Court Rules on Death Penalty Cases : Evidence: Appeal court ruling is a blow to prosecutors. However, it conflicts with other rulings.

Proposition 115, the wide-ranging anti-crime initiative, does not give prosecutors the right to review evidence defense attorneys might offer to spare accused murderers from the gas chamber, a state appeal court in San Diego ruled Wednesday.

In a death-penalty case, the 4th District Court of Appeal said, the trial is split--the first part centering on guilt, the second a sentencing hearing. Only if the first phase ends in a guilty verdict can prosecutors then review the evidence--usually on a defendant’s troubled background--to be used to plead for mercy at the sentencing hearing, the court ruled.

The ruling directly conflicts with rulings in August from state appeal courts in Santa Ana and San Jose that reached the opposite conclusion, giving prosecutors the right before a capital case begins to review all defense evidence. That kind of conflict makes an appeal to the state Supreme Court likely, San Diego prosecutors said.

The San Diego ruling “means the trial courts throughout the state can choose to follow whichever (appellate decision) they want,” said Paul Morely, a deputy district attorney pressing for defense disclosure. “One day they can follow one ruling. The next day they can choose another. It leaves (prosecutors) in an awkward and confusing situation.”

Defense lawyers said they expected a further appeal. But the 4th District ruling, said Frank Bardsley, San Diego’s public defender, was “a major victory.” He added: “It’s something we’ve been fighting hard for.”

The ruling grew out of murder charges filed against Douglas Hines Jr., 43, a Spring Valley man accused of the May 1, 1991, stabbing death of an acquaintance, Nita Nevarez, 53.

Hines, who was convicted of murder in Texas and served 14 years in prison before being paroled in 1988, is still awaiting trial in San Diego.

The district attorney’s office announced that it intended to seek the death penalty against Hines and, on May 11, 1992, filed court papers seeking the evidence and the names of witnesses the defense planned to put on at “any stage of trial.” Prosecutors said their request was authorized by Proposition 115.

Passed with 57% of the vote in June, 1990, the so-called Crime Victims Justice Reform Act includes a series of procedural reforms aimed at speeding criminal cases through the courts. The initiative requires defense lawyers to disclose evidence they plan to offer “at the trial.”

San Diego Superior Court Judge Laura Hammes granted the prosecution request for defense evidence. But the 4th District court reversed that ruling, saying Wednesday that, in the context of a capital case, the phrase “at the trial” is ambiguous and it would be an unfair breach of courtroom tactics to force defense lawyers to disclose their strategy.

Most death-penalty trials include evidence--at the penalty phase--about a defendant’s background and character. If divulged by the defense and portrayed by prosecutors during the first phase of the trial as a disposition toward crime, that could sway the jury to reach a guilty verdict, Judge William L. Todd Jr. said.

But that same background, if presented by the defense during the sentencing hearing as the result of a tortured family history, might incline a jury toward mercy, Todd said.

Divulging such evidence at the end of the first phase, after a guilty verdict, eliminates the problem while still complying with Proposition 115, Todd said.

Judges Don R. Work and Richard D. Huffman joined the opinion.