People v. Lucero

Opinion

This case arises on an automatic appeal from a judgment of death imposed under the 1978 death penalty law. (Pen. Code, §§ 190.1-190.4.) 1 Defendant, Phillip Louis Lucero, was convicted of two counts of first degree murder (§§ 187, 189) and one count of arson (§ 452, subd. (c)). A special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)) was found true.

Defendant presents numerous claims of error regarding jury selection, the guilt phase and the penalty phase of his trial. We have concluded that although the judgment of guilt must be affirmed, the death verdict must be reversed due to error in the exclusion of mitigating evidence. The cause is therefore remanded for a new penalty trial in accordance with the views expressed in this opinion.

I.

Guilt Phase Evidence

On April 12, 1980, seven-year-old Chris Hubbard and ten-year-old Teddy Engliman were playing at the Hubbard home in the town of Yucaipa in *1012 western San Bernardino County. Chris’s father, Michael Hubbard, was working in the backyard garden. Sometime between 4 p.m. and 4:30 p.m. that afternoon, he gave the girls permission to go to the nearby I Street park to play on the swings.

At 4:30 or 4:45 p.m., Ruth Schultz heard defendant’s goose cackling and looked out her dining room window. She saw two girls matching the description of Chris and Teddy standing at the back of defendant’s lot between two fences. Defendant walked toward the girls and told them that the goose would not hurt them. The girls appeared to be coming into defendant’s yard.

Shortly after 5:00, no more than 30 to 40 minutes after the girls had left for the park, Michael Hubbard became concerned by their failure to return. He and his wife made separate trips to the park but were unable to find the girls. About 5:30, Mrs. Hubbard called the San Bernardino County SheriiF’s Department.

Sergeant Wallace Anton received a report of the missing girls from the sheriff’s Yucaipa substation about 6 p.m. In order to coordinate the search, a temporary command post was set up at the I Street park almost directly across the street from defendant’s house. Sergeant Anton assigned Deputies Charles Long and Hans Vander Veen to the search. Apparently at some point during the search one or more helicopters were employed.

About 7:15 p.m., Dolores Gwaltney heard defendant’s car start up and drive down the street. She lived next door to defendant and was able to recognize the car because of its defective muffler. Ten minutes later she saw the car return to defendant’s driveway. Three to five minutes later she saw defendant drive away in the car. Within minutes of the car’s second departure, Mrs. Gwaltney saw a fire in the rear portion of defendant’s house.

Deputy Long also noticed the fire as he reported to the search command post about 7:25 p.m. He radioed the California Department of Forestry and immediately began to fight the fire with a garden hose. He was joined shortly by Deputy Vander Veen and Sergeant Anton. Long and Vander Veen crawled into the burning house searching for anyone who might be inside. No one was found.

The Department of Forestry firefighters arrived at 7:37. Sergeant Anton immediately informed Fire Captain Charles Bryant of the missing girls and asked that the captain direct his men to search the burning house. Mrs. Gwaltney telephoned defendant at his parents’ house. Defendant returned to the scene with his parents in their car.

*1013 When the fire was under control, the sheriff’s officers returned to the command post across the street. The firefighters then alerted sheriff’s deputies to a large blood stain on the carpet of defendant’s living room. Several officers saw the bloodstain and questioned defendant. 2 The firefighters and deputies also noticed a bloodstained bedsheet and pieces of broken glass in the living room. About the time the deputies were examining the bloodstain, the bodies of the two girls were found in a nearby dumpster wrapped in green trash bags.

Subsequent searches by homicide detectives and sheriff’s criminologists verified that the stained carpet and bedsheet contained human blood. The pieces of glass came from a broken Pepsi bottle found in the living room. Additional bloodstains were discovered on the gate to defendant’s front yard. Teddy Engliman’s brown tennis shoes were found in the living room. A rope was lying in a doorway between the front porch and the living room. Green trash bags were discovered in the kitchen. Gasoline residue was found on the living room carpet and in the bedroom, where the fire is believed to have originated.

Searches of defendant’s car revealed blood stains on the exterior portion of the car trunk, on the driver’s outside door handle, and in the interior of the car and trunk. There was a puddle of still moist blood on the bottom of the trunk compartment.

At the time of his arrest defendant’s T-shirt was spotted with blood. The bottom of his left sock was saturated with blood. Dried blood was observed on one of defendant’s hands.

