State Supreme Court Upholds Murderer’s Death Sentence : Appeal: Justices vote 4 to 3 to reject condemned man’s plea, despite agreeing that he was improperly barred from telling jurors why he wanted to live.

A narrowly divided state Supreme Court on Thursday upheld the death sentence of a convicted killer even though he was improperly barred from telling jurors why he deserved to live.

In a 4-3 vote, the court turned down an appeal from Charles Edward Whitt, found guilty in the shotgun murder of a bystander during a 1980 robbery in San Bernardino County.

The justices unanimously agreed that the trial judge should have permitted Whitt to answer when his attorney asked why his life should be spared.

But the majority concluded it could not overturn the death sentence because the lawyer had failed to explain to the judge what Whitt wanted to say--and thus there was no way to determine whether his testimony could have affected the verdict.

“Though the question ‘why do you deserve to live?’ might produce a significant answer . . . the range of conceivable answers (is) so vast that we cannot know whether the defendant’s actual response might have influenced the penalty determination,” wrote Justice David N. Eagleson.

In dissent, Justice Stanley Mosk said the court had become “notorious” for previous rulings allowing defendants to ask jurors for a death verdict. “Consistency would seem to have required the majority to vindicate, at least as wholeheartedly, the right of such defendants to ask for life,” he said. Justice Allen E. Broussard also dissented, as did Justice Joyce L. Kennard, marking the first time since joining the high court in April, 1989, that she has split from the conservative majority in a death-penalty ruling.

Frederick D. Friedman of Santa Monica, an attorney representing Whitt on appeal, said a rehearing would be sought. “This is a life-or-death issue and the person the jury most wants to hear from is the defendant himself,” said Friedman. “To not permit him to speak is quite striking.”

State Deputy Atty. Gen. Lilia E. Garcia called the ruling “fair and just,” noting that two different juries had agreed Whitt should receive the death penalty.

Whitt, now 40, was convicted and sentenced to death in the slaying of William Brooks McCafferty, 33, as Whitt fled from a robbery at a general store in Forest Falls. In 1984, the state Supreme Court upheld Whitt’s conviction but reversed the death sentence because the jury had not been instructed it must find Whitt intended to kill the victim.

At the penalty retrial, the defense urged the jury to spare Whitt’s life, contending he had become a “born-again Christian” and was remorseful over the killing. But when Whitt was asked why he wanted to live, the prosecution objected, saying such testimony was irrelevant. Superior Court Judge Ben T. Kayashima upheld the objection and Whitt left the witness stand.