Metropolitan News-Enterprise


Tuesday, February 5, 2013


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S.C. Upholds Death Sentence in Robbery-Murder

Justices Reject Claim That Judge’s Questions Led to ‘Stacked’ Jury




The California Supreme Court yesterday upheld the death sentence for a man convicted of the 1994 robbery-murder of a man who was house-sitting for his brother in rural Stanislaus County.

The justices were unanimous in affirming the conviction and sentence of Daniel Lee Whalen for the murder of Sherman Robbins of Modesto, although a concurring justice expressed concern with how the voir dire was handled by the trial judge. Whalen was also convicted of robbing the home of Bill and Alvina Robbins in Patterson.

Police charged Whalen after recovering property stolen from the house, which led to charges against two accomplices. Michelle Lee Joe and Melissa Fader testified against Whalen as part of plea agreements, saying that the three of them plotted to burglarize the house and that Whalen shot Robbins, who was tied up on a couch, after they gained entry by claiming their car had broken down.

The women said they were in the car that they had borrowed for the occasion when they heard a gunshot. They claimed they did not know that Whalen was planning to shoot the victim.

Fader pled guilty to robbery and was sentenced to seven years in prison. Joe pled guilty to second degree murder and robbery and was sentenced to 16 years to life in prison.

The defense attempted unsuccessfully to shift the major share of the blame for the murder on Joe.

The defense argued on appeal that Stanislaus Superior Court Judge John Whiteside had asked “skillfully leading” questions in order to rehabilitate prospective jurors whose answers to questionnaires suggested a pro-death penalty bias, while perfunctorily dismissing others who indicated strong opposition to capital punishment.

In doing so, the defense argued, Whiteside “stacked” the jury pool with supporters of the death penalty and “skewed” the result in favor of conviction and of the death penalty.  

The 12 jurors and four alternates were chosen from a venire of 158. After 73 were excused for cause or hardship, those who remained were seated in random order, with the attorneys then alternating their peremptory challenges.

The case was tried in 1996, at a time when trial judges in criminal cases had the primary role in voir dire under since-amended Proposition 115.

Chief Justice Tani Cantil-Sakauye, writing for the court, said the defense showed no basis for reversal.

“Trial courts possess broad discretion over both” juror disqualification and voir dire, the chief justice wrote. While judges are expected to be evenhanded in how they frame questions to potential jurors, Cantil-Sakauye wrote, “the court’s manner of conducting voir dire will not be disturbed on appeal unless it renders the trial fundamentally unfair.”

There was no such unfairness in Whalen’s case, she wrote.

“We have carefully reviewed the questionnaire responses and voir dire transcripts of these prospective jurors and of the jurors ultimately chosen, as well as the transcript of the voir dire of all other prospective jurors who were individually questioned,” the chief justice explained. “Our review leads us to conclude the court did not abuse its discretion or display bias in its questioning of either death-leaning or life-leaning prospective jurors, and its voir dire was adequate to enable it to determine whether the prospective jurors’ views on the death penalty qualified them to sit on a capital jury.”

Cantil-Sakauye acknowledged that “overreliance on leading questions…may cause a prospective juror to give what he or she perceives to be a ‘correct’ answer rather than a considered statement of his or her own true views.” But she drew a distinction between the asking of such questions as a means of clarifying seemingly contradictory responses to questionnaire or voir dire questions, which she said was what happened here, and the use of such questions to lead a venire member away from his or her unequivocally expressed views.

The chief justice said that of the 11 potential jurors who were disqualified because of anti-death penalty bias, all had stated unambiguously that there were no circumstances under which they could impose capital punishment. In contrast, of the 15 panelists whom the defense argued should have been stricken due to pro-death penalty bias, all indicated—after the judge explained the process of considering aggravating and mitigating factors—that they would be open to a life sentence if the evidence warranted, Cantil-Sakauye explained.

The chief justice also noted that the defense used only 16 of its 20 peremptory challenges, and rejected the argument that the panel was so heavily skewed with pro-prosecution, pro-death penalty venire members that further strikes by the defense would have been futile.

Cantil-Sakauye was joined by Justices Ming Chin, Marvin Baxter, Carol Corrigan, Kathryn M. Werdegar and Joyce L. Kennard.

Justice Goodwin Liu, concurring separately, criticized the trial judge’s “disparate treatment of a small number of prospective jurors whose written questionnaires showed ambiguity concerning their ability to follow the court’s instructions despite their personal views on the death penalty.” But he agreed there was no reversible error, saying the jury as actually seated was not skewed in favor of the prosecution.

The case is People v. Whalen, 13 S.O.S. 594.


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