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People v. Kraft8/10/2000
to Brian Whitcher, who liked to smoke marijuana; and "PORTLAND ELK" (or "ECK"), by process of elimination, evidently referred to "John Doe Oregon."
The defense objected to admission of the additional entries, citing the same grounds as those on which they sought exclusion of the entries relevant to the guilt phase offenses, i.e., that the entries lacked relevance, constituted hearsay, and supported only speculative inferences. The court overruled the defense objection and permitted the prosecution to introduce the additional entries, which were graphically presented to the jury as a second column to the original entries. The court observed it would permit the prosecutor to introduce the entire unredacted list if the defense preferred it over the redacted list, an option the defense declined.
Defendant now reiterates his contention that the trial court erred in admitting the expanded version of the list, renewing the arguments we have previously rejected (see ante, at pp. -). For the reasons articulated above, we conclude the trial court did not abuse its discretion in admitting the additional list entries in the penalty phase. Defendant argues that he suffered additional prejudice in the penalty phase as a result of the admission of the expanded list, in that the jury had, by then, already decided the list was a death list. Moreover, he argues, the prosecutor's presentation implied there were exactly seven entries on the list in addition to those the jury had already seen and, thus, that there existed a perfect fit between the list and the other evidence of the penalty phase offenses. The jury's guilt verdicts, however, did not necessarily establish that it believed the list signified defendant's victims, and the appearance of a "perfect fit" resulted from defendant's election not to permit the unredacted list. Defendant contends the prosecutor's questioning of his investigator implied there were only seven additional entries on the list. Contrary to defendant, we do not believe the jury necessarily would have inferred, from the prosecutor's use of the word "finally," that the additional entries exhausted the list; more likely the jury simply understood the word as signaling the end of that line of questioning.
c. Exclusion of rabbi's testimony regarding position of Jewish religion on capital punishment
The defense called Rabbi Leonard Beerman as a character witness during the penalty phase. Rabbi Beerman testified he had met and spoken with defendant and his family and that he was struck by defendant's intelligence and sensitivity and the gentleness of his personality. He believed defendant was innocent of the crimes of which he was convicted and should not suffer the death penalty. The rabbi explained further that he believed no one, including Hitler and Eichmann, should be executed. When defense counsel asked how the rabbi reconciled his testimony that defendant should not be executed with "existing or perceived existing tenets of Judaism," the trial court sustained the prosecutor's objection on grounds of relevancy. Rabbi Beerman went on to testify, nonetheless, that he believed "the death penalty is a violation of God's law and my Jewish faith is something that confirms me in this conviction."
Defendant contends the trial court's ruling deprived him of his statutory and constitutional rights to present mitigating evidence. He observes that the federal Constitution precludes a state from imposing procedural barriers to the sentencing jury's consideration of mitigating evidence (e.g., Mills v. Maryland (1988) 486 U.S. 367, 375; Skipper v. South Carolina (1986) 476 U.S. 1, 4; Lockett v. Ohio (1978) 438 U.S. 586, 604) and notes California's "catch-all" m
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