Metropolitan News-Enterprise


Friday, August 14, 2009


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S.C. Upholds Death Sentence in Murder of Bay Area Woman

Moreno, Dissenting, Argues Potential Juror Should Not Have Been Stricken Due to Anti-Death Penalty Views




The California Supreme Court yesterday upheld the death sentence for a man convicted of killing a Hayward woman in her home and attempting to kill the woman’s 10-year-old daughter, who was raped and sodomized.

Justices unanimously affirmed Michael M. Martinez’s convictions on charges of first-degree murder and attempted murder, with the special circumstance that the murder was related to the commission or attempted commission, or flight after the commission of, a lewd act on a child.

By a vote of 6-1, the court upheld the death sentence. Justice Carlos Moreno, dissenting, argued that Martinez is entitled to a new sentencing trial because Alameda Superior Court Judge Jeffrey W. Horner erroneously excluded a potential juror because of her reservations about the death penalty.

Lisa White was killed in December 1990. Her 10-year-old daughter, identified as Tara O., said she was sexually assaulted by Martinez, whom she knew because he had frequently visited his then-girlfriend, who served as a babysitter, at the house.

Tara said that after leaving the bedroom, Martinez struck White—who was out when Martinez came in but had just returned to the house—repeatedly with a hammer and then stabbed her with a knife from the kitchen. Medical evidence was consistent with her testimony about the murder of her mother and the assault on her, and DNA evidence strongly connected Martinez to the assault as well.

Defendant’s Testimony

Martinez, testifying in his own defense, admitted killing White but denied having raped Tara or even seen her. He claimed that he and White had injected methamphetamine and engaged in consensual sex, but that she attacked him with a hammer after he refused her demand for more drugs, and that he became angry and beat her with the same hammer.

In the penalty phase, prosecutors presented evidence tying Martinez to an uncharged 1989 murder in the area.

On appeal, the defense contended that Horner erred in striking two potential jurors, identified as B.S. and E.H., based on their opposition to the death penalty.

B.S. said in her questionnaire she was “strongly against” the death penalty, but also checked a box saying she did not “hold any religious, moral feelings or philosophical principles” that would prevent her from voting for the death penalty in the case. During voir dire, she professed to have an open mind about the issue, but also said she had “very strong views against the death penalty,” and that she would be “more inclined not to” impose it but “could do it if” she had to.

E.H. wrote in her questionnaire that she was “moderately against” capital punishment but might vote for it “if a crime was really, really awful.” As examples, she cited crimes involving multiple victims.

Juror Response

After the prosecutor explained that the case did not involve multiple victims, and asked if she still thought she could vote for the death penalty, the potential juror said she “didn’t want to think about it in the abstract,” but that there was “a possibility that I could.”

She also said she believed that capital punishment discriminates against minorities, and that while “each case is different,” the fact that the defendant was Hispanic troubled her.

When Horner asked if she had “a political or social agenda,” she said she did not, and added that “realistically, if I had to put a number on it, it would be like, say 10 percent possibility I could vote for the death penalty.”

Discretion Not Abused

Chief Justice Ronald M. George, writing for the high court, said the trial judge did not abuse his discretion in striking the two women from the panel for cause.

The chief justice explained that a prospective juror’s views for or against capital punishment are grounds for disqualification only if they would prevent the person from performing his or duty to base a verdict solely on the evidence and the law. But where the venire member is ambiguous in his or responses, the trial judge may order recusal based on his or her “definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror,” George explained.

“The trial court’s impression of the prospective juror’s true state of mind is entitled to deference under the circumstances apparent in the present case,” the chief justice wrote, emphasizing that the record clearly showed that while both women allowed for the possibility of imposing the death penalty, they were both resistant to efforts to probe the depth of their feelings.

Moreno, in his dissent, argued that the recusal of E.H. was reversible error with respect to the penalty determination.

He explained:

“Although no one can fault the trial court for what was obviously a conscientious and earnest effort to grapple with this difficult question, the record does not support the determination that E.H. was unable to fulfill her oath....The [trial] court concluded that E.H. was not lying, and did not have a hidden agenda. Thus, although reviewing courts will generally defer to trial courts on matters of credibility, here the trial court made clear it found that E.H.’s statements were credible.

“If that is the case, then E.H. was not lying when she said that she could impose the death penalty in some cases, if the circumstances were truly aggravating. Indeed, the trial court expressly concluded that E.H. was not among the class of persons who could never vote for the death penalty. Nor did E.H. take the position that only certain of the statutory special circumstances were worthy of the death penalty. She did not rule out the possibility that she could impose the death penalty in the present case in which the special circumstance was that the murder was committed in connection with the commission of lewd acts on a child under the age of 14.”

E.H.’s apparent beliefs that death penalty opponents should be allowed to serve on juries and that the death penalty discriminates against minorities, Moreno declared, would have been a proper basis for a peremptory challenge, but did not justify striking her from the panel for cause.

The case is People v. Martinez, 09 S.O.S. 4879.


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