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Court Upholds Death Penalty in 2 More Cases

Times Staff Writer

The California Supreme Court upheld two more death sentences Thursday, including one involving a grisly decapitation murder that had been reversed in 1985 under former Chief Justice Rose Elizabeth Bird.

The court affirmed the death penalty for Bernard Lee Hamilton in the 1979 mutilation murder of a San Diego woman and for James Richard Odle in the 1980 fatal stabbing of a Pinole woman and the subsequent killing of a police officer who helped track him down.

As in other recent cases, the court found that any procedural errors during the trials were harmless and could not have affected the verdict.

In one case, the justices ruled for the first time that a death sentence could be upheld even when jurors were improperly instructed that the governor may commute a sentence of life without parole to a life sentence allowing parole.

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Other Instructions

The court in 1984 invalidated the instruction as misleading because jurors were not also told that the governor can commute a death sentence. The justices on Thursday left that ruling intact but said in this instance, the error was overcome by other instructions telling jurors to disregard the governor’s commutation authority in reaching their verdict.

The court has decided five death penalty cases in the last eight days, reflecting the justices’ continuing effort to reduce a huge backlog of capital appeals they receive automatically from trial courts.

Nonetheless, there are still 187 capital cases pending before the court, representing about half its total backlog of civil and criminal cases. When Bird and two other justices defeated in the fall 1986 election left office, there were 171 pending capital cases.

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In all, the new court, under Chief Justice Malcolm M. Lucas, has upheld the sentences in 19 of the 25 death penalty cases it has decided. In Bird’s 9-year tenure, the court reversed 64 of the 68 death sentences it reviewed.

By a vote of 6 to 1, the justices reinstated the sentence Hamilton, now 37, received for the kidnaping, robbery and murder of Eleanore Frances Buchanan, the mother of a 3-week-old child. The woman was found with her head and hands cut off after she disappeared after a night class at Mesa College.

In 1985, the court in a 5-2 decision reversed the sentence because the jury had not specifically found that Hamilton intended to kill Buchanan. It was possible, the court said, that the killing had occurred accidentally during the kidnaping and robbery and that the woman was dismembered to prevent identification.

The U.S. Supreme Court set aside the ruling and ordered the justices to reconsider the case in light of a decision it made in another case that a murder sentence need not be overturned simply because a jury was improperly instructed.

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The state court reheard the case in September, 1986, but was unable to decide it before Bird and the others left office.

In Thursday’s decision, the new and now more conservative court reinstated Hamilton’s sentence, citing its own far-reaching ruling in another case last fall that a finding of intent to kill was not required for actual killers in felony murder cases.

The court, in an opinion by Justice Stanley Mosk, acknowledged Thursday that Hamilton’s jury had been improperly instructed under provisions of the 1978 death penalty law that a governor could commute a sentence of life without parole--the alternative to death--to permit parole.

But the trial judge also told jurors they “should not speculate as to whether such commutation . . . would ever occur,” Mosk noted. Thus, he said, the jury was directed “not to make any use” of the erroneous instruction, eliminating its potential effect on the case.

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Served to Confuse

In dissent, Justice Allen E. Broussard contended that the judge’s supplementary instruction served only to confuse the jury and underscore the governor’s commutation authority. The resulting harm to the defendant, he said, was “overwhelming.”

State Deputy Atty. Gen. Pat Zaharopoulos welcomed the decision, noting that there were an undetermined number of similar cases pending in which trial judges and counsel had taken steps to modify the effects of the since-abandoned commutation instruction.

“Several courts (before the 1984 decision) foresaw there might be problems down the line with the instruction,” she said. “It was a relief to see how the justices ruled on that issue in this case.”

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State Deputy Public Defender Michael Pescetta said that both rulings issued Thursday reflected a “rather disturbing trend” by the court to conclude that instructional error can be cured by often ambiguous comment by the judge or trial counsel.

Odle, now 38, was charged in the murder of Rena Aguilar, an acquaintance he feared would report his theft of a van shortly after his release from prison on parole. Three days later, authorities said, Odle shot and killed Floyd Swartz, a Pinole police officer, who along with other uniformed officers, had found and surrounded Odle in a clump of bushes.

One Shot Fired

According to officers’ testimony, Swartz yelled out, “Come on, man, give it up,” and made other pleas for Odle to surrender. But when Swartz changed position to get a better view, the suspect fired one shot, striking the officer in the neck. A few hours later, Odle was captured after a gun battle in which he was shot in the forearm.

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The court, in a 6-1 decision, upheld Odle’s conviction and death sentence for multiple murder and murder of a police officer.

Lucas, writing for the majority, acknowledged that the judge had improperly failed to instruct the jury that it must find the defendant knew or should have known Swartz was a police officer. But in this case, he wrote, the error was “harmless beyond reasonable doubt” because it would be unreasonable to conclude Odle did not know he was being sought by police.

In dissent, Broussard contended that the jury, in deciding whether to spare Odle’s life, had not been permitted to consider the effects he suffered from a lobotomy he was forced to undergo to ease a blood clot that formed after a 1973 automobile accident.

At trial, relatives testified that before the injury, he had been kind and responsible but that he had become unpredictable and violent afterward. A psychiatric expert testified for the prosecution that there was no evidence Odle suffered from a diminished mental capacity at the time of the killings.

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Privacy Case

In another action, the justices declined to hear a challenge by The Los Angeles Times to a state appeal court ruling that the newspaper must go to trial to defend against an invasion of privacy suit by a San Diego woman named in a story as discovering her roommate’s body in a murder case.

The newspaper argued that the suit should be dismissed because the witness’s name was provided by the coroner’s office and thus was available to the public.


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