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People v. Whitt10/25/1990
evant mitigating evidence is error of federal constitutional dimension, which is commonly referred to as " Skipper error." (See generally Skipper v. South Carolina, supra, 476 U.S. at pp. 4-8 [90 L.Ed.2d at pp. 6-9]; Hitchcock v. Dugger (1987) 481 U.S. 393, 394, 398-399 [95 L.Ed.2d 347, 350-353, 107 S.Ct. 1821]; Mills v. Maryland (1988) 486 U.S. 367, 374-375 [100 L.Ed.2d 384, 393-394, 108 S.Ct. 1860]; McKoy v. North Carolina (1990) 494 U.S. 433, - [108 L.Ed.2d 369, 378-381] [110 S.Ct. 1227, 1231-1234].)
To conclude that Skipper error has in fact occurred, however, does not end the analysis. This error is not automatically reversible, but is subject to harmless-error review under the test of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065] (hereafter Chapman). (E.g., People v. Lucero (1988) 44 Cal. 3d 1006, 1031-1032 [245 Cal. Rptr. 185, 750 P.2d 1342].)
Under Chapman, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].) The "burden of proof" as to prejudice rests on the state. "Certainly error, constitutional error . . . casts on someone other than the person prejudiced
by it a burden to show that it was harmless . . . . he beneficiary of a constitutional error [is required] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Ibid. [17 L.Ed.2d at pp. 710-711].) When the constitutional error occurred at the penalty phase of a capital trial, the court must proceed with special caution. (See Satterwhite v. Texas (1988) 486 U.S. 249, 258 [100 L.Ed.2d 284, 295, 108 S.Ct. 1792] [stating that "the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer"].) In such a situation, the "burden of proof" must be deemed very heavy indeed.
I turn to the case at bar. At the penalty phase, the prosecution asked for death: "Mr. Whitt has not changed. He is the same person that he was back at the time that he committed the offense." The defense sought life imprisonment without possibility of parole: "This defendant is not the same person being prosecuted today who was prosecuted [at the original trial] in 1981, in spite of what [the prosecutor] says." Counsel called several witnesses to establish defendant's decline and subsequent rehabilitation. The last was defendant himself. The following ensued.
"By Mr. Broderick [Defense Counsel]:
"Q Mr. Whitt, do you understand the proceedings that have occurred thus far?
"A Yes, I think so, sir.
"Q And do you understand what's at stake at this point in the proceedings?
"A Pardon me. Could you repeat that[?]
"Q Do you understand what is at stake in the proceedings?
"A Yes, sir. The fact whether I'm able to live or die.
"Q And what do you have to say about those stakes ?
"Mr. McDowell [Prosecutor]: Objection, your Honor. Irrelevant.
"The Court: Sustained.
"Q (By Mr. Broderick) And do you understand, however, that we're now at the stage where the jury will determine whether you live or die?
"A Yes. I understand that.
"Q And do you want to live ?
"Mr. McDowell: Objection, your Honor.
"The Court: Sustained.
"Mr. Broderick: May I have a ground?
" The Court: No, you may not. I told you bef
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