Full opinion text
Opinion LUCAS, C. J. Introduction On June 18, 1981, an information was filed in Alameda County Superior Court charging defendant Alfred Dyer with two counts of first degree murder—each count alleging a multiple murder special circumstance (Pen. Code, § 190.2, subd. (a)(3))—two counts of attempted murder (id., §§ 187, 664) and four counts of kidnapping (id., § 207). (All further statutory references are to the Penal Code unless otherwise indicated.) In addition, all eight counts of the information alleged that defendant was armed with, and used, a firearm, and that he intentionally inflicted great bodily injury. (§§ 1203.06, 1203.075, 12022, subd. (a), 12022.5, 12022.7.) The information also alleged three prior felony convictions: one armed robbery and two burglaries. (§ 667.5, subd. (b).) Defendant pleaded not guilty to all eight counts and denied the special circumstances, the enhancements, and the prior convictions. He subsequently admitted the prior convictions. A jury found defendant guilty of each crime charged, and found the special circumstance allegations to be true. The jury also found true all of the enhancements, except for two allegations of intentionally inflicting great bodily injury. The jury fixed the sentence at death for both counts of murder. Defendant’s appeal is automatic. (§ 1239.) As will appear, we have concluded that the judgment should be affirmed. Facts On November 8, 1980, defendant and two other men—Michael Jackson (defendant’s brother) and Cleveland Ario—drove in Jackson’s two-door Cadillac to the apartment of their friend, Belinda Murray, located in the San Antonio Village housing project in Oakland, California. Belinda shared the apartment with her two children, her brother Floyd, her friend Nora Fluker, and Nora’s four children. The two-level apartment had a kitchen and living room on the first floor, and two bedrooms and a bath on the second floor. Defendant (armed with a .38 caliber handgun), Ario (armed with a .45 caliber semiautomatic pistol), and Jackson arrived at Belinda’s apartment around 9 p.m., bringing with them some cocaine and an open bottle of wine, which they drank. Shortly after their arrival, Belinda’s friend Bennie Warren arrived at the apartment. Bennie had met Jackson before, but he had never met defendant or Ario before that night. Belinda introduced Bennie to the others, and they talked for awhile. Bennie found defendant to be “stable-minded” and “intelligent.” Later, Belinda, defendant, Jackson and Ario went upstairs to Belinda’s bedroom. Bennie started to follow them but Jackson told him to wait and that they would be right back. Once upstairs, Ario injected Belinda, defendant and himself with a mixture of heroin and cocaine, and Jackson injected himself with the drug. Nora joined them and also had some of it. Belinda received a small dose, which she recalled caused a brief pleasant feeling. The dose defendant received, which appeared to be the same size as the one given Belinda, had no apparent effect on him. Defendant, Jackson and Ario then left the apartment. Belinda and Bennie also left, returning with gum, cigarettes, and another bottle of wine. They talked with Nora in the kitchen; Floyd was upstairs with the sleeping children. Around midnight, defendant, Ario and Jackson returned to the apartment. Defendant appeared in the same condition as when he had left. The three men went upstairs with Belinda and Bennie to Belinda’s bedroom where they again injected themselves with drugs; Belinda did not inject this time, nor did Bennie. Defendant then lay down on Belinda’s bed, covered his eyes with his arm and rested. He answered questions while lying down and heard Ario ask Belinda to keep his gun for him. Ario then gave his gun to Belinda and she placed it in her closet. Bennie left the apartment soon thereafter, followed by Jackson and Ario. Defendant “awoke” about five minutes later. He appeared startled and asked Belinda if his brother (Jackson) had removed his rings from his fingers. Belinda said she did not know. Defendant concluded that Bennie must have taken his rings. Defendant told Belinda to give him Ario’s gun, which he stuck inside his pants along with his own .38 caliber gun. He then asked Belinda to accompany him through the housing project in search of Bennie; he especially wanted to check out a few places where Bennie might attempt to pawn the rings. Defendant talked with Belinda while they walked. He appeared angry, but not intoxicated. He walked in his usual way and he “talked like he normally did when he’s mad.” He told Belinda that he was going to kill Bennie if he found him that evening and that if he could not find him, he was going to “whip his ass” when he did. While walking, Belinda and defendant met Robert Fluker (Nora’s brother-in-law) and his “common law” wife, Carol Tiexiera. (Belinda testified to this meeting at both the preliminary hearing and trial.) At all times, according to Belinda, defendant appeared to be in normal condition; he did not seem intoxicated or “spaced out.” There was nothing unusual in the way defendant walked or talked during the search for Bennie. The two soon returned to Belinda’s apartment. On their return, Belinda and defendant found Nora writing a letter at the kitchen table. Defendant sat on the living room couch and Belinda went upstairs. Belinda heard a knock at her back door about five minutes later and, looking out her bathroom window, saw Bennie standing at the door. She rushed downstairs and found defendant pistol-whipping Bennie on the head; defendant had his gun in one hand and Ario’s gun in the other and was beating Bennie on both sides of his head, drawing blood from each side. Bennie’s face was bloody and he was almost unconscious. Bennie testified that when he returned to Belinda’s apartment defendant appeared “angered but in control.” Defendant demanded that Bennie return his rings; Bennie insisted he did not know what defendant was talking about and that he did not have any rings. Nora intervened in an attempt to stop the pistol-whipping, but defendant told her that nobody was going to get hurt. He instructed Bennie to sit in a chair in a comer of the kitchen and told him, “You better pray that my brother has my rings.” At all times during the beating, defendant appeared normal and in control of himself. Within minutes, Jackson’s car drove up. Belinda ran outside and asked him whether he had defendant’s rings. She followed Jackson and Ario into the kitchen where Jackson asked defendant what was the matter. Defendant pushed him away with one hand; defendant still had a gun in each hand at the time. Jackson appeared upset by defendant’s act and left the apartment. Belinda and Nora went outside and quieted him; he then went back inside. This time, when defendant saw Jackson he gave him one of the guns. Jackson immediately became violent. He pushed both Belinda and Nora and commanded them not to move. Defendant, his gun still trained on Bennie, told Ario to search him. Ario searched Bennie, taking off his shoes and socks, checking his pockets, removing his wallet, and taking his gold rope chain. No rings were found. During the search, defendant kept his gun pointed at Bennie and told him, “You’re a dead man.” Upon hearing that remark, Ario