The girls’ bodies had been removed from the dumpster by 11 p.m. on April 12 and autopsies were performed the next day. The autopsy performed on Teddy Engliman revealed that several of the bones in her head had been fractured and that some of her teeth had been knocked out. The pathologist concluded that the injuries had been caused by a minimum of two or three blows from a blunt object. The immediate cause of death was aspiration of the blood produced by her injuries.

The autopsy of Chris Hubbard revealed an abrasion on her neck. The pathologist determined ligature strangulation to be the cause of death. He also concluded that the necklace Chris was wearing could have been used in the strangulation. Under magnification the doctor discovered “fine abrasions or little scrapes” within a discolored area on Chris’s wrists. Although *1014 he thought there could be other possibilities, the pathologist testified that the marks may indicate that the victim’s wrists were tied together with some kind of rough twine or rope.

The doctor found no injuries which suggested the girls had been sexually molested. Tests of vaginal and anal swabs for traces of seminal fluid also proved negative.

When Teddy’s body was removed from the trash bag numerous fragments of broken glass fell out. These fragments were later identified as coming from the same broken Pepsi bottle found in defendant’s living room. The blood found on defendant’s living room carpet, the bedsheet, the inner tube located in the trunk of his car and defendant’s sock was tested and found to be of the same type as the blood taken from Teddy Engliman during the autopsy. (It did not match that of either Chris Hubbard or the defendant.) The plastic trash bags which had contained the bodies of the victims were found to be identical in color, thickness, size, packing folds and heat seals to the trash bags found in defendant’s kitchen.

The minimal cross-examination conducted by defendant during the guilt phase focused on the impression of his emotional state formed by those having contact with him during the effort to extinguish the fire and immediately thereafter. All witnesses agreed that defendant appeared surprisingly indifferent and oddly subdued given the circumstances.

The defense called Deputy Ronald Durling as its only guilt phase witness. 3 Deputy Durling testified that defendant consented to the search of his house and car. Pursuant to a stipulation, the defense also read into evidence testimony which would have been given by defendant’s wife had she been called as a witness. This testimony consisted of a statement that Mrs. Lucero left the house unexpectedly on the day of the murders and had no preexisting plan to be absent.

*1015 II.

Jury Selection Issues

Exclusion of Prospective Jurors.

Defendant challenges the trial court’s exclusion of prospective juror Roy Van Hoy.

The trial court initiated the examination of prospective juror Van Hoy:

“Court: Do you or anyone close to you have such a conscientious opinion regarding the death penalty that such an opinion would make it impossible for you to vote for the imposition of the death penalty in any case, under any circumstances, and regardless of the nature of the evidence introduced during the trial and penalty phase?

“Van Hoy: I’m afraid I’m going to have to say yes to that.

“Court: Your personal feelings about the death penalty are such that you cannot conceive of any circumstances, any evidence, or any case under which you could possibly ever vote for the death penalty. Is that a correct statement?

“Van Hoy: So long as we have jails to put em in, no I could not.

“Court: You could not?

“Van Hoy: No, I could not.

“Court: It’s a matter of conscience and you could never under any circumstance vote for the imposition of the death penalty?

“Van Hoy: I feel like it would just be the same as me killing the guy himself [sz'c],

“Court: That’s your —

“Van Hoy: That’s my opinion.

“Court: That’s your conscientious opinion?

“Van Hoy: Yes, it is.”

*1016 Although following this exchange defense counsel elicited testimony from Mr. Van Hoy that he could follow the law as given by the judge, upon reexamination by the court Mr. Van Hoy reiterated his position that he could not vote for the death penalty. We find no error on this record. Mr. Van Hoy repeatedly and unequivocally stated that under no circumstances could he vote for the death penalty in this case regardless of the evidence. (See Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 785, 88 S.Ct. 1770]; Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]; People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250].)

III.

Guilt Phase Issues

A. Illegal Discovery of Evidence.

Defendant claims that several law enforcement officers entered his home illegally without a warrant. He maintains that these illegal entries led to the discovery of evidence later recovered from his house, car and clothing, and that this evidence should have been suppressed as the fruit of an illegal search. Respondent argues that the warrantless entries were justified because they occurred in connection with an arson investigation, and because of the exigency created by the missing girls.

As the firefighters were completing their “mopping up” operation at defendant’s house, Captain Bryant and a second fireman discovered what appeared to be a large bloodstain on the living room carpet. Captain Bryant thought the bloodstain should be examined by law enforcement officers and sent for a deputy from the command post across the street. The first of the challenged entries occurred when Deputy Long and 16-year-old Explorer Scout Kenneth Rumple returned to view the blood stain. After looking at the stain, Long and Rumple quickly walked through the rest of the house. Long immediately radioed Sergeant Anton.

