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People v. Whitt10/25/1990
n language
of the decision, which the United States Supreme Court has often approved and never repudiated.
The majority also suggest that my reading of Chapman would lead to virtually automatic reversals, and that such a result would be unfair to the People. I disagree.
Of course there are errors that could possibly be held harmless beyond a reasonable doubt. Let me select an example from the case at bar. As noted, the court unconstitutionally sustained the prosecutor's objection to defense counsel's question, "And do you want to live?," and thereby improperly barred defendant's testimony in response. Considered in isolation, perhaps that single error alone might be deemed nonprejudicial on the ground that the expected affirmative answer was implied and indeed emphasized throughout the defense case. But of course that error was not isolated.
In any event, reversal for an error like that here cannot reasonably be considered unfair to the People. "Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. [Citation.] Moreover, such circumstances involve impairments of the [Eighth Amendment] right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent." (Strickland v. Washington (1984) 466 U.S. 668, 692 [80 L.Ed.2d 674, 696, 104 S.Ct. 2052] [speaking of Sixth Amendment right to assistance of counsel].)
The majority seek to introduce into Chapman a threshold "requirement" similar to that of Evidence Code section 354: the "substance, purpose, and relevance of the excluded evidence was made known . . . by the questions asked, an offer of proof, or by any other means" (id., subd. (a)). They would apparently recognize an exception like that contained in the same provision: compliance is excused when "The rulings of the court made compliance . . . futile" (id., subd. (b)).
I have serious doubt that such a "requirement" would be consistent with Chapman. The majority evidently rely on Luce v. United States (1984) 469 U.S. 38 [83 L.Ed.2d 443, 105 S.Ct. 460] to support their position. Luce, however, is altogether inapposite. In that case, the court considered error and prejudice under the Federal Rules of Evidence. Here, the issue involves error and prejudice under the United States Constitution. I have found only two cases that directly bear on the question whether Luce affects the reversibility of error of federal constitutional dimension. (Biller v. Lopes (2d Cir. 1987) 834 F.2d 41, affg. (D.Conn.) 655 F.Supp. 292; Biller v. Lopes (D.Conn. 1987) 655 F.Supp. 292, affd. (2d Cir.) 834 F.2d 41.) Both cases
are well reasoned. Both resolve the issue in the negative. (Biller v. Lopes, supra, 834 F.2d at pp. 43-44; Biller v. Lopes, supra, 655 F.Supp. at p. 301.)
Be that as it may, compliance with the majority's "requirement" would be excused. By summarily sustaining the prosecutor's objections, and by doing so in a peremptory manner, the court effectively silenced defendant and thereby "made . . . compliance futile . . . ." (Evid. Code, § 354, subd. (b).) Contrary to the majority's implication, the record demonstrates that it would have been useless for counsel to "(1) continu with the examination, (2) rephras the questions . . ., or (3) mak an offer of proof . . . ." (Maj. opn., ante, at p. 650.) In substance, the court indicated that it would not receive any mitigating evidence from defendant. As the record reveals, the court barred defendant from answering counsel's final question, "Why do you deserve to live?," on the ground th
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