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People v. Whitt10/25/1990
P.2d 1109]; People v. Wilson (1969) 1 Cal. 3d 431, 436-437 [82 Cal. Rptr. 494, 462 P.2d 22].) This strategy is apparent in counsel's direct examination of inmates Sanders and Payton, and his attempt to introduce an edition of the Dove Cage magazine containing a "Death Row" interview with defendant. Counsel also emphasized in closing argument that defendant is "not the same man" a jury had sentenced to death four years earlier.
There may have been no independent tactical reason for disclosing defendant's right of "automatic appeal." However, under the circumstances, that disclosure added little to what the jurors already knew. Any reasonable jury, apprised that defendant had already once been sentenced to death and was now being resentenced for the same crimes, could easily infer that an appeal from a death verdict was available and would inevitably be taken. Accordingly, counsel's plausible tactical decision below prevents defendant from contending that any resulting "error" warrants reversal on appeal. (People v. Avalos (1984) 37 Cal. 3d 216, 228-229 [207 Cal. Rptr. 549, 689 P.2d 121]; cf. People v. Wickersham (1982) 32 Cal. 3d 307, 334-335 [185 Cal. Rptr. 436, 650 P.2d 311].)
B. Exclusion of Defendant's Interview with Dove Cage Magazine
Outside the jury's presence, defendant sought to introduce the testimony of inmate Payton for purposes of showing defendant has "change " on "Death Row" and now feels "remorse." To the same end, counsel proffered an article from the Dove Cage magazine, purporting to quote a prison interview conducted by Payton with defendant in March 1984. Defendant discussed three topics in the interview: (1) past exploits, (2) past feelings, and (3) his new attitude toward life.
The prosecutor vigorously objected to the entire offer of proof. He argued, among other things, that defendant's postcrime personality changes were irrelevant to the penalty determination, and could have been "fabricated" with the hope of securing leniency at some later date.
The court ruled that Payton's testimony was admissible insofar as it described his personal observations of defendant's behavior in prison. It found such observations relevant and mitigating, because they bore on defendant's theory that he possessed redeeming character traits and had adjusted well in prison. However, the court refused to admit: (1) any testimony by Payton recounting defendant's statements during the prison interview, and (2) the Dove Cage article quoting the same statements. The court excluded both items under Evidence Code section 352 and the hearsay rule. In the court's view, defendant was attempting to introduce his out-of-court statements as a means of "testifying" free of cross-examination.
We first reject defendant's claim that the court erred in excluding evidence of the prison interview under Evidence Code section 352. Many of the events discussed in the interview were cumulative of trial testimony by defendant's wife, father, and co-inmates. And, many of the interview topics not introduced at trial could reasonably be viewed as prejudicial to the defense. Thus, the court did not clearly abuse its discretion in concluding that any attempt to introduce the interview through either Payton or the Dove Cage would risk confusing the jury or consuming undue amounts of time.
Such evidence could also properly be excluded under the hearsay rule. In both testimonia
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