Metropolitan News-Enterprise


Friday, February 6, 2009


Page 3


S.C. Upholds Second Death Sentence in Killing of West Covina Officer




The California Supreme Court yesterday affirmed the second death sentence imposed on Michael Anthony Jackson for the murder of a West Covina police officer in 1983.

The justices unanimously rejected all claims of error on the part of Los Angeles Superior Court Judge Charles Horan, who presided over a penalty retrial in 2002. The second trial was necessitated by a 1998 ruling that a deputy public defender who represented Jackson at the first trial should have presented mitigating evidence that Jackson had been choked by his mother as a boy, that he had once been diagnosed as schizophrenic and that use of PCP might have affected his consciousness of the killing.

The first trial resulted in Jackson’s conviction of first degree murder with special circumstances of killing a police officer in the performance of his duties.

Evidence presented at the second trial showed that Officer Ken Wrede, responding to a report of a possibly intoxicated person, observed Jackson and radioed for backup because he thought Jackson might be under the influence of PCP. When Jackson ignored the officer’s demands that he stop walking and sit down on the curb, the officer allegedly tapped him with a billy club, and a fight ensued in which the officer was unable to subdue Jackson using his baton and mace before the defendant uprooted a tree and swung its stake at the officer.

Wrede went to his car, but Jackson followed him and ripped the car’s shotgun rack from the vehicle. The driver of a passing vehicle testified that Jackson was able to move the slide and load the weapon while the gun was still in the rack, but that the gun did not fire and Jackson put the gun, and then his hands, on the roof of the vehicle as if to give up.

When Wrede started to walk around the vehicle, the witness said, Jackson picked up the shotgun and shot the officer in the head. He subsequently pointed the gun at a sheriff’s deputy who reached the scene after the shooting, and threatened to shoot the deputy, before another West Covina officer came up behind him and released his dog, who bit Jackson and forced him to drop the gun.

It eventually took the sheriff’s deputy, the K-9 officer, and another officer who had come up on a motorcycle to handcuff and arrest Jackson.

In addition to testimony about the crime and subsequent interrogation, in which Jackson indicated that he thought he was being charged with killing a police officer with a shotgun, even though no one had told him that, prosecutors presented evidence that Jackson had sodomized a young soldier seven years earlier, participated in two robberies when he was 15, was involved in a violent altercation with police less than two months prior to the shooting, and was convicted of burglary in 1974.

In addition to evidence of the defendant’s drug and family problems, the defense presented testimony that Jackson had “borderline intellectual abilities,” with his IQ testing between 70 and 90, and that prison records showed he was unlikely to harm inmates or staff if sentenced to death or life imprisonment without parole.

Jurors returned a death penalty verdict, and Horan pronounced the second death sentence.

On appeal, Deputy State Public Defender Craig Buckser argued that Horan erred in failing to continue the trial in light of Atkins v. Virginia (2202) 536 U.S. 304, which barred execution of the mentally retarded.

At the time of trial, which began 10 days after Atkins was decided, defense counsel argued that in view of the evidence regarding the defendant’s limited educational functioning, the case should be continued until the Legislature defined mental retardation and established a procedure for determining it, or alternatively that the issue should be submitted to the jury.

“I’m not going to continue the case based on what the Legislature may or may not do,” Horan said in denying the defense motion. “The period of time for a bill to get through our legislature at a minimum you are talking months, counsel.  It is speculative and I will not do it.  I cannot see any reason at all to continue the matter.  None at all.  If you have evidence that your client is mentally retarded, that is evidence that you would put on in any event.  The record will be clear that it is an issue and both sides should be prepared to put on whatever they have in the issue.  These cases are not going to be resolved at the trial level.  Not for many years will there be given a standard to give to the jurors.  I’m not going to try to explain to the jury that if the person is ‘mentally retarded’ they should not impose the death sentence.  I don’t feel equipped to do that.  There would be no guidance here for this court to do it and it would be an exercise in futility.”

The Legislature established procedures for applying Atkins by enacting Penal Code Sec. 1376 in 2003.

Moreno, in his opinion for the high court, said the trial judge approached the issue correctly, since there was no guidance from the high court as to how trial courts were to implement Atkins. The issue should be considered on habeas corpus rather than direct appeal, he added.

Moreno also rejected the argument that the trial prosecutor committed misconduct by urging jurors, during final argument, to think of how they would feel if someone they loved dearly died “in a gutter” like the victim did, “choking on his own blood.” 

Jackson’s lawyer, Anthony Robusto, asked for a limiting jury instruction telling the jurors “not to put yourself in the place of the victim’s family; or to consider how you would feel under such circumstances,” which Horan denied.

Such argument would have been improper as an appeal to jurors’ emotions in the guilt phase, but the issue of victim impact is relevant in the penalty phase, Moreno explained.

“While we do not encourage prosecutors to use such graphic and dramatic images, the prosecutor’s comments in the present case were brief...and ‘did not exceed the bounds of propriety,’” the justice reasoned, citing People v. Medina (1995) 11 Cal.4th 694.

The opinion was joined by Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin Baxter, and Kathryn M. Werdegar.

Justice Ming Chin, joined by Justice Carol Corrigan, concurred separately, taking issue with Moreno’s suggestion that the prosecutor’s argument bordered on the improper.

“Because the evidence supported the comments, they were entirely proper,” Chin wrote, adding that cases suggesting otherwise were decided before the U.S. Supreme Court ruled that victim impact evidence and argument are permitted in the penalty phase of a capital trial.

The case is People v. Jackson, 09 S.O.S. 700.


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