Sergeant Anton had been ordered to report to the neighborhood Safeway store. The body of one of the missing girls had been discovered in a green trash bag in a dumpster behind the store. 4 Anton received Long’s radio call as he arrived at the store. He directed Long to secure the scene and immediately started for defendant’s house. When he arrived the firefighters were completing their cleanup activities and were preparing to leave. Anton *1017 briefly examined the bloodstain and radioed the station to notify them of his find. Defendant also challenges Sergeant Anton’s entry into his house.

Defendant concedes that fire and police officials may remain at the scene to investigate the causes of a fire once it has been extinguished, even though a warrant may be required to return to the property for subsequent investigations. (Michigan v. Tyler (1978) 436 U.S. 499, 510 [56 L.Ed.2d 486, 499, 98 S.Ct. 1942].) He claims, however, that the officers were interested in evidence related to the missing girls and were not really conducting an arson investigation. We conclude, however, that the perceived danger to the missing children would still justify a warrantless entry and search.

A long-recognized exception to the warrant requirement exists when “exigent circumstances” make necessary the conduct of a warrantless search. “ ‘[E]xigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.” (People v. Ramey (1976) 16 Cal.3d 263, 276 [127 Cal.Rptr. 629, 545 P.2d 1333], cert. den. sub nom., California v. Ramey (1976) 429 U.S. 929 [50 L.Ed.2d 299, 97 S.Ct. 335].)

We believe the search for the missing girls justified the officers’ brief entries into the house. We must consider the facts as known to the officers. Two young girls are missing. A fire of unknown origin ignites in a house directly across the street from the park where the girls had gone to play. The girls, their bodies, or clues to their location might be somewhere in the burning house. Thus, when the firefighters first arrived at the scene, Sergeant Anton advised Captain Bryant of the missing children and asked him to order his men into the burning house with oxygen equipment to look for the girls.

The report of the bloodstain was another unusual circumstance adding weight to the suspicion that the house and the missing girls might be connected. The presence of blood also suggested that the children were in serious danger. At the time of Anton’s entry the body of one of the girls had just been found, making it likely that the second girl was in imminent danger and making discovery of her location even more urgent.

Whether the officers were primarily interested in finding a lead to the missing girls or in investigating the fire is irrelevant. Either purpose would have justified their brief warrantless entries. In combination, these circum *1018 stances clearly created an emergency situation requiring swift action. We conclude that, based on the totality of the circumstances known to the officers at the time, Deputy Long, Explorer Scout Rumple and Sergeant Anton were justified in entering defendant’s house without first seeking a warrant.

The later entry of Detective Swanlund presents a different situation. Swanlund was a homicide detective called after the first body had been found. He was not concerned with the arson investigation and had not been involved in the search for the missing girls. He was presumably interested in any evidence related to the murdered girl. When he arrived at the house the area had been secured and defendant was already at the sheriff’s department substation.

Although no exigent circumstances justified Swanlund’s warrantless entry, his observations were of no significance. Within 30 minutes of his arrival, homicide detectives and sheriff’s criminologists arrived to conduct a full-scale search of defendant’s house and car with defendant’s consent. The consensual searches provided an independent basis to seize the challenged evidence. It should also be emphasized that Swanlund (or for that matter, Long, Rumple and Anton) did not testify at trial as to the observations he made during his brief entry into defendant’s house. We conclude that the trial court properly denied defendant’s suppression motion.

B. Sufficiency of the Evidence of Premeditation and Deliberation.

The only theory of first degree murder presented to the jury was that of premeditated murder. Although the trial court properly instructed the jury in this regard, defendant contends that the evidence presented at trial is insufficient as a matter of law to support a finding of premeditation.

In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942], we identified three categories of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation: (1) facts showing planning activity; (2) facts suggesting motive; and (3) facts about the manner of killing which suggest a preconceived design. Although the evidence presented at defendant’s trial was not particularly strong on any one of the Anderson factors, the record reveals at least some evidence in each category. When considered in combination, and viewed in a light most favorable to the prosecution (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781]), this evidence is sufficient to support the jury’s finding of premeditated murder.

