarceration, along with testimony that he once told the victims’ neighbors that being jailed made him “what he is today, and he’s not responsible for his actions, whatever they may be,” and that “society would just have to deal with that.”

The same neighbors testified they heard gunshots the night of the killings and heard someone scream “No, Richard, no” at that same time.

In the penalty phase, prosecutors presented evidence that Stewart had committed several crimes of violence, including two after he was arrested for the murders—a telephone threat to “reach out and touch” the owner of the stolen gun “real hard” if he testified in the penalty phase, and the stabbing of a fellow jail inmate with a pencil.

The state high court rejected all of the defense challenges to the conviction, including a claim the trial court erred in denying a defense motion to immunize a witness who exercised his right to silence. Both prosecution and defense suggested that the witness may have had a role in the killings, or may have disposed of evidence.

It is not clear that judges have the power to grant immunity, which is an executive function exercised by prosecutors, the chief justice said. And assuming the courts do have that power, he continued, it is not appropriate to exercise it when there is good reason to believe that the effect will be to allow a person involved in serious crimes to avoid responsibility.

In reversing the death sentence, however, the court cited the “poor phrasing” of a question about the death penalty on the juror questionnaires and the judge’s decision not to question jurors who answered the question in the affirmative. The case was tried after the adoption of Proposition 115, which eliminated the right of counsel to participate in voir dire—a right the chief justice noted has since been reinstated by the Legislature.

The question was, “Do you have a conscientious opinion or belief about the death penalty which would prevent or make it very difficult for you...[t]o ever vote to impose the death penalty?”

The five venire members whose disqualification was contested on appeal each answered “Yes” by checking a box on the form, and added the following comments in space provided to explain: “I do not believe a person should take a person’s life.  I do believe in life without parole”; “I am opposed to the death penalty”; “I do not believe in capit[a]l punishment”; “In the past, I supported legislation banning the death penalty”; and “I don’t believe in irrevers[i]ble penalties. A prisoner can be released if new information is found.”

The chief justice said that none of those responses were sufficient, in and of themselves, to sustain a challenge for cause, particularly since the questionnaire called for an affirmative response even if the venire member’s personal views would merely make it “very difficult” to vote for the death penalty.

Disqualification based solely on such a response, George explained, violates Wainwright v. Witt (1985) 469 U.S. 412, in which the Supreme Court held that a juror’s predisposition to oppose the death penalty is not disqualifying unless it would “prevent or substantially impair the performance of his duties.”

The chief justice elaborated:

“A juror might find it very difficult to vote to impose the death penalty, and yet such a juror’s performance still would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow the trial court’s instructions by weighing the aggravating and mitigating circumstances of the case and determining whether death is the appropriate penalty under the law.”

It appears, George went on to say, that Phelan “erroneously equated (i)†the nondisqualifying concept of a very difficult decision by a juror to impose a death sentence, with (ii)†the disqualifying concept of substantial impairment of a juror’s performance of his or her legal duty, and failed to recognize that [the questionnaire] standing alone, did not elicit sufficient information from which the court properly could determine whether a particular prospective juror suffered from a disqualifying bias under Witt....”

The case is People v. Stewart, 04 S.O.S. 3629.


Copyright 2004, Metropolitan News Company