Supreme Court Upholds Death Sentence for Two Banning Killings

Tuesday, August 23, 2011

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Supreme Court Upholds Death Sentence for Two Banning Killings

Justices, Over Werdegar Dissent, Reject Claim Juror Was Improperly Excused

By KENNETH OFGANG, Staff Writer

The California Supreme Court yesterday affirmed the death sentence for a Banning man who committed two murders in that city in early 1994.

The court was unanimous in upholding a Riverside Superior Court jury’s verdict that Crandell McKinnon was guilty of two counts of first degree murder and two counts of being a convicted felon in possession of a firearm.

Justices also upheld the death sentence, 6-1. Dissenting Justice Kathryn M. Werdegar argued for a new penalty trial on the ground that a juror whose questionnaire suggested antipathy toward the death penalty was precipitously excused.

Witnesses said McKinnon walked up to a stranger, Perry Coder Jr., 22, outside the motel where the victim was living with his pregnant fiancée, then shot him twice in the head for no apparent reason.

Second Murder

Six weeks after the Jan. 4 killing, Gregory Martin was shot and killed in another part of Banning. The murder weapon was found in a car McKinnon was riding in, and a cellmate testified that McKinnon admitted both murders.

A police sergeant testified that he had searched the area after the shooting, and found a witness who testified that he witnessed an argument between “Moto”—Martin’s nickname—and “Popeye,” a name with which the sergeant associated McKinnon, that ended with Popeye taking two shots at Moto.

Testimony revealed that Martin had been a member of the Bloods gang, and that McKinnon was a member of the Crips. The defendant’s cellmate, Harold Black, said McKinnon told him the Martin shooting was in retaliation for the shooting of a local Crips gang member by a member of the Bloods years earlier.

The jury found McKinnon guilty on all counts and found true the special circumstance that he had committed multiple murders.

In the penalty phase, the prosecution focused on the nature of the murders and the defendant’s prior crimes. He had been convicted of robbery and of illegal handgun possession, and other evidence linked him to five other criminal episodes, including a robbery of a teacher at a school cafeteria when he was a teenager and the possession of a metal shank while awaiting trial for the murders.

The defense focused on his difficult childhood, including physical and emotional abuse at the hands of his father, and later his stepfather.

Jurors returned a death penalty verdict. Judge Patrick Magers rejected the automatic motion for modification of the verdict and imposed the sentence.

The high court rejected claims of error in the guilt and penalty phases of the trial, including McKinnon’s contention that he should have received separate trials for the murders committed six weeks apart.

Justice Marvin Baxter said any error in joining the two counts would have been harmless.

“Neither murder was especially likely, or more likely than the other, to inflame the jury’s passions,” the justice wrote. “Each killing was cruel and brutal and committed for seemingly trivial reasons.”

Gang Feud

Baxter rejected the contention that the evidence linking the Martin killing to a gang feud may have affected the verdict on the Coder killing, and thus affected the sentence. That evidence, the justice reasoned, “paled in comparison to the evidence of the most prejudicial facet of the Coder murder—its absolute senselessness.”

Baxter also said there was no error in jury selection. The defense argued on appeal that five venire members who had indicated opposition to the death penalty were improperly excused without being given the opportunity to establish that they could put aside those objections and judge the issue impartially.

The attorney general argued that the issue was forfeited because the defense did not make it at trial.

Baxter said the issue was properly before the court because People v. Velasquez (1980) 26 Cal.3d 425 held that no objection is required to preserve the improper disqualification of a potential juror, based on reservations about the death penalty, as an issue on appeal.

The justice agreed that Velasquez was wrongly decided, saying it had “no support in either the United States Supreme Court or California decisional law on which it relies,” and that it was inconsistent with the rule governing other types of juror excusals.

Velasquez, he said, is prospectively overruled, so that in the future, it will be necessary for the defense “to make either a timely objection, or the functional equivalent of an objection (i.e., statement of opposition or disagreement) to the excusal on specific grounds...in order to preserve the issue for appeal.”

Turning to the merits, Baxter explained that where a juror questionnaire is “replete” with responses indicating steadfast opposition to capital punishment, and there is no other evidence in the record suggesting that the venire member would be willing and able to put those views aside, there is no requirement that the judge directly question the person about the depth of his or her views prior to excusing him or her for cause.

Baxter was joined by Chief Justice Tani Cantil-Sakauye, Justices Ming Chin, Joyce L. Kennard, and Carol Corrigan, and Presiding Court of Appeal Justice Paul A. Turner of this district’s Div. Five, sitting on assignment.

Werdegar argued in dissent that the trial judge abused his discretion by excusing a potential juror, identified only as R.A., solely on the basis of his questionnaire responses.

She explained:

“To be sure, R.A.’s written answers indicated he held strong views against the death penalty. But he also acknowledged he could follow the law and the court’s instructions, that nothing would prevent him from doing so in this case, and given three choices in question No. 46, declined to indicate he would ‘ALWAYS’ vote for the death penalty irrespective of the evidence or ‘ALWAYS’ vote for a life sentence, but instead chose the third alternative provided by the questionnaire: : ‘I would consider all of the evidence and the jury instructions as provided by the court and impose the penalty I personally feel is appropriate.’”

Given that response, and the ambiguity of the question whether a person would “always” vote for or against the death penalty, the trial judge should have “questioned R.A. in person, observed his facial expressions and his demeanor, evaluated his vocal inflections and general bearing, and then made a conclusion about the depth of his understanding of his duty as a juror as well as his sincerity,” the justice wrote.

The case is People v. McKinnon, 11 S.O.S. 4612.