Death Verdict Thrown Out by Bird Court Reinstated

The state Supreme Court on Monday reinstated the death penalty for a convicted San Jose murderer, rejecting a 1985 ruling in the case by the court under then-Chief Justice Rose Elizabeth Bird.

In a 6-1 decision, the justices affirmed the death sentence of Marvin Pete Walker, 29, found guilty in the execution-style killing of a 15-year-old boy who was working at a liquor store that Walker and an accomplice robbed in 1979.

In 1985, the high court upheld Walker’s murder and robbery convictions but voted 4 to 2 to reverse the death sentence.

The majority had found then that evidence of a courtroom threat by Walker to “get” the prosecutor had been improperly admitted and that jurors were not clearly informed that they could consider favorable background and character evidence in deciding whether to sentence Walker to death.

The next year, with two new appointees of Gov. George Deukmejian on the court, the justices granted a request for a rehearing by state Atty. Gen. John K. Van de Kamp.

In Monday’s ruling, the court, in an opinion by Justice David N. Eagleson, held that the threat by Walker was a crime under state law and was properly admitted into evidence.

‘Pity and Sympathy’

Further, the justices said, the jury heard character evidence from Walker’s relatives and acquaintances and was specifically instructed by the judge that it could properly consider “pity and sympathy” for the defendant. In addition, both the prosecutor and defense counsel told jurors they could weigh such evidence in deciding the verdict, the court said.

“We conclude the jury here was adequately informed of the full nature of its responsibility to consider (the) defendant’s mitigating general character and background evidence,” Eagleson wrote.

The court also rejected contentions by Walker that he should not have been tried at the same time for the robbery, beating and shooting a month later of a 20-year-old San Jose woman who was working late in a medical office. The evidence in both cases would have been admissible in separate trials because of their similarities and there was nothing improper in trying the two together, the justices said.

“Both were armed robberies leading to unprovoked deadly assaults,” Eagleson wrote. “In both instances the defendant entered business premises shortly after 10 p.m., demanded that a safe be opened, marched his victims to a back room, and began his attack with a vicious beating to the victim’s head. Then, using the same gun in each instance, he shot the victim in the head while he or she was lying on the floor.”

Justice Allen E. Broussard, who wrote the court’s lead opinion in the 1985 ruling, issued a dissent to Monday’s decision, saying again that Walker’s sentence should be reversed.

Broussard said there was no evidence that the trial prosecutor fully heard and comprehended the threat or that Walker, who was in custody, could carry it out. In the absence of any proof of other previous violent actions, the evidence of the threat had been “very damaging” to the defendant, Broussard said, and he was entitled to a new penalty trial where the threat would not be considered.

46 Death Rulings Upheld

The court, now led by Chief Justice Malcolm M. Lucas, has upheld the death penalty in 46 of 62 capital rulings issued since conservatives gained a majority in 1987.

State Deputy Atty. Gen. Pete Wilkinson expressed agreement with the ruling, saying that the crimes of which Walker was convicted were “exceptionally brutal.” Wilkinson noted also that this was the last of a series of capital rulings by the Bird court to be reconsidered by the Lucas court. In all six cases, death sentences that had been overturned were reinstated by the new court.

Carleen R. Arlidge of San Jose, one of the attorneys who represented Walker in the case before the court, voiced disappointment with the ruling and said new appeals would be filed.

“Our feeling was that the court’s original ruling in this case (in 1985) was the correct one,” Arlidge said. “We intend to request a rehearing and, if that is rejected, pursue the matter in the federal system.”

Walker and the accomplice, Rupert Lee Harper, were accused of entering a liquor store in August, 1979, taking $150 from a cash register and ordering the store owner and two teen-age clerks into a back room.

According to testimony, Harper wanted to leave quickly, but Walker said: “No. We’re not going to leave any witnesses.” Walker then used a full bottle of wine to beat the store owner, who fell to the floor pretending to be dead. Walker told the two clerks to “get on your knees” and three shots were fired, one hitting the owner, Jerry Romero, another seriously wounding a clerk, Andy Zamora, and the third fatally striking the other clerk, Joseph Vasquez.