Tuesday, March 20, 2012

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S.C. Upholds Death Sentence in Orange County Robbery-Murder

By KENNETH OFGANG, Staff Writer

The California Supreme Court yesterday upheld the death sentence for a man convicted of a 1991 robbery-murder that took place outside a Tustin bank.

Justice Kathryn M. Werdegar, writing for a unanimous court, said John Clyde Abel failed to demonstrate prejudicial error at his 1997 trial or sentencing in Orange Superior Court.

Abel has numerous robbery convictions and was already serving a federal sentence of more than 53 years, and a state sentence of more than 44 years, when he received the death sentence for the 1991 killing of Armando Miller. Miller, 26, worked at his family’s market, and would regularly withdraw thousands of dollars from the bank so that the business could cash checks for its customers.

The $20,000 he had withdrawn just before being shot was never recovered. Abel was linked to the crime by eyewitness testimony, as well as a claim by a former girlfriend whom he had participated in a number of other robberies with that he had admitted the murder to her.

Murder Denied

Abel denied the murder, both at trial and at his sentencing by Judge Robert Fitzgerald. He claimed his former partner-in-crime, Lorraine Ripple, was crazy and that she had fabricated the alleged confession because he became involved with another woman. The defense argued that the eyewitnesses were mistaken.

On appeal, the defense claimed that a number of remarks by Fitzgerald before and during the trial suggested a bias against the defense.

Among those was a comment at a pretrial hearing regarding the extent to which the defendant would be restrained during the trial. When the judge noted that Abel—who has been incarcerated for most of the past 50 years—had an escape conviction, the defense suggested that at the age of 53, it was hardly likely Abel would bolt from the courtroom.

Fitzgerald responded:

“You know, I’m 61 and I’m going to outlive both of my bailiffs, so 53 doesn’t impress me at all. Poor old gentleman. Am I supposed to feel sorry for him?”

Defense Objection

The defense also objected that during the trial, after the prosecutor objecting during defense attorney Ed Freeman’s argument that counsel had asserted a fact for which there was no support in the evidence, Fitzgerald disparaged Freeman by saying:

“[I]f either side’s attorney intentionally misrepresents any fact during the course of the trial, including their argument, of course, and you think they’re lying to you, you can disregard their whole argument if you want to.”

The first remark, Werdegar said, like a comment during trial that if jurors spoke about the case “we have to have you shot, or some other reasonable form of punishment,” exhibited Fitzgerald’s “judicial style,” which has been commented on in other opinions, but did not display bias against the defense.

As for the comment regarding misrepresentation, the justice acknowledged that it “was inappropriate and potentially prejudicial,” but said that it “could not have had any effect on the jury’s verdict,” because the judge later assured the jurors that he knew the lawyers for both sides to be honorable and ethical, and told them not to draw any conclusions about the evidence from his remarks.

The case is People v. Abel, 12 S.O.S. 1270.