Metropolitan News-Enterprise


Friday, March 21, 2008


Page 1


S.C. Throws Out Death Sentence in Killing of L.A. Police Officer

Exclusion of ‘Lingering Doubt’ Evidence Called Erroneous, Prejudicial by Unanimous Court




The California Supreme Court yesterday unanimously reversed Kenneth Gay’s death sentence for the 1983 murder of Los Angeles Police Officer Paul Verna, saying the trial judge erred in limiting evidence that the defense contended would show that Gay’s co-defendant may have been the lone shooter.

 Such evidence was relevant to show the existence of a mitigating factor, Justice Marvin Baxter wrote for the court, adding that the exclusion of the evidence was prejudicial because there was no physical evidence to tie Gay to the murder weapon. The prosecution theory was that Gay and Raynard Cummings passed a single gun between them, and shot Verna to avoid being arrested for a series of robberies.

Verna was shot six times after he stopped the defendants’ vehicle in the Lake View Terrace area of the San Fernando Valley. The two were tried jointly before separate juries, which found them guilty of first degree murder, with special circumstances of killing an officer in the performance of his duties and killing to avoid arrest.

The juries also found that each defendant personally used a firearm during the commission of the crime. The convictions and sentences were affirmed on direct appeal.

Sentence Thrown Out

Gay’s sentence was thrown out, however, in 1998 by the state high court, after its designated factfinder in the case—Los Angeles Superior Court Judge J. Stephen Czuleger, now the presiding judge—found that Gay’s trial counsel, Daye Shinn, had failed to conduct an investigation into mitigating evidence and that such evidence was discoverable with reasonable investigation.

Shinn was disbarred in 1992 in connection with unrelated matters.

The Supreme Court granted Gay a retrial as to penalty only, with took place in 2000 before Los Angeles Superior Court Judge L. Jeffrey Wiatt, who has since died.

Prosecutors presented evidence of the circumstances of the crime, including the four robberies that the defendants and their wives allegedly committed prior to the fatal stop.

They also presented evidence of other violent or potentially violent crimes committed by Gay, including the firebombing of the home of an ex-girlfriend’s parents after the couple broke up, of a jailhouse threat to kill Cummings’ wife, and of a 1988 attempt to enlist Gay’s by-then ex-wife in an effort to escape.

Wiatt allowed eyewitnesses who had testified at the first trial to testify for the defense at the second trial, and also admitted medical evidence which the defense argued showed that Cummings may have been the lone gunman. But he excluded other witnesses whom the defense said would support their “lingering doubt” argument, agreeing with the prosecution that the identification of the gunman was not a relevant issue in the penalty retrial. 

Wiatt also instructed jurors that it was “conclusively proved by the jury in the first case that this defendant did, in fact, shoot and kill Officer Verna” and that the jury was to “disregard any statements . . . and . . . any evidence to the contrary during the trial.” 

The exclusion of the additional witnesses, Baxter said, was an abuse of the trial judge’s discretion and “crippled” the defense, an error that the justice said was compounded by the judge’s instructions.

Evidence of Innocence

Baxter cited People v. Terry (1962) 57 Cal.2d 538, which held that evidence of the defendant’s innocence was admissible at a penalty retrial. The fact that the death penalty law in effect at the time of Terry was subsequently struck down and replaced by the current law does not require a different result, the justice said.

Courts in other states have cited Terry in reaching similar conclusions, Baxter added.

The justice went on to reject the prosecution contention that the exclusion of the evidence was harmless beyond a reasonable doubt because there was substantial evidence of aggravating circumstances.

“The combination of the evidentiary and instructional errors presents an intolerable risk that the jury did not consider all or a substantial portion of the penalty phase defense, which was lingering doubt,” Baxter wrote. “The defense could have had particular potency in this case, given the absence of physical evidence linking defendant to the shooting and the inconsistent physical and clothing descriptions given by the prosecution eyewitnesses.”

He elaborated:

“Had the jury been allowed to hear—and consider—the four statements in which Raynard Cummings claimed to be the sole shooter, the testimony of the four defense eyewitnesses excluding defendant as the shooter, and the testimony that defendant nonetheless was the man who came out of the car to retrieve a weapon from the ground (thus offering an explanation why the prosecution eyewitnesses had been able to recognize him), there is a reasonable possibility the jury would have selected a different penalty.”

While all seven justices joined in the opinion, Justice Kathryn M. Wedegar, joined by Justice Joyce L. Kennard and Presiding Justice James J. Marchiano of Div. One of the First District Court of Appeal—sitting in place of Chief Justice Ronald M. George, who recused himself—said the court should go further and abrogate a suggestion in its prior opinion, In re Gay (1998) 19 Cal.4th 771, that lingering doubt is not a proper defense to the death penalty.

Baxter, in a footnote, said it was unnecessary to determine whether lingering doubt is a proper defense when the penalty phase takes place before the same jury that heard the evidence in the guilt phase.

The case was argued in the Supreme Court by Sunnyvale attorney Therene Powell, by appointment, for the defendant and by Deputy Attorney General Lance E. Winters—a candidate for Los Angeles Superior Court judge—for the prosecution.

The case is People v. Gay, 08 S.O.S. 1602.


Copyright 2008, Metropolitan News Company