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People v. Whitt10/25/1990
-->, 888-890 [255 Cal. Rptr. 631, 767 P.2d 1109].) The court did not err in excluding evidence of the prison interview.
C. Exclusion of Evidence on Administration of the Death Penalty
Outside the jury's presence, defendant proffered the testimony of artist-journalist Howard Brodie, describing a 1967 execution he witnessed at San Quentin Prison. Defendant also asked that the jury be allowed to view the gas chamber. After hearing Brodie's account on voir dire and listening to counsel's argument, the court excluded the testimony and refused the jury view. It concluded such evidence would only inflame the jury's passions, and was not relevant to determining the appropriate penalty for defendant's crimes.
Defendant contends he was denied his right to present pertinent "mitigating" evidence under the federal Constitution and the death penalty statute. (Citing Woodson v. North Carolina (1976) 428 U.S. 280, 304 [49 L.Ed.2d 944, 961, 96 S.Ct. 2978] (plur. opn. by Stewart, J.); § 190.3.) However, we have previously rejected similar claims.
Evidence on how the death penalty is carried out is irrelevant and inadmissible as a matter of law. "Unlike mitigating evidence of a defendant's
background and character, which may be introduced to elicit the sympathy or pity of the jury, accounts of the executions of others do not aid the jury in making an individualized assessment of the crucial issue whether the death penalty is appropriate for the particular defendant on trial." (People v. Grant (1988) 45 Cal. 3d 829, 860 [248 Cal. Rptr. 444, 755 P.2d 894], italics in original; see also People v. Thompson (1988) 45 Cal. 3d 86, 138-139 [246 Cal. Rptr. 245, 753 P.2d 37]; People v. Williams (1988) 44 Cal. 3d 1127, 1154 [245 Cal. Rptr. 635, 751 P.2d 901]; People v. Harris (1981) 28 Cal. 3d 935, 962 [171 Cal. Rptr. 679, 623 P.2d 240] (plur. opn. by Clark, J.).) There was no error.
D. DeLoach's Testimony
As noted earlier, DeLoach testified at both the original guilt trial and the special circumstance retrial that defendant admitted intentionally killing McCafferty to silence him as a potential witness to the robbery. Defendant argues here, as he unsuccessfully did in his first appeal, that DeLoach's testimony should have been excluded because DeLoach was a government agent through whom the police deliberately elicited incriminating admissions in violation of defendant's Sixth Amendment right to counsel. (Whitt I, supra, 36 Cal. 3d 724, 736-744; see Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199]; United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115, 100 S.Ct. 2183].) We have already concluded this claim fails insofar as it relates to the intent-to-kill element of the instant special-circumstance finding. (See Anderson, supra, 43 Cal. 3d 1104.)
Defendant implies that admission of DeLoach's testimony also tainted the penalty retrial. We disagree. We conclude the trial court properly rejected defendant's Massiah/Henry claim.
Defendant renewed his motion to suppress DeLoach's testimony on Massiah/Henry grounds shortly before the special circumstance retrial began. Defendant conceded he was relying exclusively upon the facts adduced at the first Massiah/Henry suppression hearing. As a result, the trial court properly denied the motion on grounds that this court's
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