Friday, December 29, 2017
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S.C. Affirms Conviction for Second-Degree Murder
Sets Forth Instruction That Should Be Given, If Requested, Where Defendant Is Retried On Major Crime Following Hung Jury Which Convicted on Lesser Related Crime
By a MetNews Staff Writer
The California Supreme Court yesterday fashioned an instruction which it said should have been given at a murder trial if it had been asked for—though it wasn’t—and opined that if it had been requested and refused, it would have been harmless error.
The decision, in an opinion by Justice Ming Chin in which five justices joined, came in the appeal by Marvin Travon Hicks who, under the intoxicating effects of PCP and marijuana, drove his automobile at speeds reaching 100 mph, going through red lights, ignoring sirens and, in the end, plowing into another car, causing the death of a two-year-old.
A jury at his first trial found Hicks guilty of gross vehicular manslaughter while intoxicated but was deadlocked on a second-degree murder charge. At the second trial, his lawyer unsuccessfully sought an instruction that would have alerted jurors to the earlier conviction so they would not assume that if they did not convict him, he would go unpunished.
Crafts Instruction
“We conclude that the trial court errs if it informs the new jury of such specific convictions,” Chin wrote, but then provided an instruction that, he said, would have been proper:
“Sometimes cases are tried in segments. The only question in this segment of the proceedings is whether the prosecution has proved the charge of murder. In deciding this question, you must not let the issue of punishment enter into your deliberations. Nor are you to speculate about whether the defendant may have been, or may be, held criminally responsible for his conduct in some other segment of the proceedings.”
The jurist remarked:
“The foregoing instruction, which need only be given upon request, would prevent the jury from wrongly assuming that an acquittal on the murder charge would result in the defendant escaping criminal liability altogether, and it would do so without introducing matters that are extraneous to the retrial.”
No Prejudice
Chin said that because the judge (Los Angeles Superior Court Judge Kathleen Blanchard) barred any reference to the first trial, the defense lawyer can’t be faulted for not having asked for such an instruction—but, in any event, there was no prejudice to Hicks in light of the strength of the evidence. He explained:
“By defendant’s own admission, he drove at 80 miles per hour through a red light in a densely populated urban area during the weekday rush hour. Doing so can be likened to shooting a gun into a crowd; it is manifestly an act dangerous to human life. Thus, the only real issue was whether defendant acted intentionally, knowing the danger and consciously disregarding it….We need not reiterate here all the evidence presented to the retrial jury, but it is particularly significant that during the chase preceding the fatal collision, defendant ignored both red lights and the sirens of pursuing law enforcement officers, and he also nearly hit several vehicles. Those are events that would tend to put a person on notice that he or she is driving in a dangerous manner, and there is no reason to conclude that they did not put defendant on such notice.”
Chin made note that gross vehicular manslaughter while intoxicated is a lesser related crime to second-degree murder but, in light of different elements, not a lesser included crime, so that no double jeopardy concerns arise.
Liu’s Dissent
Justice Goodwin Liu dissented, arguing that the second jury should have been told of the conviction. He reasoned:
“Fairness to the parties means they should have been put, to the extent possible, in the same position at the retrial as at the first trial. Not telling the retrial jury of Hicks’s prior conviction may have led that jury to believe it faced an all-or-nothing choice that the first jury clearly did not face. This significantly altered the complexion of the case for Hicks from the first trial to the second trial. By contrast, it is not clear that telling the retrial jury of Hicks’s prior conviction would have resulted in such a significant change for the prosecution from the first trial to the second.”
The case is People v. Hicks, 2017 S.O.S. 6446.
Mosk’s Opinion
The majority opinion affirms the Dec. 23, 2015 decision by Div. Five of this district’s Court of Appeal. Justice Richard Mosk, now deceased, wrote the opinion.
He took a different approach, saying:
“Instructing or otherwise advising the jury that defendant had previously been convicted of gross vehicular manslaughter reasonably could cause the jury to focus on irrelevant matters rather than focusing on the issue before it—whether the prosecutor proved that defendant had committed a second degree murder beyond a reasonable doubt. In many cases, advising the second jury that defendant had been convicted of a lesser related crime in the first trial regarding the same incident involved in the second trial could prejudice defendant; so advising the second jury may signal to it that defendant was culpable or that it should determine certain facts adverse to defendant. In addition, advising the jury as to a result in the first trial might induce the jury to speculate on its ramifications. The result of the first trial might influence the jury to assume that the jury for that trial could not come to a conclusion as to the murder charge, and draw an inference from that assumption.”
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