Death Penalty for Killer Narrowly Upheld by Court

The state Supreme Court, in an unusual split in its dominant conservative bloc, Thursday narrowly upheld the death penalty for the killer of a Riverside high school coach slain in the 1981 robbery of a convenience store where he worked as night clerk.

The court’s 4-3 vote was its closest in a capital case since conservatives gained a majority last year and marked the first disagreement over a death sentence among the five justices appointed by Gov. George Deukmejian.

In all, the court has affirmed the death penalty in 32 of 44 capital cases decided under Chief Justice Malcolm M. Lucas. Until now, the governor’s appointees had remained united, whether affirming or reversing death verdicts.

In Thursday’s ruling, the court, in an opinion by Justice Edward A. Panelli, rejected an appeal from Richard Boyde, 31, convicted of the robbery, kidnaping and murder of Dickie Lee Gibson, a wrestling and football coach at Arlington High School who was found shot to death in an orange grove near a 7-Eleven store where he was employed.

In dissent, Justice John A. Arguelles contended that Boyde’s sentence should be set aside and a new penalty trial held because jurors had been improperly led to believe that their personal views of the case should play no role in deciding whether Boyde should receive the death penalty or life without parole.

Arguelles, a Deukmejian appointee, was joined in his dissent by Justice Stanley Mosk, named to the court by Gov. Edmund G. Brown, and Justice Allen E. Broussard, an appointee of Gov. Edmund G. Brown Jr.

The ruling was sharply criticized by Boyde’s attorney, John M. Bishop of Riverside, who joined other defense lawyers who have contended recently that the new court is too often dismissing procedural errors in capital cases as “harmless.”

“I can’t think of any other case where the court has stretched so far to uphold a death sentence,” Bishop said. “You’d think that with a man’s life at stake, the risk of error would be unacceptable.”

The attorney said he would ask for a rehearing from the court and, if it is denied, he would appeal to the U.S. Supreme Court.

Complex Case

State Deputy Atty. Gen. Frederick R. Millar expressed satisfaction with the ruling and added that division on the court over Boyde’s sentence was understandable in view of the complexity of the case.

“You can get different interpretations of what jurors were told and how it could have affected them,” Millar said. “In those circumstances, a split is not too surprising.”

Boyde, a previously convicted robber who had been released on parole, was jointly charged with Carl Franklin Ellison in the murder of Gibson and an early morning robbery that netted $33 and several hats. Ellison was convicted and sentenced to 25 years to life in prison. Boyde, who was found by the jury to have been the triggerman, was convicted and sentenced to death.

In Thursday’s decision, the court’s disagreement centered on whether the jurors properly understood that while they must follow the law’s strict guidelines, they still retained the discretion and responsibility to decide whether death was the “appropriate” sentence. Panelli, in an opinion joined by Lucas and Justices David N. Eagleson and Marcus M. Kaufman, acknowledged that the jury had been instructed by the trial judge that if aggravating factors about the case outweigh mitigating factors, the defendant “shall” be sentenced to death.

Weighing Factors

The instruction has been revised since then to make it clear that weighing factors favorable or unfavorable to the defendant is not a mere mechanical process and that jurors can assign whatever weight they wish to such factors.

But the court said that in this case, as in others it has decided involving the outdated instruction, the death sentence still could be upheld because the prosecutor and defense counsel told jurors that they were not merely to “count” factors but to make a “qualitative judgment” about their overall weight.

“Obviously, when jurors are informed that they have discretion to assign whatever value they deem appropriate . . . they necessarily understand they have discretion to determine the appropriate penalty,” Panelli wrote in the 72-page majority opinion.

In dissent, Arguelles said that the trial record showed that during jury selection, prospective jurors were told by attorneys that they were not to apply their own “personal judgment” about the case but to “simply weigh” aggravating and mitigating factors “without regard to their own assessment of the appropriate punishment.”

‘Peace of Mind’

The dissenters said that in selecting the jury--a procedure in which prospective jurors are questioned individually and separately from others--the prosecutor wrongly suggested that this weighing process relieved jurors “of the responsibility of deciding ‘whether I personally think (the defendant) should die or not die’ and contributed to the juror’s ‘peace of mind’ by enabling him to view his role as simply applying the law. . . .”

”. . . I believe the jury in this case was clearly misled as to the scope of its discretion and the nature of its role in determining sentence,” Arguelles wrote.