Metropolitan News-Enterprise


Friday, December 17, 2010


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S.C. Upholds Death Sentence for Accomplice in Fatal Robbery

Justices Reject Claim That Penalty Was Unfair Because Shooter Got Life Imprisonment




The California Supreme Court yesterday unanimously affirmed the death sentence for a defendant convicted in a botched robbery attempt in which his co-defendant shot the intended victim.

Justice Carol Corrigan, writing for the court, said Demetrius Howard failed to demonstrate that the death sentence was disproportionate to his own culpability, or that the court had any reason to reconsider its longstanding rule that a co-defendant’s sentence is irrelevant to the penalty determination.

Jurors, in separate trials, found Howard and Mitchell Funches guilty of the 1992 murder and attempted robbery of Sherry Collins in San Bernardino. Howard received the death sentence; Funches was sentenced to life imprisonment without possibility of parole.

The prosecution’s case against Howard included testimony by Cedric Torrence— who had know the defendant for several years and was the father of Howard’s nephew—that he, Howard, and Funches were at a house on the night Collins was shot. Howard and Funches, he said, talked about doing a “jacking” and were both carrying guns.

Several witnesses placed Howard at an apartment complex near the crime scene within a short time following the murder. A .357 magnum was discovered in shrubbery near there six days after Collins was shot, and Torrence testified that the gun was the one he saw Howard carrying.

Howard, who was arrested not long after visiting the apartment complex and a short distance away, testified. He confirmed that he was with Torrence and Funches earlier in the evening, and that he was in the area around the time Collins was shot, but denied talking about a “jacking,” carrying a gun, or having any involvement in the crime.

After jurors found Howard guilty of first degree murder with a robbery special circumstance, and of attempted robbery, the trial went into a penalty phase. The prosecution presented evidence of two prior violent felonies by Howard, who was convicted in each instance of assault with a deadly weapon.

The defense presented no penalty phase evidence, but argued that Howard should not receive the death penalty because he was not the shooter.

Corrigan, writing for the Supreme Court, said the death sentence was not unfairly imposed on Howard, because he was “a major participant in a very dangerous felony,” was on parole at the time, personally confronted the victim with his weapon drawn, and had severely injured the victims of his previous crimes.   

Funches’ sentence is irrelevant to the review of Howard’s, the justice went on to explain, because it does not establish that Howard’s sentence was arbitrary or unfair. There was no evidence presented at Howard’s trial as to what Funches’ prior record consisted of, Corrigan noted, and since the two had separate trials, the jury that deadlocked in the penalty phase for Funches—resulting in his receiving a life sentence—did not hear all of the evidence that led Howard’s jury to conclude he should be executed.

Corrigan also rejected the defense contention that San Bernardino Superior Court Judge Stanley W. Hodge, who presided over both defendants’ trials, abused his discretion by denying Howard’s new trial motion. The motion was heard after the death penalty verdict was returned but before sentencing.

The defense contended that Torrence, who was in custody on a misdemeanor charge, was coincidentally on the same jail transport bus as Howard on the day Howard was found guilty, and that Torrence then admitted lying by implicating Howard and claimed that police had threatened to charge Torrence with being involved because he had been with Howard and Funches that night.

In support of the motion, defense counsel offered Howard’s declaration along with those of Funches—who said he was with someone else the night of the murder—and two inmates who said they were on the bus and heard Torrence admit he had lied. Funches said in his declaration that he lacked a clear memory of the events on the night of the shooting because he was using drugs, but that he believed he had probably fired the fatal shot.

Prosecutors responded that Funches and the two inmates, both of whom had lengthy records and one of whom had documented mental health issues, lacked credibility.

Hodge agreed. Having presided over Funches’ trial, he said, he believed “there would be serious, serious problems in anybody believing what Mr. Funches had to say about this matter.”  As for the other inmates, the judge said their past records weakened the strength of their claims, and even if their account of Torrence’s statements was true, Torrence’s statements “were what you would expect from someone in that situation” and not necessarily true.

Finally, Hodge said, he was inclined to believe Torrence testified truthfully at trial because his testimony was corroborated by other events—the discovery of the gun, the identification of someone matching Howard’s description by multiple witnesses, and the number of people who testified they aw Howard and Funches together that night, including one who saw them leave together from the house they had visited with Torrence.

Corrigan said the trial judge’s ruling was entitled to deference. There was no reason, she said, to disagree with Hodge’s conclusion that even if jurors had heard what Torrence allegedly said on the bus, they would not have given Howard a more favorable verdict.

The case is People v. Howard, 10 S.O.S. 6928.


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