Metropolitan News-Enterprise


Friday, July 2, 2010


Page 1


High Court Upholds Death Sentence, Says Juror Was Properly Removed for Bias




Los Angeles Superior Court Judge Margaret Hay did not abuse her discretion in removing a juror who refused to deliberate and exhibited bias against the death penalty, the California Supreme Court ruled yesterday.

In a unanimous decision, the justices affirmed the conviction and death sentence of Darrel Lee Lomax, who also used the name Malik Hasan. Hay, who retired in 2005, sentenced Lomax in 1996 for the murder of Nasser Akbar, a shopkeeper, during a 1994 liquor store robbery in Long Beach.

Hay called the murder “cruel, calculated and coldblooded,” saying Lomax had “an anti-social, amoral code of murder and robbery,” according to the Long Beach Press-Telegram’s report of the sentencing.

Jurors also convicted Lomax of robbing the owner of a Long Beach laundromat as he walked to his car after closing the business, four days before the fatal shooting.

Three Eyewitnesses

The laundromat owner identified Lomax at trial, as did his accomplice in the liquor store robbery and the store’s security guard. The accomplice, Angela Toler, pled guilty to armed robbery and was sentenced to 10 years in prison.

The security guard, Cleavon Knott, initially failed to identify the pair in a field show-up conducted by police. But he went to the police the next day, he testified, and told them that Lomax and Toler were the robbers and Lomax was the shooter.

He lied initially, he said, because he recognized Toler as a resident of the neighborhood and a member of a violent gang, and feared for himself and his family. He changed his mind and came in the next day, however, out of respect for the victim.

He acknowledged that several months after that, he asked the police for, and received, assistance in having a number of traffic tickets dismissed. He had not previously asked for, or received, anything in exchange for cooperating, but he was afraid of going to jail and meeting up with Lomax, he explained.

The defense presented evidence that Toler regularly used drugs and alcohol, along with expert testimony that such use may affect a person’s perception of reality. The expert testified, however, that he had not interviewed Toler or read or heard her statement to the police, and had no idea whether her account of the robbery and shooting were accurate.

Jurors found Lomax guilty of murder and two robberies, with robbery-murder as a special circumstance.

Prior Shooting

In the penalty phase, prosecutors presented evidence that Lomax shot three people in Portland, Ore., one of whom lost an eye, during a robbery of the home of one of the victims. They also presented proof of an attempted carjacking for which Lomax served a prison term, that he attacked a deputy sheriff who was escorting him after a court hearing earlier in the case, and that he cursed and threatened witnesses who were in court to testify about the Portland shooting.

There was also victim impact testimony from Akbar’s family and others, including one of the police officers who arrived on the scene after the shooting and stayed with the victim until he died. The officer said he had known the victim since 1993 and considered him a kind man and a good friend.

The defense contended that the attack on the deputy was a mutual fight that began when the defendant objected to the deputy putting his hand on Lomax’s shoulder. Relatives of the defendant testified that he was a good and religious person.

His mother said she was shocked to learn of his earlier crimes, that he had not been raised to act that way, and that he could live a productive life in prison. Jurors returned a death penalty verdict, and the judge imposed that sentence.

Juror Removed

On appeal, the defense argued that Hay abused her discretion in removing a juror, identified only as No. 5, after a note was sent by the jury complaining that the juror was refusing to deliberate because of a “consciencious [sic] objection” to the death penalty.

The judge questioned Juror No. 5, who said he “tried to make an evaluation from the evidence” and “came up with the life position without the possibility of parole.”

Hay then questioned the foreperson, who said Juror No. 5 was “basically completely uncooperative” and not offering any reasons for his position, and that when asked to explain why he though the death penalty was unwarranted “he just would basically sit there and do nothing” and say “’I don’t know.’”

The foreperson added that the juror was asked if there were any set of circumstances in which the death penalty would be appropriate, and said he offered none.

Defense counsel objected that other jurors were trying to “browbeat” No. 5 into voting for the death penalty, and agreed that the judge could question all of the jurors.

Several said that No. 5 was “confused” or refusing to deliberate, and all agreed that the juror was conscientiously opposed to capital punishment, although there was disagreement as to whether the objection applied only to the case or to all cases, with one juror reporting that No. 5 said he would only impose the maximum penalty if the victim were a child.

Juror No. 5 explained that he had said he would consider the death penalty for a child murderer, but denied saying that was the only circumstance in which he would do so. He admitted that he had discussed possible factual scenarios that were not consistent with the evidence.

Hay decided to dismiss and replace the juror, she explained, because he was failing to deliberate and was “actually unqualified” due to his conscientious opposition to the death penalty. She denied a defense motion for mistrial, based on the alleged pressure being put on No. 5 by the other jurors, and deliberations continued— with an alternate replacing No. 5—for the remainder of the day, a Friday, with the death penalty verdict being returned Monday morning.

Justice Carol Corrigan, writing for the high court, said the trial judge acted properly because there was “ample evidence” that the juror lied on his questionnaire by denying fixed views on capital punishment, refused to deliberate in the penalty phase, and was biased against the death penalty.

That evidence, she said, met the high court’s standard that there be a “demonstrable reality” of inability to perform the duties of a juror in order to justify removal after deliberations have begun.

The case was argued in the high court by Assistant State Public Defender Jessica K. McGuire for the defendant and Deputy Attorney General David A. Voet for the prosecution.

The case is People v. Lomax, 10 S.O.S. 3667.


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