The most substantial evidence of premeditation related to planning activity, “the most important prong of the Anderson test.” (People v. Alcala *1019 (1984) 36 Cal.3d 604, 627 [205 Cal.Rptr. 775, 685 P.2d 1126].) Defendant approached the children near the edge of his property and was heard to reassure them that they would not be harmed by his goose. The girls were seen entering defendant’s yard and were killed inside his house. Since it is unlikely two young girls would have readily accompanied a man they did not know into a strange house, the jury could have reasonably inferred that defendant lured or compelled the victims to enter. The evidence also indicated that once inside the house defendant used a rope to bind the wrists of one girl, from which the jury could have inferred that defendant intended to immobilize one victim while he carried out his plan with respect to the other.

Defendant argues that his actions were not clearly “directed toward, and explicable as intended to result in, the killing. . . .” (People v. Anderson, supra, 70 Cal.2d at p. 26.) However, we have not always required that a murder plan be evident before characterizing conduct as planning activity. In People v. Arcega (1982) 32 Cal.3d 504 [186 Cal.Rptr. 94, 651 P.2d 338], for example, we found some evidence of planning where a neighbor testified that it was unusual for the defendant to have his curtains drawn. In this case, defendant’s conduct prior to the killing appears much less ambiguous than the simple fact of drawn curtains relied on in Arcega.

The evidence of a motive for the murders is arguably the weakest element in Anderson’s tripartite analysis. In People v. Alcala, supra, 36 Cal.3d at page 627, however, we found a “plausible motive” based on the fact that “defendant had committed a serious felony, kidnaping, on the victim and believed the victim to be the only person who could implicate him. ‘[H]ence he could [surmise] that by killing her . . ., he would eliminate the only [witness] to his [crime].’”

In this case defendant intercepted the girls from their innocent journey and brought them to his house. The evidence that the younger victim’s wrists had been tied suggests additional mistreatment before the murders, which may have further escalated the consequences to defendant of letting his victims go free. As far as defendant knew, no one had ever seen him with the girls. The jury may have inferred that defendant killed them in order to avoid disclosure of his conduct. 5 It should also be noted that whatever the reason for killing the first victim, once this deed was done, defendant had a strong motive to eliminate the only witness to his crime.

*1020 The evidence indicated that Chris was strangled with the necklace she was wearing. While ligature strangulation may not always evidence a premeditated murder (see People v. Rowland (1982) 134 Cal.App.3d 1, 9 [184 Cal.Rptr. 346]), the jury could have viewed the strangulation as a deliberate manner of killing sufficient to indicate a “preconceived design.” (The manner of Teddy’s killing, multiple blows to the skull from a blunt object, is much less suggestive of premeditated murder.)

Although the evidence was far from overwhelming, we need not be convinced beyond a reasonable doubt that defendant premeditated the murders. The relevant inquiry on appeal is whether “‘any rational trier of fact’ ” could have been so persuaded. (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255], quoting from Jackson v. Virginia, supra, 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573], italics original.) The steps taken by defendant prior to the killings, including securing the girls’ presence in his house and binding the wrists of one, the possible motive of preventing disclosure of these deeds and anything else that may have occurred in the house that afternoon, and the ligature strangulation of Chris, provide sufficient evidence to support the jury’s finding that the murders were premeditated and deliberate.

C. “Sears/Anderson” Instruction.

Defendant contends that under this court’s decision in People v. Sears (1970) 2 Cal.3d 180 [84 Cal.Rptr. 711, 465 P.2d 847], the trial court committed reversible error by refusing to give the following requested instruction: “Evidence of premeditation and deliberation falls into three (3) basic categories: (1) Facts showing prior planning activity [j|] (2) Facts of prior activity suggesting motive [4[] (3) Facts about the manner of the killing which suggests a preconceived design, [fl] In order to sustain a first degree murder verdict there must be evidence of all three (3) types of facts or otherwise extremely strong evidence of prior planning (type 1) or evidence or [sz'c] motive (type 2) in conjunction with either prior planning (type 1) or manner of killing (type 3).” 6

In Sears we held that a defendant has a right to instructions which direct the jury’s attention to evidence which might engender a reasonable doubt, and to instructions which “relat[e] particular facts to any legal issue.” (Sears, supra, 2 Cal.3d 180, 190.) Although acknowledging that his request *1021 ed instruction did not direct the jury’s attention to specific facts or evidence, defendant points to our observation that “a [Sears] instruction may, in appropriate circumstances, relate the reasonable doubt standard for proof of guilt to particular elements of the crime charged [citation] or may ‘pinpoint’ the crux of a defendant’s case, such as mistaken identification or alibi.” (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885 [123 Cal.Rptr. 119, 538 P.2d 247, 92 A.L.R.3d 845].) As explained in a Court of Appeal decision: “What is pinpointed is not specific evidence as such, but the theory of the defendant’s case. It is the specific evidence on which the theory of defense ‘focuses’ which is related to reasonable doubt.” (People v. Adrian (1982) 135 Cal.App.3d 335, 338 [185 Cal.Rptr. 506], original italics.)

