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People v. Whitt10/25/1990
ror (the prosecution) of
the obligation to demonstrate that the error did not affect the verdict, and impermissibly shifts to the defendant the burden of proving prejudice. The majority cites no authority to support its radical departure from Chapman.
Neither of the two authorities on which the majority relies, Luce v. United States (1984) 469 U.S. 38 [83 L.Ed.2d 443, 105 S.Ct. 460] and Evidence Code section 354, concerns error in violation of the federal Constitution. Nor do these authorities require an offer of proof when the record establishes federal constitutional error.
Even if the majority's requirement of an offer of proof as to what defendant would have testified to is a proper condition before evaluating whether the error was prejudicial, the record here adequately reveals the nature of such testimony. (See Pacific Gas and Electric Co. v. G. W. Thomas Drayage Co. (1968) 69 Cal. 2d 33, 36, fn. 1 [69 Cal. Rptr. 561, 442 P.2d 641, 40 A.L.R.3d 1373]; Lawless v. Calaway (1944) 24 Cal. 2d 81, 91 [147 P.2d 604].) The majority, therefore, could have determined prejudice in this case.
The thrust of the defense strategy at the penalty phase was defendant's religious conversion on death row. As the majority explains, this strategy was "apparent" from "counsel's direct examination of inmates Sanders and Payton," from counsel's unsuccessful efforts to introduce into evidence "the Dove Cage magazine containing a 'Death Row' interview with defendant," and from the emphasis in counsel's closing argument that defendant was "'not the same man' a jury had sentenced to death four years earlier." (Maj. opn., ante, p. 641.) Under these circumstances, defense counsel's obvious purpose in asking defendant why he deserved to live was to put before the jury defendant's personal account of his religious conversion.
Because "imposition of death by public authority is so profoundly different from all other penalties," the United States Supreme Court has stressed "the need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual . . . ." (Lockett v. Ohio, supra, 438 U.S. 586, 605 [57 L.Ed.2d 973, 990].) Although in this case
the jury knew from the testimony of inmates Payton and Sanders about defendant's religious activities in prison, only defendant himself could have conveyed to the jury the depth of the change he claimed to have undergone. Singular import is accorded "an accused's right to present his own version of events in his own words." (Rock v. Arkansas (1987) 483 U.S. 44, 52 [97 L.Ed.2d 37, 47, 107 S.Ct. 2704].) When, as here, the defendant's version of the facts would have been a personal account of how Christianity had transformed his life, offered to establish mitigation at the penalty phase of a capital case, such evidence cannot be considered cumulative.
I would reverse the judgment of death.
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