told defendant that if he killed one of them he would have to kill the others as well. Defendant replied that he would not kill any of the children. Ario then said that Floyd was upstairs and he ran to get him. Floyd was then pushed and shoved down the stairs and into the kitchen. Ario went outside and turned the car around, and next exited the car and held the driver’s door open while Jackson marched the four captives (Nora, Belinda, Bennie and Floyd) out to the car at gunpoint. Defendant remained at the kitchen doorway with his gun pointed at them. He then walked to the car and stood at the open driver’s door. On the way to the car, one of Belinda’s neighbors saw her and yelled from her next-door house, “Where in the hell are you going this time of night?” Before Belinda could respond, Jackson forced her into the car. Defendant likewise forced Bennie into the car. The four hostages sat in the back seat; Ario was behind the wheel and Jackson was on the passenger’s side of the front seat, with defendant between them. Bennie was behind Ario with Nora to his right; Floyd was to her right and Belinda was next to Floyd and behind Jackson. As Ario drove off, the four hostages began arguing with each other, urging whoever had the rings to return them; none of them, however, admitted having the rings. Jackson finally turned around, gun in hand, and ordered them to “shut up.” Ario then said that they should “kill that bitch first,” referring to Belinda. When Belinda asked why, Ario explained that she and her friend had sent his brother to prison. Also during the ride, Floyd asked defendant approximately three times, “Why do you want to take me out?” Defendant told him to “shut up” and stuck his gun in Floyd’s face. After riding about 10 minutes, someone in the front seat said, “Right here is cool.” The car came to a stop and defendant said, “Get out.” Ario exited the car, followed by defendant, who commanded Bennie to climb out. Bennie and Nora exited on the driver’s side, and Belinda and Floyd left from the passenger’s side. Defendant still had the .45 automatic in his hand, pointed at the hostages. He instructed the four to walk to the rear of the car. They were then told to walk straight ahead. They walked single file for a short distance before they were told to stop. While Ario was turning the car around, Jackson, still holding the .38 caliber revolver, ordered Belinda to lay face down on the ground next to her brother, Floyd. Defendant ordered the others to lay face down also; Nora was next to Floyd and Bennie was next to Nora. Before lying down, Belinda saw that defendant still had a gun. After she lay down, Belinda looked up. It was very dark so she was unable to see her captors. She did, however, see “the fire coming” and she heard a loud noise as the first shot was fired. She threw her arms up over her head and passed out. (One shot had struck Belinda in her right arm, breaking the bone in four places.) When the hostages were ordered to lie face down, all of them obeyed except Floyd, who stayed on his knees. Bennie heard three shots from the .38 caliber revolver come from his left, where Belinda was lying. (Bennie had been a member of the National Rifle Association since age 13. He had won several trophies and awards for marksmanship and was very familiar with guns.) He then heard scuffling noises, as if someone was being beaten. Bennie observed Belinda being beaten up while she was unconscious; her jaw was broken in two places. Someone said, “This bitch ain’t dead yet.” Bennie heard a few more shots and someone say, “If she’s not dead now, she’ll be dead by morning.” Bennie thought the additional shots also came from the .38 caliber revolver. Bennie next heard some shots fired from the .45 caliber gun, followed by more scuffling sounds. (Apparently Floyd had tried to escape; there was evidence that he had been involved in a struggle prior to his death.) Bennie then heard someone walk toward him. He looked up and saw defendant, holding the .45, about a foot away from Nora. Defendant fired three more shots; each time a bullet entered Nora’s body, Bennie “could feel her fluttering and jumping.” Defendant then stepped in front of Bennie. Bennie got up on his knees; defendant pointed the gun at his head and fired. The bullet struck Bennie over his right eye, grazed him near his right temple. Bennie flipped over backwards and, before losing consciousness, heard someone say, “If they’re not dead now, they’ll be dead by morning,” and someone else say, “Check their pulse.” Bennie then passed out. When Belinda regained consciousness, she felt someone taking her pulse and heard him say, “The bitch is not dead.” A gun was placed against her head and Belinda heard three clicks but the gun did not fire. Someone then said, “Man, let’s get out of here.” Belinda “played dead” until the car drove off. None of the assailants appeared intoxicated at any time during the entire evening. Once the car left, Belinda arose and ran down the highway looking for help. She eventually came to a house. There was an unlocked car ip front of the house, and Belinda entered it and blew the horn until a man and a woman came outside. These people telephoned for an ambulance and for the police, and Belinda was transported to the hospital. In the meantime, Bennie had also regained consciousness. He managed to reach the road, where he flagged down a police car. Bennie showed the officer the location of the shooting scene, and he was then taken to the hospital. An autopsy of Floyd’s body disclosed four gunshot wounds near the left ear, nose, left shoulder, and the base of the skull. At least two of the wounds were caused by .38 caliber bullets. An autopsy of Nora’s body disclosed three gunshot wounds near the left eye, the forehead, and the left shoulder blade. At least one was caused by the .38 and at least one wound was caused by the .45. The theory of the defense was diminished capacity. Defendant did not deny, or attempt to justify, his actions at the murder scene. Instead, according to appellate counsel, “[h]e contended that, due to drug-induced delirium, he could not remember what happened after he got out of the car and that, if he did shoot anyone, he did not have the capacity to form an intent to kill or to premeditate and deliberate.” Defendant urged the jury to find him guilty of voluntary manslaughter. Defendant’s case relied entirely on his own testimony that he was intoxicated or “loaded.” Under defendant’s version of the facts, he snorted cocaine and drank wine and brandy before his brother and Ario picked him up and took him to Belinda’s apartment. He testified that Ario injected them with a “speedball”—a combination of cocaine and heroin—as opposed to straight heroin. He claimed that after he was given the injection he vomited. Defendant asserted that everyone at the apartment was given a speedball, including Bennie. (This assertion contradicted Belinda’s testimony that in the 11 years she had known Bennie she had never seen him use drugs.) Defendant testified that when he left Belinda’s apartment with Jackson and Ario they went to a party where he smoked marijuana and drank gin. They then returned to Belinda’s where, according to defendant, Ario injected him with another speedball and he