Defendant’s requested instruction did not direct the jury’s attention to particular facts which might create a reasonable doubt regarding premeditation and deliberation, nor did it relate the reasonable doubt standard to elements of the crime charged or to a theory of the defense. Instead, the proffered instruction quoted directly from Anderson, supra, 70 Cal.3d 26, to incorrectly suggest to the jury that it must find evidence of planning, motive and manner of killing in proper combination under one of the alternative Anderson formulae before it could find first degree murder. The Anderson factors, however, are not elements of the crime of first degree murder which the jury must find proven beyond a reasonable doubt before returning a guilty verdict. The Anderson court merely set forth a standard of appellate review by identifying the type of evidence that this court has found sufficient to sustain a finding of premeditation and deliberation. The trial court had correctly defined a deliberate and premeditated murder by giving CALJIC No. 8.20 (People v. Goldbach (1972) 27 Cal.App.3d 563, 569 [103 Cal.Rptr. 800]), and defendant’s additional instruction on this issue was properly refused.

D. Spectator Outburst.

Defendant contends that the trial court committed reversible error in denying his request for a mistrial after an emotional outburst by a courtroom spectator. 7

During the guilt phase closing argument, defense counsel emphasized that for the extended period the girls were in defendant’s house no screams or other unusual sounds were heard by neighbors. He suggested that this was especially significant given the fact that Chris may have been tied up, *1022 and that one of the girls had to have witnessed the murder of the other. He also pointed out that there was no evidence that either girl had been gagged. Counsel argued that this evidence suggested that, rather than being premeditated, the killings occurred at the same time in an explosion of violence.

A short time later, as the jury was preparing to leave the courtroom to begin guilt phase deliberations, Teddy Engliman’s mother cried out: “There was screaming from the ball park. They couldn’t hear the girls because there was screaming from the ball park. That’s why they couldn’t hear it. The girls were screaming—screaming from the ball park, screaming, screaming, screaming. That wasn’t in the case. Screaming, screaming from the ball park. Why wasn’t that brought up? Why, why, why?” 8

Mrs. Engliman was escorted from the courtroom by a number of people, including friends, relatives, the bailiff and the “[prisoner] escort officer.” Even after she left the courtroom, her “screaming” could still be heard from the corridor. Several minutes after the outburst, “they [were] still tending to her just outside the courtroom.” After the outburst, the court again directed the jurors to retire for deliberations, prefacing the order with a cursory admonition: “The jurors are admonished to disregard the outburst. The jurors, except for the alternate jurors, will go with the bailiff. The alternate jurors will remain here.” The jury then left the courtroom. Defendant’s in-chambers motion for mistrial was denied.

Misconduct on the part of a spectator is a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict. (People v. Slocum (1975) 52 Cal.App.3d 867, 884 [125 Cal.Rptr. 442], cert. den. sub nom. Slocum v. California (1976) 426 U.S. 924 [49 L.Ed.2d 379, 96 S.Ct. 2635].) A trial court is afforded broad discretion in determining whether the conduct of a spectator is prejudicial. (Ibid.)

Defendant claims that three factors make the spectator misconduct particularly serious in this case. He notes that the outburst came at the worst possible time in terms of its prejudicial impact—just as the jury was preparing to leave the courtroom to begin deliberating on his guilt. Defendant additionally argues that this prejudicial impact was compounded by the fact that the outburst was not simply a display of emotion, but may have *1023 informed the jury of facts outside of the record. Finally, defendant maintains that we must be especially sensitive to the fact that the emotional outburst occurred in a capital trial. “[T]he presumption of prejudice from jury contact with inadmissible evidence is even stronger in the context of a capital case. ‘It is vital in capital cases that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment. Nor can any ground of suspicion that the administration of justice has been interfered with be tolerated.’ [Citation.]” (People v. Hogan (1982) 31 Cal.3d 815, 848 [183 Cal.Rptr. 817, 647 P.2d 93] [judgment reversed because, among other errors, jury inadvertently learned during deliberations of defendant’s refusal to take a lie detector test].) 9

