TABLE OF CONTENTS - California

TABLE OF CONTENTS

TABLE OF CONTENTS

i

TABLE OF AUTHORITIES

x

STATEMENT OF APPEALABILITY

1

STATEMENT OF THE CASE

2

STATEMENT OF FACTS

6

A. PEOPLE'S CASE-IN-CHIEF

6

The Discovery ofAvril's Body

10

Appellant's Gifts to His Daughter

II

Discovery ofthe Burglary

II

Physical Evidence

12

B. DEFENSE CASE

13

Appellant's Guilt Phase Testimony.

13

James Young's Testimony

17

Donald Thomas' Testimony

17

Officer Palmieri's Testimony

19

Timothy Akers' Testimony

20

Ronald Siegel 's Testimony

20

C. PEOPLE'S REBUTTAL CASE

21

D. THE PROSECUTION'S PENALTY PHASE EVIDENCE

23

Appellant's In-Custody Admission ofGuilt

24

Evidence About the Victim

25

The Robbery ofErania McClelland

28

Appellant's Violence Toward Family Members

30

Appellant's Assault on Peggy Garner

3J

The Attempted Robbery ofMaria Garcia

34

The Epperson Robbery

35

Appellant's Criminal History

36

E. DEFENSE PENALTY PHASE EVIDENCE

ARGUMENT AND AUTHORITY

36

57

LEAD PROSECUTOR GLYNN'S LEAK OF A STORY

TO A NEWSPAPER REPORTER DURING HOVEY

QUALIFICATION WAS REPREHENSIBLE

PROSECUTORIAL MISCONDUCT THAT DENIED

APPELLANT HIS RIGHTS TO DUE PROCESS, JURY

TRIAL AND A RELIABLE DETERMINATION OF

PENALTY UNDER THE UNITED STATES AND

CALIFORNIA CONSTITUTIONS

57

A. Introduction

57

B. Deputy District Attorney Glynn's Attempts to Try

the Case in the Media During the First Trial Even

As the Prosecution Was Attempting to Prevent Defense

Counsel From Providing Information to the Media

58

C. The Incident Underlying Glynn's Second

Leak to the Press

62

D. Glynn's Second Attempt to Influence the

Outcome ofThis Case Through the Media

65

E. Glynn's Leak to Bentley Constituted Misconduct

74

11

F. Necessity for Reversal

82

G. The Trial Court's Admonition to the Jury Did Not

Cure the Prejudice That Flowed from the Prosecution's

Pervasive Efforts to Influence the Outcome ofthe Case

Through the Media

84

H. Conclusion

86

-

APPELLANT'S CONVICTION AND SENTENCE

MUST BE REVERSED BECAUSE THE PROSECUTOR'S

USE OF A PEREMPTORY CHALLENGE TO EXCUSE

PROSPECTIVE JUROR KELVIN SMITH DENIED

APPELLANT'S RIGHTS TO EQUAL PROTECTION

AND A JURY SELECTED FROM A REPRESENTATIVE

CROSS-SECTION OF THE COMMUNITY IN VIOLATION

OF THE UNITED STATES AND CALIFORNIA

CONSTITUTIONS

APPELLANT'S DEATH SENTENCE MUST BE

REVERSED BECAUSE THE TRIAL COURT ERRED

BY GRANTING CAUSE CHALLENGES BY THE

PROSECUTION AND DENYING APPELLANT'S

CAUSE CHALLENGE TO A JUROR, DENYING

APPELLANT HIS SIXTH AND FOURTEENTH

AMENDMENT RIGHTS TO TRIAL BY A FAIR

AND IMPARTIAL JURy

A. Life-Prone Jurors Were Wrongly Excused

88

103

105

Prospective Juror Frances Texeira

105

Prospective Juror Edwin Todd

106

Prospective Juror Frances Rios

107

Prospective Juror Richard Howie

109

Prospective Juror Rose Charles

III

Prospective Juror Dolores Keirn

113

111

Prospective Juror Ilse Lopez

115

Prospective Juror Roscoe Barge

116

Prospective Juror Linda Galvan

118

B. Death-Prone Jurors Were Wrongly Retained

'

in the Jury Pool.

120

C. Defense Counsel's Failure to Exhaust Appellant's

Peremptory Challenges Does Not Negate the Requirement

That Appellant's Sentence Be Reversed

121

D. Necessity for Reversal

124

APPELLANT'S SENTENCE MUST BE REVERSED

BECAUSE THE PRESUMPTION OF PREJUDICE

RAISED BY THE RECEIPT OF EXTRANEOUS

INFORMATION BY MEMBERS OF THE JURY

WASNOTREBUTTED

129

131

A. General Legal Principles

SHOULD THIS COURT REJECT THE CONTENTIONS

RAISED BY APPELLANT IN ARGUMENTS TWO

AND FOUR ABOVE, APPELLANTS CONVICTION

AND SENTENCE MUST BE REVERSED BECAUSE

APPELLANT HAS BEEN DENIED HIS DUE PROCESS

RIGHT TO AN ADEQUATE RECORD ON APPEAL

140

PROSECUTORIAL MISCONDUCT IN CLOSING

ARGUMENT UNFAIRLY PREJUDICED APPELLANT'S

PENALTY PHASE TRIAL

147

A. Prosecutor Glynn's Arguments Constituted

Misconduct Because Glynn Urged the Jury to

Impose a Death Sentence Based on Nonstatutory

Factors in Aggravation

IV

149

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