again vomited. He further testified that everyone was injecting speedballs and smoking in the room and that he fell asleep. When he awoke, there was no smoke in the room and everyone had left. He then noticed that his rings, money and gun were missing. (Belinda had testified that defendant said only his rings were missing.) According to defendant, he asked Belinda what happened to his gun and she told him that she had put it in the closet with Ario’s. He asked for the guns and asked Belinda where Bennie lived; Belinda gave him the guns and purportedly said that she would show him. (Belinda had earlier testified that she had no idea where Bennie lived at the time.) Defendant asserted that he next walked through the housing project following Belinda’s lead; according to defendant, they never entered anyone’s house and they soon returned to Belinda’s apartment. Defendant testified that when Bennie arrived, Belinda opened the door and let him in. Defendant asked Bennie for his rings and, according to defendant, Belinda added, “Give him back his stuff, Bennie. You know you got it.” Bennie purportedly said, “I didn’t think you would do me like that.” Bennie and defendant then began arguing and defendant started hitting him with the guns. Defendant admitted pistol-whipping Bennie but testified that he was “confused, hurt and mad” and that he “didn’t know . . . what was actually going on.” He also recalled that when he stopped beating up Bennie, he squatted down in front of Bennie with the guns in his hands. He remembered Jackson walking up to him and also recalled pushing Jackson away. The next thing defendant assertedly recalled is that he was sitting in the car. He testified he did not search Bennie at the apartment, and did not recall anyone else searching him. He also testified that he said nothing during the car trip; he just sat with his head down, crying. Jackson purportedly put his arms around him and told him that “it would be cool.” Defendant recalled the car had stopped. He also remembered exiting the car and hearing gun shots, but he did not remember whether he fired any shots. He did not deny shooting anyone, but said he simply could not remember doing so; he recalled only that he was “upset,” but not mad. He recalled crying while hearing the shots. When asked at trial if he killed anyone, defendant said, “It’s possible. I had a gun. I don’t know.” Defendant next recalled being at a friend’s house the following morning. He could not remember the interim period very well, but he thought that Ario was driving the car and that Jackson was telling him and Ario to “be cool” because “everything is going to be all right.” He remembered being at his friend’s house later that day; he was “confused” and “trying to put things together.” He stated that his “head was still spinning and pounding” and recalled staring out the window but he did not remember what he was looking at. He testified that when he was at his friend’s house, he knew that Belinda, Bennie, Floyd and Nora “wasn’t [szc] with us any longer.” He also remembered that Ario and Jackson were at his friend’s house with him, and that Ario left at some point during the morning to get some more heroin and cocaine. Defendant testified that he took some more cocaine and then called his mother. She told him that Floyd and Nora were dead and that the police were looking for him. He did not try to contact the police. He told his mother, “When I get my head clear, mama, I’m going to turn myself in to the police.” That conversation supposedly occurred on November 9, 1980. As of March 23, 1981, defendant was still in Oakland “hiding from everybody.” Defendant’s primary defense witness, Kate B. Yago, M.D., was certified as an expert in the area of drugs that affect the brain. She opined that defendant had been suffering from a drug overload at the time of the killings. She admitted, however, that she had not personally examined defendant. Dr. Yago also conceded that defendant should have recalled certain events in light of his recollection of other events. Responding to a hypothetical question based on Belinda’s and Bennie’s testimony, Dr. Yago testified that a person such as defendant “would have to be clearheaded” to have acted the way he did. She was unable to name any drug-induced condition which could account for defendant’s selective memory loss. When asked if she could think of any medical explanation for a hypothetical situation based on defendant’s testimony, Dr. Yago admitted, “If I am to believe your hypothetical, then I can’t.” The jury rejected defendant’s claim of diminished capacity and found him guilty of two counts of first degree murder (Nora and Floyd), two counts of attempted murder (Bennie and Belinda), and four counts of kidnapping. The jury also found true the multiple-murder special circumstance as well as the allegations of possession and use of a firearm contained in each of the eight counts. Finally, the jury found that defendant personally and intentionally inflicted great bodily injury on Nora and Bennie, but also found that he did not commit such acts on Belinda or Floyd. The prosecution presented no penalty phase evidence, other than proof of defendant’s prior robbery and burglary convictions. Defendant called a psychologist, a coworker and his mother. The psychologist, Dr. Hilliard, explored defendant’s childhood history and background, his drug and alcohol dependency, and his financial problems, concluding that his drug consumption probably affected his judgment and control during the day of the murders. (Various aspects of Dr. Hilliard’s testimony and cross-examination are explored in greater detail hereafter.) The coworker, Victoria Siegel, testified as to defendant’s dependable work habits as a bus driver and his ability to work well with children. Defendant’s mother, Ellen Williams, testified regarding his childhood and good character. Following the penalty phase, the jury sentenced defendant to death. Defendant moved for a new trial on the grounds of, inter alia, newly discovered evidence and ineffective assistance of counsel. The court denied the motion, as well as defendant’s automatic motion for modification of the jury verdicts. The court sentenced defendant to death, and this appeal followed. I. Guilt Phase Defendant raises several claims of error occurring during the guilt phase of his trial. We conclude that none has merit and that defendant’s convictions should be affirmed. A. Cross-examination of Belinda and Bennie Defendant asserts that the court erred in refusing to allow cross-examination of Belinda and Bennie about criminal charges filed against them on unrelated matters after the murders occurred and before trial conmenc-ed. Defendant claims that the court’s ruling violated the confrontation clause of the Sixth Amendment. Our examination of the record reveals no such violation. 