State Supreme Court Widens Definition of Lying-in-Wait Murder

Widening the scope of capital punishment, the state Supreme Court ruled Thursday that the death penalty can be imposed for murder while “lying in wait,” even if the killer does not physically conceal himself from his unknowing victim.

The court, affirming by a 5-2 vote the death sentence of a Stockton man, gave prosecutors another victory by also limiting the ability of defendants to challenge county jury systems as discriminatory. The justices said minority under-representation in juror pools in itself does not constitute bias if selection procedures are racially neutral.

The ruling on lying in wait allows broader application of the death penalty under a centuries-old legal doctrine that permits harsher punishment for crimes found to involve unusual cowardice or stealth.

The court held that a death sentence was constitutionally permissible when the killer, although in open view, hides his intent from the victim, waits for an opportune moment and then makes a sudden attack.

“If a period of watchful waiting is shown which immediately precedes the assault, a concealment of purpose, coupled with a surprise attack from a position of advantage, will satisfy the concealment element in lying-in-wait murder,” Chief Justice Malcolm M. Lucas wrote for the court.

In dissent, Justice Stanley Mosk argued that it was impermissible to base capital charges solely on lying in wait and that the court’s ruling was so broad it would open the way for such charges for “virtually all intentional killings.” Almost always, he said, killers conceal their true purpose before attacking their victims.

‘No More Worthy’

The law also fails to provide a “meaningful basis” for separating capital and non-capital murders, Mosk said. “To my mind, the killer who waits, watches and conceals is no more worthy of blame or sensitive to deterrence than the killer who attacks immediately and openly,” he wrote.

John R. Duree Jr., a Sacramento attorney representing the defendant in the case, assailed the ruling, saying it was “virtually unlimited” in its potential application.

“A person will be subject to the death penalty on the lying-in-wait theory anytime he fails to give advance notice of his intent to kill,” Duree said. “In my view there is a substantial question of whether a criminal defendant will ever get a fair hearing in this court.”

State Deputy Atty. Gen. Jennifer S. Cady welcomed the ruling, saying it resolved an important legal issue that has arisen in several pending cases.

Cady noted, however, that lying in wait has not been charged often in the past and said it is doubtful that prosecutors will file “a mass” of such charges in wake of the ruling. “This will be carefully applied on a case-by-case basis,” she said.

The court has upheld 51 death sentences in the 73 capital cases decided since a new conservative majority emerged after the defeat of Chief Justice Rose Elizabeth Bird and two other court members in the 1986 general election.

In Thursday’s ruling, the justices affirmed the conviction and capital sentence of Michael Angelo Morales, 29, convicted in a 1981 knife-and-hammer torture murder of Terri Winchell, a young woman who he believed had an affair with the male lover of Morales’ cousin, Ricky Ortega.

According to the prosecution, Morales conspired with Ortega to lure Winchell into a car and drive to an isolated area. Morales, sitting in the back seat, suddenly attempted to strangle the woman with a belt until it broke and then beat her into unconsciousness with a hammer. Then, prosecutors said, Morales dragged the woman to a field, performed sexual intercourse and stabbed her four times in the chest.

The trial was transferred from San Joaquin County to Ventura County to avoid prejudicial publicity. In 1983 Morales was found guilty and sentenced to death for murder while lying in wait and while inflicting torture, both of which constitute a “special circumstance” that permits capital punishment.

Meanwhile, Ortega was tried separately, convicted of murder and sentenced to life in prison without parole, prosecutors said.

On Thursday, the justices rejected a series of challenges by Morales to his conviction and sentence in an opinion by Lucas that was joined by Justices Edward A. Panelli, David N. Eagleson and Marcus M. Kaufman and retired Justice John A. Arguelles, participating by special assignment.

Both of the special circumstances charged were valid, the court said. The judges also ruled that Morales had not shown that he was entitled to a new trial on the ground that Latinos were under-represented in Ventura County jury pools.

As it turned out, three of the 12 jurors in Morales’ trial were Latinos, but he argued he still had been denied the right to a jury selected from a fair cross-section of the community.

Two sample surveys conducted in a two-week period in 1983 showed that only about 10% of the people appearing for jury duty were Latino, while Latinos made up about 18% of the county population, he said. The county, Morales contended, was too lax in permitting prospective jurors to be excused from serving, resulting in a racial disparity in the juror pool.

However, the court found that the statistical samples were too small in size and too brief in duration to show systematic exclusion by race.

In dissent, Justice Allen E. Broussard said he believed that Morales had made an adequate showing of bias in the Ventura County system and that he was entitled to a new trial.

“Our nation’s history is shadowed by too many examples of racially neutral rules which operated to exclude minority groups from their fundamental rights for us to be confident that a neutral law necessarily operates fairly,” Broussard wrote.