Although defendant cites four out-of-state cases which reverse because of spectator misconduct, none of these cases involved a single isolated outburst. 10 In Rodriguez v. State (Fla.App. 1983) 433 So.2d 1273, 1276, the victim’s widow shouted epithets and interspersed her testimony with impassioned statements evidencing her hostility toward defendant. In State v. Stewart (1982) 278 S.C. 296 [295 S.E.2d 627, 629-631], certiorari denied 459 U.S. 828 [74 L.Ed.2d 65, 103 S.Ct. 64], the trial court failed to explore the prejudice which may have resulted from the conduct of a spectator who continually glared at the jury and who made opinionated remarks regarding defendant’s guilt which were overheard by several jurors; an overcrowded and noisy courtroom also resulted in several outbursts requiring admonitions. In Price v. State (1979) 149 Ga.App. 397 [254 S.E.2d 512, 513-514], the victim’s mother repeatedly disrupted the proceedings with emotional outbursts and other interruptions. Defendant’s repeated requests for mistrial or to have the spectator removed from the courtroom were denied. Walker v. State (1974) 32 Ga.App. 476 [208 S.E.2d 350] found an abuse of discretion when the trial court allowed the mother of the victim to sit at the prosecution table throughout the trial over defendant’s objection. We note two other cases: State v. Gevrez (1944) 61 Ariz. 296 [148 P.2d 829, 832- *1024 833], in which the mother of the deceased victim sat within three to four feet of the jury, repeatedly interrupted the trial with emotional outbursts, and wept bitterly throughout the trial; and Glenn v. State (1949) 205 Ga. 32 [52 S.E.2d 319, 321-322], in which the widow of the victim wept visibly and audibly during final argument after the prosecutor had asked her to be present to “let the jury know she was interested.”

The isolated outburst in this case was followed by a prompt admonition. For this reason, and because of the broad discretion afforded the trial court in cases of spectator misconduct, we find no abuse of discretion in the denial of defendant’s motion for mistrial. 11

IV.

penalty phase evidence

Defendant did not testify, but called several witnesses who described his character, background and family history. These witnesses included his father, mother, brother, sister,.a childhood school mate and her husband, and a friend of his father.

The testimony shows that defendant’s mother was 16 years old when he was bom. His father had a serious drinking problem and was unable to provide even the bare necessities for his family. When defendant was four years old-, his mother took her children and ran away to Texas with another man. Within a year his father discovered their location and forced his mother to give up the children.

Defendant’s father initially took the children to live with him in Colorado; however, within two months defendant’s siblings were sent to live with relatives. Defendant and his father remained together, living in a “shack” without electricity or running water. His father continued drinking heavily and paid little attention to defendant. Defendant’s father eventually moved to California and left defendant with relatives. A short time later defendant was reunited with his father in California; however, his father continued to drink and defendant was essentially raised by relatives.

All witnesses agreed defendant has always been a withdrawn, passive and emotionally isolated individual. He also was described by several witnesses *1025 as a responsible young man, frequently babysitting for the daughter and son of family friends. There were never any problems with the care provided by defendant and both parents trusted him with their children. He has no criminal record and had never been in trouble with the police. He did not participate in the rowdy behavior—drinking and ransacking property—of his brother and his brother’s friends. They “couldn’t even draw him into going to get a drink. . . .”

At 16, a withdrawn and unhappy teenager, defendant lied about his age and, with his father’s assistance, joined the army. Defendant completed three tours of combat in Vietnam. He received a Purple Heart and the Combat Infantry Badge, which is awarded to soldiers exceeding a specified amount of time in combat.

Defendant’s psychological portrait was drawn by Dr. Edward Conolley. Defendant has serious psychological problems arising from his childhood experiences and his experiences in Vietnam. He suffers from severe emotional problems as a result of his difficult childhood. These emotional problems, combined with his young age and low-normal intelligence level, made him especially vulnerable to the stresses of combat. As a result of his combat experiences, defendant manifests definite symptoms of posttraumatic stress syndrome dating back to 1969. The doctor described these symptoms in detail: (1) reexperiencing two traumatic incidents in recurrent flashbacks; (2) emotional isolation and detachment both in Vietnam and in civilian life; (3) reenlistment and repeated volunteering for combat tours because of an inability to adjust to life outside of the comb