1. The In Camera Hearing on Belinda’s Unrelated Offense During defendant’s cross-examination of Belinda, the court held an in camera hearing on the issue of the admissibility of evidence that Belinda had pleaded guilty to misdemeanor theft in May 1983. Defendant sought to establish that Belinda, who had been charged with burglary in October 1982, was allowed to plead guilty to the lesser included offense of theft as part of a bargain made to secure her trial testimony implicating defendant. During the hearing, defense counsel asked Belinda, “Did your lawyer [in the burglary case] inform you that your testimony in this case would be helpful in regards to your changing and giving a plea?” Belinda replied, “No, he didn’t.” Belinda also denied that anyone from the district attorney’s office told her that if she were to plead guilty, she would receive a reduced sentence in exchange for her testimony in this case. The court then ruled that defense counsel would not be permitted to inquire into the foregoing matter, and defense counsel did not object to the court’s ruling. 2. The In Camera Hearing on Bennie’s Unrelated Offense During defendant’s cross-examination of Bennie, another in camera hearing was held. The issue in this instance centered around the fact that Bennie was arrested on September 2, 1982, after he drew a gun to defend himself, his wife, and his son, against a man who threatened them with a knife. He had been charged with receiving stolen property (the gun), possessing a loaded weapon, carrying a concealed weapon, and brandishing a weapon; evidently the police believed the gun had been used in a prior crime. Sergeant Mellott of the Oakland Police Department spoke with Bennie after his arrest and assured him that he would investigate the charges, which were later dismissed. Defense counsel sought to establish that Bennie was a “police agent” and therefore was biased in favor of the prosecution. Bennie admitted that he “keep[s] in contact with . . . Sgt. Frank Mellott quite a bit.” He said that following his arrest, Mellott visited him at the jail; he did not know how Mellott learned of his arrest. Mellott told Bennie that he would investigate the charges against him; the charges were eventually dismissed. Bennie testified to the reason for the dismissal as follows: “This is what [Mellott] told me. He told me that the District Attorney’s Office didn’t want to involve this [assailant who drew the knife]. . . didn’t want to charge this other guy because he was a crazy person, he was a nut. . . . They said if they subpoenaed him [to testify against Bennie] he would probably never come to court anyway so it would end up being thrown out .... They could tell that he [the assailant] had been—I think they checked and seen [sic\ that he had been in mental hospitals or something . . . .” The prosecutor brought to the court’s attention the fact that Bennie had testified at Ario’s trial—which ended in April 1982—before Bennie was arrested for this unrelated offense. He was also already in the process of testifying at Jackson’s preliminary hearing at the time of his arrest. The charges were dismissed outright, not on condition that he cooperate. Bennie also admitted that he had worked as an informant on other cases with Mellott, and that some of these cases had arisen after the murders with which defendant was charged. Bennie, however, was never compensated for his assistance, and had never entered into any deals with the police whereby charges against him would be dropped in exchange for information. After hearing all of the evidence, the court concluded that the only issues probative of Bennie’s bias were: “The identification of Sgt. Mellott as a person who has been involved in the continuing investigation in this case and the fact that [Bennie] has been working with Mellott on other matters unrelated to this case, and that’s all.” The court instructed defense counsel to limit his cross-examination on these issues “to whether [Bennie] has a bias toward the prosecution.” The court specifically ruled that evidence of Bennie’s arrest record was inadmissible. In sum, the defense was allowed to inform the jury that Bennie had worked for the police and was still working for them, evidence which was relevant to a determination of possible bias or motive. The defense was not permitted, however, to question Bennie about the unrelated offense because there was no evidence that the charges were dismissed as part of a bargain for his testimony against defendant. 3. Discussion On appeal, defendant insists that the court’s foregoing rulings denied him his right to confront and cross-examine. The thrust of defendant’s argument is that it was a jury question whether Belinda and Bennie were telling the truth when they denied that any deal had been made with the district attorney’s office. He relies on the traditional role of jurors in determining credibility of witnesses. The claim lacks merit. The United States Supreme Court recently addressed a similar issue in Delaware v. Van Arsdall (1986) 475 U.S. 673 [89 L.Ed.2d 674, 106 S.Ct. 1431]. In that case, the defendant, charged with murder, sought at trial to discredit the testimony of witness Fleetwood “by questioning him about the dismissal of a criminal charge against him—being drunk on a highway— after he had agreed to speak with the prosecutor about [the] murder.” (Id., at p. 676 [89 L.Ed.2d at p. 681].) The prosecutor objected to this line of questioning and the trial court held an in camera hearing on the matter. (Ibid.) During the hearing, “Fleetwood acknowledged that the drunkenness charge had been dropped in exchange for his promise to speak with the prosecutor about the murder, but he denied that the agreement had affected his testimony.” (Ibid.) The trial court prohibited the defendant from cross-examining Fleetwood on the point, finding that the probative value of the evidence was outweighed by its prejudicial effect. (Ibid.) Defendant was convicted and appealed. The Delaware Supreme Court reversed because “the bias of a witness is subject to exploration at trial and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ ” (475 U.S. at p. 677 [89 L.Ed.2d at p. 682].) Because the trial court barred any cross-examination of Fleetwood on the issue of the dismissal, “facts concerning bias that were central to assessing Fleetwood’s reliability” were kept from the jury. (Ibid.) This ruling constituted a violation of the confrontation clause, which the Delaware Supreme Court believed to be reversible per se. The high court agreed that a violation of the confrontation clause occurred because the agreement provided a motive for giving false testimony. The jury, had it considered such evidence, could well have found that Fleetwood was biased and his testimony should be discredited because the charge against him was dismissed in return for a promise to cooperate with the district attorney. The excluded evidence “furnished the witness a motive for favoring the prosecution in his testimony.” (Id., at p. 679 [89 L.Ed.2d at p. 683].) The court disagreed, however, that the foregoing error required automatic reversal. Thus, the court observed “[t]he harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, [citation], and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (‘Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.’).” (Id., at p. 681 [89 L.Ed.2d at pp. 684-685].) The high court concluded that “improper denial of a defendant’s opportunity to impeach a witness for bias . . . is subject to Chapman [Chapman v. California (1967) 386 U.S. 18, 24 (17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065)] harmless-error analysis.” (Id., at p. 