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Name: People v. Nadey
Case #: S087560
Court: CA Supreme Court
District CalSup
Opinion Date: 06/17/2024

Trial court did not err in rejecting defendant’s Batson/Wheeler claims. In an automatic appeal from a judgment of death, the Supreme Court rejected defendant’s claim that he was denied his constitutional rights to equal protection and a representative jury because the prosecutor exercised peremptory challenges to exclude Black women from the jury. Substantial evidence supports the trial court’s ruling that each of the five Black female jurors was excused for permissible reasons, including hesitancy about imposing the death penalty. The court also rejected claims of error and prosecutorial misconduct regarding testimony and argument about a defense retained DNA expert who was not called as a witness; confrontation claims related to a pathologist who did not conduct the autopsy report but related the findings to the jury; and claims that the trial court did not adequately investigate juror misconduct related to a juror sharing another juror’s poem with other members of the jury. The court also rejected defendant’s claim that the prosecutor committed misconduct by using derogatory epithets to refer to defendant during the penalty phase closing argument. Further, although the prosecutor committed misconduct by displaying two publications on Nazi party symbols during closing argument, the use of these extra-record materials was not prejudicial.

Justice Liu dissented, disagreeing the majority opinion’s application of Batson. In Justice Liu’s view, the record shows it is more likely than not that the exclusion of at least one Black woman was racially motivated. These circumstances included the fact that the prosecutor challenged five of six Black women jurors, that several of the prosecutor’s reasons for exercising those strikes were inconsistent with the record, and that the prosecutor accepted several non-Black jurors who expressed reservations about imposing the death penalty.  [Editor’s Note: Noting that PC 237.1 does not apply to defendant’s claims, Justice Liu observed that the prosecutor advanced several reasons for peremptory strikes that are now presumptively invalid under PC 237.1, and that the Legislature may wish to consider whether to make the reforms of section 231.7 retroactive to cases pending on appeal.]

With respect to defendant’s claim that the prosecutor committed misconduct by referring to him as a “tattooed hyena,” a “tattooed beast,” and other derogatory epithets during closing argument, Justice Liu noted that no court should permit a prosecutor to portray a defendant in these terms and that the majority’s opinion may encourage this type of behavior.

The full opinion is available on the court’s website here: