Metropolitan News-Enterprise


Tuesday, August 12, 2008


Page 3


Supreme Court Rules Defendant May Waive Jury for Death Penalty Retrial




A defendant whose jury deadlocks in the penalty phase of a capital murder trial may waive the use of a jury for the retrial, the California Supreme Court unanimously ruled yesterday.

The justices affirmed the death sentence of Jackie Ray Hovarter, convicted of killing a young woman, Danna Walsh, who was abducted, raped, and strangled. Her body was found under the Scotia Bridge, about 30 miles south of Eureka in Humboldt County, in August 1984.

Hovarter, a truck driver from the San Francisco Bay area who transported wood pulp from a mill near the crime scene, was charged with the murder after he was identified as the perpetrator of another crime—the abduction, rape, and shooting of a teenager in Mendocino County in December 1984.

While in jail, Hovarter allegedly confessed both crimes to his cellmate, Gary Marolla. Marolla, who was being held on drug and weapons charges, negotiated a deal in which he received 111 days’ credit for time served and probation in exchange for his testimony against Hovarter.

Besides Marolla, prosecutors called the victim of the Mendocino County crime, identified only as A.L. Humboldt Superior Court Judge William F. Ferroggiaro Jr. ruled that her testimony—in which she explained how Hovarter tied her to a tree, assaulted her, shot her twice and left her for dead—was more probative than prejudicial, citing the similarities between the crimes. Both of the attacks occurred along U.S. 101—which Hovarter traveled on his route between his home, the mill, and the Oakland yard to which he delivered the wood pulp—and the modus operandi were similar, the judge ruled.

Much of the case against Hovarter was circumstantial, including evidence that on the morning of the crime, he arrived at the mill more than two hours later than usual, and about an hour after the murder occurred.

Jurors found Hovarter guilty of first degree murder, kidnapping, and forcible rape, with special circumstances of rape and kidnapping. After jurors deadlocked in the penalty phase, Hovarter agreed to have the judge alone decide the sentence, and Ferroggiaro opted for the death penalty.

On appeal, the defense argued that the jury waiver should not have been permitted, but Justice Kathryn M. Werdegar said there was no statutory or constitutional bar to the waiver.

The justice, who noted that there was no claim that the waiver was involuntary or otherwise defective, rejected the contention that Penal Code Sec. 190.4, which says that the judge “shall order a new jury impaneled” following a deadlock in the penalty phase, precludes a waiver.

“Although defendant’s arguments bear the patina of logic, he engages in such a minute examination of the trees that he misses a very large forest,” the justice wrote, because both the state and federal constitutions recognize a defendant’s right to waive constitutional protections, including that of a jury trial.

The meaning of Sec. 190.4, Werdegar explained, is that:

“If a jury was not waived for the penalty phase of trial, it shall be presumed the defendant also desires a jury for any retrial of that phase.  This presumption, however, can — as in all situations in which the jury trial right attaches — be overcome with a knowing and intelligent waiver, personally given in open court.”

The high court also rejected the defense contention that Marolla, who acknowledged a history of criminal activities and numerous efforts to trade information about such activities—including information extracted in jailhouse conversation—to police for money or sentencing considerations, should not have been allowed to testify.

While Marolla’s testimony included some contradictions, Werdegar explained, it also included facts that could not have been revealed to him by anyone other than the actual killer.

There was no showing, Werdegar said, that Marolla was so inherently unbelievable as to justify an exception to the usual rule that the testimony of a “dubious” witness may be impeached and may be the subject of a jury instruction, but will not normally be excluded.

The case is People v. Hovarter, 08 S.O.S. 4839.


Copyright 2008, Metropolitan News Company