684 [89 L.Ed.2d at p. 686].) Accordingly, the court remanded the matter to the lower court for a determination of whether the error was harmless. (Ibid. [89 L.Ed.2d at p. 687].) There is a crucial difference between the present case and Van Arsdall, supra, 475 U.S. 373: Both Belinda and Bennie denied any connection between the resolution of the charges against them and their trial testimony. Nothing surrounding the resolution of the charges would indicate a motive for favoring the prosecution when testifying. In Van Arsdall, the charges against Fleetwood were dismissed in return for his promise to cooperate. In the present case, the charges against Belinda and Bennie had been resolved before they testified against defendant; thus, no leverage remained over these witnesses. In addition, both Belinda and Bennie had cooperated prior to their arrest on unrelated charges, and continued to cooperate during the pendency of those charges against them. Indeed, both had already testified against Ario, and Belinda had completed testifying against Jackson before the unrelated offenses were resolved. Further, as the Attorney General accurately observes, Belinda and Bennie had a much more forceful reason to cooperate—and to give false or biased testimony—than the mere dismissal or reduction of criminal charges against them: Defendant had tried to kill them. The jury was therefore well aware that these wiv. .esses had a strong motive for favoring the prosecution with their testimony. Defendant contends that, even if no agreement existed regarding the resolution of the unrelated offenses, the jury should have decided this “fact” question. We disagree. As with any other situation where admissibility or relevance is at issue, it is within the province of the court to determine whether the evidence shall reach the jury. “[The] trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination [into the potential bias of a prosecution witness] based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. ” (Van Arsdall, supra, 475 U.S. 673, 679 [89 L.Ed.2d at 674, 683], italics added.) The trial court, not the jury, determines at the outset whether the evidence is relevant. In Van Arsdall, the witness admitted that an agreement existed regarding the dismissal of a charged offense. In the present case, both witnesses denied any such agreement. The fact that unrelated offenses were charged, and later dismissed or reduced, was therefore irrelevant to a determination of potential bias on the part of the witnesses. Even if error occurred, it was clearly harmless beyond a reasonable doubt. The evidence against defendant was overwhelming and conclusive. He did not deny committing the killings, nor did he contest the factual accounts of what transpired. His entire defense was that he was “unconscious” due to drug and alcohol intoxication during the critical 30 minutes of the kidnappings and murders, and that the jury should therefore return a verdict of only voluntary manslaughter. Evidence that Belinda and Bennie were charged with unrelated crimes, and that those charges were dismissed or reduced for reasons unrelated to the instant murder trial, would not have affected the jury’s verdict. Defendant, however, insists that prejudicial error occurred. He stresses that Belinda and Bennie were the only prosecution witnesses to testify as to defendant’s “control of his faculties” and as to his being “an active participant in the crimes.” Accordingly, he reasons that “their testimony was the only direct evidence rebutting [his] defense of diminished capacity.” The argument is unconvincing. Even defendant’s own expert was unable to explain his sudden and selective memory loss concerning the night of the murders. We conclude that if the evidence of the victims’ unrelated offenses had been presented to the jury, it would not have seriously undermined the witnesses’ credibility. Defendant cites three California cases in support of his position that improperly restricting cross-examination of a witness to disclose possible bias requires reversal. (People v. Adams (1983) 149 Cal.App.3d 1190 [197 Cal.Rptr. 623]; People v. Stewart (1983) 145 Cal.App.3d 967 [193 Cal.Rptr. 799]; People v. Allen (1978) 77 Cal.App.3d 924 [144 Cal.Rptr. 6].) A close reading of these cases reveals that they are each distinguishable. In Adams, the defendant was precluded from cross-examining a prosecution witness about his juvenile probation status. This ruling was error because “[the witness] was on probation, so in any brush with the law he certainly was aware of the consequences of noncooperation.’’ (Adams, supra, 149 Cal.App.3d at p. 1193.) In Stewart, the trial court refused to allow the defendant to cross-examine her accomplice, who had separately pleaded no contest, regarding her motive for revenge against defendant. The trial court improperly rebuffed defendant’s line of examination, stating, “she is under oath, telling the truth, that isn’t revenge.” (Stewart, supra, 145 Cal.App.3d at p. 977.) In Allen, the court similarly refused to allow proper cross-examination of an accomplice concerning two juvenile charges pending against him. (Allen, supra, 77 Cal.App.3d at p. 929.) The foregoing cases simply illustrate the well established principle that the defense is entitled to elicit evidence that a witness is motivated by an expectation of leniency or immunity (People v. Claxton (1982) 129 Cal.App.3d 638, 660 [181 Cal.Rptr. 281]; People v. Coyer (1983) 142 Cal.App.3d 839, 842 [191 Cal.Rptr. 376]), or that he is on probation or parole (Davis v. Alaska (1974) 415 U.S. 308 [39 L.Ed.2d 347, 94 S.Ct. 1105]; People v. Espinoza (1977) 73 Cal.App.3d 287, 291 [140 Cal.Rptr. 846]). Such evidence is obviously probative of bias or motive. Here, however, the charges against Belinda and Bennie had been dismissed or reduced before they took the witness stand against defendant, In the absence of proof of some agreement which might furnish a bias or motive to testify against defendant, the fact that each witness had been charged with the commission of unrelated offenses was irrelevant. Any error in failing to admit such testimony was, therefore, clearly harmless. B. The Denial of Defendant’s Motions for New Trial Defendant filed two motions for new trial. The first was filed by his counsel and sought a new trial on the basis of newly discovered evidence. The second was a pro se motion for new trial on the basis of ineffective assistance of counsel. The trial court denied both motions and defendant contends that the court erred in so ruling. We conclude otherwise. 1. Newly Discovered Evidence Defendant filed a motion for new trial September 22, 1983, alleging newly discovered evidence. The evidence consisted of the declarations of Robert Fluker (Nora’s brother-in-law) and his “common law” wife, Carol Tiexiera, stating that Fluker and Tiexiera recalled meeting defendant the night of the murders during his search for Bennie and observing that he was “not himself,” and appeared to be “loaded” and “spaced out.” Defendant contended this new evidence would refute Belinda’s and Bennie’s testimony that defendant was in control of himself before and during the murders. The trial court denied the motion, finding that the evidence was not newly discovered. As we recently observed, “The standard of review of an order denying a motion for a new trial based on newly discovered evidence was established by this court in 1887: ‘To entitle a party to a new trial on the ground of newly discovered evidence, it must appear,—“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.” . . . . [fl] “Applications on this ground are addressed to the discretion of the court below, and the action of the court below will not be disturbed except for an abuse of discretion,. . .” ’ (People v. Sutton (1887) 73 Cal. 243, 247-248 [15 P. 86], quoting 1 Hayne on New Trial and Appeal, §§ 87-88.)” (People v. Martinez (1984) 36 Cal.3d 816, 821 [205 Cal.Rptr. 852, 685 P.2d 1203].) Defense counsel admitted during argument to the trial court that the names of both Robert Fluker and Carol Tiexiera arose at defendant’s preliminary hearing held June 4, 1981. At that hearing, Belinda testified that during their search for Bennie in the housing project, “we went all the way to the projects and we seen [sz'c] Nora’s brother-in-law and sister-in-law and we asked him had he seen Bennie, Q. Who is Nora’s brother-in-law and sister-in-law? [fl] A. Carole Fluker [s/c] and Robert Fluker.” Additionally, defendant himself testified at his trial that he was in control of himself until Bennie returned to the apartment, i.e., after the search through the housing project. Thus, defendant’s own trial testimony contradicted the declarations which formed the basis of his new trial motion. Defense counsel nonetheless urged the trial court to consider the declarations as newly discovered evidence because counsel had not known that the witnesses could testify that defendant was “loaded” and “spaced out.” In ruling on the motion the court stated: “It is critical that the newly discovered evidence be newly discovered, or unavailable to be discovered through reasonable diligence. The Court makes the finding that this is not newly-discovered evidence as a conclusion of law, and the Court makes the further finding that their [the two witnesses’] presence could have been sought through the exercise of reasonable diligence.” Defendant, however, insists that admission of the new evidence would likely have resulted in a different verdict upon retrial, and that our opinion in Martinez, supra, 36 Cal.3d 816, mandates reversal under such circumstances. He misreads our holding in that case. In Martinez, the defendant was convicted of burglary and the trial court denied his motion for new trial based on newly discovered evidence; defendant appealed. We noted that the trial court denied defendant’s new trial motion on two grounds: lack of due diligence, and doubt that a different result would be reached on retrial. (Id., at p. 821.) We found that, had the newly discovered evidence been admitted, the prosecutor’s case would have been seriously undermined. We therefore concluded, “we cannot uphold the denial of defendant’s motion on the theory that the evidence in question would not affect the outcome of the case.” (Id., at p. 824.) We then turned to the issue of diligence of counsel. We stressed that “the determination of guilt and innocence” was the “fundamental purpose” of trial, superseding the public policy to conclude litigation. (Id., at p. 825.) Thus, “[t]he focus of the trial court . . . should be on the significance and impact of the newly discovered evidence, not upon the failings of counsel or whether counsel’s lack of diligence was so unjustifiable that it fell below constitutional standards.’’ (Id., at p. 826.) We therefore held that “[i]f consideration of the newly discovered evidence is essential to a fair trial and a just verdict, the court should be able to grant a new trial without condemning trial counsel as constitutionally ineffective.” (Ibid.) Noting that the prosecution’s case was extremely weak, we concluded: “The defense in the case before us presentéd newly discovered evidence—the testimony of [a new witness]—which in our opinion would probably lead to a different result at retrial. Reliance upon counsel’s lack of diligence to bar defendant from presenting that evidence to a trier of fact would work a manifest miscarriage of justice.” (Ibid., italics added, citation omitted.) Accordingly, we reversed the trial court’s ruling. At no time, however, did we indicate that a defendant is entitled to a new trial whenever evidence that was not presented at a previous trial is sought to be offered on retrial. The evidence generally must be newly discovered. Additionally this is not a case, like Martinez, supra, 36 Cal.3d 816, in which the prosecution’s case was extremely weak; to the contrary, defendant never denied that the events took place substantially as Belinda and Bennie testified. Thus, even if the evidence somehow could be considered “new,” defendant has failed to demonstrate that admission of the testimony of two witnesses that he appeared “spaced out” hours before the murders would likely have led to a different result. “The granting or denial of a motion for a new trial on the ground of newly discovered evidence is a matter within the sound discretion of the trial court, and in determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background. [Citation.]” (People v. Hill (1969) 70 Cal.2d 678, 698 [76 Cal.Rptr. 225, 452 P.2d 329].) We conclude the trial court did not abuse its discretion in denying defendant’s motion for new trial. 2. Ineffective Assistance of Counsel Defendant filed a pro se motion for new trial on September 24, 1983, alleging ineffective assistance of counsel. Defendant based his claim on counsel’s failure to discover the “new evidence” contained in the declarations of Fluker and Tiexiera. The thrust of defendant’s argument is that “reasonably competent” counsel would have investigated Fluker and Tiexiera as potential defense witnesses because they were the only witnesses who could have contradicted Belinda’s and Bennie’s testimony that defendant was in control of himself. The trial court denied defendant’s motion on several grounds. First, it ruled that defendant failed to meet his burden of proof in establishing counsel’s incompetence. According to the court, at most, the record demonstrated that counsel’s failure to pursue this line of investigation was “simply an oversight” rather than a “deliberate or intentional failure” evidencing incompetence. The court then noted that the declarations of the “new” witnesses related to a period that “[was] not the most critical time, because the more critical time had to do with the time when Mr. Bennie Warren testified that you administered a pistol-whipping, and also the later time in the Oakland Hills when the shots were fired and the killings occurred.” Finally, the court found that “there has not been the withdrawal of any defense that might otherwise have been available” at trial, and that defendant had been represented by two “[h]ighly experienced lawyers” who had competently represented defendant. We have enunciated a two-step test for determining whether counsel was ineffective: “ ‘[Defendant] must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, [he] must establish that counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense.’ ” (People v. Fosselman (1983) 33 Cal.3d 572, 581 [189 Cal.Rptr. 855, 659 P.2d 1144], quoting People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Fosselman explained that “in cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel’s failings. (Pope, supra, 23 Cal.3d at p. 425; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)” (33 Cal.3d at p.584; see also Strickland v. Washington (1984) 466 U.S. 668, 693-695 [80 L.Ed.2d 674, 697-698, 104 S.Ct. 2052].) As previously mentioned, the trial court found that (1) defendant failed to meet his burden of proof in establishing counsel’s incompetence; (2) the omission did not result in the withdrawal of a potentially meritorious defense; and (3) it is not probable that a result more favorable to defendant would result from retrial. These findings seem supported by the record. It is difficult to imagine how an event which took place hours before the murders could have been very relevant to the defense (and therefore require investigation) where the defense was unconsciousness or diminished capacity during the critical 30 minutes of the kidnapping and murders. It is quite conceivable that defense counsel thought it pointless to search for and interview witnesses who would probably either not remember the event, or whose lay testimony would have been of doubtful value in establishing a diminished capacity defense. It is noteworthy that defendant himself admitted that he remained in control until Bennie returned to the apartment. Thus, the Fluker/Tiexiera testimony would have contributed little to the defense of a drug-induced delirium, resulting in selective memory loss at the time of the murders. What transpired hours earlier would be immaterial except as related to the ingestion of drugs. The critical period, as the court observed, ran from the time Bennie returned to the apartment and defendant began pistol-whipping him, to the time the murders were committed. No potentially meritorious defense was lost by the omission complained of here. Finally, even assuming arguendo that the failure to pursue this line of investigation demonstrated ineffective assistance of counsel, defendant would still not be entitled to relief without proving prejudice. (Fosselman, supra, 33 Cal.3d at p. 581; Strickland, supra, 466 U.S. at p. 687 [80 L.Ed.2d at p. 693] [the defendant must show that counsel’s deficient performance prejudiced the defense].) For the reasons previously explained, it is not reasonably probable that the verdict in this case was affected by counsel’s omission. C. Evidence of Defendant's Prior Convictions On the first day of trial, prior to the selection of the jury, defendant made a Beagle motion (People v. Beagle (1972) 6 Cal.3d 441, 451-454 [99 Cal.Rptr. 313, 492 P.2d 1]) to exclude his three prior felony convictions for impeachment purposes in the event that he testified in his defense. The court deferred its ruling on the motion. Shortly before opening statements to the jury, defendant admitted the priors and the court again deferred its ruling on their use for purposes of impeachment. After the prosecution’s case-in-chief, the Beagle motion was renewed, and the prosecutor advised the court that “we do not intend to introduce evidence of any prior convictions Mr. Dyer has suffered in these proceedings in this phase of the trial, assuming there is another phase. But as far as this phase of the trial is concerned only, we do not intend to impeach him with any of his prior convictions.” Defense counsel inquired “whether or not the prosecution’s actions extend to any character witnesses that may be presented by the defense, that is to say, that those witnesses themselves would not be asked about their knowledge of any prior felony convictions that the defendant may have. The prosecutor replied: “It would apply to that. . . . [W]hat we commonly do with our witnesses, that is, if they have that information available, ask the witness not to volunteer that knowledge in the event I ask a question that is so broad that [it] would inadvertently bring that response. But the ruling, we assent to his request not to bring out in any way before this jury in this phase of the trial any evidence of any nature concerning any prior convictions suffered by the defendant in this phase of the trial.” Defendant subsequently took the stand and testified in his defense. The prosecution did not impeach him with his prior felonies. Next, defendant called Dr. Yago, his expert witness. She, too, was not questioned about defendant’s prior convictions. Defendant then called Amanda Stevens, who had worked with defendant at the Oakland Head Start program for a few years prior to November 8, 1980. After a few general questions, defense counsel asked Stevens, “Have you had occasion to learn . . . about the reputation of Mr. Dyer?” Stevens replied that she had. At that point, the court requested that counsel approach the bench, and subsequently took counsel into chambers for an in camera hearing to clarify the extent of the prosecutor’s stipulation. Defense counsel stated, “it’s my understanding, from the stipulation of [the prosecutor], that this matter was possibly déalt with when we had the discussion of the Beagle motion. As the Court recalls,. . . [defense cocounsel] asked [the prosecutor] if a waiver of going into any prior criminal conduct applied to any character evidence that we might bring in, and he indicated yes, unless he has other things he wants to bring in I have no problem with that, other than that part.” The court responded that, “I’m not indicating that he [the prosecutor] didn’t say it, but it’s not in my mind that that’s what would be in the record, that he would waive it as far as any character testimony is concerned, or reputation testimony, if you wish to call it that. . . .” The prosecutor agreed that, “Never has it been stated or made clear or asked me can we ask reputation information and will you forego relevant information on his reputation, because then it would be basically asking me if I would let the jury hear false information about the defendant. And I would never accede to those kinds of points. So it was never clearly stated to me that there was an attempt to get me to be silent when the jury gets this false notion that this defendant has been nonviolent in his past. And I would not have acceded to those things, and I don’t think the Court would require me to do that.” The court then asked the reporter to read back the record. After hearing the actual transcript, the prosecutor said, “[I]t’s clear [defense counsel] did ask about character information, whether or not I would use the priors with those witnesses. My understanding at that time is that I had in mind that he would be bringing somebody in from the jail to talk about the defendant in terms of how he gets along with people there, or how they observed him in terms of where he was, or any kind of thing about his alibi or observations of the defendant. . . . We basically agreed we wouldn’t bring out how the witnesses came to know the defendant, whether they met him in jail and know about his prior offenses. That’s what I thought we had in mind. . . . [I]n terms of my understanding I have never understood of him asking me that he could bring in the evidence that the defendant is peaceful and nonviolent and that I would withhold from this