High Court Upholds Death Sentence in Orange County Killing of Officer

The California Supreme Court upheld the death sentences of three convicted killers Thursday, including the killer of an Orange County police officer, but refused to retreat from its long-established policy of giving closer scrutiny to capital cases.

Prosecutors had asked the court to apply a less stringent standard when the justices try to determine whether procedural errors made during a trial should lead to the reversal of a death sentence.

In reaffirming a 25-year-old precedent, the justices held that reversal is mandatory if there is a “reasonable possibility” that an error under state law affected the jury’s verdict.

State prosecutors had repeatedly asked the newly aligned court, now led by conservatives, to adopt a new standard in capital cases requiring reversal only when there was a “reasonable probability” that error affected the outcome.

That lesser standard has been in effect for over 20 years in non-capital cases.

Federal Standard

Yet another standard applies when an error involves a violation of the federal Constitution. In those cases, upholding a verdict is permitted only if the error was harmless beyond reasonable doubt.

Thursday’s ruling came as something of a surprise from a court that has upheld death sentences repeatedly since appointees of Gov. George Deukmejian became a majority last year. Experts on capital cases said, however, that it is unlikely that the decision signaled a shift in direction by the court.

State Atty. Gen. John K. Van de Kamp and other prosecutors had contended that the higher standard in capital cases is no longer necessary because new death penalty statutes provide jurors with sufficient guidelines for reaching their verdicts.

But the court, in an opinion by Chief Justice Malcolm M. Lucas, reaffirmed the existing standard, saying that the lesser standard is “simply insufficient” to ensure that death verdicts are properly rendered.

Lucas cautioned, however, that only a technical possibility that an error affected the outcome would not result in a reversal.

“We will affirm the judgment unless we conclude there is a reasonable, (i.e. realistic) possibility that the jury would have rendered a different verdict had the error not occurred,” he said.

Killer of Policeman

The court’s reaffirmation of the 25-year-old standard came as the justices upheld, by a vote of 6 to 1, the death sentence imposed on John G. Brown, 40, also known as Gordon Lee Mink, for the 1980 murder of Garden Grove Police Officer Don Reed.

Brown was convicted in 1982 of shooting Reed at the Cripple Creek Saloon when Reed attempted to serve Brown with an arrest warrant on June 7, 1980. Brown opened fire with a gun hidden inside his coat, fatally wounding Reed, 27, and wounding four others as he tried to evade officers.

Two reserve officers, Glen Overly and Dwight

Henninger, were also wounded, as were bar patrons John Terzia and William McKinney.

During the trial, Brown testified that he couldn’t recall the shooting because amphetamines he had been taking gave him a memory lapse. When Deputy Dist. Atty. Bryan Brown asked Brown why his fingerprints were found on the .22-caliber pistol used in the shooting, Brown answered: “My fingerprints probably are on 1,000 guns in Orange County.”

The six-man, six-woman jury found Brown guilty and, after deliberating another nine hours, recommended that Brown receive the death penalty. During the penalty phase of the trial, prosecution witnesses testified that Brown had beaten and committed sexual assaults on County Jail inmates.

The justices rejected contentions that Brown’s sentence should be overturned because jurors had not been instructed that they could consider his past violent criminal acts only if they were proved beyond reasonable doubt.

There was overwhelming evidence of nearly all of those violent acts--so much so that the defense made no attempt to refute it--the court said, and thus there was no reasonable possibility that the instructional error affected the outcome. Other procedural mistakes also were harmless, the justices concluded.

Justice Allen E. Broussard dissented, saying that numerous errors during the trial required that the death verdict be set aside.

Chief Assistant Atty. Gen. Steve White said that while the court had refused to retreat from past rulings, its decision Thursday would provide valuable “linguistic clarification” of how the existing standard will be applied in future cases.

“In the past it had been unclear whether the standard meant realistic possibility or conceivable possibility,” White said. “Now we have a better understanding. I would expect the results in capital cases will not be much different than they have been before.”

Defense attorneys welcomed the court’s reaffirmation of the existing standard, but voiced dismay that even under such a standard Brown’s sentence had been upheld.

“It is entirely appropriate that a higher standard of review be employed where a life is involved,” said Gail R. Weinheimer, an attorney for the California Appellate Project, a nonprofit group that assists lawyers in capital appeals.

J. Courtney Shevelson of Carmel, the lawyer representing Brown on appeal, expressed disappointment but agreed that the court’s reaffirmation of higher scrutiny of errors in capital cases will be generally beneficial to defendants.

In a second case Thursday, the justices upheld, 4 to 3, the death sentence of Maurice J. Keenan, 36, in the 1979 robbery-murder of Robert Opel, a San Francisco artist. Opel had gained attention five years earlier when he streaked nude before an Academy Awards ceremony and during a meeting of the Los Angeles City Council.

In a 5-2 decision, the court also affirmed the death sentence of Charles E. McDowell Jr., 34, for the 1983 murder of Paula Rodriguez of Hollywood during an attempted rape.

The court now has upheld the death penalty in 35 of 47 capital cases decided since the defeat of Chief Justice Rose Elizabeth Bird and two other court members in the November, 1986, election.