jury that he has in the past been involved in life-threatening and very violent behavior . . . .” The court noted that the issue being discussed at the time the stipulation was entered into was the Beagle motion, that is, the impeachment of defendant with his prior felony convictions in the event that he were to take the stand. The court then stated its ruling. “My conclusion is that all counsel were acting in the utmost good faith . . . [and] that there was not a meeting of the minds between the parties as to what was meant by the other side. My conclusion is that the agreement was not intended to allow for the introduction of character evidence on the two issues [of nonviolence and truthfulness], or either of them, in this case. It is not because that is not what was specifically intended by [defense counsel] . . . when they asked the question of [the prosecutor], but that in the context in which the question arose it is more susceptible of the interpretation that [the prosecutor] intended simply to indicate that he would not on his own, through any witnesses of his, introduce this matter and that he, as a matter of fact, wanted expressly to warn defense counsel to be certain that any witnesses that they called would not blurt out anything about any priors, and he wanted also to assure counsel that he would not examine any defense witnesses who came on to testify with respect to other matters by inquiring as to the priors . . . .” The court observed that there was no reason for the prosecutor intentionally to forgo his right to impeach defendant’s character witnesses, and defense counsel never indicated that he meant to obtain from the prosecutor a waiver of his right to impeach any witness on defendant’s veracity or his lack of violent propensities. Defendant then requested a ruling on the Beagle motion with respect to impeaching his character witnesses. The court stated that the armed robbery conviction would be admissible “with respect to any question about force and violence” and that the other two felony convictions—for burglary—would be admissible “with respect to the issue of reputation for peace and quiet.” We think the trial court’s ruling was proper. “A party seeking relief from the burdensome effects of a stipulation may, in some cases, be fully protected by interpretation, i.e., by enforcement of the stipulation in a reasonable and nonburdensome way.” (1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 223, p. 252, and cases cited, italics in original.) The court followed that procedure here; it did not purport to release the prosecutor from his stipulation, but merely interpreted it to reflect the probable intention of the parties. The court could have simply released the prosecutor from the stipulation. “One type of recurrent situation involves the giving up of substantial rights by casual, hasty or improvident oral concession of counsel. In nearly all such cases relief is granted on either of the following theories: (1) The remarks did not amount to a stipulation; or (2) if they did, it should not be held binding in view of the circumstances under which the agreement was made, and its manifest unfairness to the aggrieved party.” (Id., at § 226, at p. 254.) The trial court in effect found here that the stipulation, as interpreted by defense counsel, should not be binding. In addition, defendant has failed to demonstrate prejudice. He claims that “counsel relied on the stipulation in making a variety of tactical and other decisions, including whether or not [defendant] should testify, the order of witnesses and the questions to ask them.” In rejecting this contention, the trial court properly observed that defense counsel had no knowledge of the stipulation until the close of the prosecution’s case-in-chief, when the court, defendant and all counsel met to discuss the Beagle motion and the stipulation was entered into. Immediately after the stipulation was made, the jury was brought into the courtroom and the defense called defendant to the stand to testify in his behalf. Defendant’s decision to testify was not in any way affected by the disputed portion of the stipulation, which covered only character witnesses. Nor did the stipulation affect the testimony of the character witnesses. As the court observed, the questions asked the witnesses—both before and after the discussion in chambers—were all positive; only questions concerning reputation were omitted. Defendant does not explain how the order of the witnesses called would have differed, nor does he explain why the court’s interruption of his examination of Stevens was prejudicial. The only “prejudice” defendant suffered is that he was denied the opportunity to offer unchallenged and unimpeachable evidence of his “good” reputation. Accordingly, even assuming error, defendant was not materially prejudiced by the court’s ruling. D. The Prosecution’s Use of Peremptory Challenges Defendant claims that the prosecution’s use of peremptory challenges to exclude “persons with scruples about the death penalty but who nonetheless can follow the law” denied him his right to an impartial jury, a representative jury, and due process. Defendant concedes that we rejected this argument in Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301], but he complains of “exclusion of a broader group of jurors—those with reservations about the death penalty but who could vote to impose it in the proper case.” Defendant’s claim lacks merit. (People v. Turner (1984) 37 Cal.3d 302, 315 [208 Cal.Rptr. 196, 690 P.2d 669].) E. Alleged Juror Misconduct Defendant contends that he was denied his right to an impartial jury because one of the jurors allegedly gave an incorrect or incomplete response to a voir dire question asking whether any member of her family had been a crime victim. At the conclusion of the guilt phase of defendant’s trial, defense counsel notified the court that he suspected juror misconduct on the part of Juror Jess F. The court thereupon “asked for additional information as to the foundation for any inquiries that might be made, or any steps that might be taken by the Court.” Defense counsel subsequently informed the court that he had spoken at the Santa Rita jail with F.’s estranged husband, Melvin P., who confirmed that F. had a brother who was killed a few years earlier. P. admitted that he was “not sure whether or not this was a criminal act. . . .” Juror F. was brought into chambers and questioned in camera. She admitted that her brother had been shot and killed five years ago, but that “It was an accident. They didn’t let us know when the trial was going on so we don’t know what happened to the man that accidentally shot him.” Juror F. was “not too sure” whether criminal charges were brought against the assailant. She asserted that the event did not aifect her verdict in the present case, and that “I believe it was an accident. ... It was a party going on and he [the assailant] was just trying to clear everybody out of the party because there was a fight or something, and . . . the gun went off" and it happened to hit my brother. ... He didn’t even know my brother, so he had no reason to just shoot him for nothing. So it was just an accident.” Defense counsel moved for a mistrial observing that Juror F.’